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

HL Deb 24 January 1991 vol 525 cc334-444

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 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 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 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 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 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 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 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: 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 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 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.

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 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 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.

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 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 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.

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 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.

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 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—

1. (a) the number of concession agreements entered into by him during that year, and
2. (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 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 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 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 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.

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 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 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 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.

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 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 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 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: (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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.

cc362-86
1. Terms of Concession Agreements 12,834 words
cc386-94
2. Extension toll orders 4,275 words
c394
3. Community Charges (Substitute Setting) Bill 21 words
cc395-423
4. New Roads and Street Works Bill [H.L.] 14,547 words
c423
5. General duty of undertakers to co-operate 207 words
cc423-34
6. Duty of undertakers to facilitate the tracing of nonmetallic pipes, etc 5,524 words