HL Deb 18 June 1991 vol 530 cc96-111

85 Clause 90, page 52, line 17, at end insert: '( ) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'

Lord Waddington

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 85. I shall speak also to the parallel Scottish amendment, Amendment No. 148.

We come now to the only amendment to the street works parts of the Bill made in the other place that was not a government amendment. I shall explain why the Government felt able to support the amendment and commend it to your Lordships. Amendment No. 85 allows the Secretary of State, by order, to end the permissive power in Clause 90 for street authorities and district councils to execute street works by agreement on behalf of undertakers. Amendment No. 148 does the same for Scotland.

Clause 90 was of course inserted by the Government during our earlier consideration of the Bill. We accepted that allowing local authorities and their DLOs to work for the utilities, where the utility so wished, was an inherent element of the street works reform proposals which should be expressly provided for in the Bill for the avoidance of doubt. However, upon further consideration prompted by concerns raised in another place, the Government have concluded that in the longer term there will be no good reason for the continued involvement of local authority direct labour in the carrying out of street works once the utility companies and private contractors are able to carry out the works satisfactorily themselves.

In other words, the Government changed their policy in the light of new arguments that had not been advanced in the House. Therefore, while it would not have been appropriate to drop Clause 90 from the Bill altogether, as some had argued in another place, it was appropriate to include a "sunset" provision which would enable the Secretary of State to signal in advance when the relevant power of local authorities would end and so allow local authorities and utilities to plan for the changed circumstances.

We accept that local authorities should continue to have power to do work where the utilities wish them to do so in order to allow for an orderly transition to the new arrangements. My right honourable friend the Secretary of State would undertake full consultation with those involved before proposing to use the power to appoint a day from which the clause would cease to have effect. I commend the amendment to your Lordships.

Moved, That the House do agree with the Commons in their Amendment No. 85.—(Lord Waddington.)

Lord Clinton-Davis

My Lords, that will not do. I do not find it convincing if the Government are saying that they were caught by surprise by a Government Back-Bencher seeking to reverse the reasoning of the Minister in this place. If they were so caught out, it is merely incompetence. I do not believe that that was the case. If they were not caught by surprise, they must have thought about their position. They must have discussed the matter with the noble Lord, Lord Brabazon, who, with the approval of the House, took such a strong position and behaved with total integrity, as has been said. They must undoubtedly have consulted the other organisations concerned—the public utilities and the local authorities—on whom they were relying to such a great extent, as the Minister has confirmed, to implement the Bill.

If the Government have not done that, and they clearly have not—I know they have not, and the noble Lord the Leader of the House has no doubt now been informed that there has been no such consultation—why not? I am not talking merely about the amendment. What about the implications of the amendment and the need to consult local authorities about whether the Government were reneging on such an important matter and had therefore broken trust? What explanation have the Government given to the local authorities and the public utilities? The answer is that the Government were honing inertia into a fine art on this issue.

The Government had decided, extraordinarily, that no one was to benefit from any consultations. That will not do. In the eyes of those who have, in a sense, taken the extraordinary step of writing to the Prime Minister and to the Secretary of State, the Government have broken a promise which the Minister in this House properly gave. Why has there been no response from Ministers to the important letters that they have received? It is not as though there had been no opportunity to reply. The letters were sent and, I believe, received the same day—on 10th and 11th June. The Government have had ample opportunity to consult since the matter was discussed in Committee in another place.

The burden of showing that the matter has been dealt with appropriately has not been discharged by the noble Lord the Leader of the House. Nevertheless, his intervention—for which I thank him, although I do not agree with him—is an effective response to the noble Earl, Lord Onslow, who said that this was a storm in a tea cup.

I understand that the local authority associations wrote to Mr. Freeman after Second Reading on the point made by Mr. Graham Riddick and that a reply was received after Report. Consultation was clearly needed and was not undertaken. So be it. That causes the proposal to be fatally flawed.

I turn now to the consequences of the amendment. What transitional period do the Government have in mind? The local authorities are surely entitled to know. It is unacceptable to expect them to decide upon their ability to tender if the period that the Government have in mind is to be short. This is not a matter where the Government should go out to consultation later with the local authorities. Perhaps they will do, but it is not good enough. The local authorities should have been told before; they ought to be told now the extent to which utilities may wish to take advantage of the authority's ability to tender. If the Government wish at least in part to remedy the mischief that has been done, I suggest an alternative. Although we do not believe that the amendment should proceed, the Government could indicate now that they do not intend to use the power provided by the amendment for a period of several years. I should have thought 10 years, but perhaps your Lordships may think that excessive. If the Government do not use the power for a number of years, at least it would give local authorities sufficient confidence to encourage them to gear themselves to help overcome the transitional problems which have evidently concerned Ministers. I ask the Minister to indicate whether the department intends to approach the problem in that way.

Another matter which the Government could consider, but evidently they have not, is deploying the affirmative procedure. Neither of those propositions would totally satisfy me because it is wrong in principle. Nonetheless, the Government might restore some trust in themselves vis-à-vis other undertakings if they were to approach the matter in that way. We have had no hint of such a possibility.

I end on this note. Over and over again during the passage of the Bill, the Government have said that they would consult local authorities and public utilities about this, that and the other. We welcomed it, although we felt that in some instances it might have been recorded on the face of the Bill. We accepted it in good faith. I think now that we were wrong; we should have insisted on everything relating to consultation being included on the face of the Bill. Be that as it may, I do not believe that the Government have discharged the burden that rests upon them today to satisfy the House that the amendment should be accepted. I therefore hope that in due course, at the end of the debate, your Lordships will feel it appropriate to vote against this new clause.

6 p.m.

Lord Tordoff

My Lords, I do not wish to over-egg the pudding and return to subjects with which we have already dealt. This is an unfortunate matter because it has begun to divide the House on party lines, which is sad in relation to this Bill. I said at Second Reading that I hoped that so far as concerns this part of the Bill relating to the Home Report, the less tinkering your Lordships did with the Bill the better. I have maintained that position, as I hope noble Lords who were present will agree, throughout the proceedings in the House. The Bill had much thought put into it. There was a long gestation period before the Government gave their response to the Home Report and an even longer gestation period before the Bill was brought before your Lordships' House. That spirit was maintained throughout the whole passage of the Bill through the House.

The trouble is that this is a bad amendment. It does precisely what we sought not to do; it tinkers with what was put on to the face of the Bill. It tinkers in a way which is unacceptable to the local authorities and the highway authorities. Noble Lords may say, "Well, of course they would object; they lose the opportunity to tender for work". It is also objected to by the National Joint Utilities Group which sees the amendment removing the possibility of wider competition for the jobs that need to be done. It prevents a major and in many cases skilled competitor having the ability to tender in the future.

Noble Lords may be encouraged by the fact that the Leader of the House referred to this as a "sunset" amendment. As this year the sun has not yet risen, perhaps we may hope that the time will be somewhat delayed. However, the coming events cast their shadows before them, and that is the problem. Local authorities will not be able to invest in further training, which is required under the provisions of the Bill, with further skills being put into their workforce to make sure that they are up to the standards required, if they do not know when their ability to tender will be removed. That, as much as anything, is the problem with the amendment. I suspect that it was included in the Bill because an honourable gentleman in another place had trouble with his local authority direct labour organisation. I have some sympathy with him from that point of view. However, in many places throughout the country DLOs are capable of doing this job and the utilities would wish them to do so if they could put forward a competitive tender. All that is being asked is that that position should be restored. I invite your Lordships to reject the amendment today.

Lord Boyd-Carpenter

My Lords, it would help your Lordships' consideration of the amendment if, when he comes to reply, my noble friend gives an indication as to the Government's view on the likely timing of the exercise of power which the amendment gives them. It is not unreasonable that local authorities, for the reasons that have been given—and I shall not weary your Lordships by repeating them—should have some idea as to how long the position will remain open for them to be employed in appropriate cases.

I am no great admirer of the direct labour system, as I have already made clear to your Lordships on many occasions. However, fair treatment would be greatly helped if the Government, without binding or committing themselves, could give an indication of the timescale they have in mind in respect of the exercise of this power. It would be extremely helpful to many of us if they were to do that.

On the general aspects of the matter, I have never taken a strong view on the merits. My regret has been that it has been an issue which has given rise to a certain amount of perfectly sincere and genuine heat. I regret even more that it has caused some embarrassment to a much respected Minister. The sooner we conclude the matter the better. Perhaps it would help if we could be given some idea of the Government's timing intentions.

I rather liked the idea of the noble Lord, Lord Tordoff, that this power should preferably be exercised by affirmative resolution and affirmative order. However, I suppose that at this stage procedurally there may be difficulty in introducing it. After all, we are discussing Commons amendments to the Bill. Short of going through the whole rigmarole again and sending the Bill back to the Commons with an amendment—which is a heavy-handed procedure in a measure of this kind—I cannot see how we could introduce it procedurally. I agree that if we could do so, on merit it would probably be a more satisfactory way of exercising the power. The matter is of importance.

Lord Mason of Barnsley

My Lords, I rise to oppose the amendment. Those of your Lordships who have taken an interest in the matter will remember that the Horne Report, published in 1985, recommended much needed and sweeping changes to the legislation on utility street works. Some of the proposals favour the undertakers, some the local authorities, but the proposals were welcomed by both sides as a package which would benefit the road user.

Since then, there has been excellent co-operation between local authorities and the undertakers, on the understanding that the whole package would be implemented. Considerable progress has been made in agreeing arrangements which will be necessary when the Bill is implemented. Current legislation—the Public Utilities Street Works Act 1950—provides for undertakers to carry out temporary reinstatements and for highway authorities to deal with the permanent ones. This work is normally carried out by direct labour organisations in those local authorities which operate them. The permanent reinstatement that is carried out in my local authority is worth hundreds of thousands of pounds a year.

Promises have frequently been given by Ministers that local authorities would be able to tender for this work under the new legislation. Following representations, Clause 90 was duly included in the Bill. That clause permits a highway authority to carry out reinstatement work on behalf of undertakers. It does not give the work automatically to the DLO. It merely empowers the DLO to tender for the work. Clearly the DLO will not be awarded the work unless its tender is the lowest.

This amendment gives the Secretary of State the right to scrap the clause or the undertakings to the DLOs at any time he chooses. I oppose the amendment on the following grounds. First, Clause 90 as originally drafted merely empowered a DLO to tender for reinstatement work and not to carry it out as a right. The removal of DLOs from tender lists will not only deprive DLOs of work but also undertakers of potentially their most competitive contractor. That will result in a higher than necessary cost to the undertaker. The only people to gain will be the private sector contractors.

Secondly, promises given by Ministers over a number of years that local authorities' right to tender was an integral part of the package are now seen as worthless. Thirdly, this blatantly anti-local authority amendment destroys the balance of the package which in turn is likely to sour the previous excellent working relationships that existed between local authorities and undertakers to the detriment of all. The Barnsley Metropolitan Borough Council, like many local authorities in the country, will feel aggrieved at the change the Minister has made. The authorities feel badly let down. No doubt this anti-local authority amendment will sour relations between the Government and the Association of Metropolitan Authorities. I believe it to be a breach of a deal, and I believe therefore that the amendment should be rejected.

Lord Skelmersdale

My Lords, I have listened to practically all the discussions this afternoon bar the first five minutes. I missed the first five minutes as I did not expect this matter to arise at the very beginning of your Lordships' consideration of this part of the Bill. I am very glad that tributes have been paid to my noble friend Lord Brabazon as regards his handling of the Bill in its earlier stages in your Lordships' House. During the earlier discussions it occurred to me that there but for the grace of God go I or any other noble Lord who either has or will hold high office in your Lordships' House.

One of the reasons for the position we are now in is that it is easy for Ministers in the House of Lords to become insular. Their political horizons tend to be bounded by the parameters of the department they have the honour to serve at any particular time. If I may make a cheap joke, one may currently refer to that phenomenon in the Department of Transport as tunnel vision. I am surprised however that this discussion has extended not only to my noble friend's officials but also to his fellow Ministers in this case. I agree with noble Lords opposite that my noble friend must have discussed the government amendments with fellow Ministers. Someone should have picked up the fact that for many years it has been general government policy that elected authorities, whether of central or local government, should not do anything that could be done better or cheaper by the private sector. I wonder how many of my noble friends voted against the competitive tendering legislation when it was before your Lordships' House. I suggest that very few, if any, did so.

It was therefore something of an anachronism that the Government, in the shape of the then Parliamentary Under-Secretary in another place, accepted the recommendations of the Home Report on reinstatement that the noble Lord, Lord Mason, has just referred to. As a result of subsequent events, the Government have been accused of bad faith. I believe that charge to be unfounded. How would noble Lords have felt if the Government had torn up our amendments? What would my noble friend have thought of such a step? My noble friend and other Members of your Lordships' House would have been rightly furious at such a step. That is a hypothetical case but if it had occurred it could have caused the resignation of my noble friend. However, the Government have not taken such a step. As I understand the position, the Government have agreed with my honourable friend Mr. Riddick that until the private sector is up to the job, local authorities may tender for the work. When the private sector can come up with the goods, the Secretary of State is empowered to prohibit local authorities from any further tendering in this area. In other words, local authorities are given temporary powers in this regard.

I believe that approach keeps faith with my noble friend Lord Brabazon and, more importantly, with the actions he took in your Lordships' House, and also with the long-term objectives of government policy; namely, to disengage direct labour organisations from operations that can be performed perfectly well by other bodies. Like my noble friend Lord Boyd-Carpenter, I am no great fan of DLOs but they have a role on some occasions. I believe they have a role for a short period in respect of street works. However, I do not believe that role will continue for ever and a day. I hope it is of some comfort to my noble friend when I say that it is a far, far better thing he does now than he did before.

6.15 p.m.

Lord Renton

My Lords, I hope it will not embarrass any noble Lord on either side of the House if I draw attention to the fact that I am very puzzled indeed by the drafting of Clause 90(1) as it appears in the Bill. Indeed I cannot make sense of it. Therefore I would not be exceedingly sorry if one day the power to be given in Amendment No. 85 were to be used. I invite the attention of noble Lords to subsection (1) which states: A street authority or district council may enter into an agreement with an undertaker for the execution by the authority or council "— I then come to the words—: on behalf of the undertaker of any street works". I do not know why those words are there. If we wish to find the true meaning of that phrase, we have to turn to the definition of "undertaker" which is to be found on page 26 in Clause 44(4) which states: In this Part 'undertaker' in relation to street works means the person in whom the relevant statutory right"— The subsection refers to a statutory right and not to an opportunity or a contractual obligation— is vested (in the capacity in which it is vested in him) or the licensee under the relevant street works licence, as the case may be". It would make much greater sense to my simple mind if the words in subsection (1) of Clause 90, on behalf of the undertaker were omitted. I have to confess however that I had not previously spotted that point and it is not in issue this afternoon. I am merely saying that I feel it a duty to invite the attention of the House to the fact that if we give power to the Secretary of State to do away with this clause, he may one day improve the Bill.

Lord Sefton of Garston

My Lords, the noble Lord the Leader of the House said at the beginning of the debate that there was no good reason to continue with the present arrangements with regard to the reinstatement of road works following the work of a contractor. However, there are very good reasons for doing so. There are good reasons why local authorities should continue on a long-term basis the job of reinstating roads and pavements that have been damaged by the work of undertakers. That is to the benefit of the undertakers.

I do not know how many of your Lordships live in areas where the cable companies are tearing up the roads and installing cables for cable television. The situation is deplorable. It is evident that the people employed by the cable undertakers are amateurs and were recruited straight from the dole. Their method of reinstatement of the pavements—

Lord Tordoff

My Lords, I hope that the noble Lord will forgive me. It seems to me that in the speech which he is now making he is going right back to the Second. Reading of the Bill. If he looks at the provisions of the Bill he will see that the possibility of amateurs doing that job is ruled out by the provisions of the Bill. That is part of the deal between the local authorities and the utilities. That is why it is a mistake at this stage to go back to square one, where we started so many weeks ago. It seems to me that that is what the noble Lord is doing.

Lord Sefton of Garston

My Lords, with all due respect to the noble Lord, I do not know why it is that whenever I get to my feet somebody decides that what I say is irrelevant or that I am going back to square one. I am not doing any such thing. I am replying to the point that has been made that there is no need for the present situation regarding the reinstatement of footways and roads to continue. That is the point to which I was replying. It has been made in the debate. The noble Lord is shaking his head. I could suggest why he is shaking his head, but I shall not do so in polite company.

Lord Tordoff

My Lords, I was shaking my head because that is not the position under the Bill.

Lord Sefton of Garston

My Lords, the position under the proposed amendment is that at some time in the future local authorities will be prevented from tendering to reinstate roads. I am trying to put the case that that should not happen. I am trying to put to this House one reason, which is the benefit to the undertaker. I drew the parallel with the present system whereby roads are being torn up by people who are new to the work and leave a terrible mess behind which the local authority will ultimately have a responsibility to put right. At some time in the future somebody will trip over the mess that has been left behind. That person will not sue the people responsible, but will sue the local authority for not maintaining the footpath. The Minister is shaking his head now. Will he tell me that nobody can sue the local authority for not keeping the footpaths in good repair?

Lord Brabazon of Tara

My Lords, it would have been helpful if the noble Lord had studied the Bill more carefully. The whole point of the Bill is that it places the duty for making the reinstatement upon the utility rather than on the local authority.

Lord Sefton of Garston

My Lords, nowadays if the local authority fails to keep a footpath in good repair and somebody trips, rather than as previously when non-feasance applied, it can be sued because it did not do something that it is considered that it should have done. Previously it had to be proved that a local authority was guilty of failing in its duty before it could be sued. That no longer applies. The point I am trying to make is that it would be of advantage to the undertakers to have an agreement with local authorities so that once the work has been done and the road has been reinstated the local authority will be responsible. In order to achieve that, there has to be an agreement between the undertakers and the local authority.

If that is not apparent I hesitate to say anything else. If it is true, it would be to the advantage of the undertakers to employ the local authority, by tender if necessary, to reinstate the footpath. That being so, the undertakers would know where their responsibility lay.

If that does not happen, who will be responsible for any accidents caused by failure to reinstate pathways correctly? Believe me, it will be tremendously difficult to decide. One cannot just dig a hole and fill it immediately. That is not possible. It has to be reinstated, allowed to subside and then be reinstated again. Therefore, establishing responsibility for any bad work could lead to some very costly law suits.

In regard to the amendment moved by the Government, there is a breach of trust. The Government have breached the trust between local government and central Government. At one time if that happened it would be a question of resigning. If somebody asked a Minister to break an undertaking or a promise given to somebody he would not do it. He would rather resign. That is what would have happened in this situation. It is not a small matter of a storm in a tea cup; it is a very important issue. We should stick by what we said in the first place.

I should like to examine other points which give me cause for concern. Yesterday in this Chamber a government Minister said that the Government were neutral on a Private Member's Bill in spite of the fact that that Private Member's Bill proposed to disapply statutes that were agreed by this House and the other place and which are the law of the land. That is not a situation on which to be neutral. The Government should have had something to say about that, but they did not.

The cost of operating local authorities' responsibility for roads which are not properly reinstated will be enormous. In over 50 years in local government I cannot remember when a promise or a pledge by a Minister of State has been so lightly overturned. If it is right to be neutral about changing Acts of Parliament and to overturn an undertaking freely given to local authorities, that would represent a major change in the attitude of central government towards local government.

Finally the company carrying out the work—or the cable company—can be sued in certain circumstances. But who will be the undertaker? If the cable company employs another company to carry out the work and that company defaults or goes bankrupt, who then will be responsible for any claims made by members of the public for injury caused by the works? It would come back to the local authority. Therefore, from all points of view, in my opinion it is essential that the local authorities and the undertakers should cooperate. The amendment prevents them from doing so.

Lord Brabazon of Tara

My Lords, I think that it would be useful—

Lord Underhill

My Lords

Lord Brabazon of Tara

My Lords, the noble Lord has had his say from that side.

6.30 p.m.

Lord Underhill

My Lords, I have not. I have not spoken for myself during the whole passage of the Bill. I should like to intervene briefly, not from a political or party angle, but as President of the Association of Metropolitan Authorities.

I have considered the Horne Report carefully for several years. We pressed for action to be taken following the report. In May 1989 the Government issued a consultation document, paragraph 21 of which states: The Government's response proposed that Local Authorities should be able to tender to carry out street works for statutory undertakers. Provision will be made to allow this with effect from the time at which undertakers become responsible for all reinstatements". When the Government issued their response to the Home Report, the local authorities generally welcomed it. At meetings of the Association of Metropolitan Authorities, I listened to and read quite a number of reports dealing with the work of the Highway Authorities and Utilities Committee. I referred to that joint committee in previous debates. It consists of the highway authorities, representing the local authorities, and the public utilities.

Throughout, the local authorities and public utilities were keen to ensure that there was no political argument on the matter. They wanted to ensure that the best possible agreement was reached between them. As other noble Lords said, they insisted that there should be a balanced package. The letter that the public utilities group sent to the Secretary of State on only 10th June emphasised that it was a balanced package that it could jointly present to its members as the correct way forward for the future.

Throughout, the public utilities group has not argued about the provision for the tendering requirement because it recognises the expertise and experience in many of the DLOs of local highway authorities. There was no insistence that the highway authorities should be given the tenders, but they should at least be given the opportunity to tender. A decision can then be taken as to whether to accept the tender. I do not know whether the Minister will deal with the reason that the Government changed their view. That change of view will upset the public utilities as much as it will upset the local authorities. I must emphasise that all four local authority associations, whether Conservative or Labour, believe that there is no argument about it. The public utilities joint committee is upset with the decision and the change of policy. It is worried as to what it will mean for maintenance work.

I appreciate the support of the noble Lord, Lord Boyd-Carpenter, but it is not a question of the Government saying that they will not introduce the provision until January 1992, or whenever it might be. The least that the local authorities and public utilities group requires is an undertaking that no change will be made within a certain number of years, whether it be five years, 10 years or however many years. That is the least that the local authorities can ask for.

I must emphasise the point with which I started: this is not a party political matter. We must not contemplate the possibility of the utilities falling out with the highway authorities when, at present, they are in complete agreement. They have helped to produce a balanced package. We must also avoid the Government giving the impression that, once again, local authorities are being pushed to one side. That will not help future discussions and relationships with highway authorities. I hope that the Government will seriously consider what has been said this afternoon.

Lord Brabazon of Tara

My Lords, of course we shall seriously consider what has been said this afternoon. In the meantime, perhaps it would be useful if I reminded the House exactly what the amendment does and does not do.

Amendment No. 85 was added to the Bill as a Back-Bench amendment in another place to give the Secretary of State power by order to end the ability of local authorities to carry out street works by agreement on behalf of undertakers. We listened to the arguments of another place and, as has been said, we reviewed our policy. Those arguments were raised both on Second Reading and at following stages of the Bill, not suddenly at the last stage of the Bill, as might have been implied by some of the remarks made this afternoon.

We support the amendment because it will allow the Government to take a view on how long it is reasonable to allow local authority direct labour to continue to undertake work that the private sector may be able to carry out satisfactorily for it. We are not talking about removing Clause 90 altogether and so ruling out all possibility of local authorities tendering for street works if the utilities so wish. My noble friend Lord Skelmersdale made that point. Clause 90 could have been removed altogether in the Commons. It was not. We are leaving open the option of bringing those arrangements to an end in due course once the utility companies and private contractors are seen to be in a position to undertake all such works themselves.

The noble Lord, Lord Clinton-Davis, asked what consultation we have had. We have not yet consulted the utilities and the local authorities about the amendment, but my honourable friend the Minister for Roads and Traffic gave an undertaking, which I think is a much more important one, that there will be consultation before the power is used. I am happy to reiterate that assurance today.

My noble friend Lord Boyd-Carpenter and the noble Lard, Lord Underhill, asked about the timing of the introduction of the powers in the amendment. We have been criticised today for taking a decision on the matter in haste. I can assure the House that we shall not hurry into a decision on how long a transition should be allowed. There will be genuine consultation on the matter before any decision is taken to use the power. I hope that that reassurance is helpful.

The noble Lord, Lord Clinton-Davis, said that we had no.. yet responded to the letters written by the various local authority associations. My right honourable friend has carefully considered the expression of concern from the local authorities in the letters of 11th June. They will receive a reply shortly, taking lull account of the further views expressed in the House during the debate.

The noble Lords, Lord Clinton-Davis and Lord Tordoff, thought that it was unreasonable to expect local authorities to gear themselves up to tender for works in what is only a transition period. Each local authority will need to make a judgment on what resources it requires for the remaining utility reinstatement work and what their training needs are. That would have been the case whether or not the DLOs were to be prevented from doing work after a transitional period. Eventually, every street work will require a qualified operative and supervisor. If local authorities do not provide them, the private sector will do so. I hope that local authorities take sensible decisions in the context of the local market conditions and in the interests of residents and road users in their areas.

The noble Lord, Lord Tordoff, suggested, perhaps rightly, that the utilities themselves wanted those powers to be kept for the direct labour organisations. I accept that utilities want the maximum choice of contractors to tender for work, and the use of DLOs may he essential in certain areas. That is one reason why we accept that there must be a transitional period before any use of the sunset provision is made. As I said, we shall listen carefully to the views put forward by the utilities as well as by the local authorities.

The noble Lords, Lord Mason of Barnsley and Lord Underhill, suggested that that sabotaged the consensus that had been reached between the local authorities and the utilities. The Government are anxious to maintain the consensus between the directly interested parties that has marked this part of the Bill. It is essential that local authorities and utilities should co-operate if the new arrangements are to work properly.

However, that did not mean that the concerns raised in another place should have been ignored. We were bound to reconsider whether there was any need for DLOs to do reinstatement works for private utilities indefinitely. We therefore concluded that the sunset provision was an acceptable and prudent addition to the Bill. What has changed since 1986, when the Government gave their response to the Horne Report, is that all the major utilities are now in the private sector. It is increasingly anachronistic to be encouraging contractual arrangements between them and public sector DLOs. We accept that, in areas in which DLOs have customarily done most utility reinstatement work as of right, there may be a need for their continuing involvement on a contractual basis until the private sector is ready to take over full responsibility.

Lord Clinton-Davis

My Lords, perhaps the noble Lord will allow me to intervene. I am much obliged to him for the care that he has taken to respond. Perhaps he could help me in one respect. Under the public procurement directive which now exists, am I right that in certain instances direct labour organisations employed in other member states would be entitled, after the transitional period, to tender for work—in fact that is the requirement of that directive—whereas direct labour organisations in the United Kingdom would be debarred from so doing?

Lord Brabazon of Tara

My Lords, if I may say so, that is an entirely new point that the noble Lord has sprung upon me and I am afraid that I do not have an answer to it. What the noble Lord suggests is extremely unlikely. After all, we are talking about only fairly small works and I suspect that they would fall below the cash limit to which the provisions referred to by the noble Lord apply.

I shall try to answer all the points that have been made during the debate. It was suggested by my noble friend Lord Boyd-Carpenter that this measure might have been better done by affirmative resolution. I say to him and other noble Lords—and my noble friend made the point that it is probably too late now anyway —that the negative resolution allows the opportunity for further debate by Parliament if the House so wishes.

My noble friend Lord Renton raised an interesting point on Clause 90 itself. The DLO would be doing the work on behalf of the undertaker because it is the undertaker which has the statutory right to carry out street works. The wording of Clause 90(1) makes that clear. The DLO has no street works powers of its own which could duplicate those of the undertaker.

Lastly, I turn to the remarks made by the noble Lord, Lord Sefton. I wish that the noble Lord would study a little more carefully the provisions in the Bill in order to gain a full understanding of what exactly it is all about. The noble Lord mentioned the example of the cable television operators. They will have to meet nationally prescribed standards for workmanship, qualifications of workmen, and so on. They will be fully responsible for defective work and any claims for accidents attributable to dangerous reinstatements. Whoever carries out the work for the undertaker, the undertaker is responsible under the Bill for the standard of work. That is on whom the blame (if that is the word) will ultimately fall.

In the light of the clear undertakings that have been given, and that I have repeated today, for further consultation before any use of the order-making power is made, I hope that your Lordships will accept this amendment. I believe that it adds a useful flexibility to the new Act.

6.43 p.m.

On Question, Whether the House do agree with the Commons in their Amendment No. 85.

* Their Lordships divided: Contents, 123; Not-Contents, 68.

Division No. 1
CONTENTS
Alexander of Tunis, E. Constantine of Stanmore, L.
Allenby of Megiddo, V. Craigavon, V.
Ampthill, L. Craigmyle, L.
Astor, V. Crickhowell, L.
Auckland, L. Cross, V.
Bauer, L. Davidson, V. [Teller.]
Beaverbrook, L. Denton of Wakefield, B.
Belhaven and Stenton, L. Dilhorne, V.
Bessborough, E. Dudley, E.
Blatch, B. Eccles of Moulton, B.
Blyth, L. Eden of Winton, L.
Boardman, L. Elles, B.
Borthwick, L. Elliot of Harwood, B.
Boyd-Carpenter, L. Elliott of Morpeth, L.
Brabazon of Tara, L. Faithfull, B.
Brentford, V. Flather, B.
Brougham and Vaux, L. Fortescue, E.
Butterworth, L. Fraser of Kilmorack, L.
Caithness, E. Gardner of Parkes, B.
Campbell of Alloway, L. Glenarthur, L.
Carnegy of Lour, B. Grantchester, L.
Carnock, L. Greenway, L.
Cavendish of Furness, L. Hailsham of Saint Marylebone, L.
Coleraine, L.
Colnbrook, L. Halsbury, E.
Colwyn, L. Hanson, L.
Hardinge of Penshurst, L. Norfolk, D.
Harmar-Nicholls, L. Onslow, E.
Harmsworth, L. Orkney, E.
Harvington, L. Orr-Ewing, L.
Henley, L. Park of Monmouth, B.
Hertford, M. Peyton of Yeovil, L.
Hesketh, L. [Teller.] Portsmouth, E.
Hives, L. Pym, L.
Hooper, B. Rankeillour, L.
Howe, E. Renton, L.
Hylton-Foster, B. Romney, E.
Jeffreys, L. Saltoun of Abernethy, Ly.
Johnston of Rockport, L. Sandys, L.
Kimball, L. Seccombe, B.
Kinloss, Ly. Selborne, E.
Kinnaird, L. Sharpies, B.
Kinnoull, E. Shrewsbury, E.
Knollys, V. Skelmersdale, L.
Knutsford, V. Stanley of Alderley, L.
Lauderdale, E. Stodart of Leaston, L.
Lindsey and Abingdon, E. Strathclyde, L.
Long, V. Strathmore and Kinghorne, E.
Lucas of Chilworth, L. Swinfen, L.
Lyell, L. Swinton, E.
McColl of Dulwich, L. Teviot, L.
Macleod of Borve, B. Thomas of Gwydir, L.
Malmesbury, E. Trumpington, B.
Marlesford, L. Tryon, L.
Merrivale, L. Ullswater, V.
Mersey, V. Vaux of Harrowden, L.
Mottistone, L. Waddington, L.
Mountevans, L. Wade of Chorlton, L.
Mowbray and Stourton, L. Westbury, L.
Munster, E. Whitelaw, V.
Murton of Lindisfarne, L. Winterbottom, L.
Nelson, E. Young, B.
NOT-CONTENTS
Addington, L. Longford, E.
Airedale, L. Lovell-Davis, L.
Ardwick, L. Macaulay of Bragar, L.
Attlee, E. McIntosh of Haringey, L.
Beaumont of Whitley, L. Mackie of Benshie, L.
Birk, B. Mason of Barnsley, L.
Blease, L. Milner of Leeds, L.
Boston of Faversham, L. Monson, L.
Brooks of Tremorfa, L. Morris of Castle Morris, L
Carmichael of Kelvingrove, L. Mulley, L.
Carter, L. Nicol, B.
Clinton-Davis, L. Perry of Walton, L.
Cocks of Hartcliffe, L. Peston, L.
David, B. Phillips, B.
Dean of Beswick, L. Pitt of Hampstead, L.
Desai, L. Prys-Davies, L.
Dormand of Easington, L. Rea, L.
Ezra, L. Robson of Kiddington, B.
Falkender, B. Rochester, L.
Falkland, V. Russell, E.
Fitt, L. St. John of Bletso, L.
Gainsborough, E. Shepherd, L.
Gallacher, L. Stoddart of Swindon, L.
Graham of Edmonton, L. [Teller.] Strabolgi, L.
Taylor of Blackburn, L.
Grey, E. Tordoff, L. [Teller.]
Hatch of Lusby, L. Turner of Camden, B.
Hollis of Heigham, B. Underhill, L.
Howie of Troon, L. Varley, L.
Jacques, L. Wallace of Coslany, L.
Jay, L. White, B.
Kilbracken, L. Wilson of Langside, L.
Kilmarnock, L. Winstanley, L.
Kirkhill, L. Young of Dartington, L.
Lockwood, B.

1* The Tellers for the Non-Contents reported 69 names. The Clerks recorded 68 names.

Resolved in the affirmative, and Motion agreed to accordingly.

6.51 p.m.