New Roads and Street Works Bill [H.L.] (Hansard, 18 June 1991)

HL Deb 18 June 1991 vol 530 cc58-158 58

§ 4.4 p.m.

§ The Minister of State, Department of Transport (Lord Brabazon of Tara)
My Lords, I beg to move that the Commons amendments be now considered.

§ Moved, That the Commons amendments be now considered.—(Lord Brahazon of Tara.)

§ Lord Clinton-Davis
My Lords, I have taken the unusual course of speaking on this Motion because of a serious state of affairs which occurred in another place which, in my submission, amounts to a breach of faith, a breach of undertaking, on the part of the Government. I feel that the Minister should be given the opportunity to hear what we have to say about this matter, which concerns Amendment No. 85 relating to Clause 90, so that he can have a further opportunity to reflect on the situation in order to remedy the mischief that has arisen.
Although I have intimated my anxieties about the matter to the Minister— and he will acknowledge that —I understand that he is unable to respond positively to the submissions which I have made to him. I hope that that will not be the case because the issue that I want to rehearse before your Lordships now is not a party issue. It is germane to the measure of co-operation which the Government can seek to enlist on the part of local authorities, which is a matter which goes to the heart of the implementation of the Bill.
The Bill started its passage in this House. Parts III and IV of the Bill were based essentially on the recommendations of the Horne Report of 1985 which produced a package of measures. A consensus was built between the public utilities and the highways authorities. That consensus was reinforced by the Government's own response to the Horne Report four 59 years or so later in 1989 and by discussions which continued right up to and during the passage of the Bill through this House and in another place.
Over and over again during the passage of the Bill the noble Lord, Lord Brabazon, stressed how unwise it would be for this House in its deliberations to unravel that hard fought consensus. He emphasised that the goodwill of the public utilities and the highways authorities, which had taken a considerable amount of time and effort to procure, should not be endangered and was required to implement the Bill successfully.
All that is being put at risk by a capricious action on the cart of the Minister for roads in another place. That action has given rise to great anxiety on the part of all the local authority organisations, Conservative and Labour-led alike. They have taken the unusual step of sending a letter of protest—in the case of the public utilities on the 10th of this month and in the case of the local authority organisations on the 11th of this month—to the Prime Minister and to the Secretary of State for Transport. Such highly authoritative organisations do not act in that way unless they have grave cause for concern.
Moreover, the action that has been taken must have caused considerable embarrassment to the noble Lord, Lord Brabazon, who is, so far as I am concerned, guiltless in this matter. I have made that plain to him in personal conversations. I make it plain on the Floor of the House today.
So that your Lordships can appreciate what has happened I should like to set out briefly the background to the threatened clause, Clause 90. Responsibility for the final reinstatement of holes in the road is transferred under Parts III and IV of the Bill from the highways authorities to the public utilities, as recommended by the Home Report. That was accepted by the local authority organisations. The quid pro quo in the package, which was accepted by Home and by the Government in their 1989 response, was that, as considerable expertise had been built up by the workforces of local authorities in that sphere of activity, the public utilities should be able unequivocally to invite local authorities to tender for the work.
The Government agreed that they would make provision in the Bill to deal with that situation. Initially, the Bill omitted that provision, but, in order to meet: the concerns that were expressed by the Opposition and, more importantly in this instance, by the local authorities and the public utilities, the noble Lord, Lord Brabazon, undertook to remedy the omission. To his great credit, having presumably consulted his colleagues—it is inconceivable that he would not have done that—he honoured that undertaking to the letter in Committee. Hence we have Clause 90. The House accepted the amendment without demur. No one spoke against it.
Perhaps I may make it clear that the new clause gave no new powers to local authorities. It simply made it clear that, when a public utility invited tenders to carry out works for it or on its behalf, local authorities would encounter no legal impediments in tendering for that work. It left no legal doubt about their ability to do that, as there had been something of 60 a question mark over the matter. As a result, local authorities acquired no new rights in insisting on being able to undertake the work and no rights about being included on the tender list of a public utility. That was the situation when the Bill left your Lordships' House.
The amendment that was proposed by Mr. Riddick and opposed by Mrs. Ruddock—I hope that that does not lead to any confusion—in the other place provided the Secretary of State with the power to cause Clause 90 to cease to have effect. Admittedly, it is dressed up in a form of words that camouflages some of the intention, but that is the reality. When the Minister decides that it should cease to have effect after a transitional period—that period is not specified; no idea is given as to how long that will be —it can come to an end. That is what has given rise to the protest.
The Minister in another place should have honoured what his noble friend in this House agreed to unequivocally instead of fatally undermining his action. Instead, he accepted the amendment. He asserted that he envisaged that the power provided for in the amendment would be used after a transitional period. The question of a transitional period was totally new. It was never mentioned in this place by the noble Lord, Lord Brabazon. It was a totally fresh argument.
The weakness of the Government's position is emphasised by the specious arguments that were adduced by the Minister in another place. He said that the Horne Report had been completed a long time ago. A good deal of water had passed under the bridge since then. That is true. The Home Report was completed in 1985, but discussions have gone on incessantly since that time. There was nothing in those discussions that envisaged any departure from the Home Report in that significant way. Apparently, the Minister could not have noticed that it was the noble Lord, Lord Brabazon, who accepted the position in Committee in this House. It was his amendment, not ours, and it was accepted without demur.
The Minister in another place argued that it was wrong in principle for highway authorities to work for private concerns other than for a transitional period. That argument was not adduced here either. It is an argument of convenience. The local authorities should be required to facilitate the implementation of the new legislation and should then bow out, during which time they would be put to considerable financial expenditure in order to do that. That argument, therefore, will not wash.
Whether privatised or not, the public utilities should be able to serve their customers in the most profitable way. That is being denied to them under the terms of the amendment. Is it not conceivable to the Government that the direct labour organisation of a local authority could help a public utility to fulfil its responsibilities under the legislation more effectively and more profitably with the expertise that it has accumulated over the years? Why deny the public utilities that opportunity? That is what the public utilities themselves ask of Ministers.
The noble Lord envisaged no such argument when he spoke on the matter. It is therefore our case that 61 this was an unprincipled argument which was wrongly accepted by the Minister in another place and which should be put right here. I am advised that it is unusual for the House to take that course of action, but the circumstances that give rise to the present position are unusual. It is for the Government to seize the opportunity. It may be inconvenient for this Bill to go back to another place at this late stage, but that is no argument when it comes to curing something that has occurred in that way.
I therefore hope that your Lordships on all sides of the House will agree with me that it is not a simple party point. I am not making it in that way. An unequivocal commitment has been given. I can express it no better than the noble Lord himself who said in Committee: The amendments fulfil an undertaking I gave at Second Reading to the noble Lord, Lord Underhill. I said then that highway authority direct services organisations would be allowed to tender for work. Doubts have been expressed, although we were clear in our own mind that they would be able to do so. However, as doubts had been expressed, we tabled these amendments".—[Official Report, 6/12/90; col. 281.] What was said in another place ran completely counter to that unequivocal assertion, and it is wrong. It is wrong that it should have happened. It is wrong that the noble Lord should have been embarrassed. The arguments that have been adduced in support are utterly spurious.
The Government in another place were reckless as to the consequences of what they did. They failed to appreciate the reliance that was stated over and over again by the noble Lord about the need for future co-operation from local authorities and public utilities in relation to the Bill. They were reckless as to the need for co-operation in many other fields. That has been put in jeopardy by what has happened here on what one would have thought was an innocuous, though important, and uncontroversial Bill. It has been contemptuous of the Minister, but, more than that, it has been contemptuous of your Lordships. I therefore argue that the Government should take the opportunity to reflect further on the matter at this late stage. That is why I have drawn these matters to your Lordships' attention at this stage before we reach Clause 90 and Amendment No. 85.

§ 4.15 p.m.

§ Lord Tordoff
My Lords, as someone who took part in all the proceedings on the Bill, perhaps I may intervene at this stage. I apologise to your Lordships for the fact that I shall not be able to stay throughout the whole of the discussions on the Commons amendments. The reason for that is entirely your Lordships' fault, if I may say so, in that you decided that I should be a member of the Committee considering the Committee procedures of your Lordships' House which meets at half-past four. Since it is an important committee I think that it has to take some precedence over the other amendments in this Bill. However, I want to support in principle the remarks of the noble Lord, Lord Clinton-Davis, about the very unfortunate situation with which your Lordships' House is faced.
62 This was largely an uncontroversial Bill. As the noble Lord, Lord Clinton-Davis, said, a lot of thought and work has gone into it and a lot of compromises have been made. In relation to virtually every other amendment before the House this afternoon, the Government have done an extremely good job. The honourable gentleman in another place, Mr. Freeman, did a lot of work on it even after the Bill had left your Lordships' House. It emerges from the Commons for once, if I dare say so, in a better state than when it went there because further compromises were made. So it is a good Bill. It is just this one single item in relation to Clause 90, which in itself may be considered annoying and minor but nevertheless of some significance. It has upset the balance between the powers of the utilities and the highway authorities.
But for this House the matter is more serious than that, as the noble Lord, Lord Clinton-Davis, suggested. Like the noble Lord, I totally absolve the Minister from any shadow of guilt in this unfortunate matter; he has behaved with absolute integrity from the beginning of the Second Reading of the Bill throughout the whole process. His words at Second Reading, speaking about the noble Lord, Lord Underhill, were: The noble Lord asked finally about direct labour organisations being allowed to tender for the work. In their original response to the Horne Report, the Government accepted that although local authorities would no longer have the statutory right to supervise utility works or carry out the permanent reinstatement, they would continue to be able to tender for utility reinstatement works if they wished. That remains the position, and suitable provision will be made". [Official Report, 20/11/90; col. 674.] Suitable provision was made and all credit must be given to the noble Lord, Lord Brabazon of Tara, for allowing that provision to be made.
It may be argued that the amendment tabled in another place caught the Government by surprise. I believe that there is more a degree of inadvertence than of conspiracy in this matter. Nevertheless, your Lordships' House is faced with a situation which is rare and which I believe should never happen; namely, that an assurance is given to this House that the Government will accept certain matters and it is not honoured. This Chamber will not work if the Opposition parties, Cross Benches and, indeed, the Government Back Benchers cannot accept assurances when they are given. Frankly, for them to be overturned when the Bill reaches another place is unacceptable for the working of this Chamber.
It may be argued that the amendment that was moved is a minor provision which need not be put into operation if the Secretary of State so decides. Nevertheless, it has changed the whole meaning of the amendment and what the Minister said at Second Reading; namely, that the Government maintain this position and have done so all along. The Government's position now is that they will maintain this position until they decide to change it, and that is a very different situation.
I am very glad that the noble Lord the Leader of the House is in his place. This is a matter which touches on his role as leader of not just the Government party but all Members of your Lordships' House. I do not wish to go any further but this is a serious matter. 63 Perhaps we shall go into a little more detail when we come to Amendment No. 85. In the meantime, I hope that the Government can step back from what I believe is a very dangerous position.

§ Lord Mason of Barnsley
My Lords, I should like briefly to intervene and support the protest made by my noble friend from the Front Bench. As the Government know, the Association of Metropolitan Authorities made an agreement with the Government that in this New Roads and Street Works Bill, in Clause 90 as originally drafted, the direct labour organisations within local authorities would have the right to tender for reinstatement work. We should note that it is to tender only and not to carry out the reinstatement work as of right. It is just the right to tender.
In the original draft of the Bill, the agreement of the AMA and the Government was honoured but now, owing to a Back Bench Tory amendment in another place, the Government are about to renege on the deal and give the Minister the power, if Amendment No. 85 is carried today, to allocate all the work to private contractors and the DLOs will be squeezed out altogether.
This will be seen as a blatant anti-local authority act. It destroys the package that was agreed by the AMA and the Government. It breaks a promise that local authorities would have the right to tender. It will certainly sour the working relationships between all local authorities and the Government. It is a breach of a deal and the Government will be accused of cheating. Therefore, before Clause 90 is reached, I believe that the Government should think again.

§ Lord Renton
My Lords, perhaps I may very briefly comment. I find it strange that on the Question of whether the Commons amendments be now considered we should enter into a full debate—as has been attempted—on just one of those amendments; namely, Amendment No. 85. I should have thought it usual to wait until we reach that amendment and then consider it on its merits. The idea that we should postpone consideration of this vast mass of amendments, which are agreed, merely because eventually we may come to one with which some Members disagree is an unusual proceeding in your Lordships' House.

§ Lord Clinton-Davis
My Lords, perhaps the noble Lord will give way for a moment. Does he appreciate that what I said—I did it with a not very happy heart —was to give the Minister, even at this late stage, an opportunity to hear what has been said and reflect further on it? If we had done that in relation to the debate itself, no such opportunity would have arisen. That is why I spoke.

§ Lord Renton
My Lords, all I shall say in reply is that the Minister is quite capable of defending himself when the right moment arrives.

§ The Lord Privy Seal (Lord Waddington)
My Lords, I shall do my best to assist the House. I understand full well that there are strong feelings about the decision made by the Government to accept an amendment to 64 Clause 90 in another place in the light of what was said by my noble friend Lord Brabazon in this House. But it is right, as the noble Lord, Lord Tordoff, said, that we are now discussing one single matter concerning Clause 90 and nothing else at all in the case of a Bill which, in the words of the noble Lord, has in fact been improved in another place when debated there.
Surely the simple question that we must ask ourselves now is whether we should proceed in the normal way to debate the amendments to the Bill, and in particular the amendment carried in another place to Clause 90, or whether we should take the wholly exceptional course of refusing to consider the Commons amendments at all. I respectfully submit that the latter course would be most unusual and also not very profitable.
Your Lordships want to discuss whether in fact it was right for the Government to accept the amendment to Clause 90 in another place. If we can now proceed with discussing the amendments which are before the House, in due course those noble Lords who feel strongly that it was wrong for the Government to accept an amendment to Clause 90 in another place will be able to say so in debate. If noble Lords still feel dissatisfied with the explanation given by my noble friend Lord Brabazon at the end of the debate they can show their dislike of the Government's decision in another place by voting against the amendment to Clause 90 in the Lobby of this House. That is surely the correct way to approach the matter.
As has been said by the noble Lords, Lord Clinton-Davis and Lord Tordoff, no one accuses my noble friend of having behaved improperly in any way. My noble friend stated the Government's position as it was when the Bill was before this House. Subsequently the Government decided to change their position and accepted an amendment tabled in another place. Your Lordships now have to consider whether or not the Government were right to take that course. The right place to take that decision is surely after debate on the amendment to Clause 90.

§ 4.30 p.m.

§ Lord Cledwyn of Penrhos
My Lords, I know that the House will be grateful to the noble Lord the Leader of the House for his intervention at this stage. Nevertheless I strongly believe that my noble friend Lord Clinton-Davis is fully justified in raising the matter at this stage in view of the treatment accorded to Clause 90 when the matter was before another place.
This is not a run-of-the-mill complaint against a clause in the Bill. My noble friend has raised an issue of considerable principle which this House will certainly wish to consider between now and the debate on Clause 90. When Clause 90 is debated the Minister may say that there is no time to consider the issue. My noble friend has given the House time to pause and to consider the implications.
The narrow point that I wish to make is this. The Bill has been welcomed by Members on all sides of this House. We appreciate the Bill. When my noble friend Lord Underhill raised the matter in the House, the 65 noble Lord, Lord Brabazon, having considered what was said, made a response that was welcomed in all parts of the House. We are grateful to him for that. We absolve the noble Lord from any blame whatsoever. He has always proved himself to be a most honourable Member of this House and a most honourable Minister; we all appreciate that.
Having said that, from my experience of 40 years in both Houses, I take the view that the way in which this matter was dealt with in another place was disgraceful. The matter should not have been dealt with in that way. There is much that I could say but do not wish to do so at this stage. The efficacy of this important Bill depends on the maintenance of trust between the Government, local authorities and the utilities. The Bill will not work unless that trust exists. The action of the Minister for Roads in the House of Commons has breached that trust and created a feeling of dissatisfaction and insecurity which was summarised in the letter which the local authority associations sent to the right honourable gentleman the Prime Minister.
In those special circumstances, my plea to the noble Lord the Leader of the House and his noble friend Lord Brabazon, is that the matter be given very careful thought before we begin to debate Clause 90. I make that plea as strongly as I possibly can. Such a situation does not arise all that often but where we have an important Bill which has support from all parts of the House, we should do our very best to ensure that it reaches the statute book without flaw and without complaint. Therefore I plead with the noble Lords opposite again to consider the matter very carefully.

§ Lord Boyd-Carpenter
My Lords, perhaps I may put to my noble friend the Leader of the House the possibility of deriving advantage from the admittedly unusual procedure that your Lordships' House has been following for the past few minutes in raising this matter on the Motion to consider the Commons amendments.
If the Government wish to give further thought to the matter and in view of its obvious importance with regard to relations between the two Houses, this procedure gives an opportunity before we reach Amendment No. 85 for either my noble friend the Leader of the House or my noble friend Lord Brabazon to consult with the Secretary of State and the department to see whether or not it would be wise in the circumstances to insist on the Commons amendment.
Having had some ministerial experience, I fully understand that it would be extraordinarily difficult for the Minister to give such an undertaking straight away. He must consult his right honourable friend. However, we shall no doubt take a few minutes while considering Commons amendments to reach Amendment No. 85. Therefore there would be an opportunity for him urgently to consult either with the department or, preferably, with his right honourable friend. I suggest that noble Lords from all quarters of the House are unhappy about the situation not because of the intrinsic importance of the matter but because it seems to go against the normal procedures 66 which govern relations between the Houses. I am sure that my noble friend the Leader of the House is anxious above all to prevent that.
Can we not therefore be given an indication that in the interval—whatever length it may be—before reaching Amendment No. 85, my noble friend Lord Brabazon will consult his right honourable friend or the department to see whether they wish to insist on the amendment?
Perhaps I may further suggest that, if we reach Amendment No. 85 too quickly, it will be perfectly possible by a Motion to defer the taking of that amendment until the end of proceedings.

§ Lord Waddington
My Lords, I take note of what my noble friend says. Obviously we shall make what use we can of the time available between now and reaching that amendment. However, at the end of the day your Lordships will have to make a judgment as to whether the amendment to Clause 90 is right or wrong. We must hear the arguments on the merits.

§ Lord Tordoff
My Lords, before the noble Lord sits down, can he give us some comfort? He speaks as Leader of the House. I was careful not to go into the details of the amendment. I did not seek to put my argument on that basis. As his noble friend Lord Boyd-Carpenter has indicated, and as the noble Lord the Leader of the House realises, the issue goes far beyond the amendment. It goes to the relationship between various parts of this House, and between this House and another place.
Therefore I beg the noble Lord to put on his hat as Leader of the House and to give the House some comfort by stating that he understands the difficulty that we face. That does not relate to the merits of the amendment but to the procedural difficulty which exists because a promise which has been given by a Government Minister in this House has been at least partially overturned in another place.

§ Lord Waddington
My Lords, with the greatest respect, there is no procedural difficulty whatsoever. It is in noble Lords' hands now to decide whether or not they like or dislike the amendment to Clause 90 which was carried in another place.
My noble friend Lord Brabazon stated the position at the time of the debate in this Chamber. Subsequently an amendment was moved in another place and, perfectly correctly, I would submit, the Government made a decision as to whether to accept the amendment. They decided to accept that amendment and it is now for your Lordships to say whether or not you believe that the Government were right to accept it. There is nothing more in the matter than that.

§ Lord Campbell of Alloway
My Lords, with respect to the noble Lord the Leader of the House, having listened to this, surely there is very much more to the matter. The noble Lord the Leader of the House asks: is this amendment right or wrong? However, that is not the question which has been before your Lordships' House. The question is: ought, in the circumstances and having regard to comity between the two Houses, this amendment to have been made at 67 all? That is the issue, and it is on that issue that noble Lords on all sides of the House are pleading for time and accommodation.
We are masters of our own procedure. We can do what we like. We could adjourn the House if the House so wished. We have asked for time. Surely we could be given time in which to consider the situation and the Government likewise could be given time to consider it. Noble Lords with great experience who have held office— I have never held office and never shall—have given their views; one defers to them and hopes that some accommodation may be reached.

§ Lord Waddington
My Lords, in answer to my noble friend Lord Boyd-Carpenter I have already said that we must make what use we can of the time available between now and when Clause 90 is reached. If your Lordships do not wish to deal with Clause 90 when it is reached, again that is a matter which lies in your Lordships' hands. I am perfectly prepared to accept the suggestion made by my noble friend Lord Boyd-Carpenter.

§ Lord Shepherd
My Lords, will the noble Lord the Leader of the House indicate whether the Government would accept such a Motion? There has been a debate on this matter and those who are present here understand the issue. This is not a full-time House and many noble Lords who are present have other occupations. A debate may take place when those present may have no cognisance of the issue.
As there is no great pressure upon the House in terms of legislative time, if the noble Lord the Leader of the House would indicate that the Government will accept such a Motion, I think that most noble Lords would be more than satisfied.

§ Lord Waddington
My Lords, I have already said that I am happy to accept the suggestion made by my noble friend Lord Boyd-Carpenter. There is a Motion before the House now. It is the Motion which is objected to by the noble Lord, Lord Clinton-Davis. Of course it is perfectly open to the House to continue with the debate on the Motion that this House should consider the amendments. However, I have already recommended to your Lordships that that would not be an appropriate course because I can now follow the suggestion made by the noble Lord, Lord Boyd-Carpenter. We can proceed with the business of the House in the normal way and, when we come to Clause 90, noble Lords will be able to express their views on it.

§ On Question, Motion agreed to.

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