§ 3.31 p.m.
§ Report of amendments received.
§ Clause 2 [Definition of "public service vehicle"]:
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Lord Bellwin) moved Amendment No. 1A:
Page 3, line 27, leave out subsection (5).
§ The noble Lord said: My Lords, I am moving this amendment in replacement of the one so effectively moved by my noble friend Lord Lucas of Chilworth and carried on a Division by your Lordships in Committee. The amendment as moved was defectively drafted. The provisions of the 1978 Transport Act to which it referred are repealed in this Bill, and, as I think my noble friend will agree, it was not in a precise enough form for the statute book. I did not draw attention to these defects during the Committee debate, thinking it better for the discussion to be on the principle of the amendment. I have no wish to persuade, or even to try to persuade, your Lordships to overturn that decision, which clearly represented the wishes of the majority of your Lordships—indeed, quite the contrary—and what I am now moving is designed to embody that decision in an appropriate legal form by an amendment to the 1972 Road Traffic Act.
§ What it does, as your Lordships will see, is to provide that no policy given for the purpose of the 1972 Road Traffic Act should exclude cover for motorists who are sharing their cars in return for contributions towards their running costs. It does this by saying that any restriction in such a policy should still include, and no exclusion should exclude, the use of vehicle-or car-sharing, provided that the conditions in Clause 2 of the Bill are met. These conditions are spelt out again in this clause, which is after all to form part of the 1972 Road Traffic Act. The only change which we have made, to meet the wishes of the motor insurers, is to exclude in terms the sharing of motorcycles.
§ I should remind your Lordships that this new clause, which relates to private 1598 car policies, is concerned with personal injury liabilities which are required to be covered by Part VI of the Road Traffic Act 1972. The undertaking given in 1978 by the Motor Conference goes much wider than this, and of course the subject matter of the amendment (with much else besides) falls within its scope. The market undertaking, which now forms part of the contractual relationship between insurers and their private car policyholders, will remain in force, subject only to an increase in the permitted number of passengers from seven to eight.
§ This undertaking has operated without giving rise to any difficulties and will, I am confident, continue to do so, greatly to the advantage of all concerned. The Motor Conference have told me that since their undertaking is wider than the scope of the amendment, they see no reason for any fresh documentation or alteration of policies. The Government have certainly no wish to force motor insurers into increasing their administration costs, but I trust that they will take all reasonable opportunities to ensure that those people mentioned by my noble friend Lord Lucas, in his speech in Committee and who had apparently hitherto missed noticing the undertaking, will have it drawn to their attention. Certainly the Government will do so in any publicity which is issued about the new opportunities for car-sharing. My Lords, I beg to move.
§ Lord UNDERHILL
My Lords, in view of some of the remarks that I am to say to the noble Lords the Ministers later, I must say, in connection with this amendment and Amendment No. 63C (with which the noble Lord, Lord Bellwin associated it) that we complain that the first we saw of it was when we arrived here this morning and consulted the Marshalled List and the Supplementary Marshalled List. This is a very important matter, and it requires the most careful consideration. From what the noble Lord has said, it seems that it is all right, but to a great extent we shall be guided by what the noble Lord, Lord Lucas of Chilworth, says about it, since he moved the original amendment.
§ Lord LUCAS of CHILWORTH
My Lords, I am grateful to my noble friend 1599 for his explanation of Amendment No. 1A, which is a paving amendment for Amendment No. 63C. At the Committee stage I did not realise that the amendment that I moved was defective, and it was not until my attention was drawn to this fact by the department that I was able to engage in conversations with them. It is rather a pity that a number of your Lordships have approached me with a letter from the Motor Conference, which they have not seen fit to send to me, and so I have had to have my discussions with the department on the basis of what they have told me. Nevertheless my honourable friend the Parliamentary Secretary gave detailed explanations and earlier in the week provided for me a draft amendment; and I have been able to discuss this with those who advise me.
Amendment No. 63C, to which it would be appropriate to speak now in order to save time much later tonight, in essence embraces all that I wished to embrace by virtue of the amendment that I moved at the earlier stage—which is, quite simply, that, notwithstanding an undertaking, all domestic policy holders shall be covered by the minimum policy which an insurance company may provide under the old legislation so as not to exclude liability arising in the event of an accident when the motor car is being used with a shared-cost passenger. The matter really is as simple as that.
I quite accept what my noble friend has said with regard to motorcycles, and in any event in that connection it really is a rather impractical proposition. So far as I am concerned, the subsequent amendment, No. 63C, for which the amendment that we are discussing, No. 1A, paves the way, is quite satisfactory.
Perhaps I should add that again I am obliged to the department for the amount of work that they have done in a very short space of time. Rather like the noble Lord, Lord Underhill, I am a little surprised that the amendment should have reached us this afternoon, instead of perhaps at a later stage, but I do not think that this is a bad thing. We can deal with it now while our minds are fresh and get it out of the way. Lastly, I must say that the parliamentary draftsmen find an extraordinary way of inter- 1600 preting what I thought was a comparatively simple point. I can do no more than suggest that your Lordships accept my noble friend's amendment.
§ Lord LLOYD of KILGERRAN
My Lords, I spoke on this matter at the Committee stage, when I was very much moved by the realistic problems which the noble Lord, Lord Lucas of Chilworth, pointed out in regard to domestic car owners and their insurance companies. As I am strongly in favour and am strongly supporting the Government's proposals about car-sharing, it seems to me, as I said at Committee stage, that it is an important social matter to have the position of the average domestic owner of a car who indulges in car-sharing clearly set out vis-à -vis the insurance company.
I have had a letter and a memorandum from the Motor Conference, and I should like to express my gratitude for the help they have given to me in explaining the position as it is with motor insurers. But I should like to join with the noble Lord, Lord Underhill, in saying that I received a copy of Amendment No. 63C only this morning, and therefore it is very difficult for me at this stage to do anything more than to agree with the noble Lord, Lord Lucas; but I am not in a position to say that I fully support Amendment No. 63C since we have not had the opportunity to examine it.
§ Lord BELLWIN
My Lords, may I first of all apologise to the House for the short notice that was given? If it is any comfort, I would assure noble Lords that I, too, had the same short notice. Indeed, only this very morning we were receiving as many (would you believe?) as 20 amendments and it is far from easy to absorb it all. Nevertheless, the important thing, surely, is to be quite satisfied that we are dealing correctly with this matter; and in that it is one which was raised by my noble friend Lord Lucas (and so effectively, as I said before), I would hope that in the circumstances as we have to deal with them the noble Lord, Lord Underhill, may feel, so far as concerns what he had to say on the subject, it is now acceptable, and perhaps your Lordships might accept the amendment.
§ Lord MISHCON
My Lords, I follow, if I may, on what the noble Lord the 1601 Minister has just said, first of all to say that, having heard the noble Lord, Lord Lucas, it is obviously a matter of satisfaction to the Opposition that he is perfectly happy with this clause as amended. However, I have to follow the noble Lord the Minister in what he said about the lateness of amendments put before the House. This may be a convenient moment for me to say, if I may—and I do it most respectfully—that it is quite impossible for this House, which is given very much a revising duty, to consider matters properly at Report stage when there is such a rush between Committee and Report. I say this when the noble Lord the Minister admits to the House with his usual frankness and his continuous courtesy that he himself was faced with, I believe, about 20 new amendments this morning.
Many assurances were given at the Commitee stage to the Committee that matters of importance which were raised on this Bill would be considered, and that there would be replies from the appropriate Ministers. Let me say at once that replies have been received, but they have been received literally over the last few days. I understand completely the problems that Ministers have to face, but that has meant no proper time to consider the replies in the light of amendments put down, and no proper opportunity for the House to deal with an important Bill properly at the Report stage. I make my protest, my Lords; I hope that something can be done in future to avoid this sort of situation.
§ Lord BELLWIN
My Lords, just before we leave the subject I think I ought in fairness to say that there are some 68 amendments that I have before me at the moment. If we are talking about some 20 just received, I think it would be equally fair to say that there were a good number which were dealt with between the Committee stage and now. Furthermore, many of them concern very complicated matters which require the most careful consideration; and when Ministers say in good faith that they will go away and think about matters raised, often by the Opposition or even by my noble friends on this side, they do exactly that. These matters are taken away, there are consultations about them between ministerial colleagues, then there is consultation with officials, and then 1602 there is discussion with the parliamentary draftsmen; and in the relatively short time between Committee stage and Report stage, for all that, when there are many such things—
§ Lord BELLWIN
The noble Lord says that it should not be, but it is bound to be if the Government take a tolerant attitude at Committee stage in being willing to look at matters again, rather than saying, "I am sorry, but that is all there is to it and we will divide if you wish to divide"—and I do not really think that that is what the noble Lord would most wish us to do. But once we do take that attitude, if there are many amendments which we undertake to look at again, and, furthermore, others which follow thereafter, often at short notice, then I feel we are bound to be in this situation. However, having said that, I feel that noble Lords on all sides understand the difficulty, and we shall just have to cope with it as best we can, trying to be as helpful as we can at all stages.
§ On Question, amendment agreed to.
§ Clause 3 [Classification of public service vehicles as stage, express or contract carriages]:
§ 3.46 p.m.
Lord UNDERHILL moved Amendment No. 1:
Page 4, line 43, leave out (" either of those places ") and insert (" both ").
The noble Lord said
Having made clear our viewpoint on the other issue, I should like to follow my noble friend Lord Mishcon in thanking the two noble Lords the Ministers for carrying out their promises to write us on a number of matters, which they have. That is not to say that automatically we will do as they request us to do, but we appreciate the fact that they have carried out their assurances. My Lords, the purpose of this amendment is similar to that of the amendment which was proposed in Committee, although now, as your Lordships will see, it is in a more simplified form. The amendment in this simplified form is brought forward again, firstly, because there is a principle involved and, secondly, 1603 because the noble Lord, Lord Bellwin, gave an assurance that he would discuss the point involved with his friend the Secretary of State and would let us know the outcome.
I should remind your Lordships of exactly what is the point involved. The subsection determines whether or not a particular service shall be a stage carriage—that is, a local bus service—in which case it comes fully within licensing requirements; or, alternatively, that it shall be an express service, and be outside licensing. It also determines whether excursion or tour shall qualify as an express service. This is a complicated matter, and its complication is shown by the fact that I believe the Government themselves have had two or three bites at the cherry to try to get this right. But, with respect, I would suggest that it is still not satisfactory, and that is why we have submitted the amendment.
The original wording was somewhat tortuous. It would appear that, originally, reference to the 30-mile radius was intended to exclude from road service licensing excursions and tours when they travelled more than 30 miles from their picking up point and setting down point, which are in the same place or in the same vicinity; while excursions or tours within the 30-mile radius were given a simplified licensing procedure. I believe I am correct in saying that the intention was to exclude journeys where the route was more than 30 miles from both picking up and setting down point or points, as the case may be. This is not the position within the present subsection, as the phrase used is "either of those places". The amendment seeks to restore what we thought was the original intention by changing these words to "both", so that it reads "both places ".
The amendment would also avoid the position of an operator extending a route a very small distance in order to go beyond the 30 miles and qualify as an express service—provided it meets the other condition, of course, of passengers being set down 30 miles from where they were picked up—and therefore be free of road service licensing, although at the same time travelling over the same route as a stage service bus which is fully licensed. In Committee, I gave one 1604 example of how this could be done; the noble Lord, Lord Teviot, gave another example; and the noble Lord, Lord Bellwin, said that many examples could be given, which indicates that this could be a general problem. It is on both these grounds, and in view of the assurance given by the noble Lord the Minister that he would consult with the Secretary of State, that we have put this amendment down again. I beg to move.
§ Lord BELLWIN
My Lords, I said that I would consult; I have certainly done so and I am glad to confirm it. I have listened to the noble Lord, Lord Underhill, today as I did in Committee. Furthermore, the consultations with my ministerial colleagues to which I refer have been quite extensive. But nothing that the noble Lord has said today alters my view that this issue boils down to a basic difference in approach. We in Goverment wish to free as many services as possible from licensing, others, especially noble Lords opposite, wish to keep as many as possible within licensing. The noble Lord, Lord Underhill, described in Committee a hypothetical service from Manchester to Stoke on Trent which, by making a four-and-a-half mile dogleg, could thereby take passengers over 30 miles from the starting point although not from its destination. He is right in saying that I, too, could have given many other illustrations and I am sure that many others could have done so without difficulty.
The Bill as drafted would keep that service out of licensing. Lord Underbill's amendment then and today would bring it within licensing along, with all the other services that, for purely geographical reasons, might have to take a route of this kind. I am thinking of a road round a lake or a sea loch in Scotland. We are not willing to withdraw this relaxation from such genuine cases for the sake of catching, perhaps—and it is only "perhaps"—a handful of operators who may be going a mile or two out of their way. As I said in Committee, they would not have to do much of that sort of thing before their custom would fade away. It would be a very self-defeating matter, in my submission, and therefore I fear that we cannot accept the amendment.
§ Lord TEVIOT
My Lords, I find my noble friend's reply rather disappointing. 1605 I think that we are absolutely no further in solving this important problem. I think also that one point must be mentioned. My noble friend said that the Government wished to free from licensing as many services as possible and that the Opposition wished to keep them within licensing. I do not know whether the Opposition agree with that, but one does know that the operators and all those connected with the bus industry—and I do not want to repeat that on every amendment that we will deal with today; so that I will dispose of it at once—are very concerned about this Bill. On this point, it is not a question of keeping within licensing; it is a tidying-up operation trying to streamline matters to make some good sense. The noble Lord, Lord Underhill, mentioned Manchester and Stoke on Trent. I mentioned Leicester and Northampton. We go on talking about this till the cows come home but nobody seems to come up with answers. It seems that it is going to be very unsatisfactory. This is not one of the most important amendments in the Bill but it is an important one. Your Lordships will get all sorts of anomalies (if that is the right word) and, in any case, a lot of rather unsatisfactory results if this amendment is not accepted.
§ Lord LLOYD of KILGERRAN
My Lords, I raised this matter at Second Reading. Within my own experience, I know of operators in the West of England and also in the area of the Lake District who find this problem about longdistance operators coming into an area and doing local work in that area a very real one. The noble Lord, Lord Teviot, said that he was disappointed about the Minister's reply. I join with him in that, but I should like to add a word or two which I hope the Minister will not find offensive. It seemed to me that the brief that he had to read about the possible operation of these operators was somewhat naive in the circumstances where people find themselves in tourist areas, where people come from long distances and where the buses stay there for a week or so. I am sorry that the Minister is not supporting this improvement, as I see it, in the amendment put by the noble Lord, Lord Underhill. If Lord Underhill takes a particular step, I will support him.
§ Lord BELLWIN
My Lords, I am sorry I that the noble Lord, Lord Lloyd of Kilgerran, thinks I am naive about this. He may feel likewise about many other matters before we end this Session. I hope not, but it is possible. So far as I am concerned, I am convinced about this. I understand the concern expressed. The points made by my noble friend Lord Teviot are, as always, points to which one should pay attention because of his considerable experience and knowledge of this industry; but, at the same time, if one thinks carefully about this, in practice it is not going to be what the noble Lord thinks. The requirement is that the passenger must have travelled at least 30 miles during the course of the journey. What we are talking about is a possibility. Are we seriously saying that operators will deliberately set out to follow a tortuous route to reduce in some way the number of miles travelled? It does not make sense.
I try to understand the points put by noble Lords, I try to listen carefully and, if the points are valid, to accept them. In this matter in particular I feel strongly that the fears expressed are not valid. I do not think that this is going to happen because, if it did, then the company concerned would not stay in business for five minutes. Would the noble Lord, Lord Lloyd of Kilgerran, himself go for a second time on a service which takes him via Timbuktu to get to a destination just over 30 miles away? I do not think so. I am sorry that we cannot accept the amendment in this case. I hope that the noble Lord, Lord Underhill, will take the nuance made by my noble friend Lord Teviot when he said there is much before us in many areas about which we have differed and will continue to differ. This may not be the most important of them.
§ Lord UNDERHILL
My Lords, it is not the most important amendment before us; nevertheless, it is an important one. The Minister refers to operators tricking by going round a tortuous route. Those are the words the Minister used in Committee. If one looks at the example that I gave—and it is in the Official Report—or the example given by the noble Lord, Lord Teviot, it is not a tortuous route; it means going into another built-up area for a couple of extra miles and going 1607 beyond the 30 miles. While it may influence your Lordships, if you look at the example given, it cannot be described as a tortuous exercise.
It must be said that the industry is very concerned about this. They want to tidy it up and, for the reasons given by the noble Lord, Lord Lloyd of Kilgerran, they feel that it is an issue. While we shall not divide on this, we shall not withdraw the amendment because a principle is involved. I hope that the Minister will continue discussions with the industry on this matter. If we are going to look at everything as if those on this side of the House were viewing matters only in a restrictive way, we shall not succeed on any issue. This has nothing to do with the basic difference of views between us and the other side of the House. This is a tidying-up matter and putting clear issues which cause concern to the Confederation who represent the industry. We will not withdraw the amendment but we shall not divide the House.
§ On Question, amendment negatived.
Lord UNDERHILL had given notice of his intention to move Amendment No. 2:
After Clause 3, insert the following new clause:
§ ("Signs on vehicles.
§ —(1) Notwithstanding anything in any enactment:
- (a) no passenger vehicle of less then eight seats which carries passengers for hire or reward, or for payment of any kind, other than a hackney carriage licensed to ply for hire under the several enactments in force within the United Kingdom for licensing such hackney carriages, shall have affixed to the roof, thereof, a sign of any kind or description;
- (b) nothing in paragraph (a) of this subsection shall prevent a District Council from requiring, or allowing, an identification, sign or mark, on a Private Hire Vehicle licensed under Part II of the Local Government (Miscellaneous Provisions) Act 1976:
- Provided always that any such sign, or mark, so required or allowed, shall have no means of illumination and shall be fitted, or affixed, on the side doors, and or, rear of the vehicle and below the window line of the said vehicle;
§ (2) If any person contravenes the provisions of this section he shall be guilty of an offence and liable to a fine not exceeding two hundred pounds and to a daily fine of twenty pounds.").
The noble Lord said
My Lords, I am in some difficulty here because this amendment proposes a new clause with the rubric, "Signs on vehicles". Noble Lords will have noted that there is a new clause put down in the name of the noble Lord, Lord Bellwin, dealing with the same matter. It would be wrong of me at this stage to comment upon the new clause proposed on behalf of the Government. It has not yet been moved and I should be out of order if I were to do so. On the other hand, I do not want to waste the time of the House in explaining why we have put down the amendment standing in my name and the names of my noble friends. I would say that when this matter was first discussed in another place and during the Committee stage, both the Secretary of State and the noble Lord the Minister expressed some sympathy for the general matter. We now have their new clause on the Marshalled List. I think the best thing that I can do is not to move this particular amendment and to leave my remarks until we come to consider the Government's own amendment at a later stage.
§ [Amendment No. 2 not moved].
§ Clause 7 [Attachment to road service licences of conditions as to fares]:
§ 4 p.m.
Lord UNDERHILL moved Amendments Nos. 3 and 4:
Page 9, line 9, leave out ("not")
Page 9,line 11, leave out ("unless") and insert—
("if (but in no other circumstances) they are").
§ The noble Lord said: My Lords, it will be recalled that an amendment to this subsection was tabled at the Committee stage. The clause as in the Bill provides the traffic commissioners shall not attach to a road service licence any conditions relating to fares unless they are satisfied that to do so is to protect the public from unreasonable action by the licence-holder or to regulate competition between stage services. The amendment seeks to put 1609 this important matter more positively. It would provide that the commissioners shall exercise these powers if they are satisfied on one or other of the two points.
§ The guidance would be placed in the affirmative rather than the negative. This, in my view, would give an indication to the commissioners of the balance to be given to this question of fares. The balance would be in the same positive way that the Government themselves are doing in shifting the balance for the granting of road service licences.
It will be recalled that there was some difference with the Minister on this point when the matter was debated in Committee. The noble Viscount, Lord Simon, came to our assistance and suggested the insertion of the words:
and in no other circumstances ".
§ The Minister generously offered, despite his own personal reservations, to have a look at that suggestion. On that basis, the amendment was withdrawn in the Committee stage. The noble Lord the Minister has kindly written to me on this point, but despite what he said the amendment is now re-submitted. I stress that it does not alter the restricted nature of the commissioners' powers, it merely expresses those powers with a different balance, and the question of fares is one which we feel should have that different balance. Therefore the amendment is now submitted with the inclusion of the words suggested by the noble Viscount, Lord Simon. I beg to move.
§ Lord MOWBRAY and STOURTON
My Lords, we have considered, as my noble friend Lord Bellwin promised in Committee, the helpful suggestions put by the noble Lords, Lord Mischcon and Lord Simon, that this clause should be amended along the lines that have now been proposed. My noble friend Lord Bellwin said in his recent letter to Lord Underhill:Your argument here was that Clause 7(3) should be cast as a duty not as a restriction on the general discretion given by Clause 7(1) and 7(2)(a). It would be possible to completely redraft the subsection—and that rather than the amendment of one or two words would be required—but not without losing some of the force of what we wish to impart. The clause is deliberately cast in its present form to emphasise the restricted nature of the commissioners' power 1610 over fares. We regard that as of some importance.I should like to amplify that. In fact a complete redraft of the subsection would not even suffice. What would really be required is a redraft of the first three subsections to point them as it were in the new direction.
I know that noble Lords are worried that as drafted the clause might suggest that the commissioners may be satisfied that it is essential in the public interest to act and yet not do so because their power to do so is discretionary not mandatory. I think I can reassure noble Lords that where commissioners are satisfied that it is essential to act in the public interest, they will act. Indeed, we hear mostly of worries that they may be too quick to act rather than too slow. I do not think we differ on principle here, only on semantics. I hope in that case noble Lords will not press these two amendments.
§ Lord LLOYD of KILGERRAN
My Lords, your Lordships will not find it strange that I should be supporting these amendments because the suggestions came from my noble friend Lord Simon. He has asked me to apologise that he is unable to be in his place today or tomorrow, if the discussions continue tomorrow. I too must apologise because I shall be unable to be present then, because I have been committed for several months to an engagement at lunch-time in Cardiff. Unfortunately, I cannot cut it at this late stage.
Another matter which surprised me is that in the course of discussions that noble friends on these Benches have had nobody intimated to me that a letter had been written by the Minister to the noble Lord, Lord Underhill. I do not know that a copy even went to my noble friend Lord Simon.
§ Lord LLOYD of KILGERRAN
I am much obliged, my Lords. That is another inefficiency of our organisation on these Benches. I did not have that copy. I do not want to complain continually, but I have been surprised that copies of 1611 the correspondence between the noble Lords, Lord Underhill, Lord Mishcon and the Minister concerning matters where I had intervened in the debate were not sent to me.
§ Lord MOWBRAY and STOURTON
My Lords, I can only apologise to the noble Lord. When writing to a noble Lord if another noble Lord is involved we try to send him a copy. The noble Viscount was sent the letter to which the noble Lord, Lord Lloyd, referred. I apologise if we have been remiss and I will look into that.
§ Lord LLOYD of KILGERRAN
My Lords, I am obliged for the apology but I have not received a single letter in regard to any matter on the Transport Bill. That seems to be an oversight on the part of the Government and I am grateful for the apology.
§ Lord UNDERHILL
My Lords, what we are concerned about is that we do not want to give the impression that we do not want the commissioners to act in this matter. I am certain that, having heard the noble Lord, Lord Mowbray and Stourton, amplify the letter that was sent to us, it will be on the official record, it will be noted and the commissioners will undoubtedly take note. We do not want it to be in the negative. It is the Government's view that they should act where it is necessary. On that basis, I withdraw the amendments.
§ Amendments, by leave, withdrawn.
§ Clause 9 [Grant of road service licences for certain excursions or tours]:
Lord UNDERHILL moved Amendments Nos. 5 and 6:
Page 10, line 36, leave out (" either ")
Page 10, line 45, leave out from ("tramcars") to end of line 2 on page 11.
§ The noble Lord said: My Lords, this matter was considered in Committee. After which I thought was a reasonable amount of discussion, the amendment was withdrawn in consequence of an assurance kindly given by the noble Lord, Lord Mowbray, that the matter would be looked at, although he made it absolutely clear that he could give no promise of any concession.1612
§ In fairness to other noble Lords, I must set out the issue. I will do so as briefly as possible. The traffic commissioners have a responsibility within the provisions of the Bill to grant licences under the proposed simplified procedure, where they are satisfied that the proposed service would be an excursion or tour and does not compete directly with an existing service or would operate only to enable passengers to attend special events.
During the debate at the Committee stage, I indicated that it had been put to me that there could be legal argument as to what was a special event. I pointed out also that in paragraph 1 of Schedule 12 to the 1968 Road Traffic Act the words there used were:
It was questioned whether the change of the words to:
§ had any significance.
§ Other noble Lords considered that this matter should be clarified, and my noble friend Lord Mishcon advanced the view that what should be avoided was the problem of any litigation arising from this issue. The noble Lord, Lord Mowbray and Stourton, has kindly sent a detailed letter to me, following consultations which he had with his ministerial colleagues, as he promised he would do. But, having considered this letter, it is still thought desirable to place this amendment before your Lordships. Apart from the points advanced by the Minister, the noble Lord stressed that the administration of the provisions relating to special events is best left to the commissioners' discretion. I also expressed that view at the Committee stage, and I do so now.
§ I think a number of matters can be left to the commissioners' discretion, though in passing I must say I note that when the Government want to give the commissioners clear instructions they are put into the Bill, and when we ask that there should be clear instructions the Government find all sorts of reasons why they should not be put in. In this particular matter it is because the commissioners, I feel, can be relied upon to deal with this question in a sensible way that I believe the amendments I have now moved should be supported. This will take out reference to "special events" and leave the 1613 commissioners free to determine whether a service is an excursion or tour on the criteria set out in the Bill. That would be a simple thing and it would avoid any possibility of the legal confusion which, despite the letter which the Minister kindly sent to us, we on this side of the House still believe could arise. By taking out these words we do not impair the Bill at all, but we leave the commissioners free to use their discretion in the light of criteria set out in the Bill.
My Lords, if I recall correctly what was said at the Committee stage—and I think this is important—this particular Bill changes the word "occasion" and sets a new test of "event". I must confess that I rather welcome this because, as the noble Lord, Lord Mishcon, said at the Committee stage, there have been a considerable number of cases in the High Court in order to determine what is a "special occasion". As I understand it, the reason why this is a very difficult test indeed is that "occasion" is very much a subjective test as opposed to an "event", which I take to be a more objective test. For that reason I prefer the word "event". But in any case the person who is going to decide whether it is a "special occasion" or "event" is one of the traffic commissioners. I feel that this amendment is not necessary.
§ Lord MISHCON
My Lords, as the noble Lord, Lord Morris, was kind enough to recall to your Lordships' memory the discussion that took place on this matter earlier, may I very briefly indicate the concern I expressed then and still feel? I remember that the noble Lord, Lord Morris, challenged me on that occasion to distinguish between "occasion" and "event"; and I remember that we smiled across the Benches as I remarked that I personally could not tell whether, if it ever occurred that the Government gave way to any Opposition amendment, that would be either a "special occasion" or a "special event". The noble Lord, Lord Morris, says "both". I only tell him that if this occurs this afternoon, we shall be celebrating both in no uncertain fashion.
To become serious now about what is a very important point, in my respectful submission to your Lordships, this would 1614 not matter if we were dealing with a discretionary power in the traffic commissioners, because if they were given discretion and an application was made to them and in the use of that discretion in an honest fashion they came to a conclusion, it would be most unlikely that litigation would follow and, if it did follow, that it would be successful. However, this Bill as now worded provides that the traffic commissioners must grant a licence in the event we are talking about; namely, the "special event". That means that if you have not defined "special event" in the Bill anyone who goes out from the traffic commissioners with a negative response would not be going to the courts on the basis of the traffic commissioners having wrongly exercised a discretion; they will be going to the courts on an argument that what they regarded as a "special event" the traffic commissioners have not regarded as a "special event", and the court has only to find that it was a special event and the traffic commissioners will obviously then be ordered to reverse their decision.
At this stage of the Bill, when we have an opportunity of dealing with clarity and seeing that language is employed which will not lead to unnecessary litigation and possibly to whimsical remarks by a judge, be it of first instance or in the Court of Appeal, as to Parliament having done a rather clumsy job, it seems that one ought to pause and reflect that this is mandatory and that there is no definition of "special event". As the noble Lord, Lord Morris, has said, there is case law which deals with the words "special occasions"—and heaven only knows what case law might now develop on the meaning of "special event" if we do not even trouble to define it. That was the point I made at Committee stage and the noble Lord, Lord Mowbray, was kind enough to write to me. I am so sorry he did not write to the noble Lord, Lord Lloyd, but he did write to me, and I know he will forgive me if I say that I read his letter with the greatest of care, in exactly the same way as the noble Lord, Lord Bellwin, has said he read my letters but that he was not moved by them. May I say that in the same way I was not moved by the noble Lord, Lord Mowbray.
§ Lord MOWBRAY and STOURTON
My Lords, I thank the noble Lord who thanked me for my letters. I do not think I can be blamed for not writing to the noble Lord, Lord Lloyd, on this as he did not take part in the debate. I wrote, as has been said very generously, to the noble Lords, Lord Mishcon and Lord Underhill, and to my noble friends Lord Morris and Lord Teviot.
A noble Lord: Favouritism!
§ Lord LLOYD of KILGERRAN
My Lords, in view of what the noble Lord has said, may I change my attitude and thank the noble Lord for not sending me a copy of his letter? I really feel that if the Government are so obscure in their attitude towards these Benches; I was really dealing with many matters on that occasion and I ought to be grateful to him for not increasing my fan mail so much!
§ Lord MOWBRAY and STOURTON
My Lords, I am grateful to the noble Lord. As has been said, I promised to take these matters away at Committee stage and look at them. I did so and I wrote to noble Lords. It might help those of your Lordships who were not recipients of those letters if I now go into a little of the substance of what I wrote:After consulting with my ministerial colleagues I remain convinced that the clause should not be amended. The "special event" criterion does allow some excursions or tours outside those covered by subsection (1)(a) to get licences under the clause. For instance, a day trip from Brighton to the Derby could be licensed under this paragraph even if it could not under (1)(a) because there are regular services from Brighton to Epsom.The administration of the provision relating to special events, like that of many other provisions in the Bill (and in the present legislation) is left to the commissioners' discretion. I believe that the bus industry has come to accept their judgment and the impartial way in which they exercise it, and I am sure that an attempt to define "special event" would undesirably fetter that discretion and might force them to act in a way that would not actually be the most sensible one.".My noble friend Lord Morris, who has been so helpful as regards this Bill, also asked why the words "special event" had been used in place of "special occa- 1616 sion", which appears in the current legislation. In Part I of Schedule 12 to the 1960 Act the phrase "special occasion" was used as part of the phrase "a race meeting, public or other like special occasion". As I indicated (Hansard, col. 240) in Committee, that phrase has led to litigation. It has been held by the courts that a "special occasion" in this context must be a particular individual occasion akin to those specified. In Clause 9(1)(b) the phrase "special events" is not used in such a way as to admit of construction ejusdem generis. It stands alone. It is thought that "event" in this context is more apt than "occasion" and is likely to be free from influence by any restrictive constructions of "occasion" in Part I of Schedule 12 to the 1960 Act.
My right honourable friends, as well as my noble friend Lord Bellwin and myself, have given much thought to this matter and I must tell your Lordships that I am afraid that we are unable to give any undertaking to take this away for further consideration. We are convinced that our wording is the best and I beg your Lordships to accept our advice on this matter.
§ Lord UNDERHILL
My Lords, I am always anxious to accept good advice that is given to me, but most of the reply of the noble Lord the Minister has dealt with the legal argument as to what is a "special event" and a "special occasion". The purpose of our amendment is to avoid that legal argument by taking out those words altogether. The noble Lord said that there has been litigation. That proves the very point that we have been trying to make, that there is a possibility of litigation in interpreting "special event" and "special occasion".
Our amendment is such common sense. It proposes to take this out and then the Government and the rest of the House can all agree together to leave these matters for the commissioners, in their wisdom, to decide. That seems to me to be such common sense that it is very difficult to see the point that has been put forward in arguing the different legal definitions of "special event" and "special occasion". But the noble Lord the Minister has made it clear that the Government will not move. This is not an issue on which we want to divide the House, but we cannot 1617 withdraw the amendments because we think that they are such common sense.
§ On Question, amendments negatived.
§ Clause 11 [Duration of road service licences]:
§ 4.22 p.m.
§ Lord UNDERHILL moved Amendment No. 7:
§ Page 11, line 37, leave out from beginning to first ("on") in line 7 on page 12 and insert—
§ ("(1) Subject to section 10, a road service licence shall continue in force until surrendered by the holder unless at the time of the granting of the licence the traffic commissioners for special reasons determine that it shall continue in force only up to and including a date specified in the licence, in which case it shall continue in force only up to and including that date.
§ (2) If, where an expiry date has been specified,").
The noble Lord said
My Lords, this amendment is the same as one which was moved by the noble Lord, Lord Teviot, in Committee. It might, therefore, be questioned why we move the amendment from this side of the House. It will be recalled that another amendment, which stood in the names of my noble friends and myself and which would have had the same effect, dealt with precisely the same matter.
The purpose of the amendment is to remove an element of bureaucracy from the licensing procedure, with which I am certain the whole House will be in agreement. I emphasise that the amendment in no way introduces any new principle that could change any criteria for the granting of a licence. It would, in effect, take out the whole of subsections (1) and (2) of Clause 11 and replace them with the words set out in the Marshalled List. It proposes that when the traffic commissioners have granted a road service licence, it shall remain in force unless it is surrendered by the licence holder, or unless at the time of granting the licence the commissioners consider it desirable to insert a condition that it shall continue only up to a specified date.
This would remove a considerable amount of bureaucracy and would save administrative costs. I emphasise that in no way will it take away any powers from the traffic commissioners as, apart from the two points to which I have referred, 1618 they will continue to have their powers of revocation or suspension under Clause 10.
Your Lordships may recall that in Committee there was a very useful discussion on this matter, to which the noble Lord, Lord Mowbray and Stourton, listened with obvious attention. He said that he reflected that the arguments were finely balanced and kindly added that he wished to take the matter back and look at it again. On that basis, the noble Lord, Lord Teviot, withdraw his amendment and a similar amendment standing in the names of my noble friends and myself was not moved. I understand that the Minister has conveyed his views to the noble Lord, Lord Teviot, and no doubt the noble Lord will wish to comment on those views. But in view of the points that I have made, which we still think are valid, I beg to move this amendment.
§ Lord TEVIOT
My Lords, as the noble Lord, Lord Underhill, stated, this amendment is very similar to the one which I moved in Committee. I note that the provisions have been slightly streamlined compared with my own proposals, but the amendment is none the worse for that. I must thank my noble friend Lord Mowbray, who wrote me a charming letter, but I cannot say that, in some ways, I am any more convinced, and I still think that this amendment is very necessary.
I do not wish to repeat the arguments which were put forward in Committee, nor those which have been very well expressed by the noble Lord, Lord Underhill. But your Lordships will remember the encouragement that was given earlier by my noble friend Lord Bellwin, and will share my disappointment at the fact that the Government have not seen fit to come forward with their own proposals for further reducing the bureaucracy and the unnecessary cost in relation to the life-span of road service licences.
The cost falls upon bus and coach operators, because the various licensing services, taken together, are self-financing and are paid for by the fees of those operators. However, it must be remembered that the cost to the operator is not only the fee, because there are also his own administrative costs in preparing and processing licence applications. Unnecessary waste in this respect can only be passed to the travelling public. There- 1619 fore, I hope that my noble friend will look at this amendment with some kindness.
§ Lord MOWBRAY and STOURTON
My Lords, you will remember that when we discussed this matter in Committee we agreed to look again very carefully at the arguments. The noble Lord, Lord Mishcon, asked then what estimate had been made of the savings which would accrue from a change from five years to timeless licences. I am afraid that I cannot give him a precise figure, but I am advised that the amount would be small and would not, of course, appear at all until 1985. There would continue to be variations, and if we charged fees for variations, as my noble friend Lord Morris suggested in Committee, there would be costs involved in the very administration of fee collection.
We have looked at this matter very carefully. The points raised during our debate in Committee, and again today, show some of the problems and disadvantages of attempting this change. These disadvantages seem to us to outweigh the small savings which this change would eventually bring. I have already explained our thinking on this in a letter to my noble friend Lord Teviot, who moved a similar amendment in Committee. I hope that he will bear with me if I just outline to the House some of the points which I made to him in my letter.
A timeless licence would have to be revocable or surrenderable if there were not in future to be a lot of dead wood on the trees. And even with the change in the burden of proof, a licence-holder is bound to have something of an advantage in making an objection to another application. But the powers in Clause 19 are taken from the 1960 Act and are intended to allow the licence-holder to enjoy his monopoly from the stated period. Thus they are limited to the grounds of contravention of conditions. It would not be possible to revoke because the operator was providing a poor service which a competitor might do better.
Some revision of Clause 10 would be required to fit in with timeless licences. Although it has been argued that the traffic commissioners could always impose a time limit on a. licence if they thought 1620 it appropriate, we feel that, in the context of the clause, the phrase "special reasons" is restrictive and would not do if there were to be a discretion to the commissioners to impose a time limit in a generally timeless system. Moreover, the more commissioners used their discretion, the less would be the advantages of the timeless system itself.
My Lords, I quite agree that, as the noble Lord has said, the arguments are finely balanced. I think on balance, however—and our department is fairly happy and united on this matter—our arguments hold water more than the noble Lord's. I agree it is not a dogmatic matter; it is finely balanced, but, having looked at it very closely, we still slightly prefer our own view.
§ Lord LLOYD of KILGERRAN
My Lords, I entirely support the views of the Government on this matter because there seems to be something rather odd if one enters into a timeless licence. This entering into commitments for perpetuity seems to me basically wrong. I would not have intervened at this stage had I not wanted to remind the House that that was the view taken by the noble Lord, Lord Lucas, at the Committee stage, and as he is not in his place at the moment I thought I would raise the point. It does not seem to me to be a matter of being well balanced. It seems to me a serious defect in this amendment that perpetuity in regard to the licence is introduced.
§ Lord UNDERHILL
My Lords, the point just made by the noble Lord, Lord Lloyd of Kilgerran, is not what we are seeking in this amendment. We are not seeking perpetuity. What we are suggesting is an administrative item, when a licence is granted, and if the commissioners in their wisdom have not thought to specify a date at which it would end, it means they are pretty satisfied with the application, and therefore it will continue until it is either revoked or suspended by the commissioners, which they would have power to do.
Obviously, if there was going to be perpetuity and continuation could not be stopped at all we would not be putting forward this amendment. I am very surprised to learn—and I must accept the department's figures which have been 1621 given to the noble Lord the Minister—that the saving would be very small, and I hope your Lordships will keep this in mind when we may be discussing other matters such as conductors' licences, where I think we are told the saving could be considerable. I am not having the bureaucracy of issuing licences, but I must accept what has been said, that the saving would not be much.
The noble Lord says the arguments are finely balanced, and this is not an issue on which we are prepared to go to the extent of a Division. Therefore, with the leave of the House, I beg leave to withdraw the amendment. But I do hope that the Ministers, in view of its finely balanced nature, will continue to discuss the matter with the traffic commissioners with a view, possibly, to simplifying the matter if the commissioners and the Government consider that some change could be made. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 [Designation of trial areas]:
Lord UNDERHILL moved Amendment No. 8:
Page 12, line 41, leave out (" but shall not do so except on an application made to him by the local authority concerned ").
§ The noble Lord said: With the leave of the House, my Lords, I should like to speak collectively to Amendments 8, 9 and 10, because these are all interrelated. The three amendments deal with the question of the revocation of the designation orders for trial areas. Similar amendments were withdrawn at the Committee stage in view of the further consideration which the Minister kindly promised to give to the question of the period following which an order can be revoked. That matter will be considered on a later amendment; therefore I will not deal with it at this stage.
§ No matter what may be decided as the minimum period following which a designation order may be revoked, I would emphasise that in my view it still remains desirable that the Minister should have power to act or revoke or vary an order without this being conditional upon an application being made by the local authority concerned, because that 1622 is what the Bill now proposes. The purpose of the amendment is to enable the Minister to act if he should consider it desirable so to do. There could be circumstances in which a local authority might not wish to act but the circumstances in a particular trial area might be such that the Minister might consider it necessary to take action. In our view it would be wrong to tie the Minister's hands and prevent him from doing that.
§ On the other hand, of course, the local authority concerned must have the right to make an application to the Minister either for a revocation of the order or for a variation of the order, and I would emphasise that that right is retained by the other two amendments, Amendments Nos. 9 and 10; therefore Amendment No. 8 would give the Minister power to act on his own and Amendments Nos. 9 and 10 would still retain the right of the local authority concerned to make application to the Minister, and then he would take appropriate action. I beg to move.
§ Lord BELLWIN
My Lords, as the noble Lord, Lord Underhill, has said, these amendments would at least by implication, take the control away from the local authority in what the Government consider to be a crucial respect as far as trial areas are concerned. If a trial area can be revoked by the Minister regardless of the wishes of the local authority concerned, this would undermine the authority's position. This whole subject was very carefully rethought by my ministerial colleagues during the passage of the Bill in another place and the conclusion was that the initiative on the revoking of the trial area, as indeed in designating it in the first place, should rest with the county, regional or islands council. One could speak at some length on this, but one would only come back to what I have just said, which is a basic point, I think; therefore I advise the House that we cannot accept this amendment.
§ Lord UNDERHILL
My Lords, it is clear from the fact that no other noble Lords wish to take part in the debate that we are not likely to get very far if we press this matter. May I just say that we are not proposing to take matters out of the local authorities' hands, except where the Minister is satisfied that things 1623 are breaking down in a trial area and therefore something ought to be done. It does seem so foolish to suggest that we must not interfere even if things are going wrong.
Even though the noble Lord cannot accept our amendment, I hope he will keep this point in mind, because maybe in some other way he can ensure that the Ministry keeps a close watch on things and, if necessary, could enter into discussions with the local authority to see that it does make an application. Unless that is done we might find the experiment going wrong—and we shall be dealing with this when we come to the period of revocation—yet because we have put this into the Act nothing can be done, because nobody must take away the right of the authority to make the application and the Minister cannot move.
I think the amendment is so reasonable I just wonder whether the Government are digging their heels in and not moving at all on these things. As obviously they are not moving I have no alternative but to beg leave to withdraw, but I hope the Minister will keep in mind the point I have made about possible future consultation.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 9 and 10 not moved.]
§ 4.39 p.m.
Lord UNDERHILL moved Amendment No. 11:
Page 13, leave out lines 8 to 10 and insert ("of two").
§ The noble Lord said: At the Committee stage, my Lords, concern was expressed that there should be a safety valve in connection with the designation order for a trial area and for it to be revoked or varied before the period specified, which, on our reading the Bill, could be as long as five years; and it was stressed at the Committee stage that surely this cannot possibly be right. If the experiment in a trial area was proved to be a failure, there must be power to terminate the order or vary it before the end of the period as specified. If that power is not given, there could be a situation of complete chaos. Not only would that be unfair to operators 1624 who were in the area before a designation order was made but, even more important, it would be wrong to make the public in the area suffer with dislocation of transport arrangements.
§ In the light of the debate in which quite a number of noble Lords participated, the Minister said that the Government would take this away and consider very seriously making the minimum period two years and possibly abandoning the five-year period. The noble Lord added that there could be merit in that suggestion and that it could be a halfway house. In the light of that statement, the amendment which I moved on that occasion was withdrawn.
The Minister has kindly written to say that the matter has been reviewed but that the Government are reluctant to give up the flexibility which, it is claimed, the present provision allows. He adds:
Although the two-year period may be suitable for one authority, because of special circumstances another may prefer a longer period".
§ I regret that the Government have not tabled their own amendment because there was obviously great concern about this issue at the Committee stage. The amendment which I am now moving provides this flexibility. It meets the suggested compromise, that a designation order may not be revoked before the end of a specified period of two years. That is what the amendment says. It makes no reference to a maximum period. However, I should tell your Lordships that this point is covered by Amendment No. 12. That amendment, however, covers a completely different principle, so it would be wrong for me to deal with it at this stage.
§ I hope that the Minister will consider that the amendment is helpful and that, despite the letter he sent, he will find it possible to accept it. All we are saying is that no order shall be revoked before the end of two years. That seemed to be the way that we all wanted to go. We have not put in a maximum; that will be covered by the next amendment which deals with the period of an order and not its revocation. Therefore I beg to move Amendment No. 11.
§ Lord TEVIOT
My Lords, the noble Lord, Lord Underhill, need not worry about nobody supporting him on this amendment. I rise with a vengeance 1625 because I believe that it is a very important amendment indeed. I hope that my noble friend Lord Bellwin will explain why he did not see fit to put forward an amendment relating to the minimum period for a trial area, for he spoke at some length during the Committee stage and, I thought, showed some sympathy. This matter would not be so important if there were some other safety valve to operate in the public interest. Unfortunately that is not the case. Once a designation order has been made and it is proved that the trial area is patently damaging the public interest, there is nothing to be done about it until the minimum period in the designation order has expired. As the Bill is drafted and as has been said, that could be a period of five years. It seemed to me that my noble friend Lord Bellwin saw merit in containing this to a minimum period of two years; so I am all ears and am waiting to listen to what he has got to say.
§ 4.43 p.m.
§ Lord BELLWIN
My Lords, I say quite clearly that I had considerable sympathy, as my noble friend said, when this matter was raised last time. However, it is one of so many points that arises from the Bill. It is a technical Bill which moves into areas about which many Members do not have great experience. I have discovered that one of the virtues of having the various stages is that one can take away and discuss, both with ministerial colleagues and with experts and officials, matters which may not always be clear at the time. That is what I undertook to do and that is what I have done. I assure my noble friend and, indeed, the noble Lord, Lord Underhill, that we have given particularly careful consideration to the purpose which these amendments set out to fulfil—as I promised we would do. But having done so, we have concluded that on balance it would be undesirable.
With regard to these trial areas, we are most concerned to allow the maximum flexibility. In this type of situation, local authorities should be better able to judge the circumstances of their areas than central Government. For that reason we should like to leave it to local authorities to decide the minimum period for which a trial period should run. They are entirely free to ask for a two-year minimum period, which would have the 1626 same effect as this amendment, if they so wish. On the other hand, it may be that a local authority will feel that its own particular circumstances demand a firm commitment for a longer period. We want them to be free to decide this for themselves.
It is a matter of judgment. One is trying not only to give local authorities freedom to decide, in view of their own local situations; one is also trying to ensure that the period given would make it worth while for operators to make an investment. Many may well feel that two years is not a sufficient period of time to invest in new buses, or whatever. There are undertones in what is now proposed, in that this could have an adverse effect upon the whole concept of trial areas. Therefore one has to offset that balance by the points very fairly made by the noble Lord, Lord Underhill.
A point which troubled me last time was this: what happens if something goes wrong and you are then in a situation where you want to do something but you cannot? In practical terms, though, if something did not come up to expectations, how long would it last? What would be the extent of the kind of disastrous situation which we were contemplating previously? Having thought that through, carefully, I do not think that it would by any means lead to the kind of situation that one might be said to have to expect.
I concede that our concern about giving encouragement to authorities to have a shot at these trial areas is a finely balanced matter. We shall shortly be discussing one or two amendments which also relate to trial areas. They are what they are said to be; they are trial areas. This is an attempt to try to do something which may give an answer. If it does, then, as I said before, the prize will be very great. If it does not, then quite rightly we shall be concerned as to where we go from there. But I do not think that we need to be so concerned as noble Lords fear. In order to give the scheme a chance, I think that on balance it is right that we should go ahead as planned. That is the reason why I have tried at some length to say why we cannot support the amendment.
§ Lord MISHCON
My Lords, if the Minister's logic is followed in your Lord- 1627 ships' House, Alice in Wonderland will have many companions. I say that for this reason. Many of your Lordships may think that it is very praiseworthy that experiments are being made. I well remember that at Second Reading the noble Lord the Minister said that a fresh look had to be taken at transport licensing because this had not been done for a very long time. We accept that. Also, we accept the bold thinking and experimentation: the fact that there will be trial areas of a nature that we have never known before. With respect, however, the noble Lord the Minister has overlooked the very argument about local authorities that he has endeavoured to put forward. He has overlooked the very wording of this section.
The situation cannot be altered. A trial area cannot be finished as a trial area. The order cannot be revoked unless the local authority applies to the Minister. During the course of his argument the Minister said that local authorities know what they want in their own areas; they obviously must be trusted; and in these circumstances we must have regard to the decision of the local authority, I remind the Minister once again that the order cannot be revoked unless the local authority applies to the Minister. Then under this clause the Minister does not have to abide by the application and assent to the application of the local authority. He need not revoke. But what this clause is now doing is to say, in regard to an experiment, in regard to mistakes which may have been made by the local authority which they want to admit and rectify, in regard to a situation which in the experiment may turn out to be dangerous, although the local authority has applied and although the Minister, on investigation, finds that it is a very proper application to revoke, "In our wisdom and following the line of the Minister we have decided that the local authority will not be able to do it and nor will the Minister".
The noble Lord, Lord Bellwin, went very far at the Committee stage and most of us appreciated it; he went far to meet the reasoned arguments that were put to him and I detected—I hope I was not too optimistic but it seems as though I was—a glimmer of hope, indeed almost a shining 1628 light when, at the end of his speech, he said, "I suppose if the minimum period were two years that would make the noble Lord happier"—and he was kind enough to address himself to me. I responded with a smile and the words, "Much happier", and I went away from the Committee stage feeling that some illumination was going to be cast on the clause when we reached it at Report stage. Although we have put down the very period that was then suggested by the Minister not as being something which he accepted should be an amendment to this clause but as something that he was seriously going to consider, even now the Minister says "No".
I end by saying this: we should be extremely foolhardy, in regard to an experiment which ought to be made but which is an experiment, to bind the hands of the local authority, who will know what is happening in their area, and the Minister, so that even though they both wished to revoke an order they could not do so. I hope very much that this amendment will be supported.
§ Lord NUGENT of GUILDFORD
My Lords, I should like to add a word to this brief debate and I must apologise for having to go to a short meeting of deputy Speakers when the amendment was starting. It is an interesting point. Evidently the House is of the general view that these trial areas are a valuable experiment. They could teach us much and could prove valuable and therefore we are all in favour of them. What we have to think about are the optimum conditions to give them the best chance of success. The noble Lord, Lord Mishcon, with his usual persuasiveness, has begun to alarm us about the possibility of things going wrong and local authorities wanting to bring the trial scheme to an end prematurely because things have not gone in the way they expected them to go and in the light of that two years would seem to him to be the maximum period that they ought to have. The other side of the coin is—
§ Lord UNDERHILL
My Lords, if I may intervene, the noble Lord referred to a maximum period; we are saying that no order shall be revoked before a minimum period of two years.
§ Lord NUGENT of GUILDFORD
Yes, my Lords, but the order which the Minister can make will be anything between two and five years and what I am interested in is that the Minister, when he makes his order for an experimental area, should usually, I would hope, give a period longer than two years. The problem as I see it is that, if we are to succeed with this idea—and nobody can tell whether it will succeed, although there are some areas in which it looks hopeful—operators must come in and give a service and they must have time to establish themselves and to make their business profitable. Therefore I am most anxious that the period of the trial shall not be too short. I would hope that the flexibility will be left—two to five years—and I would hope that when the local authority considers an application they would suggest that the trial should be for three or four years, or whatever it might be. I would myself regard two years as being too short a time to show whether or not such a scheme could succeed.
It is that aspect of it that I see as a danger, as the noble Lord, Lord Mishcon, sees a danger the other way. So I would wish to see the flexibility left but I would add the hope that both local authorities and Ministers, when they are considering a proposal, would tend towards the upper end rather than the lower.
§ Lord LLOYD of KILGERRAN
My Lords, I very much sympathise with what the noble Lord, Lord Nugent of Guildford, has just said. With his great experience in local authority matters his word must carry a great deal of weight. But while we all support these trial areas as an experiment what I have not yet gathered in the course of the debate is what kind of investment is involved in this trial area experiment. If in some areas the amount of investment is very small it is quite likely, as the noble Lord, Lord Bellwin, said at Committee stage, that the experiment may fall on its face or be a disaster. Therefore, in considering the minimum period for this designation area, what amount of investment is likely to be involved? I understand that it is difficult to give a general answer to that and no doubt the Minister has had discussions and has some informal views as to the quantity of the investment required.
§ Lord BELLWIN
My Lords, if, by leave of the House, I may speak again on this it is difficult to say, as the noble Lord, Lord Lloyd of Kilgerran, has said, what the investment would be. It would depend upon the county, its area and size. I am grateful to my noble friend Lord Nugent of Guildford for his interjection because what he said is valid. It comes back to the point I was making earlier—namely, how far do you want to make a judgment on something which is a balanced thing. If we make it so short that an operator says "Well, for two years I cannot take the risk of buying a bus or buses", the scheme will never get off the ground at all.
As the noble Lord, Lord Mischon, said, I was very concerned about this and I think I put it quite openly, but what convinced me in the end was that, when we started to talk about disasters, my noble friend said "Come on, what are we really talking about? Here would be a situation where an operator had come in, he had made an investment and at the worst it had not come off, What then would happen?" The likelihood is that you would then have something which was not so good as it might otherwise have been. That is when the authority would have to decide what move to make. But in practice that will not mean that an area will be left without services. It just does not work that way. If there is an opportunity, then someone will take care of that opportunity. Although I am sympathetic to the basic point made, there is a balance here, and I think it should be the other way.
§ Lord MISHCON
My Lords, with the leave of the House, before he sits down, will the Minister at least clarify my mind on this: in what circumstances does he think that a local authority in this country, plus a Minister, would make such a mistake as to revoke an order, in view of the circumstances that he himself has outlined to the House?
§ Lord BELLWIN
My Lords, if I may beg leave to come in for a third time; I am not quite sure how far I am in order although I think probably I am, but I suspect the noble Lord is not in order. The last thing I am going to do is to enter into hypothetical situations or guesses. I am not without experience of local authority situations myself. I have 1631 thought this through very carefully. I stick to the points I have made. There is a balance. There is a very sound argument both ways, but I stick with the one I have put forward.
§ Lord UNDERHILL
My Lords, if the argument is finely balanced I hope we may be able to shift the balance in the right direction. Perhaps it is our fault that we have not explained it simply enough, but three noble Lords who have spoken have not understood the point of the amendment. The noble Lord, Lord Nugent, said that operators must be protected, that there must be a longer period than two years. We are not arguing about that. The amended provision would read:A designation order—(a) shall not be revoked before the end of the period of two years ".It simply says it shall not be revoked before the end of two years. We are not saying it must last only two years. The question of the period of the order will be dealt with in the next amendment, and incidentally we are saying it should not exceed a maximum of five years. The argument that we are trying to limit it to two years is not there. I expect I explained it badly. Surely nobody is going to oppose the proposition that the order shall not be revoked before two years. We are saying no matter what goes on it has got to last two years. The local authority cannot ask the Minister to revoke it before the two years are up. I would have thought that everybody would be in support of that.
The noble Lord, Lord Bellwin, says—and I am not going to decry the people he has consulted—that noble Lords have
§ very little experience about these matters, which I must accept as applying to myself. But they have discussed with experts, and we have discussed with experts—the industry. Nobody can be more expert than the industry representing 95 per cent. of the operators. They are concerned with this matter. I believe it is true that they would go along with the amendment I have proposed. I again emphasise that what the amendment is clearly saying is that there should be no steps towards revoking an order before a period of two years. The question of the operators is covered by the Government's own schedule. The Government schedule deals with the duration of a licence which shall be automatically granted for a period, almost indefinitely. We shall be dealing with this on a later amendment.
§ The argument is put forward that the local authority must be left to deal with this. We are not arguing about that now, for the simple reason that the House in its wisdom decided not to go ahead with our amendment which would have let the Minister act. Now we are really saying that the local authority shall not take any steps at all to revoke an order within two years. This is the simple argument, and on that basis, I hope the House will agree that we are putting forward a simple amendment and rather complicated arguments are being put against it. I hope the House will approve the amendment. If not, we shall have to divide.
§ 5.4 p.m.
§ On Question, Whether the said Amendment (No. 11) shall be agreed to?
§ Their Lordships divided: Contents, 72; Not-Contents, 99.1633
|Airedale, L.||David, B. [Teller.]||Jeger, B.|
|Allen of Abbeydale, L.||Davies of Leek, L.||Leatherland, L.|
|Ampthill, L.||Fisher of Rednal, B.||Lee of Newton, L.|
|Avebury, L.||Gaitskell, B.||Leonard, L.|
|Balogh, L.||Goronwy-Roberts, L.||Listowel, E.|
|Banks, L.||Gosford, E.||Llewelyn-Davies of Hastoe, B. [Teller.]|
|Beaumont of Whitley, L.||Gregson, L.|
|Blease, L.||Hale, L.||Lloyd of Kilgerran, L.|
|Blyton, L.||Hampton, L.||McCarthy, L.|
|Boston of Faversham, L.||Hanworth, V.||Meston, L.|
|Brockway, L.||Hatch of Lusby, L.||Mishcon, L.|
|Byers, L.||Hughes, L.||Oram, L.|
|Collison, L.||Irving of Dartford, L.||Peart, L.|
|Cooper of Stockton Heath, L.||Jacobson, L.||Phillips, B.|
|Crowther-Hunt, L.||Jacques, L.||Pitt of Hampstead, L.|
|Cudlipp, L.||Janner, L.||Ritchie-Calder, L.|
|Rochester, L.||Stedman, B.||Wallace of Coslany, L.|
|Ross of Marnock, L.||Stewart of Alvechurch, B.||Wedderburn of Charlton, L.|
|Sainsbury, L.||Stewart of Fulham, L.||Wells-Pestell, L.|
|Sefton of Garston, L.||Stone, L.||Whaddon, L.|
|Segal, L.||Strabolgi, L.||White, B.|
|Shackleton, L.||Tanlaw, L.||Wigoder, L.|
|Shinwell, L.||Teviot, L.||Willis, L.|
|Stamp, L.||Underhill, L.||Wootton of Abinger, B.|
|Alport, L.||Dundee, E.||Margadale, L.|
|Amory, V.||Ebbisham, L.||Marley, L.|
|Auckland, L.||Eccles, V.||Massereene and Ferrard, V.|
|Barnby, L.||Ellenborough, L.||Merrivale, L.|
|Bellwin, L.||Elliot of Harwood, B.||Middleton, L.|
|Belstead, L.||Emmet of Amberley, B.||Monson, L.|
|Berkeley, B.||Faithfull, B.||Morris, L.|
|Bessborough, E.||Ferrers, E.||Mowbray and Stourton, L.|
|Boothby, L.||Ferrier, L.||Murton of Lindisfarne, L.|
|Burton, L.||Fortescue, E.||Newall, L.|
|Caccia, L.||Fraser of Kilmorack, L.||Northchurch, B.|
|Caithness, E.||Gisborough, L.||Nugent of Guildford, L.|
|Cathcart, E.||Gray, L.||Orr-Ewing, L.|
|Chelwood, L.||Greenway, L.||Redmayne, L.|
|Clifford of Chudleigh, L.||Gridley, L.||Renton, L.|
|Clitheroe, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Rosslyn, E.|
|Clwyd, L.||St. Aldwyn, E.|
|Cockfield, L.||Halsbury, E.||Sandford, L.|
|Colville of Culross, V.||Harvington, L.||Sandys, L. [Teller.]|
|Cork and Orrery, E.||Henley, L.||Savile, L.|
|Cottesloe, L.||Hereford, V.||Sempill, Ly.|
|Craigavon, V.||Hives, L.||Spens, L.|
|Crathorne, L.||Hood, V.||Strathclyde, L.|
|Croft, L.||Hylton-Foster, B.||Strathspey, L.|
|Cromartie, E.||Ilchester, E.||Swansea, L.|
|Cullen of Ashbourne, L.||Ironside, L.||Trefgarne, L.|
|Daventry, V.||Long, V.||Trenchard, V.|
|De Freyne, L.||Lonsdale, E.||Trumpington, B.|
|De La Warr, E.||Lucas of Chilworth, L.||Vaux of Harrowden, L.|
|Denham, L. [Teller.]||Lyell, L.||Vickers, B.|
|Derwent, L.||Mackay of Clashfern, L.||Vivian, L.|
|Digby, L.||Mancroft, L.||Westbury, L.|
|Dormer, L.||Mansfield, E.||Young, B.|
Resolved in the negative, and amendment disagreed to accordingly.
§ 5.13 p.m.
§ Lord UNDERHILL moved Amendment No. 12:
Page 13, line 18, at end insert—
§ ("() Subject to the provisions of subsections (4) and (5) a designation order shall specify the period (beginning with the day on which it comes into force and not exceeding five years) for which it is to have effect.").
§ The noble Lord said: My Lords, I beg to move Amendment No. 12. Notwithstanding the decision on the previous amendment, obviously the amendment which I am now moving can still stand. The House divided on the question of the revocation period and its decision now means that the Bill stands as printed with a revocation period of two to five years. Our amendment seeks to lay down that, 1634 when a designation order is made, it shall specify the period for which it is to be in force. Moreover, according to the decision that has just been taken, it can be revoked; otherwise, we could have a situation where a trial order—and your Lordships must remember that it is an experiment—could go on indefinitely. It would be a strange experiment which went on indefinitely and, therefore, there must at some point be a halt. Surely the Government themselves will wish to assess the results of an experiment in order to decide future public transport policy. So, in our amendment we are seeking that a designation order shall specify the period for which it shall be in force, which shall not exceed five years.
§ In the light of the discussion on the previous amendment and the comments of the noble Lord, Lord Nugent—with 1635 which I think so many people will agree—this amendment gives considerable flexibility because it can be any period up to five years. As one cannot revoke an order before two years—that is still in the Bill—it means that there will be some flexibility, because it will be in existence for between two years and (if our amendment is carried) five years. That would appear to us to be most reasonable.
§ The actual period would no doubt be the subject of consultation between the Minister and the local authority concerned, which might decide that it will be three years or four years, but as a maximum it cannot exceed five years. Again, perhaps we on this side of the House are too simple and expect too much, but it seems to us to be such a reasonable and constructive amendment that I hope on this occasion the Minister will find it possible to accept it.
§ Lord LLOYD of KILGERRAN
My Lords, may I say quite briefly that I endorse the words of the noble Lord, Lord Underhill. In my view this is a constructive amendment and it seems to me to be common sense. If an experiment is to be undertaken in a particular area, there should be a limited period in which it should be capable of being carried out. It seems to me, therefore, that to put a limit of five years on any order which can be made is eminently reasonable.
I should also like to take the opportunity to thank the Ministers concerned very much indeed for arranging for all the letters that have passed between them and the Opposition to be handed to me. They were handed to me at about five o'clock this afternoon.
§ Lord LUCAS of CHILWORTH
My Lords, although the amendment of the noble Lord, Lord Underhill, and his explanation of it, appear quite reasonable, I must point out that the amendment does not go quite far enough. In the event of the experiment taking place in a small locality and, for example, the period being within the five years, what will happen afterwards? The trouble with so many experiments—and a good example was the "sleeping policeman"—is that they almost always go on forever and become the absolute custom, and the experiment becomes fact.
1636 Surely, if the noble Lord, Lord Underhill, wishes to ensure that something shall run for a reasonable time—in this case five years—he should then provide for what should happen afterwards in the event of that period being entirely satisfactory. It may well be that the local authority and the operators concerned will wish, for a variety of reasons—finance being the one that springs to mind—to have a further two years. If he puts this in some people may say, "Well, let's have a look at these people for three years; after all, if we like them, we can go on for another two, otherwise we shall be pressed to the limit all the way". While I am not sure that I am entirely happy with what he is aiming to achieve, it may be that I have not quite understood exactly what he is hoping to achieve by the amendment.
§ Lord BELLWIN
My Lords, I too shall be brief on the matter. The suggestion that there should be a maximum period for a trial area, that it should automatically come to an end after live years, is quite new. It is our hope, of course, that a trial area will be a success, and that, when once road service licensing has gone, it will have gone forever. However, that will remain to be seen. Without making a meal of this matter, in view of what has been said on the previous amendment—which quite frankly I originally thought we would discuss at the same time as this amendment—I think that what I must say for the Government is that we cannot agree to anything which makes revocation automatic.
§ Lord MISHCON
My Lords, before the House considers with its usual care anything that the noble Lord the Minister has to say, may I try to deal with the very real point that the noble Lord, Lord Lucas of Chilworth, raised. I thought that the noble Lord the Minister would say in reply that obviously the Minister, on the recommendation of the local authority, can at any time, as I understand it, make an order under this clause. Having a maximum of five years for the original experiment would surely not stop the local authority, in the event of a successful experiment, applying for a further order to be made by way of further trial in respect of a trial area, and the Minister then would be able to make the order for a period up to five years.
1637 Therefore, the point made by the noble Lord, Lord Lucas of Chilworth, was answered, as I read the clause, but I noticed that the noble Minister did not see fit to deal with it at all. I say this to him in the friendliest possible way: he really must not dismiss important matters of this kind airily—especially when they are such new provisions and new experiments in the world of transport—and say that he does not intend to take very much time over this point. I know that he does not mean to be discourteous to the House and that he is trying to save the time of the House, but I am afraid that the time of the country may be expended rather extravagantly if we dismiss these points too lightly.
§ Lord TEVIOT
My Lords, before my noble friend replies, may I say that I am not desperately worried about this. I know that the noble Lord, Lord Underhill, will put me right, but I do not think but since yesterday evening I have given it a little more thought. I do not think that it is the maximum period about which we should worry so much as the minimum period. It has been announced what we plan to do and I shall probably be dealing with the minimum period very late tomorrow afternoon.
On the maximum period, if by some miracle a trial area is a phenomenal success, I see no reason—and if I am wrong I think that the noble Lord, Lord Underhill, will put me right, but I do not think I am—why the period should not be longer than five years. Therefore, I do not think that this amendment is as serious as the last one. It is a very different amendment.
§ Lord NUGENT of GUILDFORD
My Lords, before my noble friend replies, perhaps he could clear my mind on one aspect of this which is similar to the point made by the noble Lord, Lord Mishcon. Will he explain what happens at the end of a designation order, whether it has been a success or a failure? Will there be a review, a report or some publication? If so, what does the Minister then do? Does the local authority reapply for an extension if it is satisfied? We arc all very interested in this and we hope that it will be a success. I am a little more sanguine than my noble friend, Lord Teviot, and I believe that at any rate in 1638 some areas it will be a success. I should like to know what is the procedure so that we can understand a little better what the effect will be of the amendment which noble Lords opposite have tabled.
§ Lord BELLWIN
My Lords, before I deal with the point which my noble friend has raised, may I say that, first, I was not aware that I was dealing with matters airily? I hope that what I have done so far during the course of this Bill, or anything else I have been doing, does not give an indication that I treat matters airily. That certainly is not the intention. As I said earlier this afternoon, I suspect that before we come to the end of the summer, with the various other legislation coming through this House, it might be felt that I deal with matters anything but airily. However, as to that, time will tell.
I turn to the very important and relevant point raised by my noble friend Lord Nugent of Guildford. Of course, in many ways this is all still being resolved, but the fact is that if it is a success it will continue indefinitely. There will be no need for applications or for anyone to apply for further periods; it will simply continue. Necessarily, there will be monitoring as the experiment proceeds, and it will be watched very carefully. Clearly, if it is successful, it will simply continue, and to the best of my knowledge there would then be no need to apply for a further period—it would continue automatically.
§ Lord UNDERHILL
My Lords, I find it very difficult to understand the Minister's reasoning on this matter. This is absolutely new. The Experimental Areas Act 1977 was nothing like this, but there the maximum period was two years; a period of two years was laid down in that Act. The relaxation of licensing was nothing like what is being proposed here. Complete relaxation is proposed here, except for what is called "co-ordination by the local authority", but obviously the local authority will do very little co-ordination.
I should have thought that the Government would want to include a maximum period, and I think that five years is a fair period. If the Government would be happy to take our amendment and to add 1639 to it quite definitely that it can be renewable on application by the local authority and be considered by the Minister, we should be quite happy to accept that. My interpretation is that it could be done without writing that into the Bill. However, if the Government would like it written in, I shall readily withdraw the amendment so that they can write the position in. We think that there should be a maximum period because otherwise we could find ourselves in difficulties. I know that it is to be monitored, but at some stage someone has to sit down and say, "Is this experiment in such and such an area working out? Is it successful?" It may be partly successful. The Minister might want to devise something slightly different for the particular area.
Therefore, it seems to me that on every possible ground there ought to be an amendment to the Bill which provides
§ that the period in which an order shall be enforced shall be laid down when the order is made, and that it shall not exceed a maximum of five years. We believe that it can be renewable if there is a general desire for it. However, I repeat, if the Government feel that they want to make it so watertight that it is written into the Bill, I shall be only too happy to withdraw the amendment in order that that can be done. But if they feel that they do not want to go along that road of co-operation, frankly, we regard this as another question of principle, and we shall have to ask the House to divide on it.
§ 5.27 p.m.
§ On Question, Whether the said amendment (No. 12) shall be agreed to?
§ Their Lordships divided: Contents, 68; Not-Contents, 91.1641
|Allen of Abbeydale, L.||Han worth, V.||Ritchie-Calder, L.|
|Ampthill, L.||Hatch of Lusby, L.||Rochester, L.|
|Avebury, L.||Hughes, L.||Ross of Marnock, L.|
|Banks, L.||Irving of Dartford, L.||Sainsbury, L.|
|Beaumont of Whitley, L.||Jacobson, L.||Sefton of Garston, L.|
|Birk, B.||Jacques, L.||Segal, L.|
|Blease, L.||Janner, L.||Shackleton, L.|
|Blyton, L.||Jeger, B.||Shinwell, L.|
|Boston of Faversham, L.||Leatherland, L.||Stamp, L.|
|Brockway, L.||Lee of Newton, L.||Stedman, B.|
|Byers, L.||Leonard, L.||Stewart of Alvechurch, B.|
|Collison, L.||Listowel, E.||Stewart of Fulham, L.|
|Cooper of Stockton Heath, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Stone, L.|
|Crowther-Hunt, L.||Strabolgi, L.|
|Cudlipp, L.||Lloyd of Kilgerran, L.||Tanlaw, L.|
|David, B.||McCarthy, L.||Underhill, L.|
|Davies of Leek, L.||Meston, L.||Wallace of Coslany, L. [Teller.]|
|Fisher of Rednal, B.||Mishcon, L.||Wedderburn of Charlton, L.|
|Gaitskell, B.||Nathan, L.||Wells-Pestell, L.|
|Goronwy-Roberts, L.||Oram, L.||Whaddon, L.|
|Gregson, L.||Peart, L.||Wigoder, L.|
|Hale, L.||Phillips, B.||Willis, L.|
|Hampton, L.||Pitt of Hampstead, L.||Wootton of Abinger, B.|
|Amory, V.||Colville of Culross, V.||Ebbisham, L.|
|Auckland, L.||Cork and Orrery, E.||Eccles, V.|
|Barnby, L.||Cottesloe, L.||Ellenborough, L.|
|Bellwin, L.||Craigavon, V.||Elliot of Harwood, B.|
|Belstead, L.||Crathorne, L.||Emmet of Amberley, B.|
|Berkeley, B.||Croft, L.||Faithfull, B.|
|Bessborough, E.||Cullen of Ashbourne, L.||Falkland, V.|
|Boothby, L.||Daventry, V.||Ferrers, E.|
|Burton, L.||Davidson, V.||Ferrier, L.|
|Caccia, L.||De Freyne, L.||Fortescue, E.|
|Cathcart, E.||De La Warr, E.||Fraser of Kilmorack, L.|
|Chelwood, L.||Denham, L. [Teller.]||Gisborough, L.|
|Clifford of Chudleigh, L.||Digby, L.||Gray, L.|
|Clitheroe, L.||Dormer, L.||Greenway, L.|
|Cockfield, L.||Dundee, E.||Gridley, L.|
|Grimston of Westbury, L.||Matley, L.||Sandys, L. [Teller.]|
|Hailsham of Saint Marylebone, L. (L. Chancellor.)||Massereene and Ferrard, V.||Savile, L.|
|Merrivale, L.||Sempill, Ly.|
|Harvington, L.||Middleton, L.||Spens, L.|
|Henley, L.||Morris, L.||Strathclyde, L.|
|Hereford, V.||Mowbray and Stourton, L.||Strathspey, L.|
|Hives, L.||Murton of Lindisfarne, L.||Swansea, L.|
|Hood, V.||Northchurch, B.||Teviot, L.|
|Hornsby-Smith, B.||Nugent of Guildford, L.||Trefgarne, L.|
|Ironside, L.||Orr-Ewing, L.||Trenchard, V.|
|Lucas of Chilworth, L.||Pender, L.||Trumpington, B.|
|Lyell, L.||Redmayne, L.||Vaux of Harrowden, L.|
|Mackay of Clashfern, L.||Renton, L.||Vickers, B.|
|Mancroft, L.||Rosslyn, E.||Vivian, L.|
|Mansfield, E.||St. Aldwyn, E.||Young, B.|
|Margadale, L.||Sandford, L.|
On Question, amendment agreed to.
§ Schedule 2 [Orders designating trial areas]:
§ 5.35 p.m.
Lord UNDERHILL moved Amendment No. 13:
Page 60, line 10, leave out ("as long as the licence remains in force after that time") and insert ("a period of one year or, if the service has been operated for less than two years, until the expiration of three years from the date on which it was introduced ").
§ The noble Lord said: My Lords, this amendment deals with precisely the same point as one we tabled in Committee. On that occasion it was withdrawn in the light of the reconsideration to be given to the issues involved, issues which we have already debated today. However, we have not had an opportunity of testing this matter among your Lordships. The schedule as at present drafted makes it absolutely clear that when a trial area order has ended, an operator who has had a stage service in the area shall have a road service licence granted to him as of right and that the licence shall continue indefinitely.
§ I recognise that the Government believe in the maximum possible competition in public road transport, but even the Government support the continuation of road service licensing for stage service carriages as being essential; that is, licensing through the traffic commissioners. Under the Bill we are to have a situation that, no matter what may be the position in relation to bus services in a trial area, there is to be an open-ended entitlement when the experiment finishes; and I 1642 assume that some of these will finish at some time. Surely that cannot possibly be justified. In my view, it is irresponsible to give such an open-ended entitlement and it is grossly unfair to those operators who may have been operating in the area for many years prior to the inception of a trial area experiment.
§ In Committee, I agreed with the Government and with the view expressed by the noble Lord, Lord Nugent of Guildford, that operators who come into a trial area must be given a degree of security if they are to be induced to invest; and that point is recognised in the amendment. We are proposing that, instead of this open-ended entitlement, when a designation order is terminated an operator should be given entitlement to continue with the road service licence for a further period of one year. However, we go on to say that if the particular service has been operated for less than two years, the operator shall have an entitlement to continue the service for a full period of three years from the date the service was started.
§ That appears to us to be a reasonable proposal. If the Government feel that three years is too short a period, I am sure my noble friends and I would consider adjusting the period. What we are complaining about is this open-ended entitlement, first that a licence will be given automatically—irrespective of any other consideration, one will get a licence—and that it will continue indefinitely. We believe that that is going much too far. I repeat my assurance to the Minister that, if he says the Government will examine the matter and be prepared to alter the period we have suggested, of two years 1643 as a guarantee, or, if the service has not run for a period, it can continue for three years from when it was started, we shall readily give that consideration, so long as we tackle this question of an open-ended entitlement which we think is both irresponsible and dangerous.
§ Lord BELLWIN
I have not changed my view since we last discussed this subject. I said then that I saw no reason why a road service licence granted to an operator in a trial area which had been revoked should be any different from any other road service licence. Indeed, I can see a case for saying that an operator who has successfully provided a service in the competitive environment of a trial area should be rewarded, not penalised. But all we propose is that he should be treated equally; that is, his road service licence should normally last five years, like any other.
I am sorry not to be able to meet the noble Lord, Lord Underhill, on this point, but I believe that paragraph 6(2) of this schedule is important in terms of ensuring that entrepreneurs will not be discouraged from starting services in trial areas and undertaking the necessary investment by the fear that the trial area will be revoked and that they will be unable, because of opposition from others—perhaps major operators who have been unwilling to provide services while the trial was going on—to get the licence they will then need for a worthwhile period of time. The matter is not open-ended, bearing in mind the five-year period. It would be open-ended only if the licences were for a timeless period; and that proposition has been rejected.
§ Lord UNDERHILL
My Lords, it is fairly clear that the Government are not going to move on this matter. We will not ask the House to divide, but since once again a question of principle is involved, we will not withdraw the amendment.
§ On Question, amendment negatived.
§ 5.41 p.m.
Lord UNDERHILL moved Amendment No. 14:
After Clause 14, insert the following new clause:
§ ("Exemption from duty to co-operate in trial areas.
§ "(1) Within a trial area the duty of public passenger transport operators to co-operate with one another or to afford one another information in respect of their operations shall not apply.
§ (2) The duty referred to in subsection (1) is that specified in—
- (a) section 24 of the Transport Act 1968 (in passenger transport areas);
- (b) section 151 of the Local Government (Scotland) Act 1973 (in Scotland otherwise than in passenger transport areas);
- (c) section 1 of the Transport Act 1978 (in non-metropolitan counties in England and Wales)").
The noble Lord said: My Lords, with the support of my noble friend in Committee I proposed an amendment, the purpose of which was that in a trial area—we are still dealing with trial areas—operators should be excluded from the statutory duty placed upon them to co-operate with other operators and with local authorities, and to provide information in respect of their operations. In the course of that debate I drew attention to a statement in another place by the Secretary of State that, because trial areas mean more competition,
… it may be sensible to relieve operators of the duty to co-operate and tell each other what they are doing".
§ On that occasion the Secretary of State said that he would give further thought to the matter.
§ The noble Lord the Minister stated in a debate in Committee that as the county council will still have a duty to co-ordinate public transport in their area, it is wrong to suggest that operators should not co-operate with local authorities in trial areas. Nevertheless, the Minister said that he also saw merit in what had been said in the debate about the position of operators being compelled to co-operate one with another, and he gave an undertaking to speak to the Secretary of State to find out whether he intended to make an amendment at Report stage. It will be noted that there is no amendment in this respect on behalf of the Government before your Lordships.
§ I fully accept what the Secretary of State and the Minister have said about the necessity to co-operate with the county council, and therefore that aspect has been deleted from the amendment now before your Lordships; it was included in the 1645 previous amendment. We saw the force of the argument put to us by the Minister and, being reasonable people, we accepted it. I now ask that the Minister acts reasonably and accepts this amendment.
§ It is being proposed that in an area in which there is complete competition (which would be the situation in trial areas) an operator shall be compelled to cooperate with a rival operator—surely that is asking too much—and, what is more, to supply information about his operations to other competitors. Last time the Minister said that what was suggested here was reasonable, and I believe that it is even more reasonable now because we have complied with the Government's desire and have removed any suggestion of excluding co-operation with the county council. Now we merely wish to remove from operators the statutory duty placed upon them by various Acts to co-operate with other operators, which we believe is unreasonable. In an area of intense competition no one can expect that, and I hope that the Government will reply to our reasonableness by accepting the amendment. I beg to move.
§ Baroness HORNSBY-SMITH
My Lords, I wish to ask the noble Lord a question, though I should have liked to do so before he sat down. Bearing in mind the vital need to provide adequate services, particularly in rural areas, how on earth can services run by different operators work in a practical way if there is not co-operation concerning timetables and routes, so that operators do not all run on the same route, and at the same time? Surely co-operation is vital in those circumstances.
§ Lord UNDERHILL
I would agree with the noble Baroness, my Lords. That is one of the problems of the trial areas' experiment, which is not our problem, but is a problem relating to the relieving of all road service licensing in those areas. The Government wish to have complete free competition for as many operators as wish to enter, subject to some form of co-ordination by the county council. All we are saying is that surely it is asking too much that one operator shall tell another operator exactly what he is doing, thus enabling the other man to intensify the competition. That is what would happen, and we consider it unreasonable.
1646 It is no good believing that operators will sit around a table and decide how they are to work nicely with one another. Each operator will be trying to get the best of the cake, and the best of the cake will be in the areas which are the most profitable, with services operated at times that prove the most profitable. I cannot see one operator saying, "I'll take the bad area. You take the good area". They will all be after the good areas. That is one of the problems. One cannot expect one operator to co-operate with another operator who can then beat him.
§ Lord LLOYD of KILGERRAN
My Lords, when we are considering this Part of the Bill we must always remember that we are dealing with a new experiment. These are new ideas, the object of which is to encourage private enterprise, not only so that entrepreneurs may make money, but in order to ensure that the community at large, through the efforts of the entrepreneurs, will be assisted in their local activities by being able to move around in their area and have the advantages of transport amenities.
It seems to me that at this stage the Government are at variance with the spirit of private enterprise. They say that there should be a statutory duty to co-operate. Surely in private enterprise co-operation, when it is necessary, will arise automatically. To compel an operator who is indulging in this kind of experiment to disclose information and to make it compulsory for him to co-operate with other people seems to me to be quite wrong, and I strongly support the amendment.
My Lords, following what the noble Lord, Lord Lloyd of Kilgerran, said, it is important to remember that fundamentally this experiment is to be in a trial area, and the whole object of a trial is to learn. Unless there is a criss-cross of information between operators in all sectors, and indeed with the public in a trial area, no one will learn anything from the trial. I have certain doubts about making it a statutory duty on operators to disseminate information one to the other. I believe it is of vital importance that people should be encouraged to swap information and experience within the period of the trial.
§ Lord MISHCON
My Lords, the noble Lord, Lord Morris, has raised a very important point, following on the speech of the noble Lord, Lord Lloyd of Kilgerran, and I think that the noble Baroness had this point in her mind, too. Obviously if there is sense in having co-operation—and one can well see where that sense is vital—then there ought to be co-operation, and it ought to be encouraged, but it should not be written into an Act of Parliament. One cannot force people to co-operate. If one makes this a statutory duty, one causes co-operation in a voluntary spirit to fly out of the window. People do not like being ordered to cooperate and to exchange information. They prefer a sensible approach being made to them, and that is really in the interests of everyone. That, as I understood it, was the whole burden of the speech of the noble Lord, Lord Underhill. Really, it is vital of course in the spirit of this amendment; and that is why, in any decision which may be made on this, I hope it will not be a decision based on the fact that anybody is suggesting that there should not be co-operation. It is on the point that it should not be written into the Bill.
§ Viscount MASSEREENE and FERRARD
My Lords, I have some sympathy for what the noble Lord has just said. I think it is a mistake to make co-operation a statutory duty. In any form of industry you get a certain amount of co-operation among some employers, but if you made it a statutory duty for industry to cooperate I think it would be sheer madness. If you have a certain manufacturing process that you want to keep to yourself to keep your firm alive, you do not go and give it to your competitors. I know that is not a very good parallel, but I feel there will be a lot of voluntary co-operation, anyway, among these operators. I think it is a great mistake to make it a statutory duty.
§ Lord BELLWIN
My Lords, I listen with some amusement to the fervour with which noble Lords opposite plead the case for there not having to be statutory obligations to co-operate. I find it rather amusing because I remember how vigorously, on other occasions, they pleaded that there should be statutory obligations to consult. As I said at the time, I do not know how on earth, in 1648 practice, you can ever compel people to consult by writing it into a statute that they must consult, and what that consultation then means, I really do not understand. But I cannot argue that and at the same time plead a case for there being a statutory obligation to cooperate, which is even less likely, indeed. Therefore, I do not argue the case very strongly at all.
Frankly, I do not think that it really is worth putting this provision into the statute book; but, conversely, I do not think it is particularly worth opposing it if it comes up. I just do not think it is of such moment. I am more concerned with what it would really mean. I think it would be something of a pious hope, frankly, if it went in as it is; and, therefore, this is going to be one of those, I am not sure if they are "events" or "special occasions", to which the noble Lord, Lord Mishcon, referred earlier, when he said that the Government would in fact accept an amendment. In the circumstances—and I am not without cognisance of the points made by my noble friends behind me—Yes, we accept it.
§ Lord UNDERHILL
My Lords, may I say that I am very grateful to the noble Lord the Minister for his acceptance of this amendment. It has proved that we can put a reasonable case and that he can put a reasonable acceptance. I am very grateful to him.
§ Clause 17 [Power to prohibit driving of unfit public service vehicles]:
Lord UNDERHILL moved Amendments Nos. 14A and 14B:
Page 17, line 13, leave out ("owner") and insert (" operator ")
Page 17 line 15, leave out ("owner's") and insert (" operator's ").
§ The noble Lord said: My Lords, perhaps I may take these two amendments together, Nos. 14A and 14B. The definition of "owner" includes a person who has hired a vehicle. Originally, the industry interpreted the words "agreement for hire" as relating to a long-term leasing of a vehicle, but on consideration this appears not to be so. The words also cover the hire of a vehicle with driver for even an afternoon or evening 1649 trip. This does not seem to matter except in relation to Clause 17(3). As the Bill is at present drafted, the vehicle examiner who issues a prohibition notice has to bring the contents to the owner's attention—that is what it says, "the owner's attention"—as soon as practicable. If the short-term hirer is defined as the owner, by the time he receives a copy of the notice the vehicle will long have been back with the person who in reality owns it.
§ The person is, we submit, really the operator. Here is an interrelationship with the new definition of "operator". If the basis of that decision is the person whose disc is exhibited on the vehicle—and we are going to have a Government amendment accepting the position of discs—then that person is the logical recipient of the notice. It is a general view that the vehicle examiner would not look at the name sign-written on the back of a coach or at any other possible form of identification, because these do not necessarily give him the information he requires. What he needs to know is clearly indicated on the operator's disc; and, in all logic, the recipient of a notice should be the person whose disc is displayed. To further explain the point, many operators will have a trade name sign-written on the coach, possibly something like "Sunny Tours", while the disc may show "(Blank) (Blank) Limited"—something totally different. Therefore, it is maintained that in all circumstances the correct reference in Clause 17(3) should be to the operator, and not to the owner. That is the point of these amendments, and I beg to move them both.
§ Lord BELLW1N
My Lords, these amendments are not acceptable as they stand. In most cases the "owner" as defined in Clause 42(1) will also be the "operator" as defined in Clause 42(2), although, of course, there will also be occasions when there is an owner but not an operator. If the operator were to supplant the owner in the subsection, it would be necessary to have some provision to cover the operator by whom the vehicle is being or was last used. In some cases the operator who last used the vehicle might not be the most appropriate person to receive the notice. "Owner" comes nearest to reaching the person we really want to get the notice; that is, the 1650 person with responsibility for the vehicle and who may be expected to correct any defects before it goes back on the road. However, my Lords, I think that the points made by the noble Lord are sufficiently interesting for me to be able to promise that in the short interim between now and Third Reading we should like to look again at the phraseology of this particular provision.
§ Lord UNDERHILL
My Lords, I am very grateful to the noble Lord the Minister, and, in the light of that assurance, I beg leave to withdraw these amendments.
§ Amendments, by leave, withdrawn.
§ Clause 20 [Grant and duration of licences]:
§ 5.58 p.m.
Lord MORRIS moved Amendment No. 15:
Page 20, line 9, leave out (" with ") and insert ("on").
§ The noble Lord said: My Lords, it will come as no surprise to your Lordships that this is purely a drafting amendment, and I must confess that in moving it I feel a little mean, because the object of this amendment is to excise from the Bill the luxurious esotericism which the draftsman has seen fit to use. Your Lordships will notice that in line 9 on page 20 the phrase "the date with which it is to expire"—that is, the licence—is used. Solely on the grounds of consistency, in other parts of the Bill—namely, in Clause 11(1)—the phrase "the dates in the year on which road service licences are to expire" was seen to be the correct phrasing. Similarly, in subsection (2) the phrase is," the date on which the licence is expressed to take effect"; and again, in Clause 12(5)(a), "the day on which it comes into force". Indeed, in the same subsection on page 20, in the line above, it says, "the date on which the licence is to come into force".
§ I believe—and I might add that this is a pure guess—that the reason why the draftsmen felt it meet and right to use the words "with which" arose out of a misunderstanding as to what the word "on" means, because in using the words "the date on which it is to expire" it might 1651 be felt that it was not absolutely clear because it could expire at any time on that date. But I believe it is quite clear, because in the context in which the word "on" is used it is purely shorthand for, taking the first example, "the date at the beginning of which the licence is to come into force', and, secondly, "the date at the end of which the licence is to expire ".
§ It really is very plain if one takes an example in absurdum. If one were to issue a licence for the period of 24 hours commencing at the beginning of 1st January 1980, one could draft it simply as: "Date of commencement of licence, 1st January 1980; date of expiry of licence, 1st January 1980". It can only mean that the licence will commence at the beginning of, at the first second of, 1st January 1980; and must end at the end of, at the last second of, 1st January 1980. The reason for this is very plain. It is because events have an irritating habit of beginning at the beginning and ending at the end. I fail to see why, on the ground of consistency, the draftsmen felt it proper to use the phrase, "the date with which". I am sure that if I were—God forbid!—to have to take O-level English Language again, I should get nine out of ten rather than ten out often if I used "the date with which "rather than the phrase" the date on which".
§ Lord MOWBRAY and STOURTON
My Lords, I am afraid that my noble friend's magical advisory touch is not going to convince my advisers on this occasion although we completely understand the reasoning behind his amendment which he explained at the Committee stage and again usefully today. He was concerned that the use of the preposition "with" in relation to the expiry date of a licence in Clause 20(5) was rather pedantic, especially when the word "on" was used in other places in the Bill. I can assure the noble Lord that the use of the phrase "the date with which it is to expire" is quite deliberate in this case. It avoids any doubts arising as to whether the licence expires at the beginning or the end of the day. The word "with" makes it clear that the licence expires at the same time as the date ceases to exist, that is, at midnight on the day in question.
1652 The noble Lord mentioned in Committee that the preposition "on" was used in subsections (1) and (3) of Clause 11. These subsections must be read in conjunction with subsection (2) where the use of the phrase "up to and including" makes it clear that the word "on" must include the last of the days in question. In Clause 20(5), there is no such clarifying phrase, and the use of the word "with" is therefore necessary. I hope that, with those words, the noble Lord will agree that our advisers are up to the mark, too.
My Lords, it is plain to me that the draftsmen have fought gallantly to keep that phrase within the Bill. In the light of that explanation, for which I thank my noble friend and from which I have: learned a great deal, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.4 p.m.
Lord BELLWIN moved Amendment No. 16:
After Clause 22, insert the following new clause:
§ ("Duty to exhibit operator's disc
§ .—(1) Where a vehicle is being used in circumstances such that a PSV operator's licence is required, there shall be fixed and exhibited on the vehicle in the prescribed manner an operator's disc issued under this section showing particulars of the operator of the vehicle and of the PSV operator's licence under which the vehicle is being used.
§ (2) Traffic commissioners on granting a PSV operator's licence shall supply the person to whom the licence is granted with a number of operator's discs equal to the maximum number of vehicles which he may use under the licence in accordance with the condition or conditions attached to the licence under section 21(1); and if that maximum number is later increased on the variation of one or more of those conditions, the traffic commissioners on making the variation shall supply him with further operator's discs accordingly.
§ (3) Regulations may make provision—
- (a) as to the form of operator's discs and the particulars to be shown on them;
- (b) with respect to the custody and production of operator's discs;
- (c) for the issue of new operator's discs in place of those lost, destroyed, or defaced;
- (d) for the return of operator's discs on the revocation or expiration of a PSV operator's licence or in the event of a variation of one or more conditions attached to a licence under section 21(1) having the effect of reducing the maximum number of
1653 vehicles which may be used under the licence.
§ (4) If a vehicle is used in contravention of subsection (1), the operator of the vehicle shall be liable on summary conviction to a fine not exceeding £200.").
§ The noble Lord said: My Lords, for the convenience of the House, in moving this amendment I should like to speak to Amendments Nos. 42, 43, 46, 48 and 49. These amendments will come as no surprise to noble Lords. I promised in Committee that a clause requiring the display of operators' discs, a clause very similar to that moved in Committee would be put down at this stage. In addition, there are one or two small consequential amendments.
§ I do not wish to detain noble Lords, but I should explain two differences from the version of this clause discussed in Committee. First, the opening words are different. Naturally, a disc will be required only in circumstances in which a licence is required. These words make that link clearer than in the earlier version. Secondly, the particulars to be shown on the disc are to be prescribed in regulations: under subsection (1) they will be particulars of the operator of the vehicle and of the operator's licence under which it is being used, and our intention is to prescribe the operator's name and the serial number and expiry date of his PSV operator's licence. We do not intend—and, indeed it would not be within subsection (1)—to prescribe details of the vehicle or the operating centre. I commend these amendments to your Lordships, and hope that in view of what I have said the noble Lord, Lord Underhill, will feel able to withdraw his amendment.
§ Lord UNDERHILL
My Lords, I am delighted to see the amendment put down by the noble Lord, Lord Bellwin. He gave an assurance that he would be introducing an amendment. I am not only pleased that he has done so but that he has done so in the terms in which it is before us. I had put down an amendment but, on receiving information about this amendment, mine was withdrawn and does not appear on the Marshalled List. I have pleasure in supporting the Government amendment.
§ Lord LLOYD of KILGERRAN
My Lords, I wonder whether this amendment 1654 goes far enough. At the Committee stage (I think in relation to the marking of these operators' cars and vehicles) the noble Lord, Lord Bellwin, accepted how necessary it was in order to protect taxi licencing, to prevent persons driving cars which pretended to be taxis by putting signs on the cars closely resembling those used by licensed taxis. I wonder whether, in drafting this clause, the position in relation to taxi licences had been considered adequately. It may be that under subsection (3) of the new clause the point I have raised (which is an important point) is covered. That subsection uses the words: "Regulations may make provision …" The form of the regulations may perhaps make it possible to avoid the problems that certain taxi proprietors have in regard to the marking of cars.
§ Lord TEVIOT
My Lords, I intend to stand up, together with the noble Lord, Lord Underhill, to say how pleased I am with this amendment. Also, if it is in order to do so, may I thank the noble Baroness on the Woolsack for telling us which list we are on. That was useful in the case of the last amendments. Amendments on either list are coming up all the time and it is useful to be told which list is relevant. I hope that the noble colleagues of the noble Baroness will follow her example. With respect, I find rather surprising what the noble Lord, Lord Lloyd of Kilgerran, has said. In this particular instance we are discussing PSV licences. There is another sign that we will be discussing on, I think, Amendment No. 64 which is going to deal with taxis. May I say that I think that this amendment goes all the way and is thoroughly acceptable.
§ Clause 23 [Duty to inform traffic commissioners of relevant convictions, etc.]:
§ 6.9 p.m.
Lord MISHCON moved Amendment No. 17:
Page 23, line 36, after ("who") insert ("knowingly").
§ The noble Lord said: My Lords, I shall not detain the House for more than a very short time on what I think to be 1655 an important point. There is a clause in the Bill which casts a duty to inform the traffic commissioners of relevant convictions of the applicant or of any employee or agent of his. If he fails to do so, he has committed an offence and is liable to be fined for it. In the Bill as it originally stood the word "knowingly" was inserted. That word has now come out; and if your Lordships will look at a subsequent provision in the Bill you will see that this offence is covered by a defence which may be put; namely, that if there was reasonable excuse for failing to inform the commissioners of a conviction that is a defence. It is on exactly the same basis that I tried previously to persuade your Lordships—at that time unsuccessfully, but I still live in hope—that we ought to be clarifying, we ought to be making the tasks of the courts easy when they are interpreting the provisions to which we are giving legislative effect.
§ Regarding a serious matter such as convictions—which are most relevant when the traffic commissioners have to consider the fulfilment of their duties—it obviously should be an offence if knowingly there is a failure to communicate those offences to the traffic commissioners. Those who have to decide whether or not to prosecute, and those who have to decide whether or not the offence is committed, should not be burdened with having to ascertain whether the defence comes within the purview of this Bill: namely, that there was a reasonable excuse.
§ It is a reasonable excuse that one was going through matrimonial difficulties at the time, and that to give publicity and possibly to communicate a conviction to the traffic commissioners would not have helped the marriage along because the offence was being kept away from a wife? Is it a reasonable excuse that somebody had put a letter in a pocket of a jacket and then unfortunately forgot about it, and therefore the communication was never made? Is that a reasonable excuse, or is it not? These are matters which will trouble those who have to decide about a prosecution, and these are matters that will trouble those who have to decide whether to acquit or convict. As I have said, the word "knowingly" was originally there. In regard to a serious matter 1656 of this kind, I ask that this word go back again.
§ Very quickly, may I say that the Minister was kind enough to promise to write to me, and he did. What he is really saying in his reply—and I hope that I am fairly paraphrasing him—is that if you put in the word "knowingly", you cast a burden upon the prosecution to show that the person concerned presumably knew about his own convictions and knew that he had not communicated. Anyone who has been used to prosecuting knows that that is a very slight onus indeed. Certainly in regard to the man himself, one would have thought that would have applied to his employees and agents because, as your Lordships will see, the convictions are limited to the course of the applicant's own business. Therefore, it would be an extraordinary situation if the onus could not be very easily discharged by a prosecution. It is in those circumstances, and in regard to a serious clause of the Bill, that I ask for the word "knowingly" to go back where it originally was.
§ Baroness PHILLIPS
My Lords, while we are clarifying points, this may have been mentioned earlier but so many of these clauses refer to repute and, in one case, good repute. We are creating criminal offences, as my noble friend pointed out. Is this repute in his professional capacity or in his moral or social capacity? There is a difference. It seems to me that we are creating some problems for the courts because of the rather vague definitions which occur in several of these clauses. I am also fascinated by the amount of the fines which seem to vary very much from one clause to another. Obviously, some of these offences are much more serious than others, though it is very difficult to discern it when studying the Bill. I should like to know, on the point about "knowingly", what kind of repute we are talking about. Is it professional repute?
Lord BELL WIN
My Lords, I am of course aware of the noble Lord's concern about the correct formulation of the defence available to a person charged under this clause, and, as he said, I have written to him on this point. For the benefit of the House, I will try to explain briefly why the defence "without reason- 1657 able excuse "is preferable. I am advised that the" knowingly "formulation would import into the offence an element of mens rea. As the noble Lord said, the legal burden of proof would then be upon the prosecution, and this might be unduly onerous. On the other hand, if the prosecution discharged this burden of proof, injustice could result to the accused if he acted knowingly and (through some cause such as illness) blamelessly.
The word "knowingly" introduces an unwelcome element of uncertainty. For example, it has been held to include deliberately turning a blind eye. The alternative of the "reasonable excuse" formulation seems therefore far more satisfactory. In the original drafting of Clause 23(5), the legal burden of proving a reasonable excuse would, by virtue of Section 81 of the Magistrates' Courts Act 1952, have been on the accused, and if he had discharged it no offence would have arisen. In the formulation now in Clause 40(1) an offence will arise, the legal burden of proving a reasonable excuse will be on the accused, and if he discharges it he will have a good defence. Thus Clause 40(1) avoids both the possibilities of an unduly onerous burden on the prosecution and injustice to the accused. I hope that in view of that explanation the noble Lord will agree that the clause should remain as it stands, and will withdraw his amendment.
To comment on the points raised by the noble Baroness, Lady Phillips, for a definition of "good repute" I would have to refer her to the third paragraph of Schedule 3. If she will forgive me, I will not read it out, but it is there for her to see. As to the fact that she is concerned that fines seem to vary, she answered that herself when she rightly said that the offences may vary and other circumstances may vary. If the noble Baroness would like to have more information, and cares to get in touch with me, I will gladly provide it.
§ Lord MISHCON
I cannot pretend that this argument ought to be carried any further. It is a question of putting one's point of view and hearing a very courteous reply. One merely says (I hope with the same courtesy) that one does not agree with the reply; but one thereupon sits down and mutters "Content" and hears the discontented opposite.
§ 6.18 p.m.
§ The DEPUTY SPEAKER (Baroness Wootton of Abinger)
My Lords, the Question is, that the amendment be agreed to? As many as are of that opinion will say, "Content". To the contrary, "Not-Content".
My Lords, I will put the Question again. The Question is, that the amendment be agreed to? As many as are of that opinion will say, "Content". To the contrary, "Not-Content". Clear the Bar.
§ 6.20 p.m.
§ The DEPUTY SPEAKER
I will put the Question once more. The Question is, that this amendment be agreed to? As many as are of that opinion will say "Content"; to the contrary, "Not-Content ".
Several noble Lords: Not-Content.
§ Amendment negatived.
§ Clause 24 [Duty to give traffic commissioners information about vehicles]:
§ 6.21 p.m.
Lord MISHCON moved Amendment No. 18:
Page 23, line 43, after (" practicable ") insert (" or in any event within fourteen days ").
§ The noble Lord said: My Lords, I am so glad that I remained silent, which is not a habit to which I am accustomed in your Lordships' House! May I be permitted to speak to Amendments Nos. 18 and 19 together? The same point is involved and, if I may say so frankly to your Lordships, I am much more concerned that No. 18 should be acceptable to your Lordships than No. 19, although your Lordships may in your kindness decide to favour both and the Minister, with his customary generosity, may accept both.
The first amendment, No. 18, relates to Clause 24 and under that clause it is the duty of a holder of a licence—
… on the happening to any public service vehicle owned by him "—
and I want to emphasise these words if I may—
of any failure or damage of a nature calculated to affect the safety of occupants of the … vehicle "—
I am using shorthand here—
or of persons using the road, to report the matter as soon as is practicable …".
§ It is the phrase "as soon as is practicable" that I wish to emphasise. We are envisaging under this clause the situation of a very serious threat to public safety. Again, I plead with your Lordships: should there not be certainty as to the duty imposed when a serious matter of public safety is thus involved?
§ Obviously, I do not hold out for my period of 14 days, and if the Minister suggests that it might be 21 days or 28 days, I shall not mind as long as he does not make it too long, because public safety is involved; and I would be the first person to concede the point about time and then ask your Lordships' leave in the usual way to withdraw my amendment. But what I cannot be satisfied with—and here my noble friends support me—is a situation where, on an offence of this kind being committed, there is always available the argument that the defendant did it "as soon as is practicable". Again the prosecution is in doubt. Should one prosecute for an offence under this section? Is the excuse a good one or a bad one that it was done "as soon as is practicable"? Was two months, three months or four months "as soon as is practicable"? Again the court is placed in difficulty as to what was" as soon as is practicable"? Although we all know that these are words which sometimes appear in an Act, they do not normally appear in sections of an Act dealing with serious criminal matters or even semi-serious criminal matters. It is for that reason that I ask for a time to be inserted and not to have these vague words "as soon as is practicable ".
I promised that I would also talk to Amendment No. 19. That deals with the duty which is cast by subsection (2) of this clause when the holder of a licence makes an alteration—
otherwise than by replacement of parts being made in the structure or fixed equipment of any public service vehicle owned by him, to give notice of the alteration as soon as is practicable…
§ Again I have used shorthand to try to deal with this clause. This is not, in my view, such a serious matter as the first subsection and I do not hold out for the time limit quite so strenuously, although I should have thought that here again it was a very sensible thing to have a time limit rather than the vagueness of "as soon as is practicable". That is the logic and the reasoning behind those two amendments and I hope they will be acceptable to your Lordships. I beg to move Amendment No. 18.
My Lords, I believe that the argument of the noble Lord, Lord Mishcon, really has considerable merit. There is only one flaw, as I see it, in the way the amendment is drafted, which is that if one has a time limit specified within the Bill—be it 14, 21 or 28 days, and I believe that the first amendment should have a different time limit from the second amendment because of the different circumstances—then the words "as soon as is practicable" become unnecessary. From a drafting point of view, I believe it might be better if those words were taken out and an actual time limit set into the clause. If my noble friend Lord Bellwin would consider that point in his answer, I should be very much obliged.
§ Lord MOWBRAY and STOURTON
My Lords, I always hate having to address your Lordships in order to answer two legal gentlemen when I have no legal knowledge at all. We had a fairly full debate in Committee as to the merits or otherwise of the phrase "as soon as is practicable". I said then that I felt it was more appropriate in this case than a time limit. I have however carefully considered with my learned and wise colleagues in the department the arguments for and against introducing a time limit of any length, but have concluded that there would be no merit in this.
The noble Lord, Lord Mishcon, will be aware that I have written to him on this point and I think I copied my letter to the noble Lord, Lord Underhill; but I am sure it would be helpful if I explained my reasons to the House. Briefly, the matters required to be reported under Clause 24 cover a wide range, from minor defects and alterations to major damage to vehicles. It would be difficult to set a single time limit which would be appro- 1661 priate in each case and which would not impose an unnecessarily onerous burden on operators. As I have already indicated, we think the words "as soon as practicable" adequately cover the particular circumstances of each case.
I might add that this is a familiar phrase in law and we do not believe that it will create undue difficulties in practice. On the contrary, we have a suspicion that a specific time limit could create extra problems in that it might provide a disincentive to report at all, if it were not done within the specified time. In view of what I have said, I hope the noble Lord may feel able to withdraw his amendment.
§ Lord MISHCON
My Lords, it is absolutely true that the noble Lord was kind enough to write to me, and he said in his letter precisely what he has just said to your Lordships. My only comments are as follows: it can hardly be said to be a difference between what may be a minor defect to a vehicle and a major one, when one reads into this section that the requirement to notify—and I did emphasise those words—is only in the case where the damage or failure is—of a nature calculated to affect the safety of occupants of the public service vehicle or of persons using the road …".That can hardly be a minor defect. Secondly, I suppose the argument could be advanced on every conceivable occasion, when anyone was required to notify anything, that the circumstances may differ and, therefore, never putting a time limit in the Bill, because it is much more sensible to put the words "as soon as practicable".
This is not a concept that is acceptable to lawyers or to those who sit as lay justices. It is not acceptable to the common sense of people who are trying to lay down provisions which affect a serious situation. I am afraid that I remain unconvinced. I only hope, in view of the comments made by the noble Lord, Lord Morris, as well as my offer to alter the time limit if it helps, that the Minister can concede the point. If he still finds himself unable to concede it, I do not think it right to divide your Lordships on a matter of this kind, but it is highly regrettable.
§ On Question, amendment negatived.
§ [Amendment No. 19 not moved.]
§ Clause 27 [Further appeals on points of law]:
§ 6.31 p.m.
§ Lord BELLWIN moved Amendment No. 20:
§ Page 27, line 34, leave out subsection (3) and insert—
§ ("(3) If on an appeal under this section the High Court or Court of Session is of opinion that the decision appealed against was erroneous in point of law, it shall remit the matter to the Minister with the opinion of the court for rehearing and determination by him.").
§ The noble Lord said: My Lords, for the convenience of the House, I should like to speak also to Amendment No. 38. This amendment takes up a point raised by the noble Lord, Lord Mishcon, during Committee stage. I am grateful to him for bringing to our notice the interpretation that could be put on Clauses 27 and 33; namely, that the power to give any decision which might have been given by the Minister would involve the court in considering the merits of the case. This was not our intention. To avoid all doubts, the amendment removes this power, and ensures that the court must in each case remit the matter, with the opinion or direction of the court, for re-hearing and determination by the Minister. I hope that both of these amendments will be acceptable to your Lordships. I beg to move.
§ Lord MISHCON
My Lords, here, again, the noble Lord the Minister was kind enough to write to me and did so in terms as kindly as those he has used in the House this afternoon. I am only too glad that some observations of mine have, at least, been of use in the course of this Bill.
§ The DEPUTY SPEAKER (The Earl of Listowel)
My Lords, perhaps I should point out to your Lordships that the agreement to Amendment No. 20 preempts Amendment No. 21.
§ Clause 29 [Death, bankruptcy, etc., of licence-holder]:
§ 6.33 p.m.
Lord UNDERHILL moved Amendment No. 22:
Page 28, line 19, leave out (" if he ").
§ The noble Lord said: My Lords, this is an amendment to Clause 29. It is a detailed matter on which I shall, therefore, be extremely careful in adhering to my brief. Perhaps I should say that I am speaking also to Amendments Nos. 23, 24, 25, 26 and 27, because they are all related. Apart from possible circumstances which might be specified in regulations, this clause relates to individual licence-holders as opposed to corporate bodies. The smaller operators who may be affected are concerned at the failure to provide any transitional provisions to cover the death and, possibly, the insanity of an individual licence holder. The purpose of this group of amendments is to make such provision.
§ The greatest concern relates to the death of a licence-holder. At such a time, a family is involved in its bereavement, and the formalities of the funeral will take precedence over the formalities of licensing. In such a family, with a tradition of public service, it will be automatic that services will continue or, if necessary, be covered at a time such as this. The nature of the service and other business combine to make this an almost foregone conclusion. Only when the immediate needs of the family in its bereavement have been taken care of will the thought of licensing have any relevance. In the meantime, the public will have continued to receive the service which they depend upon, although technically, that service will have been provided illegally.
§ It is not enough to say that the operation of the traffic commissioners' powers under subsection (4) will take care of this technical offence. No doubt in most cases this would be the position in practice. However, where it is seen that the law clearly leaves a vacuum, it is desirable that amendment should be made to cover such a situation. The amendment to paragraph (a) is aimed at satisfying this need. It would allow a 28-days maximum period, during which a service could be continued before subsection (4) was 1664 brought into operation. The logic of this amendment should be self-apparent, although it is possible that there could be a debate on the period which should be allowed. I should stress that it is the considered opinion of independent operators in the industry that 28 days is a practicable and reasonable period.
§ In the case of bankruptcy, it is thought that there is sufficient forewarning to allow application to be made to the traffic commissioners under subsection (4). Moreover, there may be circumstances in which the commissioners will wish to act under paragraph (b) of that subsection, rather than under paragraph (a). For these reasons, no transitional period is suggested.
§ In paragraph (c) of subsection (2), it is again thought that some transitional arrangement should be provided, although the circumstances relating to insanity seem to fall between those for death and bankruptcy. There is likely to be greater warning of a committal order than of the precise time of a licence holder's death. Very similar arguments apply as compared with paragraph (a), but it is thought that a period of 14 days would be adequate, compared with the 28 days suggested in the case of death. In our view—and it is the view of the operators—these amendments collectively fill a gap in the clause which ought to be filled. That is the purpose of this series of amendments. My Lords, I beg to move.
§ Lord BELLWIN
My Lords, I, too, will have to speak in some detail on this point. I sympathise with the problems to which the noble Lord has drawn attention. I realise that the death or sudden insanity of the proprietor of a small business can cause great distress and problems. Nevertheless, I do not think that we need or should make special provision in this Bill to deal with such possibilities. We need not, because prosecutions for illegal operation in the short interval between the death and the traffic commissioners' direction are highly unlikely, and if they did take place I am sure Clause 40 provides adequate defences. We must remember that the traffic commissioners' direction, once obtained, will be effective to prevent the termination of the licence; that is, as from the date on which it would otherwise have terminated. The amendments are 1665 undesirable because they create more difficulties than they solve. Perhaps the House will bear with me a few moments while I illustrate a few.
In the context of the death of an operator, what is to be made of the expression "next of kin or personal representatives"? Will the next of kin take precedence over the personal representatives? How will the personal representatives be able to ascertain within a reasonable time whether there are any next of kin and, if so, whether all or any of them are able and willing to act? It is not certain what the expression "next of kin" means in this context. Presumably, it is intended to mean the person or persons entitled on intestate succession under Section 46 of the Administration of Estates Act 1925, as amended.
There may be no such persons, or there may be many and not all of them will necessarily be entitled to absolute interests. If there are any, they may be hard to find; they may not be sui juris. It would be very strange, and probably unsatisfactory, if they were to take precedence over the personal representatives upon whom all powers, right and duties relating to the estate would normally rest. If there were no next of kin, or if the personal representatives were to take precedence over them, many of the same objections would apply. If the personal representatives are executors they may be unable or unwilling to run the business. It may be several days, or even longer, before they decide whether to renounce their right to a grant of probate and this right might be jeopardised by action relating to the business which could be construed as inter-meddling in the estate. If the personal representatives are not executors it may be several weeks or even months before they obtain a grant of letters of administration and thus derive authority to deal with the estate. As with executors, they may be unwilling or unable to manage the business (and the prospect of doing so might discourage them from applying for a grant). If several persons are next of kin, executors or administrators they may disagree among themselves how to run the business, and some or all of them may be manifestly incompetent to do so.
In the context of the insanity of a licence-holder, the reference to personal 1666 representatives in the amendment as moved is not easy to understand. That expression is generally taken to mean the persons entitled to administer the estate of a person who has died. It does not seem to have a relevance in relation to a person who has become unsound of mind. As to the provision for "next of kin" the same objections mentioned in relation to a deceased operator apply here too, with the added objection that the meaning of the expression in this context is not known since it could hardly be appropriate to apply the provisions of Section 46 of the Administration of Estates Act 1925, as amended. I would not be surprised if the Court of Protection had objections to any such provision.
Nor do the amendments make it clear how they relate to the provisions of subsection (4). Are the powers of the "next of kin or personal representatives" to take precedence over the powers given to the traffic commissioners in subsection (4) or not? In any event it seems that the traffic commissioners would be impeded in an efficient exercise of those powers by any provisions such as those contained in the proposed amendment.
I have no doubt that the best way to provide against the results of the death, bankruptcy or madness of an operator is to give the traffic commissioners a wide discretion which they can, and I am sure will, exercise swiftly and sensibly to the benefit of those by whom and for whom the service is provided. To replace this discretion with confusing, uncertain, arbitrary and probably retarding provision of the kind embodied in the amendments is something which I do not think the House will wish to accept.
§ Lord MISHCON
My Lords, I am reminded of a speech made some years ago by the noble Viscount, the first Lord Samuel, a figure who was loved in this House, a much respected Member on the Liberal Benches. He was addressing the Civil Service on their centenary celebrations and, after paying a wonderful tribute to them for the way they had helped his career, he said, "However, there is one thing I have always found in regard to them: they have a problem for every solution". I was reminded of that when I heard the replies given to what was the very humane purpose of this 1667 amendment; and indeed there are many problems that have been presented, I can see, by the Civil Service for that solution.
My Lords, in view of the fact that there is a real problem here, I wonder whether the noble Lord the Minister would not think that rather than by amending the Bill (although my noble friend put the case for it, in my view, so well) the problems could be met by sending, possibly after consultations with the Confederation of British Road Passenger Transport, some helpful memorandum, especially useful to the small operators, who are really the relevant people here, and to the traffic commissioners, as to how they might handle the cases that have been referred to tonight. If the noble Lord the Minister could say that that was a practical solution to this problem, I have an idea my noble friend Lord Underhill might have something helpful to say to the House.
§ Lord BELLWIN
My Lords, by leave of the House, I do by all means say, let us have a look at that and see what we might do. After all, the object is to be helpful and I certainly take the point made.
§ Amendment, by leave, withdrawn. [Amendments Nos. 23 to 27 not moved.]
§ Clause 30 [Fare-paying passengers on school buses]:
Lord BELLWIN moved Amendment No. 28:
Page 29, line 8, after ("bus") insert (" belonging to the authority ").
§ The noble Lord said: My Lords, for the convenience of the House I should like to speak also to Amendments Nos. 31 and 34. These amendments clear up a slight confusion in the clause as tabled in Committee between school buses belonging to local authorities and those contracted to them. I need hardly remind your Lordships that, over the country as a whole, the latter is much the larger category. Both types of school bus are used by local education authorities to carry pupils to and from school free under the duties laid on them by the Education Acts. On both types local education authorities may wish to carry on school 1668 journeys fare-paying passengers, especially pupils to whom they make a charge because they are outside the categories of whom free transport is provided, but it is only in respect of school buses belonging to them that authorities need a power to provide local bus services independently of journeys to and from school. We indeed hope that local bus services will be provided by contract school vehicles, but that will be a matter for the operator, not for the education authority.
§ The clause as drafted would have put difficulties in the way of the use by authorities of vehicles contracted to them for carrying fare-paying passengers as well as pupils travelling free. I am sure that the House will agree that this matter should be put right. I beg to move.
Lord UNDERHILL moved Amendment No. 29:
Page 29, line 9, at end insert (" which is during school term provided under paragraph (a)").
§ The noble Lord said: Your Lordships will recall that when this complete new clause was considered in Committee it was agreed by your Lordships by a majority of only 10 votes. At that stage it was not possible to table amendments, only to accept or reject the clause, and, although some of us may regard the new clause as unsatisfactory, it has been accepted by the Committee and therefore the appropriate step now is to endeavour to seek amendments.
§ At the present time education authorities can operate their own vehicles without the formalities attaching to public service vehicles, provided that the children are not charged a fare. There is, however, the provision in Section 12 of the Education (Miscellaneous Provisions) Act of 1953 which makes it possible for pupils not entitled to free school transport to be carried on the local education authority vehicle and charged a fare, except in Scotland where, of course, they have to be carried free. The relaxation applies only to pupils, but the consent of the traffic commissioners is required. If persons other than pupils are to be carried, at present the vehicle must be licensed as a public service vehicle and a road service licence is required. That is the law as it is at present.1669
§ Under subsection (1)(a) of the new clause this provision is extended to the general public, as opposed to pupils only, but a road service licence, rather than a consent, as in the Act I referred to, will be required. Although there are objectionable elements in this arrangement, the change envisaged from the existing practice is relatively minor and therefore no amendment to paragraph (a) is suggested. However, in paragraph (b) a very different situation is proposed, for the paragraph would permit these non-public service vehicles to provide a service where a road service licence would be required. It is submitted that before such freedom is given, the local education authorities, whose responsibilities, your Lordships will agree, are in a totally different field, should at the very least be required to operate under the same conditions as the professional PSV operator.
§ There will be some safety aspects to be dealt with in subsequent amendments, but I will not deal with those at this stage. However, there is one area where it may not be thought to be unreasonable to impose special conditions for operations during school holidays, as opposed to those during term time. This relates to the maintenance of the services provided during term time. If they have to be discontinued during the school holidays, then term time passengers are deprived of continuity of service. Moreover, if it is reasonable to permit people to travel on a particular vehicle at one time, it seems illogical to deny them the same opportunity at another. In other words, the service should be provided in term and out of term.
§ In all these circumstances, it is suggested that a reasonable compromise would be to allow the continuance of the term time service during the school holidays but to relate services of any other type to the normal PSV law. There are some misgivings about even this compromise. But because of our desire to ensure that the public receive the best possible service, this point is conceded. We feel that to go beyond it would be a retrograde step. Therefore, I beg to move this amendment to Clause 30.
§ 6.51 p.m.
§ Lord TEVIOT
My Lords, again I find it necessary to support the noble 1670 Lord, Lord Underhill. This amendment touches only the tip of the iceberg. I think Hansard will prove that in Committee we discussed this matter at great length and that many of us in all parts of the House were very worried about this new clause and the way it was drafted. The noble Lord's amendment seeks to improve the effects this Bill will have in practice, when it comes to the overall provisions of public service.
It seems to me that the essence of the amendment is road safety, although on a human level there is a compromise aimed at improving public services. I do not really like this compromise because it may impinge on safety, but I have to recognise that my feelings in this respect go beyond the amendment now being debated.
Turning specifically to the amendment, I recognise the logic of permitting services throughout the year on vehicles which, in the normal course of events, are intended to carry school children during the school term. If I must accept the basis of this operation without the safeguards which I would prefer to see, I must logically accept the carriage of the adult fare-paying passengers, not only during term time but at other times of the year. A service which is irregular in this respect will hardly find favour with the public.
Therefore, this far one can go: that if vehicles owned by local education authorities are to be given carte blanche to carry the public, then it must be that they should conform with the safety standards imposed, with very good reason, on the professional carriers in this field. I am sure that this is a sensible and practical improvement to the Bill which we are now considering, and I urge the Government to accept it.
§ Lord BELLWIN
My Lords, I made it clear when I moved this clause in Committee that it was part of our policy to keep open as many ways as possible of meeting people's varied transport needs and that the clause had been drafted to provide the maximum flexibility. This amendment runs counter to that policy. It would limit the use which local authorities can make of the school buses that they own.
Of course a school bus will often not be available during the school day to carry 1671 ordinary fare-paying passengers; it will be in use for educational purposes. However, it would be wrong to exclude the possibility. Would it not be wasteful in the extreme to have a vehicle parked, unused all day, at a school while local people lacked, say, the shopping service that it could provide for them?
The requirement for road service licences and the need to fit in with normal school services would prevent any abuse of this power, even if the normal good sense of local authorities did not. I do not accept that the exemptions from quality licensing, exemptions which are justifiable on their merits, do not warrant curbs on the times of the day at which these school buses can provide services. I do not know that there is much more that I can add to this point. When my noble friend Lord Teviot, with, as I said earlier today, his considerable experience and knowledge, expresses concern, then I, too, must be concerned. But in this instance, at least, I have to say that we cannot accept the amendment.
§ Lord LUCAS of CH1LWORTH
My Lords, I am surprised that my noble friend takes such a firm view at this stage, because it seems to me that there is some merit in what the noble Lord, Lord Underfill!, has said. I accept that the reason for the clause is to provide the maximum flexibility. That is quite laudable, so far as it goes. However, the safety factor seems to me to have been almost totally ignored. This is the point which my noble friend Lord Teviot mentioned.
I cannot see that it is reasonable that a vehicle which belongs to a certain person should, willy-nilly, be put to a purpose other than that for which it was originally intended; namely, for the use of the school on what one might call school activities. School activities normally finish at the end of term. Then this vehicle is used in a different area. In practical terms, there will not be the same constraints upon the serviceability of the vehicle during that period because the degree of responsibility will have been removed.
I do not want to impinge upon the next amendment which appears on the Marshalled List, but it seems to me that a 1672 school-owned bus, used for school purposes, has the kind of responsibility attached to it that a sensible head teacher may apply. During the holidays, who is going to be in control? I suspect that probably nobody at all is going to be in control, and this is where I think that we ought to have some safeguards. Unless my noble friend can produce a rather more telling argument, my inclination is a little towards the mover of the amendment and my noble friend Lord Teviot.
§ Lord BELLWIN
My Lords, by leave of the House, may I comment upon the safety aspect which I accept ought, perhaps, to be more fully covered. But may I add that I had intended to go in a little more detail into that point on Amendment No. 30. Therefore, I will try to tie the two together by saying that I appreciate that noble Lords have shown concern for the safety of operation of these vehicles. I can assure them that both I and my ministerial colleagues have thought very deeply about this subject, which we do not take lightly. However, we continue to be of the view that I expressed in Committee; namely, that local authorities are fully responsible bodies and can be trusted to maintain their vehicles properly. It is for them to decide what qualifications to require of their drivers.
Let us not forget that a number of local education authorities run their own school buses and that neither PSV licensing nor PSV driver's licensing applies to them. This state of affairs has continued for decades. The Labour Governments of the past have been content to let it so continue. We are introducing no new exemptions. All we are doing is widening the use that can be made of the vehicles.
Even if our best hopes are fulfilled, the number of adults carried on them will be a small fraction of the numbers of pupils. The modest extension proposed in the Bill attracts amendments to bring in all the provisions of quality licensing, yet there is no suggestion that they are required when the only people being carried are pupils, for whom free transport is being provided. I do not think that this is very logical. I think that our purpose, which is to open up as many ways as possible of meeting people's varied transport needs, will best be served by retaining the present exemptions in the new context.
1673 Of course I should have to respond to my noble friend Lord Lucas of Chilworth that these buses will be run by the education authority and not by the school. That is a very important point. Finally, on this point of safety, may I say that the annual testing under the roadworthiness directive will apply to these vehicles as to all public service vehicles and therefore the quality control will be greater and not less in the future.
§ Lord UNDERHILL
My Lords, I must deal with this amendment in relation to the clause as it stands, not as I hope it will be after we have dealt with the next amendment, which no doubt will be taken after we have adjourned. As it is at present all the safety provisions are being excluded, yet the proposal under (b) is to run a full bus service. Therefore I must ignore the fact that I shall be moving amendments on a safety provision in a later clause because I must not assume that the House will accept them, although I think if your Lordships take a reasonable view they will be carried. Therefore this amendment endeavours to get over the problem by suggesting that what should be run out of school time is the same sort of service as it has been suggested under (a) should be run during school time.
The noble Lord says that he wants flexibility, which is all right but not when we are playing with safety provisions. It becomes too haphazard; it is flexibility merely for the sake of it. Therefore, we could not possibly agree to withdraw our amendment but, as we are going to deal with the whole subject of safety provisions after the adjournment, it is my intention not to divide the House on this amendment so that we may get on with the safety provisions when we return, which I think is the most important matter in this clause.
§ On Question, amendment negatived.
§ Lord DENHAM
My Lords, I think that, as the noble Lord, Lord Underhill, has indicated, this would be a convenient moment for the House to adjourn. I beg to move that the House do now adjourn until 8 p.m.
§ [The sitting was suspended from 7.3 p.m. to 8 p.m.].
§ The DEPUTY CHAIRMAN of COMMITTEES (Lord Nugent of Guildford)
My Lords, Amendment No. 30 preempts Amendments Nos. 31 and 32 and therefore if it is agreed to I can call neither Amendment No. 31 nor Amendment No. 32.
Lord UNDERHILL moved Amendment No. 30:
Page 29, leave out lines 10 to 14.
§ The noble Lord said: My Lords, I will speak to, and, if I may, move Amendment No. 32 as well as Amendment No. 30. I have already referred to the fact that when the new clause was discussed in Committee it was carried by a majority of only 10 votes. I believe that was because there was considerable concern among your Lordships as to the safety aspects of these new provisions. That is the purpose of this amendment. If I may say so without being flippant, I only wish there was loudspeaker contact into all the rooms in your Lordships' House because otherwise very few people will hear what we have to say on what I believe is possibly the most important clause of this Bill. It does affect the question of security and safety.
§ I would draw your Lordships' attention to the latter part, the last five lines of subsection (1). There it is suggested that certain provisions of the 1960 Act and of this Bill when it becomes an Act shall not apply to the services now proposed in paragraph (a) and paragraph (b). Let me stress the provisions that are to be excluded. There is Section 144 of the 1960 Act: this is the necessity for the driver to have a public service vehicle driver's licence. That is to be excluded. There are Sections 15, 16, 17 and 18 of this current Bill; these relate to the powers and facilities for the inspection of passenger transport vehicles. That is to be excluded. The need for a PSV to have a certificate of initial fitness is to be excluded. The power of a certifying officer or PSV examiner to prohibit driving of unfit public service vehicles is to be excluded. The necessity to have a PSV operator's licence is to be excluded. All these safety provisions are to be excluded under this Bill.
§ I would ask your Lordships why, because a vehicle is owned by a local educa- 1675 tional authority, it is to be considered proper that a driver of a school bus need not have a PSV driver's licence. I know it may be argued that this has never been a requirement where the bus has been used only for school transport. Speaking for myself, I believe that is more the pity; I believe it should have been required. But now that the school bus vehicles are to be used as stage service vehicles, as local buses, surely the same conditions that apply to all other PSV vehicles must apply in these cases. I would like to ask the noble Lord the Minister how the exclusion of these provisions can possibly be justified. We are not discussing whether or not the new experiments, the innovations, should take place. We are talking about the safety provisions for these innovations.
The noble Lord the Minister said at Committee stage:
So long as we are satisfied about the safety aspects the amendment should be accepted ".
§ That was the new clause. The new clause was accepted in Committee, but I honestly believe that many noble Lords supported this because they did not want to stop this new experiment. So on a reasonably large vote it was carried by only 10 votes. I believe the majority of noble Lords will take the view that I do, if only they hear the case, and unfortunately there are only a few people in the Chamber. But I hope the noble Lord the Ministers will recognise the validity of this case and support it. There is now the opportunity to deal solely with the question of safety. We can put aside any criticism of the scheme. We are dealing solely with safety aspects and we have an opportunity to put this matter right.
§ Your Lordships may query why we have two amendments. Perhaps I may explain. The first amendment would ensure that the five safety provisions shall be restored and be required for the services to be operated under both paragraphs (a) and (b); that is, both when the school bus is carrying passengers other than pupils and also when it is being used as a proper bus service. There may be some noble Lords who may consider that, as paragraph (a) is only an extension of the present school bus transport so that passengers other than pupils can be carried, therefore the safety provisions need not be introduced. 1676 Personally I hope that very few noble Lords will take that view. But because we have two amendments those noble Lords who take that view will have the opportunity to support the second amendment, the purpose of which is to confine the desired safety provisions solely to the normal bus service to be operated under paragraph (b).
§ Whatever your Lordships may feel about paragraph (a), surely there can be no noble Lord really hearing the case who can possibly justify a bus running as a full service bus without having these five safety provisions that apply to any other bus running in the whole of the United Kingdom. How that can be justified I just cannot see. I sincerely hope that support will be given to the first amendment, No. 30. But I would urge as strongly as I possibly can that any noble Lord who feels that he cannot support No. 30 because it embraces both schemes should give approval to Amendment No. 32.
§ In conclusion, I believe this House cannot tolerate any public service vehicle running on our roads without the safety provisions which the Government recognise are essential for all other stage bus vehicles, in fact all public service vehicles. Why they spoil their own case for this extension of the school bus by excluding the safety provisions I simply cannot understand. If the noble Lord the Minister cannot agree with the safety provisions being extended to the proposals under paragraph (a), I hope he will agree to them being extended under our second amendment, so that public service vehicles, school buses that are being used as a bus service, shall have to fulfil the same safety provisions as every other vehicle running on a stage bus service. I beg to move.
§ Lord TEVIOT
My Lords, I am very grateful to the noble Lord, Lord Underhill, for expressing all his doubts and for putting forward this amendment, which I think is very apt and very right. I am very grateful for the adjournment, because I have been spending part of it getting advice from the experts. On the question of safety, I would have thought the local educational authorities might be able to manage to get their vehicles through the annual testing, but I ask my noble 1677 friend this question: Do these local education authorities have adequate maintenance facilities for looking after these vehicles, which PSV operators do have. That is my first question. Also these vehicles used by local education authorities are probably perfectly adequate for running two journeys a day. They are obviously not the most modern and best vehicles. Looking at those vehicles, if I had to work a full shift on them, I would find the whole thing very unpleasant; as a driver I would not enjoy it at all. If it were, for example, only twice a day and perhaps I did something else and was a part-time driver, I would have to accept it. However, if I had to do eight hours straight through on some of these vehicles, it would be a different matter. However, that is a personal opinion.
There are one or two other points which are connected with this matter. I do not think that local education authorities have people knowledgeable in road transport law, and I do not think that I am out of order in making that comment. Bus companies and so on do have people with knowledge. If they were operating these services, perhaps the local education authorities would have to employ a man who was proficient in road transport law. They might have to pay him a great salary and provide him with accommodation and a secretary, and they might have to provide him with one or two personal assistants. That is against the principle of the Bill because they would be adding to the cost, which is a most important consideration.
There is no point in going through the other matters raised by the noble Lord, Lord Underhill, except as regards the PSVs. I must stress that if one has a PSV driver system one cannot allow other people who do not have a PSV driver licence to operate normal services—it just does not hold water.
§ Lord LUCAS of CHILWORTH
My Lords, before I comment upon Lord Underbill's amendment, I feel that your Lordships should perhaps take particular note of what is happening in the Bill. I have not been in your Lordships' House very long, but I have seen marked changes in the way in which we conduct our affairs. Perhaps one of the more distressing features that seems to have crept in over the 1678 past few years is that of treating Report stage as an extension of Committee stage.
There was some comment earlier this afternoon between my noble friend and the noble Lord, Lord Mishcon, as to who was in order and who was not in order. I do not think that your Lordships' House is always very worried about that aspect of our proceedings if we are getting on with the business in hand. I really wonder whether we are getting on with the business in hand or turning over old ground again. After all, we had a debate on this particular topic at Committee stage and the matter was dealt with by 10 votes. If the matter was not fully discussed then, that perhaps was the fault of, and to the disadvantage of, those who were so engaged. I find that coming back to this kind of thing time and time again does not advance the cause.
The noble Lord, Lord Underhill, moved his amendment with a good deal of vigour—if I may say so—which comes, I am sure, from his feeling that he is absolutely right on this occasion. But suppose the discussion goes against him? Will he say that because of the thinness of numbers in the House on a Thursday night he will leave this matter for Third Reading, and shall we then have this whole matter brought up again in a fortnight's time? So I would ask the noble Lord opposite to take note—if I said, take heed, I am sure that he would understand how I mean those words—of what I am saying within this context.
The noble Lord has put the case for the amendment pretty forcefully. I think that perhaps the most forceful point he made was when he said that local education authorities had, for many years past, under the existing legislation, been exempt from the provisions and he went on to say, "More is the pity". He then described how he thought that this extension of that exemption was even worse. In that respect I have sympathy with him. If perhaps we had this matter in a different kind of Bill and altered the existing arrangements, then I think that I would have more sympathy with him. I share sympathy with him in that it certainly seems to be wrong that a certain group of people, a certain body, by virtue of an existing exemption, may now engage in something new, claiming that exemption which would be to a com- 1679 mercial advantage over and above those other people who may be so engaged. I think that that is probably where I cease to be in sympathy with the noble Lord.
Most of my life has been spent in that area of the transport industry which I suspect is somewhat rougher than the passenger carrying business. We would accept the commercial rubs with some equanimity. This may well be a commercial rub which the other passenger operating people may have to wear.
I think that the safety aspect is another matter, and that is why I do not like it in this Bill. If, under present legislation, we have to require the driver of a passenger carrying vehicle to have a PSV licence then, in my book, everybody who does this should have a PSV licence. I do not think that it is very fair that we should require one group of—and I shall use the word—"workpeople" to have a certification of competence to do a certain job and on the other hand say: No, these people, because they are employed, by, or with or under the guise of, a local education authority, may be excluded from having that certificate of competence—in this case the PSV licence. That is where I would ask my noble friend to give us some assurance that there is no unfairness.
I think that the last point I should like to make is concerned with the kind of people who will run the local education authority buses. I do not accept the argument of my noble friend Lord Teviot regarding the local education authority garages and servicing places. They are usually common to other facilities in local authorities which are usually to a very high standard. I do not accept the argument of my noble friend Lord Teviot that the vehicles are necessarily older or of a lower serviceability. My experience as a garage man repairing coaches—admittedly not buses—is that some of them are not always perhaps to the highest standards. I see no reason why local education authority buses should be any lower than that.
However, if the education authority gives authority to, say, the geography master to take the schoolchildren on a field trip in the coach or bus during 1680 school term, or purely on a school excursion under certain controlled circumstances, why should that geography master, if given permission on the one hand, not run an excursion for the teacher/parent association—which may or may not be fare-paying—to the seaside during the school holidays? He is not as competent—indeed, in no way can he be as competent—as the man with the PSV licence. I think that it is on those grounds that I have sympathy at this time with what the noble Lord, Lord Underhill, is saying. Having said that, I think that the amendment is misplaced, in the wrong Bill. As I said right at the beginning, now that we have discussed it in Committee, I think that it is wrong that we should go over all this ground again.
§ 8.20 p.m.
§ Lord BELLWIN
My Lords, I am grateful for the observations made all round the House on this matter, because I entirely accept that this is a very important matter. The fact that it was so discussed last time and was so decided upon covers two aspects. On the one hand, it covers a point made, if I may say so, by my noble friend Lord Lucas just now; that is, do we, indeed, have time to take the same argument and go over it all again? On the other hand, the point which the noble Lord, Lord Underhill, made about the closeness of it is not at all irrelevant, and I accept that as such.
But it is so easy when talking about safety to become emotive, to make a case sound so dramatically right which, in fact may not be right. One has only to say in the context of almost anything, "How dare we put anything into jeopardy where safety is involved!", and, of course, everyone will immediately nod their heads and say, "Yes, that is so". But then one has to look at exactly what it is we are talking about.
First, I want to deal with one of the points made by my noble friend Lord Teviot. He asked whether local education authorities have adequate maintenance facilities. In some cases they will have, and in other cases they may not. Surely whether they have such facilities themselves is not the point. I should have thought the point was whether they have access to maintenance facilities, and everyone has that. If you do not do the work your- 1681 self, you give it to someone else to do. Probably the private sector does it every bit as well. With great respect, I do not think that that would deter me too much when being concerned about the safety aspect.
For myself, in all that has been said I think that there is a greater strength of argument as regards the requirements for drivers' licensing. I am prepared to say that I should like to take that aspect away and talk to my colleagues about it. I believe that there is a point there. Whether or not it is a point of sufficient value, of sufficient weight, in the context of the totality of this scheme, at this stage I do not know. However, I think that it is sufficiently worth while for me to say, as I have, that I will take it away and we shall have a talk about it.
Turning to the amendment as such, if one takes away all the emotive aspects of it, I think that it is really illogical in a way that perhaps the previous amendments were not. If quality controls are essential in the interests of the travelling public, why are they not essential when the public are being carried along with pupils going to and from school? In my own mind I am not satisfied that the noble Lord, Lord Underhill, has made a great case as to that.
I explained earlier when we discussed other amendments why we did not wish to restrict the power to carry adults in such vehicles at certain times and seasons, and it follows that any restrictions of the exceptions from quality controls to times when the vehicle is being used to carry pupils is also unacceptable. We are coming round to what the Bill is all about. I am afraid that this amendment is contrary to the Government's clear and simple policy, to widen opportunities for travel and to maintain only restrictions that are essential in the public interest. That is what we are about. Yes, we can be diverted and, yes, we have to listen properly to the concerns that are raised, especially where safety is at issue.
However, I am not at all deterred, as is the noble Lord, Lord Underhill, by the safety qualifications. Perhaps with the exclusion of the drivers' licensing area, about which I want to go further, I do not think that we need be unnecessarily disturbed; certainly I am not. Therefore, 1682 while recognising the concern and all that goes with it, and bearing in mind that we have been over this ground before, I have to advise the House to resist the amendment.
§ Lord UNDERHILL
My Lords, may I first deal with the comments made by the noble Lord, Lord Lucas of Chilworth. I am relatively new to this House, but I am certain that the procedure that we have adopted on this clause is proper. When we debated this in Committee, we debated an amendment to introduce a new clause. We had no chance to put down amendments on the safety provisions. The whole matter was discussed as a new clause, a new scheme, and a new innovation. Admittedly, in the debate from this Dispatch Box we put certain queries and reservations about safety. However, the principle before the Committee was the new clause, the new experiment.
Tonight we are not arguing about the new clause or the new experiment. Now we are considering an amendment to a new clause which was the subject of a Government amendment in Committee. With all due respect to noble Lords who have been here longer than I have, I would suggest that this is a proper way in which to use a Report stage; otherwise it means that we have no opportunity at all to amend in detail a Government amendment introducing a whole new clause which could be of a sweeping character. Therefore, I fully justify what we have done on this.
In passing, I ought to say that where my noble friends and I have been defeated on a Division during the Committee stage, noble Lords will note that we have not brought those amendments forward here. In the main we have brought forward amendments on issues where the Government Ministers said that they would like to take a look at various matters. Again, I believe that that is the right way to treat a Report stage. I am saying these things only for the record in order to justify the attitude that we have adopted on these various amendments.
I appreciate what the noble Lord, Lord Lucas, has said, but he said that it is misplaced, in the wrong Bill. Where could we deal with what we regard as a point that is wrong in a new clause in the Bill, except to deal with it in the Bill?
1683 Otherwise it will be approved, and matters with which we disagree will be approved without any opposition. Therefore, we must bring forward the amendment. I hope that the noble Lord, Lord Bellwin, did not think that I was too emotional. If I am emotional, perhaps I should be very pleased because, frankly, safety provisions are a matter of which the whole country must take note. Whether we want further experiments, innovations or ideas, surely we shall not introduce them without keeping safety provisions in mind, otherwise public transport will be in the devil of a mess. Therefore, if any of us feels emotional on safety provisions, I believe that he or she is justified in his or her feelings.
The noble Lord also said that it is illogical. In the first amendment I said that we should have these safety provisions for both paragraph (a) and paragraph (b). It is my personal view that it might have been wise, even when the school bus was only carrying pupils, for the driver to be competent. However, that is a personal view and does not face us on the Bill. We are now arguing that we should have safety provisions for the proposals actually contained in the Bill. I accept that the Bill proposes wider opportunities. But I say to the Minister, for heaven's sake, do not have wider opportunities at the risk of public safety, because that is what is being proposed. It is being suggested that we cannot have wider opportunities and still have safety provisions. But I deny that. Why cannot the Government say, "Yes, the Committee agreed that we should have this new scheme, but we recognise that the safety provisions ought to apply"? It will not upset the scheme in any way; therefore, why not do it? What is good for PSV vehicles in one direction is surely good for PSV vehicles being used in this scheme, and the most telling point is that under paragraph (b) the school buses owned by local authorities could be used for a full local bus stage service.
But what are we telling the commissioners? After all, they have to apply for a road service licence, and that is what I think the Minister said when we last debated this matter. We are telling the commissioners—I have been told that we must not put restrictions on the commissioners, but in this case we shall 1684 be doing so—that any other person who applies for a road service licence must comply with the PSV safety provisions that is, except this applicant, and he can run a stage bus service without any PSV safety provisions. I am not the one who is being illogical; the Government are being completely illogical over this.
I do not want to divide the House if I can avoid it. While I believe, therefore, that the other provisions are important, I am prepared to withdraw the amendment in view of the assurance the Minister has given that they will examine this question of the PSV driver. But I wish to make it quite clear that if the Government do not move on this, then, whether or not I shall be misusing the procedure of the Third Reading, I shad bring forward an amendment on this issue at that stage, for this House has a right to demand that any new scheme introduced by the Government must have safety provisions within it. On that basis, I will withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord BELLWIN moved Amendment No. 31:
Page 29, line 12, leave out from (" to ") to end of line 13 and insert (" a school bus belonging to a local education authority in the course of its use by the ").
§ The noble Lord said: My Lords, I spoke to this with Amendment No. 28. I beg to move.
§ On Question, amendment agreed to. [Amendment No. 32 not moved.]
§ 8.32 p.m.
Lord UNDERHILL moved Amendment No. 33:
Page 29, line 29, at end insert (" to operate within the area of the local education authority concerned ").
§ The noble Lord said: My Lords, I asked in Committee whether there would be any limitation on the area in which a school bus would be entitled under the Bill to operate as a full bus service. The Minister has kindly written to me on the matter, but despite what he says—and he has put up quite a good case—I am moving the amendment because it is important that we should be quite clear that we do not want local education authorities apply- 1685 ing to run bus services all over the place, well away from their own areas, and I am giving the Minister an opportunity to put his viewpoint on this issue. I beg to move.
§ Lord BELLWIN
My Lords, I agree that local education authorities will not normally want to provide bus services in other authorities' areas, and the Government are not going to encourage them to do so. We are thinking, in the whole of this clause, of local education authorities and transport planning departments working very closely together and deploying school buses where a local transport need can conveniently be met by them. Of course, this will usually be in the area of the education authority, but I do not see why services which cross the boundaries between one authority and another—boundaries which are not always natural ones for transport purposes—should be prevented.
I do not think the fears expressed by the noble Lord about invasions by one authority of another's territory are well founded. We must remember that road service licences will be required, and the road service licence procedure allows sufficient scope for the views of county councils to be made known and taken into account.
I do not want to say a great deal more about this. As the noble Lord said, I have been in some correspondence with him on the subject. I recognise the point he makes—fairly, as he makes most points—but I am not unduly concerned about this and it is an area with which I am not wholly unfamiliar. I am not too disturbed about this and I would not want to accept the amendment.
§ Lord UNDERHILL
My Lords, I wanted to give the Minister an opportunity to make that statement. That is important because the traffic commissioners will have to consider applications and they should appreciate that it is not the wish of this House that education authorities should make applications outside their areas. In view of the noble Lord's remarks, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1686
Lord BELLWIN moved Amendment No. 34.
Page 29, line 31, leave out (" belonging to that authority ")
§ The noble Lord said: My Lords, I spoke to this with Amendment No. 28, and I therefore beg to move.
§ Clause 31 [Use of certain vehicles by educational and other bodies]:
§ 8.35 p.m.
Lord UNDERHILL moved Amendment No. 35:
Page 30, line 22, leave out paragraph (a).
§ The noble Lord said: My Lords, this deals with the previous provision, which was carried in Committee, with regard to the extension of the community bus scheme for large vehicles and, at the risk of repeating what I said in the previous debate, I must reiterate that nobody wants to inhibit the scheme which was agreed at that stage. To make myself perfectly clear, I must emphasise again that in Committee we were discussing a new scheme and had no opportunity to amend the Government's proposals, but tonight we have, and I what am proposing in this amendment is that by leaving out paragraph (a) we shall ensure that these vehicles have drivers with PSV licences.
§ Nobody knows what will be the size of these vehicles. There must be a certain minimum, but a charitable or educational body might give a double-decker. Even if it is being used for charitable purposes, surely we are not so charitable as to permit a vehicle of that size to be taken on the road without the driver being qualified. I am therefore really asking for the same as I asked on the previous amendment—dealing with the education bus, as it were—but with one difference. I am not here talking of other safety provisions, as I realise that it may be possible to let those go in this case because we are dealing with vehicles which will be used only occasionally. But from the point of view of those who will drive those vehicles, this is a matter of the utmost importance.
§ Can we permit a large vehicle to be used for carrying passengers without considering the competence of the driver? Frankly, I am thinking not just of the people on 1687 the bus—they are important enough—but of all the other road users, the pedestrians and motorists and so on. As the Minister has agreed to reconsider the other question, I hope he is prepared on this issue to give an assurance that this matter will be looked at. Otherwise we shall be carrying the goodwill of this House a little too far in our readiness to agree to an innovation to help charitable and educational bodies, while at the same time saying, "We do not care whether or not the driver is qualified."
§ Lord TEVIOT
My Lords, is the noble Lord, Lord Underhill, aware when he talks of the possibility of a double-decker vehicle being driven, that it might be one of those old double-deckers with a crash gearbox? It might not last for many years. When I was driving, which was not all that many years ago, I had a licence to drive all types. Those who came from London Transport were not qualified to drive the old type of bus I was driving because they were used to driving buses with pre-select gearboxes. What I say might apply not only to double-deckers. We might have people with PSV licences coming across these old vehicles for the first time in their lives. I am sure that some noble Lords will remember driving cars in which, to chsnge gear, they had to double-declutch—rather different from the smart syncromesh gearboxes we have now. Someone who has had no relevant experience might be asked to drive a double-decker, and he might have to change up, which is not very difficult, but then change down, with a standing load. He might be starting off on a hill where he has to crash gear from first to second. I think that perhaps I have said enough, and I believe that the noble Lord, Lord Underhill, has made his point.
§ Lord BELLWIN
My Lords, it is very difficult to argue against such technical expertise. In fact I have before me a number of arguments against what the noble Lord, Lord Underhill, has said. I believe that they are very strong arguments, but it would be rather difficult for me to deploy them at this moment, in view of the undertaking that I gave on the previous amendment as regard drivers' licensing. Therefore in this case, as in the earlier one, I must undertake to take the amendment away and consider it in 1688 the same context. If there is a case at all on the earlier amendment—and I certainly do not acknowledge that there is—there is far less of a case on this issue, for reasons that I could deploy but in regard to which there is no purpose in so doing in view of the fact that I am undertaking to take away the amendment and discuss it with my colleagues.
§ Lord UNDERHILL
My Lords, in view of that readiness to consider this amendment along with the previous amendment, I shall beg leave to withdraw the amendment. But make no mistake about it, my Lords, we on these Benches are so concerned with the safety provision that if, after reflection and after the Minister has discussed the matter with his colleagues, the Government feel that they can do nothing about it, we shall use the Third Reading in its right way and will bring forward amendments on this matter and on that relating to the school system, to ensure that for the good of the public of this country the safety provisions are introduced. With those words, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.43 p.m.
Lord UNDERHILL moved Amendment No. 36:
Page 30, line 33, after ("small") insert ("or large").
§ The noble Lord said: My Lords, this amendment relates to the same clause as did the last amendment, and once again I remind the House that we believe that we have a right to try to amend the new clause that was introduced on the previous occasion. In discussion in Committee on the new clause I drew attention to what appeared to be an anomaly. Permits will be required to run these large vehicles by charitable or educational bodies. The proposed permits for large passenger vehicles to be used under the new clause may, according to the Bill, be granted by the designated bodies, which the Minister told us will in all probability be the local authorities.
§ The clause also proposes that the traffic commissioners shall continue to be entitled to issue permits for small—note the word "small"—passenger vehicles under the Minibus Act. Designated 1689 bodies (which most likely will be the local authorities) shall be entitled to issue permits for small passenger-carrying vehicles under the Minibus Act, but shall also be entitled to issue permits for large passenger-carrying vehicles under the new clause. In fact only the designated bodies will have the right to issue the permits for the large passenger-carrying vehicles.
§ I suggest that this surely is an anomaly, and in relation to the standing of the traffic commissioners it can hardly be justified. The amendment would enable permits for small passenger-carrying vehicles to be issued by both the designated bodies and the traffic commissioners; in other words, to restore the position as it was prior to the Bill being presented. But permits for the large passenger-carrying vehicles shall be issued only by traffic commissioners.
§ This seems to be the appropriate way to handle the question of permits. To leave the traffic commissioners, who are very important people, solely with the responsibility of issuing permits for the small passenger-carrying vehicles under the terms of the clause, but for the designated bodies to be the only bodies entitled to issue permits for the large passenger-carrying vehicles, seems to be the wrong way to go about it, and I hope that the Government will accept that this is an anomaly which should be put right. I beg to move.
§ Lord BELLWIN
My Lords I do not consider that this is an anomaly. However, I appreciate the noble Lord's reasons for moving the amendment. There are indeed arguments in favour of giving the authority to grant permits for larger vehicles to the traffic commissioners. There are also arguments in favour of restricting this extension of the Minibus Act to schemes which have a particular local value and which the local authority have approved. The most direct way of doing this is to restrict the authority to grant permits to local authorities designated for the purpose. Without making a meal of this matter, on balance this is what we prefer.
§ Lord UNDERHILL
My Lords, in view of the firm attitude of the Government, I will not press the issue to a Division, but we do not propose to withdraw the amendment.
§ On Question, amendment negatived.
§ [Amendment No. 37 not moved.]
§ Clause 33 [Amendment of Transport (London) Act 1969):
§ Lord BELLWIN moved Amendment No. 38:
Page 33, leave out lines 27 to 33 and insert—
("(3) If on an appeal under this section the High Court is of opinion that the decision appealed against was erroneous in point of law, it shall remit the matter to the Minister with the opinion of the court for rehearing and determination by him.").
§ [Amendment No. 39 not moved.]
§ Clause 34 [Abolition of licensing of conductors of public service vehicles]:
§ 8.46 p.m.
Lord TEVIOT moved Amendment No. 39A:
Page 33, line 43, at end insert ("; but it shall only cease to have effect if there is only a driver in charge of the bus ").
§ The noble Lord said: My Lords, I beg to move this amendment. I apologise to the House and to my noble friend who is to answer for the Government for introducing the amendment rather late, but I point out that this is a completely new amendment. During consideration at Committee stage, of the Question, Whether the clause shall stand part, the noble Lord, Lord Underhill drew attention to the matter of conductors, whereas during the 110 hours spent on the Bill in the other place they did not see fit to discuss it. However, not to worry; this gives us something fresh to do. My amendment is concerned with conductors' licences. I see no point in issuing a conductor's licence to a man who also has a driver's licence.
When my noble friend replied to the comments of the noble Lord, Lord Underhill, and myself during consideration of whether the clause shall stand part he said, on 19th May, as reported at column 593 of the Official Report:
This clause removes the requirement in Section 144 of the Road Traffic Act 1960 that public service vehicle conductors be licensed. We think that this is now an anachronistic function which the licensing authorities have performed since the controls were introduced on PSV
operations in the Road Traffic Act 1930, and that it should now be abolished. The need for statutory screening of conductors to ensure that operators could employ only those licensed by virtue of physical fitness and good character might have been defensible in the early years, but nowadays conductors' suitability should properly be a matter for their employers or prospective employers, as it is in almost all other kinds of work. In fact, over the past decade only a handful of applications have been refused or licences revoked ".
§ I have no quarrel at all with that. My noble friend pointed that out. But as in many other matters, the conductor's badge means rather more than that. If my noble friend can tell me that the conductor will still be in charge of the bus, will still have the same rights to control it with regard to the public, and if necessary will be able to call help, and that his rights will be totally unimpaired, then I do not think that I would worry to much. I wonder whether my noble friend can give that assurance. Perhaps the noble Lord, Lord Underhill, would not be quite so happy with even that pronouncement; but one could develop the matter along that line.
§ Going back to that little debate which we had on the Question, Whether the clause shall stand part?, which did not take very long but was very apt, I pointed out then that the conductor has rather a lot of responsibility, and that when the public come on the bus and see his badge they recognise his authority. He has authority over the public that come on to his bus. Also, the badge is really quite useful in that it enables members of the public, if they find themselves at difference with the conductor, to take his number. In that way they get the right conductor; but that is not really the point at issue. Late at night, or at times when, let us say, people are not altogether sober, or there are ugly situations, that badge provides the conductor with some form of security, as it does other members of the public on that bus. They feel there is somebody responsible in charge.
§ I shall not go on for very much longer at this stage because on this occasion, for the first time today, I have a right of reply, but I can foresee that there could be members of the public who, if they now see a conductor without a badge, will hurl the most frightful abuse at him and will say, "You have not even got a licence; you have no authority". It could put 1692 him in a very embarrassing position indeed. Also, people's manners to their fellows have altered. I think all of us here were brought up to remember that one never said anything nasty to anybody who came from abroad, or anybody who had a different accent from oneself. If one did, it was thought terribly "down the road", and you certainly got slapped down; but I am afraid that people do not behave like that now, and one can foresee the most horrible situations. This is quite a different aspect, and I am quite sure that it is rather difficult for my noble friend to reply on this, but I have given him a lot of material, and I should like him to look at this amendment very thoroughly. I beg to move.
My Lords, I am puzzled by my noble friend's amendment. As I understand it, any bus company is perfectly free to dress up their conductors in the uniforms of SS generals, if they want to; and I cannot really understand why the licensing of bus conductors necessarily affects the dress that he wears.
§ Lord LLOYD of KILGERRAN
My Lords, perhaps I may also say that I am very surprised that the noble Lord, Lord Teviot, with his great experience in these matters and who knows so much about rowdy situations on buses, should think that such a badge is so important. If it is important in a particular area where there is trouble, surely the operator can supply him with that badge. I have found this very difficult to understand. When this matter was raised on the Question, Whether the clause shall stand part?, the noble Lord, Lord Bellwin, indicated that he was quite surprised at some of the points made by the noble Lord, Lord Underhill. Of course, I have to be very careful because the noble Lord, Lord Teviot, has the right to reply on this matter, and perhaps he has not got the experience of replying that the noble Lord, Lord Bellwin, has in these matters. But it seems to me that it is an interesting point. It is delightful to hear the noble Lord, Lord Teviot, but I should have thought that this was not a matter which required much attention in your Lordships' House.
§ Lord UNDERHILL
My Lords, I am sorry but I must disagree with the last two 1693 speakers and support the noble Lord, Lord Teviot, and I will tell your Lordships why. In an earlier debate the noble Lord the Minister emphasised consultation with the experts. This morning I consulted the experts, the people who do the job—the Transport and General Workers' Union, whose men want this. Why do they want it? It is for the reasons which I outlined in my speech in Committee. They believe it is a partial protection for their members. They also believe it is a partial protection for the public. I saw a letter in the Guardian only the other day written by a member of the public. He was not complaining about the conductor, but he was able to refer to a particular incident because of the conductor's number.
It is not good enough to say that any company can issue a badge, because what has to be realised is this. If a conductor does not get the renewal of his licence, no other company can employ him. If Messrs. So-and-So Transport decide to issue a badge and the man commits a misdemeanour, he can go to the next company—there is no need to worry at all. I can assure your Lordships that the men who do the job, the drivers and the conductors, believe that this is something which should be continued. At the Committee stage the Minister said that this was an anachronism. But—and this is the important thing; it is not what you and I think—is it going to help the men on the job to feel that they are able to do the job in the way they want to do it, and that it gives them this little extra protection? If so, then I believe we ought to do it.
It cannot be expense, because the noble Lord the Minister, when I wanted to have road service licences semi-permanent unless they are revoked, told me that the cost was negligible. Therefore, even though I made a suggestion at Committee stage that we might deal with this in another way, as I said in the debate earlier this afternoon the cost is not the thing that worries. What should be our concern is: Is this something which helps the men on the job? The men on the job, as late as this morning, said to me, "Please, will you push for this amendment to be supported."
§ Lord LLOYD of KILGERRAN
My Lords, before the noble Lord sits down, with the leave of the House may I ask him, 1694 if this is such an important matter, why was there not an amendment put down at the Committee stage, if this is such an important matter?
§ Lord SANDYS
My Lords, I think the House should be aware that under our Standing Orders the noble Lord, Lord Lloyd of Kilgerran, is not permitted to seek the leave of the House.
§ Lord MISHCON
So, my Lords, somebody who has not got to seek the leave of the House will now, to the displeasure of the House, thereupon address them. My Lords, I do not intend to take long. There is, I think, a point which has not yet been brought out clearly in this debate. The noble Lord, Lord Teviot, dealt with a code of manners exhibited by this generation which, it appears, is different from the manners of the last generation. That may or may not be true. One thing that this generation appears to have inherited, certainly in these contemporary times, is a degree of violence on transport which I think has brought shame to the members of the public who are responsible for it. I therefore think that we have got to give a little more concentration to this clause.
The noble Lord, Lord Morris, talked in his usual amusing way, having left the world of draftsmanship and entered the world of reality. He said that any transport company could, if it so wished, dress up its conductors in such uniforms as they might decide. Most of us know in reality that uniforms have gone for postmen and for most people. Those of us who have a little tradition within us I think regret it to a large degree. I think it brought dignity in many ways to their position, and recognition by the public. But it has gone because of the expense, and one will not find transport companies suddenly deciding that they ought to dress their employees in uniforms similar, I believe it was said, to the SS, or anybody else.
My Lords, the point about it, I think, is this. People who are prone to violence have a certain amount of a sanction imposed upon them when they are dealing with somebody who very clearly has a licence number and bears some badge of authority, and is known, not necessarily to those people but generally, to be somebody who is licensed to carry 1695 on the job he has got. Many of us know that if charges are brought against people who have been responsible for that violence, whether it be to an Underground employee or to a driver of a bus, they are prone to say that when a remark was made to them they did not know that it was a conductor or somebody employed on the Underground or whatever it was. They thought that the remark to which they objected and which preceded the violence came from somebody who had no right to address them or to ask them to move on or whatever. That defence is not tenable in the average court because the court is able to say, "How can you possibly say that unless you were blind drunk and could not see? It was obvious that this man was wearing a badge and it was known who he was."
In this day and age, unfortunately, I think this matter has to be given a lot more attention. When your Lordships have heard (as you have from my noble friend Lord Underhill) that people who are engaged in this occupation have asked that this should continue—and it is not usual for people engaged in such occupations to ask needlessly for badges, numbers or uniforms—and my noble friend Lord Underhill is able to inform this House that it is the wish of the union representing these men (because it is the wish of the men) that they should have it, is it not right and proper that we should give proper attention to the matter and not just nod with the Minister on something which has nothing to do with politics or with the policy behind this Bill but which has a lot of common sense, unfortunately, in 1980?
§ Lord MOWBRAY and STOURTON
My Lords, this is a most important point because, although it seems small, it raises matters which worry passengers and your Lordships have shown that you are thinking about their problems. Nevertheless, I must confess that I am not going to be able to advise the House to accept this amendment because it is going to require to retain just what we are trying to avoid—the whole paraphernalia of conductors' licensing. It would merely ensure that conductors' licences were not required by drivers of one-man operated buses. In fact, drivers of one-man operated buses are not at present required to have conductors' licences, and though many of them do so, 1696 it is a precaution against the possibility that at some time they may find themselves in the position of conductor on a crewed bus.
I explained during our debate at the Committee stage that the Government believed that conductor licensing was now anachronistic and that the considerable administrative burden of the licensing system could be got rid of. Perhaps I should say a few words in amplification of what I said then. The Government certainly consulted the trade unions (and I stress this) before coming to a final decision that conductor licensing should be abolished. We understood and took account of the concerns that were expressed, but after full consideration we decided to go ahead with the abolition. We appreciate totally—and I say this particularly to Lord Mishcon—the concern of the unions for the protection of bus conductors against unruly passengers; and the recent conference in which both of my right honourable friends the Home Secretary and the Minister of Transport took part did, I think, make some very constructive suggestions. I do not believe that conductor licensing has any part to play here.
Certainly the idea of block licences, put forward by the noble Lord, Lord Underhill, in Committee, has no noticeable advantages over the provision by operators to their conductors of some distinctive mark or badge of authority. Do we really believe that thugs and hooligans on the rampage, possibly with a lot of drink aboard, are going to take note of whether this is a Ministry of Transport licensed conductor or a company licensed conductor? I think it is not sensible to think that a man on the rampage will consider whether it is only a company badge or a Government badge. I do not believe that it will make any difference in these particular circumstances. He will still be on the rampage. Conductors, if they have a badge or mark of authority or a uniform—and I agree with the noble Lord that uniforms are going out, they are expensive; but badges or marks of authority may be merely forage caps—are identifiable as much as are Ministry of Transport licences. Conductors with these company marks of identification will still have a legal authority over the passengers in the vehicle. That is the important point. They will still have legal authority. We are revising and bringing up to date the 1697 the Conduct of Drivers, Conductors and Passengers regulations in a way which will, we hope, be helpful; the trade unions are being fully consulted about this.
We must remember that there are many other public servants in a position of trust similar to that of bus conductors who can find themselves having to deal with very tricky situations involving the public. I am thinking particularly of railway and underground staff and such people as school caretakers. For many of these, some form of uniform provided by their employers is felt to be helpful; but in no case that I know of has some form of public licensing been considered, and I am very doubtful whether the trade unions concerned would welcome it any way. I hope, therefore, that the House will agree to reject this amendment. Although I see the point of it, I do not think it will do any good at all.
§ Lord TEVIOT
My Lords, if I were to treat this in the proper way I should have to take some time in doing so; but I do not intend to do so. My noble friend Lord Morris spoke about being able to dress people in uniforms. It was not uniforms to which I referred, but badges. On this point of uniforms, some years ago the National Bus Company gave their drivers and conductors what they thought was a rather smart uniform. I may say in this connection that after the uniforms had been issued I called in at a bus cafe which I used to use and asked the lady behind the counter what she thought of the new uniforms. She replied that, in them, the men looked like "out-of-work chorus boys". One has now come to accept that uniform.
But it is not a matter of uniforms, but of the badges. This is a sensible amendment. The noble Lord, Lord Lloyd of Kilgerran, I think, with some trepidation, realised that I had some right of reply. He asked why I and the noble Lord, Lord Underhill, had not done something about this in Committee. We had thought that we would deal with it on the Question, that the clause stand part, but found that we could not do so. That is the reason why I am doing so now even at this late stage. Furthermore, the Transport and General Workers' Union are pleased about this; and I do think that we are really letting them off the hook. If I were still 1698 a conductor or if I left here and went back as a conductor and I saw this piece of legislation, I would go straight round to the branch secretary and I would tell him to put a resolution down at the next meeting and deal with it. If I could get no satisfaction and I thought he was being in any way dilatory, I would go straight round to the office of the district officer and take him to task. You pay your subscription to your union and you are entitled to some service. So I am delighted that the Transport and General Workers' Union are taking this amendment extremely seriously.
I come to the noble Lord, Lord Mishcon, who mentioned violence and also my noble friend Lord Mowbray, who mentioned other transport officials such as on the railways who do not have licences but carry some authority; they are in a different situation on a train or on a railway station from those who are in a moving vehicle and have to face violence late at night. The badge is a very definite piece of equipment, however small it might be.
My noble friend Lord Mowbray made reference to remarks he made at the Committee stage, and he used the first person singular. But I have looked back and see that he never uttered a word on this. However, never mind about that. He tells us although this has its good points, it is not to be taken too seriously, and not to press for it. Quite honestly, I think it is something that should be looked at again. It is something worth dividing on. I remember in Opposition on the other side of the House it was often said that it was a good idea to give the other place a chance of having another word. If it gets that far, they will have that chance.
§ Lord MOWBRAY and STOURTON
My Lords, with the leave of the House, I apologise if I misled the House. My noble friend Lord Bellwin obviously dealt with this in Committee with his accustomed brilliance. In going to sleep at night I obviously improved on Lord Bellwin's speech and I thought I had made it. That must be the explanation! Great people do occasionally have hallucinations: George IV thought he had charged at Salamanca.
To be serious, the noble Lord, Lord Teviot, said that the Transport and 1699 General Workers' Union take this very seriously. We are pleased about this and we have had discussions with them about it. It really boils down to what I have already dealt with: they want some form of authoritative licensing in the form of a badge. The arguments for that turn out to be to stop people who would be under their control not taking them seriously. I have already pointed out that they have legal power over the people under their control in the bus, or whatever it may be, if they are wearing an authorised badge or mark given to them by the company for whom they are working. The fact that it is given by the Department of Transport through the licensing authorities is not going to add one iota of legal authority to them. The idea that hooligans or thugs on the rampage are going to take any more notice of a Government licensed badge than a company licensed
§ 9.20 p.m.
§ Clause 35 [Reduction of minimum age for drivers of public service vehicles]:1700
§ badge is slightly in Cloud-Cuckoo land. I think that this is unnecessary.
§ Lord TEVIOT
My Lords, with the leave of the House—I do not know if I still have the right of reply—
Several noble Lords: You do not.
§ Lord TEVIOT
There is nothing written in this Bill that there has necessarily to be a badge, whether it is a company badge or some other badge. We have discussed this for long enough and I say we should give the other place an opportunity to consider this if it gets there.
§ 9.12 p.m.
§ On Question, Whether the said amendment (No. 39A) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 55.1699
|Ardwick, L.||Irving of Dartford, L.||Sefton of Garston, L.|
|Boston of Faverhsam, L.||Kirkhill, L.||Sempill, Ly.|
|Collison, L.||Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|David, B. [Teller.)||Mishcon, L.||Stewart of Fulham, L.|
|Davies of Leek, L.||Mottistone, L.||Stone, L.|
|Goronwy-Roberts, L.||Pitt of Hampstead, L.||Swinfen, L.|
|Greenway, L.||Ponsonby of Shulbrede, L.||Teviot, L. [Teller.]|
|Hale, L.||Ross of Marnock, L.||Underhill, L.|
|Hughes, L.||Rosslyn, E.|
|Abinger, L.||Drumalbyn, L.||Mackay of Clashfern, L.|
|Airey of Abingdon, B.||Dundee, E.||Mansfield, E.|
|Alexander of Tunis, E.||Ellenborough, L.||Margadale, L.|
|Auckland, L.||Elliot of Harwood, B.||Morris, L.|
|Bellwin, L.||Ferrers, E.||Mowbray and Stourton, L.|
|Beistead, L.||Ferrier, L.||Murton of Lindisfarne, L.|
|Bessborough, E.||Fortescue, E.||Renton, L.|
|Brougham and Vaux, L.||Gainford, L.||Sandford, L.|
|Burton, L.||Gisborough, L.||Sandys, L. [Teller.]|
|Carr of Hadley, L.||Gray, L.||Savile, L.|
|Cathcart, E.||Grimston of Westbury, L.||Selsdon, L.|
|Chelwood, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Strathclyde, L.|
|Cockfield, L.||Strathmore and Kinghorne, E.|
|Cottesloe, L.||Harvington, L.||Trenchard, V.|
|Cullen of Ashbourne, L.||Hives, L.||Trumpington, B.|
|De Freyne, L.||Killearn, L.||Vivian, L.|
|De La Warr, E.||Lloyd of Kilgerran, L.||Westbury, L.|
|Denhatn, L. [Teller.]||Long, V.||Wigoder, L.|
|Digby, L.||Lyell, L.|
Resolved in the negative, and amendment disagreed to accordingly.
Lord UNDERHILL moved Amendment No. 40:
Page 34, line 17, at end insert ("or on any service when the vehicle used is constructed and equipped to carry not more than 15 persons including the driver.").
§ The noble Lord said: My Lords, in the same way as the noble Lord, Lord Teviot, explained why there was no amendment at the Committee stage, I must give a similar explanation in connection with this amendment. It so happened that I had decided to deal with the matter on clause stand part, but the Lord Chairman was quick off the mark and the poor old pensioner could not keep up with him, so I missed the opportunity. So now we have an amendment on this issue which deals with the age of drivers.
§ As drafted, Clause 35 allows persons between the ages of 18 and 21 to drive a public service vehicle in certain circumstances. These circumstances can exist only where the vehicle driven does not come within the scope of EEC Regulation 543 of 1969, because all passenger vehicles governed by that regulation must have a driver of at least 21 years of age. As presently worded, Clause 35 takes advantage of one exemption from the EEC regulation; namely, vehicles operating on a regular service with a route not exceeding 50 kilometres. As it stands, a person of 18 could not drive a large bus on a long journey over 50 kilometres, but could drive one in a crowded city. That seems ridiculous. So, in theory, a young driver could take a double-decker bus along Oxford Street.
§ The industry points out to me that, in practice, that would not be the case, because a PSV driver's licence, like an ordinary driver's licence, has sub-classifications, and I have no doubt that the commissioners would authorise the driving by these young people only of smaller vehicles. But that is only if the commissioners so decide in their discretion. The law is as I have outlined it, if this Bill is passed, and surely the law ought to be correct. It should not just hope that the commissioners will use their sense in dealing with this matter.
§ It seems to be only due to a misunderstanding that the second exemption from the EEC regulation has not been included for the purposes of Clause 35(2). In fact, the benefit of the clause is in the relation to the training of younger men as PSV drivers and, of its nature, this training will be related to small vehicles. Your Lordships will note that there is nothing in the amendment to deal with paragraph (a), which would still enable young 1702 drivers to come in in certain limited circumstances and, therefore, secure the training. All we are trying to do is to tidy up the wording, and to ensure that what may be carried out by the commissioners is actually the law as decided by Parliament. My Lords, I beg to move.
§ Lord BELLWIN
My Lords, surprising though it may be to the noble Lord, Lord Underhill, I welcome this constructive amendment. It conforms to the principle of allowing full use of the derogations from EEC Regulation 543/69, which the Commission have allowed us. As passenger vehicles with up to 15 seats overall are exempt from the regulation within the United Kingdom, there is no reason why we should keep to the EEC minimum age of 21, if we are satisfied that younger drivers can drive these vehicles safely on passenger services.
Quite frankly, the only reason why we did not make this provision in the clause ourselves is that we did not think it would be of sufficient interest to operators to merit the further complication of the legal framework. It would seem that we were wrong. I understand this amendment has support from the industry. I am therefore pleased to advise the House to accept it.
I do so, however, with one small reservation. The exemption for vehicles between 10 and 15 seats overall from EEC Regulation 543/69 applies only to journeys wholly within the United Kingdom. On an international journey the driver would have to be at least 21 even on that part of the journey which is within Great Britain. In the event of tonight's amendment being accepted, as it is, to ensure that our Bill does not violate EEC law, I shall therefore move an amendment at Third Reading limiting the scope as required.
I should make it clear that the amendment proposed would only affect PSV licence holders while engaged in driving PSVs. It does not give those holding only an ordinary driving licence the right to drive large passenger vehicles before the age of 21, even though the EEC regulation would not prohibit us from giving them that right for journeys within the United Kingdom. We feel it is right that the reduction of the minimum age for driving large passenger vehicles 1703 should be limited to those who intend to make a career of bus driving and who have submitted themselves to supervised training under a PSV operator.
I therefore have pleasure in asking the House to accept this amendment—it is one of those occasions, special occasions indeed—subject to the point which the Government will try to rectify at Third Reading.
§ On Question, amendment agreed to.
§ 9.27 p.m.
Lord UNDERBILL moved Amendment No. 41:
After Clause 35, insert the following new clause:
§ ("Repeal of s. 29(4) of Transport Act 1968
§ . The provisions of section 29(4) of the Transport Act 1968 shall cease to have effect and it shall be within the powers of the British Railway Board, where those using the railway, shipping and hovercraft services provided by the Board may require them, to provide (or secure the provision of) co-ordinated services for the transport of passengers by road for use by those and other persons.").
§ The noble Lord said: It will be recalled that at the Committee stage there was an amendment dealing with this matter but in different words, and since the Committee stage we have reflected upon the matter and have brought forward a new amendment which is more precise and says precisely what we mean.
§ My Lords, I should mention that the noble Lord, Lord Bellwin, has graciously sent me an apology because at the Committee stage I said there had been no communication on this matter from British Rail. He did, as one would expect him to do, check on this and found that there had been, to his colleague, and he has sent me a gracious apology for that statement. We now accept that the Railways Board did ask for these powers to provide link buses in this field. There seems at no time to have been any suggestion to the board that its eight-month-old request was ill-founded because existing powers were adequate. It is not hard to see why the board thinks it lacks such powers. On the face of it, it is forbidden by the 1968 Act from any bus activity except for replacements for temporary or permanent rail closures, although I am told there is a gracious provision for the board to run staff outings as well.1704
§ That the board is involved with buses cannot be denied, and surely no one wants to stop the Heathrow rail links or the new service link between Kettering and Peterborough; yet these seem to be tolerated on the rather thin basis that the railways, the National Bus Company and London Transport were once part of the long-defunct British Transport Commission. But there is no opportunity for a direct deal by British Rail with any private—note that, "any private "—or municipal operator. One of the Heathrow links is in fact put through London Transport into a private company. Indeed, if there is no National Bus Company depot handy, or, I presume, a depot in Scotland of the Scottish Transport Group, then economics rule out any possible link at all.
§ The main call, my Lords, is for road links to rail services, but the present inhibitions can affect other parts of British Railways, like shipping and hovercraft. I am told—it is rather remarkable—that for their highly competitive rail ferry service from London to British Army bases in Germany the board has to use the good offices of Germany Railways to provide coaches on the other side of the Channel. It is equally remarkable that of two competing hovercraft or shipping undertakings one can freely contract for, or even invest in, buses to give passengers a total package while its British Railways neighbour cannot, because of the law as it now stands.
§ This is rather important. I am assured that the board does not want in any way to set up its own bus undertaking. There is, supposedly, a wealth of private operators only too willing to expand into rail links if these can be arranged, within the law, by the board. What the board wants to do, and it seems to be a very good thing, is to make the best use it can of its improved inter-city network by linking in those towns that are not easily covered by rail connections. This is just what has been done for Kettering, Corby and Oundle, by linking them with high-speed train services at Peterborough. This is the service which was referred to by the noble Lord the Minister and which came into operation only in May of this year. This would seem to be entirely in tune with the avowed philosophy of the Bill to set aside pointless inhibitions, and we 1705 are trying to eradicate inhibitions in this amendment.
§ The present position brings about some foolish anomalies. A PTE has power to arrange services to link with railway stations. That is very sensible. But if the board itself wanted to arrange such railway links with an operator it could not do so by means of its own arrangements. The law prevents it from doing so. Therefore, even if the board itself wanted to arrange for such links to be provided under the existing law, the links would not be allowed. The board has the power to arrange for bus services to replace temporary or permanent rail closures. Therefore the board arranged a Keswick to Penrith bus service. Many passengers from Keswick want to travel to the important rail link at Carlisle, but the board may not make such arrangements with an operator for such a rail-bus link. I think noble Lords will agree that that seems to be rather illogical.
§ I have mentioned the Kettering-Peterborough link. I have here details in various brochures of bus-rail links, with a common ticket supplied and arrangements made with the operators—but this seems to be rather thinly within the law—only where there is an NBC depot or a Scottish Transport Group depot. There may be many golfers in the House. British Rail have arranged a golf link to St. Andrews, with trains going from various stations to the station at Leuchars, and a bus link direct to the gates of the old course at St. Andrews. Why did they arrange this? Because the public wanted it. They were able to arrange it through W. Alexander Fyfe Ltd. Why? Because they are a subsidiary of the Scottish Transport Group. They could not do this other than through the Scottish Transport Group or the NBC.
§ The board is clearly desirous of developing arrangements with bus operators to provide linked services to and from stations. I am told that there are 140 British Rail area managers each with freedom to make sensible arrangements, but so long as there is this inhibition because of the law many of them feel that they cannot go ahead and discuss matters with operators. Therefore, it is not a question of taking business from any operator. What may happen is that extra business will be provided. At the 1706 moment, however, it can only be done by rather thinly using the law through the NBC or anybody who is attached to the Scottish Transport Group.
§ When I raised this matter in Committee, the Government gave no indication that the board already had full freedom to run linked buses. I understand from the Minister that their view is that the board already has ample powers to operate such buses. British Rail do not believe that is the case. If the noble Lord says tonight that British Rail has these full powers, naturally I will readily withdraw this amendment and hope that the Ministry will arrange immediately a meeting with British Rail and with the representatives of the bus operators so that they can discuss the matter fully. But British Rail do not believe that the law enables them to make these arrangements. If they were enabled to make them, they could provide very good rail-bus links which would help the public, British Rail and the bus undertakers.
§ 9.35 p.m.
§ Lord LLOYD of KILGERRAN
My Lords, I should like to support the noble Lord, Lord Underhill, on this amendment and to endorse all the arguments that he has made in favour of it. I have had the advantage, with the help of a member of the Railways Board, of tracing the whole history of the law in this matter. As the noble Lord, Lord Underhill, has indicated, the law at the present time is that the Railways Board cannot carry passengers by road, except where a railway service has been temporarily interrupted or discontinued. That law goes right back about 80 years ago. I think it was an Act of about 1902 that started all this off and it has been endorsed all through the history of the law up to the present time to prevent the Railways Board from showing any initiative in relation to adopting, encouraging or helping their passengers to transfer themselves from place to place.
In this modern age with the great success of inter-City lines it is so frequently the person at the railway station or the railway headquarters who will know what the passengers there want. Therefore, it seems to me to be quite contrary to the general theme of the Government to prevent managers in the railway service 1707 from being able to introduce services for passengers about which they will know far more than anybody else, being the man on the spot.
As the noble Lord, Lord Underhill, has said, and as the Railways Board have indicated quite clearly, they do not want to own their own fleet of buses. Therefore, they are not in competition in that way with other operators, but they do want to enable their managers in certain areas to adopt an initiative, knowing what the local passengers want. It is really an expansion of rail links for the benefit of the communities, and therefore I support this amendment.
§ Lord BELLWIN
My Lords, first may I confirm the apology which I sent in writing to the noble Lord, Lord Underhill, for the error which I made at Committee stage when I spoke to a similar amendment moved by the noble Lord. I said then that the British Railways Board had not made any representations to the Minister about the need for wider powers to run bus services. I found out subsequently that they had written to the department to say that it would be consistent with the Government's objective of encouraging new initiative and enterprise if the present restrictions on the board's powers to carry passengers by road were lifted. I have already written to the noble Lord apologising for this error, and I should like to repeat that apology tonight.
However, on this issue I am still not aware of circumstances which might arise in the future which would make it necessary for the board to have wider powers to operate bus services than those they have already. At present, the Railways Board operate bus services where the rail service has been temporarily interrupted or in replacement of a railway passenger service which has been closed. They also make arrangements with existing bus operators to provide bus services which connect people much more conveniently to the rail network. At Committee stage I mentioned a recent example—the new Kettering-Corby-Peterborough coach link. The board may wish to have powers to operate bus services themselves without restriction, but I do not think that this is a road that the British Railways Board should take. As the noble Vis- 1708 count, Lord Hanworth, and my noble friend Lord Teviot said at the Committee stage, we do not want the Railways Board to start running their own bus services. They have a large enough management task running the railways and their other subsidiary activities.
The noble Lord, Lord Underhill, expressed some doubts about British Rail's powers to enter into arrangements with bus operators for the provision of bus services connecting in to the rail network. Since the board already make such arrangements, I imagine that their lawyers think that this is consistent with their powers. This is certainly not the argument deployed by the board when they commented on the need for widening their powers; they were then arguing that if there was to be greater competition in the provision of bus services the board should be able to participate in the action. However, now that doubts have been raised about their powers I will certainly have that looked at as a matter of urgency. I think it is important that the board should be able to make sensible arrangements with bus operators for the better integration of bus and rail services.
I am not really aware of the distinction that British Rail make arrangements with bus operators, and I am not aware at all of the arrangements with the National Bus Corporation's companies. I think the best and most helpful thing that I can do at this time is to say again that if there is some uncertainty that as a matter of urgency should be looked into I will take steps to implement that immediately.
§ Lord UNDERHILL
My Lords, I am very grateful to the noble Lord the Minister, and in view of his statement I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 36 [Fees for grant of licences, etc.]:
§ Lord BELLWIN moved Amendment No. 42:
Page 34, line 45, at end insert—
("(iii) the issue of operator's discs under section (Duty to exhibit operator's discs) of that Act; ").
§ The noble Lord said: My Lords, as I have already spoken to this amendment with Amendment No. 16, I beg to move.1709
§ On Question, amendment agreed to.
Lord BELLWIN moved Amendment No. 43:
Page 35, line 29, at end insert (", disc ").
§ The noble Lord said: My Lords, I have also spoken to this amendment with Amendment No. 16. My Lords, I beg to move.
§ On Question, amendment agreed to.
Lord MISHCON moved Amendment No. 44:
After Clause 38, insert the following new clause:
§ ("Temporary modification of penalty
. In section 96(11 A) of the Transport Act 1968, at the end add—
Provided that, until 31st December 1983 or such later date as the Minister may by order for the purposes of this subsection prescribe, where a driver or member of the crew of a motor vehicle has contravened any such requirement of the applicable community rules but—
The noble Lord said: My Lords, at Committee stage I moved an amendment in precisely these terms and in column 605, after the noble Lord, Lord Bellwin, had been good enough to say something, I said this:
On the clear understanding that he will be good enough to let me know—and no doubt the noble Lord, Lord Teviot, would also wish to be informed—the progress regarding the thoughts of his right honourable friend on this matter, and will do so well before Report stage so that if necessary we shall know that we have to repeat the amendment in some form or other at that stage, I beg leave to withdraw the amendment ".
The noble Lord the Minister was kind enough to write to me. I am certainly not, going to quote the whole of his letter, but with his permission, I will quote merely the last cogent paragraph:
I freely admit that some of the provisions of Regulation 543/69 are unnecessarily restrictive and bureaucratic and may impose unnecessary costs on industry, but I cannot agree that it is worth overthrowing the vital principles of the rule of law and the independence of the police, not to mention our Treaty obligations, in order to put the matter right. The proper course is to press for amendments to the Regulation through Community channels. I assure you that we shall lose no opportunity to do so.
§ May I tell your Lordships that the Opposition has its work cut out in endeavouring both democratically and with dignity to pursue its attempts to overthrow the Government. It cannot take on the additional duties of overthrowing the vital principles of the rule of law, the independence of the police and our treaty obligations. I therefore, on that understanding, beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 40 [Defences available to persons charged with certain offences]:
§ [Amendment No. 45 not moved].
Lord BELLWIN moved Amendment No. 46:
Page 37, line 12, leave out ("and 21(7)") and insert (", 21(7) and (Duty to exhibit operator's disc)(4)").
§ The noble Lord said: My Lords, as I did speak to this amendment with Amendment No. 16, I beg to move.
§ On Question, amendment agreed to.
§ Clause 41 [Amendments of other Acts]:
§ Lord BELLWIN moved Amendment No. 47:
Page 37, line 21, at end insert—
("() Where the running of public service vehicles is restricted or prohibited by any provision contained in—
§ The noble Lord said: My Lords, this amendment gives the Minister power, on application, to modify or revoke by order any provision of pre-existing local Acts which restrict the running of public service vehicles. The whole presumption of this Bill is in favour of allowing operators to run the services they wish, unless the traffic commissioners are convinced that that would be against the public interest. It sits oddly with this general presumption to have in existence restrictions under local Acts on the services 1711 that may be run, and in trial areas the conflict between the universal freedom and the specific restriction would be intolerable. This amendment, therefore, enables the Minister to modify or revoke them upon application.
§ I should emphasise that we are not talking here about traffic regulation orders but about the restrictions which some local Acts still in force contain, for instance, on the operation of a local authority's public service vehicle undertaking along certain roads or in certain areas. I think the House will agree that such statutory restrictions on the operation of a particular undertaking are now completely outdated and that is is right to have a power to repeal them. There was, of course, a section in the 1960 Road Traffic Act which enabled provisions in Acts passed before 1930 to be repealed but only following a cumbersome public inquiry procedure; a procedure which was, I am sure, quite appropriate in the circumstances of the 1930s when restrictions on the provisions of bus services were the order of the day, and the only need was to ensure consistency. But now that we are going for a much wider freedom I think that a more simple power of modification or revocation is appropriate. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 5 [Minor and consequential amendments relating to public service vehicles]:
§ Lord BELLWIN moved Amendment No. 48:
Page 66, line 49, at end insert—
(" () an operator's disc under section (Duty to exhibit operator's disc) of this Act; ").
§ The noble Lord said: My Lords, I spoke to this amendment when we dealt with Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
Lord BELLWIN moved Amendment No. 49:
Page 67, line 9, after (" certificate") insert (" or disc ").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.1712
§ Lord MOWBRAY and STOURTON moved Amendment No. 50:
§ The noble Lord said: My Lords, this is a small consequential amendment which I regret to say was missed at an earlier stage. It stems from the provision in Clause 33 that appeals on London bus agreement arc to be heard by the Minister. Bus appeals heard by the Minister are handled by appointing an inspector. Various procedural matters are covered in Sections 248 and 249 of the Road Traffic Act 1960. This little amendment ensures that those sections will also apply to the new London appeals. I beg to move.
§ On Question, amendment agreed to.
Lord MORRIS moved Amendment No. 51:
Page 70, line 13, leave out (" bus") and insert (" stage carriage ")
§ The noble Lord said: My Lords, this amendment is a very little fish which somehow got through the net at the Committee stage. I spoke to it in principle at the Committee stage. I beg to move.
§ Lord MOWBRAY and STOURTON
My Lords, I am grateful to my noble friend Lord Morris for reinstating himself in the hierarchy of advisers to the Government and for the very helpful drafting amendment which I am very pleased to accept.
§ On Question, amendment agreed to.
§ [Amendment No. 52 not moved.]
§ Clause 44 [Initial government holding in successor company]:
§ 9.48 p.m.
Lord MISHCON moved Amendment No. 53:
Page 40, line 18, at end insert (" and the Minister or his nominees shall at all times retain a minimum holding of twenty-six per cent of the said securities in the successor company ").
§ The noble Lord said: My Lords, I have the firm feeling that the shorter I am in regard to this amendment the more likely I am to have the sympathy of your 1713 Lordships. If only your Lordships approved the amendment with the same alacrity as you approve of the promise of brevity I would be so happy. However, this is the only amendment which is being moved in regard to the National Freight Corporation and the very important provisions in the Bill which relate to it.
§ The philosophy of the Government in regard to achieving, first of all, a transfer of the National Freight Corporation to an ordinary limited company, and then the sale on of certain of the shares of that limited company to the public or to some purchaser in the private sector, has been approved by your Lordships' House and in another place. Therefore, there is no room for argument, discussion or debate on that aspect in your Lordships' Chamber tonight.
§ The purpose of this amendment, which is entirely new and which I hope your Lordships will feel is a proper one, is to see that the Government at least retain a minimum of 26 per cent. of the shareholding within the private company whose shares will be off-loaded on to the market. Noble Lords may have wondered what the reason is for the magic figure of 26 per cent. I know that 51 per cent. would have been a figure which your Lordships would have appreciated immediately as one that gave control, and we debated this during the Committee stage. That amendment was defeated and it is not proper that it should be repeated tonight.
§ But the 26 per cent. would give the National Freight Corporation—one of those public entities which has done extremely well and merited praise in your Lordships' House, in another place and, indeed, in various circles of transport in the United Kingdom—with its 36,000 employees, the security of knowing that it will not loosely, quickly or irresponsibly be liquidated, or that things will not happen to it and to its employees of which your Lordships would not approve.
§ Therefore, although the private sector will have a chance to appoint its own directors, and to run the company and its policy, the one thing that they would not be able to do would be to pass such a resolution as required 75 per cent. of the votes of the company; and your Lordships who are familiar with company matters will know that that is a magic 1714 figure which, indeed, covers such aspects as liquidation.
§ I said that if I put my point shortly I would best commend myself to your Lordships' favour in endeavouring to see that this last battle for the security of the employees of this corporation and the preservation at least of its life in its new form is achieved. I beg to move.
§ Lord BELLWIN
My Lords, I am, indeed, very much aware of the significance of the 26 per cent. to which the noble Lord, Lord Mishcon, refers. The Government's object in bringing forward this legislation is quite clear. It is to transfer control of the NCF firmly into the private sector. We had quite some debates on this last time round, but I feel that I should make that quite clear again tonight.
Yet again, this amendment seeks to impose what we consider to be unnecessary restrictions on the successor company. It would give Ministers sufficient voting power to frustrate important changes that other shareholders might be desirous of approving by special or extraordinary resolution; for example, as the noble Lord, Lord Mischon, knows so well, amendment of the memorandum and articles of association, or variation of the share capital.
In Committee noble Lords opposite unsuccessfully moved an amendment to give the Minister a controlling interest by way of having a majority of the voting power in the successor company. The noble Lord, Lord Mishcon, was entirely open in saying then that he thought:it is a general question of the need to have control of this corporation in the national interest ".—[Official Report, 19/5/80; col. 656.]He hoped that that was the principle that the Committee would feel able to endorse. I fully respected his point of view then, as I do now, but the fact is that the Committee did not feel able so to endorse. As this latest amendment would be entirely contrary to the policy that the Government have consistently stated during the passage of this Bill, we must, therefore, oppose it.
Additionally, I should just like to say that I do not believe that the security of the employees of the corporation will be any less under the proposals that we are making than it is now. Indeed, in view 1715 of all the arguments that were deployed previously, and which I shall not trot out again at this time of night, I feel quite the contrary; I think that there will be opportunity for them in a way that would not be likely to continue if the situation remains as it is at present.
§ Lord MISHCON
My Lords, with the brevity I promised, the Minister having been brief and to the point, I will merely quote what the Minister said in another place. When asked on 27th November—the reference is col. 1129 of Hansard of the other place—whether he could guarantee that employees would not suffer as a consequence of this provision in the Bill
§ and the transfer to the private sector, he said, "I cannot guarantee that". I believe that is the only quotation I need give in answer to what the noble Lord said. I only hope that when the House divides on this amendment noble Lords will at least remember that a great number of people are looking to your Lordships—this is the last opportunity the House will have—to safeguard their future without in fact taking control.
§ On Question, Whether the said amendment (No. 53) shall be agreed to?
§ Their Lordships divided: Contents, 18; Not-Contents, 58.1715
|Boston of Faversham, L.||Kirkhill, L.||Ross of Marnock, L.|
|Collison, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Sefton of Garston, L.|
|David, B. [Teller.]||Stewart of Alvechurch, B.|
|Davies of Leek, L.||Mischon, L.||Stewart of Fulham, L.|
|Goronwy-Roberts, L.||Pitt of Hampstead, L.||Stone, L.|
|Hale, L,||Ponsonby of Shulbrede, L.||Underhill, L.|
|Irving of Dartford, L.|
|Abinger, L.||Ellenborough, L.||Mansfield, E.|
|Airey of Abingdon, B.||Elliot of Harwood, B.||Margadale, L.|
|Alexander of Tunis, E.||Ferrers, E.||Montgomery of Alamein, V.|
|Bellwin, L.||Fortescue, E'||Mottistone, L.|
|Belstead, L.||Gisborough, L.||Mowbray and Stourton, L.|
|Bessborough, E.||Gray, L.||Murton of Lindisfarne, L.|
|Brougham and Vaux, L.||Greenway, L.||Renton, L.|
|Burton, L.||Grimston of Westbury, L.||Sandford, L.|
|Carr of Hadley, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Sandys, L. [Teller.]|
|Cathcart, E.||Savile, L.|
|Chelwood, L.||Harvington, L.||Sempill, Ly.|
|Cockfield, L.||Hives, L.||Strathclyde, L.|
|Cork and Orrery, E.||Hornsby-Smith, B.||Strathmore and Kinghorne, E.|
|Cottesloe, L.||Killearn, L.||Swinfen, L.|
|Culien of Ashbourne, L.||Kinnoull, E.||Teviot, L.|
|de Freyne, L.||Lloyd of Kilgerran, L.||Trenchard, V.|
|Denham, L. [Teller.]||Long, V.||Trumpington, B.|
|Digby, L.||Lucas of Chilworth, L.||Vivian, L.|
|Drumalbyn, L.||Lyell, L.||Westbury, L.|
|Dundee, E.||Mackay of Clashfern, L.|
|Resolved in the negative, and amendment disagreed to accordingly.|
§ 10.3 p.m.
§ Clause 47 [Funding of relevant pension obligations]:
Lord BELLWIN moved Amendment No. 53A:
Page 43, line 9, leave out (" for the time being within") and insert (" specified or described in ").
§ The noble Lord said: My Lords, in moving Amendment No. 53A, for the convenience of the House I wish to speak also to the identically-worded amendments, Nos. 63A and 63B. These are drafting amendments. Amendment No. 53A is intended to put beyond doubt the fact that Clause 47 applies to future schemes of supplementation that the successor company may introduce, as well as to past schemes. Amendments Nos. 63A and 63B are likewise intended to put beyond doubt the fact that future schemes of supplementation are taken into account for all purposes for Part III of the Bill. I beg to move.
§ On Question, amendment agreed to.
§ Clause 51 [Meaning of "the relevant pension obligations"]:
Lord MISHCON moved Amendment No. 54:
Page 46, line 28, leave out (" and ").
§ The noble Lord said: My Lords, with your Lordships' permission I propose to speak to Amendments Nos. 54, 55 and 57 together. This amendment was negatived at the Committee stage, but it is brought forward again because, with the deepest possible respect, the Minister's arguments at the Committee stage were so unconvincing, and I hope to show your Lordships that the justice of the pensioners' case is by contrast so compelling.
Put shortly, the Minister's case was as follows. First, whether the increases in question would have qualified for support under the 1974 Act is—and I quote from column 691 of the 19th May:
… a hypothetical question to which I fear there is no answer ".
That is the end of the quotation. A little later, however, the Minister said—and again I quote:
I am clear, however, for the reasons that I have explained, that the department would not have been prepared to agree to this, because it would have been in breach of the principle that the Government are only providing support in respect of historic ' obligations ".
That ends the quotation. Secondly, the Minister said:
… we must not forget that these railwaymen all rejected the option to transfer into a modern scheme with better benefits ".
Thirdly, the Minister said:
… the benefits of the … scheme are fully indexed in line with inflation after the member of the scheme retires ".
§ I ask your Lordships to examine these points a little more closely. First, it is quite clear that the increases could have qualified for support under the 1974 Act. The Minister claims that the department would not have agreed because the liabilities were not "historic". But what could be more historic than a firm expectation of increases in pensions allowed for in a formal actuarial valuation report by the Government Actuary—no less than the Government Actuary—written before the 1st January 1975? Admittedly the increases were not written into the rules of the pension scheme, but this is because of the peculiar and indeed extraordinary nature of the financing arrangements for this scheme.
§ My Lords, may I be permitted to highlight some points on these financing arrangements? The members' contributions were not invested: they were used by the British Transport Commission in their business. Hence the Government indirectly had the use of the money, since they did not need to provide so much cash to support the commission. A completely fictional notional fund was built up in respect of the pension scheme, backed by no assets whatsoever. Every five years the Actuary carried out a notional valuation of this notional fund to determine whether there was a surplus because the members' contributions had been higher than they should have been. The whole charade (I can call it no less, my Lords) was authorised by the Statutory Instrument which introduced the scheme—a Statutory Instrument made by the same department which now proposes to treat the scheme in such (and I have to use the word) a shameful manner.1719
§ When, the Government Actuary carried out his valuation in 1974 it was apparent that the members' contributions had in fact earned a considerable surplus. Rather than release all this surplus straightaway, the Government Actuary reserved most of the surplus for future increases in pensions to provide at least some protection against inflation. Obviously this was particularly important for the younger members of the scheme, since the pensions are fixed monetary amounts not linked to wages, and inflation is likely to erode the already pitifully small sums provided by the time these members come to retire. The price protection outside the scheme, to which the Minister referred, does not start until after they retire.
§ My Lords, what the Bill does is to prevent the promised increases from being paid unless the Railways Board can find the money. But where is that money to come from? The Railways Board has no surplus funds. It is as much as it can do to meet current financial commitments. It certainly has no cash left over to provide these increases, which, although provided in respect of small individual pensions, are nevertheless quite costly in aggregate. The reality is that unless the Government find the money these increases will not be paid.
Let us now examine, with your Lordships' permission, the Minister's other main argument. Again I quote:
We must not forget that these railwaymen all rejected the option to transfer into a modern scheme with better benefits".
§ The Minister quoted this in support of his case. What support it gives, I frankly cannot see. But there is a vital fact which the Minister overlooked. When these railwaymen rejected the option to transfer into a modern scheme with better benefits, this was in 1978 when the people concerned could expect to look forward to the increases which the Government Actuary had allowed for in his 1974 valuation report. It was not until 1979—that is, one year after they had exercised their option to stay in the BTC Male Wage Grade Pension Scheme—that the present Bill, with its penal clauses, came along to deprive them of those increases. If this Bill remains unchanged it will undoubtedly be regarded by the members 1720 of the BTC Male Wages Grade Pension Scheme as restrictive legislation, a concept which is abhorrent to Parliament generally. If they had known that the Bill was coming, many of the members would no doubt have chosen to join a modern pension scheme; but they did not know.
§ My Lords, possibly I can summarise and conclude the case that I wish to bring before the House in these five short points. First, the increase could have qualified for support under the 1974 Act; that is, enough funding debt could have been created to enable such increases to have been provided assuming a reasonably successful investment policy. Secondly, the problem arises because of the extraordinary financial arrangements for the scheme; and these were instituted by the department itself. Thirdly, the increases in question were a firm expectation before 1st January 1975 and therefore can reasonably be regarded as historic. Fourthly, the members chose to remain in their scheme in 1978 because, among other reasons, they believed that the increases would be paid; hence the Bill appears to them to have precisely the same effect as retrogressive legislation. Fifthly, and finally, if this amendment is not made, the board will not be able to afford the increases and the pensioners will therefore suffer. I beg to move.
§ Lord DE FREYNE
My Lords, at the Committee stage my noble friend the Minister said that he had sympathy with the pensioners of this scheme. I have one specific question to put to him. As I understand it, the first of the increases in question is now due to be paid, an increase of 20 per cent. backdated to March 1979. This means that everyone who has retired from the scheme since that date should now get 20 per cent. more. I have inquired about individual cases and I should like to quote the example of a Mr. H, who retired on 25th May this year upon reaching the age of 65. He was a cellarman in the refreshment rooms at Marylebone and he had entered the railway service in 1934. His pension at present amounts to £1.56 per week. This would now be increased by 31p per week if the increases allowed for by the Government Actuary in 1974 are introduced. My question is: If the board cannot afford to pay these increases 1721 —and I understand that they have no finance for this purpose—will Mr. H get the increase he has been expecting or not? If not, how can this be explained to him?
§ Lord BELLWIN
My Lords, the noble Lord, Lord Mishcon, spoke with great conviction on this matter. I should like to speak with equal conviction, and make a few points that clearly have to be made. The noble Lord said that the increases could have qualified under the 1974 Act; but I say they could not. As the noble Lord said, the rules were not changed before 1st January 1975; and I reject entirely the claim that the legislation is retrospective. The noble Lord said that the increases were promised; but that is not the position. The increases were a contingency assumption made by the actuary. The board took no steps to pursue these. The board ignored the allegedly promised increases in the negotiations under the 1974 Act.
The noble Lord has suggested that the Government are being harsh and unfair. I cannot accept that charge, either. The 1974 Act was not concerned with the terms of railway pension schemes. It did not cover the improvements to which the noble Lord has spoken. The Bill, as I have so often said, is intended to reproduce the 1974 Act support. The noble Lord is asking for new expenditure on new support and I cannot advise the House to agree to this.
I spoke at some length to these amendments when we considered them in Committee. Today, therefore, in particular I hope that I need not explain the circumstances of this particular scheme, which was closed to new entrants 13 years ago. When it was closed, all members were given an option to join a much better scheme. Those who are still members turned down that option, and other options to join better schemes which they have subsequently been given. I am advised that the only pensioners of this scheme who did not have an opportunity to join a better scheme were those who retired in 1967. Since then their pensions have been fully indexed. The year 1967 was before inflation reached its present level.
Some of the railway pension schemes are very poor schemes—and I said exactly 1722 that when I spoke on this in Committee—with low contributions and equally low benefits. The BTC Male Wages Grades Pension Scheme is one of these. Other railway pension schemes are very good schemes indeed. They provide for pensions to be based on final salaries and for pensions in payment to be fully indexed in line with the retail price index. As I have said, all the members of the Male Wages Grades scheme have had an opportunity to join a new scheme. However, this Bill is not concerned with the terms of the schemes. It is concerned with the means by which support should be provided for the obligations which the board owed at the beginning of 1975, when the financial reconstruction in the 1974 Act came into force.
We cannot say for certain what would have been done under the 1974 Act. The negotiations were broken off before funding was completed. As it happens, the particular problem of the prospective increases in the Male Wages Grades scheme was never discussed in the negotiations, as I said. The board seem to have overlooked these increases. I understand that the actuaries took no account of these prospective increases in the calculations that were done for the 1974 Act, and I repeat what I said on that. The 1974 Act did not permit funding debt to be prescribed in respect of improvements to pension schemes made after 1 st January, 1975. The board could have improved the scheme—indeed they still can—but they will have to bear the cost themselves. I can only repeat what I said in Committee. I have considerable sympathy—who would not have?—with the members of this scheme, who stand to receive only very low pensions from the scheme. However, the purpose of this Bill is not to put right anomalies in railway pension schemes, and I cannot advise the House to accept the amendments.
My Lords, I feel I must clarify one point which to me is extremely important. At no time did the noble Lord, Lord Mishcon, suggest, as I think has been suggested, that this legislation is in any way retrospective. It manifestly is not. But what I think he tried to suggest, and it is something with which I have great sympathy, is that this aspect of this part of the Bill could in the 1723 future have a retrospective effect which, so far as the people affected by the Bill are concerned, comes to precisely the same thing.
The noble Lord knows better than anybody that the whole point with regard to retrospective legislation goes back deep into our history. I must stress the point to my noble friend that the retrospective effect of this legislation can be seen in this way—that people could in the future be penalised for actions they took in the past which they might not have taken had they known the Bill was coming. Is it because members of the railway pension funds have in the past exercised future irrevocable options between 1974, when the Railways Act arrangements were introduced, and 1979, when this Bill was first introduced at a time when they believed that all the pension schemes were to be properly funded under the Railways Act 1974 on an actuarial basis freely agreed with the managers of the pension schemes concerned?
Under the Bill the situation is very different. I shall not continue: this argument has been gone into before, but I believe it needs reiterating and I would implore my noble friend the Minister to consider this again very carefully, as indeed I know he has done.
§ Lord MISHCON
My Lords, I am sure the House will have listened with great interest to the contribution of the noble Lord, Lord Morris, and one noticed how the Government Chief Whip was intensely interested in the contribution that he had to make. I now know that the sympathy of the Government Chief Whip is obviously with me in this amendment—I could tell that from the look on his face!
I cannot believe—I mean this—that the Government would not want to take another look at what is a most miserable position. It has been created by the provisions and the new thoughts under this Bill, and one cannot throw it off merely by saying that this Bill is not dealing with pensions schemes and pension matters but it is dealing with something else. It is in reliance on the good heart of the Minister, who expressed sympathy and who I am sure does not want that to be a purely vacuous expression of pity but 1724 wishes to do something constructive about it that I shall not withdraw this amendment but allow it to be negatived, if it has to be. I hope that your Lordships will not let it be negatived, but if it has to be, it will be in the hope that something can be done between now and Third Reading: otherwise I must return to this theme, and it is a theme in a minor key. I do not think the Government will wish to join in such music at this time.
§ Lord DENHAM
My Lords, before the noble Lord withdraws his amendment, I think it is only fair to point out to him that if he allows it to be negatived he will not be able to return to it on Third Reading.
§ Lord MISHCON
My Lords, I must immediately say how accurate I was in thinking that the Government Chief Whip was in favour of my amendment! I do appreciate his very helpful observation: that I mean in all seriousness, because it was most kind of him to put me right about this. In those circumstances, with the very kind hint and in the belief that my faith in the Government is so well justified that I shall have some reward before Third Reading on behalf of these pensioners, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 10.25 p.m.
Lord MISHCON moved Amendment No. 55:
Page 46, line 33, at end insert ("; and
(d) any obligations of the Board arising after the operative date under the British Transport Commission (Male Wages Grades) Pension Scheme in respect of the prospective pension increases for which allowance was made in the actuarial valuation of the Scheme as at 31st March 1974.").
§ The noble Lord said: My Lords, this amendment is similar to one moved at the Committee stage, but withdrawn in order to study the Minister's remarks. It seems that the main reason for the Minister's objection to the previous amendment was the fear that the obligation would be greater than that which existed at 1st January 1975. I quote from what he said at the Committee stage. The noble Lord the Minister is looking at me—1725
§ Lord BELLWIN
My Lords, if the noble Lord will excuse me, I understood he said, when he spoke to previous amendments, that he was including this one as well. He said Nos. 55 and 57, and I assumed that he would now be talking on Amendment No. 56.
§ The DEPUTY CHAIRMAN of COMMITTEES (Earl Cathcart)
My Lords, I understood that the noble Lord spoke to, but did not propose, Amendment No. 55, and of course he cannot propose No. 57 because it is not consecutive.
§ Lord MISHCON
My Lords, I apologise to the House. I am full of apologies tonight, and I am sorry if I have put two feet wrong successively. I spoke, I thought, with the leave of the House, to Amendments Nos. 54, 55 and 57. I thought, therefore, that having disposed of my speech and having withdrawn, I was now being allowed to speak to No. 56. I had not heard No. 55 called. I thought it was No. 56, so I apologise and sit down.
§ Amendment, by leave, withdrawn.
§ Lord MISHCON moved Amendment No. 56:
Page 46, line 33, at end insert—
("() Such obligations shall take account of the amendments introduced with effect from the date when employments in respect of which pension rights are earned under the scheme were contracted out under the Social Security Pensions Act 1975 but only to the extent that the relevant pension obligations shall not exceed the total payments which would have been payable if the scheme rules had remained unchanged since 1st January 1975.").
The noble Lord said: My Lords, I am grateful. This amendment is similar to one moved at the Committee stage, but it was withdrawn in order to study the Minister's remarks. It seems that the main reason for the Minister's objection to the previous amendment was the fear that the obligation would be greater than that which existed at 1st January 1975. I quote from what he said at the Committee stage at column 685:
But the Bill, like the 1974 Act, is concerned with the pension entitlements that existed at 1st January 1975, and not with subsequent increases in those entitlements ".—[Official Report, 19/5/80.]
§ In order to meet this point, the amendment now put forward contains a proviso which makes it quite clear that the obligations will not in any case exceed 1726 the total payments, including pensions increases, which would have been payable if the scheme rules had remained unchanged since 1st January 1975.
§ The point is that the decision to contract out under the Social Security Pensions Act 1975 resulted in increases in certain obligations and decreases in others. The Bill takes credit for the decreases, but does not meet the cost of the increases which arise from precisely the same cause, even though the increases are less than the decreases. This seems to be eminently unfair and the amendment seeks to ensure that the pension funds do not lose under the one heading, because they have saved the Government money under the other heading by contracting out. Even if the amendment is passed, the Government's obligations will be no greater than if contracting out had not taken place, and no greater than the Government's obligations would have been under the 1974 Act, assuming that the funding debt would have been calculated fairly. My Lords, I beg to move.
§ Lord BELLWIN
My Lords, my noble friend Lord Sandys spoke at some length to a similar amendment at Committee stage and I would not wish to repeat all that he said on that occasion. I should, however, like to remind the House of the purpose of Part III of the Bill. It is intended to reproduce by a different means the support for the board's historic pensions obligations that was to have been provided under the Railways Act 1974. In particular, we are seeking to define the relevant pension obligations of the board in Clause 45 of the Bill in such a way that they equate to the obligations that were to have been supported under the Railways Act 1974. The pensions provisions of the 1974 Act formed only one part of a comprehensive reconstruction of the board's finances. We are not seeking to re-open the general financial settlement laid down in the 1974 Act. The noble Lord, Lord Mishcon, said that the Government are in some sense being unfair or inequitable.
It has been suggested that the Government are in some sense being unfair or inequitable. I cannot accept this suggestion. We have gone to considerable lengths to make sure that the Bill covers all the obligations that would have been 1727 supported under the Railways Act 1974. When the Bill was being drafted, we accepted a number of suggestions from the board to achieve this aim, and some of the Government amendments which have already been moved were also designed to achieve this aim. I might mention—by way of examples—the amendments on transfer values which I moved in Committee and the amendments on current service contributions which my learned friend the Parliamentary Secretary moved in another place. We have endeavoured to deal absolutely fairly with the board in this respect.
It is not in dispute that support was not going to be provided under the 1974 Act for the increases in the board's obligations which are the subject of the present amendment, and, that being so, I can state our position quite simply. The purpose of the amendment is to enlarge the commitment which the Government and the taxpayer incurred in 1974, and that is in our view outside the ambit of the Bill. Therefore I cannot accept it.
§ Lord MISHCON
My Lords, I will not burden the House with a detailed answer to the Minister's speech. I am afraid he has completely forgotten the proviso which I emphasised, and which I emphasise again, because that proviso, in my respectful submission, meets the main burden of his argument; namely, that the amendment now put forward contains this proviso which ensures that the obligation will not in any case exceed the total payments—I am repeating what I said before—including pensions increases which would have been payable if the scheme's rules had remained unchanged since 1st January 1975.
I do not feel that your Lordships will be in the mood to take this matter any further at this stage. It is a very technical matter. I have tried hard to understand it myself and to put it to your Lordships in the clearest possible language, and I do not want an injustice to be suffered as a result of the lateness of the hour and my own inability to put over a technical matter in the way it should be put to your Lordships.
In those circumstances, and only in those circumstances, I ask leave to withdraw the amendment; but I do so in 1728 the hope that the noble Lord the Minister will consider what I have said, and especially my speech in reply, and if he could communicate some hope to me in the meantime it would help me in my attitude on Third Reading.
§ Lord BELLWIN
My Lords, with the leave of the House, of course. As the noble Lord said, this is technical and complicated. We shall read very carefully what the noble Lord has said. He knows my position; I have stated it. We will read it and consider it, he can be assured.
§ Amendment, by leave, withdrawn.
§ Lord MOWBRAY and STOURTON
My Lords, I think this might be a suitable moment that I move the Motion that the House do now adjourn.
§ Moved accordingly and, on Question, Motion agreed to.