Lords Sitting of 24 January 1991

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St. Albans.): The LORD CHANCELLOR on the Woolsack.
Lord Harmsworth Lord Harmsworth—Sat first in Parliament after the death of his uncle.

Air Transport: Slot Allocations
3.2 p.m.
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether at the meeting of the European Community Council of Transport Ministers on 17th-18th December 1990 it was agreed that there should be a further if informal meeting to discuss the slot allocation proposals of the Commission prior to action being proposed at the forthcoming meeting on 27th March.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, the Commission's slot allocation proposals were not discussed at the EC Transport Council last December. However, I understand that the Commission has now agreed a draft regulation on slot allocation, and this will be sent shortly to member states. The proposal will then be discussed fully by the Council of Ministers and its working groups. It is too early to say whether Ministers will discuss it at their meeting on 27th March.
Baroness Burton of Coventry: My Lords, as the problem of slot allocation is a vital one for the future of our aviation industry, especially considering the recommendations made by the CAA yesterday, is the Minister able to give the House any indication of when he expects the draft regulation to be circulated to member states? Can he also give the House any help about the Government's own slot allocation consultancy?
Lord Brabazon of Tara: Yes, my Lords. The Commission's proposals should be circulated in the next two or three weeks. As regards the Government's own slot allocation consultancy, the consultants have recently completed stage one of the work. The Government see the work of the consultants as a valuable contribution to the debate within Europe about slot allocation methods.
Lord Boyd-Carpenter: My Lords, can my noble friend make it clear that there is no intention on the part of the Government to hand over the allocation of the slots from British authorities to European ones?
Lord Brabazon of Tara: My Lords, at the moment the allocation of slots is not made by the Government but by the scheduling committees of the various airports themselves. I believe that the Commission's proposals make arrangements for new entrants
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particularly if they are to come into the market. We welcome the principle of the proposal, but there is a great deal of detail that needs to be sorted out.
Lord Clinton-Davis: My Lords, in the light of current difficulties being experienced by major United States carriers, does the Minister agree that at this stage the wrong signal should not be sent about the possibility of making slot allocations to new carriers, in place perhaps of Pan Am and even TWA, before any question of concessions is sought from the United States' authorities which would enable much greater freedom of the skies by British and other carriers in the United States?
Lord Brabazon of Tara: My Lords, the noble Lord is quite right. We are in negotiation with the United States Government at the present time. We had a round last week and there is another next week. That is more concerned with the traffic distribution rules on which the CAA's advice was published only the day before yesterday.

National Curriculum: Pupil Assessment
3.5 p.m.
Baroness David Baroness David asked Her Majesty's Government:
What further developments there have been with the Government's plans for the assessment of 14–16 year-old pupils under the National Curriculum.
The Parliamentary Under-Secretary of State, Department of the Environment (Baroness Blatch): My Lords, my right honourable friend the Secretary of State for Education and Science has responded positively to views expressed by the teaching profession in developing his predecessor's plans for flexible assessment arrangements for 16 year-old pupils.
Baroness David: My Lords, I thank the Minister for that Answer, which I did not find very enlightening. In order to get the matter absolutely clear, can the Minister say whether the assessment for the National Curriculum at key stage 4 will be separate from the results of the GCSE, or will they be amalgamated? If an employer wants to know the results, and a young person has a grade A, B or C in GCSE, will that be the exact equivalent of the assessment for the National Curriculum?
Baroness Blatch: My Lords, because the flexibility has only recently been introduced, the very specific arrangements for testing and attainment targets are still under discussion. The National Curriculum scales will be most commonly used. I promise and assure the House that all subjects will be tested against validated attainment tests. They will all be subject to consultation with the professions.
Baroness David: My Lords, can the Minister say when these matters will be straight—
Lord Thorneycroft: My Lords, can my noble friend tell me whether the discussions will include such bodies as the Confederation of British Industry in

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order to ascertain what can be done to reduce the number of pupils who seem to leave school unable to read, write or to do simple arithmetic?
Baroness Blatch: My Lords, as regards the first question, I can tell the House that all these matters are being addressed at this time. The House will be informed of the detailed arrangements for each subject. That links closely with the second question from my noble friend. All the reforms to be put in place are precisely to address the issue of standards. Business and technical subjects are very much a core part of the National Curriculum.
Lord Ritchie of Dundee: My Lords, can the Minister say how the assessments made at the school leaving age will relate to the records of achievement which the Government have already piloted? Are the Government proposing to introduce this system? How will it relate to the assessments that are made at the school leaving age?
Baroness Blatch: My Lords, the record of achievement is a subject for another Question. Achievement in terms of examination results is only one part of the profile of a young person leaving school.
Lord Hailsham of Saint Marylebone: My Lords, when these arrangements are completed will they be reduced to writing? Can my noble friend say what plans the Government have to publish them, and when?
Baroness Blatch: My Lords, it is a firm commitment on the part of Government that the outside world shall know about the achievements of our young people in school.
Baroness Blackstone: My Lords, can the Minister say what are the Government's intentions concerning the individual school-by-school publication of results of the assessment of the National Curriculum? I believe that over a year ago there was some indication that the Government would say what they intended but, so far as I know, we have not heard anything. Can the Minister say what is intended and whether the intake of schools will be taken into account in the presentation of any results?
Baroness Blatch: My Lords, that is an entirely different Question to the one on the Order Paper.
Baroness Blackstone: My Lords, I must protest. The Question on the Order Paper is a wide-ranging one on further developments in relation to the assessment of the National Curriculum. The question of publication is absolutely crucial.
Baroness Blatch: My Lords, the Question on the Order Paper is about the method of assessment; it is not about the publication of results.
Baroness David: My Lords, perhaps I may ask one further question. As a result of the changes in the Government's plans there will be a need for a great deal of extra finance for education. Will more money be provided to schools for the extra text books and so on which will be needed?
Baroness Blatch: My Lords, there has been a great deal of extra money directly related to the development of the National Curriculum. The Government will continue to address the needs of the National Curriculum when considering the budgets for schools.

Gulf War: Casualty Dispersal Plans
3.11 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they are satisfied that sufficient liaison has taken place with the local health authorities to ensure that any casualties from the Gulf are sent to the most appropriate hospital.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): Yes, my Lords.
Lord Molloy: My Lords, I am grateful for that very assuring response. Does the noble Baroness not agree, however, that all war wounds are of a special nature? Does she not further agree that on this occasion we may be facing wounds resulting from the use of biological weapons? We have learnt from medical staff dealing with those injured through contact with oil slicks that they have themselves been contaminated. Will that matter be taken into consideration when treating casualties resulting from the use of biological weapons? Can we be sure that the staff treating them will not be contaminated?
Baroness Hooper: My Lords, arrangements exist for casualties resulting from the use of biological or chemical weapons. The immediate effects will be dealt with and treated in the war zone. Decontamination will take place there. Only the long-term effects will need to be catered for in the National Health Service.
Lord Wallace of Coslany: My Lords, can the noble Baroness give an assurance that casualties will be dealt with in the most appropriate hospital, whether that be National Health Service or private?
Baroness Hooper: My Lords, each region has considered with its managers and senior clinicians the arrangements for dispersing casualties. In some regions, specific hospitals have been designated to be on call; in other regions, all district general hospitals will stand by. Final decisions will be made in the light of the circumstances at the time. Into this context we would feed the fact that private sector hospitals have offered certain facilities. They are being taken into account and the arrangements are being made.
Lord Ennals: My Lords, I welcome the statement made by the Secretary of State yesterday that he has requested health service managers to use private hospitals to avoid existing waiting lists growing as a result of war accidents. I ask the noble Baroness for two assurances. First, will the Government ensure that in this connection private profit is not made out of those who suffer in this war? Secondly, will she give an assurance that additional funds will be made available to health authorities so that they do not suffer as a result of dealing with war casualties?
Baroness Hooper: My Lords, my right honourable friend the Secretary of State announced last week that we shall provide extra money to meet the full costs of any Gulf casualties. We are giving guidance on how to account for and reclaim Gulf costs. This means that health authorities will be able to continue to use all the money in their normal allocations for their normal workload, even if this is deferred as a result of any casualties.
Baroness Masham of Ilton: My Lords, is the Minister aware that some of the world experts on war-related injuries are surgeons from Northern Ireland? Should they be needed, will they be called upon, or are they perhaps already in the Gulf?
Baroness Hooper: My Lords, assessment of the type of expert who may be needed in relation to casualties has been taken into account and provision has been made. Some are in the Gulf and others will remain in the United Kingdom to deal with homebound casualties.
Lord Molloy: My Lords, is the noble Baroness aware that the reply she gave to my noble friend on the Front Bench will be very much welcomed by local authorities and the National Health Service? It was a good answer.
Noble Lords: Oh!
Lord Molloy: My Lords, I do believe that things which are rare need to be underlined. Does she not agree that the private sector and the National Health Service will regard their treatment of our wounded or injured servicemen and servicewomen as an act of joining together in a national emergency? They will not be too concerned with the cost of the service they give.
Baroness Hooper: My Lords, I fully agree with the first part of the noble Lord's supplementary question. As for the second part, I take the opportunity to emphasise once again the way in which our emergency services—the ambulancemen, our doctors, nurses and all our hospital workers—respond so magnificently to emergencies in the health service: witness the Cannon Street disaster a week or so ago. In this situation, time will be on our side because there will be a time lag between any treatment given on the spot in the Gulf and the arrival of casualties in this country.

The Baltic Republics: Independence Dispute
3.15 p.m.
Lord Hylton Lord Hylton asked Her Majesty's Government:
What they consider to be the best and most appropriate ways of assisting those in the Baltic republics who are seeking independence.
The Minister of State, Foreign and Commonwealth Office (The Earl of Caithness): My Lords, we believe that the best way we can help the Baltic republics is by using our influence with the Soviet authorities to urge
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them to negotiate with elected republican representatives to bring about a peaceful resolution to their dispute.
Lord Hylton: My Lords, I am grateful to the noble Earl for his Answer and also for his Written Answer of yesterday. In view of the urgency and seriousness of the situation, will the Government consider raising the matter with the United Nations Security Council and possibly also with the International Court of Justice?
The Earl of Caithness: My Lords, I agree with the noble Lord that this is an urgent and serious matter. He asked about raising it at the United Nations. That can be done, but one has to question whether that is the most effective way to proceed. What we want to do is to resolve the problem. The best way of resolving it is by negotiation between Moscow and the republics.
Lord Jenkins of Putney: My Lords, does the noble Earl agree that his caution in reply to this Question is commendable? Is it not the case that a federal or confederal arrangement might be very much better than the Balkanisation of the Balkans?
The Earl of Caithness: My Lords, that is not for us to say.
Lord Cledwyn of Penrhos: My Lords, can the noble Earl say how the matter is to be dealt with? Is it on the agenda of the meeting of European Community Foreign Ministers? If it is, what will the Foreign Secretary, Mr. Douglas Hurd, be advocating? Furthermore, while we deeply deplore the violence used by the Soviet troops in Estonia and Latvia, is the noble Earl able to say whether there is clear evidence that this was due to orders from Mr. Gorbachev? Although we appreciate that he is responsible for what takes place in the Soviet Union, was this regional action taken without his knowledge?
The Earl of Caithness: My Lords, it is still not clear on whose responsibility the latest actions were taken. When that is clear I hope to be able to bring the House up to date.
With regard to the noble Lord's first question, we shall be looking for ways in the longer term to promote the prospects of fundamental reform in the Soviet Union. Our assistance to the Soviet Union cannot continue as if in some way isolated from the real political world. I am sure that that will be raised at the meeting of European Community Foreign Ministers.
Lord Mellish: My Lords, is it not ironic that Mr. Gorbachev is the man who opened the doors and enabled these people to protest? I agree with the noble Earl. This is a matter for negotiation between ourselves, Mr. Gorbachev and the Soviet Parliament. Let us see whether we can get some sense out of this extraordinary situation.
The Earl of Caithness: My Lords, I am sure the whole House will agree with the noble Lord that negotiation is the right way forward.
Lord Mowbray and Stourton: My Lords, might it be possible to remind the Russian Government that even in the days of Mr. Stalin Russia voluntarily withdrew

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from the parts of Austria she had occupied in return for a neutrality zone and non-militarisation? Is there perhaps some way forward in that direction?
The Earl of Caithness: My Lords, I think there are lots of ways forward. Those are best pursued not by us making suggestions but by negotiation between Moscow and the Baltic republics concerned.
Lord Mayhew: My Lords, following on from the question put by the noble Lord, Lord Cledwyn of Penrhos, can the noble Earl say whether this matter is on the agenda for the next meeting of the Foreign Ministers? If that is so, can he say what line the Government will take? Further, will they aim to achieve unity at the meeting?
The Earl of Caithness: My Lords, I do not know whether the matter will be on the agenda. In replying to the noble Lord, Lord Cledwyn of Penrhos, I said that I thought it most likely that the subject would be raised as it is of some anxiety. It has already been raised in the Community forum and action has been taken.

Business of the House: Debate, 30th January
3.20 p.m.
The Lord Privy Seal (Lord Waddington): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debate on the Motion in the name of the Lord Rodney set down for Wednesday next shall be limited to 5 hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules of the Conduct of Short Debates shall apply to the debate with the substitution of "5 hours" for "2½ hours" and "25 minutes" for "20 minutes".—(Lord Waddington.)
On Question, Motion agreed to.

Deputy Chairman of Committees
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Skelmersdale be added to the panel of Lords appointed to act as Deputy Chairmen of Committees for this Session.—(The Chairman of Committees.)
On Question, Motion agreed to.

Consolidation Bills: Joint Committee
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That pursuant to Standing Order 49 the Lords following be appointed to join with a Committee of the Commons as the Joint Committee on Consolidation Bills:

Airedale, L.

Alexander of Tunis, E.

Gisborough, L.

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Grey, E.

Hanworth, V.

Jauncey of Tullichettle, L.

Lloyd of Kilgerran, L.

Lowry, L.

Milner of Leeds, L.

Renton, L.

Strabolgi, L.

Underhill, L.

That the Committee have power to agree with the Committee of the Commons in the appointment of a Chairman;
That the Minutes of Evidence taken before the Committee from time to time be printed and, if the Committee think fit, be delivered out; and
That a message be sent to the Commons to propose that the Joint Committee do meet on Wednesday 6th February next at half-past four o'clock in Committee Room 4.—(The Lord Chancellor.)
On Question, Motion agreed to, and it was ordered that a message be sent to the Commons to acquaint them therewith.

Crime of Vagrancy (Abolition) Bill [H.L.]
Lord Stallard: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Stallard.)
On Question, Motion agreed to.

New Roads and Street Works Bill [H.L.]
3.21 p.m.
Report received.
Lord Clinton-Davis: My Lords, before we embark upon the Report stage, I should like to place on record my appreciation to the noble Lord, Lord Brabazon of Tara, for the way in which he communicated with me, and indeed with other noble Lords, in response to various points raised in Committee. That can only help the way in which we conduct the proceedings on Report and I thought it appropriate that I should place my appreciation on record.
Clause 1 [Concession agreements]:
Lord Renton Lord Renton moved Amendment No. 1:
Page 1, line 8, after ("Part") insert
(" a general environmental duty arising under").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 2 and 8. I should point out at this stage that Amendments Nos. 1 and 2 are merely paving amendments for Amendment No. 8 which proposes that there should be a new clause placing a "general environmental duty" upon the concessionaire and the highway authority when a new private road is being built.
Like, I hope, most of your Lordships I am in favour of new roads being built by private enterprise, but surely they should not be built in ways which may damage the environment. The Bill at present makes no reference to the environmental effects of proposed privately-funded roads, nor does it deal with their effect on land-use planning policies. Surely there should be at least as much care and public scrutiny when building privately-funded roads as when building public roads. I am glad to say that the proposed new clause is supported by my noble friend Lord Norrie and that the noble Lords, Lord Clinton-Davis and Lord Tordoff, have also attached their names to it.
The proposed new clause would ensure that powers given in the Bill were exercised in a way that would,
"further the conservation and enhancement of natural beauty",
and so on. There are good precedents for it; indeed, there are no fewer than nine of them already on the statute book. The first is to be found in Section 36 of the Electricity Act 1957 which, I should confess, was proposed and approved in another place when I was Parliamentary Secretary at the Ministry of Power. Since then other precedents have followed, the most recent of which happened to apply to privatisation Acts. The same provisions, broadly speaking, can be found in the Water Act 1989, the Electricity Act 1989 and the Coal Industry Act 1990. If it was right to legislate in that way for those three big industries, surely it must be right for us to do so when private roads are being built. I hope that this innocuous but obviously desirable and necessary provision will appeal to the Government as well as to noble Lords on both sides of the House. I beg to move.
Lord Norrie: My Lords, I rise to express my support for the amendment moved by my noble friend Lord Renton. I believe that when private companies are given powers which have previously been the sole domain of public authorities we have an essential duty to ensure that adequate environmental safeguards are mandatory and not discretionary. That is especially important because under such conditions a developer of privately-funded roads will be seeking to balance his books as quickly as possible and environmental protection may be cut to reduce the financial burden.
Let us consider, for example, the consortium which has proposed the east coast route. On Tuesday it published its report on an extension from the M.11 over the Humber Bridge alongside the North Yorkshire moors to Tyneside. It could be that during the preparation and design stage the financial outlook of the consortium changes. Consequently, the countryside protection measures, such as major work to minimise disruption to the natural drainage system or the construction of tunnels to maintain the integrity of ancient woodlands—expensive, but vitally important—may be dropped.
We must try to prevent the countryside from being short-changed simply as a consequence of the economic outlook. We must ensure that the private developer has a legal requirement to protect and repair the countryside through which his new road will
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pass. As my noble friend said, public authorities, including the Department of Transport, have an environmental duty under Section 11 of the Countryside Act. I believe that a similar safeguard must be passed on to the private sector through this legislation because of the major impact of roads on wildlife and the landscape of our country.
Lord Clinton-Davis: My Lords, I also support the proposal in this group of amendments. It surprises me that the Government did not volunteer such a proposition in the Bill. As the noble Lord, Lord Renton, said, there is ample precedent for including a provision of this kind. There could be no more demonstrable need for it than in this Bill. In a sense, we are talking about a not altogether unprecedented situation, but a largely unprecedented one, in the development of concession roads. The public are entitled to demand that the most stringent environmental standards will be deployed in these circumstances.
Amendment No. 8 is valuable because it concerns itself with the environmental implications of concession roads, and the existence of a duty along the lines proposed could help to mitigate their impact. I do not wish to pre-empt the wider proposition contained in the coming debate, but it is not irrelevant to say that two important factors arise in the context of that environment amendment.
In regard to Amendment No. 1, my first point effectively relates to localised environmental implications. It does not seek to tackle the effects the construction of a concession road could have, for example, on the Government's policy of returning carbon dioxide emissions to 1990 levels by the year 2005. Secondly, as a condition precedent the amendment requires arrangements to be in place to ensure that the concessionaires comply with their environmental duty. That would require the type of objectives-led assessment procedure to which we will turn later.
Having said that, I support the proposition before the House and hope that the Government will welcome it.
3.30 p.m.
Lord Tordoff: My Lords, from these Benches I, too, welcome the amendment. It is undoubtedly a multi-party issue; it is not necessarily a non-party issue but I am glad to say that environmental matters now stretch across party boundaries. There is no doubt that the representations we have all received from interested countryside bodies commend the amendment to the House.
When building a private rather than a public road there is perhaps a temptation, from the financial aspect, to squeeze out some of the environmental aspects that would normally be considered if the local authority or highway authority were building such a road. It is therefore important that there should be this safeguard.
No doubt the Minister will say that there is no need for the amendment and that these matters can be included in the concession agreement. I am sure that

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that is the Government's intention, but I feel that it is not only useful but essential that the provision should appear on the face of the Bill to ensure that future governments are not tempted to go back on it.
Lord Renton: My Lords, before the noble Lord sits down perhaps I may say that in regard to including that provision in a concession agreement the new clause provides for that to be done. However, there is no such requirement in the Bill.
Lord Tordoff: My Lords, obviously I did not make myself clear. I commended the amendment to the House because the Bill does not contain a requirement and it therefore needs an amendment to ensure that such matters are included in a concession agreement. I hope that the Government agree.
Lord Brabazon of Tara: My Lords, the Government fully recognise and support the importance of conserving and protecting our countryside and our natural and historic heritage. Indeed, because of this we already make full assessments for our road schemes of the effect on those items listed in this amendment, and also on other factors. Our environmental appraisal procedures involve the assessment of 11 separate factors: they are more thorough than those required by the European Community and they cover a wider range of road schemes—all except the smallest local improvements. These procedures will apply equally, and no less rigorously, to roads promoted by concessionaires.
Measures to mitigate any adverse effects identified form an important part of the design of all our road schemes. The range of measures taken, in consultation with statutory environmental organisations like the Nature Conservancy Council and English Heritage, is wide and impressive. Route proposals can be realigned to avoid natural or historic features. New habitats can be created to entice creatures as varied as dormice and butterflies away from roads. On the M.40, which my right honourable friend the Secretary of State for Transport opened last week, we dismantled and rebuilt a listed building.
Our procedures and practice are continually being improved. A revised version of our manual of environmental appraisal is being produced this year, and we expect shortly to receive the report of the Standing Advisory Committee on Trunk Road Assessment on the monetary valuation of environmental effects—a subject on which we have also commissioned research. There will be further developments as the proposals for privately financed roads already on the table come to fruition. The standards applied to those roads must be the same as those applied to the Secretary of State's roads, and we should not seek to limit their application, as is implied in the phrase "so far as possible" in the amendment. We expect the same high standards to apply to the tenderers for concession agreements as currently apply for trunk roads, and indeed we shall not settle for less. I am confident that local highway authorities would not either.
I find the purpose of the amendment extremely laudable. These are important issues and it is right
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that they are fully discussed; but I firmly believe that the existing procedures would not be improved by the amendment. Indeed, they may even be slightly damaged. Privately financed roads must, and it is our intention that they shall, be assessed by the same environmental criteria as apply to the Secretary of State's roads.
Lord Clinton-Davis: My Lords, before the Minister sits down perhaps I may ask him a question. He said that the Government's methods of appraisal in regard to the planning of these matters are wider than the European directive. Am I to understand that they are wider than the regulations that were tabled in 1988? I refer to the Highways (Assessment of Environmental Effects) Regulations 1988 and unless I am mistaken they merely mirror the provisions of the European directive.
Lord Brabazon of Tara: My Lords, I am told that the methods are in fact wider, as I said in my opening remarks, and involve 11 separate factors. If the noble Lord wishes I shall write to him with a full explanation of them. However, having given that assurance to my noble friend I hope that he will not feel it necessary to press the amendment.
Lord Renton: My Lords, my noble friend has given the broad statement that the Government's proposals are wider than the European directive. He spoke of existing procedures and practice. He said, and we welcome it, that the Government intend that the same high standards will be maintained in the building of private roads as in the building of public roads. However, he has not mentioned a single legal provision to support the arguments that he used. Before I reply I give my noble friend the opportunity to quote the legal provision on which he relies. In default of that we shall have to reconsider the matter.
Lord Brabazon of Tara: My Lords, I cannot give the legal provision required by my noble friend. However, all these roads will have to go through the same planning procedures as ordinary government roads. In my hand I hold an introduction to the Highways Act. I am prepared to allow my friend to see it, but I do not wish to quote from it extensively at the moment.
Lord Renton: My Lords, I am grateful to those noble Lords who have spoken in support of the new clause. I am grateful to my noble friend for his answer as far as it goes. I hope that I am not presuming too much, but when he is being advised on an important matter of this kind the House is entitled to chapter and verse in regard to the provisions on which he relies. After all, statements made by him, however well worded, sincere or well-intentioned, are not part of the law.
The right course for me to take in the circumstances is this. I shall give my noble friend the opportunity between now and Third Reading of inviting the attention of all noble Lords who spoke to the amendment, including myself, to the provisions upon which he relies. My understanding is that the

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Highways Act 1980 applies only to public roads because privately-funded roads were not even thought of when that Act was introduced.
In Clause 22 there is a difference to the Highways Act 1980, but it does not refer to any environmental factor, to town and country planning or to conservation. If he relies on that in saying that private roads will have the same treatment as public roads, I invite his attention to the fact that it does not do so. Therefore perhaps I may have the leave of the House to withdraw my amendment, on the understanding that between now and Third Reading my noble friend will produce the provisions on which he relies, if he can do so. If he cannot, we shall have to come back to this matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 2 not moved.]
3.45 p.m.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 3:
Page 1, line 8, at end insert ("in accordance with a scheme approved under section 16 of the Highways Act 1980 and").
The noble Lord said: My Lords, I beg to move Amendment No. 3 and it may be for the convenience of the House if we also consider Amendments Nos. 179 and 40. This is a much wider issue than that which was posed in his customary eloquent way by the noble Lord, Lord Renton. The purposes of the amendments which we are moving are three. First, we are looking for a detailed environmental assessment to be made available when a concession agreement is entered into by a highway authority and concessionaire.
Secondly, we require any proposed new road constructed under the provisions of the Bill to be subject to an environmental assessment wider in its implications than those so far signalled by the Minister. Thirdly—and this is part and parcel of what I have just said—we seek to revise substantially the environmental assessment procedures for the purposes of the Bill.
I ought to say right at the beginning that there is a minor drafting error in the amendment. Subsection (4) of the proposed new clause should refer to subsection (3) (g) rather than (e). No one can doubt—and this is a major part of the point deployed by the noble Lord, Lord Renton—that we are dealing here with environmental implications relating to transport policy which are of the greatest significance.
At Second Reading we deployed arguments concerning the broad issues which we are now considering. We embarked on that further at Committee stage, but nonetheless I make no apology for returning to these matters at Report stage. The matter is of considerable environmental importance and the Government themselves recognised that in their White Paper. The White Paper sought to stress a number of issues which need to be addressed if transport policy is used as a means of improving environmental quality. What it did not do—and this is a significant omission—was provide the kind of national policy commitment that is required if the
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benefits it holds out are to be achieved. The weaknesses contained in Parts I and II of the Bill exemplify that failure.
For example, concerning global warming, the White Paper simply reiterates the Government's commitment to return carbon dioxide emissions to their 1990 levels by the year 2005. It recognises that the transport sector is a significant contributor to the total CO2 emissions and to other greenhouse gases. It identifies a range of measures which are designed to make people aware of the environmental implications of their transport machines, to improve vehicle fuel consumption and to encourage transport choice.
However, having said that, the glaring failure of the White Paper was to establish a target for the transport sector so that it would shoulder its proper share of the burden of the Government's CO2 commitment. It simply does not face up to the implications of the most recent national road traffic forecasts or the need for the Government to indicate what level of traffic growth they are prepared to accept. We know that the 1989 national road traffic forecast indicated that total traffic would increase between 83 per cent. and 142 per cent. by the year 2025. We know those facts but the Government duck the implications.
A study has been undertaken by Earth Resources Research for the World Wide Fund for Nature which I hope the Minister has read. It illustrates the tremendous atmospheric implications of traffic growth at the level suggested by the 1989 forecast. By the year 2020, at the level predicted, traffic growth would outweigh the benefits of catalytic converters; it would lead to more nitrogen oxide emissions than we have at present and between 50 and 63 per cent. more carbon monoxide emissions. Despite improvements in road vehicle fuel efficiency and assuming the lower traffic forecast, it would result in an increase in carbon dioxide emissions of 20 per cent.
These matters have been addressed by a number of respectable bodies: the Council for the Protection of Rural England, the Association of District Councils and the Association of Municipal Authorities. All of them come to a similar conclusion: that it is essential that the question of what level of traffic growth to plan for is addressed by central government, involving all relevant departments of government, and by local authorities.
It is necessary in such discussions to take into account the need to ensure that transport policy contributes to a reduction in emissions, particularly of carbon dioxide. It is also necessary to consider the extent to which transport needs, which the forecast growth in demand is expected to meet, can be satisfied by alternative transport modes or by land use policies aimed at reducing the need to travel. In summary, that is what the AMA and the other organisations say.
In the amendment we wish to ensure that roads which are promoted under this Bill can be dealt with satisfactorily within a concerted effort to achieve the Government's own environmental objectives. As I said, the matter was raised at Committee stage. The Minister then said, while recognising that the environmental implications of the road schemes are significant:

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"the right time for these matters to be debated publicly is at the public inquiry, which will thoroughly scrutinise and explore the road scheme as a whole, with the toll order. Wherever required by the Highways Act and the European Directive on Environmental Impact Assessment a formal environmental statement will be published with the draft special road scheme and toll order".—[Official Report 4/12/90; col. 108.]
If I may say so, that reply was not wholly on all fours with what the Minister had to say earlier this afternoon. I was led to suppose that the Government's policies in this regard were dictated by the regulations of 1988. Apparently that is not so; the situation is wider. We await with interest what the Minister has to say in order to discharge his responsibilities to the House in that regard.
However, the Minister's reply at the Committee stage gave rise to more questions than answers. First, the reply assumes that it is acceptable to leave the assessment of the environmental implications of a concession road to the special road scheme order and toll order stage. Secondly, it assumes that the procedures that currently prevail for environmental assessment under the Highways Act are adequate. I submit that that is not the case. The approval process for a concession road looks set to be extremely confusing, particularly for outside organisations which might attempt to monitor and influence progress. The normal process of planning consent and, in certain cases, a special road scheme will be supplemented by the concession agreement and toll order.
When we debate the proposed new clause after Clause 6—that new clause concerns publicity for toll orders—we shall be able to discuss how the process is to work in rather more detail than I propose to go into now. However, it is relevant now to point out that on the basis of the Bill, and on the basis of assurances that have been given by the Minister, the completion of the concession agreement will represent an important stage in the formulation of proposals for a concession road. This amendment would ensure that environmental considerations were properly addressed at that formative stage. That is important because effective environmental policies rely on environmental issues being addressed at an early stage in the planning process. That point was taken up by the noble Lord, Lord Renton, when we debated this matter in Committee. He referred to it today as well.
Another argument that could be used to support this approach is that Clause 1(4) makes provision for compensation to be paid to a concessionaire where a special scheme for authorising a road,
"is not made or confirmed".
Therefore early assessment of the environmental implications of a road should reduce the chances of such compensation being rendered necessary.
However, the key aim of our intentions is to address the defects in the procedures prevailing now for appraising the environmental consequences of road schemes. It is important to make the following point in that regard. These defects are much more significant in the case of concession roads than in relation to roads financed in the normal way. I believe
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that point gave rise to some of the concern that was expressed by the noble Lord, Lord Renton. It is absolutely central to the whole raison d'etre of both local highway authorities and the Department of Transport to balance competing priorities and objectives in their planning processes. That is not the case in relation to the promoter of a concession road. His overriding objective is to secure a return on investment.
The defects which we are attempting to tackle by this amendment may be summarised in the following way. First, it is important that assessments should relate to the transport needs that the road is designed to meet, complemented by an assessment of the extent to which those needs could be met in other ways, by, for example, the provision of additional public transport facilities or the use of other traffic measures. Secondly, it is important to ensure that environmental factors are given at least equal priority with, for example, time savings. The latter are given great and perhaps undue weight in current assessment criteria compared with environmental benefits as a whole. Thirdly, there is the need to recognise the fact that the provision of additional road space can of itself generate additional traffic. It is essential that this traffic generation factor, as evidenced by the M.25, should be taken into account in the process of appraisal.
Fourthly, it is important to assess the impact of a proposed new road in relation to national targets of, for example, carbon dioxide emissions. The amendment provides for the factors set out in Clause 1(3) to be amended as experience is obtained and environmental policies are developed. Our amendment has that flexibility. The amendment would provide a way of ensuring that concession roads contributed to, rather than undermined, national environmental policies.
As I have already said, I recognise that this is a more radical approach than that which was deployed when we discussed the first amendment. Nevertheless I hope the Minister will be forthcoming. He may not be able to refer, at such brief notice, to the legal precedents that have been demanded by the noble Lord, Lord Renton, for some of the propositions that the Minister has advanced. I hope that we can come back to that point. My propositions are perfectly respectable. I should add that they come from other sources apart from myself. As I said earlier, a wildlife body and a local authority association have produced remarkable documents which I commend to the House in general but especially to the Minister. I beg to move.
Lord Tordoff: My Lords, I have nothing to add to the comprehensive review of this amendment which the noble Lord, Lord Clinton-Davis, has given. However, I should underline the fact that the whole question of CO2 emissions is one that needs to be taken more seriously than has been the case in the past. It must be acknowledged—the Government's White Paper acknowledges this fact—that something like 20 per cent. of total CO2 emissions come from

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transport sources. Those emissions contribute significantly to greenhouse gases. We should be chary about excluding a small sector from the stringent environmental requirements imposed on public highways. I should like to see the amendment on the face of the Bill.
Lord Norrie: My Lords, I support the principles behind Amendments Nos. 3, 40 and 179. Once again the role of environmental assessment in determining both public and private projects has been raised. I was pleased that the Government recognised the importance of environmental assessment during our recent debates on the planning and compensation Bill. I hope that my noble friend can be helpful to us today. The range of matters raised by the noble Lord, Lord Clinton-Davis, is immense, but many of the points need careful consideration. We need a clear reply from the Government on whether environmental assessment will apply to all privately funded roads.
In Committee my noble friend on the Front Bench indicated that privately funded roads would be subjected to the same scrutiny as public roads. However, my noble friend the Minister is aware that I am not convinced that the present arrangements for environmental assessment are terribly clear, even for public roads. We must be certain that the environmental assessment of privately funded roads forms an essential component of any such proposal. I hope the Government accept that there is concern over the implications of privately funded roads and the countryside. The example of the east coast route, mentioned when we discussed Amendment No. 1, is a good one. We need a clear response that recognises these concerns and secures environmental protection within the Bill.
Lord Renton: My Lords, I have a great deal of sympathy with the objectives of the noble Lords, Lord Clinton-Davis and Lord Tordoff, as they have expressed them, but I have not really ascertained whether the terms of the new clause are the best way of trying to achieve them. Let me take the question of atmospheric pollution caused by the emission of carbon dioxide from motor vehicles and its influence on the greenhouse effect. To introduce that issue somewhat indirectly and selectively through this amendment, and in relation simply to the privately funded new roads, is too narrow a way of dealing with what is really a very broad and fundamental issue. If the issue is to be dealt with—I realise there is controversy about that—it should be dealt with in the broadest possible way so as to make any solution effective. That is one doubt that I have about the new clause and the reasons put forward for it.
Then I have a purely legislative doubt. In subsection (3) we find that the Secretary of State is to make regulations to pursue certain detailed objectives, which are set out. It is a valiant attempt to cover the matter but the details in paragraphs (a) to (g) of subsection (3) should themselves be the subject of secondary legislation rather than being written into the Bill. One is not sure that they are exhaustive, and they are very detailed. It would be better to avoid going into such detail in the Bill.
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Somewhat reluctantly, I find myself unable to support the new clause. I say that with respect to the noble Lord, Lord Clinton-Davis, because I respect the purpose that he has in mind.
4 p.m.
Lord Brabazon of Tara: My Lords, I can understand the considerations that led to the amendments but I cannot commend them to the House. I shall deal first with Amendments Nos. 3 and 179, which have difficulties of their own unconnected with the proposed new clause. They would require us to follow a very different procedure in awarding concessions than the one we have followed up to now. Frankly, I do not think that the procedure would work.
I must stress one point. We must beware of any change in procedure which would lengthen the time between publishing draft schemes and others and the start of construction. Such delays merely prolong the period of blight and uncertainty for those whose properties may or may not be affected by the scheme. So we must go into a public inquiry with a concessionaire fully committed and ready to build and operate the road if the proposals before the inquiry are approved. In all, or virtually all cases, there must be a competition to select a concessionaire, so it must take place before the publication of the draft scheme. Indeed, the concessionaire will normally design the scheme, so the competition must take place some time before. Moreover, it is not fair to the tenderers who are not selected if they are kept waiting too long before a result is declared.
Noble Lords opposite may have some misunderstanding about the nature of a concession agreement. Anything in the agreement which specifies work to be done after obtaining authorisation to build the road must be conditional on that authorisation being obtained, and there must be provision in the agreement for what will happen if the scheme is abandoned or modified as a result of the statutory process. However, if, as the amendment requires, the highway authority submits the scheme to public inquiry without a clear undertaking by the private sector promoter to build the road and possibly without even a fully worked up design for the road, it would, frankly, be wasting the time and money of all concerned, including the objectors.
I turn now to the new clause proposed in Amendment No. 40 in which the noble Lord, Lord Clinton-Davis, as he said, seeks to extend the debate to road-building in general and connected environmental problems and to various matters concerning CO2 emissions and other aspects, as my noble friend Lord Renton said. I accept fully the importance of assessing new road proposals, from the environmental as well as the economic point of view, before the decision to build them is taken. That is important for conventional as well as for concession roads, and for local as well as trunk roads.
I must emphasise that toll roads will be treated like any conventional road. That means that they will be subjected to the same strict methods of assessment as

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are currently applied to trunk roads under the existing procedures. Those methods, including cost-benefit analysis and the Manual of Environmental Appraisal, are well established, sound methods that fully implement the requirements of the European directive on environmental assessment. That directive is binding on all our road schemes likely to affect the environment, a fact not recognised by the amendment, which seeks under subsection (7) to exclude from the directive schemes covered by the amendment.
The amendment attempts, with fair success, to set out a list of matters to be covered in an assessment. However, it does not discriminate between matters relevant to particular roads and those relevant to the programme as a whole. It treats alike small and large road improvements. It omits many issues which seem to be at least as important as those included. I see no reference to safety, for instance. New and improved roads are safer than old ones built to old standards, and road improvements save lives. I see no reference to economic development. Noble Lords will be aware that parts of the country where jobs are scarce seek road improvements to attract business and industry. I see no reference to by-passes and the enormous improvement they can make to living conditions of people in towns and villages. All those matters and more are already assessed under the existing procedures.
My noble friend Lord Norrie mentioned the proposals for a new East coast motorway. We in the department have not yet had those proposals put to us formally. However, provisions in Section 106A of the Highways Act 1980 and the regulations made under them will apply to any concession roads because they will be public highways and not private roads. They may be privately financed but they will be public highways.
The amendment appears to be an attempt at a general amendment to existing highways legislation. I do not believe that it would be an improvement on the existing procedures. Like my noble friend Lord Renton, I do not believe that this Bill is the right forum for making sweeping amendments of that sort to our highways legislation.
I fear therefore that I cannot accept the proposal to prevent the award of concession agreements before schemes have been made or to insert a new environmental provision into the Highways Act.
Lord Clinton-Davis: My Lords, I should like to thank the noble Lord, Lord Tordoff, for his support. I turn immediately, but briefly, to the criticisms levelled by the noble Lord, Lord Renton. The list that is included is not, as he inferred, exhaustive. The phrase included in the second line of subsection (3) of the proposed new clause is:
"shall include in accordance with regulations".
If the Government were to accept the principles which we have set out in the proposal, or if the new clause were successful, I should be prepared to accept their being specified in the regulations.
I turn now to the points made by the noble Lord, Lord Brabazon. There was not a hint in what he said of his questioning any of the assumptions which
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currently prevail. It appears that they are absolutely perfect. I cannot accept that, for the reasons to which I alluded earlier. The noble Lord then went on to say that the provisions that we have inserted in subsection (3) were not sufficiently wide-ranging. He went on to criticise them because they did not refer to questions such as safety. If it were necessary to introduce such a provision it would be possible to do so within the terms of subsection (3), for the reasons that I have indicated.
I am not satisfied that the Minister has done more than to throw up a red herring, because questions of safety would be dealt with in any event in procedures that currently prevail and with which we have no quarrel. To some extent we would be supplementing procedures covering such issues.
There is no reference to economic development and safety because we are dealing primarily with an environmental assessment. The Minister can go on to widen the matter and raise questions affecting, if he wants, the balance of payments, but it would not be terribly helpful. We are talking about an environmental assessment. I believe that the other criteria to which he made reference would stand.
I am disappointed by the Minister's reply. As I indicated, he does not seem to perceive that there is any room for improvement in the present procedures whereas I believe that there is every room to consider change and to undertake change very rapidly indeed. I do not accept that this is the wrong vehicle to do that and because the Minister has been so negative I feel that I must take the opinion of the House.
4.10 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 81; Not-Contents, 108.

Division No. 1

CONTENTS

Addington, L.

Graham of Edmonton, L.

Airedale, L.

Hanworth, V.

Aylestone, L.

Harris of Greenwich, L.

Birk, B.

Hatch of Lusby, L.

Blackstone, B.

Hirshfield, L.

Blease, L.

Houghton of Sowerby, L.

Bonham-Carter, L.

Jay, L.

Bottomley, L.

Jeger, B.

Broadbridge, L.

Jenkins of Hillhead, L.

Bruce of Donington, L.

Jenkins of Putney, L.

Callaghan of Cardiff, L.

Kagan, L.

Campbell of Eskan, L.

Kennet, L.

Carmichael of Kelvingrove, L.

Leatherland, L.

Carter, L.

Listowel, E.

Castle of Blackburn, B.

Llewelyn-Davies of Hastoe, B.

Cledwyn of Penrhos, L.

Lockwood, B.

Clinton-Davis, L.

Longford, E.

Cocks of Hartcliffe, L.

Lovell-Davis, L.

David, B.

McGregor of Durris, L.

Dean of Beswick, L.

Mayhew, L.

Devonshire, D.

Meston, L.

Donaldson of Kingsbridge, L.

Milner of Leeds, L.

Donoughue, L.

Mishcon, L.

Ezra, L.

Molloy, L.

Fisher of Rednal, B.

Nicol, B.

Foot, L.

Peston, L.

Gallacher, L. [Teller.]

Phillips, B.

Galpern, L.

Pitt of Hampstead, L.

Gladwyn, L.

Prys-Davies, L.

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Rea, L.

Strabolgi, L.

Richard, L.

Taylor of Blackburn, L.

Ritchie of Dundee, L.

Thomson of Monifieth, L.

Robson of Kiddington, B.

Tordoff, L. [Teller]

Rochester, L.

Underhill, L.

Sainsbury L.

Varley, L.

Seear, B.

Wallace of Coslany, L.

Serota, B.

White, B.

Shackleton, L.

Williams of Elvel, L.

Stallard, L.

Winchilsea and Nottingham, E

Stedman, B.

Winterbottom, L.

Stoddart of Swindon, L.

NOT-CONTENTS

Abinger, L.

Knights, L.

Acton, L.

Lauderdale, E.

Alexander of Tunis, E.

Layton, L.

Arran, E.

Long, V.

Astor, V

Luke, L.

Bauer, L

Lyell, L.

Belhaven and Stenton, L.

Lytton, E.

Belstead, L.

McColl of Dulwich, L.

Bessborough, E.

Mackay of Clashfern, L.

Birdwood, L.

Macleod of Borve, B.

Blatch, B.

Mancroft, L.

Blyth, L.

Merrivale, L.

Boardman, L.

Mersey, V.

Boyd-Carpenter, L.

Mottistone, L.

Brabazon of Tara, L.

Mountevans, L.

Bridges, L.

Mowbray and Stourton, L.

Brigstocke, B.

Moyne, L.

Brougham and Vaux, L.

Nelson, E.

Butterworth, L.

Newall, L.

Caithness, E.

Norfolk, D.

Caldecote, V.

Norrie, L.

Campbell of Croy, L.

Northbourne, L.

Carnegy of Lour, B.

Orkney, E.

Carnock, L.

Oxfuird, V.

Cavendish of Furness, L.

Pender, L.

Clanwilliam, E.

Pennock, L.

Cockfield, L.

Platt of Writtle, B.

Cottesloe, L.

Plummer of St. Marylebone, L.

Cox, B.

Quinton, L.

Cullen of Ashbourne, L.

Rankeillour, L.

Cumberlege, B.

Reay, L.

Dacre of Glanton, L.

Renton, L.

Davidson, V. [Teller.]

Richardson, L.

Denham, L. [Teller.]

St. Davids, V.

Downshire, M.

St. John of Fawsley, L.

Effingham, E.

Saltoun of Abernethy, Ly.

Elles, B.

Sandys, L.

Elliot of Harwood, B.

Shannon, E.

Elliott of Morpeth, L.

Shaughnessy, L.

Elton, L.

Simon of Glaisdale, L.

Faithfull, B.

Skelmersdale, L.

Fraser of Kilmorack, L.

Soulsby of Swaffham Prior, L.

Gainford, L.

Strange, B.

Gray of Contin, L.

Strathclyde, L.

Hailsham of Saint Marylebone, L.

Swinfen, L.

Terrington, L.

Harvington, L.

Teviot, L.

Hayter, L.

Thomas of Gwydir, L.

Hemphill, L.

Vaux of Harrowden, L.

Henley, L.

Waddington, L.

Hives, L.

Wade of Chorlton, L.

Hooper, B.

Walton of Detchant, L.

Hylton-Foster, B.

Westbury, L.

Jeffreys, L.

Wyatt of Weeford, L.

Kinnaird, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.18 p.m.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 4:
Page 2, line 6, at end insert:
("( ) A concession agreement relating to the design and construction of a special road shall provide that if the concessionaire fails to complete the road in accordance with the agreement, he shall, without prejudice to any other
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liability, pay to the highway authority such amount as may be determined in accordance with the agreement in respect of costs incurred by them.
Those costs shall be taken to include the relevant administrative expenses of the authority, including an appropriate sum in respect of general staff costs and overheads.").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 7 and 18. These amendments stem from the promise that I made at Committee stage to the effect that I would consider further whether to provide in the Bill for indemnifying the highway authority for its costs if a concessionaire abandons a project after an agreement has been made. One of the amendments is in my name, one in the names of the noble Lords, Lord Clinton-Davis and Lord Tordoff, and the third, to Part II, in the name of my noble friend Lord Strathclyde.
The amendments to Clause 1 differ in three significant respects. First, the noble Lords opposite have included the words "maintenance, operation or improvement", although they are not in subsection (4), which is the amendment's mirror image. I do not think that this imbalance is desirable. What we are concerned about is failure of the concessionaire to get the road built not with shortcomings thereafter, which are dealt with, for instance, in Clause 2. The use of the words "fail to complete" in my amendment emphasises the nature of the concern while "decides not to proceed with" is a little ambiguous.
Secondly, my amendment provides in terms that the highway authority's costs should include its internal administrative expenses. Noble Lords may recognise a similar form of words, designed to avoid disputes, in Clause 20.
Thirdly, most interestingly noble Lords opposite have protected the concessionaire in circumstances where his failure is a consequence of a failure by the highway authority. That is a very reasonable thing to do, but it is unnecessary. The concession agreement will include in it the obligations of the highway authority, and a failure by that authority would mean that the concessionaire's failure to complete the road would not be "in accordance with the agreement". It is no part of the purpose of this Bill to formulate the detailed provisions of concession agreements. These agreements will, within the constraints of the legislation, be negotiated at arm's length, and I am confident that a highway authority will, in the course of those negotiations, be able to formulate whatever detailed provisions are needed to protect its interests.
But there is very little indeed between us. I hope I can confidently invite the House to accept my amendment and the parallel Scottish one to Clause 24, and I trust that noble Lords opposite will feel able to withdraw theirs. I beg to move.
Lord Underhill: My Lords, as the Minister has explained, the amendment in the name of my noble friend and the noble Lord, Lord Tordoff, is included in this grouping. The effect of the amendment would be to require a concessionaire to compensate a highway authority if the concessionaire decided not to pursue proposals for a privately funded road.

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The amendment makes clear that compensation would not be payable where the concessionaire's decision was the result of a failure on the part of the authority. The Government's amendment as explained to us provides for compensation to be payable,
"if the concessionaire fails to complete the road",
and the noble Lord the Minister said that this was the primary concern.
At present, the Bill provides in Clause 1(4) for a highway authority to compensate a concessionaire if the special road scheme authorising the road is not made, or if the authority decides not to proceed with the road. There could well be circumstances in which plans for a privately funded road are dropped by a concessionaire, but there is no scope in the Bill for compensation to be paid to the highway authority. There is no recognition of the fact that the highway authority's resources would possibly have been deployed in protracted discussions and negotiations with the developer.
It may be recalled that at the Committee stage I proposed an amendment designed to redress this balance and the noble Lord the Minister acknowledged that compensation should be paid in these circumstances. I think that he has so indicated this afternoon. The Minister argued that the amendment was not strictly necessary, because such a provision could be included in the concession agreement. The word "could" is very important. We want to ensure that it is included and that this provision to which our amendment refers is carried.
The Minister went on to say:
"There may, however, be merit, if strictly no need, to have in the Bill the provision proposed in this amendment. I can certainly see that there is justice in having the balance". —[Official Report, 4/12/90; col. 120.]
The Minister went on to argue that the amendment tabled was unacceptable, because it would make a concessionaire liable where the decision not to continue with the road had been forced by the highway authority. The Minister added that he would undertake to consider this matter further, and the Government amendment fulfils that undertaking.
There will be quite a number of references this afternoon to the fact that the Minister has carried out the undertakings which he gave at the Committee stage. But without endeavouring to bring an unpopular note into the debate, I only wish—and I am certain that other noble Lords will wish—that we did not have to wait so long for the Scottish Minister and the Scottish Office to bring forward their amendments. The Committee stage was held on 4th December, and it is only this week that we have had a mass of Scottish amendments, so it has given us a certain worry to see where they fit in. I hope that the matter, which is not the fault of the Minister, will be looked at to avoid such a happening in future.
The Government amendment is preferable to that in the names of my noble friend and the noble Lord, Lord Tordoff, in one important respect. It makes absolutely clear that the costs to be paid to the
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highway authority should cover administrative expenses, including staff costs and overheads, and the inclusion of that fact in the Government amendment is to be welcomed. However, there are two important areas of concern in relation to that amendment.
The amendment in the name of my noble friend and the noble Lord, Lord Tordoff, refers to circumstances in which a concessionaire decides not to proceed with a proposed road. This mirrors Clause 1(4) which covers a special road scheme not being made, or the highway authority deciding not to proceed with the road. However, the Government amendment simply refers to circumstances in which the concessionaire fails to complete the road. When the Minister replies, will he confirm that the Government amendment is intended to cover circumstances in which a concessionaire fails to begin constructing a road, as well as a failure to complete it, and that that would have legal authority?
The second area of concern relates to the use of the word "costs". Clause 1(4) requires a highway authority to pay "compensation in respect of costs". The amendment tabled at Committee stage used the same phrase in respect of a concessionaire's liability to a highway authority. At that stage, the Minister did not at all query that aspect of the amendment proposed in Committee. The present amendment repeats the phrase "compensation in respect of costs", yet there is no reference in the Government amendment to compensation. At the Committee stage, the Minister accepted the case for balance and we welcomed that, but the existing subsection and the amendment appear to be imbalanced. Will the Minister kindly explain why the Government refer to "costs", rather than to "compensation in respect of costs"?
If the Government amendment is carried, will the Government be prepared, in the light of what the noble Lord has said about balance and the remarks made at Committee stage, to bring forward further Government amendments to cover the points made not only by myself but by himself this afternoon?
Lord Tordoff: My Lords, I shall be very brief. I merely want to thank the Minister for having brought forward his amendment at this stage, and also to join with the noble Lord, Lord Underhill, in saying that it is unfortunate that at the Report stage of a Bill like this the Scottish amendments came through so late. I have every confidence that the amendments in relation to Scottish law will mirror the amendments put down to the English and Welsh parts of the Bill.
But the noble Lord the Minister and his colleagues must realise that we on the Opposition Benches do not have the amount of support and detailed expertise that he has in skimming through complex amendments, and there could be within the Scottish amendments minor points which need to be commented on. So to have only 48 hours' notice of these amendments on a difficult Bill, which has been handled in a complex but perfectly logical way, does not make our life any easier.

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Having said that, and as the noble Lord, Lord Underhill, said, there are features of the Government amendment which take the matter slightly further than the amendment standing in the name of the noble Lord, Lord Clinton-Davis, and myself. But I should like also to underline the point that the noble Lord, Lord Underhill, made and to ask the Government to reiterate that the amendment covers those cases where a concessionaire fails to start the construction of a road, as well as his failure to complete it. Also, will the noble Lord give us a clear answer on the question of costs and compensation? With those words, I once again thank the Minister for having taken this matter seriously and for coming forward with an amendment which I am sure will be acceptable to your Lordships.
Lord Brabazon of Tara: My Lords, I am grateful to noble Lords who have welcomed the Government amendment. I am also grateful that they have acknowledged that we have fulfilled the undertaking that we gave at Committee stage. Obviously, I should like to look in more detail at the points that the noble Lord, Lord Underhill, has made before replying to them today.
The amendment is intended to be a mirror image of subsection (4) and, as far as possible, it is so. Clause 1(4) refers to "compensation in respect of costs" but the amendment refers to an "amount" in respect of costs in each case to be determined in accordance with the agreement. I assure noble Lords that the differing terms have exactly the same effect. I shall read the comments made by the noble Lord, Lord Underhill, and if I can clear up any further uncertainty I shall write to him.
I apologise for the fact that the Scottish amendments were tabled a little late. I suspect that was because the English draftsmen were working hard to keep to the undertaking to table certain amendments. We then asked the Scots to make mirror images of them. I am certain that they are mirror images, as was said by the noble Lord, Lord Tordoff. However, I shall take on board the point that was made and hope that noble Lords will agree to our Amendment No. 4.
On Question, amendment agreed to.
4.30 p.m.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 5:
Page 2, line 6, at end insert:
("( ) The Secretary of State shall in respect of each calendar year lay before Parliament a report stating—

(a) the number of concession agreements entered into by him during that year, and

(b) the number of new roads opened to public use during teat year for which he is the highway authority and which at the time of their opening were subject to a concession,

and containing such other information relating to roads subject to a concession as appears to him to be appropriate.
The report shall be laid on or before 31st July in the following calendar year.").
The noble Lord said: My Lords, I shall speak also to Amendment No. 19. I hope that the amendments will commend themselves to noble Lords who, in Committee, expressed the fear that Parliament would not be kept informed about the making of concession
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agreements and the roads built in accordance with them. Although I am sure that the Secretary of State would wish to make regular reports on the progress of that policy, there is something to be said for having such arrangements formalised in a statutory requirement so that they are not overlooked. I beg to move.
Lord Underhill: My Lords, I thank the Minister for carrying out an undertaking that he gave in Committee. The Government amendment implements the commitment that he gave to consider producing a report to Parliament at regular intervals on roads proposed under the Bill. He may recall that in Committee a detailed amendment was tabled seeking parliamentary scrutiny of such matters.
The amendment appears to be useful so far as it goes. It will ensure parliamentary scrutiny of the implementation of Part I, albeit minimal. Central to the extent to which it proves effective will be the type of information that the Secretary of State includes in his report. Will the Minister explain what is meant by the phrase:
"such other information relating to roads subject to a concession as appears to him to be appropriate"?
The provision could be helpful but we need an explanation of those words.
The primary aim of the amendment proposed in Committee was to ensure that the concession agreements were published and subject to parliamentary scrutiny. The publicity aspect is being pursued at this stage in another amendment. Parliamentary scrutiny is raised again in relation, for example, to lorry-only roads. The amendment should be welcomed as a useful step in the right direction but I should be grateful if the Minister could explain the words to which I have referred.
Lord Brabazon of Tara: My Lords, we intend to give as much information as might be thought to be helpful to Parliament. An example of a case in which "such other information" would apply is a local authority concession road. The Secretary of State will report on Secretary of State roads but we could include information on concession roads which local authorities have undertaken.
On Question, amendment agreed to.
Lord Tordoff Lord Tordoff moved Amendment No. 6:
Page 2, line 6, at end insert:
("(5) A concession agreement shall provide that the costs of policing the special road, and of the provision of fire or ambulance services to any point on the road, shall be borne by the concessionaire.
(6) Subject to subsection (7) below, the costs of the services referred to in subsection (5) above shall be determinable according to a formula issued and from time to time revised by the Secretary of State after consultation with such persons, including persons representative of local police authorities, as appear to him to be concerned.
(7) Any dispute as to the application of the formula referred to in subsection (6) above in any particular case shall be referred by the Secretary of State to arbitration, and the determination of the arbitrator shall be final.").
The noble Lord said: My Lords, I hope that the Minister did not consider me discourteous in failing to echo the thanks of the noble Lord, Lord Underhill, for

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tabling Amendment No. 5. I was distracted at the moment when the Minister rose to speak but he has my thanks.
In Committee I raised the question of the cost of policing on the roads now under discussion. We have returned to the subject following the Minister's response. He said that it was the Government's intention that:
"when a promoter puts forward a proposal for a road which is not in the highway authority's existing programme, and which it would not itself have provided, it should be made clear from the beginning—for instance, in the tender invitation document—that policing costs will fall to the concessionaire. I do not think that it would be fair to the concessionaire to leave entirely to the police authority determination of the amount that should be paid, as this amendment seeks to do. Some form of a formula or provision for arbitration might be required. I do not believe that any provision in the Bill is needed for that. However, there are some implications for the rule of contract and if a provision would be helpful, I shall certainly come back to it".—[Official Report, 4/12/90; col. 122].
We awaited a Government amendment with interest but none was tabled.
Our amendment extends the argument to cover not only the police but the emergency services. I do not intend to rehearse all the arguments that I put before the House at the previous stage. It also meets two points raised by the Minister in Committee. It refers to the adoption of the formula approach and includes provision for arbitration. There are serious anxieties about two points made by the Minister in Committee. First, he attempted to differentiate between concession roads that form part of a highway authority's own plans and those which do not. He argued that the concessionaire should meet policing costs in respect of the latter but did not mention it in respect of the former. There is a strong argument that roads which do not form part of the authority's plan should not be built, but the reality is that all concession roads will be built for profit. Therefore, it is perfectly legitimate that policing should form an element of the cost to be met by the concessionaire, whatever the status of the road in terms of the authority's policies. Secondly, the noble Lord, Lord Brabazon, argued that this issue should be handled through the invitation to tender, but no reference was made, for example, to the concession agreement.
Will the Minister explain why he considers that issues such as long-term maintenance should feature in the concession agreement but not the vitally important subject of policing costs and other services? The principle of what was discussed in Committee was broadly accepted by the Minister and I am sorry that he has not brought forward an amendment to cover the point. It is an important point and I hope that this afternoon he will give a favourable response. I beg to move.
Lord Clinton-Davis: My Lords, I support the amendment. I am surprised that the Minister has made no provision for arbitration in this regard, although he has met the Opposition's anxiety in Part
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III. I am grateful to him for that and shall no doubt say so later. It is strange that there should be such a dramatic inconsistency in that respect.
I support the points made by the noble Lord, Lord Tordoff, about the inconsistency in some of the other arguments that were adduced by the Minister in Committee; for instance, the question of differentiating between concession roads forming part of a highway authority's own plans and those that do not. Why is the concessionaire required to meet policing costs on roads which do not form a highway authority's own plans but not in respect of those which do? The Minister should be pressed about those matters.
During the debate that took place on 4th December the noble Lord, Lord Harris, argued strongly that matters other than the matter of arbitration—he was not at one with us on that point—should be addressed on the face of the Bill. I think that the noble Lord is right about that. There should be an element of transparency in relation to the public. The public are entitled to information about such matters and cannot go scrabbling through tenders and agreements. The public ought to have information of that kind before them, which is not presently the case. Consequently the Minister needs to address those matters cogently.
Lord Boyd-Carpenter: My Lords, I hope that my learned friend will reject the amendment. If a concession road is part of the highway authority's plan, I can see no reason why an extra charge should be imposed on the concessionaire in respect of policing. From a long term point of view the cost of policing is not being increased; the road is simply being financed in a different way. An extra charge would put an unnecessary burden upon the concessionaire.
Equally, whether a road is or is not a part of a highway authority's plan, why should ambulance charges be imposed upon the concessionaire? The ambulance service exists to help people who are hurt or in trouble, wherever they may be and whatever happens to them. Such an experience is no more likely to happen to someone because there is a concession road than if there is not. Indeed it would be less likely to happen because the more roads there are, the more the traffic will be dispersed and less intense. If anything, there is likely to be less call for ambulances as a result of the construction of the road.
The proposal in the amendment is one among a large number of amendments that have been put forward by the Opposition, all of which seem to be designed to make the building of concession roads less attractive. Toll roads do not come within the ideas of the Opposition. They do not like them because they do not like private enterprise proposals. For that very reason, we should be careful not to discriminate against them.
Lord Clinton-Davis: My Lords, it is unusual for the noble Lord, Lord Boyd-Carpenter, to engage in fallacious arguments of that kind—at least I hope that it is; I have not been in the House long enough to know.

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Our concern is not to defeat the whole proposal; our concern is to ensure that such roads are compatible with good safety and environmental policies and are equitably financed. This is one element of financing about which we take the view that policing costs should fall on the concessionaire. The noble Lord is perfectly entitled to disagree about that matter, but I do not think that he is entitled to introduce the bogus arguments to which he sought to refer.
Lord Boyd-Carpenter: My Lords, the noble Lord has never, in my experience, indulged in fallacious arguments before this afternoon, but he has done so now. It is untrue to say that the amendment is concerned with safety. It has nothing whatever to do with the provision of ambulances, which are provided in any event. It is concerned with the costs of providing the ambulance service, and that is quite distinct from any question of safety.
The noble Lord does not seem to have applied his mind to the fact that the ambulance service is paid for out of central and local taxation and that it is designed to help all of us if we are hurt or in trouble. The cost is not being extended by the construction of a toll road. As I sought to argue, the cost may be diminished because of the greater dispersal of traffic.
For that reason this is a bad amendment. It is not, as the noble Lord seems to think, equitable; it is inequitable and seems to be designed, as so many of the amendments of the noble Lords opposite are designed, to make the provision of toll or concessionary roads less attractive, and therefore less likely to be constructed.
4.45 p.m.
Lord Knights: My Lords, I apologise for not being present at the Second Reading or the Committee stage of the Bill. I am prompted to intervene this afternoon because I am concerned about the wider implications of the amendment, should it be accepted.
Clearly, police powers, duties and responsibilities in general extend equally to private areas as they do to public areas. I agree with the noble Lord, Lord Boyd-Carpenter, that that situation applies equally to the ambulance service. I should like to go further and state that it applies equally to the fire service. No one suggests that when a new shopping centre or theatre is erected the policing of it, or the providing of an ambulance or fire service, should be charged to the builders. It matters not whether their services are required on a motorway or on a private housing estate: when called for, they are bound to respond, without charge. I can see no justification for making special provision for toll roads. If it is appropriate to make a charge for services in relation to toll roads, what is the position in regard to motorway service areas or Football grounds?
The police discriminate between public and private areas only in so far as uniformed patrolling is concerned. All other services are extended equally, whatever the nature of the area. However, by tradition they have only routinely patrolled areas to which the public have an unrestricted right of access. There are
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good reasons for that situation, if only because much of the law relating to public order and nuisance, which are the kind of events with which police patrolling is designed to deal with, does not extend to private places. The public may enter private places only with the owner's permission, unless the circumstances justify the use of powers of entry that are authorised, for example, by the Police and Criminal Evidence Act.
Where does that leave toll roads? At the Committee stage the Minister indicated on several occasions that toll roads will be highways. He has repeated that point today. He indicated that all the law relating to other highways will apply equally to toll roads. I assume that that is the effect of Clause 22(3) of the Bill. If that is the situation, will not the police in any event have a duty to patrol them and enforce the other highway laws whether or not the concessionaire has to pay for the services? If that is the correct situation, which I challenge, what will be the position in regard to existing motorway service areas?
It has been suggested that policing toll roads could be compared with policing football matches. However, the police officers for whom football clubs pay are there to discharge the responsibilities of the football clubs, for example by preventing incursions into the football pitch, marshalling and controlling spectators, searching, and the ejection of trespassers. In any case the provision of police officers at football matches is within the discretion of the local chief constable. I cannot see why such a position should exist in respect of toll roads. The police will be required and there should be no question about any local decision that they are not.
The arrangements for policing airports may be a better parallel, but I suggest that that would require a specific statutory provision. I agree with the noble Lord, Lord Clinton-Davis, who suggested that that should be written upon the face of the Bill although, as I have already indicated, I do not believe that there is a case for it at all. It certainly should not be left to a clause in a concessionaire's agreement.
I believe that these roads are much better compared with the walkways through, for example, private areas designated under the Highways Act. No one has ever suggested that police patrolling those areas should be paid for. Clearly, the arrangements for policing those roads have much wider implications than appears at first sight. They need to be discussed in much greater detail than appears yet to be the case with police authorities as well as with the Association of Chief Police Officers, if indeed it is felt that a charge should be made at all. I do not believe that I could support the present amendment.
Lord Harris of Greenwich: My Lords, I do not propose to discuss the position of the fire or ambulance services today; nor do I intend to become involved in an interesting ideological dispute with the noble Lord, Lord Boyd-Carpenter, whose contributions we always enjoy. Apart from anything else, that would be pointless because I have no ideological difficulty about toll roads. I have often wondered why we have not had toll roads in this country. I am not opposed to the principle. I am merely anxious about

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one issue; namely, whether it is appropriate to have a public subsidy for the concessionaires. The issue is whether the concessionaire should be required to pay the full economic cost. That is not to discourage him from becoming involved but simply because I see no conceivable ground for subsidies of that character.
I very rarely disagree with my old friend the noble Lord, Lord Knights. Unhappily on this occasion, I do. The Minister has already told me in a letter, for which I am grateful, that this matter has not yet been discussed with the Association of Chief Police Officers. Therefore, I have no idea what would be their collective view. However, a number of chief police officers have approached me over the past few weeks to express serious anxiety as to whether they are to be required to provide quite substantial additional resources to police roads constructed at the behest of concessionaires.
It is not surprising that they should express such anxieties given the fact—and the noble Lord, Lord Boyd-Carpenter, will recall this matter because we discussed it at Question Time on Tuesday—that, as a result of the pressure on police budgets and the risks of rate capping, there is an imminent prospect of a reduction of over 1,500 officers in the six largest police forces in this country, an abandonment of their capital programmes, no new police cars, and so on.
If they are to be required to provide police cover for new roads constructed as a result of pressure from concessionaires—and as I have already indicated I have no objection to that in principle—I can see no reason why they should be subsidised in this way, particularly at a time when there is such immense pressure upon police budgets. People will not understand a situation in which there is a risk of fewer police officers on the streets and yet a public subsidy to private concessionaires. I believe that people will find that very difficult to understand.
Lord Boyd-Carpenter: My Lords, can the noble Lord explain why he believes that the police should not be paid for policing a concession road which is within the highway authority's plan but only if it is a concession road not paid for by public funds by the highway authority?
Lord Harris of Greenwich: My Lords, had the noble Lord had the good fortune to be present at our last discussion on this matter, he would have heard the noble Lord, Lord Brabazon, deal with that question. He made it clear that the Government saw a difference between those roads that were in a highway authority's programme and those that were not. I merely draw the attention of the noble Lord, Lord Boyd-Carpenter, to Hansard on 4th December at col. 122.
Perhaps I may deal with some of the problems relating to this issue, some of which were touched upon during our discussions in Committee. The noble Lord, Lord Knights, referred to the position of football grounds. I do not propose to take issue with him because I thought that the answer to his anxiety was dealt with by the Minister. He indicated that the
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Government consider that there is a relationship between the approach on this matter and the question of football grounds. Therefore, in so far as there is a dispute, it is between the noble Lord, Lord Knights, and the Minister.
Perhaps I may take the other examples which were not dealt with. First, perhaps I may deal with the question referred to by the noble Lord, Lord Brabazon; that is, the question of airports and the British Airports Authority. The Minister dealt with that matter and I should say to him that when the British Airports Authority police was wound down following the 1974 Act and responsibility was passed to the Metropolitan Police, Sussex police, West Midlands police, Greater Manchester police and so on, there were two requirements: first, that the airport user should pay, which was challenged by nobody; and, secondly, that if there was a dispute as to whether the claim by the police was reasonable or unreasonable, there could be a form of arbitration. The noble Lord, Lord Brabazon, referred to that in Committee. However, if matters of this sort are going to be dealt with, they should be dealt with on the face of the Bill and not in some form of private contractual arrangement.
I referred on the last occasion to the Channel Tunnel. In that case the concessionaires must pay the full economic cost to the Kent Police Authority. There is no question of a public subsidy. The cost is massive and over 200 police officers in the new Kent Constabulary will have to be paid for by the concessionaires. There is no question of a subsidy.
As regards London Underground, for which the noble Lord, Lord Brabazon, is departmentally responsible, London Transport has to pay. Very recently a number of officers from the Metropolitan Police have been added to the strength of the British Transport officers working on the London Underground. London Underground has to pay for that as well. Again, there is no question of any form of subsidy.
There is then the interesting question of large private shopping areas on which there has in the past been disagreement between some chief police officers and others. When those were constructed it was argued that tens of thousands of people would go there at weekends. Who was to pay for the security cover? Initially one or two chief officers agreed to provide that cover but, having estimated what were the full implications as regards their resources, they drew back. In the overwhelming majority of cases—I do not suggest all—the concessionaire, constructor or developer must pay the full cost of providing security cover.
On this occasion all I am saying is that, putting on one side the ambulance and fire service situation, which is a different matter, although it is dealt with in this amendment, I believe that, as regards the police, there must be a clear indication that their costs will be met, particularly when the highway concerned is not in the highway authority's programme. That was the position of the noble Lord, Lord Brabazon, when he last discussed the matter.

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Speaking for myself, if someone is in the business of constructing a road for private profit, then I hope that he is commercially successful. I have no ideological opposition to that at all. However, I am strongly opposed to the public being required to meet police costs in matters of this sort. In my view they should clearly rest on the developer of the road. I should be very disappointed if at the end of the discussions in both Houses of Parliament there were not a clear provision in the Bill to that effect.
5 p.m.
Lord Brabazon of Tara: My Lords, this has been an interesting debate on the amendment. First, I recognise that in moving the amendment the noble Lord, Lord Tordoff, has attempted to meet one of the points I made against a similar amendment at Committee stage, which was that if and when a concessionaire did pay the policing costs of a concession road it would not be fair to leave determination of the amount to the police authority. But I trust still resist the amendment.
Perhaps I may reiterate what I said before, since its implications may not have been fully comprehended. Concession roads under the Bill will be highways. The Secretary of State or a local highway authority will be the highway authority. They will not be privately-owned; Clause 1(3) of the Bill makes that perfectly clear. The public will have their common law rights to use them as highways, subject of course to their paying the toll. So the general presumption should be that these highways will be policed in the usual way. I think I can give that assurance to the noble Lord, Lord Knights.
However, there may be an exception. I return to what I said at Committee stage, which has been raised again by noble Lords, particularly by the noble Lord, Lord Harris of Greenwich, this afternoon; that is, that there could be a case for distinguishing between roads which are in a highway authority's programme and would be provided by the authority whether or not there were a concession and ones which would not have been provided at all but for the initiative of a promoter. There may be a case for the cost of policing the latter category to fall to the concessionaire. If this is to happen, that should be made clear from the beginning; for instance in the tender invitation document.
A number of noble Lords have raised the subject of discussions with the Association of Chief Police Officers. This would be an issue of government policy on the financing of police services, about which my right honourable friends the Secretary of State and the Home Secretary are in contact. It is not an operational matter. The policing of concession roads will be at the total discretion of the chief constable.
However, I cannot accept a requirement on this subject in the Bill; nor does it seem to me that the extension noble Lords now propose to fire and ambulance services has anything to commend it. Fire and ambulance services on concession roads are provided to the people who need them—usually, I fear, those involved in accidents—and paid for out of
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public funds, as my noble friend Lord Boyd-Carpenter pointed out. It would be quite unacceptable to treat concession roads exceptionally and charge those costs to the concessionaire.
If an accident occurs which requires the assistance of the ambulance service, whether it is on a privately financed toll road or a public highway, the costs of that attendance will always be met by the local health authority concerned. No one would ask a factory owner on whose property a serious industrial accident had taken place to meet the costs of providing ambulances. That might imply that he would also have to pay for the hospital treatment of those injured. That requirement in this amendment would be wholly unreasonable and would be without precedent.
Similarly, incidents on these roads would be treated in exactly the same way as accidents on any other roads so far as the costs of the fire service are concerned. Fire authorities' statutory duties in the Fire Services Acts of 1947 and 1959 do not make any distinction between fires which occur on different types of road, publicly or privately financed. Fire authorities will thus have a duty to attend fires on privately funded roads in the same way as they have a duty to attend any other fires.
For all those reasons, I hope that the noble Lord will not press the amendment, but if he does I hope that noble Lords will not accept it.
Lord Tordoff: My Lords, I have no intention of pressing this to a Division at this stage. I have no doubt it is a matter that will be returned to when the Bill proceeds on its way in another place.
In a situation like this it is difficult to have to go back to the Second Reading and Committee stage arguments, to which the noble Lord, Lord Boyd-Carpenter, has just taken us. I think my noble friend Lord Harris has dealt with most of the points, but I should like to reiterate that, like him, at no stage have I objected to the principle of privately funded roads. I have said that at every stage of the Bill, and I think it is unfortunate that that accusation should be made against those on this Bench who are moving the amendment.
Lord Boyd-Carpenter: My Lords, the accusation was not levied at those on that Bench; it was levied at the Opposition Front Bench.
Lord Tordoff: My Lords, I am grateful to the noble Lord for that, but he should try to distinguish between the two Benches. They are quite distinct in their own ways, although they overlap occasionally when they find themselves in opposition to the Government. They are not the same thing at all. But I am grateful for that reassurance. The Labour Party Front Bench can speak for itself, as indeed it has done.
The remarks of the noble Lord, Lord Knights, have been better dealt with by my noble friend than they could be by me. In relation to what was said by the noble Lord and by the Minister about access to business premises, such premises will be paying business rates. These will fund the services about which we are talking. It may be that the argument for fire and ambulance is not as cogent as the one for

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police in relation to the amendment, but I believe that there is still an argument there. When people are doing their sums in relation to setting up concession roads, the true costs of running them should be taken into account.
The noble Lord, Lord Boyd-Carpenter, made the point that there will be no additional strain on the police force, for instance, because traffic will be dispersed. There are two views about that. There are those who believe, as I do, that traffic expands to fill the road surface available for its use. The noble Lord is shaking his head, but there is reliable evidence to show that, particularly in America where vasts highways have been built, the traffic expands to fill the space available.
The fact that traffic is dispersed means that there is a wider area for the police force to cover, and there will have to be extra resources to cover those roads, the requirements of which cannot be covered by their existing resources. I think that is a valid argument.
The Government conceded at the last stage—and this has not been retracted today—that in relation to roads which are not in the highway authority's existing programme they would accept that there should be some cost to the concessionaire.
Lord Brabazon of Tara: My Lords, if the noble Lord will read what I said more carefully, he will see that we have not yet made up our minds on this subject. We merely said that there might be a case for that.
Lord Tordoff: My Lords, I find that disappointing because in the quotation which I gave before, to which the noble Lord, Lord Harris, has drawn my attention again, the Minister said:
"We have always made it clear that a concessionaire should meet all the costs of operation of a road, in return for the right to toll it".—[Official Report, 4/12/90; col. 122.]
Indeed, earlier in the same paragraph he said:
"Our intention … is that when a promoter puts forward a proposal for a road which is not in the highways authority's existing programme, and which it would not itself have provided, it should be made clear from the beginning … that policing costs will fall to the concessionnaire".
Those are the words of the noble Lord the Minister, and I hope he is not stepping back from that position.
Nevertheless, this is not the time to press the matter. I hope that the Government will look at it again as I believe it is something that should be on the face of the Bill. I am sorry that they cannot accept that today; but it will be returned to at a later stage.
Finally, perhaps I may say that once again we are in a transport debate. I am on my feet and the lights are going out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Underhill Lord Underhill moved Amendment No. 7:
Page 2, line 6, at end insert:
("(5) A concession agreement relating to the design, construction, maintenance, operation or improvement of a special road shall provide that, subject to subsection (6) below, if the concessionaire decides not to proceed with the proposed road, the concessionaire shall pay to the highway authority such compensation in respect of costs incurred by it as may be determined in accordance with the agreement:
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(6) Compensation shall not be payable under subsection (5) above if a decision by the concessionaire not to proceed with the proposed road is the result of a failure of the highway authority to meet its obligations under the agreement.").
The noble Lord said: My Lords, this amendment was included in the debate on government Amendments Nos. 4 and 18. If I remember correctly, I think the Minister said that he would keep in mind the points that I made in the course of my remarks. Therefore, I shall move the amendment but it is not my intention to press it to a vote. I beg to move.
On Question, amendment negatived.
[Amendment No. 8 not moved]
Lord Underhill Lord Underhill moved Amendment No. 9:
After Clause 1, insert the following new clause:
Lord Brabazon of Tara: My Lords, the criteria and procedure for the designation of streets with special engineering difficulties are prescribed in regulations. Those requirements will take into account what features a responsible highway authority might reasonably be expected to be aware of. It would be unreasonable to hold the highway authority responsible for damage which occurred as a result of undertakers' works being carried out in the street which had not been designated but which had special engineering difficulties by reason of a structure which had not been drawn to the attention of the authority. The existing law on liability, however, should be adequate to deal with any such cases and we do not consider that a specific protection is necessary in Clause 56. I hope that that explanation will satisfy the noble Lord.
Lord Clinton-Davis: My Lords, I am not entirely sure that that explanation will satisfy those who have drawn the matter to my attention and expressed profound concern about it. I had hoped that the Minister would extend the approach that he made in the course of the Committee stage in order to address these anxieties. I do not know whether he is aware that the anxieties have arisen. I hope the Minister will confirm that discussions will take place within the HAUC on these issues. That would not have to occur if the matter were absolutely straightforward. I hope the Minister will reflect further on the situation and, if necessary, undertake to return to the matter later rather than simply observe that there is no case for the amendment or for the kind of anxieties that have been addressed to me.
I did not intend this amendment to be a definitive one, or one on which to divide. I simply wished to explore some further thinking with the Minister. With respect, the Minister has not satisfied me in that regard. I am not asking him to go into the matter in any great length but I hope he will agree to consider carefully the representations that have been made on this matter, that he will look carefully into the discussions which take place within the HAUC and, in the light of that, make a judgment on whether it is necessary to return with further amendments at a later stage. Obviously I do not mean within the time prescribed for deliberations within this House.
10.15 p.m.
Lord Brabazon of Tara: My Lords, with the leave of the House, I should say that as the noble Lord describes this matter as being of profound concern to local authorities I can do no less than take his advice and take a further look at the matter. However, if it is a matter of profound concern to local authorities I should like to know what they are really worried about.
Lord Clinton-Davis: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 [Traffic-sensitive streets]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 97 and 98:
Page 32, line 18, leave out from ("48") to ("may") in line 19 and insert (", 49 or 51 (notices required to be given in respect of street works)").
Page 32, line 20, leave out ("works proposed to be executed") and insert ("street works").
On Question, amendments agreed to.
Clause 114 [Traffic-sensitive roads]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 99 and 100:
Page 64, line 18, leave out from ("105") to ("may") in line 19 and insert (", 106 or 108 (notices required to be given in respect of road works)").
Page 64, line 20, leave out ("works proposed to be executed") and insert ("road works").
On Question, amendments agreed to.
Clause 58 [Safety measures]:
Lord Swinfen Lord Swinfen moved Amendment No. 101:
Page 32, line 42, at end insert:
("( ) In discharging his duties under section 58(1) an undertaker shall ensure that such steps are taken as are reasonably required to promote the interests and safety of disabled persons; such steps shall include the provision of audible or tactile hazard indicators, solid barriers of not less than 1 metre in height, and a ramped or level passageway of at least 1.2 metres in width and other measures as may be appropriate.").
The noble Lord said: My Lords, in moving Amendment No. 101 I wish to speak also to Amendment No. 102. These are probing amendments. This clause deals with safety measures at street works. At the previous stage of the Bill the Government introduced an amendment to deal with the needs of people with disabilities. I am most grateful for that amendment. However, I wish to know how the Government are to ensure that safety arrangements are made for people with disabilities. Will my noble friend undertake to ensure that such measures are included either in regulations or in guidelines? Will disabled people or their representatives be consulted on what is needed? Will the regulations or guidelines be reviewed from time to time, as necessary, to take note of what is learnt over the years on the needs of people with disabilities? I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I remind the House that there is a misprint in Amendment No. 102. It should refer to line 10 of page 33 and not line 11.
Lord Brabazon of Tara: My Lords, when we discussed this matter in Committee I explained that we take the view that detailed requirements on the signing, guarding and lighting of works are properly matters to be dealt with in directions and codes of practice rather than in primary legislation. Subsection (3) of this clause provides that an undertaker which complies with the relevant code of practice shall be taken to have complied with the requirements for the guarding, lighting and signing of works under subsection (1).
It is our intention to base the code of practice giving practical guidance to undertakers on the requirements of the revised version of Chapter 8 of the department's traffic signs manual. The new Chapter 8 will include a general requirement for pedestrian barriers to be between 1 and 1.2 metres high with upper and lower rails, the latter being a tapping rail to assist blind people with sticks. There will be a requirement that temporary pedestrian ways should wherever possible be at least 1.5 metres wide and never less than 1 metre wide.
It would not at this stage be appropriate to make the kinds of audible or tactile hazard indicators that are currently available a general requirement for use at all works. However, the highway authorities and the utilities will keep under review the types of devices that become available and consider their possible application. The lesson we have learnt from the operation of the 1950 Act is that detailed requirements spelt out in primary legislation all too often become inappropriate to changing circumstances. They lack the flexibility of secondary legislation and codes of practice. That was a point that my noble friend himself made when moving the amendment.
Of course the Department of Transport would welcome the further involvement of organisations representing blind and disabled people in the development of the relevant codes of practice. I am happy to reiterate my earlier undertaking that my right honourable friend the Secretary of State will consult such organisations before issuing or approving a code for the purpose of Clause 58.
I hope, therefore, that my noble friend will accept that it is unnecessary and could be undesirable to add specific requirements of this type on the face of the Bill.
Lord Swinfen: My Lords, those noble Lords who added their names to the amendment will agree with me that my noble friend has given a most helpful reply. I for one am grateful to him and accept it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 102 not moved.]
Clause 59 [Avoidance of unnecessary delay or obstruction]:
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 103:
Page 33, line 39, leave out ("24 hours") and insert ("such period as the authority may reasonably require").
The noble Lord said: My Lords, in moving Amendment No. 103 in my name and that of the noble

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Lord, Lord Tordoff, perhaps I may begin by thanking my noble friend the Minister and his officials for the many consultations that have taken place on a number of matters contained in this part of the Bill.
The clause deals with the speedy dispatch of works. Nevertheless, there may be occasions when, with the best will in the world, 24 hours is insufficient. It would therefore seem to be unreasonable that the full provisions of the clause should then be imposed. In extending the period in which repairs may take place, the amendment provides for an element of consultation between the authority and the undertaker.
That does not mean that the period will be 10 days or 12 hours, for example. It merely provides that a period of consultation shall take place as to whether 24 hours is reasonable. That should not impose any great hardship on any of the bodies concerned.
I hope, therefore, that the amendment will commend itself not only to my noble friend the Minister but also to the House. I beg to move.
Lord Underhill: My Lords, Clause 59 provides for a street authority to issue a notice requiring a utility to take action to limit the extent to which a street work causes an obstruction. Subsection (4) enables a street authority to act itself if a utility fails to comply with a notice within 24 hours.
The amendment now before us would delete the reference to 24 hours and replace it with the phrase:
"such period as the authority may reasonably require".
In the case of a serious obstruction, speedy action is necessary in order to ensure that the obstruction and any potential road safety hazard which may arise from it is removed as soon as possible. On that basis it would seem that the reference in the Bill to 24 hours should be retained.
I wonder whether the Minister would consider a possible compromise, namely, that the Bill be amended at a later stage to include words on the lines of: "24 hours or such a longer period as may be specified in the notice". That would enable the highway authority to specify a longer period of notice if it felt that it was reasonable to do so. Perhaps the Minister would consider such a suggestion at a later stage.
Lord Brabazon of Tara: My Lords, this amendment could have the effect of diluting the present requirement on undertakers to remove an unnecessary obstruction within 24 hours of receiving a notice to that effect from the street authority. It would substitute a power enabling the street authority to specify a reasonable period within which the obstruction is to be mitigated or discontinued, as the case may be, following which the street authority itself would be able to take the necessary steps at the undertaker's expense.
Clause 59 in effect simply provides for the general application of the procedure which currently applies within London. This provision covers a variety of instances where undertakers cause an obstruction in the street. These could result in danger or disruption to road users and it is important that the street
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authority should be able to require their removal within 24 hours. By removing any reference to a specific period the amendment would introduce scope for conflict and confusion. Therefore I have to say that I find this amendment unwelcome and I hope that my noble friend will be prepared to withdraw it following my explanation.
The noble Lord, Lord Underhill, suggested that some compromise might be available between the highway authorities and the utilities, and of course we should be prepared to look at that if such a compromise could be agreed between them and, at the same time, as I said on an earlier amendment, if it was agreeable to the Government. Obviously we shall have to see what happens about that. In the meantime I hope that my noble friend will withdraw the amendment.
Lord Lucas of Chilworth: My Lords, I shall of course withdraw the amendment. I am disappointed that my noble friend should find the general suggestion unwelcome. However, his remarks to the noble Lord, Lord Underhill, give comfort that the kind of consultation that has been taking place may continue and such compromise may in fact be found whether it is mine or another one. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker: My Lords, I must remind the House that if Amendment No. 104 is agreed to I cannot call Amendment No. 105.
Clause 60 [Qualifications of supervisors and operatives]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment 104:
Page 34, line 19, leave out from ("the") to ("conferred") and insert ("circumstances in which a qualification may be").
The noble Lord said: My Lords, in moving this amendment I shall at the same time speak to Government Amendment No. 106 and Amendment No. 105 tabled in the names of the noble Lords, Lord Clinton-Davis and Lord Tordoff.
These are minor amendments which make clear that regulations made for the purpose of Clause 60 may include provision as to the circumstances in which a qualification as a supervisor or operative may be conferred. It replaces the reference to training to be undergone, which is inappropriate, given the nature of the assessment procedure likely to be prescribed. As the noble Lord, Lord Clinton-Davis, pointed out during our debate on this clause in Committee, it is a usual requirement of the National Council for Vocational Qualifications that assessments for qualifications of this sort should be open to all, whether or not they have followed an approved training course.
The amendment would enable the provisions to apply to whatever method of assessment or training may be adopted now or in the future. In the light of this amendment, I hope that the noble Lords, Lord Clinton-Davis and Lord Tordoff, will not need to press further their own amendment to this clause. I beg to move.
Lord Clinton-Davis: My Lords, I am most grateful to the noble Lord for the steps that he has taken in relation to this matter in consequence of the debates that we had at Committee stage. As he said, at that stage we highlighted the conflict between Clause 60(4) (b) of the Bill, which would have enabled the Secretary of State to specify training requirements, and the policy of the NCVQ that assessments should be open to anyone regardless of the training undertaken.
The Government, having reconsidered their position, have come forward with an amendment which I think is perfectly acceptable. Certainly it is acceptable to me and I think to the local authority associations. I am grateful to the Minister.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, I am unable to call Amendment No. 105.
[Amendment No. 105 not moved.]
Clause 117 [Qualifications of supervisors and operatives]:
Lord Brabazon of Tara Lord Brabazon of Tara moved amendment No. 106:
Page 66, line 25, leave out from ("the") to ("conferred") and insert ("circumstances in which a qualification may be").
On Question, amendment agreed to.
Clause 63 [Duty of undertaker to reinstate]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 107:
Page 35, line 13, leave out from ("practicable") to end of line 15 and insert ("and shall carry on and complete the reinstatement with all such dispatch as is reasonably practicable").
The noble Lord said: My Lords, in moving this amendment, with the leave of the House I shall speak also to Amendments Nos. 108, 109 and 110.
These amendments are necessary in order to clarify the extent of the duty on undertakers to reinstate the street as quickly as possible. The first amendments place a duty on undertakers carrying out street works to carry on and complete the reinstatement with all such dispatch as is reasonably practicable. This puts beyond doubt that it is an undertaker's duty not only to begin the works but also to complete them expeditiously.
The second amendments replace the saving contained in the present subsection (2) with a statutory defence for the undertaker in any proceedings brought under this clause. In doing so, it places the burden of proof on the undertaker. In a prosecution, it will be for him to show that any delay in reinstating the street was in order to avoid hindering other works. I beg to move.
On Question, amendment agreed to.
10.30 p.m.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 108:
Page 35, line 27, at end insert:
("( ) In proceedings against a person for an offence of failing to comply with subsection (2) it is a defence for him to show that. any delay in reinstating the street was in order to avoid hindering the execution of other works, or other parts of the same works, to be undertaken immediately or shortly thereafter.").
On Question, amendment agreed to.
Clause 120 [Duty of undertaker to reinstate]:
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 109:
Page 67, line 16, at end insert ("and shall carry on and complete the reinstatement with all such dispatch as is reasonably practicable").
On Question, amendment agreed to.
Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 110:
Page 67, line 29, leave out subsection (6) and insert:
("( ) In proceedings against a person for an offence of failing to comply with subsection (2) it is a defence for him to show that any delay in reinstating the road was in order to avoid hindering the execution of other works, or other parts of the same works, to be undertaken immediately or shortly thereafter.").
On Question, amendment agreed to.
Clause 64 [Materials, workmanship and standard of reinstatement]:
Lord Swinfen Lord Swinfen moved Amendment No. 111:
Page 35, line 40, at end insert:
("( ) He shall ensure that when reinstatement takes place, this includes any reinstatement of any existing measures for disabled persons and that reasonable steps are taken to ensure the safe and convenient passage of disabled persons.").
The noble Lord said: My Lords, in moving Amendment No. 111, I should like also to speak to Amendment No. 112. When streets are reinstated, existing access provision for blind people and wheelchair users must be put back. At Committee stage we had raised by the noble Lord, Lord Tordoff, as has already been mentioned today, the question of provision not being reinstated outside this Palace. We understand that, after considerable pressure from my noble friend and his department, the City of Westminster is now to replace that.
Street works should not result in a deterioration of access to the street. The amendment does not impose any new duties; it simply states that access provision that previously existed must be replaced. Dropped kerbs and tactile markings are vital for the independent mobility of blind people and wheelchair users, enabling blind people to know where the end of the road is and wheelchair users to cross the road. The Bill must clearly state this.
The type of battle that has recently taken place between my noble friend and the City of Westminster is absolutely absurd, and it ought not to be allowed to take place, possibly thousands of times in a year in various places up and down the country. This amendment should be placed in the Bill to make certain that this is a matter of law. The amendment may need to be improved slightly to allow for improvements in the measures for disabled people, when they have been removed and been reinstated, because we do not want a downgrading through a lack of putting in improved facilities, purely because on the face of an Act of Parliament it has to be reinstated exactly. But with that one exception I hope that the House will support what I have said. I beg to move.
Lord Clinton-Davis: My Lords, I certainly support the amendment. It is a somewhat limited amendment. I am not at all sure that one ought not to go

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considerably further. When street works are undertaken, if there is no adequate provision for the disabled at that stage, it sometimes could be a convenient opportunity to make such provision. But that is not what the amendment does, and that is why I say that it is somewhat limited.
None the less, what has been said by the noble Lord, Lord Swinfen, again on issues affecting the protection of the disabled, is germane to their requirements. It is something towards which I hope the Minister will be well disposed, and certainly the noble Lord has the support of the Opposition in this regard.
Lord Lucas of Chilworth: My Lords, I am grateful to my noble friend Lord Swinfen for raising this matter, and I say that purely from an anecdotal viewpoint. I admit that it is not very good evidence to put before your Lordships' House. But my noble friend the Minister will recall that I introduced the tactile pavement crossing in Parliament Square some years ago, when I was in a similar, but, I hasten to add, greatly junior, position to that of my noble friend the Minister.
I understand that the reconstruction of the square will obliterate the crossing which I and my then honourable friend in the Department of Health and Social Security opened many years ago. Anecdotal evidence is not good but one has a sentimental attraction to the retention and a recognition of the need to retain that crossing and many others which may be lost by road and pavement improvements.
I hope that my noble friend will look sympathetically at the purpose of my noble friend's amendment; that is to ensure the retention of proven tactile and other crossings to aid the disabled.
Lord Tordoff: My Lords, I apologise for pre-empting the discussion when debating an earlier amendment. I did so because I was not sure that we would reach this amendment tonight. I wished to take the first opportunity to thank the Minister for the work that he and his department have done in persuading the Westminster Council to reinstate the tactile pavement.
The amendment is worthy of consideration either in its present, or some other form. Perhaps the Government will say that it is a case for codes of practice. I do not agree with that view. It is an important matter of principle. The provision would provide reassurance to all disabled people, particularly the visually impaired, and therefore should be put on the face of the Bill.
Lord Brabazon of Tara: My Lords, we discussed the matter in Committee. As I explained then, advice on the proper restoration of special surfaces by undertakers will be included in the codes of practice to be issued or approved by the Secretary of State, giving practical guidance on the materials, workmanship and standards of reinstatement to be observed under Clause 64. Such matters are best left to codes of
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practice. My noble friend pointed out that improvements can be made but tying us to what is written on the face of the Bill could be of disbenefit to the people affected by the amendment.
I can only repeat my assurance that organisations representing blind and disabled people will be consulted before any regulations or codes of practice on standards of reinstatement are prescribed by the Secretary of State. That may be an ongoing matter as new regulations and codes are introduced. If representations are made for a better standard, that may be taken into account.
My noble friend Lord Lucas spoke of the crossing adjacent to the Palace of Westminster. He may not be aware of the fact that it has featured in our debates in Committee and at this stage. I was unaware that he had instituted that crossing and I am sure that all noble Lords are pleased to know that. However, I must disappoint him slightly because that roadwork is not affected by the Bill.
Lord Swinfen: My Lords, I thank all noble Lords who have taken part in this short debate. I realise that my noble friend is not unsympathetic, but he is not prepared to go as far as I should like. The noble Lord, Lord Clinton-Davis, said that we should take the opportunity to improve the facilities for disabled people. I entirely concur, but we must not forget able-bodied people. The opportunity should also be taken to improve facilities for them. Sometimes an elderly person may find the step down from the pavement to the road quite daunting. Those matters can be looked at at the same time.
I am delighted that the noble Lord, Lord Lucas, was instrumental in ensuring that we have tactile paving outside. For that facility blind disabled people in particular are most grateful. I think that the noble Lord, Lord Brabazon, is missing an opportunity to make all disabled people grateful to him by not including this measure in the Bill. Codes of practice are all very well, but they are not binding. This is so important that it should be on the face of the Bill.
I shall, however, read with care what the noble Lord has said so that I have the matter completely clear in my mind. I reserve the right to come back at Third Reading, if necessary, because I am not entirely satisfied with what my noble friend has said. It may not be his personal decision, but the matter should be looked at again. With those words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.112 not moved.]
Clause 65 [Powers of street authority in relation to reinstatement]:
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No.113:
Page 36, line 35, leave out ("causing") and insert ("likely to involve a").
The noble Lord said: My Lords, the purpose of this amendment and Amendment No. 114 is to enable the street authority to carry out works on a defective reinstatement where the reinstatement was likely to involve a danger of injury. It may well be that the original drafting covers the point. But we are seeking to anticipate the problem rather than react to it once

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an accident has occurred. I hope that the Minister can say that the Bill as drawn will enable a local authority to do precisely that. I beg to move.
Lord Brabazon of Tara: My Lords, the amendments together would significantly change the scope of the street authority's powers where an undertaker appears to have failed to comply with his duties to reinstate the street properly, whereas Clause 65 as presently drafted empowers the street authority to take action where a defective reinstatement is causing dangers to users of the street. The amendments would enable the street authority to act where a failure seemed to it likely to involve a danger of injury.
The first amendment would shift the primary burden of responsibility for properly reinstating the street away from the undertaker. As presently drafted, the undertaker would clearly be responsible for taking action to rectify a defective reinstatement, thereby preventing a dangerous situation from arising. It would be for the authority to act in default only where danger was present. To accept the amendment would remove the incentive for undertakers and might in practice introduce doubt as to their responsibility for keeping their reinstatements in a safe condition.
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The second amendment would insert a reference to a danger of injury. That would also be unwelcome since it would exclude danger other than that to life and limb—for example, a danger of damage to property—from the circumstances in which the street authority could act. For those reasons we do not consider that the amendments are desirable. They would present a major upset to the Bill.
Lord Clinton-Davis: My Lords, I am not able to accept the draconian interpretation of the amendments by the Minister. I am not proposing to divide the House at this stage, even though that may disappoint the noble Lord, Lord Tordoff, who had expected me to do so. I am disappointed that the Minister has been negative and that he thinks that the amendment is likely to weaken the purposes of the Bill. However, I shall reflect on what he has said. No doubt the matter can be reverted to, not necessarily in this House but at a later stage in the conduct of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No.114 not moved.]
House adjourned at fifteen minutes before eleven o'clock.

New Roads and Street Works Bill [H.L.]

  Terms of Concession Agreements
  .—(1) A concession agreement shall require the concessionaire to—

  (a) ensure that any special road authorised under the provisions of this Part is designed and constructed in accordance with current standards approved by the Secretary of State;

  (b) submit the design of the road for safety audit by the highway authority; and

  (c) make arrangements for winter maintenance and other emergency clearance operations to be undertaken in accordance with current standards approved by the Secretary of State;

  (2) A concessionaire shall in accordance with the terms of the concession agreement secure the provision of service and refreshment facilities along the road in accordance with current standards approved by the Secretary of State.")
  The noble Lord said: My Lords, this amendment appears in the Marshalled List in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff. The effect of this amendment would be to require concession agreements to impose a series of duties on a concessionaire. At Committee stage the Minister made an important statement in relation to the status of roads developed under the provisions of this part of the Bill. He said:
  "Let me remind your Lordships that concession roads under the Bill will be highways. They will not be privately owned".
  The Minister reiterated that point this afternoon. He continued:
  "Clause 1(3) of the Bill makes this crystal clear. The public will have their common law rights to use them as highways, subject, of course, to their paying the toll".—[Official Report, 4/12/90; col. 121.]
  As these roads will be highways, the public have a right to expect that they will be constructed and maintained to the same standards as publicly built roads and that the same facilities will be available. A number of these issues were addressed at Committee stage, but it is unclear from the Minister's response which document associated with a concession road should deal with these matters.
  In response to an amendment requiring schemes to be in accordance with local planning policies and that concession agreements should cover road design, the Minister said that all the matters would be addressed before the road was built—
  "some before the signing of the agreement, and some during the authorisation procedure after it".
  The Minister added that no inspector, following a public inquiry into a special road scheme,

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  "would recommend the making of a scheme which did not contain adequate provisions as to the design of the road". —[Official Report, 4/12/90; col. 132.]
  The Minister continued by saying that the concession agreement rather than the road scheme was the document in which maintenance issues should be addressed. This amendment is intended to deal with a range of requirements which have not previously been considered during the debates in your Lordships' House. These are the design and construction of the road in structural as opposed to locational and layout terms; the need to ensure that designs are subject to a safety audit; the importance of arrangements for winter maintenance and the clearance of accident debris and the provision of adequate service and refreshment facilities.
  Should the Minister not find it possible to accept this amendment in the form in which it is worded, will he confirm two points? Will he confirm, first, that these are legitimate requirements to impose on a concessionaire? Secondly, will he indicate whether they should be dealt with in the concession agreement or in the special road scheme? As I have made absolutely clear, there is confusion as to exactly which document these matters are concerned with. I beg to move.
  5.15 p.m.
  Lord Boyd-Carpenter: My Lords, I wish to raise a question concerning subsection (2) of the new clause where it states that it is the intention to make it compulsory for the concessionaire to provide service and refreshment facilities. I was responsible for the original motorway programme, which I announced to another place on 2nd February 1955. Those initial steps in the motorway programme did not require the provision of either refreshment or refuelling capacities. The roads were built and shortly after various enterprising people applied for concessions to operate the services. That is the practical way to deal with the matter, as is happening with the toll roads. Therefore, whatever my noble friend may say about the first part of the amendment—I agree it appears to be innocuous on the face of it, though perhaps unnecessary—subsection (2) seems somewhat oppressive and quite unnecessary.
  Baroness Oppenheim-Barnes: My Lords, I apologise for delaying your Lordships for a couple of minutes on subsection (2) of the new clause. It looks reasonable enough in itself when it calls for the provision of service stations and places of refreshment. With due respect to my noble friend Lord Boyd-Carpenter, we already have on our motorways hideous monopolies providing ghastly plastic food. Over and over again Ministers at the Department of Transport have struggled with this difficult problem. Not everyone wants to open these facilities for road users unless they are in a monopoly or dominant situation. I hate to think that this new clause will once again open up the floodgates to the practice of a monopoly and possibly a duopoly. The concessionaires might be opening up their own refreshment facilities—they would probably have to.
  Lord Boyd-Carpenter: My Lords, they would have to.
  Baroness Oppenheim-Barnes: My Lords, they would have to. They would perpetuate the existing monopoly situation and make it much worse by creating a duopoly.
  Lord Tordoff: My Lords, I have listened to the noble Baroness's interpretation of the new clause. However, as I read it, it does not say that the concessionaires have to provide; the amendment simply says that they have to "secure the provision". That means they can tender for it. That may be a misinterpretation of the amendment to which I have put my name, but that is how I read it.
  Lord Swinfen: My Lords, can the Minister tell us what the current standards are? I believe that on the M.25 there are only two service areas which are approximately 60 miles apart. I know that one of them is not open 24 hours a day. It can be dangerous for people to drive when they are tired and in need of refreshment. For some people with a medical condition it is absolutely essential that they have food when they are beginning to run out of energy, otherwise they become a danger to other people.
  Lord Brabazon of Tara: My Lords, I have some degree of sympathy with the intention behind this new clause, but I do not think the clause itself is either necessary or necessarily helpful. All the issues covered by subsection (1) of the clause will no doubt be dealt with in any concession agreement. Of course, roads intended for public use must be designed to the appropriate safety standards for the traffic that will use them; of course, there must be adequate arrangements for winter maintenance. But the clause would restrict us to roads which comply with an existing departmental standard.
  That is all very well so long as the roads in question conform to existing types, such as motorways. But all kinds of roads may be authorised by the Bill, including some which are quite new concepts in this country, such as roads designed for lorries only or for cars and light vans only. In such cases, many features of existing motorway standards, which assume high levels of heavy goods vehicle traffic, would be inappropriate, but no other standards would quite fit either. There would be no alternative to approving the design for such a road on an individual basis. There would be no current standard to apply, but the concession agreement could still require the detailed design to be approved by the Secretary of State or the local highway authority.
  Like my noble friend Lord Boyd-Carpenter, and others, I have doubts about subsection (2). The Department of Transport has an established policy on the provision of service areas on its motorway network. For some concession roads it may well require concessionaires to provide service areas on similar lines, though always subject to planning approval. But to suggest that every concession road must have facilities of this kind is clearly absurd. Some will not be long enough to justify them—for example, estuarial bridges and tunnels—and for concession

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  roads which are not built as motorways there is no standard to follow, although the department publishes advice on the need for facilities on its all-purpose trunk roads.
  I turn to the question of motorway service areas, to which my noble friend Lady Oppenheim-Barnes referred. I do not wish to enter into comments on the standard of the food therein, but where it is appropriate to enforce the conditions we normally apply to the providers of motorway service areas—the requirements about which my noble friend Lord Swinfen asked: I refer to 24-hour opening, facilities for heavy goods vehicles, facilities for disabled and so forth—it will be perfectly possible to do so through the concession agreement whether the services are provided by the concessionaire or by a sub-contractor. The amendment is probably clear on that, though that is for the noble Lord to answer.
  My noble friend asked specifically about the M.25. I know it is our proposal that there should eventually be four motorway service areas at each corner of the M.25, if a circular road has such things. I cannot accept the amendment.
  Lord Tordoff: My Lords, before the noble Lord sits down, will he clear up a point he made about subsection (2). He implied that it suggests that there should be provision of service and refreshment facilities along every road. With respect, I do not see that it reads that way. It says,
  "in accordance with current standards approved by the Secretary of State".
  If the Secretary of State has no approved standards for other than motorways, presumably no standards will be applied to concession roads which are not motorways. I hope the noble Lord understands what the amendment is getting at: standards on the concession roads should be no lower than the already low standards that exist on motorways.
  Lord Brabazon of Tara: My Lords, I cannot add to what I have already said on the amendment.
  Lord Underhill: My Lords, I am rather disappointed by the Minister's reply. Subsection (2) states:
  "A concessionaire shall in accordance with the terms of the concession agreement".
  We have been told repeatedly by the Minister that matters can be laid down in the agreement. He said that he had some sympathy with the terms of the amendment and that those matters could no doubt be dealt with in the concession agreement. It is the words "no doubt" which concern us. We want to be sure that these matters will be dealt with in the concession agreement. That is the difference between what the Minister just said and the wording of the amendment. Subsection (1) states:
  "A concession agreement shall require".
  No doubt is expressed there, yet the Minister has expressed some doubt in saying that "no doubt" these matters could be dealt with in the concession agreement.
  I was interested to hear the discussion between the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Oppenheim-Barnes, on the present
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  provision of service stations. The M.25 has been mentioned. We know that haulage associations in particular have expressed concern about the lack of service provision. I happen to live near the M.11 and I can assure the House that the same position applies there. On great lengths of road there is no provision at all. Such provision should be laid down in the terms of the concession agreement. The conditions of them should be laid down by the standards as approved by the Secretary of State. I do not understand why the Minister cannot accept the amendment. I shall not withdraw it but I shall not press it to a Division.
  On Question, amendment negatived.
  Clause 2 [Exercise of highway functions by concessionaire]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 10:
  Page 2, line 28, at end insert:
  ("( ) The highway authority may recover from the concessionaire the costs incurred by them in exercising in the circumstances mentioned in subsection (3) (a), (b) or (c) a highway function exercisable by the concessionaire.
  Those costs shall be taken to include the relevant administrative expenses of the authority, including an appropriate sum in respect of general staff costs and overheads.").
  The noble Lord said: My Lords, in moving this amendment I should like, with the leave of the House, to speak at the same time to Amendment No. 11, in the names of the noble Lords, Lord Clinton-Davis and Lord Tordoff. I trust that the noble Lords will approve my amendment as they have put down a similar one.
  During the debate in Committee I undertook to consider whether there should be an amendment to entitle the highway authority to recover costs in exercising the highway functions normally exercisable by the concessionaire in the circumstances specified in Clause 2(3). The amendment in my name achieves that purpose and I trust will commend itself. The Opposition amendment is similar but goes further than we are prepared to go. One can argue that where a concessionaire is given a function but, in the event, the highway authority has to do it for him that the concessionaire should pay the costs that fall on the highway authority. We accept that. We have provided for it in our amendment. But the other amendment goes further, in paragraph (b), to say that if a function is withdrawn from the concessionaire entirely the concessionaire should still be required to pay for the highway authority to carry it out. In our view that is going too far.
  It is particularly odd because the functions which the concessionaire is required to exercise are subject to negotiation in the first place. The concessionaire might be reluctant to take on so many functions if he knew he was committed to paying for them throughout the life of the concession, even if they were carried out for most of the time by the highway authority without the concessionaire having any control on the cost.
  Paragraph (c) of the amendment is even odder. It requires the concessionaire to pay for routine inspections. These are carried out by the highway authority in the interests of the road user but in the

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  long-term interests of the highway authority for the road when the concession is terminated. They do not necessarily benefit the concessionaire. Clearly, if the concessionaire asked the highway authority to inspect a particular structure he might be required to pay for the extra service; but inspections carried out by the highway authority on its own behalf are a different matter. The concessionaire will not be calling the tune on those. They are not carried out for his benefit. I suggest that it would be wrong to expect him to pay the piper. I therefore commend my amendment to the House and hope that noble Lords will not wish to press theirs.
  Lord Clinton-Davis: My Lords, I thank the noble Lord for putting down his amendment. It fulfils an undertaking which he gave in Committee. We should have preferred the matter to go wider; hence, we have put down our own amendment. The Minister has dismissed it out of hand, which is odd, to use his own term.
  Our amendment encompasses his. We have no quarrel with that. What we have done is to add to it. We think the authority should be able to recover the costs of routine highway maintenance inspections of a concession road and the costs of exercising highway functions consequent on the withdrawal of responsibility from the concessionaire under Clause 2(4).
  When the matter was discussed in Committee the noble Lord made it absolutely clear that concession roads would be monitored by the highway authority, which would,
  "have access to the road with devices such as the high-speed road monitor".
  He was asked to indicate whether authorities would be able to recover the costs of highway inspections. He said:
  "I am not certain that I can give the noble Lord an answer to that question at this stage of the proceedings. I suspect that there is somewhere in the Bill a provision which somehow escapes my attention at present. However, I shall return to the matter at a later stage".—[Official Report, 4/12/90; cols. 140–141.]
  That was an odd remark to make; but, there it is, it is on the record and the Minister will now have an opportunity to indicate whether those suspicions were well founded. Clause 2(4) asserts that a concession agreement may provide for, a concessionaire's authority to exercise a highway function to be withdrawn. Presumably that would occur if a concessionaire failed to exercise the function properly. If, as the Government accept, a highway authority should be able to recover the costs of exercising highway functions on a one-off basis—that would happen under Clause 2(3)—surely it should be able to do so when the concessionaire's authority is permanently withdrawn. I shall not press the matter today, but I should like to hear what the Minister has to say in regard to those points.
  Lord Brabazon of Tara: My Lords, in regard to the first point, I certainly did say that I would look into the matter before we reached this stage of the Bill's proceedings. I have done so and have given my answer. I apologise if I said something which was not quite right. However, on reflection, I have found out —as I said I would—what the position is.
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  On Question, amendment agreed to.
  [Amendment No. 11 not moved.]
  5.30 p.m.
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 12:
  After Clause 2, insert the following new clause:
  ("Arbitration of cost.
  .—(1) The Secretary of State shall appoint an independent person to determine disputes as to costs arising from any concession agreement under section 2 above, where any such agreement does not contain alternative provision in respect of arbitration.
  (2) Any determination made by the person appointed under this section shall be published.
  (3) Any determination made by the person appointed under this section in connection with a concession agreement shall be regarded as final.").
  The noble Lord said: My Lords, this amendment is also supported by the noble Lord, Lord Tordoff. We seek to discover from the Government what their thinking is on the whole issue of arbitration concerning Parts I and II of the Bill to which I alluded earlier. The matter has been taken on board by the Minister in relation to Parts III and IV. Therefore, there appears to be something of an inconsistency in approach. However, perhaps the Minister will be able to clarify the position.
  As I said before, I believe that the Government should be commended for having responded positively to the request we made to deal with matters in this way under Parts III and IV. However, does the Minister not concede that disputes could arise under Parts I and II in relation to payment of costs and compensation? For example, a provision in Clause 1(4) provides for compensation to be paid to a concessionaire. There are several other matters which are dealt with in that way in the first part of the Bill.
  The Minister has accepted the principle that in certain circumstances the concessionaire should bear the costs of policing a concession road. There is no provision in this part of the Bill for arbitration. As he has addressed the issue so properly in Parts III and IV of the Bill, I believe that he should now explain why he has so significantly refused to do so in relation to Parts I and II. I beg to move.
  Lord Brabazon of Tara: My Lords, I must confess that I do not think there is much to commend this amendment. The principle behind arbitration is that it should be independent. Where an arbitrator has to be appointed he should be acceptable to both parties or his appointment must be in accordance with a formula in the agreement. As the Secretary of State would be one of the parties in many instances, he should not have the power to make such an appointment unilaterally. Where he is not a party to the agreement it would be wholly inappropriate for him to interfere with its operation.
  We expect that any concession agreement will contain an arbitration clause covering such matters as befit arbitration procedure. Further, it has always been our intention that a concessionaire should bear a proportion of the costs incurred by the highway authority in taking a special road scheme through statutory procedures. The House has already debated and agreed to an amendment tabled in my name which

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  will ensure that where either party fails to meet its obligations under the terms of the concession agreement it shall reimburse the other party a proportion of the costs incurred. In short, arbitration is a matter for individual concession agreements; it is not a matter in which the hands of the parties should be tied by a provision in the Bill.
  There is a difference between Parts III and IV of the Bill. It is true that there are provisions to provide for arbitration there, but they concern the settling of disputes where one party has a right to carry out works at the expense of another. That is a very different situation the one arising between the highway authority and the concessionaire envisaged under Parts I and II of the Bill. In the light of that explanation, I hope that the noble Lord will not press his amendment.
  Lord Clinton-Davis: My Lords, perhaps I am being a little obtuse, but I find that explanation rather strange. It is perfectly true that arbitrators need to be independent. That is the purpose of the procedure. However, I do not understand the explanation. I hope that the Minister will be able to explain it in terms not displayed in the brief. Perhaps he could outline in his customary comprehensible style the point that he is trying to make.
  Leaving aside what the Minister is being asked to say in this regard, it is a fact that there can be disputes over costs. Therefore, we must have a proper method of dealing with such disputes so that they are settled by an independent person along the lines set out in Clause 92. Clause 92 provides that:
  "Any matter which under this Part is to be settled by arbitration shall be referred to a single arbitrator appointed by agreement between the parties concerned or, in default of agreement, by the President of the Institution of Civil Engineers".
  Why can we not have such a provision in this part of the Bill? I fail to understand the rationale, although it is possible that I have simply missed the point.
  It seems unacceptable in many ways that the Minister is content to rely more and more upon the concession agreement. When he refers to those agreements in the way that he has, it means that the public will not really know what is going on. All this is highly relevant to an amendment which we shall be discussing shortly—namely, Amendment No. 17—which deals with publicity. I trust that the Minister will be able to explain the matter in more simple terms so that I can understand the point that he is trying to make.
  Lord Brabazon of Tara: My Lords, I do not think that I can explain the matter in simpler terms. So far as concerns the independence of the arbitrator, the noble Lord seeks by way of his amendment to have an independent person appointed by the Secretary of State. My argument is that it is not right for one party to the arbitration, or possible arbitration, to be appointed by the Secretary of State. The noble Lord read out the way in which an arbitrator would be appointed under Part III of the Bill. Of course, that is a different procedure.
  There must be a proper method of settling disputes
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  involved in each concession agreement. There will not be individual agreements between each of the many parties in the street works part of the Bill. That is the difference between the two parts. I do not think that I can go any further on the matter.
  Lord Clinton-Davis: My Lords, in that case, would the Minister have been prepared to accept the principle of the appointment of the arbitrator being undertaken by joint agreement between the Secretary of State and the concessionaire?
  Lord Brabazon of Tara: My Lords, it would have helped, but it would still not have gone far enough to answer the second part of my argument. With the leave of the House, perhaps I may point out that of course I should have made that clear.
  Lord Clinton-Davis: My Lords, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Leasing of land to concessionaire]:
  Lord Underhill Lord Underhill moved Amendment No. 13:
  Page 3, line 29, at end insert:
  ("(1A) Any lease of land granted under subsection (1) shall be for highway related functions only. For this purpose 'highway functions' has the same meaning as in section 2(2) of this Act.").
  The noble Lord said: My Lords, Amendment No. 13 seeks to limit any lease of land by the highway authority to the concessionaire to land required for highway-related purposes. An amendment in similar terms was introduced at Committee stage, but was not pressed. During that debate the Minister made the point that the amendment was unnecessary. He said that it was only possible for a local highway authority to acquire land for highway purposes under compulsory purchase schemes, at least in relation to a new road. Thus it would not be possible to acquire for other purposes land which could then be leased to the concessionaire.
  That line of argument is correct. But it does not cover all the options. The amendment as drafted would not seek to prevent highway authorities from acquiring land compulsorily and then leasing it to the concessionaires for non-highway purposes; but to prevent them from leasing for non-highway purposes land that was acquired voluntarily or was already within their ownership.
  I am sure the Minister will agree that the Government lose few opportunities of saying that local authorities own large areas of land, some of which are not in use. Much of that land may be unused due to inadequate access. Alternatively, it could have low value uses and the existence of a new road scheme giving access to it could greatly increase its value. The Government have strong powers to insist on the disposal of land by local authorities. Therefore in some circumstances, for new developments associated with a new road, the local authority could lease land which it already owns.
  That opens up the possibility for undesirable developments; for example, for the highway authority to lease land for developments such as an out-of-town shopping centre accessed solely by the new road. That

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  was mentioned during the debate on a similar amendment at Committee stage. It was also said that for the developer the development and the new road could be seen as a package. The developer could cross-subsidise the road and, in return, become a limited monopoly. Such developments may well be against existing development plans, both for the protection of existing town centres and for the protection of green belts, whether formal or otherwise. Developments in that category are not limited to retail centres; they may include housing or leisure facilities.
  During Committee stage I elaborated these points. It is not my purpose to repeat my remarks this afternoon. On that occasion I concluded:
  "It is not the purpose of the amendment to prevent development or even to prevent the kind of development described above in cases where it is sensible. It will, however, ensure that the Bill is not used to support undesirable development either directly or indirectly and it leaves each case to be judged on its own merits".—[Official Report, 4/12/90; col. 221
  I hope the Minister will consider carefully not only what was said at Committee stage, but also what is now being said, and look favourably upon the terms of the amendment. I beg to move.
  Lord Boyd-Carpenter: My Lords, I do not follow why the noble Lord says that the amendment leaves each case to be decided on its merits. It appears to inhibit entirely and in all circumstances the lease of land for other than highway purposes.
  Lord Brabazon of Tara: My Lords, I am surprised to see the amendment tabled again at this stage of the Bill. I answered at Committee stage with a clear-cut undertaking that the position in the Bill is watertight. Any lease of land granted under Clause 4(1) must be related to the concessionaire's functions under the agreement, and those functions are listed in Clause 1(1).
  If the noble Lord looks at those functions he will see that they are very clearly stated. They are,
  "design, construction, maintenance, operation or improvement of a special road".
  I assure the noble Lord that there is no danger of local authorities, highway authorities or concessionaires using this procedure in the way the noble Lord fears. The provision must and can only be used for highway-related purposes. I have looked at the matter since Committee stage and the position is watertight.
  Lord Underhill: My Lords, the Minister says he is surprised to see the amendment tabled again. The reason is that serious consideration was given to what the Minister said at Committee stage and, because some aspects seemed to be unclear or unsatisfactory, an amendment in similar terms was tabled for this afternoon.
  Once again I shall look carefully at what the Minister said. He has repeated that the matter is watertight. I hope that explanation also satisfies the noble Lord, Lord Boyd-Carpenter. If it is watertight, and what we are suggesting cannot occur, there is no point in pressing the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  5.45 p.m.
  Clause 5 [Transfer or termination of concession]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment no. 14:
  Page 4, line 5, leave out ("not be assigned") and insert ("be assigned with the consent of the highway authority; and references in this Part to the concessionaire shall be construed as references to the person for the time being entitled to exercise those rights.").
  The noble Lord said: My Lords, in moving Amendment No. 14, with the leave of the House I shall speak also to Amendments Nos. 32 and 41.
  The amendment to the first subsection of Clause 5, and the amendment to the first subsection of Clause 31, are designed to allow the rights of a concessionaire under a concession agreement to be assigned to a third party, but only with the highway authority's consent. Clause 5 relates to concession roads in England and Wales; Clause 31 to concession roads in Scotland.
  Our intention behind these amendments is to ensure that the framework established by means of the concession agreement between the highway authority and the promoter of a scheme is not so rigid as to discourage potential promoters and investors from coming forward with ideas and finance for the schemes. The difficulty of not permitting the assignment of rights is that it would restrict the private sector's ability to sell on their rights over a concession road. Ideally we should like to see investors bringing finance to these schemes, much as they finance other industrial undertakings, the trading in which is commonplace. If we insisted that a promoter could never sell the business that he had created, we would be preventing the private sector from making sensible decisions about the allocation of its resources, and removing the cutting edge of the market which leads to efficiency of provision.
  The right to collect tolls represents the value of the asset to the investors, who will be keen to protect their considerable investment in the enterprise. The ability of the concessionaire to sell that asset on to a new concessionaire, who would be under the same obligations to the highway authority and to the public as the original concessionaire, will make these projects more attractive and more marketable than otherwise. I should stress that all the concessionaire's liabilities and duties under the concession agreement will pass along with the right to charge tolls. The needs of road users would be unaffected by the change of concessionaire, except positively, to the extent that the new concessionaire might bring extra efficiency into the provision of the service in order to recoup his investment.
  We accept that there may be a need for control by the highway authority, and that is why we have provided that the highway authority's consent must be obtained before assignment is allowed. The highway authority will need to make sure that the party to whom the rights are assigned is reputable and competent to take the original concessionaire's place. The third amendment in the group is consequential.
  With that explanation, and the assurance that the highway authority will have a right of veto, I beg to move the amendment.
  Lord Tordoff: My Lords, I want to underline a point made by the noble Lord regarding the highway authority being under a duty to ensure that the concessionaires are reputable people. That is not stated on the face of the Bill. Perhaps there should be a provision in the Bill to indicate the conditions under which consent may or may not be given by the highway authorities.
  It is a pernickety point and I cannot think immediately of a situation where the procedure could go wrong. However, I am not clear what are the parameters within which the highway authority would operate.
  Lord Brabazon of Tara: My Lords, by requiring the consent of the highway authority the amendment goes a long way to meeting any anxieties which the noble Lord may have. I do not know whether it is a good idea to include specific conditions. Obviously the highway authority would not hand over a concession road to somebody of ill-repute, if that is the word the noble Lord had in mind. We have covered the situation pretty clearly by requiring the highway authorities concerned to do this.
  Lord Underhill: My Lords, will the Minister kindly confirm that I heard him correctly in his original statement? Did he make it absolutely clear that there is complete discretion on the part of the authority as to whether or not to give consent? I believe he used the words that they had the power of veto if they so desired. Is that correct?
  Lord Brabazon of Tara: My Lords, with the leave of the House, yes, there are no conditions on that.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 15:
  Page 4, line 17, leave out from ("may") to ("charge") in line 18 and insert (", for a period of not more than two years until a new appointment or an extension toll order takes effect or the toll period ends,").
  The noble Lord said: My Lords, I beg to move Amendment No. 15 and, with the leave of the House, speak also to Amendments Nos. 20, 23, 27, 33, 42 and 43.
  This group of amendments concerns a subject which has perhaps not been uppermost in our minds before now: what happens when a concession agreement comes to an end, either through the passing of time or prematurely. We already have some provisions in Clause 5 for premature termination of concessions. The highway authority is required to take steps to secure a new concessionaire, but this will not always be possible, especially if the toll period has not much longer to run. Under Clause 5(3), the highway authority can go on charging tolls on the same basis of the former concessionaire until a new concession is let, or until it decides it is impracticable to let one. But that begs the question how, and at what stage, it can be said to decide and how long it can go on hoping that something will turn up.
  Moreover, when a toll road is in use, and people accept the payment of tolls for the benefits it offers, it may not be an unmixed blessing simply to abolish tolls and make the road free to the user. This could simply
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  make it as congested as all the alternative routes. As noble Lords are aware, the Government believe in market pricing as an equitable means of distributing resources: it is not simply that they favour the private sector, though the private sector is usually better at acting on market principles. If a toll road has found its market, why should that market be deprived of a benefit it is prepared to pay for by opening it up to those who are not prepared to pay? When the concession agreement terminates, the highway authority will become solely responsible for maintaining and operating the road, which may be a considerable burden on public funds if it is no longer tolled.
  These arguments will doubtless be rehearsed case by case, and very often it will be generally agreed that tolling should cease and the road should become a free facility. But this may not be the right solution in every case; we are talking about events perhaps 30 or more years into the future. The new clauses proposed after Clause 11 and, for Scotland, after Clause 26 therefore allow the alternative possibility of continued tolling by the public sector authority after the concession comes to an end. This will require the making of a fresh order which will be a statutory instrument subject to annulment by either House.
  The amendments to Clause 5(3) and to the Scottish Clause 31(2) will allow an extension toll order to be made also when a concession ends prematurely and it proves impossible to let a new concession. It also solves the problem I posed earlier: what happens if the authority decides it cannot let a new concession and how soon must it decide? As amended, it will have a maximum of two years from the abandonment of a concession agreement to make a new agreement or to make and bring into force an extension toll order, or to cease charging tolls, with no possibility of reviving them. We think two years is a reasonable time, but not over-generous, given that negotiating a satisfactory concession agreement many not be easy, even for a road already in use. The amendment to Scottish Clause 27(4) is also consequential.
  It is intended that where a special road authority has the authority to assign its right to charge and collect tolls to a concessionaire, the right should not automatically revert to it if no assignation is made. As for England and Wales, an extension toll order would be required to authorise the authority to charge and collect tolls. With that explanation, I commend these amendments to your Lordships.
  Lord Clinton-Davis: My Lords, the Minister will appreciate that we have not had a great deal of time in which to consider the amendment. While I am grateful for the explanation he has given, I am not totally convinced that I followed everything. Perhaps I may ask him one or two questions arising from what he said or, in some cases, did not say.
  As I understand it, the Government envisage that tolls may continue to be charged on concession roads once there has been a reversion to highway authority ownership. I believe that he said that. He nods his head; therefore my understanding is right.
  What considerations or factors does the Minister believe may have to be taken into account by the

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  highway authority when it is decided whether or not to continue to levy tolls on a road which has reverted to that authority? Can the Minister confirm that in the case of concession agreements entered into by the local highway authority, the Secretary of State would leave it entirely to that authority to decide whether or not to continue to levy a toll? Perhaps the Minister will reflect on those points. I wish to reflect upon what he said in introducing the amendment.
  Lord Brabazon of Tara: My Lords, certainly I expect the noble Lord to wish to reflect on the new amendment. As I said when I moved it, this is not a subject where we have given much attention to what would happen when the toll arrangements came to an end. However, during the course of my speech I said that we were talking about matters 20 or 30 years ahead. So I would not wish to be, and one cannot be, too specific about what reasons the highway authority might have for wishing to continue tolling after the end of the concession period. I touched upon one or two in my opening remarks, such as that many road users might wish the tolls to be kept on.
  The noble Lord raised the point about whether the local authority—if it was a local authority concession road—would be able to decide to continue without having to refer the matter to the Secretary of State. It is my impression that the Secretary of State would have control over it. However, in order to make sure that I give the noble Lord a totally accurate reply, I wish to reflect on the matter.
  Lord Clinton-Davis: My Lords, before the noble Lord sits down, perhaps he would care to reflect on what has been said in the debate and write to me in answer to certain aspects that were not dealt with after questions that I raised.
  On Question, amendment agreed to.
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 16:
  After Clause 5, insert the following new clause:
  ("Restriction of classes of traffic
  .—(1) A concession agreement may, subject to the provisions of subsection (2) below, provide for a special road scheme to prohibit from using the road those classes of traffic defined in classes III, V, VI, VII, VIII, IX, X and XI of Schedule 4 to the Highways Act 1980.
  (2) A concession agreement providing for the prohibition of any other class of traffic than those specified in subsection (1) above; shall come into effect subject to the making of an order by statutory instrument by the Secretary of State, and no such order shall be made unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament").
  The noble Lord said: My Lords, I beg to move Amendment No. 16 standing in my name and that of the noble Lord, Lord Tordoff. We seek in the amendment to make provision for parliamentary scrutiny of a concession agreement which proposes to exclude road traffic other than that which is excluded from motorways. So plans for privately funded lorry-only roads, for example, would be capable of implementation only if an order be approved by both Houses of Parliament.
  The noble Viscount, Lord Falkland, proposed at Committee stage an amendment which would have
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  required all concession roads to be open to motorcycles. The Minister opposed it and said that the amendment would make it,
  "impossible to provide a normal motorway … let alone a car-only or lorry-only road, as is sometimes discussed in the context of private finance".—[Official Report, 4/12/90, col. 135.]
  In Committee we also debated an Opposition amendment which would have required all concession agreements to be laid before Parliament and subject to the negative resolution procedure. The Minister opposed that provision too on the grounds that requiring every concession agreement to go through such a process would lead to further uncertainty and delay.
  In justifying the provisions of Parts I and II the Minister has on several occasions argued that under the terms of the Bill concession roads will be highways and that,
  "the public will have their common law rights to use them as highways, subject, of course, to their paying the toll".—[Official Report, 4/12/90; col. 121.]
  The Minister must concede that the introduction of lorry only roads would represent a significant departure from the principle that he himself has adumbrated. When the Minister was challenged about that point in Committee, he further said on 4th December:
  "I said that there may be lorry-only roads in the future. There will be public highways but it is possible, as in the case of motorways, to restrict certain vehicles from using a motorway".—[col. 137.]
  The exclusion of a range of traffic from a motorway is perfectly reasonable. We accept that. It would be unreasonable for us to assert that a similar approach should not be adopted on appropriate privately financed roads. However, what worries us is the exclusion of additional categories of traffic to create lorry or car-only roads. That would represent a significant departure from the practice which, apparently, the Minister has endorsed. We consider that a proposal to operate a concession road on such a basis would be sufficiently significant in terms of transport policy to warrant parliamentary scrutiny of the project. The Minister must concede that that would be unprecedented. I hope, therefore, that he will accept the amendment. I beg to move.
  6 p.m.
  Lord Boyd-Carpenter: My Lords, I hope that my noble friend will not accept this amendment. Apparently it would apply in the case of a small toll road built for a specific purpose and from which certain types of traffic were excluded. In such a case we would have to go through the whole procedure of affirmative resolution in both Houses of Parliament. I have an affection for the affirmative resolution procedure, as against others, in appropriate cases—the noble Lord knows that—but the provision seems to go too far, particularly as the amendment, as drafted, would apply in the case of the smallest road and the smallest exclusion.
  Lord Tordoff: My Lords, I am not at all clear why people wish to exclude additional forms of traffic. I believe that current exclusions are made on the basis of safety, because it is considered that vehicles below

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  a certain size cannot be driven safely on motorways. I am not at all clear why there is an urge to exclude various categories of traffic from these roads. I come back to the point that my noble friend Lord Falkland made on a previous occasion when he remarked that the provision seems extremely hard on motorcyclists. They do not cause much trouble on these roads and I do not see why they should be excluded.
  Lord Brabazon of Tara: My Lords, when I looked at this amendment I was slightly puzzled as to what lay behind it. It seems to say that all roads subject to a concession should be for traffic of Classes I, II and IV, and any exceptions must be approved by Parliament. That is odd, because I do not know of any motorway which permits traffic of Class IV. However, Classes I and II are very extensive in themselves and cover most categories.
  The amendment is also odd because except in a private or hybrid Bill it is not the function of Parliament to decide what kinds of traffic may or may not use a road. For an all-purpose road, that is done through traffic regulation orders following consultation with representative bodies; for a special road it is a little more formal as the classes of traffic that may use the road are prescribed in the special road scheme, which is almost invariably subjected to public inquiry, but not scrutinised by Parliament.
  In this respect, a road subject to a concession will be like any other special road: the classes of traffic will be prescribed in the special road scheme which will override anything that may be said in the concession agreement. The agreement may specify a particular standard, but this will always be subject to anything specified in the scheme, or in any traffic regulation orders which may later be made. While I agree that there should be public discussion of what classes of traffic may use a concession road, I do not agree that the amendment is necessary to achieve that, or that it is the right way to do so.
  I recognise that the main fear of noble Lords opposite is that concession roads will be authorised for certain types of traffic to the exclusion of others. I do not fully understand what is so bad about that. It happens on motorways, as I have said, and many other roads have weight or dimension restrictions of some kind. Perhaps we have appeared too evasive on the subject of car-only and lorry-only roads. Perhaps that is because we are not planning any such roads. However, if the private sector comes up with any viable schemes, as I believe it might at least where cars are concerned, we should certainly look at the proposals with an open mind and with considerable interest. Frankly, I do not understand why the noble Lord is getting so excited. The Government, and transport planners, do not have a monopoly of wisdom. One of the advantages of giving the private sector a wider role is the very fact that it has fewer prejudices and is prepared to work out new solutions to some of our rather old problems.
  The noble Lord, Lord Clinton-Davis, made a point about public highways. A road that is open only to certain classes of traffic can still be a public highway.
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  Footpaths and bridleways are highways, but cars are not allowed to use them. The majority of concession roads probably will be designed for the motorway classes of traffic. However, we do not wish to inhibit innovation in the provision of roads. Therefore, on that principle I cannot accept this amendment.
  Lord Clinton-Davis: My Lords, I cannot understand that argument. If the noble Lord thinks I am getting excited about this matter he should see me when I am really excited. This matter does not make me terribly excited, but I am a little concerned that the Minister should be so cavalier about it. The provision would only apply to extensions beyond the motorway extensions.
  The Minister says that if we were to have Parliamentary scrutiny of a matter of this kind it would inhibit innovation. That is certainly not the case. Why should it have that effect? I repeat once again the Minister's words. In December last he said that,
  "there may be lorry-only roads in the future. There will be public highways but it is possible, as in the case of motorways, to restrict certain vehicles from using a motorway".—[Official Report, 4/12/90; col. 137.]
  That provision is perfectly all right. All we are saying is that, if that should happen, the public through Parliament should be able to invigilate the matter. I cannot believe that there is anything radical or revolutionary about that process, or that it is likely to inhibit innovation. The Minister was talking about a quite different point to that which the noble Lord, Lord Boyd-Carpenter, addressed. The noble Lord said the provision would apply to tiny roads. Perhaps the amendment should have addressed that point. However, that is not the gravamen of what we are arguing here and the noble Lord, Lord Boyd-Carpenter, knows that. We are talking about the broader concepts.
  In my submission the Minister has not been prepared to reconcile himself to some degree of public scrutiny for dealing with what would, on his own submission, be an unprecedented state of affairs. I find it extraordinary that he should be so cavalier about parliamentary scrutiny of a matter of this kind.
  On Question, amendment negatived.
  Lord Underhill Lord Underhill moved Amendment No. 17:
  After Clause 6, insert the following new clause:
  ("Publicity for Toll Orders
  .—(1) Before making a toll order a highway authority shall publish a concession statement as specified in subsection (3) below.
  (2) The highway authority shall at the same time publish in at least one newspaper circulating in the area to which the agreement relates, and in the London Gazette, a notice:

  (a) stating that a concession statement has been published;

  (b) outlining the general route of the proposed road;

  (c) naming places where a copy of the concession statement may be inspected by any person free of charge at all reasonable hours during a period specified in the notice, being a period of not less than 6 weeks from the date of the publication of the notice; and

  (d) stating that, within the said period, any person may comment on the statement.

  (3) A concession statement issued under this section shall contain:

  (a) any draft special road schemes and orders relating to the proposed road published under the provisions of schedule 1 of the Highways Act 1980;

  (b) a draft of the toll order;

  (c) details of agreements reached between the highway authority and the concessionaire in relation to:

  (i) the payment of compensation to either the concessionaire or the highway authority;

  (ii) the design, construction and maintenance of the road;

  (iii) policing and the provision of other emergency services on the road;

  (iv) monitoring of the performance of the concessionaire in the management of the road;

  (v) the passing of the road to the highway authority; and

  (vi) any other matters prescribed by the Secretary of State.").

  The noble Lord said: My Lords, Amendment No. 17 in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff, deals with the question of publicity for toll orders. The effect of the amendment would be to require the publication of key documents and proposals associated with the development of privately funded roads in a new document called a concession statement.
  It will be agreed that the planning and approval process for any road scheme is necessarily complex, particularly for members of the public who are unused to legal and bureaucratic procedures. That will be even more so in the case of roads built under this Bill. In addition to planning permission a concession road will also require a concession agreement (under Clause 1), a special road scheme (under Clause 1) and a toll order (under Clause 6). All of those documents have an important role to play and both the special road scheme and the toll order have the merit of being subject to an advertisement, objection and inquiry procedure. As has been explained previously, however, there is some confusion as to which issues are to be dealt with in which document.
  The most confusing document is the concession agreement. The Bill sets out some issues for inclusion in an agreement such as arrangements for compensating a concessionaire (in Clause 1(4)) and the exercise by the concessionaire of highway powers (in Clause 2). In addition, the Minister indicated in response to amendments at Committee stage that other matters such as the maintenance of concession roads should also be dealt with in the agreement. Therefore, at the very least it would be helpful if the Minister would agree to make available a note setting out a comprehensive list of the subjects which will be addressed in concession agreements.
  A second and major difficulty with the concession agreements is that there is no requirement for them to be made public. Indeed, at Committee stage the Minister opposed an amendment which would have required them to be laid before Parliament. The Minister said:
  "I should also emphasise that concession agreements are contracts and will, no doubt, contain material that is properly treated as commercially confidential".—[Official Report, 4/12/90; col. 128.]
  One aim of the amendment is to identify a range of issues to be covered in the agreements which cannot be
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  held to be commercially confidential and to require publication of the arrangements reached in relation to them. The issues identified for publication are compensation, design and maintenance standards, policing, monitoring of the concessionaire's performance and hand-over arrangements.
  A further aim of the amendment is to simplify the procedures for commenting on the various documents relevant to the approval of a concession road. The concession statement is designed to be a single document which pulls together the draft toll order and special road scheme, together with those aspects of the concession agreement which are not confidential and on which the public should be able to comment. Clause 6(4) already makes it clear that the toll order should be processed at the same time as the special road scheme. The amendment would help to achieve that objective as well as ensuring that people commenting on the order and the scheme had access to other key information about the arrangements for the planning and operation of the road.
  I believe that if the amendment is accepted the result would be a more informed and effective scrutiny of proposals for concession roads. In no way do we oppose the principle but we believe that there should be a statement clearly laying out the various points instead of a number of separate documents as at present. I beg to move.
  6.15 p.m.
  Lord Brabazon of Tara: My Lords, there are two aspects to the concession statement proposed in the amendment. First, the published concession statement would include information on the scheme, its route and the toll order and would require the highway authority to invite comments from any person on those matters. The principle behind that aspect is quite reasonable and all of that information is required to be made available and open to public scrutiny in any case. The procedure in Schedule 1 to the Highways Act contains requirements to publish details of orders for road schemes which are more rigorous than those suggested in the amendment.
  I also refer the noble Lord, Lord Underhill, to Schedule 2 to the Bill which will introduce similarly rigorous requirements for toll orders. We are as keen as the noble Lords opposite to ensure that local interests are fully protected and local people have the opportunity to voice their concerns. However, the Bill as drafted contains sufficient provision for that.
  The second aspect is the publication of information on the concession agreement itself. As I said during Committee stage, concession agreements will be contracts and will contain information which is commercially confidential. I accept that the amendment requires only certain information about the agreement to be made public. However, I wonder what could be achieved by publication of those details. Compensation to the concessionaire or the highway authority is a matter for an agreement between those two parties. Both can be expected to ensure that they are properly protected because it will be in each one's

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  interest to do so, particularly as we now have provisions in the Bill for the concession agreement to allow for compensation of either party.
  Highway authorities will no more neglect their duties as highway authorities on signing a concession agreement as regards design, construction, maintenance or monitoring of the facility than if they were paying contractors to undertake the work in the conventional way. I have never heard it argued that details of contracts made by highway authorities should be published and commented on by the public. I therefore see no reason for requiring that of concession agreements.
  I should also like to remind the Committee of the amendment which we have put down to Clause 1 requiring the Secretary of State to publish in an annual report to Parliament details of concession agreements which he has entered into during the course of the previous year. In no sense do we object to the principle that the public should be consulted on and Parliament informed of such road projects but rather to the way in which the amendments appear to wish to make the procedures so arduous as to discourage private sector participation.
  I must therefore strongly resist the amendment as superfluous and burdensome. I hope that the noble Lord will agree to withdraw it.
  Lord Underhill: My Lords, I am very grateful to the Minister for his detailed reply. However, there are a number of points which require careful consideration. The amendment is detailed in many respects, and there are points which I believe are worthy of consideration by the Committee. The Minister referred to the report to Parliament. However, at Committee stage he was not very happy with that situation but agreed to look at the matter. I am very pleased that he brought forward an amendment today.
  There are aspects of the amendment which deserve serious consideration, and I should like to test the feeling of the Committee.
  On Question, amendment negatived.
  Clause 24 [Toll Orders]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 18:
  Page 15, line 9, at end insert:
  ("( ) Where a roads authority enter into a contract such as is mentioned in subsection (7) above and the person who has contracted to design or construct the road fails to complete the road in accordance with the contract he shall, without prejudice to any other liability, pay the authority such compensation in respect of costs incurred by them as may be determined in accordance with the contract.
  Those costs shall be taken to include the relevant administrative expenses of the authority, including an appropriate sum in respect of general staff costs and overheads.").
  The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 4. I beg to move.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 19:
  Page 15, line 15, at end insert:
  ("( ) In respect of any calendar year during which—
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  (a) the Secretary of State enters into a contract for the design and construction of a road which is to be subject to a toll order,

  (b) there is opened to public use a new road subject to a toll order for which the Secretary of State is the roads authority,

  the Secretary of State shall lay before Parliament a report stating the number of such contracts entered into or, as the case may be, the number of such roads opened during the year and containing such other information relating to such contracts or roads as appears to him to be appropriate.
  The report shall be laid on or before 31st July in the following calendar year.").
  The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 5. I beg to move.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 20:
  After Clause 26, insert the following new clause:
  Extension toll orders
  (" .—(1) Where a toll order authorises the special road authority to assign their rights under the order to charge and collect tolls and—

  (a) the authority fail to do so;

  (b) such an assignation is terminated within the toll period; or

  (c) the authority wish to charge and collect tolls beyond the toll period,

  a further order (an "extension toll order") may be made to authorise the authority to charge and collect tolls for a new toll period.
  (2) An extension toll order shall not authorise the special road authority to assign their rights under it to charge and collect tolls.
  (3) An extension toll order relating to a special road for which the Secretary of State is roads authority shall be made by the Secretary of State; and an extension toll order relating to a road for which the roads authority is a local authority shall be made by that authority and confirmed by the Secretary of State.
  (4) Where an assignation under section 25(1) terminates by effluxion of time, an extension toll order must be made before, and shall have effect from, the end of that period.
  (5) The following provisions of this Act apply in relation to an extension toll order as in relation to a toll order under section 24(1)—
  section 26(1) and (2) (the toll period)
  section 27 (amount of tolls chargeable by special road authority),
  section 29 (application of enactments relating to monopolies, etc.),
  section 30 (variation and revocation of order), and
  sections 32 to 36 (further provisions with respect to tolls).
  (6) The power of the Secretary of State to make or confirm an extension toll order shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and the provisions of Schedules 1 and 2 to the Roads (Scotland) Act 1984 (procedure in connection with orders) shall not apply to an order under this section.").
  The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.
  On Question, amendment agreed to.
  Clause 8 [Amount of tolls chargeable by concessionaire]:
  Lord Tordoff Lord Tordoff moved Amendment No. 21:
  Page 5, line 18, leave out subsection (1) and insert:

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  ("(1) The Secretary of State may, by order, require a toll order authorising the charging of tolls by a concessionaire to specify the maximum tolls which may be charged.
  (1A) The Secretary of State shall make an order under this section where—

  (a) the road to which the toll order relates consists of or includes a major crossing to which there is no reasonably convenient alternative; or

  (b) he considers that there is no reasonably convenient alternative route of a similar standard to that provided by the road to which the toll order relates.").

  The noble Lord said: My Lords, we return to the question of charging tolls in monopoly situations. Noble Lords who were not present during the Committee stage will not be aware that I moved, with great persuasiveness, a change to the Bill. I pointed out that the Bill only allows for maximum tolls to be imposed by the Secretary of State by order in one circumstance; namely, estuarial crossings with certain defined limits. I pressed the Minister to accept that there were circumstances in which there could be monopoly or near monopoly situations that were not confined to estuarial crossings.
  The Minister refused to accept that argument. However, what he said seemed to be somewhat contradictory. For instance, he said that:
  "Clause 8 was intended to protect consumers from excessive tolls in monopoly situations such as estuarial crossings". [Official Report, 4/12/90; col. 158.]
  I have no problem at all with that statement. I am all for protecting the customer from monopoly situations, whether they be public monopolies or private monopolies (for the benefit of the noble Lord, Lord Boyd-Carpenter). However, Clause 8 applies not to monopoly situations such as estuarial crossings: it applies to monopoly situations only in the case of estuarial crossings. The noble Lord went on to say:
  "Of course difficult situations may arise that one cannot foresee. That is why we have made provision for the estuarial crossings". [Official Report, 4/12/90; col. 159.]
  In fact the Bill provides for only one relatively straightforward situation, which has been foreseen, and there is no scope in the Bill to deal with situations that have not been foreseen. If the Minister wishes to protect customers from monopoly situations and wants to provide for difficult situations that one cannot foresee, I trust that the principles underlying this amendment will be acceptable to the Government.
  I make no pretence that the wording of the amendment is perfect. I merely want to get into the Government's mind the fact that the provisions that they have made to protect customers from monopolies are not sufficiently flexible to deal with situations which in my opinion could arise. I beg to move.
  Lord Brabazon of Tara: My Lords, I am grateful to the noble Lord for explaining the amendment and indeed returning to this subject. As I admitted at Committee stage, it was a little difficult in the case of estuarial crossings to find a definition.
  I find a number of difficulties with this amendment. The first difficulty which it would cause lies in the procedures proposed. Subsection (1) would in effect require the making of an order which would require the toll order, a quite separate order, to specify a
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  maximum toll, where the toll road was a monopoly. That would mean two orders for each scheme. The advantage of the current provision is that, whatever regulations the Secretary of State makes under Clause 8(3) regarding major crossings, the definition, which in the present version is clear, will apply in all cases. If the likely competitive environment had to be decided case by case, there would be room for interminable discussions at public inquiry, which might in any case not lead to a satisfactory conclusion. I could not agree with an extra layer of uncertainty and delay if it did not serve any valid purpose.
  Why, I would ask, is there a need for an order to be made in each separate case of a scheme which is a major crossing without alternatives, when a simple, general provision like Clause 8(3) has the same effect but without the obstacle of a superfluous order?
  I turn now to the proposed requirement in subsection (1A). It provides that a convenient alternative should be restricted to routes of a similar standard. That is very unsatisfactory. First there are the difficulties in defining what is meant by "similar standard" and establishing whether two roads are of it. But even if the provision were workable, it could well encourage promoters to come forward with new schemes which offered less capacity and were therefore less beneficial because of the attraction of being able to charge market tolls rather than regulated tolls. I do not think that your Lordships desire such a perverse result. Our clear intention with the monopoly provisions of this Bill is to establish a clear framework for the private sector to operate in, not to distort the market in such a way as to make toll roads unviable.
  For all those reasons, I am afraid that I cannot accept the amendment.
  Lord Tordoff: My Lords, I do not know what is wrong with me but I do not seem to be able to get across to the Government a simple proposition. The Government do not believe in monopolies. They have put into this Bill a provision to stop people exploiting monopoly situations in the case of estuarial crossings. I am trying to say that that may not be the only case where a monopoly exists.
  I do not care whether the wording of this amendment is right or wrong or whether there is some better way to deal with the matter so that there are not two sets of orders. All that I am trying to get across is the simple principle, which the Minister seems to be trying to avoid, that there may be monopoly situations which are not catered for in the Bill and which ought to be catered for in the Bill. Try as I may, I do not seem to be able to put it across to the Minister.
  I hope that he will think again about this matter before the Bill comes to another stage in this House or moves on to the other place. Clearly I shall not make any more progress at this stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 22 not moved.]
  Clause 27 [Amount of tolls chargeable]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 23:

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  Page 16, line 31, leave from ("unless") to end of line 33 and insert ("an extension toll order is made in respect of that road.").
  The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.
  On Question, amendment agreed to.
  Clause 11 [Variation or revocation of toll order]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 24:
  Page 7, line 2, leave out subsection (1) and insert:
  ("(1) A toll order may be varied or revoked—

  (a) by an order made by the Secretary of State if he is the highway authority for the road, and

  (b) by an order made by the highway authority and confirmed by the Secretary of State in any other case.

  (1A) The Secretary of State may confirm an order made by another authority either without modifications or subject to such modifications as he thinks fit.").
  The noble Lord said: My Lords, in moving this amendment, I should like, with the leave of the House, to speak also to Amendments Nos. 25, 26, 28, 29, 30 and 31.
  These amendments concern toll roads for which a local authority is the highway authority, whether or not the road is subject to a concession. Under Clause 6 a toll order for a local road is to be made by the local highway authority and confirmed by the Secretary of State, but under Clause 11 as drafted only the Secretary of State has the power to vary or revoke a local authority order.
  On reflection, there is no point in making that distinction and in practice I am sure that the Secretary of State would not wish to vary or revoke over the head of the local highway authority an order affecting a local road. These amendments will place the local highway authority in the same position with regard to variation and revocation orders as they are in with regard to the original toll order. It is for the authority to make the order, but the Secretary of State must confirm it before it can come into effect. The confirming instrument will be subject to negative resolution, as will a variation or revocation order made by the Secretary of State in relation to a toll road for which he is the highway authority.
  There are two sets of amendments: one for England and Wales and one for Scotland. The effect is the same in each case. I am sure that local highway authorities will welcome this change and I commend it to the House. I beg to move.
  Lord Clinton-Davis: My Lords, I have no great quarrel with the Minister about this. I am sure that he will be glad to know that. I should like to raise two issues which relate to the second part of his proposed amendment. As I understand it, there is no requirement imposed on the Secretary of State to consult the local highway authority before any question arises of modifying an order made by that authority. That is a matter that needs to be examined, or is at least something to which the Minister should respond.
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  What this amendment also does is to stress the considerable differences between Clause 6 and Clause 11. Clause 11 implements Schedule 2 which sets out a detailed procedure for making and confirming a toll order. But these requirements are not imposed in relation to the variation as distinct from the making and confirmation of a toll order, although I think the Minister will have to concede that the variation could be just as significant as the making of an order itself. But there is a requirement that variation or revocation orders should be subject to the negative resolution procedure in both Houses of Parliament. Will the Minister be kind enough to deal with those points? I shall certainly not challenge the amendment, but I should like those further particulars.
  6.30 p.m.
  Lord Brabazon of Tara: My Lords, I am not sure that at this stage I can go much further than I have already gone. Of course, I hope that I can do so. The Secretary of State will certainly consult in such a case, but this amendment should be welcomed by local highway authorities because it puts them on the same footing as the Secretary of State, as they are under Clause 6. I hope that that will be most welcome.
  I meant to imply that I shall look at the questions which the noble Lord has just raised. If I can expand on them further, which I am sure I shall be able to do, I shall write to the noble Lord before the next stage.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments No. 25 and 26:
  Page 7, line 7, leave out ("Secretary of State") and insert ("highway authority").
  Page 7, line 9, leave out subsection (4) and insert:
  ("(4) An order under this section made by the Secretary of State, and an instrument made by the Secretary of State confirming an order under this section made by another authority, shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  The provisions of Schedule 2 (procedure in connection with toll orders) do not apply.").
  The noble Lord said: My Lords, I spoke to Amendments Nos. 25 and 26 with the last amendment. With the leave of the House I shall move them en bloc. I beg to move.
  On Question, amendments agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 27:
  After Clause 11, insert the following new clause:

  Extension toll orders
  (".—(l) An order authorising the charging of tolls by the highway authority (an "extension toll order") may be made in relation to a road which is or has been subject to a concession.
  (2) An extension toll order relating to a special road for which the Secretary of State is the highway authority shall be made by the Secretary of State; and an extension toll order relating to a road for which the highway authority is a local highway authority shall be made by that authority and confirmed by the Secretary of State.
  (3) Where the concession agreement terminates by effluxion of time, an extension toll order must be made before, and shall have effect from, the end of that period.
  (4) Where the concession agreement is terminated before the end of that period, an extension toll order must be made so as to come into force not later than two years after the termination of the agreement.
  (5) The following provisions of this Act apply in relation to an extension toll order as in relation to a toll order under section 6(1)—
  section 7(1) and (2) (the toll period),
  section 9 (amount of tolls chargeable by highway authority),
  section 10 (application of enactments relating to monopolies, &c.),
  section 11 (variation or revocation of order), and
  sections 12 to 16 (further provisions with respect to tolls).
  (6) An extension toll order made by the Secretary of State, and an instrument made by the Secretary of State confirming an extension toll order made by a local highway authority, shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  The provisions of Schedule 2 (procedure in connection with toll orders) do not apply.").
  The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.
  On Question, amendment agreed to.
  Clause 30 [Variation or revocation of toll order]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 28 to 31:
  Page 18, leave out lines 7 and 8 and insert:
  ("(1) A toll order may be varied or revoked—

  (a) by an order made by the Secretary of State if he made the toll order; and

  (b) by an order made by the local roads authority and confirmed by the Secretary of State in any other case.

  (1A) The Secretary of State may confirm an order made by a local roads authority either without modifications or subject to such modifications as he thinks fit.").
  Page 18, line 13, leave out ("Secretary of State") and insert ("roads authority making the order").
  Page 18, line 15, leave out from beginning to ("by") and insert ("The power conferred on the Secretary of State by this section to vary, revoke or confirm an order is exercisable").
  Page 18, line 19, leave out ("such an order") and insert ("an order under this section").
  The noble Lord said: My Lords, I spoke to Amendments Nos. 28 to 31 inclusive with Amendment No. 25. I beg to move these four amendments en bloc.
  On Question, amendments agreed to.
  Clause 31 [Transfer or termination of assignation]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 32:
  Page 18, line 21, leave out ("not") and insert (", with the consent of the special road authority,").
  The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 14. I beg to move.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 33:
  Page 18, line 22, leave out subsection (2) and insert:
  ("(2) Where an assignation granted by the special road authority under section 25(1) is terminated before the end of the toll period, the authority shall take reasonable steps to grant a fresh assignation to a new concessionaire and the authority may charge and collect tolls in the same way as a
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  concessionaire within the period of two years beginning with that termination but, within that period, only until the earliest, if any, of the following events—

  (a) the granting of a fresh assignation;

  (b) the expiry of the toll period;

  (c) the commencement of an extension toll order.

  (2A) References in this Part (including this section) to an assignation granted under section 25(1) shall include references to a fresh assignation granted by virtue of subsection (2) above.").
  The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.
  On Question, amendment agreed to.
  Clause 12 [Further provisions as to charging of tolls]:
  Lord Swinfen Lord Swinfen moved Amendment No. 34:
  Page 7, line 14, after ("order") insert ("shall contain provision exempting from liability for tolls, any vehicle lawfully displaying a badge issued to a disabled person under section 21 of the Chronically Sick and Disabled Persons Act 1970 and").
  The noble Lord said: My Lords, I beg to move Amendment No. 34 with which are grouped Amendments Nos. 35 and 36. We went into this matter of the exemption of tolls for disabled people in some detail at Committee stage, so I shall not weary your Lordships with a long dissertation this evening. My noble friend the Minister has gone some way to satisfying what we want, but I shall be grateful if he will clarify one important point.
  Are the amendments of himself and of his noble friend Lord Strathclyde solely giving exemption to those with a vehicle that is exempted from duty where the toll road is an estuarial crossing? If that is the case it is not satisfactory and we may have to come back to it at a later stage.
  I agree that not all disabled people need necessarily be exempt from tolls, but those who are so disabled as to be exempt from the vehicle excise licence should, in my view, be exempt from all tolls, part of the reason being that they are debarred because of their disabilities from using alternative forms of transport. They are not able to get on buses; they are not even able to use trains. Even though buses may have to pay the toll, the individual passengers are probably paying only a small proportion of it. I shall be interested to hear what my noble friend has to say. I beg to move.
  Lord Clinton-Davis: My Lords, I fully support the amendment moved by the noble Lord, Lord Swinfen. I have little to add to what he has said today and to what was said in the earlier debate, save that the solution that he is seeking, and which I endorse, is not without precedent. The Dartford Tunnel and the Tyne Tunnel exempt disabled people from tolls if they are in receipt of the exemption that he is seeking; namely, if they receive an exemption from vehicle excise duty.
  It is perfectly legitimate for the noble Lord to put the point to the Minister, because if the Minister were to respond that the exemption that he has in mind is so constrained, then it would hardly be worth having and I should hope that the House would then seek to challenge the Minister on that matter.
  However, the right course is to hear what the Minister has to say. Certainly he has not so far gone

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  anything like far enough, but we hope that he will be prepared to enter into a much greater commitment so far as the future passage of this Bill is concerned.
  Lord Brabazon of Tara: My Lords, obviously the noble Lord is indeed hard to please. I am, however, grateful to my noble friend for tabling this amendment. He is certainly right to come back to the question, although I have put down a separate amendment which, as he said, proposes a rather different solution. I can also tell noble Lords that I have been in correspondence with RADAR, the Spinal Injuries Association and the Joint Committee on Mobility for Disabled People, in response to letters from them, explaining our thinking.
  There are two differences between the two amendments before us. The first is that my amendment takes as the basis for exemption from tolls not the orange badge scheme, but the arrangements for exemption from vehicle excise duty under the Vehicle Excise Act 1971. I point out to the noble Lord, Lord Clinton-Davis, that this follows the precedent in the Dartford Thurrock Crossing Act. We believe it is the fairest way of targeting help at those who need it; it ties in logically with the purpose of the vehicle excise duty exemption, and the payment of mobility allowance, which go hand-in-hand. These exemptions are rightly designed to give financial assistance to disabled people in respect of their travel needs, as indeed would an exemption from tolls.
  As I explained at Committee stage, the purpose of the Orange Badge scheme is to allow disabled people who have considerable walking difficulties to park as near as possible to places they wish to visit. Unlike the VED exemption, its aim is not to assist disabled people financially with their travel requirements. There are well over a million orange badge holders in the country and the Government know what difficulties are caused for both issuing and enforcement authorities by the potential abuse which the existing scheme offers.
  As my noble friend will be aware, proposals will shortly be brought forward to cope with these problems.
  I turn now to the second difference in my amendment from that proposed by my noble friend. The difference is that it applies only to cases where the toll is limited, either because the toll collector is the highway authority, or because the road is an estuarial crossing and there is no convenient free alternative.
  My noble friend suggested that we should be willing to go further in offering assistance to disabled people. I first stress that we are looking for private financing of these roads. The successful bidder in a competition for a road will invest a great deal of money, at considerable risk, into a commercial project. These roads will be in genuine competition with other roads which will have the great advantage of being free at the point of use, and road users including disabled people will have the option of using them. In these circumstances we believe it is right that a decision to exempt disabled people from tolls should be for the concessionaire's judgment. Under Clause 12 of the Bill as currently drafted he will be able to do so and he may
  390
  well decide that the cost of doing it is well worth the good will generated. I can also see why it would be in the interests of his business to offer a reduced toll which people with disabilities would be more than willing to pay in respect of the benefits the road has to offer.
  However, we recognise the strength of the argument that for many disabled people their car is their only means of transport; that the imposition of a toll on a route where there is no convenient free alternative would unduly restrict their mobility; and that the loss of revenue in a case where the highway authority is the toll collector would be justifiable. That is why we have come forward with this amendment following the debate at Committee stage and representations we have received.
  I thank my noble friend for his contribution to the debate and hope that my proposed amendment will meet the anxieties expressed.
  Lord Swinfen: My Lords, I thank my noble friend for his reply. I am not sure that the amendments go far enough totally to satisfy me and my advisers. I shall read what my noble friend has said and consider it seriously. I shall reserve my right to come back on Third Reading with another amendment to improve the position. Many disabled people who qualify for an orange badge may be in a position to invest in companies which take such concessions and, therefore, earn an income. However, most of those who are exempt from the vehicle excise licence have little earning power and a small income and, therefore, are unlikely to be able to invest in such companies. We must take care to look after them properly. I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 35:
  Page 7, line 17, at end insert:
  ("( ) A toll order which specifies maximum tolls shall contain provision exempting from liability to pay any toll which is subject to a maximum—

  (a) a vehicle exempted from duty under section 4(1) (g) of the Vehicles (Excise) Act 1971 if it is being used for the purposes of an invalid, and

  (b) a vehicle so exempted under section 7(2) of that Act if it is being used by or for the purposes of a person suffering from a physical defect or disability.").

  On Question, amendment agreed to.
  Clause 32 [Further provision as to charging of tolls]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 36:
  Page 18, line 44, at end insert:
  ( ) A toll order which specifies maximum tolls shall contain provision exempting from liability to pay any toll which is subject to a maximum—

  (a) a vehicle exempted from duty under section 4(1) (g) of the Vehicles (Excise) Act 1971 if it is being used for the purposes of an invalid, and

  (b) a vehicle so exempted under section 7(2) of that Act if it is being used by or for the purposes of a person suffering from a physical defect or disability.").

  On Question, amendment agreed to.
  Clause 15 [Facilities for collection of tolls]:
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 37:
  Page 9, line 5, at end insert:

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  ("(2A) Subsection (2) above shall not apply in any case where facilities for the collection of tolls are replaced or modified or in any case where new facilities are provided after the commencement of the toll period.").
  The noble Lord said: My Lords, we are seeking to limit the exemption from planning permission provided by Clause 15(2) to toll collection facilities which are constructed at the same time as the road. As presently drafted subsection (2) gives a blanket exemption from planning permission to all toll collection facilities which may be associated with a concession road. In Committee the noble Lord, Lord Brabazon, opposed an amendment that we then tabled intended to delete that subsection. In doing so he said:
  "The reasoning behind the subsection is by no means as sinister as the noble Lord makes out".
  The word "sinister" was putting the matter a little high but sometimes the Minister reacts in that way to anything that I say. He introduces words such as "sinister", "excited" and so forth but it does not matter. The Minister continued:
  "It is simply that, having gone through a complicated and exhaustive procedure to authorise a road scheme and the power to toll, it seems superfluous to expect the concessionaire to engage in a quite separate procedure to obtain planning permission for toll booths and their essential facilities such as rest rooms for toll collectors".
  He later added:
  "I understand also the concern about the breadth of the expression 'facilities for the collection of tolls'. It may be that we have not yet got the right balance. I shall look into the matter further … I shall table an appropriate amendment at Report stage if we can come up with a better solution".— [Official Report, 4/12/90; col. 169.]
  The Minister has not done so. Therefore, one assumes that he has not been particularly exhaustive in attempts to find a better solution. That is why we now return to the subject.
  In our debate in Committee I sought to anticipate the argument against the necessity for a concessionaire to apply for permission to have toll collection facilities after obtaining approval for the road scheme as a whole. I argued then, and I repeat the argument today because it is still true, that technological advances will be made. It is almost certain that the type of facilities that are most appropriate for efficient and effective toll collection will alter during the life of the toll order and concession agreement. Therefore, it is as important that any new facilities are subject to the same degree of scrutiny as the initial proposals.
  That is the purpose behind the amendment that I have tabled today. We retain the general exemption from planning permission for toll collection facilities but remove that exemption in the case of alterations to facilities and the provision of new facilities following the start of the toll period. I beg to move.
  6.45 p.m.
  Lord Brabazon of Tara: My Lords, the noble Lord, Lord Clinton-Davis, is right to remind me that in response to a similar amendment tabled in Committee I promised to look into the matter further. However, I was careful not to commit myself to an amendment at Report stage. This matter is being discussed with colleagues in the Department of the Environment but
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  we are not yet in a position to put down an amendment, nor, I fear, to give any clearer indication as to our conclusions.
  The compromise proposed by the noble Lord is interesting and I shall study it carefully. Unlike the amendment put down in Committee it would not delay the construction of new toll roads by complicating the authorisation procedure. But it raises another problem in the way that it deals with the replacement of facilities in the same way as modifications and additions. There are other matters that we need to consider and I must beg your Lordships' indulgence a little longer as discussions proceed. I hope that meanwhile I can persuade the noble Lord to withdraw this amendment.
  Lord Clinton-Davis: My Lords, that was a positive reply; the first positive reply that we have received. No, that comment is unfair because the Minister was reasonably positive the last time round.
  I thank the Minister for his comments about my amendment; that it is interesting and worthy of consideration by the two departments and that discussions are taking place. That is helpful but he did not indicate when the discussions are likely to be concluded. Perhaps before I sit down he could give the House such an indication.
  Lord Brabazon of Tara: My Lords, with the leave of the House, I cannot give a more clear indication. The Bill must go through another place and there is still a long time before it completes the process. I shall try to obtain a conclusion on the subject before the Bill leaves this House, but I cannot give an absolute undertaking.
  The noble Lord stated that I have been more considerate in relation to this amendment. I have brought at least three or four amendments before your Lordships' House this afternoon which are specifically in response to points raised by the noble Lord at the last stage of the Bill. That is quite a good record.
  Lord Clinton-Davis: My Lords, I am not complaining about what the noble Lord has done in response on a previous occasion. I am complaining about the reaction to some of the amendments that we have put down tonight, which have not been so successful. I am very grateful for the concessions that the noble Lord has made in relation to previous debates.
  I appreciate the Minister's difficulty in being able to provide any kind of timetable. The Bill has a long way to go, but it is good to know that matters are being further considered by the two departments.
  Amendment, by leave, withdrawn.
  Clause 16 [Restriction of access to toll roads]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments No. 38:
  Page 9, line 22, leave out subsections (2) and (3).
  The noble Lord said: My Lords, Amendment No. 38 applies to England and Wales and Amendment No. 39—to which I shall also speak—applies to Scotland. They do not apply any change of policy with regard to the requirement under Clause 16(1) and Clause 36(1) that the consent of the highway authority, and, in the

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  case of a privately financed road, the concessionaire must be obtained before a road giving access to a toll road is constructed. Nor have we changed the policy that a planning authority should give the concessionaire notice of any proposal to build such an access road, which was the purpose of subsection (2). We have decided that requirements of the kind involved in Clause 16(2) and (3) are more appropriately placed in a general development order under the Town and Country Planning Act 1990 than in separate regulations under the Bill. The general development order contains other, similar requirements and it is obviously beneficial for those in the planning world if such requirements are brought together in one document.
  With that explanation of our intention, I hope that noble Lords will accept the amendment. I beg to move.
  Lord Clinton-Davis: My Lords, I should like to seek clarification in relation to one or two small points. I thank the Minister for the amendment, having stated what he has about it.
  In the Notes on Clauses which the noble Lord was kind enough to provide earlier, it is stated that subsection (2) was needed to prevent the granting of permission without the knowledge of the highway authority and concessionaire, which could make it difficult in practice to refuse a means of access. Would the noble Lord be good enough to confirm that the deletion of subsections (2) and (3) will not
  "make it difficult in practice for a highway authority to refuse its consent for the creation of a new access for a toll road"?
  Lord Brabazon of Tara: My Lords, there is no change in our policy in relation to any of the points raised by the noble Lord. We propose to bring in the same provision under the general development order under the Town and Country Planning Act. I can assure the noble Lord that the effect will be exactly the same.
  On Question, amendment agreed to.
  Clause 36 [Restriction of access to toll roads]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 39:
  Page 21, leave out lines 6 to 13.
  On Question, amendment agreed to.
  [Amendment No. 40 not moved.]
  Clause 23 [Interpretation]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 41:
  Page 14, line 12, column 2, leave out ("section 1(1)") and insert ("sections 1(1) and 5(1)").
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 42:
  Page 14, line 12, at end insert:

  ("extension toll order

  section (Extension toll orders) (1)")

  On Question, amendment agreed to.
  Clause 41 [The Roads (Scotland) Act 1984 and the interpretation of Part II]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 43:
  Page 22, line 34, at end insert:
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  (" "extension toll order" means a toll order made under section (Extension toll orders)(1) authorising the charging of tolls for a new toll period;").
  On Question, amendment agreed to.
  Lord Strathclyde Lord Strathclyde moved Amendment No. 44:
  Page 23, line 17, leave out ("25") and insert ("25(1)").
  The noble Lord said: My Lords, the amendment is a technical one. I beg to move.
  On Question, amendment agreed to.
  Clause 42 [Streets, street works and undertakers]:
  Lord Brabazon of Tara
  Lord Brabazon of Tara moved Amendments No. 45:
  Page 24, line 11, leave out subsection (5) and insert:
  ("(5) References in this Part to the undertaker in relation to apparatus in a street are to the person entitled, by virtue of a statutory right or a street works licence, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the street, or to the undertaker to whom apparatus belongs, shall be construed accordingly.").
  The noble Lord said: My Lords, I should also like to speak to Amendment No. 46. Amendment No. 45 is necessary in order to provide a better definition of the term "undertaker" where it is used in relation to apparatus in this part of the Bill. An undertaker is defined in Clause 42 as the person for whose purposes the apparatus is to be or has been placed in the street. However, that definition would lead to uncertainty in cases where apparatus placed by one person is subsequently used for one or more others, for example where telecommunications cables that are used by several operators are placed in a disused gas or water pipe.
  By defining the undertaker as the person entitled to carry out street works on the apparatus in question, any doubt as to who is the undertaker for the purposes of the Bill is avoided. I beg to move.
  Lord Tordoff: My Lords, I was under the impression that it was the intention of the Government to take Amendments Nos. 70, 72, 74, 77 and 79 with Amendments Nos. 45 and 46.
  Lord Brabazon of Tara: My Lords, I think that those amendments are being taken with the next two Amendments, Nos. 47, 48, and also 80 and 82.
  On Question, amendment agreed to.
  Clause 99 [Roads, road works and undertakers]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 46:
  Page 55, line 26, leave out subsection (5) and insert:
  ("(5) References in this Part to the undertaker in relation to apparatus in a road are to the person entitled, by virtue of a statutory right or a permission granted under section 101, to carry out in relation to the apparatus such works as are mentioned in subsection (3); and references to an undertaker having apparatus in the road, or to the undertaker to whom apparatus belongs, shall be construed accordingly.")
  On Question, amendment agreed to.

  Community Charges (Substitute Setting) Bill
  Brought from the Commons; read a first time, and to be printed.
  [The Sitting was suspended from 6.58 to 8 p.m.]

  New Roads and Street Works Bill [H.L.]
  Consideration of amendments on Report resumed.
  Clause 43 [The street authority and other relevant authorities]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 47:
  Page 24, line 24, after ("53") insert ("and (General duty of undertakers to co-operate)").
  The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 48, 70, 72, 77, 79, 80 and 82.
  Lord Underhill: My Lords, are we not also taking Amendment No. 74 in this group?
  Lord Brabazon of Tara: My Lords, I do not believe that we are taking Amendment No. 74.
  Lord Underhill: My Lords, according to my Marshalled List the amendments in this group are Amendments Nos. 48, 70, 72, 74, 77, 79, 80 and 82. Amendment No. 74 forms part of this group.
  Lord Brabazon of Tara: My Lords, very well. I shall speak also to Amendments Nos. 70, 72, 74, 77 and 79 in the names of noble Lords opposite. Amendments Nos. 47, 48, 80 and 82 provide for a number of important changes to the provisions regarding the co-ordination of works. Amendments Nos. 47 and 48 are consequential on the new clause to be inserted after Clause 53. They make clear that the new duty on undertakers to co-operate with the street authority shall apply to a local highway authority in place of the Secretary of State where the authority is the Secretary of State's agent in relation to trunk roads.
  Amendments Nos. 80 and 82 will add a new clause which places a general duty on undertakers to co-operate both with the street authority and each other in a co-ordinating the execution of works. Of course, I have considered carefully the points raised in Committee in favour of such a provision and, following discussion with the utilities and highways authorities, I have concluded that a general duty of this nature is desirable if street works are to be co-ordinated efficiently and effectively. The amendment is drafted in general terms similar to Clause 53 which outlines the street authority's duty to co-ordinate works.
  Codes of practice which the Secretary of State may issue or approve under subsection (2) will set out the objectives and give detailed guidance in the exercise of undertakers' duties under this clause. I hope that noble Lords will accept that that anxiety is effectively met by the new clause which we propose after Clause 53, and that they will feel able to withdraw Amendments Nos. 73 and 79.
  Amendments Nos. 70 and 72 seek to add economy, efficiency and effectiveness to the list of objectives for which a street authority is to be required to co-ordinate works. Although the whole thrust of this part of the Bill is towards greater economy, efficiency and effectiveness for street works activity, we do not consider that there is anything to be gained by attaching that objective to the duty of the street authority in the context of this clause. Each utility will have a powerful financial interest in carrying out
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  works effectively and efficiently, particularly in the light of the penalties which will be suffered if they fail to do so. It could even be seen as diluting the responsibility of the undertaker to place a duty on the street authority to maximise the economy of street works.
  Greater economy, efficiency and effectiveness will be ways in which the street authority can secure the objectives set out in Clause 53 of minimising inconvenience to persons using the street. That will be fully reflected in the various standards and codes of practice to be applied throughout this part of the Bill.
  As regards Amendment No. 74, it is not necessary to express the provision on issuing a code of practice about co-ordination of works as a duty on the Secretary of State. The street authority's duty to co-ordinate works is a crucial element of the street works provision. The agreement of a code of practice capable of being approved by the Secretary of State under Clause 53 will be a priority when it comes to implementing this part of the Bill. The Department of Transport is working closely with the Highway Authorities and Utilities Committee on the drafting of such a code. It is the Government's firm intention to have such a code approved in time for the introduction of this new duty on the street authorities.
  I hope that noble Lords will approve the Government's proposed amendments and, when the time comes, will feel able to withdraw their amendments. I beg to move.
  Lord Underhill: My Lords, I should first apologise to the Minister and to the House. Amendment No. 74 was included in my copy of the Marshalled List but I have now seen the revised list on which it was not included with this group. That explains why Amendment No. 74 is not in the name of the noble Lord, Lord Tordoff, whereas Amendments Nos. 70, 72, 77 and 79 are in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff.
  This group of amendments together insert a new objective of co-ordination maximising the economy, efficiency and effectiveness of street and road works. Utilities are required to have regard to the proposed co-ordination codes of practice and the Secretary of State will be able to pursue utilities which are not co-operating with street authorities. The amendments require rather than permit the Secretary of State to issue a co-ordination code of practice.
  The Minister has stressed that the issue of co-ordination is very important. As regards the highways authorities, co-ordination is one of the most difficult and crucial areas. The credibility and effectiveness of the Bill will, to a great extent, hang on the co-ordination function being deployed satisfactorily.
  In Committee an amendment was moved by my noble friend Lord Clinton-Davis which would have imposed a duty upon utilities to co-operate with street authorities in the pursuance of their co-ordination duties. In response to that amendment the Minister

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  listed a series of provisions in the Bill which are designed to assist street authorities in co-ordinating street and road works. The Minister went on to say:
  "However, we accept that the street authorities' duty of co-ordination can be discharged effectively only if the undertakers concerned co-operate by participating in liaison meetings, giving adequate advance notice of their plans and so on. The code of practice to be issued or approved under subsection (3) may be used to give practical guidance to all interested parties on how co-ordination is to work in practice. We do not believe that further statutory obligations are necessary to achieve that".—[Official Report, 6/12/90; col. 313.]
  The Government have clearly reconsidered their position. This amendment represents an acknowledgment of the point raised by my noble friend in Committee. The Government amendments are broadly acceptable as far as they go. One unfortunate aspect of them is that they imply the existence of two co-ordination codes of practice: one issued under the provisions of Clause 53; and the second under the provisions of the Government's new clause. When the Minister replies, will he kindly confirm that the Government envisage producing a single code of practice on co-ordination fulfilling the requirements of both clauses?
  One aspect of the group of amendments which is not addressed in the Government's amendment is the inclusion of a new objective for co-ordination. The amendment would add a fourth point to the factors listed in subsection 53(1) namely:
  "to maximise the economy, efficiency and effectiveness with which street works and works for road purposes are undertaken".
  To ensure consistency this would have to be mirrored by the insertion of the same point in subsection (1) of the Government's new clause.
  The aim of this group of amendments is to pursue the key issue raised by my noble friend at Committee stage. It may be recalled that he asked the Minister a series of questions. These included:
  "If it appears to a street authority that in the interests of co-ordination a particular authority's work should be delayed or advanced, can the Minister say what powers may be introduced to enable that objective to be fulfilled?"—[Official Report, 6/12/90; col. 314]
  He also asked:
  "If there are a number of utilities having works planned in a particular street which might be programmed for resurfacing, what powers will be available to the street authority to ensure that works are timed to coincide with the resurfacing programme?"
  My noble friend also asked:
  "In such circumstances would the highway authority be able to ensure that the utilities reinstate to an interim level prior to resurfacing? Does the Minister believe that there is scope either for the utility or for the street authority to request, for example, resurfacing or reinstatement, to be done by the other party on a rechargeable basis?"
  A further question put by my noble friend was:
  "Might it not be advantageous for the highway authority to do the reinstatement, or other civil engineering work, for the utility while the authority is carrying out other works in the street? Alternatively, the highway authority may wish the utility to carry out some minor repair work adjacent to the reinstatement".
  At the Committee stage the Minister agreed to write to my noble friend on this matter. He has done so, and I think it would be useful to quote the Minister's reply. He states in his letter:
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  "Although Clause 52 will give the street authority the power to prevent undertakers from breaking up a highway within 12 months of the completion of resurfacing work etc, in practice the arrangements for advance notification and regular liaison meetings between highway authorities and undertakers should allow a process of dialogue to begin a year or more in advance, when a highway authority first reveals its proposed resurfacing work. Utilities may well at that stage agree to phase their own works in a co-ordinating fashion without the threat of the Clause 52 prohibition following the completion of resurfacing. The sort of joint working with the highway authority on the works themselves which you postulated will be perfectly possible under the Bill, and it may well be in the financial interest of both parties to work in that way. We do not believe that additional powers of compulsion for the street authority will be necessary or appropriate in those circumstances."
  I have quoted from the Minister's letter because we regard that response as being helpful, but it is also clear that the achievement of the sort of co-ordination referred to by my noble friend at Committee stage depends very much on the voluntary co-operation of the utilities. The local authority associations consider that the inclusion in subsection 53(1) of the objective such as that set out in the amendment, combined with the new duties imposed on the utilities in the Government's amendment, would strengthen the street authority's arm in securing co-operation and co-ordination of the type which all want to see.
  There is an important issue in relation to consultation which was not raised at the Committee stage. In a circumstance where two undertakers wish to carry out works at the same time it is understood that the street authority will be able to direct in the interests of safety which undertaker should undertake works first.
  Another important point which needs to be considered, however, is the question of liability. It may be that the second undertaker's work is delayed but it is given a start date by the street authority on the basis of information received from the first undertaker. The second undertaker, on the basis of that information, enters into an agreement with a contractor. The question which may arise is, who is liable if the completion date of the first undertaker is delayed and as a result there is litigation between the second undertaker and his contractor?
  The present subsection 53(3) states that the Secretary of State may issue or approve codes of practice on co-ordination. We must emphasis the view of the local authorities associations that Clause 53 is central to the Bill as a whole. Advice on the implementation of the co-ordination duty must be available to the highway authorities as soon as any parts of the Bill are implemented. Many members of this House have emphasised the importance of this new co-ordination duty. If it is to be effective it will impose a considerable extra burden on the highway authorities, and the extent of that burden will be determined by factors outside the authorities' direct control, primarily the extent of each of the utilities' work programmes. A unusually heavy burden could be imposed as a result of extensive mains renewals in a particular authority's area, for example. The local authority associations are naturally concerned about

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  this potential burden and would welcome an indication from the Minister as to how he envisages adequate resources being made available.
  I am sorry to have spoken at some length on this but we agree with the Minister that this question of co-ordination is a vital one and is central to the whole process of the street works part of the Bill.
  8.15 p.m.
  Lord Brabazon of Tara: My Lords, I thank the noble Lord for accepting the principle of the amendments that I have moved and I shall endeavour to try to meet the points which he raised in his amendments.
  First, codes of practice under Clause 53 and the new clause proposed after Clause 53 are likely to be in a single document. Obviously, having heard what the noble Lord has said, we shall do our best to make sure that they are indeed done that way.
  The noble Lord quoted from the letter I wrote to the noble Lord, Lord Clinton-Davis, on these points on Clause 53. I do not think that I can go any further at this stage than I did in that letter. As the noble Lord said, co-ordination is very important indeed. It is a critical part of the Bill, but it is a two-way process. The Horne Report came down against giving street authorities overriding powers to direct undertakers. Both sides will be required to comply with the code of practice on co-ordination. If they do so fully, there will be no need for additional powers of direction for street authorities.
  As noble Lords have said on many occasions during the proceedings on this Bill, this Bill has been carefully constructed to balance the needs of both the highway authorities and the statutory undertakers. As we proceed this evening we must be very careful to make sure that we do not upset that balance too greatly because it is the result of many years of careful consultation which is still continuing.
  The noble Lord asked whether local authorities will have adequate resources for this. We intend that the package as a whole should bring savings to local authorities, for example through the computerised register. The benefits will be very great for local authorities, and I am sure they would feel that any resources they needed to put into this matter would be money well spent.
  I shall certainly read most carefully what the noble Lord has said this evening. Obviously, I cannot answer at this stage all the points he made. If anything needs to be picked up by me I shall certainly undertake to write to the noble Lord, but, with that, I hope that the noble Lord will be able to agree to the Government's amendment.
  On Question, amendment agreed to.
  Clause 100 [The road works authority and other relevant' authorities]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 48:
  Page 55, line 38, after ("110") insert ("and (General duty of undertakers to co-operate)").
  On Question, amendment agreed to.
  Schedule 3 [Street works licences]:
  Lord Brougham and Vaux Lord Brougham and Vaux moved Amendment No. 49:
  Page 93, line 40, at end insert ("and shall give him like notice of any notification given by the licensee under paragraph 6."). The noble Lord said: My Lords, this is a probing amendment but it covers an important practical point. Apparatus installed in the street by persons requiring a street works licence may cease to be used or may change hands. Paragraph 6 of the schedule imposes an obligation on licensees to notify the street authority if that happens. As undertakers will have obligations under the Bill to give notice to persons having apparatus on the street in certain circumstances (a notice under Clause 49 is one example) it is important that they are aware of apparatus changing hands or being abandoned.
  The noble Lord said: My Lords, the purpose of this amendment is to ensure that the street authorities pass on the information they receive under paragraph 6 of the schedule to the relevant authorities. As I said, this is an important practical point. In the absence of a satisfactory assurance from my noble friend we may have to press the matter again at a later stage. I beg to move.
  Lord Tordoff: My Lords, as the noble Lord, Lord Brabazon of Tara, has already said, we now move into an area of delicate balance. It is so delicate that it is possible that I have put my name to amendments which are contradictory in that I find myself in some cases in agreement with people on either side of the argument. I support this amendment very much as a probing amendment. There is the possibility of a serious gap in communications if we do not get it right. I dare say that the local authorities are not desperately wild about this amendment. It may be in the wrong place. I believe that they also accept that the principle lying behind the amendment is a sensible one. The question is whether we have the balance right. It is a very useful way of drawing to the attention of the Minister the problems that can appear if this communication link is not preserved.
  Lord Brabazon of Tara: My Lords, as my noble friend has explained, this amendment would add a further notice requirement to the procedures for street works licences. Where there is a proposed change of ownership or abandonment of apparatus placed under a street works licence it is necessary for the licensee to inform the street authority which issued the licence. It is less clear why the licensee should be required to notify all other undertakers with apparatus in the street. That would be rather bureaucratic. If an undertaker is in any doubt it would he a relatively simple matter to check the current use or ownership of apparatus with the street authority. I will, of course, consider what my noble friend said and see if there is any need to improve the Bill in this way. At the moment I am reasonably happy with the way in which the Bill is drafted.
  Lord Brougham and Vaux: My Lords, I am grateful to my noble friend. I shall read very carefully what he said and perhaps we can then discuss the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 50 to 52:
  Page 93, line 42, leave out ("sum") and insert ("fee").

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  Page 93, line 44, leave out ("charge") and insert ("fee").
  Page 93, line 45, leave out ("sum") and insert (fee").
  The noble Lord said: My Lords, I beg to move these amendments en bloc. At the same time I shall speak to Amendments Nos. 85, 86, 87, 91, 92, 93, 124, 125, 134, 135, 150 and 151. These are technical amendments. They make clearer provision for the determination of disputes by arbitration. The main amendment to Clause 89 sets out which matters of dispute under this part of the Bill may be determined by arbitration. Disputes arising under the provisions which involve the recovery of costs or expenses incurred may be settled by arbitration if the parties concerned are unable to agree.
  However, determination by arbitration will not apply to disputes over the charging of prescribed fees, rights to compensation or claims for contributions to the cost of making good long-term damage to the street under Clause 71. The amendments to Clauses 54, 70 and 78 and to Schedule 3 are in consequence of this amendment and substitute the reference to fees where appropriate. That point was raised in Committee. I beg to move.
  On Question, amendments agreed to.
  Clause 101 [Permission to execute road works]:
  Lord Underhill Lord Underhill moved Amendment No. 53:
  Page 56, line 27, leave out paragraphs (b) and (c).
  The noble Lord said: My Lords, this amendment appears on the Marshalled List in the name of my noble friend Lord Carmichael of Kelvingrove and is a probing amendment. Clause 101 was introduced into Part IV of the Bill at Committee stage following consultations between the Scottish Office and the Convention of Scottish Local Authorities. The Scottish highway authorities are now broadly content that the clause is sufficiently closely aligned to Clause 44 in Part III of the Bill to provide for uniform application across the United Kingdom. However, they are unclear as to what kind of work and area the Government envisage prescribing under subsections (1), (2) (b) and (c). For the benefit of noble Lords who may not have the Bill by them, paragraph (b) refers to,
  "persons carrying out works of a prescribed class".
  Paragraph (c) refers to,
  "persons carrying out works in a prescribed area".
  It is on those particular factors which I understand the Scottish highways authorities are anxious to have the views of the Government. I beg to move.
  Lord Strathclyde: My Lords, I entirely accept that the noble Lord is seeking to probe the Government's mind in this amendment. I shall try to provide him with an answer which is acceptable. It is our intention to bring within the framework of Part IV of the Bill the great majority of cases where apparatus has been placed in the road. We take the view that it is increasingly likely that cases will arise where persons, companies or other private bodies seek to install apparatus in circumstances very similar to those of the statutory undertakers. It would therefore make good sense to have these operations controlled by the
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  legislation we are now considering and to have the operators and their works subject to the duties and conditions set out in Part IV of the Bill.
  It is our intention to consult the road authorities on the classes of persons, works and the areas to be prescribed by the Secretary of State for Scotland under the proposed clause before this power is exercised. Additionally, we wish to ensure that, where necessary, there is uniformity of treatment of operators and their works across Britain to ensure a high standard and less disruption to the public, as is envisaged in this Bill.
  For those reasons the classes of work to be prescribed might include all installations and telecommunications lines put in by private bodies or organisations for their own dedicated use or the works of cable television companies which would not be classed as statutory undertakers. Similarly, prescribed areas might include all roads designated as traffic-sensitive roads or roads subject to a restriction on works following substantial works for road purposes as in Clause 109.
  Having said all that, I hope that the noble Lord is satisfied that these provisions are sensible. We will consult the local authorities before making regulations. Therefore, I hope that he will be willing to withdraw the amendment.
  Lord Underhill: My Lords, I am grateful to the noble Lord for his explanation. It proves that the probing was well worthwhile. I am very pleased to know, and I am certain that the highway authorities will also be pleased to know, that there will be effective consultation before any steps are taken and that there is also a desire to achieve uniformity. I thank the Minister again for his observations and help. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 47 [The street works register]:
  8.30 p.m.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 54:
  Page 26, line 23, leave out from ("inspection") to end of line 24 and insert (", at all reasonable hours and free of charge—

  (a) so far as it relates to restricted information, by any person having authority to execute works of any description in the street, or otherwise appearing to the authority to have a sufficient interest, and

  (b) so far as it relates to information which is not restricted, by any person.

  The Secretary of State may make provision by regulations as to the information which is restricted for the purposes of this subsection.").
  The noble Lord said: My Lords, I should like to speak at the same time to Amendment No. 56. These amendments are necessary in order to provide for certain cases where access to information contained on a street works register will need to be restricted on grounds of national security or in order to protect certain technical details. It empowers the Secretary of State to make regulations prescribing the types of information which are to be treated as restricted. It would allow information of this nature to be made available only to other undertakers or to persons with a sufficient interest in the works. I beg to move.
  Lord Clinton-Davis: My Lords, I am obliged to the Minister for explaining, albeit briefly, the thoughts underlying the amendment. Can he indicate why it is difficult for him to explain on the face of the Bill with a little greater precision his reason for introducing this proposal relating to restricted information? To do so would not cause too much difficulty but it would then be apparent to those interested why restricted information is to be defined by the regulations.
  Can he give an undertaking that he will consult with the Highway Authorities and Utilities Committee, and most particularly with the local authority associations, before any regulations are prescribed under these provisions? Can he confirm that, in dealing with restricted information, the general public is not to be denied access to information about which utility has undertaken or has plans for street works in any street; that the public will have a contact name to whom representations might be made or from whom further information might be obtained and that details of the expected start date and the scope and duration that is likely in respect of any planned work may also be made available in that way?
  One has to have regard to the underlying purpose which the Minister has indicated, but perhaps a little greater openness would not come amiss. There is concern about this matter. It is concern which might be allayed not simply by reading the Minister's words in Harsard but by having something more drafted into the Bill which could help in this regard.
  Lord Brabazon of Tara: My Lords, we are dealing here with restricted information. I am not certain that I can go along entirely with what the noble Lord has said. He asked what type of apparatus might be involved. It could, for example, be telecommunications apparatus. The noble Lord asked whether we will consult with the highway authorities and utilities on this matter. We shall consult. Members of the public will receive all the information that is necessary to them as road users. I can go no further than that. I do not think there is a case for including anything more on the face of the Bill.
  Lord Clinton-Davis: My Lords, there is a difference between information which needs to be restricted for the protection of the realm and information which goes to commercial confidentiality, a doctrine which sometimes—all too often I fear—is abused in this country and indeed elsewhere. Commercial confidentiality can hide a multitude of sins. Can the Minister at least indicate that on issues of alleged commercial confidentiality—such issues are not entirely within his domain whereas matters dealing with the protection of the realm certainly are—the Government will be scrupulous?
  Lord Brabazon of Tara: Yes, my Lords, I can certainly give that undertaking. If the amendment is agreed to, the power will be in the hands of the Secretary of State. I can give an assurance that he will act most properly in exercising that power.
  On Question, amendment agreed to.
  Lord Underhill Lord Underhill moved Amendment No. 55:
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  Page 26, line 29, leave out subsection (5) and insert:
  ("(5) A street authority shall participate in any arrangements made under subsection (4) above").
  The noble Lord said: My Lords, this amendment deals with the cost of the computerised street works register. There would appear to be a divergence of views between the Government, the highway authorities and the joint utilities group. Those concerns are unnecessary because everyone is generally in agreement on what should take place. I hope that in explaining the amendment that viewpoint will be accepted.
  The effect of the amendment is to delete from the Bill the specific reference to street authorities paying towards the cost of a computerised street works register. The local authority associations are concerned that, although the Bill contains in Clause 47(5) a specific reference to street authorities paying towards the cost of a central street register, there is no parallel reference to the utilities making a contribution. Because of these concerns an amendment was proposed in Committee to enable the Secretary of State to make regulations which among other things would set out arrangements for fees to be charged for the use of the register. However, the Government have refused to accept the case for removing the specific reference in Clause 47(5) to street authority contributions.
  When opposing an amendment to delete that reference in Committee, the Minister said:
  "Amendment No. 67 would remove the ability of the Secretary of State to require street authorities to make contributions towards the cost of any arrangements which may be made for the keeping of a central street works register. We cannot accept that local highway authorities … should not contribute towards its cost".—[Official Report, 4/12/90; col. 300.]
  It must be stressed that the local authority associations do not deny that street authorities should contribute towards the cost of the register. As the Minister explained:
  "The government amendments make it clear that undertakers and other users of the register may be required to contribute towards the cost. We propose therefore that the cost should be shared between the users of the facility, whether they be the highway authority or whether they be the utilities".—[Official Report, 4/12/90; col. 301.]
  The local authority associations fully support that approach and agree with the Minister that his amendment, which is now Clause 47(6), provides for exactly that. The problem, however, is why, in addition to that new subsection, the Minister feels that he needs a separate reference to highway authorities' contributions in the preceding subsection. The Minister agreed in Committee to look at the matter further and gave an undertaking to that effect at col. 302 of the Official Report. As we all seem to be in agreement—the utilities group, the highway authorities and the Government —I hope the Minister will see why there should not be this specific reference to the highway authorities, bearing in mind that the noble Lord and the Government actually agree that both the utilities and highway authorities should have responsibility in meeting the cost.
  Lord Tordoff: My Lords, this is another case where we seem to be entering the delicate balance situation.

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  I see this as a probing amendment designed to test the Government's mind as regards their interpretation of the clause as it stands. I agree with the remarks made by the noble Lord, Lord Underhill, in that there is some doubt on the matter. However, on the other hand, the National Joint Utilities Group says that it does not like the amendment, although it accepts that there should be a proper balance as regards costs. The group feels that, if the amendment goes through, its members will be left carrying the can for the whole cost. My reading of it indicates to me that that is not true. Nevertheless, we are seeking reassurance from the Minister. Perhaps he can tell us exactly where the balance lies in the Bill as drafted.
  Lord Brabazon of Tara: My Lords, I can give that assurance. The balance is there. When we debated the matter in Committee, I explained that we take the view that local highway authorities, which will enjoy a new management tool in the form of a computerised register, should make an appropriate contribution towards its costs. We are all agreed on that aspect of the matter.
  If the preferred option is for a system with some centralised features, the Secretary of State may need to be able to require local highway authorities not only to participate in the arrangements by acquiring the appropriate equipment and so forth, but also to contribute to the costs of setting up and running the central part of the system. These costs, split between a large number of individual users, would not be large. In fact, a consultant's feasibility study estimated in 1988 that the average contribution towards the central cost per user—that would include street authorities —would be about £13,000 initially, with annual running costs of about £1,100. I do not think that anyone would quibble too much about those figures.
  However, the difference between the undertakers and the highway authorities is that, unlike undertakers, who may be required to contribute to the full cost of the system by means of notice fees, local highway authorities will need to be expressly required to make any contributions. The difference lies in the fact that undertakers will be required to meet ongoing costs basically every time they serve a notice. We have said that the potential users of the register will be consulted throughout its development. I can reaffirm that undertaking. In the light of that explanation, I hope that the noble Lord will feel able to withdraw the amendment.
  Lord Underhill: My Lords, I hope that I do not appear to be rather dull and obtuse but, in the light of what the Minister has just said, I do not understand why he cannot accept this amendment. There is general agreement that the street authorities should contribute towards the cost of the register. There is also agreement that the utilities group should contribute. Therefore, by accepting our amendment, the Government would ensure that that is the position. It seems to me that the Bill as drafted puts the emphasis on the street authority.
  I am sure that if further discussions were allowed to take place between the utilities group and the highway
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  authorities, it would be possible to thresh out a form of words which would convey exactly what the Government have in mind. In effect, there is no difference between us, but if the amendment is not carried there will be; there will be a difference of emphasis. Nevertheless, I shall read carefully what the Minister said and I shall seek consultation with the highway authorities and the utilities group. As the noble Lord, Lord Tordoff, said, we all want to achieve a balance in the matter. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 104 [The road works register]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 56:
  Page 58, line 9, leave out from ("inspection") to end of line 10 and insert (", at all reasonable hours and free of charge—

  (a) so far as it relates to restricted information, by any person having authority to execute works of any description in the road, or otherwise appearing to the authority to have a sufficient interest, and

  (b) so far as it relates to information which is not restricted, by any person.

  The Secretary of State may make provision by regulations as to the information which is restricted for the purposes of this subsection.").
  On Question, amendment agreed to.
  8.45 p.m.
  Clause 48 [Advance notice of certain works]:
  Lord Swinfen Lord Swinfen moved Amendment No. 57:
  Page 27, line 11, at end insert:
  ("( ) Requirements under this section shall prescribe that, advance information, including information on the start date, expected duration and safety measures taken for disabled persons is made available to local organisations of and for disabled people.").
  The noble Lord said, My Lords, this amendment, which is based on a recommendation in the Home Report, would impose a duty to give advance notice of street works to local disability organisations so that their members can be informed. If noble Lords will look at subsection (1) of this clause, they will see that there is already a duty to give advance notice of prescribed works to the street authority. I should have thought that such notice could have been copied to organisations of and for disabled people. In my view it would not be too difficult.
  The Horne Report, upon which the Bill is based, specifically recommended that the utilities and the highway authorities should assist local organisations of blind and disabled people to provide advance information to their members about street works. The new computerised street works information register should make it straightforward for authorities to fulfil that obligation.
  In their response to the report in 1986, Her Majesty's Government accepted that recommendation. It is, therefore, both surprising and disappointing to note that this provision has not been written into the Bill. A similar amendment was moved in Committee. The present amendment has been slightly altered so as to take account of a point raised by the noble Baroness, Lady Masham. When we discussed the matter in Committee my noble friend replied:

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  "What matters most is that information on the starting date and likely duration of those works most likely to affect disabled people reaches them at the right time".—[Official Report, 6/12/90; col. 304.]
  He then went on to state that that would be covered by suitable guidance to local authorities on their duty to co-ordinate works. However, guidance is not legally binding. There is likely to be a patchy result in practice, with some authorities providing advance notice and others simply not bothering. It is important that standards are consistent nationally and that the information that disabled people receive does not depend upon where they live or on the approach which their authority chooses to adopt. Chapter 17 of the Horne Report states:
  "Our most substantial evidence in this field came from associations concerned with the blind and the disabled. We have received both written and oral evidence that the standards which the utilities lay down are not always observed in practice. There is no doubt that in a few cases the practice on site falls a long way short of the proper standards".
  As I live in the country, I notice that this kind of situation frequently occurs. For example, one can go round a corner and suddenly find oneself confronted with roadworks with no prior warning; indeed, the initial warning is a sign placed on the first heap of earth which has been excavated. Such an example underlines the need for clear legislative duties rather than guidelines which can be ignored. In addition, my noble friend gave the impression in Committee that the onus was on the local groups to find out what street works were taking place rather than on the authority. Street works pose a serious hazard for people with various kinds of disability, especially those who are blind and those who are in wheelchairs. I beg to move.
  Lord Clinton-Davis: My Lords, I support the amendment moved by the noble Lord, Lord Swinfen. There are one or two points which I should like to underline. He quite rightly said that guidance is not legally enforceable. There appears to be no good reason why it should not be enforceable in this particular instance. Therefore, the matter needs to be addressed on the face of the Bill. It is true to say that that is a view which is not taken by some, or any, of the local authority associations. To do them justice, they agreed that the relevant HAUC working parties will address the question of provision of information to groups representing people with disabilities. But that is to look at the matter on a national basis. We are dealing here with matters that are essentially local. It will not be easy for national groups dealing with people with disability to come to grips with matters of this kind. I am not in any way questioning the good faith of the local authority side of HAUC or indeed anybody connected with it; but I express anxieties which have already been eloquently expressed by the noble Lord, Lord Swinfen.
  The noble Lord also referred to the inconsistency of approach. There is little doubt that that will arise if the matter is to be dealt with only by guidance. The reason may be that local authorities, swamped as they are with additional responsibilities—for example, under these provisions, under the provisions of the Environmental Protection Act and a whole host of
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  other matters—may not have had available to them compensating resources to ensure that they are able to carry out those functions properly. Almost certainly the net result will be that some local authorities will discharge their responsibilities to the full and others may backslide. It happens over and over again, not necessarily because they want to but because they are strapped for resources. That is my anxiety. When dealing with matters concerning people with disability the issues need to be specifically addressed.
  I hope the Minister will feel that the plea made to him by the noble Lord, Lord Swinfen, is something to which he can respond positively. I have the greatest pleasure in supporting what was said by the noble Lord opposite.
  Lord Tordoff: My Lords, my name is also appended to the amendment and I support it. In addition to the points made so well by the noble Lord, Lord Swinfen, it provides another checklist with which people can remind themselves of their obligation to the disabled, which does not always enter one's mind at the right moment.
  Perhaps I may revert to a topic raised at the Committee stage of the Bill regarding the piece of textured pavement outside St. Stephen's Entrance at what is now a pelican crossing. I feel that we should not have had to protest so loudly and so long if the obligation had been on the undertaker to inform disability groups of the work. They would immediately have said, "Before you tear up that pavement let us speak to the ministry or the local authority". I thank the Minister and his department for their intervention on the question of that piece of textured pavement. I am delighted to say that, although it has not yet been replaced, I understand from a letter the Minister was kind enough to send to me that the local authority has agreed to replace it and to review its attitude towards textured and tactile pavements in the whole of the Westminster area. That is a big step forward.
  As I say, had the obligation been laid upon the undertakers in the beginning, it is possible that the mistake of tearing up that piece of pavement would not have been made. That is an additional reason why disabled groups should be informed. I understand the Minister may have difficulty with some of the wording in the amendment. What constitutes,
  "local organisations of or for disabled people",
  may be a broad spectrum in various parts of the country. However, I hope the Minister will accept that there should be a certain amount of positive discrimination in such cases.
  The friend who drew my attention to that piece of pavement outside St. Stephen's Entrance later told me that on the day she came to the House for a meeting the fact that the pavement had been torn up totally disoriented her. She had no idea where she was. That can be a severe imposition on people who are normally mobile but suddenly find these props missing. They mean nothing to us, but to a blind or otherwise disabled person they may make the difference between being able to get out and about and lead a normal life or being confined either to an institution or their own homes. I support the amendment.
  Lord Brabazon of Tara: My Lords, we discussed this matter in Committee. At that time I explained that a statutory requirement on undertakers of street works to supply advance notice of their many thousands of works to particular local organisations was not considered to be an effective method of getting information to the blind and disabled people who need it. What mattered most was that information on the starting date and likely duration of the particular works most likely to affect vulnerable road-users reaches those people at the right time.
  I am pleased to say that the Highways Authorities and Utilities Committee has taken up the suggestion made at that time that there should be discussions with groups representing blind and disabled people of the most effective way of involving local groups in the advance planning of works. By the inclusion of suitable guidance to undertakers and local highway authorities in the code of practice on co-ordination of works and by the effective use of the computerised street works register we believe it will be possible more effectively to improve the provision of advance information on works for blind and disabled people.
  The noble Lord, Lord Clinton-Davis, said that some local authorities may be under pressure on resources. But one of the purposes of the Bill should be to save local authority resources. My noble friend Lord Swinfen referred to the Home Report. That recommended providing information to disabled groups. On the other hand, it did not impose a statutory requirement to copy notices of all works to such groups. I point out to my noble friend that there are many thousands of such groups.
  Our discriminatory approach will be agreed by the authorities and the utilities and will work in practice. Compliance with the code of practice on coordination will be taken to demonstrate that an authority or undertaker has complied with its general duty. Failure to comply with that duty will be a criminal offence.
  I believe we have achieved the right approach. I listened carefully to the noble Lord, Lord Tordoff, and am glad that the right result was achieved with regard to the textured pavement outside the Palace. I should point out that that particular roadwork will not be covered by the Bill, as the noble Lord is aware, but we shall come later to an amendment regarding roadworks where street undertakers are concerned. I believe that the approach is right and I hope my noble friend will agree.
  Lord Swinfen: My Lords, I thank my noble friend for copying to me and to the noble Lord, Lord Clinton-Davis, the letter he wrote to the noble Lord, Lord Tordoff, regarding the paving outside the Palace. I appreciate that. I am somewhat disappointed with the reply of my noble friend, particularly as at Committee stage he said that what mattered most was that information of the starting date and the likely duration of the works reached blind and disabled people. In one voice he is saying that they should be told and in another that they should not. I have some difficulty understanding that.
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  At this late hour I do not wish to embarrass my noble friend by dividing the House and possibly having the amendment counted out. I shall read carefully what he has said and reserve my right to come back at Third Reading. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  9 p.m.
  Clause 105 [Advance notice of certain works]:
  Lord Strathclyde Lord Strathclyde moved Amendments Nos. 58 to 60:
  Page 58, line 30, leave out ("proposed").
  Page 58, line 34, leave out ("the") and insert ("under this section an").
  Page 58, line 35, leave out second ("as may be").
  The noble Lord said: My Lords, these minor amendments bring the provisions into line with the parallel provisions in Part III relating to England and Wales. I beg to move Amendments Nos. 58 to 60 en bloc.
  On Question, amendments agreed to.
  Clause 49 [Notice of starting date of works]:
  Lord Underhill Lord Underhill moved Amendment No. 61:
  Page 27, line 23, at end insert ("or in which notice is required only in respect of works on a traffic sensitive street.").
  The noble Lord said: My Lords, this is another amendment in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff. The effect is to enable the Secretary of State to prescribe cases in which notice of street works is required only on traffic sensitive streets. I understand that the view of the National Joint Utilities Group is that if the amendment permits some classes of work to be undertaken without notice except on traffic sensitive routes, it would not oppose the amendment but would support it. I believe that the amendment has that effect.
  This is a probing amendment designed to explore the links between Clause 49(2) and Clause 57. At the Committee stage, an amendment was tabled which would remove the power available to the Secretary of State to prescribe cases in which no notice is required before street works can be undertaken. It may be recalled that, responding to that amendment, the Minister quoted one example of circumstances in which notice would not be required: lifting a manhole cover. The local authority associations accept that on most roads notice could not reasonably be required for lifting a manhole cover. However, this type of operation could cause significant disruption if it were undertaken at a peak time on a traffic sensitive route.
  The amendment would enable the Secretary of State to prescribe cases such as lifting a manhole cover in which notice would be required only on a traffic sensitive route. It would be helpful if, when the Minister replies, he gives confirmation of the Government's intentions on the matter; and further, whether he can give an answer which is still required to the question posed at Committee stage. The question concerned the type of street works for which

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  notice would never be required so far as the Government are concerned. I believe the utilities group welcome the amendment. The highways authorities have asked us to put it forward and I am certain that the Government will see the common sense in it. I beg to move.
  Lord Brabazon of Tara: My Lords, I hope the noble Lord will find my explanation satisfactory. If general exemptions from notice requirements are to be prescribed in respect of certain very minor street works, we accept that it may be necessary to preserve the requirement to give notice of such works where they take place in streets designated as traffic sensitive. Perhaps the example that the noble Lord, Lord Underhill, gave is one of those.
  Since there is already provision under Clause 57 for regulations on notice requirements to make special provision in the case of works in traffic sensitive streets, the noble Lord's amendment is not necessary to allow this to be done. I hope that that answer will satisfy him.
  Lord Underhill: My Lords, the Minister's reply seems quite reasonable, but naturally I am certain that he will Agree that we would wish to read what he says to see what effect it will have on the clause to which he referred and whether or not it will be satisfactory to the utility group and the local authority associations. On that basis, subject to the proviso that we may wish to come back on Third Reading if we are not satisfied, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 50 [Power to give directions as to timing of street works]:
  Lord Brougham and Vaux Lord Brougham and Vaux moved Amendment No. 62:
  Page 28, line 1, at end insert ("in relation to any street designated by them as traffic sensitive").
  The noble Lord said: My Lords, this amendment is also to do with traffic sensitive streets. Under the terms of the draft code of practice jointly prepared by the utilities and highway authorities, the powers of the street authority to give directions to undertakers as to the timing of street works are only intended to apply to traffic sensitive streets.
  The purpose of this amendment is to obtain confirmation from my noble friend that the Government intend in their regulations to restrict the power on streets designated as traffic sensitive. I beg to move.
  Lord Underhill: My Lords, I regret to say to the noble Lord, Lord Brougham and Vaux, that the amendment, is not acceptable to the local authority associations. While we do not necessarily reflect everything that the local authority associations desire, they are an important unit in connection with street works.
  The aim of the amendment is to confine the issuing of directions under Clause 50 to traffic sensitive streets. Clause 57 establishes a notice regime in relation to streets specifically designated as being traffic sensitive. It is likely that these will cover about
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  12 per cent. of the highway network and will be streets such as main commuter routes where utility works at particular times would cause severe disruption.
  Clause 50 provides a street authority with the power to give directions on the times at which street works should be carried out if those works are likely to lead to serious disruption. Subsection (2) makes it clear that the procedure for issuing such a direction will be set out in regulations made by the Secretary of State. It is understood that such regulations will also set out the circumstances in which a direction could be issued.
  The local authority associations see this clause as providing a useful means of dealing with one-off cases where works not on the traffic sensitive route network could result in serious disruption. However, the utilities are concerned that the highway authorities will abuse the power, using it by default to impose similar restrictions to those enforced on a traffic sensitive route network elsewhere on the highway network.
  The local authority associations are confident that abuse of this type will not occur, but in any case the regulations to be made under subsection (2) could and should prevent any such abuse. This appears to be one of those cases where before we rush into making such an amendment there should be further discussions with the Highway Authorities and Utilities Committee to see whether there can be some agreement on it. There appears to be a view acceptable to the local authority associations, (provided that the utilities group do not carry through their view) that there would be abuse if the provision were carried through.
  Lord Tordoff: My Lords, I believe we are close to reaching a point of balance on this matter. The National Joint Utilities Group seeks some firm reassurance from the Government that the Government see no possibility of the powers contained in the clause being abused. If such abuse were to occur, it would be a serious matter for the utilities group. I am sure the noble Lord, Lord Underhill, accepts that. The local authority associations say they are confident about the issue, but clearly the National Joint Utilities Group is not confident. Reassurance is needed here. Local authorities have suggested that regulations could be made under subsection (2). Some indication of whether or not that is the case would be welcomed by all concerned.
  Lord Brabazon of Tara: My Lords, on this amendment I find myself on the whole in agreement with the noble Lord, Lord Underhill, rather than with my noble friend. As has been said, this amendment would limit to works on streets designated as traffic sensitive the power of a street authority to direct times of working. We believe that would be unnecessarily restrictive. There will inevitably be cases where street works on roads which have not been designated as traffic sensitive will cause serious disruption to traffic. An example would be works located close to a junction with a busy traffic-sensitive road where the works are not themselves situated on the designated road. Another example could be works planned to take place on a road to be used for a special event on

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  a particular day which is not traffic sensitive at other times and has not been so designated. The power to direct times of working may only be used where to do so would avoid or reduce serious disruption to traffic. Further restrictions on its use are not considered necessary or desirable. For that reason I cannot commend the amendment.
  Lord Brougham and Vaux: My Lords, I thank my noble friend for his reply. I also take note of what the noble Lords, Lord Underhill and Lord Tordoff, have said. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 51 [Notice of emergency works]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 63:
  Page 28, line 19, after ("hours") insert ("(or such other period as may be prescribed)").
  The noble Lord said: My Lords, in moving Amendment No. 63, I wish to speak also to Amendments Nos. 64, 97, 98, 99 and 100. These amendments will allow the notice requirements for emergency works better to reflect practical constraints on undertakers. As presently drafted, Clause 51 requires undertakers "in any event" to notify the relevant authorities within two hours of commencing any emergency works. However, in some instances this requirement would pose an unnecessary and onerous burden on undertakers and would serve little practical purpose, particularly where works are carried out on roads not designated as traffic sensitive.
  The amendment to Clause 51 therefore empowers the Secretary of State to make regulations prescribing cases, for example to cover emergencies which occur at night or on public holidays, where the two-hour limit would be relaxed.
  The two amendments to Clause 57 are necessary in consequence of this amendment. The first provides that any regulations made under Clause 51 may make special provision for works in traffic-sensitive streets. This could, for example, require all emergency works in such streets to be notified within two hours of works being begun. The second of these amendments replaces the words "proposed to be executed" in Clause 57 by a reference to street works. This is necessary as the works in question may be emergency works and may therefore already have been begun. The straightforward reference to street works is therefore more appropriate. I beg to move.
  Lord Underhill: My Lords, as drafted, Clause 51 requires a utility to inform the street authority within two hours of the start of emergency works. The government amendment would allow a different and possibly longer deadline for notification to be prescribed in the regulations. It is difficult to argue against the case for flexibility in cases such as this. However, it is important that the Minister should explain the reason for the amendment. Does the Minister expect to prescribe an alternative period? What are the circumstances in which the Minister would envisage taking advantage of the flexibility allowed by the amendment?
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  The Highway Authorities and Utilities Committee working party on notice periods has agreed to the two-hour deadline. As noble Lords will know, this is a joint committee of the highway authorities and the utilities. The local authority associations would resist any move to lengthen the period available to the utilities to give notice at the start of emergency works. This is particularly important in relation to traffic- and pedestrian-sensitive streets.
  This again is one of those cases to which the noble Lord, Lord Tordoff, has referred time and time again, of maintaining a balance. As the working party has agreed with the deadline, I hope the Government will give some satisfactory explanation of their amendment.
  The local authority associations would be prepared to accept a longer notice period in circumstances where an emergency has occurred outside normal working hours and the authority in whose area the incident has occurred does not have arrangements for handling the receipt of notices outside normal office hours. In those cases the deadline for receipt of notification should be the start of the next working day. I should be extremely grateful if the Minister could deal with those points.
  Lord Brabazon of Tara: My Lords, when the noble Lord reads the speech that I made when moving the amendment he will find that I dealt with some of the points he raised. I envisaged night time and public holidays, for example, as instances in which the two-hour limit could be relaxed for roads which were not traffic sensitive. We would extend the length of the period beyond two hours only where necessary and practicable.
  As I indicated, we shall consult the HAUC further before making the regulations which I described and which are necessary under this provision. I hope that with that assurance the noble Lord will be able to accept the amendments.
  On Question, amendment agreed to.
  Clause 108 [Notice of emergency works]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 64:
  Page 60, line 6, after ("hours") insert ("(or such other period as may be prescribed)").
  On Question, amendment agreed to.
  9.15 p.m.
  Clause 52 [Restriction on works following substantial road works]:
  Lord Underhill Lord Underhill moved Amendment No. 65:
  Page 28, line 38, leave out ("twelve months") and insert ("two years").
  The noble Lord said: My Lords, the amendment deals with the ban on work in newly resurfaced streets. The effect of the amendment would be to extend the ban on utility works in newly resurfaced streets from one year to two years.
  Clause 52 prevents a utility from digging up a street which has been subject to substantial road works provided that the highway authority gives the utilities adequate notice of its plans. As drafted, the prohibition lasts for 12 months and the clause

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  provides for a utility to undertake emergency works and other works executed with the consent of the highway authority.
  There is a requirement on the highway authority not to withhold consent for such work unreasonably. The clause also provides for appropriate exemptions from the 12 months restriction on works to be prescribed in regulations. It is important to appreciate that the clause simply re-enacts and rephrases Section 156 of the Highways Act 1980, which includes the 12 months period.
  The local authority associations consider that that is within the spirit of the improved co-ordination and advanced planning which the Bill is intended to bring about to increase the length of the prohibition from one to two years. There will be general agreement that there is nothing more aggravating to the public and nothing which better exemplifies the lack of co-ordination and planning under the present system than the instance of a recently resurfaced road being dug up. Noble Lords would no doubt be able to recount experiences of their own.
  It is therefore important that the Bill clearly addresses the issue and that the highway authorities are given the necessary powers of co-ordination and direction to enable them to reduce such instances to an absolute minimum. The Bill will make both highway authorities and the utilities plan and programme their works further in advance than has previously been the case.
  The past few years have seen a dramatic improvement in medium and long-term planning by highway authorities of their structural maintenance work. Many authorities are now working to three-year rolling programmes for structural maintenance. That is fully in line with the local authority association's highway maintenance code of good practice, the adoption of which has been strongly commended to all local authorities by transport Ministers.
  It should be stressed that highway authorities share the utilities' concern that emergency works and service connections which genuinely could not have been planned before the road works were undertaken should not be caught by the prohibition on street works. The associations are satisfied that the duty on the highway authorities not to withhold their consent unreasonably for such works, together with the regulation-making powers, will enable the utilities' concerns to be met. The issue of what categories of work should be exempt from the ban is to be considered shortly by the HAUC notices working party.
  The authorities take the view that it is only right that the public should benefit from the better planning and programming of works which will result from the Bill. Provided that special cases such as emergency works and service connections are properly covered in regulations, the extension of the prohibition to two years should contribute to achieving that objective without undermining the ability of utilities to provide an efficient and effective service to their customers.
  I am certain that this is another case in which there could be agreement between the street authorities and the utility groups. I beg to move.
  Lord Brougham and Vaux: My Lords, perhaps I may say briefly that the utilities are against this amendment because they are having further discussions with the highway authority and hope to bring forward proposals that will be jointly acceptable to both. I hope that the noble Lord will withdraw his amendment.
  Lord Tordoff: My Lords, I should like to make a few brief comments on two points. I recognise that the utilities are opposed to this amendment as it stands. First, if one did go to two years, one would probably have to extend the notice period from three months to six months, which might be a quid pro quo. I welcome the fact that the utilities and the local authorities intend to get together again to thresh out this matter a little further. We should encourage that. Clearly it would not be our intention to press this amendment tonight.
  In my view, however, underlying this discussion is the need for Parliament to give comfort to the general public, who above all want to see the digging up of roads and pavements reduced to an absolute minimum and have available the longest possible time which is consistent with both the needs of the highway authority and the utilities, in order that the citizens can go about their daily round without having to negotiate road works. If together they can come to some amicable agreement on the longest possible time for that, it will be in everybody's interest.
  Lord Brabazon of Tara: My Lords, it is indeed a central purpose of these parts of the Bill to improve the planning and co-ordination of all kinds of street works. It will have failed in that purpose if roads which have been resurfaced or had substantial road works on them are dug up soon afterwards by the utilities. As the noble Lord, Lord Underhill, said, there is little more irritating to the general public than finding that happen. In fact, I think that he spoke words that I myself used earlier in our discussion on the Bill, and I am delighted that he should choose to do so. In many cases there will be no good reason to dig up such a road for several years.
  Clause 52 simply provides a mechanism for the highway authority, by giving formal notice of its intended road works, to impose a general restriction on street works for the 12 months following the completion of its works. That is considered a reasonable period which allows undertakers contemplating works in the street either to bring forward their plans or put them back for at least a year. To allow a two-year restriction to be imposed by the highway authority would place a considerable burden on utilities' forward planning of works. It would increase the scope for disputes over which works were allowed to be executed during the period of the restriction with the consent of the highway authority.
  We do not therefore consider this amendment to be either desirable or necessary. It is intended nevertheless that the code of practice on co-ordination

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  of works will emphasise the importance of early exchange of information on planned works and agreement on the phasing of street works and works for road purposes. In practice the period between major works on a particular street should be as great as reasonably practicable.
  I hope that, if the utilities and the highway authorities can get together on this matter, we can go to two years or even longer. I have to agree with my noble friend Lord Brougham and Vaux that I would rather not see it on the face of the Bill at this stage.
  Lord Underhill: My Lords, the problem is that on the face of the Bill it will show 12 months. I wonder whether the Minister, with the leave of the House, could deal with a possible compromise which has been suggested to me. At present the Bill requires authorities to give three months' notice of substantial road works in order to benefit from the one-year ban. A compromise, which I understand has been proposed by the highway authorities, is to amend the Bill to provide for a one-year ban where three months' notice is given and a two-year ban where six months' notice is given. It may be that reference to such a compromise could be dealt with at the next stage of the Bill. Unless there is a compromise of that kind at Third Reading the 12-month provision will be written into the Bill. That is one of the problems of not accepting my amendment.
  I should be grateful if the Minister is able to deal with the point that I raised. He may like to consider it further before he makes a decision.
  Lord Brabazon of Tara: My Lords, I shall certainly consider the point made by the noble Lord. However, it will not be up to me. If the noble Lord can persuade the utilities that that would be a suitable compromise, and if the highways authorities and utilities can agree to it, I should find no objection to putting it into the Bill. Whether it can be put in before Third Reading, I rather doubt. This Bill must go through another place. I cannot go further than that myself.
  Lord Underhill: My Lords, I am grateful to the Minister for that contribution, which will be helpful. It may well be that we cannot do it before our Third Reading, but what the Minister has said may be very helpful when the Bill proceeds to another place. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 66:
  Leave out Clause 52.
  The noble Lord said: My Lords, with the leave of the House I shall move Amendment No. 66 and speak at the same time to Amendments Nos. 67, 68 and 69. These amendments substitute a clearer version of the present Clause 52 which provides for a 12-month restriction on works where substantial road works are carried out. The new provision is centred around a power for the street authority to publish a public notice where it is proposed to carry out substantial road works. It is this notice which, in effect, imposes the 12-month restriction on street works.
  The revised clause extends the power to impose restrictions to all street authorities so as to include street managers as well as highway authorities. It is still confined to highways which consist of or include a carriageway. It empowers the Secretary of State to prescribe the manner in which the notice shall be published and states that it must specify the nature and location of the proposed works and the extent of the restriction. Unlike the clause as drafted, this will enable the street authority to specify the part of the road to which the restriction applies; for example, there may be circumstances where a restriction would be limited to the carriageway following resurfacing of the road.
  The amendment also states that a copy of the notice should be sent to persons known to be likely to be particularly concerned in particular cases but provides that failure to do so shall not affect the validity of any restriction it imposes. I think that it is better than the original clause. I beg to move.
  Lord Clinton-Davis: My Lords, I am pleased indeed that the Minister has introduced this amendment because it goes some way towards clarifying the original Clause 52, and certainly he succeeded in at least some measure in that regard. But may I ask him to clarify a couple of points which I hope he will be able to do tonight?
  In subsection (1) (b) there is the word "resurfacing". The local authority associations have assumed that this word is meant to include treatments such as surface dressing. Perhaps the Minister can let us have some indication as to whether he agrees with that.
  Secondly, although the definition of "substantial road works" is given in terms of carriageway works, the assumption has been made by the local authority associations that the restriction applies to work in the footway as well as in the carriageway. Again, therefore, I ask the Minister to clarify the position in so far as that is concerned.
  Lord Tordoff: My Lords, similarly the joint utilities group has some questions about this matter. Again they welcome the change in the clause; and the question of footways has been raised by them as well. They also make the point that they do not see any good reason why failure by street authorities to supply undertakers or other authorities with a copy of the notice should not affect the validity of the restriction. Otherwise, they say, what is the point of requiring copies of the notice to be served. This is quite important for undertakers and it is right that every step should be taken to ensure that they receive a notice.
  While notices will have to be published in newspapers no doubt, it is not customary for statutes which require notices to be served to go on to say that it does not matter if they are not served. It would also be somewhat foolish if the restrictions precluded undertakers from lifting manhole covers, emptying gulleys or inspecting water meters. But on the face of it that is the effect of subsection (6), which refers to opening as well as breaking up. I shall be glad if we can have some reassurance on that point.

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  The undertakers claim that they must be able to respond to unforeseen applications from new customers for services in respect of which it is unreasonable to wait for 12 months. I know that the Minister is sympathetic towards that and I believe that the matter is to be discussed by the HAUC. I hope that the Government will be prepared to come forward at a later stage with appropriate amendments in order to give effect to any recommendations coming from that source.
  Section 156 of the Highways Act 1980, on which the clause is based, provides for arbitration if the highway authority's consent is unreasonably withheld. Is it the Government's intention to introduce a similar clause at a later stage, particularly in view of the offence provisions of the clause?
  Lord Swinfen: My Lords, perhaps in response my noble friend will explain the prescribed manner of publishing the notices, because that may be of assistance to disabled people.
  9.30 p.m.
  Lord Brabazon of Tara: My Lords, a number of noble Lords have asked questions about the new clause. I am able to answer some of them now but I must reflect on others and write to noble Lords. The word "resurfacing" has its normal meaning and will depend on the extent of the surface dressing. I am not a road engineer nor, I suspect, is the noble Lord, Lord Clinton-Davis, but no doubt those who are will understand the meaning.
  The noble Lord also asked about the definition of the carriageway and how it will affect the pavement. As far as I am aware, the carriageway affects the whole road, including the pavement. If I am wrong I shall correct that statement. The noble Lord, Lord Tordoff, mentioned the utilities' anxieties in respect of new customers. We have discussed that matter at considerable length and the new clause is no different from the clause it replaces. I hope that we now have a satisfactory understanding. Opening a manhole cover could be one of the cases to be prescribed under subsection (5) (b) to be exempt from restrictions. I hope that that will be of encouragement to the utilities.
  My noble friend Lord Swinfen asked how the notification will be published. Regulations for such notifications include a requirement to publish details of the proposed restriction in the London Gazette and local newspapers in order to alert anyone contemplating works in the street concerned. Therefore, the notifications might be of benefit to the disabled.
  I shall read Hansard to ensure that I have answered all the points raised by noble Lords. If I have not, I shall reply by letter. I hope that in the meantime the amendments can be accepted.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 67:
  After Clause 52, insert the following new clause:
  Restriction on works following substantial road works
  (".—(1) Where it is proposed to carry out substantial road works in a highway which consists of or includes a
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  carriageway, the street authority may by notice in accordance with this section restrict the execution of street works during the twelve months following the completion of those works.
  For this purpose substantial road works means—

  (a) works for road purposes, or such works together with other works, resulting in—

  (i) the use by vehicles of the carriageway being prohibited, or

  (ii) the width of the carriageway available for vehicular traffic being reduced to less than two-thirds of its width, or

  (b) re-surfacing extending to one-third or more of the width of the carriageway.

  (2) The notice shall be published in the prescribed manner and shall specify the nature and location of the proposed works, the date (not being less than three months after the notice is published, or first published) on which it is proposed to begin the works, and the extent of the restriction.
  (3) A copy of the notice shall be given to each of the following—

  (a) where there is a public sewer in the part of the highway to which the restriction relates, to the sewer authority,

  (b) where the part of the highway to which the restriction relates is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

  (c) where in any other case the part of the highway to which the restriction relates is carried or crossed by a bridge, to the bridge authority, and

  (d) to any person having apparatus in the part of the highway to which the restriction relates;

  but a failure to do so does not affect the validity of the restriction imposed by the notice.
  (4) A notice ceases to be effective if the works to which it relates are not substantially begun—

  (a) on or within one month from the date specified in the notice, or

  (b) where street works are in progress on that date in the part of the highway to which the restriction relates, within one month from the completion of those works,

  or, in either case, within such further period as may be agreed between the street authority and the person to whom the notice is given.
  (5) An undertaker shall not in contravention of a restriction imposed by a notice under this section break up or open the part of the highway to which the restriction relates, except—

  (a) to execute emergency works,

  (b) with the consent of the street authority (which shall not be unreasonably withheld), or

  (c) in such other cases as may be prescribed.

  (6) If he does—

  (a) he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale, and

  (b) he is liable to reimburse the street authority any costs reasonably incurred by them in reinstating the highway.

  (7) An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a restriction imposed by a notice under this section.").
  On Question, amendment agreed to.
  Clause 109 [Restriction on works following substantial works carried out for roads purposes]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 68:
  Leave out Clause 109.
  On Question, amendment agreed to.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 69:
  After Clause 109, insert the following new clause:
  Restriction on works following substantial works carried out for road purposes
  (".—(1) Where it is proposed to carry out substantial works in a road which consists of or includes a carriageway, the road works authority may by notice in accordance with this section restrict the execution of road works during the twelve months following the completion of those works.
  For this purpose substantial works means—

  (a) works for road purposes, or such works together with other works, resulting in—

  (i) the use by vehicles of the carriageway being prohibited, or

  (ii) the width of the carriageway available for vehicular traffic being reduced to less than two-thirds of its width, or

  (b) re-surfacing extending to one-third or more of the width of the carriageway.

  (2) The notice shall be published in the prescribed manner and shall specify the nature and location of the proposed works, the date (not being less than three months after the notice is published, or first published) on which it is proposed to begin the works, and the extent of the restriction.
  (3) A copy of the notice shall be given to each of the following—

  (a) where there is a sewer vested in a local authority in the part of the road to which the restriction relates, to that authority;

  (b) where the part of the road to which the restriction relates is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

  (c) where in any other case the part of the road to which the restriction relates is carried or crossed by a bridge, to the bridge authority, and

  (d) to any person having apparatus in the part of the road to which the restriction relates;

  but a failure to do so does not affect the validity of the restriction imposed by the notice.
  (4) A notice ceases to be effective if the works to which it relates are not substantially begun—

  (a) on or within one month from the date specified in the notice, or

  (b) where road works are in progress in the part of the road to which the restriction relates on that date, within one month from the completion of those works,

  or, in either case, within such further period as may be agreed between the road works authority and the person to whom the notice is given.
  (5) An undertaker shall not in contravention of a restriction imposed by a notice under this section break up or open the part of the road to which the restriction relates, except—

  (a) to execute emergency works,

  (b) with the consent of the road works authority (which shall not be unreasonably withheld), or

  (c) in such other cases as may be prescribed.

  (6) If he does—

  (a) he commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale, and

  (b) he is liable to reimburse the road works authority any costs reasonably incurred by them in reinstating the road.

  (7) An undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is attributable to a restriction imposed by a notice under this section.").
  On Question, amendment agreed to.
  Clause 53 [General duty of street authority to co-ordinate works]:
  [Amendment No. 70 not moved.]
  Lord Brougham and Vaux Lord Brougham and Vaux moved Amendment No. 71:
  Page 29, line 43, at end insert:
  ("(d) to have regard to the obligations of undertakers under any enactment with respect to their service to their customers").
  The noble Lord said: My Lords, I shall speak also to Amendments Nos. 75 and 76. The purpose of Amendment No. 71 is to ensure that in discharging its co-ordinating functions the street authority gives due weight to the importance of undertakers being able to satisfy their statutory service obligations, including in the case of gas, water and electricity companies the stringent standards laid down in their appointments.
  The purpose of Amendments Nos. 75 and 76 is to make it clear that the provisions of the code of practice will apply equally to Clauses 48 to 53 inclusive and not to Clause 53 alone as the present wording implies. Both amendments are designed to extract a clear statement of the intentions underlying Clause 53. The amendments would help the utilities. I should, therefore, like to consider the Government's response before deciding on further action. I beg to move.
  Lord Brabazon of Tara: My Lords, undertakers have various service obligations under enactments which need to be taken into account in the planning of street works. It is not, however, considered appropriate to place a statutory requirement on the street authority to have regard to such obligations when exercising its duty to co-ordinate works in its streets. The code of practice under Clause 53 may contain general guidance on undertaker service obligations, but that is not to be an overriding factor in deciding how best to co-ordinate works.
  The last two of my noble friend's amendments would require the code of practice issued for the purpose of Clause 53 also to give general guidance on matters covered in Clauses 48 to 52. However, whereas the very general duty to co-ordinate works in Clause 53 requires a code of practice to give it content, the provisions in the preceding clauses include rules as to the giving of notices and directions which have appropriate legal consequences. It would unnecessarily complicate those legal duties to supplement the provisions with codes of practice approved under the Bill.
  For those reasons we do not consider the amendments to be necessary. The code of practice to be issued under Clause 53 is, nevertheless, a very important feature of this part of the Bill. I hope that discussions with highway authorities and utilities about its content will meet the concerns behind the amendments and that that reply will satisfy my noble friend.
  Lord Brougham and Vaux: My Lords, I thank my noble friend for his reply. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 72 to 79 not moved.]
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 80:
  After Clause 53, insert the following new clause:

  General duty of undertakers to co-operate
  (".—(1) An undertaker shall as regards the execution of street works use his best endeavours to co-operate with the street authority and with other undertakers—

  (a) in the interests of safety,

  (b) to minimise the inconvenience to persons using the street (having regard, in particular, to the needs of people with a disability), and

  (c) to protect the structure of the street and the integrity of apparatus in it.

  (2) The Secretary of State may issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsection (1); and—

  (a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duty under that subsection, and

  (b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with that duty.

  (3) An undertaker who fails to comply with his duty under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
  On Question, amendment agreed to.
  Lord Armstrong of Ilminster Lord Armstrong of Ilminster moved Amendment No. 81:
  After Clause 53, insert the following new clause:

  Duty of undertakers to facilitate the tracing of nonmetallic pipes, etc
  .—(1) The provisions of this section apply to the laying underground of any cable, tube, pipe or other apparatus for the conveyance of—

  (a) hydrocarbons or other liquid or gaseous substances, or

  (b) telecommunications signals,

  which has, no continuous metallic content in its composition ("a non-metallic conveyor").
  (2) Where an undertaker carries out or causes to be carried out any of the works mentioned in subsection (1) above, he shall ensure that either—

  (a) a metallic wire or strip is laid directly along or underneath the whole length of the non-metallic conveyor; or

  (b) that a metallic alloy or other substance with a metallic content is incorporated in the non-metallic conveyor.

  so as to enable the course of the non-metallic conveyor to be located and traced from the surface by means of a conventional alternating magnetic field locator of a type used for locating and tracing metallic cables, pipes and tubes underground.
  (3) After installation the undertaker shall ensure that the conductor wire or strip, or the metallic component of the non-metallic conveyor, is at all times maintained in a condition in which location and tracing as described in subsection (2) above can effectively be carried out.
  (4) An undertaker who fails to comply with subsection (2) or (3) of this section shall be guilty of an offence and on conviction shall be liable to a fine not exceeding level 3 on the standard sale.").
  The noble Lord said: My Lords, the purpose of the new clause which stands in my name is simple and, as it seems to me, beneficial.
  Almost anyone who is digging in or near a street or highway needs to be able to detect and avoid buried cables and pipes. Damage to a buried cable or pipe in the course of digging can have one or more of several undesirable consequences. It can be dangerous to the people digging and to road users. It can cause serious and often prolonged traffic disruption: your Lordships will have heard radio warnings of traffic diversions, delays and hazards on account of burst gas or water mains. It can cause inconvenience, as I know to my cost, and even danger to users of the service in question if they suffer unexpected interruptions of supply. It can cause unnecessary extra expense for the utilities, and therefore for the consumers, to repair the damage.
  Therefore, if you are proposing for whatever purpose to dig a hole in the road it is necessary to obtain the best possible information about the cables and pipes that are or may be under the ground where you propose to dig. In many cases the utilities which laid the cables or pipes have maps or other documentary records of where they are buried. Even where such records exist and are readily available they are not always sufficiently accurate for the purpose: it can be a little like relying on old Silvestra's map for finding the way to King Solomon's Mines. The records are not always available to those who need to dig; particularly if the dig is an emergency one. Therefore, a great many of the people who have to deal with this problem—utilities, contractors and so on—make use of and are very familiar with electro-magnetic locators which enable them to locate and trace from above ground the course of cables and pipes buried underground.
  This technique is not, I gather, perfect or without possibility of failure. The locators have some shortcomings, particularly where there is a closely knit complex of pipe or cables underground, and to use them to best advantage requires a certain skill or aptitude. Nonetheless, the technique demonstrably offers substantial advantages for utilities and contractors that need to dig holes in the road. Many thousands of such locators are in use in this country and a wide cross-section of people have become sufficiently expert in using them.
  However, this technique and these locators depend on the cables or pipes to be located being made of metal. They cannot detect non-metallic pipes. Utilities and contractors are increasingly using non-metallic pipes and cables: plastic pipes to carry gases or liquids, sometimes under considerable pressure; optical fibres carrying often very large volumes of telecommunication traffic which will be disrupted if the cable is broken or damaged. I am told that one optical fibre telecommunications cable was accidentally damaged in northern New York, and as a result phones and faxes in much of Manhattan and New York City were out for the best part of a day. So there is increasing need for a technique to enable those who have to dig holes in roads to locate and trace non-metallic cables and pipes underground.
  I am advised that various possible techniques for doing this are being investigated, such as ground-probing radar, infra-red imaging and seismic reflection. A radar technique is available on the market, but it is extremely expensive and uncertain in use; and neither of the others is commercially available today; or likely to be so available in the foreseeable future.
  If it is not possible to devise a satisfactory new technique for detecting non-metallic pipes and cables underground, then the alternative course is to find a way of making such cables and pipes locateable by means of the existing technique and type of equipment. That means attaching or adding to the cable or pipe something to make it locateable with existing electro-magnetic locators. This can be done by adding a well insulated single core tracer wire or strip to the pipe, or burying it below the cable or pipe, in the trench when it is laid. This technique, for which subsection (2)(a) of my new clause provides, is not new or experimental. It is already widely used in many other developed countries and is in some countries mandatory. My new clause would make it mandatory here. It offers a simple, low cost and reasonably effective solution to the problem.
  I am advised that research is going on into an alternative technology to achieve the same result: that of incorporating in the material of which the non-metallic cable or pipe is made an amorphous metallic alloy which would make the material concerned conductive. I am not aware that much progress is being made in developing this technology. I would hazard a guess that there is no guarantee that it could be any more effective than the presently available technique; and it could well prove to be considerably more expensive. But I do not wish to exclude the possibility that this technique may turn out to be just what the doctor ordered; so subsection (2)(b) of my new clause allows for it by providing for a metallic alloy or other substance incorporated in the non-metallic conveyor as an alternative to a metallic wire or strip.
  I do not claim perfection for the techniques which my new clause describes. But the technique of electro-magnetic location is a proven technique, and this new clause, by requiring contractors and utilities when laying non-metallic pipes and cables to do what is necessary to make it possible to use such a technique, would in effect put non-metallic cables and pipes on an equal footing with metallic ones as regards location and tracing. I believe that to do this offers prospects of clear benefits to health, safety, continuity of supply and economy of costs. I believe that it is reasonable to ask the contractors and utilities which lay such pipes and cables to incur the relatively small additional capital cost that would be involved for the sake of ensuring that these benefits are available on a lasting and consistent basis. I beg to move.
  9.45 p.m.
  Lord Clinton-Davis: My Lords, I understood absolutely every word of that, and I congratulate the noble Lord, Lord Armstrong, on sitting through the
  426
  prior debates in order to provide us with this extremely interesting proposition. I am sure that he will not wish to deprive himself of the pleasure of listening to the subsequent debates once we have dealt with this matter. I can assure him it is all going to be tremendously fascinating.
  Having listened to all that the noble Lord has said, I suppose that he has made out a case worthy of answer, but my understanding is that there is some support on the part of the highway authorities because they feel that it would greatly assist the location and identification of underground apparatus; but clearly there are different views.
  As has been said repeatedly during the course of this debate, a very fine balance has been established, and one must not interfere with that. All that I wish to do is to express on behalf of the highway authorities their interest in the proposition. They are by no means totally committed to it at this stage, and they would wish to look at the position afresh in the light of the speech made by the noble Lord, Lord Armstrong, and the debate that follows, particularly having regard to the comments that were made by the Minister.
  Lord Swinfen: My Lords, the idea put forward by the noble Lord, Lord Armstrong, is worthy of serious consideration. As he said, it can be extremely dangerous not to know where pipes go. In his speech he may have answered one of my queries, which is whether the word "telecommunications" includes optic fibres through which messages are now passed by means of light. I do not know the answer to that. Perhaps the Minister can help us.
  In subsection (2) of the amendment we read:
  "traced from the surface by means of a conventional alternating magnetic field locator".
  The amendment does not appear to make any provision for advances in science so that we can locate pipes by new methods that are developed. One should allow for that in view of the rate at which science is moving today. My knowledge of science at school was appalling; but in order for something to register magnetically does it not have to have some ferrous material in it? The noble Lord's amendment just says "metallic content". I think one needs to be a little more specific than that because if it were to have a lead content I do not think a magnetic device would register. It might be possible to do it with copper by passing a current through it, but if it were a pipe with an explosive gas going through it that would be highly dangerous. I wonder whether this matter needs a little further thought.
  Lord Tordoff: My Lords, there is no doubt that the noble Lord, Lord Armstrong of Ilminster, has raised an important point here and has defined the problem. I am not sure that he has defined the answer. There are difficulties in putting metal traces along polyethylene piping because there is a danger of discontinuity at the joint between two pipes; there is danger of damage to the pipes, causing discontinuity and disturbing the ability to trace any circuit through the metal foil, for example. Furthermore, there is a danger of a thin strip of the sort that he describes being very much disguised by other metal objects under the ground, whether they

  427
  be there by accident or by design. So although the noble Lord has probably put his finger on an important problem there may be other ways of killing the cat than choking it with strips of metal.
  Lord Brabazon of Tara: My Lords, we have had an interesting debate on this subject. I am grateful to the noble Lord, Lord Armstrong, for calling attention to the important subject of avoidance of damage to buried apparatus and the safe location of non-metallic apparatus, which is being used increasingly by the utilities. We believe that the proposed new duties on undertakers in Clauses 72 and 73 to record in a prescribed form all items of apparatus placed or found during works will result in a great improvement in the availability and reliability of records of the location of apparatus.
  However, it would be premature and inappropriate to impose a general statutory requirement on undertakers to include metal traces in their buried apparatus. I am advised that there are considerable technical difficulties with devising a reliable metal tracer system. Noble Lords have pointed to one or two of those. However, the utilities are exploring the use of a number of alternative techniques, including ground -probing radar and amorphous magnetic alloys, which could be included in pipe or cable walls. The noble Lord referred to those. Once this technical debate has been resolved the Government will consider imposing appropriate requirements on undertakers, but it is not necessary to provide for that in the p resent Bill. With that assurance, I hope that the noble Lord will be able to withdraw this amendment.
  Lord Armstrong of Ilminster: My Lords, perhaps I may deal briefly with the points raised during this very interesting debate. As regards what the noble Lord, Lord Swinfen, said, I thought that optical fibre was covered by the reference to telecommunications signals. If that were not so I would wish to find some other definition. The purpose of the clause is modest. It is not to look ahead to scientific developments which I for one am unable to foresee but to provide for the present situation and leave to our successors how to provide for future situations.
  The noble Lord, Lord Swinfen, said that "metallic" was not a tight enough description and that the clause should have referred to "ferrous" or some such expression. The qualification in subsection (2),
  "so as to enable the course of the non-metallic conveyor to be located and traced from the surface by means of a conventional alternating magnetic field locator",
  covers that point.
  The noble Lord, Lord Tordoff, referred to the danger of discontinuity. I understand that weakness. My representation would be that there can occasionally be problems of this kind but that does not detract from the general merit of having some provision of this sort. Although there may be a few cases where that happens, there will be many where it does not and where the provision of such a metallic strip would be beneficial.
  I have referred to the technical difficulties. I am not wholly convinced by the points which have been made on this matter. Research is being done into the
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  possibility of using amorphous metallic alloys in the composition of the walls of such pipes, but my understanding is that the research into this is still at a fairly early stage. It will be some way off before one can see whether this research will provide a solution to the problem. My new clause was intended to provide for the present situation rather than to peer forward into a murky future where all these marvellous technological developments will occur.
  I shall be grateful if the Government will look at this matter again in consultation with the highway authorities and utilities because I believe that this is a problem which should be addressed. Subject to those remarks, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 82:
  After Clause 110, insert the following new clause:
  General duty of undertakers to co-operate
  (".—(1) An undertaker shall as regards the execution of road works use his best endeavours to co-operate with the road works authority and with other undertakers

  (a) in the interests of safety,

  (b) to minimise the inconvenience to persons using the road (having regard, in particular, to the needs of people with a disability), and

  (c) to protect the structure of the road and the integrity of apparatus in it.

  (2) The Secretary of State may issue or approve for the purposes of this section codes of practice giving practical guidance as to the matters mentioned in subsection (1); and—

  (a) so far as an undertaker complies with such a code of practice he shall be taken to comply with his duty under that subsection, and

  (b) a failure in any respect to comply with any such code is evidence of failure in that respect to comply with that duty.

  (3) An undertaker who fails to comply with his duty under subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.").
  The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 47.I beg to move.
  On Question, amendment agreed to.
  Clause 54 [Protected streets]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendment No. 83:
  Page 30, line 28, leave out ("or part of a street").
  The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 90. These are drafting amendments which will remove an unnecessary reference to "part of a street". Clause 42 of the Bill already makes clear that reference to a street includes any part of it. I beg to move.
  On Question, amendment agreed to.
  Lord Brougham and Vaux Lord Brougham and Vaux moved Amendment No. 84:
  Page 30, line 30, at end insert ("and works required for or incidental to such renewal, including, in particular, breaking up or opening the street or any sewer, drain or tunnel under it, or tunnelling or boring under the street").
  The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 88 and 89. The purpose of Amendment No. 84 is to make it clear that prohibition, without the street authority's

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  consent, of street works in a protected street (which under subsection (1) will not apply to renewal of existing apparatus) does not apply to incidental works associated with the works of renewal. The utilities consider this to be necessary in view of the reference to incidental works in Clause 42(3). Their omission in Clause 54 may imply that the utility is not empowered to do them, which would be nonsense.
  I turn now to Amendment No. 88. It is understood that the object of the tailpiece to subsection (2) is to recognise that in certain cases a street authority may be in a position to require wayleave payments for apparatus laid in land alongside highways; for example, in grass verges or banks associated with motorways. However, as drafted, the subsection, by referring to,
  "the right of the authority",
  may be taken as implying that in every case where a highway authority has bought land to build a road on it, or for road widening or improvement purposes, it may charge a utility for placing apparatus in it. That is not the position in law, where the general rule is that the right of utilities to lay their apparatus in a street, and repair, maintain and replace it, is not subject to any right of the owner of the soil to require payment, whether that owner is the highway authority or anyone else. The amendment will clarify the position without in any way derogating from any legitimate rights that may exist.
  I now turn to Amendment No. 89. This subsection already covers the case of apparatus crossing a protected street, where there must be special reasons for not allowing the utility to proceed. The amendment is intended to cater for the case where, with the best will in the world, the utility is unable to find a practicable alternative route, other than a protected street or part of it, for his apparatus. In such a case, the balance of interests between the street authority and the utility may be more than usually fine. This, therefore, is another case where, in the absence of special reasons, the consent of the street authority should be given.
  These are important amendments. I look forward to hearing my noble friend's comments. I beg to move.
  Lord Underhill: My Lords, I should like to refer briefly to two of the amendments. It would appear that Amendment No. 84 is designed to expand on the reference in subsection (1) to the renewal of existing apparatus. I await the Minister's reply to the amendment. I shall examine it carefully with a view to seeing what may be done at a later stage.
  I am not entirely happy about Amendment No. 89. It would significantly limit the value of protected streets by requiring highway authorities not to withhold their consent for placing apparatus in a protected street where there is no reasonably practicable alternative location for the apparatus. The whole concept of protected streets is designed to ensure that roads such as motorways are not obstructed as a result of utilities requiring access to any apparatus placed under them. The number of
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  protected streets is, and will remain, extremely limited, but it is essential that where they exist the general principle is that no utility apparatus should be located beneath them.
  As drafted, subsection (3) provides for utilities to place apparatus across a protected street. That is acceptable because it would affect only a relatively short stretch of street and is almost certain to be essential in terms of securing utility supplies to a particular area of town.
  Amendment No. 89 would significantly weaken the protection given by the Act to protected streets. I am certain that the highway authorities will be prepared to look at each case on its merits. However, a general decision on the lines set out in Amendment No. 89 is one to which we would not be happy to give support.
  10 p.m.
  Lord Brabazon of Tara: My Lords, these amendments would loosen the present controls on the execution of street works and protected streets. Clause 54 as drafted replaces a similar provision in Section 20 of the Highways Act 1980. Together with Clause 55, it establishes categories of streets which are to be subject to special controls and it sets out the procedure for giving consent to the placing of apparatus in streets designated as protected.
  My noble friend's first amendment seeks to widen the circumstances in which consent of the street authority is not required for works carried out in a protected street. It would include works incidental to the renewal of existing apparatus. However, this amendment is unnecessary since the requirement to obtain consent applies only to placing apparatus and there is no requirement to seek consent for other works which fall within the definition of street works under this part of the Bill.
  The second amendment would replace the provision enabling the street authority to charge a wayleave for the placing of apparatus where it also owns the land in question. The provision as drafted is similar to that contained in Section 181 of the Highways Act 1980 and does not confer any additional right on the street authority. Therefore, the amendment adds nothing to the present position.
  Amendment No. 89 would in effect require the street authority to consent to the placing of apparatus in a protected street where there was no reasonably practical alternative location for the apparatus. However, that would widen unnecessarily the restrictions on the placing of apparatus in such streets. The question of the availability of an alternative route for apparatus should properly be addressed at the time of designation and the criteria for designation to be prescribed under Clause 55 will allow for that. Once the street has been designated as protected, it will be important to restrict activity on it to the minimum necessary. In the light of those explanations, I hope that my noble friend will feel able to withdraw the amendment.
  Lord Brougham and Vaux: My Lords, I am grateful to my noble friend the Minister for having clarified the

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  position. I shall read very carefully what he has said. In the meantime, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 85 to 87:
  Page 30 line 34, leave out ("sum") and insert ("fee"). Page 30, line 37, leave out ("charge") and insert ("fee").
  Page 30, line 39, leave out ("sum") and insert (fee").
  On Question, amendments agreed to.
  [Amendments Nos. 88 and 89 not moved.]
  Clause 111 [Protected roads]:
  Lord Brabazon of Tara Lord Brabazon of Tara moved Amendments Nos. 90 to 93:
  Page 62, line 17, leave out ("or part of a road").
  Page 62, line 23, leave out ("sum") and insert ("fee").
  Page 62, line 26, leave out ("charge") and insert ("fee").
  Page 62, line 28, leave out ("sum") and insert (fee").
  On Question, amendments agreed to.
  Clause 55 [Supplementary provisions as to the designation of protected streets]:
  Lord Brougham and Vaux Lord Brougham and Vaux moved Amendment No. 94:
  Page 31, leave out lines 13 and 14 and insert:
  ("(1) A street authority may designate as a protected street any trunk road or principal road as to which they are satisfied that volumes of traffic flows are such throughout the day that severe disruption of traffic due to street works cannot be avoided by the imposition of restrictions under section 50 (power to give directions as to timing of street works)
  (1A) The Secretary of State may prescribe—
  (a) the procedure for making or withdrawing a designation of a street as protected, and").
  The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendment No. 95. The criteria agreed with the utilities and the highway authorities and described in the draft code of practice are quite specific. The purpose of the amendment is to reflect those agreed criteria on the face of the Bill.
  The second amendment would make the street authorities liable to compensation for any of the undertakers' contractual costs incurred as well as diversionary costs. It is possible that an undertaker may already have entered into a contractual agreement to carry out installation of all maintenance works or his own prior to the designation being made known and any costs for cancelling the contract being incurred. These are probing amendments. I beg to move.
  Lord Underhill: My Lords, I shall deal first with Amendment No. 94. The effect of the amendment would be to define on the face of the Bill the criteria for designating a protected street. The definition set out in the amendment is a trunk or principal road on which the,
  "volumes of traffic flows are such throughout the day that severe disruption of traffic due to street works cannot be avoided by the imposition of restrictions under section 50 (power to give directions as to timing of street works)".
  One key factor in deciding whether or not to designate a street as protected is undoubtedly the volume of
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  traffic. However, the agreed definition of protected streets as set out in the HAUC Notice Periods Working Party's consultation document is streets which,
  "serve a specific, major traffic need".
  The consultation paper continues to state that,
  "Only streets serving a specific, strategic major traffic need may be so designated.
  It is the strategic nature of the traffic as much as the volumes of traffic which warrant protected status.
  Clause 55(1) (a) provides for the criteria for designation to be set out in regulations. Given that the criteria are not straightforward and may need to be amended over time, the local authority associations recommend that regulations rather than the Bill provide the best vehicle for such criteria to be set out.
  Having passed on those remarks I shall be interested to hear the Government's comments.
  Lord Brabazon of Tara: My Lords, as my noble friend described, these amendments seek to limit the terms on which a street authority will be empowered to designate a street as protected.
  The Government made clear in response to the Home Report that various safeguards for undertakers would need to be built into the procedures for designating protected streets but that the power should not be confined to trunk and principal roads. The amendment would confine the power still further by imposing a test as to whether traffic disruption due to street works could not be avoided by other means. That would be an unwelcome limitation.
  The Horne Report gave as an example of a road which might be protected, a newly built inner relief road in an urban area which did not provide sole access to any properties. Such a road could well be neither a trunk nor a principal road; nor will traffic disruption be the only determining factor in deciding which street should be designated as protected. Those criteria will clearly be prescribed in the regulations to be made under Clause 55. That was a point made by the noble Lord, Lord Underhill.
  The last amendment would extend the liability of the street authority to indemnify undertakers for the costs of moving apparatus as a result of designation of a street as protected to cover any apparatus proposed to be placed at a time when the street was not so designated. That would open up a wide area of dispute as to how advanced a plan to place apparatus had been, and what costs could be attributed to changing the plan so as to locate apparatus elsewhere.
  In contrast, it is relatively simple to attribute the costs of moving or changing the position of apparatus which has actually been placed. We propose to deal with the question of giving undertakers adequate notice of proposed designation in the procedure to be prescribed under the clause. An extended indemnity provision for abortive costs as proposed would not be practical and is not considered necessary.
  With that explanation, I hope my noble friend will feel able to withdraw the amendment.
  Lord Brougham and Vaux: My Lords, I am grateful to my noble friend for his reply, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 95 not moved.]
  Clause 56 [Streets with special engineering difficulties]:
  Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 96:
  Page 32, line 17, at end insert:
  ("(5) A street authority shall have no liability in relation to a structure for which they are not responsible where such structure causes the street to meet the criteria for designation as a street with special engineering difficulties and the structure has not been drawn to their attention.").
  The noble Lord said: Amendment No. 96 is tabled in my name and that of the noble Lord, Lord Tordoff. It deals with special engineering difficulties. Perhaps I can briefly cover its effect. It is designed to make clear that a street authority could not be held liable in circumstances where a street had not been designated as being of special engineering difficulty if the authority had no knowledge of the structure which caused the street to meet the criteria for designation.
  At Committee stage we debated an amendment intended to highlight the problems arising where a structure which could warrant a street being designated under Clause 56 was owned by someone other than the street authority or a transport undertaking. The example given was a private cellar. In response to the amendment the Minister acknowledged that there could be cases where privately owned structures could warrant designation. At col. 318 of Hansard on 6th December—which is my birthday, noble Lords will kindly note for future reference—he said:
  "A responsible highway authority would of course investigate any engineering features of this kind that were brought to its attention from whatever source. It is appropriate, however, that the final decision on whether to designate the street … should in these cases rest with the highway authority".
  Then he was asked whether the issue was to be discussed by the appropriate HAUC working party. The Minister confirmed that this would be the case. My understanding is that discussions will certainly take place on the subject in the HAUC.
  Nevertheless, two matters arise from the debate at the Committee stage which prompt further parliamentary discussion. First, an interpretation has been placed on the Minister's approach at Committee stage by the local authority associations that highway authorities will adopt a proactive role in going out and identifying structures of this kind. Given the current level of resources, that is extremely improbable.
  The second matter which has given rise to some discussion is that the associations accept that, once a feature has been identified, it is the highway authority's responsibility to assess whether it warrants the street concerned being designated as of special engineering difficulty. However, in his reply at Committee stage the Minister did not address the problems which could arise where the structure concerned had not been drawn to the authority's
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  attention. As a result, no thought was given to designation, which has given rise to anxiety on the part of the associations.
  The amendment which I introduced will have the effect of absolving the street authority from responsibility. The Minister may say that that is a somewhat negative approach. I hope that it is not intended in that spirit; it is meant to probe the Minister's thinking about these matters, particularly in the light of the situation which emerged at Committee stage which has given rise to further discussion on the part of the authorities. They hope that the Minister may be able to shed further light on the position in the course of this debate. I beg to move.