Terms of Concession Agreements

HL Deb 24 January 1991 vol 525 cc362-86

.—(1) A concession agreement shall require the concessionaire to—

1. (a) ensure that any special road authorised under the provisions of this Part is designed and constructed in accordance with current standards approved by the Secretary of State;
2. (b) submit the design of the road for safety audit by the highway authority; and
3. (c) make arrangements for winter maintenance and other emergency clearance operations to be undertaken in accordance with current standards approved by the Secretary of State;

(2) A concessionaire shall in accordance with the terms of the concession agreement secure the provision of service and refreshment facilities along the road in accordance with current standards approved by the Secretary of State.")

The noble Lord said: My Lords, this amendment appears in the Marshalled List in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff. The effect of this amendment would be to require concession agreements to impose a series of duties on a concessionaire. At Committee stage the Minister made an important statement in relation to the status of roads developed under the provisions of this part of the Bill. He said: Let me remind your Lordships that concession roads under the Bill will be highways. They will not be privately owned". The Minister reiterated that point this afternoon. He continued: Clause 1(3) of the Bill makes this crystal clear. The public will have their common law rights to use them as highways, subject, of course, to their paying the toll".—[Official Report, 4/12/90; col. 121.] As these roads will be highways, the public have a right to expect that they will be constructed and maintained to the same standards as publicly built roads and that the same facilities will be available. A number of these issues were addressed at Committee stage, but it is unclear from the Minister's response which document associated with a concession road should deal with these matters.

In response to an amendment requiring schemes to be in accordance with local planning policies and that concession agreements should cover road design, the Minister said that all the matters would be addressed before the road was built— some before the signing of the agreement, and some during the authorisation procedure after it". The Minister added that no inspector, following a public inquiry into a special road scheme, would recommend the making of a scheme which did not contain adequate provisions as to the design of the road". —[Official Report, 4/12/90; col. 132.] The Minister continued by saying that the concession agreement rather than the road scheme was the document in which maintenance issues should be addressed. This amendment is intended to deal with a range of requirements which have not previously been considered during the debates in your Lordships' House. These are the design and construction of the road in structural as opposed to locational and layout terms; the need to ensure that designs are subject to a safety audit; the importance of arrangements for winter maintenance and the clearance of accident debris and the provision of adequate service and refreshment facilities.

Should the Minister not find it possible to accept this amendment in the form in which it is worded, will he confirm two points? Will he confirm, first, that these are legitimate requirements to impose on a concessionaire? Secondly, will he indicate whether they should be dealt with in the concession agreement or in the special road scheme? As I have made absolutely clear, there is confusion as to exactly which document these matters are concerned with. I beg to move.

5.15 p.m.

Lord Boyd-Carpenter

My Lords, I wish to raise a question concerning subsection (2) of the new clause where it states that it is the intention to make it compulsory for the concessionaire to provide service and refreshment facilities. I was responsible for the original motorway programme, which I announced to another place on 2nd February 1955. Those initial steps in the motorway programme did not require the provision of either refreshment or refuelling capacities. The roads were built and shortly after various enterprising people applied for concessions to operate the services. That is the practical way to deal with the matter, as is happening with the toll roads. Therefore, whatever my noble friend may say about the first part of the amendment—I agree it appears to be innocuous on the face of it, though perhaps unnecessary—subsection (2) seems somewhat oppressive and quite unnecessary.

Baroness Oppenheim-Barnes

My Lords, I apologise for delaying your Lordships for a couple of minutes on subsection (2) of the new clause. It looks reasonable enough in itself when it calls for the provision of service stations and places of refreshment. With due respect to my noble friend Lord Boyd-Carpenter, we already have on our motorways hideous monopolies providing ghastly plastic food. Over and over again Ministers at the Department of Transport have struggled with this difficult problem. Not everyone wants to open these facilities for road users unless they are in a monopoly or dominant situation. I hate to think that this new clause will once again open up the floodgates to the practice of a monopoly and possibly a duopoly. The concessionaires might be opening up their own refreshment facilities—they would probably have to.

Lord Boyd-Carpenter

My Lords, they would have to.

Baroness Oppenheim-Barnes

My Lords, they would have to. They would perpetuate the existing monopoly situation and make it much worse by creating a duopoly.

Lord Tordoff

My Lords, I have listened to the noble Baroness's interpretation of the new clause. However, as I read it, it does not say that the concessionaires have to provide; the amendment simply says that they have to "secure the provision". That means they can tender for it. That may be a misinterpretation of the amendment to which I have put my name, but that is how I read it.

Lord Swinfen

My Lords, can the Minister tell us what the current standards are? I believe that on the M.25 there are only two service areas which are approximately 60 miles apart. I know that one of them is not open 24 hours a day. It can be dangerous for people to drive when they are tired and in need of refreshment. For some people with a medical condition it is absolutely essential that they have food when they are beginning to run out of energy, otherwise they become a danger to other people.

Lord Brabazon of Tara

My Lords, I have some degree of sympathy with the intention behind this new clause, but I do not think the clause itself is either necessary or necessarily helpful. All the issues covered by subsection (1) of the clause will no doubt be dealt with in any concession agreement. Of course, roads intended for public use must be designed to the appropriate safety standards for the traffic that will use them; of course, there must be adequate arrangements for winter maintenance. But the clause would restrict us to roads which comply with an existing departmental standard.

That is all very well so long as the roads in question conform to existing types, such as motorways. But all kinds of roads may be authorised by the Bill, including some which are quite new concepts in this country, such as roads designed for lorries only or for cars and light vans only. In such cases, many features of existing motorway standards, which assume high levels of heavy goods vehicle traffic, would be inappropriate, but no other standards would quite fit either. There would be no alternative to approving the design for such a road on an individual basis. There would be no current standard to apply, but the concession agreement could still require the detailed design to be approved by the Secretary of State or the local highway authority.

Like my noble friend Lord Boyd-Carpenter, and others, I have doubts about subsection (2). The Department of Transport has an established policy on the provision of service areas on its motorway network. For some concession roads it may well require concessionaires to provide service areas on similar lines, though always subject to planning approval. But to suggest that every concession road must have facilities of this kind is clearly absurd. Some will not be long enough to justify them—for example, estuarial bridges and tunnels—and for concession roads which are not built as motorways there is no standard to follow, although the department publishes advice on the need for facilities on its all-purpose trunk roads.

I turn to the question of motorway service areas, to which my noble friend Lady Oppenheim-Barnes referred. I do not wish to enter into comments on the standard of the food therein, but where it is appropriate to enforce the conditions we normally apply to the providers of motorway service areas—the requirements about which my noble friend Lord Swinfen asked: I refer to 24-hour opening, facilities for heavy goods vehicles, facilities for disabled and so forth—it will be perfectly possible to do so through the concession agreement whether the services are provided by the concessionaire or by a sub-contractor. The amendment is probably clear on that, though that is for the noble Lord to answer.

My noble friend asked specifically about the M.25. I know it is our proposal that there should eventually be four motorway service areas at each corner of the M.25, if a circular road has such things. I cannot accept the amendment.

Lord Tordoff

My Lords, before the noble Lord sits down, will he clear up a point he made about subsection (2). He implied that it suggests that there should be provision of service and refreshment facilities along every road. With respect, I do not see that it reads that way. It says, in accordance with current standards approved by the Secretary of State". If the Secretary of State has no approved standards for other than motorways, presumably no standards will be applied to concession roads which are not motorways. I hope the noble Lord understands what the amendment is getting at: standards on the concession roads should be no lower than the already low standards that exist on motorways.

Lord Brabazon of Tara

My Lords, I cannot add to what I have already said on the amendment.

Lord Underhill

My Lords, I am rather disappointed by the Minister's reply. Subsection (2) states: A concessionaire shall in accordance with the terms of the concession agreement". We have been told repeatedly by the Minister that matters can be laid down in the agreement. He said that he had some sympathy with the terms of the amendment and that those matters could no doubt be dealt with in the concession agreement. It is the words "no doubt" which concern us. We want to be sure that these matters will be dealt with in the concession agreement. That is the difference between what the Minister just said and the wording of the amendment. Subsection (1) states: A concession agreement shall require". No doubt is expressed there, yet the Minister has expressed some doubt in saying that "no doubt" these matters could be dealt with in the concession agreement.

I was interested to hear the discussion between the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Oppenheim-Barnes, on the present provision of service stations. The M.25 has been mentioned. We know that haulage associations in particular have expressed concern about the lack of service provision. I happen to live near the M.11 and I can assure the House that the same position applies there. On great lengths of road there is no provision at all. Such provision should be laid down in the terms of the concession agreement. The conditions of them should be laid down by the standards as approved by the Secretary of State. I do not understand why the Minister cannot accept the amendment. I shall not withdraw it but I shall not press it to a Division.

On Question, amendment negatived.

Clause 2 [Exercise of highway functions by concessionaire]:

Lord Brabazon of Tara moved Amendment No. 10: Page 2, line 28, at end insert: ("( ) The highway authority may recover from the concessionaire the costs incurred by them in exercising in the circumstances mentioned in subsection (3) (a), (b) or (c) a highway function exercisable by the concessionaire. Those costs shall be taken to include the relevant administrative expenses of the authority, including an appropriate sum in respect of general staff costs and overheads.").

The noble Lord said: My Lords, in moving this amendment I should like, with the leave of the House, to speak at the same time to Amendment No. 11, in the names of the noble Lords, Lord Clinton-Davis and Lord Tordoff. I trust that the noble Lords will approve my amendment as they have put down a similar one.

During the debate in Committee I undertook to consider whether there should be an amendment to entitle the highway authority to recover costs in exercising the highway functions normally exercisable by the concessionaire in the circumstances specified in Clause 2(3). The amendment in my name achieves that purpose and I trust will commend itself. The Opposition amendment is similar but goes further than we are prepared to go. One can argue that where a concessionaire is given a function but, in the event, the highway authority has to do it for him that the concessionaire should pay the costs that fall on the highway authority. We accept that. We have provided for it in our amendment. But the other amendment goes further, in paragraph (b), to say that if a function is withdrawn from the concessionaire entirely the concessionaire should still be required to pay for the highway authority to carry it out. In our view that is going too far.

It is particularly odd because the functions which the concessionaire is required to exercise are subject to negotiation in the first place. The concessionaire might be reluctant to take on so many functions if he knew he was committed to paying for them throughout the life of the concession, even if they were carried out for most of the time by the highway authority without the concessionaire having any control on the cost.

Paragraph (c) of the amendment is even odder. It requires the concessionaire to pay for routine inspections. These are carried out by the highway authority in the interests of the road user but in the long-term interests of the highway authority for the road when the concession is terminated. They do not necessarily benefit the concessionaire. Clearly, if the concessionaire asked the highway authority to inspect a particular structure he might be required to pay for the extra service; but inspections carried out by the highway authority on its own behalf are a different matter. The concessionaire will not be calling the tune on those. They are not carried out for his benefit. I suggest that it would be wrong to expect him to pay the piper. I therefore commend my amendment to the House and hope that noble Lords will not wish to press theirs.

Lord Clinton-Davis

My Lords, I thank the noble Lord for putting down his amendment. It fulfils an undertaking which he gave in Committee. We should have preferred the matter to go wider; hence, we have put down our own amendment. The Minister has dismissed it out of hand, which is odd, to use his own term.

Our amendment encompasses his. We have no quarrel with that. What we have done is to add to it. We think the authority should be able to recover the costs of routine highway maintenance inspections of a concession road and the costs of exercising highway functions consequent on the withdrawal of responsibility from the concessionaire under Clause 2(4).

When the matter was discussed in Committee the noble Lord made it absolutely clear that concession roads would be monitored by the highway authority, which would, have access to the road with devices such as the high-speed road monitor". He was asked to indicate whether authorities would be able to recover the costs of highway inspections. He said: I am not certain that I can give the noble Lord an answer to that question at this stage of the proceedings. I suspect that there is somewhere in the Bill a provision which somehow escapes my attention at present. However, I shall return to the matter at a later stage".—[Official Report, 4/12/90; cols. 140–141.] That was an odd remark to make; but, there it is, it is on the record and the Minister will now have an opportunity to indicate whether those suspicions were well founded. Clause 2(4) asserts that a concession agreement may provide for, a concessionaire's authority to exercise a highway function to be withdrawn. Presumably that would occur if a concessionaire failed to exercise the function properly. If, as the Government accept, a highway authority should be able to recover the costs of exercising highway functions on a one-off basis—that would happen under Clause 2(3)—surely it should be able to do so when the concessionaire's authority is permanently withdrawn. I shall not press the matter today, but I should like to hear what the Minister has to say in regard to those points.

Lord Brabazon of Tara

My Lords, in regard to the first point, I certainly did say that I would look into the matter before we reached this stage of the Bill's proceedings. I have done so and have given my answer. I apologise if I said something which was not quite right. However, on reflection, I have found out —as I said I would—what the position is.

On Question, amendment agreed to.

[Amendment No. 11 not moved.]

5.30 p.m.

Lord Clinton-Davis moved Amendment No. 12: After Clause 2, insert the following new clause:

("Arbitration of cost.

.—(1) The Secretary of State shall appoint an independent person to determine disputes as to costs arising from any concession agreement under section 2 above, where any such agreement does not contain alternative provision in respect of arbitration.

(2) Any determination made by the person appointed under this section shall be published.

(3) Any determination made by the person appointed under this section in connection with a concession agreement shall be regarded as final.").

The noble Lord said: My Lords, this amendment is also supported by the noble Lord, Lord Tordoff. We seek to discover from the Government what their thinking is on the whole issue of arbitration concerning Parts I and II of the Bill to which I alluded earlier. The matter has been taken on board by the Minister in relation to Parts III and IV. Therefore, there appears to be something of an inconsistency in approach. However, perhaps the Minister will be able to clarify the position.

As I said before, I believe that the Government should be commended for having responded positively to the request we made to deal with matters in this way under Parts III and IV. However, does the Minister not concede that disputes could arise under Parts I and II in relation to payment of costs and compensation? For example, a provision in Clause 1(4) provides for compensation to be paid to a concessionaire. There are several other matters which are dealt with in that way in the first part of the Bill.

The Minister has accepted the principle that in certain circumstances the concessionaire should bear the costs of policing a concession road. There is no provision in this part of the Bill for arbitration. As he has addressed the issue so properly in Parts III and IV of the Bill, I believe that he should now explain why he has so significantly refused to do so in relation to Parts I and II. I beg to move.

Lord Brabazon of Tara

My Lords, I must confess that I do not think there is much to commend this amendment. The principle behind arbitration is that it should be independent. Where an arbitrator has to be appointed he should be acceptable to both parties or his appointment must be in accordance with a formula in the agreement. As the Secretary of State would be one of the parties in many instances, he should not have the power to make such an appointment unilaterally. Where he is not a party to the agreement it would be wholly inappropriate for him to interfere with its operation.

We expect that any concession agreement will contain an arbitration clause covering such matters as befit arbitration procedure. Further, it has always been our intention that a concessionaire should bear a proportion of the costs incurred by the highway authority in taking a special road scheme through statutory procedures. The House has already debated and agreed to an amendment tabled in my name which will ensure that where either party fails to meet its obligations under the terms of the concession agreement it shall reimburse the other party a proportion of the costs incurred. In short, arbitration is a matter for individual concession agreements; it is not a matter in which the hands of the parties should be tied by a provision in the Bill.

There is a difference between Parts III and IV of the Bill. It is true that there are provisions to provide for arbitration there, but they concern the settling of disputes where one party has a right to carry out works at the expense of another. That is a very different situation the one arising between the highway authority and the concessionaire envisaged under Parts I and II of the Bill. In the light of that explanation, I hope that the noble Lord will not press his amendment.

Lord Clinton-Davis

My Lords, perhaps I am being a little obtuse, but I find that explanation rather strange. It is perfectly true that arbitrators need to be independent. That is the purpose of the procedure. However, I do not understand the explanation. I hope that the Minister will be able to explain it in terms not displayed in the brief. Perhaps he could outline in his customary comprehensible style the point that he is trying to make.

Leaving aside what the Minister is being asked to say in this regard, it is a fact that there can be disputes over costs. Therefore, we must have a proper method of dealing with such disputes so that they are settled by an independent person along the lines set out in Clause 92. Clause 92 provides that: Any matter which under this Part is to be settled by arbitration shall be referred to a single arbitrator appointed by agreement between the parties concerned or, in default of agreement, by the President of the Institution of Civil Engineers". Why can we not have such a provision in this part of the Bill? I fail to understand the rationale, although it is possible that I have simply missed the point.

It seems unacceptable in many ways that the Minister is content to rely more and more upon the concession agreement. When he refers to those agreements in the way that he has, it means that the public will not really know what is going on. All this is highly relevant to an amendment which we shall be discussing shortly—namely, Amendment No. 17—which deals with publicity. I trust that the Minister will be able to explain the matter in more simple terms so that I can understand the point that he is trying to make.

Lord Brabazon of Tara

My Lords, I do not think that I can explain the matter in simpler terms. So far as concerns the independence of the arbitrator, the noble Lord seeks by way of his amendment to have an independent person appointed by the Secretary of State. My argument is that it is not right for one party to the arbitration, or possible arbitration, to be appointed by the Secretary of State. The noble Lord read out the way in which an arbitrator would be appointed under Part III of the Bill. Of course, that is a different procedure.

There must be a proper method of settling disputes involved in each concession agreement. There will not be individual agreements between each of the many parties in the street works part of the Bill. That is the difference between the two parts. I do not think that I can go any further on the matter.

Lord Clinton-Davis

My Lords, in that case, would the Minister have been prepared to accept the principle of the appointment of the arbitrator being undertaken by joint agreement between the Secretary of State and the concessionaire?

Lord Brabazon of Tara

My Lords, it would have helped, but it would still not have gone far enough to answer the second part of my argument. With the leave of the House, perhaps I may point out that of course I should have made that clear.

Lord Clinton-Davis

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Leasing of land to concessionaire]:

Lord Underhill moved Amendment No. 13: Page 3, line 29, at end insert: ("(1A) Any lease of land granted under subsection (1) shall be for highway related functions only. For this purpose 'highway functions' has the same meaning as in section 2(2) of this Act.").

The noble Lord said: My Lords, Amendment No. 13 seeks to limit any lease of land by the highway authority to the concessionaire to land required for highway-related purposes. An amendment in similar terms was introduced at Committee stage, but was not pressed. During that debate the Minister made the point that the amendment was unnecessary. He said that it was only possible for a local highway authority to acquire land for highway purposes under compulsory purchase schemes, at least in relation to a new road. Thus it would not be possible to acquire for other purposes land which could then be leased to the concessionaire.

That line of argument is correct. But it does not cover all the options. The amendment as drafted would not seek to prevent highway authorities from acquiring land compulsorily and then leasing it to the concessionaires for non-highway purposes; but to prevent them from leasing for non-highway purposes land that was acquired voluntarily or was already within their ownership.

I am sure the Minister will agree that the Government lose few opportunities of saying that local authorities own large areas of land, some of which are not in use. Much of that land may be unused due to inadequate access. Alternatively, it could have low value uses and the existence of a new road scheme giving access to it could greatly increase its value. The Government have strong powers to insist on the disposal of land by local authorities. Therefore in some circumstances, for new developments associated with a new road, the local authority could lease land which it already owns.

That opens up the possibility for undesirable developments; for example, for the highway authority to lease land for developments such as an out-of-town shopping centre accessed solely by the new road. That was mentioned during the debate on a similar amendment at Committee stage. It was also said that for the developer the development and the new road could be seen as a package. The developer could cross-subsidise the road and, in return, become a limited monopoly. Such developments may well be against existing development plans, both for the protection of existing town centres and for the protection of green belts, whether formal or otherwise. Developments in that category are not limited to retail centres; they may include housing or leisure facilities.

During Committee stage I elaborated these points. It is not my purpose to repeat my remarks this afternoon. On that occasion I concluded: It is not the purpose of the amendment to prevent development or even to prevent the kind of development described above in cases where it is sensible. It will, however, ensure that the Bill is not used to support undesirable development either directly or indirectly and it leaves each case to be judged on its own merits".—[Official Report, 4/12/90; col. 221 I hope the Minister will consider carefully not only what was said at Committee stage, but also what is now being said, and look favourably upon the terms of the amendment. I beg to move.

Lord Boyd-Carpenter

My Lords, I do not follow why the noble Lord says that the amendment leaves each case to be decided on its merits. It appears to inhibit entirely and in all circumstances the lease of land for other than highway purposes.

Lord Brabazon of Tara

My Lords, I am surprised to see the amendment tabled again at this stage of the Bill. I answered at Committee stage with a clear-cut undertaking that the position in the Bill is watertight. Any lease of land granted under Clause 4(1) must be related to the concessionaire's functions under the agreement, and those functions are listed in Clause 1(1).

If the noble Lord looks at those functions he will see that they are very clearly stated. They are, design, construction, maintenance, operation or improvement of a special road". I assure the noble Lord that there is no danger of local authorities, highway authorities or concessionaires using this procedure in the way the noble Lord fears. The provision must and can only be used for highway-related purposes. I have looked at the matter since Committee stage and the position is watertight.

Lord Underhill

My Lords, the Minister says he is surprised to see the amendment tabled again. The reason is that serious consideration was given to what the Minister said at Committee stage and, because some aspects seemed to be unclear or unsatisfactory, an amendment in similar terms was tabled for this afternoon.

Once again I shall look carefully at what the Minister said. He has repeated that the matter is watertight. I hope that explanation also satisfies the noble Lord, Lord Boyd-Carpenter. If it is watertight, and what we are suggesting cannot occur, there is no point in pressing the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Clause 5 [Transfer or termination of concession]:

Lord Brabazon of Tara moved Amendment no. 14: Page 4, line 5, leave out ("not be assigned") and insert ("be assigned with the consent of the highway authority; and references in this Part to the concessionaire shall be construed as references to the person for the time being entitled to exercise those rights.").

The noble Lord said: My Lords, in moving Amendment No. 14, with the leave of the House I shall speak also to Amendments Nos. 32 and 41.

The amendment to the first subsection of Clause 5, and the amendment to the first subsection of Clause 31, are designed to allow the rights of a concessionaire under a concession agreement to be assigned to a third party, but only with the highway authority's consent. Clause 5 relates to concession roads in England and Wales; Clause 31 to concession roads in Scotland.

Our intention behind these amendments is to ensure that the framework established by means of the concession agreement between the highway authority and the promoter of a scheme is not so rigid as to discourage potential promoters and investors from coming forward with ideas and finance for the schemes. The difficulty of not permitting the assignment of rights is that it would restrict the private sector's ability to sell on their rights over a concession road. Ideally we should like to see investors bringing finance to these schemes, much as they finance other industrial undertakings, the trading in which is commonplace. If we insisted that a promoter could never sell the business that he had created, we would be preventing the private sector from making sensible decisions about the allocation of its resources, and removing the cutting edge of the market which leads to efficiency of provision.

The right to collect tolls represents the value of the asset to the investors, who will be keen to protect their considerable investment in the enterprise. The ability of the concessionaire to sell that asset on to a new concessionaire, who would be under the same obligations to the highway authority and to the public as the original concessionaire, will make these projects more attractive and more marketable than otherwise. I should stress that all the concessionaire's liabilities and duties under the concession agreement will pass along with the right to charge tolls. The needs of road users would be unaffected by the change of concessionaire, except positively, to the extent that the new concessionaire might bring extra efficiency into the provision of the service in order to recoup his investment.

We accept that there may be a need for control by the highway authority, and that is why we have provided that the highway authority's consent must be obtained before assignment is allowed. The highway authority will need to make sure that the party to whom the rights are assigned is reputable and competent to take the original concessionaire's place. The third amendment in the group is consequential.

With that explanation, and the assurance that the highway authority will have a right of veto, I beg to move the amendment.

Lord Tordoff

My Lords, I want to underline a point made by the noble Lord regarding the highway authority being under a duty to ensure that the concessionaires are reputable people. That is not stated on the face of the Bill. Perhaps there should be a provision in the Bill to indicate the conditions under which consent may or may not be given by the highway authorities.

It is a pernickety point and I cannot think immediately of a situation where the procedure could go wrong. However, I am not clear what are the parameters within which the highway authority would operate.

Lord Brabazon of Tara

My Lords, by requiring the consent of the highway authority the amendment goes a long way to meeting any anxieties which the noble Lord may have. I do not know whether it is a good idea to include specific conditions. Obviously the highway authority would not hand over a concession road to somebody of ill-repute, if that is the word the noble Lord had in mind. We have covered the situation pretty clearly by requiring the highway authorities concerned to do this.

Lord Underhill

My Lords, will the Minister kindly confirm that I heard him correctly in his original statement? Did he make it absolutely clear that there is complete discretion on the part of the authority as to whether or not to give consent? I believe he used the words that they had the power of veto if they so desired. Is that correct?

Lord Brabazon of Tara

My Lords, with the leave of the House, yes, there are no conditions on that.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 15: Page 4, line 17, leave out from ("may") to ("charge") in line 18 and insert (", for a period of not more than two years until a new appointment or an extension toll order takes effect or the toll period ends,").

The noble Lord said: My Lords, I beg to move Amendment No. 15 and, with the leave of the House, speak also to Amendments Nos. 20, 23, 27, 33, 42 and 43.

This group of amendments concerns a subject which has perhaps not been uppermost in our minds before now: what happens when a concession agreement comes to an end, either through the passing of time or prematurely. We already have some provisions in Clause 5 for premature termination of concessions. The highway authority is required to take steps to secure a new concessionaire, but this will not always be possible, especially if the toll period has not much longer to run. Under Clause 5(3), the highway authority can go on charging tolls on the same basis of the former concessionaire until a new concession is let, or until it decides it is impracticable to let one. But that begs the question how, and at what stage, it can be said to decide and how long it can go on hoping that something will turn up.

Moreover, when a toll road is in use, and people accept the payment of tolls for the benefits it offers, it may not be an unmixed blessing simply to abolish tolls and make the road free to the user. This could simply make it as congested as all the alternative routes. As noble Lords are aware, the Government believe in market pricing as an equitable means of distributing resources: it is not simply that they favour the private sector, though the private sector is usually better at acting on market principles. If a toll road has found its market, why should that market be deprived of a benefit it is prepared to pay for by opening it up to those who are not prepared to pay? When the concession agreement terminates, the highway authority will become solely responsible for maintaining and operating the road, which may be a considerable burden on public funds if it is no longer tolled.

These arguments will doubtless be rehearsed case by case, and very often it will be generally agreed that tolling should cease and the road should become a free facility. But this may not be the right solution in every case; we are talking about events perhaps 30 or more years into the future. The new clauses proposed after Clause 11 and, for Scotland, after Clause 26 therefore allow the alternative possibility of continued tolling by the public sector authority after the concession comes to an end. This will require the making of a fresh order which will be a statutory instrument subject to annulment by either House.

The amendments to Clause 5(3) and to the Scottish Clause 31(2) will allow an extension toll order to be made also when a concession ends prematurely and it proves impossible to let a new concession. It also solves the problem I posed earlier: what happens if the authority decides it cannot let a new concession and how soon must it decide? As amended, it will have a maximum of two years from the abandonment of a concession agreement to make a new agreement or to make and bring into force an extension toll order, or to cease charging tolls, with no possibility of reviving them. We think two years is a reasonable time, but not over-generous, given that negotiating a satisfactory concession agreement many not be easy, even for a road already in use. The amendment to Scottish Clause 27(4) is also consequential.

It is intended that where a special road authority has the authority to assign its right to charge and collect tolls to a concessionaire, the right should not automatically revert to it if no assignation is made. As for England and Wales, an extension toll order would be required to authorise the authority to charge and collect tolls. With that explanation, I commend these amendments to your Lordships.

Lord Clinton-Davis

My Lords, the Minister will appreciate that we have not had a great deal of time in which to consider the amendment. While I am grateful for the explanation he has given, I am not totally convinced that I followed everything. Perhaps I may ask him one or two questions arising from what he said or, in some cases, did not say.

As I understand it, the Government envisage that tolls may continue to be charged on concession roads once there has been a reversion to highway authority ownership. I believe that he said that. He nods his head; therefore my understanding is right.

What considerations or factors does the Minister believe may have to be taken into account by the highway authority when it is decided whether or not to continue to levy tolls on a road which has reverted to that authority? Can the Minister confirm that in the case of concession agreements entered into by the local highway authority, the Secretary of State would leave it entirely to that authority to decide whether or not to continue to levy a toll? Perhaps the Minister will reflect on those points. I wish to reflect upon what he said in introducing the amendment.

Lord Brabazon of Tara

My Lords, certainly I expect the noble Lord to wish to reflect on the new amendment. As I said when I moved it, this is not a subject where we have given much attention to what would happen when the toll arrangements came to an end. However, during the course of my speech I said that we were talking about matters 20 or 30 years ahead. So I would not wish to be, and one cannot be, too specific about what reasons the highway authority might have for wishing to continue tolling after the end of the concession period. I touched upon one or two in my opening remarks, such as that many road users might wish the tolls to be kept on.

The noble Lord raised the point about whether the local authority—if it was a local authority concession road—would be able to decide to continue without having to refer the matter to the Secretary of State. It is my impression that the Secretary of State would have control over it. However, in order to make sure that I give the noble Lord a totally accurate reply, I wish to reflect on the matter.

Lord Clinton-Davis

My Lords, before the noble Lord sits down, perhaps he would care to reflect on what has been said in the debate and write to me in answer to certain aspects that were not dealt with after questions that I raised.

On Question, amendment agreed to.

Lord Clinton-Davis moved Amendment No. 16: After Clause 5, insert the following new clause:

("Restriction of classes of traffic

.—(1) A concession agreement may, subject to the provisions of subsection (2) below, provide for a special road scheme to prohibit from using the road those classes of traffic defined in classes III, V, VI, VII, VIII, IX, X and XI of Schedule 4 to the Highways Act 1980.

(2) A concession agreement providing for the prohibition of any other class of traffic than those specified in subsection (1) above; shall come into effect subject to the making of an order by statutory instrument by the Secretary of State, and no such order shall be made unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament").

The noble Lord said: My Lords, I beg to move Amendment No. 16 standing in my name and that of the noble Lord, Lord Tordoff. We seek in the amendment to make provision for parliamentary scrutiny of a concession agreement which proposes to exclude road traffic other than that which is excluded from motorways. So plans for privately funded lorry-only roads, for example, would be capable of implementation only if an order be approved by both Houses of Parliament.

The noble Viscount, Lord Falkland, proposed at Committee stage an amendment which would have required all concession roads to be open to motorcycles. The Minister opposed it and said that the amendment would make it, impossible to provide a normal motorway … let alone a car-only or lorry-only road, as is sometimes discussed in the context of private finance".—[Official Report, 4/12/90, col. 135.] In Committee we also debated an Opposition amendment which would have required all concession agreements to be laid before Parliament and subject to the negative resolution procedure. The Minister opposed that provision too on the grounds that requiring every concession agreement to go through such a process would lead to further uncertainty and delay.

In justifying the provisions of Parts I and II the Minister has on several occasions argued that under the terms of the Bill concession roads will be highways and that, the public will have their common law rights to use them as highways, subject, of course, to their paying the toll".—[Official Report, 4/12/90; col. 121.]

The Minister must concede that the introduction of lorry only roads would represent a significant departure from the principle that he himself has adumbrated. When the Minister was challenged about that point in Committee, he further said on 4th December: I said that there may be lorry-only roads in the future. There will be public highways but it is possible, as in the case of motorways, to restrict certain vehicles from using a motorway".—[col. 137.]

The exclusion of a range of traffic from a motorway is perfectly reasonable. We accept that. It would be unreasonable for us to assert that a similar approach should not be adopted on appropriate privately financed roads. However, what worries us is the exclusion of additional categories of traffic to create lorry or car-only roads. That would represent a significant departure from the practice which, apparently, the Minister has endorsed. We consider that a proposal to operate a concession road on such a basis would be sufficiently significant in terms of transport policy to warrant parliamentary scrutiny of the project. The Minister must concede that that would be unprecedented. I hope, therefore, that he will accept the amendment. I beg to move.

6 p.m.

Lord Boyd-Carpenter

My Lords, I hope that my noble friend will not accept this amendment. Apparently it would apply in the case of a small toll road built for a specific purpose and from which certain types of traffic were excluded. In such a case we would have to go through the whole procedure of affirmative resolution in both Houses of Parliament. I have an affection for the affirmative resolution procedure, as against others, in appropriate cases—the noble Lord knows that—but the provision seems to go too far, particularly as the amendment, as drafted, would apply in the case of the smallest road and the smallest exclusion.

Lord Tordoff

My Lords, I am not at all clear why people wish to exclude additional forms of traffic. I believe that current exclusions are made on the basis of safety, because it is considered that vehicles below a certain size cannot be driven safely on motorways. I am not at all clear why there is an urge to exclude various categories of traffic from these roads. I come back to the point that my noble friend Lord Falkland made on a previous occasion when he remarked that the provision seems extremely hard on motorcyclists. They do not cause much trouble on these roads and I do not see why they should be excluded.

Lord Brabazon of Tara

My Lords, when I looked at this amendment I was slightly puzzled as to what lay behind it. It seems to say that all roads subject to a concession should be for traffic of Classes I, II and IV, and any exceptions must be approved by Parliament. That is odd, because I do not know of any motorway which permits traffic of Class IV. However, Classes I and II are very extensive in themselves and cover most categories.

The amendment is also odd because except in a private or hybrid Bill it is not the function of Parliament to decide what kinds of traffic may or may not use a road. For an all-purpose road, that is done through traffic regulation orders following consultation with representative bodies; for a special road it is a little more formal as the classes of traffic that may use the road are prescribed in the special road scheme, which is almost invariably subjected to public inquiry, but not scrutinised by Parliament.

In this respect, a road subject to a concession will be like any other special road: the classes of traffic will be prescribed in the special road scheme which will override anything that may be said in the concession agreement. The agreement may specify a particular standard, but this will always be subject to anything specified in the scheme, or in any traffic regulation orders which may later be made. While I agree that there should be public discussion of what classes of traffic may use a concession road, I do not agree that the amendment is necessary to achieve that, or that it is the right way to do so.

I recognise that the main fear of noble Lords opposite is that concession roads will be authorised for certain types of traffic to the exclusion of others. I do not fully understand what is so bad about that. It happens on motorways, as I have said, and many other roads have weight or dimension restrictions of some kind. Perhaps we have appeared too evasive on the subject of car-only and lorry-only roads. Perhaps that is because we are not planning any such roads. However, if the private sector comes up with any viable schemes, as I believe it might at least where cars are concerned, we should certainly look at the proposals with an open mind and with considerable interest. Frankly, I do not understand why the noble Lord is getting so excited. The Government, and transport planners, do not have a monopoly of wisdom. One of the advantages of giving the private sector a wider role is the very fact that it has fewer prejudices and is prepared to work out new solutions to some of our rather old problems.

The noble Lord, Lord Clinton-Davis, made a point about public highways. A road that is open only to certain classes of traffic can still be a public highway.

Footpaths and bridleways are highways, but cars are not allowed to use them. The majority of concession roads probably will be designed for the motorway classes of traffic. However, we do not wish to inhibit innovation in the provision of roads. Therefore, on that principle I cannot accept this amendment.

Lord Clinton-Davis

My Lords, I cannot understand that argument. If the noble Lord thinks I am getting excited about this matter he should see me when I am really excited. This matter does not make me terribly excited, but I am a little concerned that the Minister should be so cavalier about it. The provision would only apply to extensions beyond the motorway extensions.

The Minister says that if we were to have Parliamentary scrutiny of a matter of this kind it would inhibit innovation. That is certainly not the case. Why should it have that effect? I repeat once again the Minister's words. In December last he said that, there may be lorry-only roads in the future. There will be public highways but it is possible, as in the case of motorways, to restrict certain vehicles from using a motorway".—[Official Report, 4/12/90; col. 137.] That provision is perfectly all right. All we are saying is that, if that should happen, the public through Parliament should be able to invigilate the matter. I cannot believe that there is anything radical or revolutionary about that process, or that it is likely to inhibit innovation. The Minister was talking about a quite different point to that which the noble Lord, Lord Boyd-Carpenter, addressed. The noble Lord said the provision would apply to tiny roads. Perhaps the amendment should have addressed that point. However, that is not the gravamen of what we are arguing here and the noble Lord, Lord Boyd-Carpenter, knows that. We are talking about the broader concepts.

In my submission the Minister has not been prepared to reconcile himself to some degree of public scrutiny for dealing with what would, on his own submission, be an unprecedented state of affairs. I find it extraordinary that he should be so cavalier about parliamentary scrutiny of a matter of this kind.

On Question, amendment negatived.

Lord Underhill moved Amendment No. 17: After Clause 6, insert the following new clause:

("Publicity for Toll Orders

.—(1) Before making a toll order a highway authority shall publish a concession statement as specified in subsection (3) below.

(2) The highway authority shall at the same time publish in at least one newspaper circulating in the area to which the agreement relates, and in the London Gazette, a notice:

1. (a) stating that a concession statement has been published;
2. (b) outlining the general route of the proposed road;
3. (c) naming places where a copy of the concession statement may be inspected by any person free of charge at all reasonable hours during a period specified in the notice, being a period of not less than 6 weeks from the date of the publication of the notice; and
4. (d) stating that, within the said period, any person may comment on the statement.

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

1. (a) any draft special road schemes and orders relating to the proposed road published under the provisions of schedule 1 of the Highways Act 1980;
2. (b) a draft of the toll order;
3. (c) details of agreements reached between the highway authority and the concessionaire in relation to:
1. (i) the payment of compensation to either the concessionaire or the highway authority;
2. (ii) the design, construction and maintenance of the road;
3. (iii) policing and the provision of other emergency services on the road;
4. (iv) monitoring of the performance of the concessionaire in the management of the road;
5. (v) the passing of the road to the highway authority; and
6. (vi) any other matters prescribed by the Secretary of State.").

The noble Lord said: My Lords, Amendment No. 17 in the names of my noble friend Lord Clinton-Davis and the noble Lord, Lord Tordoff, deals with the question of publicity for toll orders. The effect of the amendment would be to require the publication of key documents and proposals associated with the development of privately funded roads in a new document called a concession statement.

It will be agreed that the planning and approval process for any road scheme is necessarily complex, particularly for members of the public who are unused to legal and bureaucratic procedures. That will be even more so in the case of roads built under this Bill. In addition to planning permission a concession road will also require a concession agreement (under Clause 1), a special road scheme (under Clause 1) and a toll order (under Clause 6). All of those documents have an important role to play and both the special road scheme and the toll order have the merit of being subject to an advertisement, objection and inquiry procedure. As has been explained previously, however, there is some confusion as to which issues are to be dealt with in which document.

The most confusing document is the concession agreement. The Bill sets out some issues for inclusion in an agreement such as arrangements for compensating a concessionaire (in Clause 1(4)) and the exercise by the concessionaire of highway powers (in Clause 2). In addition, the Minister indicated in response to amendments at Committee stage that other matters such as the maintenance of concession roads should also be dealt with in the agreement. Therefore, at the very least it would be helpful if the Minister would agree to make available a note setting out a comprehensive list of the subjects which will be addressed in concession agreements.

A second and major difficulty with the concession agreements is that there is no requirement for them to be made public. Indeed, at Committee stage the Minister opposed an amendment which would have required them to be laid before Parliament. The Minister said: I should also emphasise that concession agreements are contracts and will, no doubt, contain material that is properly treated as commercially confidential".—[Official Report, 4/12/90; col. 128.] One aim of the amendment is to identify a range of issues to be covered in the agreements which cannot be held to be commercially confidential and to require publication of the arrangements reached in relation to them. The issues identified for publication are compensation, design and maintenance standards, policing, monitoring of the concessionaire's performance and hand-over arrangements.

A further aim of the amendment is to simplify the procedures for commenting on the various documents relevant to the approval of a concession road. The concession statement is designed to be a single document which pulls together the draft toll order and special road scheme, together with those aspects of the concession agreement which are not confidential and on which the public should be able to comment. Clause 6(4) already makes it clear that the toll order should be processed at the same time as the special road scheme. The amendment would help to achieve that objective as well as ensuring that people commenting on the order and the scheme had access to other key information about the arrangements for the planning and operation of the road.

I believe that if the amendment is accepted the result would be a more informed and effective scrutiny of proposals for concession roads. In no way do we oppose the principle but we believe that there should be a statement clearly laying out the various points instead of a number of separate documents as at present. I beg to move.

6.15 p.m.

Lord Brabazon of Tara

My Lords, there are two aspects to the concession statement proposed in the amendment. First, the published concession statement would include information on the scheme, its route and the toll order and would require the highway authority to invite comments from any person on those matters. The principle behind that aspect is quite reasonable and all of that information is required to be made available and open to public scrutiny in any case. The procedure in Schedule 1 to the Highways Act contains requirements to publish details of orders for road schemes which are more rigorous than those suggested in the amendment.

I also refer the noble Lord, Lord Underhill, to Schedule 2 to the Bill which will introduce similarly rigorous requirements for toll orders. We are as keen as the noble Lords opposite to ensure that local interests are fully protected and local people have the opportunity to voice their concerns. However, the Bill as drafted contains sufficient provision for that.

The second aspect is the publication of information on the concession agreement itself. As I said during Committee stage, concession agreements will be contracts and will contain information which is commercially confidential. I accept that the amendment requires only certain information about the agreement to be made public. However, I wonder what could be achieved by publication of those details. Compensation to the concessionaire or the highway authority is a matter for an agreement between those two parties. Both can be expected to ensure that they are properly protected because it will be in each one's interest to do so, particularly as we now have provisions in the Bill for the concession agreement to allow for compensation of either party.

Highway authorities will no more neglect their duties as highway authorities on signing a concession agreement as regards design, construction, maintenance or monitoring of the facility than if they were paying contractors to undertake the work in the conventional way. I have never heard it argued that details of contracts made by highway authorities should be published and commented on by the public. I therefore see no reason for requiring that of concession agreements.

I should also like to remind the Committee of the amendment which we have put down to Clause 1 requiring the Secretary of State to publish in an annual report to Parliament details of concession agreements which he has entered into during the course of the previous year. In no sense do we object to the principle that the public should be consulted on and Parliament informed of such road projects but rather to the way in which the amendments appear to wish to make the procedures so arduous as to discourage private sector participation.

I must therefore strongly resist the amendment as superfluous and burdensome. I hope that the noble Lord will agree to withdraw it.

Lord Underhill

My Lords, I am very grateful to the Minister for his detailed reply. However, there are a number of points which require careful consideration. The amendment is detailed in many respects, and there are points which I believe are worthy of consideration by the Committee. The Minister referred to the report to Parliament. However, at Committee stage he was not very happy with that situation but agreed to look at the matter. I am very pleased that he brought forward an amendment today.

There are aspects of the amendment which deserve serious consideration, and I should like to test the feeling of the Committee.

On Question, amendment negatived.

Clause 24 [Toll Orders]:

Lord Brabazon of Tara moved Amendment No. 18: Page 15, line 9, at end insert: ("( ) Where a roads authority enter into a contract such as is mentioned in subsection (7) above and the person who has contracted to design or construct the road fails to complete the road in accordance with the contract he shall, without prejudice to any other liability, pay the authority such compensation in respect of costs incurred by them as may be determined in accordance with the contract. Those costs shall be taken to include the relevant administrative expenses of the authority, including an appropriate sum in respect of general staff costs and overheads.").

The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 4. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 19: Page 15, line 15, at end insert: ("( ) In respect of any calendar year during which—

1. (a) the Secretary of State enters into a contract for the design and construction of a road which is to be subject to a toll order,
2. (b) there is opened to public use a new road subject to a toll order for which the Secretary of State is the roads authority,

the Secretary of State shall lay before Parliament a report stating the number of such contracts entered into or, as the case may be, the number of such roads opened during the year and containing such other information relating to such contracts or roads as appears to him to be appropriate.

The report shall be laid on or before 31st July in the following calendar year.").

The noble Lord said: My Lords, the amendment was spoken to with Amendment No. 5. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 20: After Clause 26, insert the following new clause:

Extension toll orders

(" .—(1) Where a toll order authorises the special road authority to assign their rights under the order to charge and collect tolls and—

1. (a) the authority fail to do so;
2. (b) such an assignation is terminated within the toll period; or
3. (c) the authority wish to charge and collect tolls beyond the toll period,

a further order (an "extension toll order") may be made to authorise the authority to charge and collect tolls for a new toll period.

(2) An extension toll order shall not authorise the special road authority to assign their rights under it to charge and collect tolls.

(3) An extension toll order relating to a special road for which the Secretary of State is roads authority shall be made by the Secretary of State; and an extension toll order relating to a road for which the roads authority is a local authority shall be made by that authority and confirmed by the Secretary of State.

(4) Where an assignation under section 25(1) terminates by effluxion of time, an extension toll order must be made before, and shall have effect from, the end of that period.

(5) The following provisions of this Act apply in relation to an extension toll order as in relation to a toll order under section 24(1)— section 26(1) and (2) (the toll period) section 27 (amount of tolls chargeable by special road authority), section 29 (application of enactments relating to monopolies, etc.), section 30 (variation and revocation of order), and sections 32 to 36 (further provisions with respect to tolls).

(6) The power of the Secretary of State to make or confirm an extension toll order shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament; and the provisions of Schedules 1 and 2 to the Roads (Scotland) Act 1984 (procedure in connection with orders) shall not apply to an order under this section.").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Clause 8 [Amount of tolls chargeable by concessionaire]:

Lord Tordoff moved Amendment No. 21: Page 5, line 18, leave out subsection (1) and insert: ("(1) The Secretary of State may, by order, require a toll order authorising the charging of tolls by a concessionaire to specify the maximum tolls which may be charged. (1A) The Secretary of State shall make an order under this section where—

1. (a) the road to which the toll order relates consists of or includes a major crossing to which there is no reasonably convenient alternative; or
2. (b) he considers that there is no reasonably convenient alternative route of a similar standard to that provided by the road to which the toll order relates.").

The noble Lord said: My Lords, we return to the question of charging tolls in monopoly situations. Noble Lords who were not present during the Committee stage will not be aware that I moved, with great persuasiveness, a change to the Bill. I pointed out that the Bill only allows for maximum tolls to be imposed by the Secretary of State by order in one circumstance; namely, estuarial crossings with certain defined limits. I pressed the Minister to accept that there were circumstances in which there could be monopoly or near monopoly situations that were not confined to estuarial crossings.

The Minister refused to accept that argument. However, what he said seemed to be somewhat contradictory. For instance, he said that: Clause 8 was intended to protect consumers from excessive tolls in monopoly situations such as estuarial crossings". [Official Report, 4/12/90; col. 158.] I have no problem at all with that statement. I am all for protecting the customer from monopoly situations, whether they be public monopolies or private monopolies (for the benefit of the noble Lord, Lord Boyd-Carpenter). However, Clause 8 applies not to monopoly situations such as estuarial crossings: it applies to monopoly situations only in the case of estuarial crossings. The noble Lord went on to say: Of course difficult situations may arise that one cannot foresee. That is why we have made provision for the estuarial crossings". [Official Report, 4/12/90; col. 159.]

In fact the Bill provides for only one relatively straightforward situation, which has been foreseen, and there is no scope in the Bill to deal with situations that have not been foreseen. If the Minister wishes to protect customers from monopoly situations and wants to provide for difficult situations that one cannot foresee, I trust that the principles underlying this amendment will be acceptable to the Government.

I make no pretence that the wording of the amendment is perfect. I merely want to get into the Government's mind the fact that the provisions that they have made to protect customers from monopolies are not sufficiently flexible to deal with situations which in my opinion could arise. I beg to move.

Lord Brabazon of Tara

My Lords, I am grateful to the noble Lord for explaining the amendment and indeed returning to this subject. As I admitted at Committee stage, it was a little difficult in the case of estuarial crossings to find a definition.

I find a number of difficulties with this amendment. The first difficulty which it would cause lies in the procedures proposed. Subsection (1) would in effect require the making of an order which would require the toll order, a quite separate order, to specify a maximum toll, where the toll road was a monopoly. That would mean two orders for each scheme. The advantage of the current provision is that, whatever regulations the Secretary of State makes under Clause 8(3) regarding major crossings, the definition, which in the present version is clear, will apply in all cases. If the likely competitive environment had to be decided case by case, there would be room for interminable discussions at public inquiry, which might in any case not lead to a satisfactory conclusion. I could not agree with an extra layer of uncertainty and delay if it did not serve any valid purpose.

Why, I would ask, is there a need for an order to be made in each separate case of a scheme which is a major crossing without alternatives, when a simple, general provision like Clause 8(3) has the same effect but without the obstacle of a superfluous order?

I turn now to the proposed requirement in subsection (1A). It provides that a convenient alternative should be restricted to routes of a similar standard. That is very unsatisfactory. First there are the difficulties in defining what is meant by "similar standard" and establishing whether two roads are of it. But even if the provision were workable, it could well encourage promoters to come forward with new schemes which offered less capacity and were therefore less beneficial because of the attraction of being able to charge market tolls rather than regulated tolls. I do not think that your Lordships desire such a perverse result. Our clear intention with the monopoly provisions of this Bill is to establish a clear framework for the private sector to operate in, not to distort the market in such a way as to make toll roads unviable.

For all those reasons, I am afraid that I cannot accept the amendment.

Lord Tordoff

My Lords, I do not know what is wrong with me but I do not seem to be able to get across to the Government a simple proposition. The Government do not believe in monopolies. They have put into this Bill a provision to stop people exploiting monopoly situations in the case of estuarial crossings. I am trying to say that that may not be the only case where a monopoly exists.

I do not care whether the wording of this amendment is right or wrong or whether there is some better way to deal with the matter so that there are not two sets of orders. All that I am trying to get across is the simple principle, which the Minister seems to be trying to avoid, that there may be monopoly situations which are not catered for in the Bill and which ought to be catered for in the Bill. Try as I may, I do not seem to be able to put it across to the Minister.

I hope that he will think again about this matter before the Bill comes to another stage in this House or moves on to the other place. Clearly I shall not make any more progress at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

Clause 27 [Amount of tolls chargeable]:

Lord Brabazon of Tara moved Amendment No. 23: Page 16, line 31, leave from ("unless") to end of line 33 and insert ("an extension toll order is made in respect of that road.").

The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 15. I beg to move.

On Question, amendment agreed to.

Clause 11 [Variation or revocation of toll order]:

Lord Brabazon of Tara moved Amendment No. 24: Page 7, line 2, leave out subsection (1) and insert: ("(1) A toll order may be varied or revoked—

1. (a) by an order made by the Secretary of State if he is the highway authority for the road, and
2. (b) by an order made by the highway authority and confirmed by the Secretary of State in any other case.

(1A) The Secretary of State may confirm an order made by another authority either without modifications or subject to such modifications as he thinks fit.").

The noble Lord said: My Lords, in moving this amendment, I should like, with the leave of the House, to speak also to Amendments Nos. 25, 26, 28, 29, 30 and 31.

These amendments concern toll roads for which a local authority is the highway authority, whether or not the road is subject to a concession. Under Clause 6 a toll order for a local road is to be made by the local highway authority and confirmed by the Secretary of State, but under Clause 11 as drafted only the Secretary of State has the power to vary or revoke a local authority order.

On reflection, there is no point in making that distinction and in practice I am sure that the Secretary of State would not wish to vary or revoke over the head of the local highway authority an order affecting a local road. These amendments will place the local highway authority in the same position with regard to variation and revocation orders as they are in with regard to the original toll order. It is for the authority to make the order, but the Secretary of State must confirm it before it can come into effect. The confirming instrument will be subject to negative resolution, as will a variation or revocation order made by the Secretary of State in relation to a toll road for which he is the highway authority.

There are two sets of amendments: one for England and Wales and one for Scotland. The effect is the same in each case. I am sure that local highway authorities will welcome this change and I commend it to the House. I beg to move.

Lord Clinton-Davis

My Lords, I have no great quarrel with the Minister about this. I am sure that he will be glad to know that. I should like to raise two issues which relate to the second part of his proposed amendment. As I understand it, there is no requirement imposed on the Secretary of State to consult the local highway authority before any question arises of modifying an order made by that authority. That is a matter that needs to be examined, or is at least something to which the Minister should respond.

What this amendment also does is to stress the considerable differences between Clause 6 and Clause 11. Clause 11 implements Schedule 2 which sets out a detailed procedure for making and confirming a toll order. But these requirements are not imposed in relation to the variation as distinct from the making and confirmation of a toll order, although I think the Minister will have to concede that the variation could be just as significant as the making of an order itself. But there is a requirement that variation or revocation orders should be subject to the negative resolution procedure in both Houses of Parliament. Will the Minister be kind enough to deal with those points? I shall certainly not challenge the amendment, but I should like those further particulars.

6.30 p.m.

Lord Brabazon of Tara

My Lords, I am not sure that at this stage I can go much further than I have already gone. Of course, I hope that I can do so. The Secretary of State will certainly consult in such a case, but this amendment should be welcomed by local highway authorities because it puts them on the same footing as the Secretary of State, as they are under Clause 6. I hope that that will be most welcome.

I meant to imply that I shall look at the questions which the noble Lord has just raised. If I can expand on them further, which I am sure I shall be able to do, I shall write to the noble Lord before the next stage.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments No. 25 and 26: Page 7, line 7, leave out ("Secretary of State") and insert ("highway authority"). Page 7, line 9, leave out subsection (4) and insert: ("(4) An order under this section made by the Secretary of State, and an instrument made by the Secretary of State confirming an order under this section made by another authority, shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. The provisions of Schedule 2 (procedure in connection with toll orders) do not apply.").

The noble Lord said: My Lords, I spoke to Amendments Nos. 25 and 26 with the last amendment. With the leave of the House I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

Lord Brabazon of Tara moved Amendment No. 27: After Clause 11, insert the following new clause: