Transport Bill

HL Deb 30 October 2000 vol 618 cc667-739

3.7 p.m.

Lord Macdonald of Tradeston

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Macdonald of Tradeston.)

On Question, Motion agreed to.

Clause 116 [Postponement of scheme]:

Lord Dixon-Smith moved Amendment No. 105: Page 71, line 23, at end insert— ("( ) The authority or authorities in question shall compensate any operator of a local service for any losses incurred by it as a result of such postponement.")

The noble Lord said: My Lords, there is a certain irony in the fact that we are meeting this afternoon to discuss a transport Bill when we have encountered a degree of disruption to the transport system across the country which has reached quite unprecedented levels. Some of that disruption is due, unfortunately, to what I would refer to as human intervention. For that reason, perhaps this afternoon we should draw a veil over that particular subject because, to a certain extent, points have already been made about it. More important, however, is that it would not now be appropriate to embark on that kind of discussion. Other occasions will arise, in particular when more is known about the detailed effects of the storm and the railway engineering works. It will be more appropriate to deal with the subject at that point.

Everyone in the House today will be aware of the difficulties faced by the transport sector as a result of last night's most extraordinary storm. However, the damage and disruption has not been confined to the transport sector. The storm has caused immense personal damage to many ordinary citizens. I am sure that we all wish them a speedy return to what can only be described as the status quo ante. I say that because I believe that, once a little time has elapsed, the disruption that has been caused both to property and to personal health will be seen to be even more damaging than the present disruption to the transport system.

This small group of amendments deals with quality partnership schemes and quality contracts. Amendment No. 105 addresses a small point. Where a quality partnership scheme is brought into being, the authority bringing forward such a partnership scheme has the power to delay its implementation. Having arrived at all the agreements and having set it up, it can at that point unilaterally delay matters. We do not think that that is likely to be fair to the contractor or contractors with whom the transport authority has made the agreement. The amendment therefore seeks to insert additional wording into the Bill which would provide that if costs are incurred as a result of any disruption or delay to the introduction of a scheme, the relevant contractors should be compensated for any financial loss they suffer.

Amendment No. 110 concerns quality contract schemes, which are different from quality partnership schemes in that they set out to create a local monopoly in bus services. We do not like the idea of creating monopolies at all and we do not think this is an appropriate way forward. However, we recognise that the Government are determined to go down this particular route. One also has to recognise that occasionally the problems of providing a bus service are so difficult that such arrangements may appear to be the only way to proceed.

Amendment No. 110 deals with one of the two particular problems that we have in relation to the Bill at the moment. The Bill provides that a scheme may be made if it is the only practical way to implement the policies of the transport authority's bus strategy and if it is economic, efficient and effective. Those words are a well-known mantra with which we all try to work—but they are a mantra. Bearing in mind that a quality contract scheme can last for up to 10 years, we do not believe that that should be allowed to stand.

It is perfectly conceivable that, over the period of a quality contract scheme, circumstances may change before the scheme is due to cease. They could change for a whole host of reasons—developments in the community, new employment moving into an area and so on. Amendment No. 110 seeks to refer back the length of the scheme to the purposes for which it was originally created and, if those purposes are no longer being fulfilled, the quality contract scheme should cease. That is not an unreasonable argument and I ask the Government to consider the issue carefully.

Amendment No. 111 refers back to the question of delay. The same power of unilateral delay exists for quality contract schemes as for quality partnership schemes, where the transport authority can devise a quality contract scheme and then delay its implementation. The amendment seeks compensation for losses as a result of a postponement. These are matters of justice and good practice. I commend the amendments to the Government. I beg to move.

The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty)

My Lords, I am grateful to the noble Lord for his explanation of what lies behind the amendments. I hope that I can persuade him that they are unnecessary. I note his position in relation to quality contracts but, within that, we have to make sure that they operate fairly.

Perhaps I may deal first with Amendments Nos. 105 and 111, both of which require a local authority to compensate bus operators if they suffer loss because the local authority has postponed a quality partnership or a quality contract. We must first recognise that the probability of any loss to a bus operator may not be very great. Indeed, the main reason for the postponement provisions is exactly so that bus operators should not suffer loss. The provisions are there, for example, to cover cases such as where a local authority is not able to proceed as quickly as it had hoped and, therefore, postponing the scheme cart also postpone the need for a bus operator to spend money.

It must be stressed also that both postponement provisions have attached to them a requirement to consult bus operators who would be affected by the scheme. Therefore, operators can make their views firmly known. The extent of a postponement is in any case limited to 12 months in the case of a quality partnership and to a period to be specified in regulations in the case of a quality contract.

Moreover, in the very rare case where a loss may arise, a bus operator may also be able to seek judicial review, with the possibility that the court may direct the local authority to proceed. It is even possible in extreme cases that damages may be payable in such circumstances. Such legal rights exist already without the need for a special provision in the Bill.

On Amendment No. 110, I have some sympathy with the noble Lord. I can see that it may well be appropriate to end a quality contract scheme if circumstances change in a way in which the essential criteria for such a scheme—as set out in pursuance of Clause 123(1)(a) and (b)—no longer applied. But I should draw the noble Lord's attention to Clause 131(4)(a), which provides already for a local authority to revoke a scheme if the conditions in Clause 123(1), are no longer met with respect to it". I do not think that Amendment No. 110 is necessary. I hope that, on reflection, the noble Lord will feel that his objectives have been met already and that he will not pursue these amendments.

3.15 p.m.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his response. In regard to Amendments Nos. 105 and 110, I note what the Minister said about the possibility of a judicial review in the peculiar circumstances—it is to be hoped that they will be peculiar— where someone may suffer a financial loss. The reason for getting this provision onto the face of the Bill is that it would obviate the need for a judicial review. The process of litigation is inevitably and always greatly expensive, and I had hoped to avoid that necessity.

In relation to Amendment No. 110, I heard what the Minister said about Clause 131(4)(a), which I shall check and cross reference. I shall study the noble Lord's reply. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 118 [Regulations about schemes involving existing facilities]:

[Amendment No. 106 not moved.]

Clause 123 [Quality contracts schemes]:

[Amendment No. 107 not moved.]

Clause 124 [Notice and consultation requirements]:

[Amendment No. 108 not moved.]

Clause 126 [Making of scheme]:

Baroness Scott of Needham Market moved Amendment No. 109: Page 76, line 36, leave out ("earlier than 21") and insert ("later than 6").

The noble Baroness said: I rise to move Amendment No. 109, which is tabled in the names of my noble friends Lord Bradshaw and Lady Thomas.

Amendment No. 109 seeks to reduce the period required to introduce a quality contract from the 21 months proposed in the Bill to a period of six months. From these Benches we argued in Committee that a shorter period is necessary to preserve the interests of passengers, given that consideration will be given to quality contracts only where there is deemed to be some failing in the bus network.

At that time the Minister said that 21 months represented a reasonable time for the operators to wind down existing operations, to create new networks and to make their preparations. However, since we were in Committee, the Transport (Scotland) Bill has been considered in the Scottish Parliament and a six months introductory period has been agreed there. We touched on the Scottish question in our discussions last week on the inclusion of fares and frequencies in quality partnerships. At that time, the Minister said that it was a matter of policy and therefore For the Scottish Parliament to decide.

I do not disagree with that. But the question of the introductory period is different in that it is a purely operational matter for the bus companies. If operators in Scotland can make these preparations in six months, then operators in England and Wales should be able to make them in the same period. They certainly should not require 21 months, especially when many of them are the same companies. I beg to move.

Baroness Carnegy of Lour

My Lords, when he replies, will the Minister tell us precisely why it would take so much longer in England and Wales to do the work than it would in Scotland. Obviously, the Scots Parliament has the ability to make a separate decision, but is this a sign that in Scotland arrangements are more efficient?

Lord Whitty

My Lords, as I have said previously, this is a matter for Edinburgh. Our decisions do not bind the Scottish Parliament, just as its decisions do not bind us. Arrangements in England and Wales for the introduction of the changes may be different from those in Scotland. Our judgement is that the provision for at least 21 months is an appropriate one.

Of course, we cannot be absolutely sure. The Government do not always get matters right first time. That is why we have taken a power under Clause 126(10) to give ourselves the ability to vary the period by regulation if experience shows that to be desirable. We must start somewhere. We believe that the time periods are reasonable in the circumstances. The transition to a quality partnership will be a significant step. Operators who are unsuccessful in winning a "quality contract" contract will need time to adjust their business operations and to redeploy their assets. That is why Clause 126(2)(b) provides for a period of time to elapse between the point when a QC scheme is made and the point when it can be brought into force.

Some local authorities consider this period too lengthy; certain bus operators may feel that it is too short. That indicates that we are in the right ball park. The maximum period suggested in the amendment seems unduly constrained. We continue to believe that a 21-month period—which may only be 18 months after tenders are invited—is not unduly generous. As I said, authorities will need time to go through the tendering and contracting process.

Lord Harris of Greenwich

My Lords, perhaps I may ask the noble Lord a question. He says that this is a matter for the Scottish Parliament to decide. He is entirely right; and we need not do precisely what the Scots do. However, the variation between the English situation and that in Scotland will surely be so sharp that some fuller explanation is required. There is a substantial discrepancy. Did the noble Lord's officials discuss the matter with officials in Edinburgh to find out why the Scots believe that a shorter period is appropriate in the circumstances described?

Lord Whitty

My Lords, there has been some discussion between ourselves and Scottish Executive officials on this matter. As I understand it, the Scottish provisions will allow for some variation if in due course the Scottish figure proves too low. We are both making a stab at this. Scotland is starting at one end of the scale, and we are starting at the other. At the end of the day, we may well end up somewhere around the 15-month period when the system has been running for five or six years. We believe that we need to provide some degree of stability and reassurance to operators, and 21 months seems about right, working backwards from that to the time that it takes not only to complete the tendering process, but also for an operator to withdraw from existing routes and redeploy resources if that operator is not successful in terms of the quality contracts scheme. I am not being dogmatic; it is just that a longer period seems appropriate and would provide a degree of smooth transition as distinct from a potentially precipitate transition from one operator to another in certain circumstances which might be envisaged by a six-month figure. Our Scottish colleagues take a slightly different judgment. That, for now, is our judgment. As I say, we would take powers, under the subsequent subsection, to vary the period should experience prove us wrong.

Lord Biffen

My Lords, I understand the noble Lord's exposition of the difference. Nevertheless, this place would not be doing its duty if it did not probe further the factors behind this division. I appreciate that the noble Lord does not bring a departmental view to the matter. But, for example, could the Public Accounts Committee be given the chance to carry out an investigation? We are talking about a substantial factor in terms of the length of contract and it has caused a great deal of public interest.

Baroness Farrington of Ribbleton

My Lords, perhaps I may remind noble Lords that this is Report stage. Once the Minister has finished replying, it is not possible for noble Lords to intervene. Perhaps it would be helpful to the House if my noble friend were to offer to write to the noble Lord.

Lord Biffen

My Lords, I am more than happy to receive a reply in writing. I apologise for my mistake.

Baroness Scott of Needham Market

My Lords, I am grateful to the Minister for that reply—although I am slightly disappointed. To those on these Benches, as longstanding advocates of devolution, the principle of the devolved assemblies making their own decisions is the right one. However, I remain firmly of the view that this is an operational matter. Since many of the contractors will be the same bus companies, I am surprised that they will require six months in Scotland and 21 months here. Twenty-one months is a long period of time. I am reminded that we had three transport Ministers in less time than that at the start of the Parliament. Nevertheless, for the present I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 110 not moved.]

Clause 127 [Postponement of scheme]:

[Amendment No. 111 not moved.]

Clause 128 [Effect of scheme]:

Lord Dixon-Smith moved Amendment No. 112: Page 78, line 18, leave out paragraph (b).

The noble Lord said: My Lords, this group of amendments deals largely with the problems of quality contracts, which create a local monopoly. The amendment seems to me a reasonable one. Paragraph (b) of subsection (1) of the clause states that, no local service shall be provided in that area"— namely, the area of a quality contract— unless it is provided under a quality contract for the duration of the contract.

The contract might be in place for up to 10 years. Circumstances can change dramatically over that time. It is possible to conceive of situations where community developments so change circumstances that an operator might come along and wish to run a service that simply had not been a consideration at the planning stage of the quality contract scheme. Even though the operator might be willing to take a purely commercial decision, because of the existence of a quality contract scheme that would not be possible under the Bill as it stands. We do not believe that to be a reasonable way forward.

Amendment No. 113 has been tabled to provide a greater degree of flexibility. It refers to, local services which are additional to the local services to be provided under the quality contract". In other words, it envisages the consequences of just those kinds of changes which can and do take place from time to time in communities. We do not believe that it is right that additions to services within an area of quality contracts should necessarily be prevented. The amendment seeks to prevent an absolute monopoly being created.

Amendment No. 114 deals with a slightly different situation—where a contractor or service provider is in default for a period of time. It will allow a person who is prejudiced as a result to, apply to the appropriate national authority for a declaration that such default has occurred and, upon the making of such declaration, subsection (1) shall no longer apply". In other words, the contract would come to an end. Once again, we believe that that safeguard ought to be on the face of the Bill. The Minister will undoubtedly have some explanation as to why it is not, but it seems peculiar to me. Such provisions, which are meant to deal with a certain situation, ought to be on the face of the Bill so that everyone can understand them. Indeed, not only should they be in some part of the Bill; they should also be on the face of the Bill in relation to the actual part with which one is dealing so that both pieces of legislation can be read together, thus making everything clear.

Amendment No. 115 deals with a different matter; namely, terms and conditions of employment in respect of a contractor. It says that such terms and conditions should not be part of a an invitation to tender. That phraseology was, more or less, in the original draft of the Bill, but has since been withdrawn. There is unfortunate experience as regards what happens when local authorities intervene in this regard. We do not believe that to be appropriate. The Government have said that the clause is redundant because it represents the current position at law. That may well be so, but I understand that the law is about to change. If that is the case, we need to know that the position is, none the less, secure. We do not believe it to be appropriate that transport authorities should become involved in matters such as the conditions of employment of their contractors. That is why the amendment has been tabled.

Amendment No. 116 has been tabled because we believe that the suggested wording—we love to help the Government in this way—is helpful. It would make the wording of the Bill both clearer and briefer. That is a worthwhile ambition to which we should all aspire. Amendment No. 117 deals with a provision for the termination of a scheme in default. Amendment No. 178 seeks to include quality contracts schemes in the effects of the Competition Act. As I understand it, they are more or less excluded at present. The Government may well argue that, by making these contracts subject to the Competition Act, we are nullifying them. That would be a highly beneficial effect. However, as I said, we object to the creation of artificial monopolies. We believe this to be an appropriate amendment.

This is a slightly diverse group of amendments. I hope that I have worked through them with a degree of clarity, though I suspect that I may have failed. I have no doubt that the Minister will put me right if that is the case. I beg to move.

3.30 p.m.

Baroness Thomas of Walliswood

My Lords, there are two amendments in this group tabled in the name of my noble friend Lord Shutt of Greetland. These amendments were originally tabled by the noble Lord, Lord Morris. Unfortunately, the noble Lord is not present in the Chamber, and my noble friend is unable to reach us today due to the current weather conditions, living as he does in the far North West. Rather than attempt to put forward the arguments, I ask the Minister to be good enough to supply us with the answers to these amendments that he will have had prepared for him. I believe that to be the best that we can do in the circumstances.

Lord Whitty

Perhaps I may begin by dealing with the point made by the noble Baroness, Lady Thomas. I shall be happy to write to the noble Baroness and her noble friend explaining our understanding of why those amendments are unnecessary, and shall do so as rapidly as possible.

I turn to the amendments in the name of the noble Lord, Lord Dixon-Smith. There were occasions during his remarks when he could not disguise the fact that he would rather like to delete quality contracts from the Bill. Therefore, even in his eyes, these amendments would be second best. They are, to a significant degree, directed at diluting the principle of exclusivity in relation to quality contracts situations—a discussion that we have had on at least one occasion, though probably more, during the passage of the Bill.

The Government believe that the whole point of quality contracts is the fact that the exclusivity principle is crucial as regards the services coveted by them. If, for example, it were possible for other operators to have freedom to continue to run services in competition with quality contracts services, that would undermine the quality contracts arrangements. Frankly, that would be the direct and obvious effect of Amendments Nos. 112 and 113. It is simply not practical to run a quality contracts operation in parallel with a deregulated system for buses for those same services. Therefore, I cannot accept the principle of these amendments.

Amendment No. 114 seeks to provide a more limited mechanism for disapplying the exclusivity provisions. This would apply where there has been a declaration by the national authority that a QC contractor has persistently and materially defaulted on the terms of a contract. Such a declaration could he sought by a person who has been prejudicially affected by the default. The procedure being proposed here is slightly odd. I do not believe that it is an appropriate or a necessary remedy. Like any other contract, a quality contract imposes contractual operations on the operator. As with any contract, the remedy for default rests with the contracting authority—in this case, the local authority—rather than anyone else. Therefore, I do not believe that amendment to be appropriate.

Amendment No. 115 would reintroduce a provision that was, at one point, included in the Bill. It would replicate the provisions of the 1985 Act. As the noble Lord said, it is also true that this amendment is unnecessary under the law as it stands. However, he is also right to say that the law is about to change, although I suspect that the noble Lord and I disagree rather profoundly on the matter. The law is about to change in what I would regard as a positive way: where employees' conditions may be relevant to the achievement of best value, the decision as to whether or not that is written into the contract should be left to the discretion of the local authority. An order is due to be made under the Local Government Act 1998. It will remove the blanket ban that the previous government imposed in relation to transport legislation, as regards when such matters are taken into account by local authorities. While I understand where the noble Lord is coming from, I am coming from almost diametrically the opposite direction. Therefore, the amendment would be contrary to current policy.

If I understand the noble Lord correctly, the general intention behind Amendments Nos. 116 and 117 is that quality contracts schemes must be terminated in various circumstances, including a need for urgent action to keep the services going or to meet unexpected need. This would also include cases where there is no tender, or no acceptable tender, for a quality contract.

Clause 130 is only about exemptions from the requirement to go out to competitive tender; it is not about ending the quality contract altogether. Thus the purpose of Clause 130(1) is to ensure that local authorities can take urgent steps to keep bus services going or to meet urgent needs. Such steps might be accepted if an operator were to go bankrupt or if, for example, a special case arose where something even more disastrous than the weather that we have seen of late were to arise. To cover such cases, we envisage that regulations referred to in Clause 130(3) would fix a limit on the length of such a special contract, after which the local authority would have to go out to tender, as originally intended. Therefore, I do not think that the noble Lord's intended amendment of the clause is appropriate here.

Amendment No. 178 amends Clause 152. The clause provides for the competition test set out in Schedule 10 to apply to the exercise of a local authority's functions under the Bill with regard to quality partnerships, ticketing schemes, subsidised services and so on. The amendment would add quality contracts to that list making them subject to the competition test. There is no obvious need for quality contracts to be brought under the terms of Clause 152. Quality contracts are by definition awarded only after a competitive tendering process. The Bill provides adequate safeguards to ensure that the procedure for making quality contracts is open, subject to consultation and transparent in its proceedings. I therefore do not believe that the amendment is necessary. I hope that the noble Lord will not pursue it.

Baroness Hamwee

My Lords, before the Minister sits down, perhaps he will give the House the answer that he would have given to my noble friend Lord Shutt of Greetland on Amendment No. 182. It is a straightforward amendment. It provides that when an operator fails substantially, the traffic commissioner may disqualify that operator from further operations. A response would be helpful to the House. There is a relatively short period between this stage and Third Reading during which my noble friend may wish to consider what to do.

Lord Whitty

My Lords, my note says that the Liberal Democrats need a reply in writing and orally. There is a slight difficulty about the references in her noble friend's amendment. I understand that the noble Baroness needs reassurance—I can give it to her—that the traffic commissioners will have exactly the same powers to enforce against breach of registered details by what is referred to as an exempted operator under the quality contract scheme as they would in respect of a bus operator outside that area. I believe that that is the assurance the noble Baroness and her noble friend seek.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his response. As he rightly says, we come to this part of the Bill from reciprocal positions. I suspect that there will never be a meeting of minds on these issues. I shall study the noble Lord's explanations with care. While I may understand them, I do not believe that I shall ever agree with them. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 113 to 114 not moved.]

Clause 129 [Tendering for quality contracts]:

[Amendments Nos. 115 to 117 not moved.]

Clause 135 [Notice and consultation requirements]:

[Amendment No. 118 not moved.]

3.45 p.m.

Clause 136 [Making of scheme]:

Lord Dixon-Smith moved Amendment No. 119: Page 83, line 26, leave out from ("scheme") to end of line 27.

The noble Lord said: My Lords, this part of the Bill relates to joint ticketing schemes and so on. The amendment relates to that part of the Bill which deals with variations to the scheme.

Any ticketing scheme requires a deal of public notice and public consultation. The public are made well aware, and rightly so, of what is going on and, in so far as that can be done, their views will be taken into consideration during that process. Clause 136(6)—it seems an oddity—provides that, The authority or authorities may vary or revoke the scheme; and the variation or revocation is subject to the same procedure as the making of the scheme". I go along with the Bill to that point. That seems eminently sensible. If one has a scheme which is brought into being with a great deal of public participation and consultation, one should go through the same process to vary or revoke it.

However, the Bill then states, except to the extent that that procedure is modified by regulations made by the appropriate national authority".

I have the greatest difficulty in deciding why the appropriate national authority—it may be the Minister or the Welsh Assembly—should wish to vary those conditions.

The Government say that they may need that power in case they have the procedure wrong. If we have the procedure wrong, the whole Bill is wrong. I cannot seriously believe that the Government think that this part of the Bill is flawed. I do not understand the need for those words. They should be struck from the Bill. The amendment gives effect to that.

Amendment No. 120 deals with a small matter of practicality. Clause 137 states: During any period in which a ticketing scheme is in operation, operators of local services to which the scheme relates must make and implement the arrangements required by the scheme". We have simply added—the Minister may say that they are unnecessary—the words, provided that it is practicable for it to do so at a cost that is not disproportionate". Despite my eternal championing of the good sense of local authorities, it is not unknown for them occasionally to make illogical and rash decisions, in particular when they trespass into what I call the commercial field. I believe that the words in the amendment are useful in ensuring that the schemes are sensible, practicable and not too expensive.

These are small amendments. Their effect is not massive I hope that the Minister will consider them. I beg to move.

Lord Whitty

My Lords, in this context we are dealing with the procedure for revoking or varying a scheme, not making a scheme, although some of the provisions read across. The noble Lord seeks to remove the power to make regulations in regard to revoking or modifying the procedures.

As drafted, Clause 136(6) recognises that it would be appropriate to have some degree of flexibility in order to change by regulation the variation or revocation procedure in the light of experience. In Committee I gave an example of where experience may change circumstances. We would want to vary the scheme, for example, by bringing in other operators or transport modes. That may mean that the procedure would have to be modified in order to do so when, for example, the scheme had been established for one mode or one relatively narrow group of operators. In those circumstances——there may well be others—regulations would be a perfectly reasonable way to modify the procedure. It is with that in mind that we have sought to build in the flexibility in this clause.

Amendment No. 120 could present a serious inhibition on using the powers in the Bill. It would add the proviso that the requirement on operators to make and implement arrangements under the scheme would apply only if those arrangements were practicable and involved a cost which was not disproportionate. In all these cases, the authority is bound to act reasonably. This wording, as in other fields of law, would lead the way for endless and unproductive disputes as to what was practicable and what was disproportionate. Local authorities are already required to consult operators before making the scheme. They would need to take sensible account of any representations. They have a general obligation to act reasonably in using these powers. I believe that that is sufficient safeguard against such schemes leading to disproportionate or totally unreasonable provisions and impositions on the operators and others.

So both amendments would be detrimental. The first deals with a situation that is unlikely to arise frequently, but we need the flexibility to deal with it if it should arise, and I believe that the second could seriously undermine the scheme by potentially giving specious grounds for challenge. I hope that the noble Lord will withdraw his amendment.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his explanation. However, I had some difficulty in following what he said on Amendment No. 119. I understand the need to modify the schemes—the Bill provides for consultation and for schemes to be modified—but I do not believe that the Minister has answered why what is set out on the face of the Bill may need to be varied. The Minister says that such a situation would be a rare occurrence with which I agree—I do not believe that such a situation should exist—but I do not understand why, if there is need to vary a scheme, the existing procedures cannot be complied with.

We can continue to have fundamental disagreements, but at some point the matter must be made plain. Therefore, I believe that it is worth testing the opinion of the House on this issue.

3.51 p.m.

On Question, Whether the said amendment (No. 119) shall be agreed to?

Their Lordships divided: Contents, 57; Not-Contents, 101.

Division No. 1
CONTENTS
Aberdare, L.	Buscombe, B.
Ackner, L.	Caithness, E.
Anelay of St Johns, B.	Campbell of Allowav, L
Astor of Hever, L.	Campbell of Croy, L.
Attlee, E.	Carnegy of Lour, B.
Biffen, L.	Clark of Kempston, L.
Blatch, B.	Colwyn, L.
Brabazon of Tara, L.	Cope of Berkeley, L.
Brightman, L.	Cuckney, L.
Brougham and Vaux, L.	Dixon-Smith, L.
Burnham, L. [Teller]	Elles, B.

Elliott of Morpeth, L.	Noakes, B.
Freeman, L.	Northesk, E.
Gardner of Parkes, B.	Oppenheim-Barnes, B.
Glentoran, L.	Peyton of Yeovil, L.
Gray of Contin, L.	Rawlings, B.
Hanham, B.	Rees, L.
Haslam, L.	Roberts of Conwy, L.
	Rotherwick, L.
Hayhoe, L.	Ryder of Wensum, L.
Henley, L.[Teller]	Seccombe, B.
Hooper, B.	Selborne, E.
Howell of Guildford, L.	Sharples, B.
Liverpool, E.	Simon of Glaisdale, L.
Lyell, L.	Strathclyde, L.
Mackay of Clashfern, L.	Swinfen, L.
Mowbray and Stourton, L.	Vivian, L.
Murton of Lindisfarne, L.	Waddington, L.
Naseby, L.	Warnock, B.
NOT-CONTENTS
Acton, L.	Janner of Braunstone, L.
Addington, L.	Jay of Paddington, B. (Lord Privy Seal)
Alderdice, L.
Alli, L.	Layard, L.
Amos, B.	Levy, L.
Archer of Sandwell, L.	Lipsey, L.
Avebury, L.	Macdonald of Tradeston, L.
Bach, L.	McIntosh of Haringey, L. [Teller]
Berkeley, L.
Blackstone, B.	MacKenzie of Culkein, L.
Blease, L.	McNally, L.
Borrie, L.	Marsh, L.
Bradshaw, L.	Mason of Barnsley, L.
Brett, L.	Massey of Darwen, B.
Brookman, L.	Merlyn-Rees, L.
Bruce of Donington, L.	Newby, L.
Burlison, L.	Nicholson of Winterbourne, B.
Carter, L.[Teller]	Peston, L.
Clarke of Hampstead, L.	Ramsay of Cartvale, B.
Clinton-Davis, L.	Redesdale, L.
Cocks of Hartcliffe, L.	Rendell of Babergh, B.
Craig of Radley, L.	Richard, L.
Dholakia, L.	Rodgers of Quarry Bank, L.
Dormand of Easington, L.	Roll of Ipsden, L.
Dubs, L.	Roper, L.
Elis-Thomas, L.	Russell, E.
Ezra, L.	Sainsbury of Turville, L.
Falconer of Thoroton, L.	Sandberg, L.
Farrington of Ribbleton, B.	Scott of Needham Market, B.
Faulkner of Worcester, L.	Shore of Stepney, L.
Filkin, L.	Simon, V.
Gibson of Market Rasen, B.	Stoddart of Swindon, L.
Gladwin of Clee, L.	Stone of Blackheath, L.
Goldsmith, L.	Strabolgi, L.
Goudie, B.	Symons of Vernham Dean, B.
Gould of Potternewton, B.	Thomas of Walliswood, B.
Graham of Edmonton, L.	Thomson of Monifieth, L.
Greengross, B.	Thornton, B.
Hamwee, B.	Tomlinson, L.
Hardy of Wath, L.	Tordoff, L.
Harris of Greenwich, L.	Turnberg, L.
Haskel, L.	Walton of Detchant, L.
Hayman, B.	Watson of Richmond, L.
Hilton of Eggardon, B.	Wedderburn of Charlton, L.
Hollis of Heigham, B.	Whitaker, B.
Howie of Troon, L.	Whitty, L.
Hughes of Woodside, L.	Wigoder, L.
Hunt of Kings Heath, L.	Wilkins, B.
Irvine of Lairg, L. (Lord Chancellor)	Williams of Elvel, L.
	Williams of Mostyn, L.
Islwyn, L.	Williamson of Horton, L.
Jacobs, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.1 p.m.

Clause 137 [Effect of scheme]:

[Amendment No. 120 not moved.]

Clause 138 [Information about bus services]:

[Amendment No. 121 not moved.]

Lord Bradshaw moved Amendment No. 122: Page 84, line 13, after ("area,") insert— ("(aa) the fares for such local services,").

The noble Lord said: My Lords, I rise to move the amendment standing in the name of my noble friend Lord Shutt, who is not able to be here. This particular baton was passed from the noble Lord, Lord Morris, to my noble friend Lord Shutt, and now to me. I hope that, in transferring it to the Minister, we can arrive quickly at a satisfactory end to this particular race.

The amendment would simply add "fares" to the list of information on a service about which a transport authority is able to inform the public. We all know that, when people make inquiries, they want to know what fare they will be expected to pay. Fares are a complex and important issue, and this amendment would make arrangements for a local authority to pass on information about them. It has nothing to do with setting fares. Amendment No. 124 would allow an authority to collect from the operators a reasonable contribution towards the cost of publicity, including that relating to fares. I beg to move.

Lord Dixon-Smith

My Lords, our Amendment No. 123 is in this group and is directed to the same aim. I am happy to support the principles that have just been enunciated.

Lord McIntosh of Haringey

My Lords, it has been and remains our view that this amendment is technically unnecessary. Fares are part of the information which could and would come under, other matters of value to the public", which already appears in the clause. However, in view of what has been said, I am prepared to accept Amendments Nos. 122 and 123 in principle and to bring forward a government amendment at Third Reading. That is simply so that the technical drafting can be checked by parliamentary counsel.

The noble Lord, Lord Dixon-Smith, did not speak to Amendment No. 124 in the same group.

Lord Dixon-Smith

My Lords, I did not. That was remiss of me.

Lord McIntosh of Haringey

My Lords, perhaps it would be helpful if I replied to that amendment in order to avoid it coming up again at Third Reading.

Lord Dixon-Smith

My Lords, the Minister is optimistic if he believes that that will avoid the need for the issue to arise again at Third Reading. However, he may succeed.

Lord McIntosh of Haringey

My Lords, perhaps I may try because we believe that this amendment is also unnecessary. It seeks to make failure to agree satisfactory arrangements with bus operators as to the apportionment of costs a matter which can trigger the exercise of t he default powers in Clause 139. However, Clause 139(1) already states clearly that the local authority can step in where it is, unable to make satisfactory arrangements with one or more … operators". The word "satisfactory" is not qualified. In our view, the provision would include arrangements that are unsatisfactory in terms of the apportionment of costs as between the authority and the operators. However, it does not seem necessary to spell that out on the face of the Bill. In the light of that, I hope that none of the amendments will be pressed.

Lord Bradshaw

My Lords, in view of what the Minister said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 123 not moved.]

Clause 139 [Duty of authority to make information available]:

[Amendment No. 124 not moved.]

Clause 142 [Power to obtain information about local services]:

Lord Dixon-Smith moved Amendment No. 125: Page 85, line 40, at end insert— ("( ) If information is disclosed in contravention of subsection (4) the local transport authority which required its provision shall be liable to compensate the operator which provided it for any loss suffered by that operator as a result of its disclosure.").

The noble Lord said: My Lords, when transport authorities release information about such schemes, not least of the problems is that occasionally and unfortunately through inadvertence they may release information which causes commercial damage to an operator. This amendment seeks to add words to the clause in order to provide for compensation should that prove to he the case.

I do not doubt that in his response the Minister will say something about the opportunities of judicial review. But that, of course, exposes the operator to considerable costs. A matter that has always caused me concern in relation to justice is that occasionally one feels that the system works extremely well provided that one can afford it. This amendment seeks to ensure that it is not necessary to be able to afford it. The Bill should provide that matters are properly compensated if, through inadvertence, commercially sensitive information is released and subsequently it is shown that it has caused commercial damage. I beg to move.

Baroness Hamwee

My Lords, the noble Lord is asking the House to decide whether disclosure in such circumstances should be a matter for criminal or civil law, although I believe that he is making it a matter for both. However, my question relates to how that ties in with subsection (4), which deals with disclosures about particular businesses and about the affairs of an individual. The noble Lord seems to be more concerned about compensating businesses than individuals. I wonder where the right balance should lie.

Lord McIntosh of Haringey

My Lords, I can give the noble Lord, Lord Dixon-Smith, some reassurance in the sense that I was not intending to and shall not refer to the need for judicial review. I believe that the matter is somewhat simpler than that.

This issue was considered in Committee and I am afraid that I am no more convinced now of the necessity or appropriateness of this amendment than I was then. Clause 142(6) already provides that an unlawful disclosure of information is a criminal offence. However, I must make it clear that the subsection does not remove any existing rights under common law. There is a well established right of action at common law in cases where information which is known to be confidential comes into the possession of a person who then unlawfully discloses it to a third party.

Therefore, it would be open to an operator to take action in the courts, either to restrain wrongful disclosure or to obtain compensation. It would be for the courts to decide whether to grant an injunction or whether compensation, if any, should be paid.

The noble Lord, Lord Dixon-Smith, justifiably may say that action in the court, using the common law, involves expense. Of course, I am sympathetic to the idea that justice should be available without discrimination of means. However, unfortunately in addition the amendment goes too far. It would appear to make all cases of disclosure actionable unless covered by the specific exceptions covered in Clause 142(5). In some instances, the court may consider that it is in the public interest for the information to be disclosed. Under those circumstances, it is preferable that the common law rules and remedies, which give the court flexibility to decide on the public interest in particular cases, should continue to apply. There is no need for an amendment to the Bill to ensure that that is so. I hope that that satisfies the noble Lord.

Lord Dixon-Smith

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her comment, but I always make the blithe assumption that if I do have a somewhat inadequate amendment someone will show me what is wrong with it. She tends to improve my amendments enormously before bringing them back at Third Reading. However, the noble Lord, Lord McIntosh, may have obviated the need for that in his remarks that I will study with care. I am grateful to him for those comments. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 [Civil penalties for bus lane contraventions]:

Lord Whitty moved Amendment No. 126: Page 85, line 43, leave out ("by approved local authorities").

The noble Lord said: My Lords, I beg to move Amendment No. 126 standing in the name of my noble friend, Lord Macdonald of Tradeston, and to speak to the other amendments in this group in his name.

The Government amendments would allow the Secretary of State to repeal the existing legislation that provides for bus lane enforcement in London and to apply instead Clause 143 in its place. This clause, as drafted, provides local authorities outside London with camera enforcement powers to enforce moving bus lane offences. The Secretary of State or the National Assembly will have the powers to make regulations specifying the person by whom a penalty charge in respect of a contravention is to be paid. At the Committee stage we indicated that we intend, at least initially, to make regulations for areas outside London on the basis of driver liability while keeping the matter under review. In London the current system operates on the basis of owner liability. As this is specified in the London Local Authorities Act 1996 it can only be changed by primary legislation.

These amendments will enable existing legislation to be repealed and Clause 143 to be applied in London with the flexibility to impose the basis of liability for charges by regulation, and subsequently to change this basis also by regulation.

We consider it prudent to allow owner liability to continue to apply in London for the foreseeable future, but this will be kept under review.

Transport for London and the London local authorities would be the enforcement authorities for London under the new regime. In fixing penalty charges for bus lane enforcement, Transport for London and the London local authorities will be required to obtain the approval of the mayor before setting penalty charges. The Secretary of State also has a power of objection.

Finally, our amendment also extends the scope of the provision in Clause 143 so that local authorities would have the powers to enforce moving vehicle contraventions that affect the movement of tramcars and trolley buses.

The noble Lord, Lord Dixon-Smith, has an amendment down in this group. We will listen to what he says before commenting on that.

Lord Dixon-Smith

My Lords, my Amendment No. 134 is grouped with these and it is very simple. It deals with the issue of who should pay the penalty charge for someone who offends against a bus lane. We feel very strongly that it is the driver who is the person committing the offence and is the one who should pay the penalty charge. I accept that all too often, particularly with camera equipment, computers and everything else in this day and age, the owner of the vehicle is the person who can be caught. The fact of the matter is that it is the driver of the vehicle who commits the offence and it is only the driver. It is never the owner if the owner is not the driver. There is a difficulty here and one has to accept that. If the driver happens to be an employee of the owner, the matter becomes even more complicated, but at least the owner knows exactly who to tackle.

We think that this ought to be explicit within the Bill: that it is the person who commits the offence who actually pays the penalty. I accept that this may on occasions cause problems. I do not think that the principle is wrong. I hope that the Minister may be prepared to consider it. If the wording of the amendment is not adequate, perhaps he may be able to bring forward a more acceptable way of dealing with this situation.

Lord Bradshaw

My Lords, before the Minister replies, I ask whether the Government are absolutely satisfied that it will be possible to hold someone responsible—driver or owner—without any doubt in the law. We need to have a clear position if we are to go forward.

4.15 p.m.

Lord Clinton-Davis

My Lords, the Opposition are entirely wrong. If the driver is self-employed it follows that he will be liable. If the driver is employed by someone else it follows that that person will be responsible for the fine. It may be that that person will, if he is not lacking in responsibility, take the appropriate moves against the employee. The Government are entirely right about that and the Opposition are, as usual, entirely wrong.

Lord Berkeley

My Lords, I ask my noble friend for a little clarification on his introduction. Am I correct in thinking that in London it is still proposed that the owner is liable? If he could identify someone else as being the driver, that driver would become liable. If that is not the case outside London, how is it intended to identify the driver? From a camera or some other device?

The second question is: have the Government sorted out the problem of the Scottish case heard at the European Court of Human Rights and the defence that one does not have to divulge the name of the driver?

Lord Whitty

My Lords, I am grateful for the intervention of my noble friend Lord Berkeley—in a slightly more subtle way than my noble friend Lord Bradshaw—in connection with whether we were entirely bomb-proof in relation to various proceedings arising in this area under the Human Rights Act. The answer is that time will tell. The reality is that although these cases, including the one referred to in Scotland, have been widely reported as relating to camera enforcement and road traffic offences where the owner is required to identify the driver—where driver and owner are the same, self-incrimination therefore arises—in fact none of those case where the courts have so far ruled, whether in England or in Scotland, relates to camera enforcement in this context. Nevertheless, there may be developments in that area.

That is one of the reasons, but only one, where we require some degree of flexibility. The amendment of the noble Lord, Lord Dixon-Smith, would impose driver liability for penalty charges imposed by any local authority. We wish to have flexibility to be able to change the basis of liability for payment by secondary legislation. That would be on the basis of experience and practice, both inside London and outside, and if necessary make any changes in the implications of the law. The noble Lord's amendment would remove flexibility.

I hope that the noble Lords will understand why we are unable to support that amendment and that they will agree to withdraw it.

In response to the question from my noble friend, Lord Berkeley, where owner liability applies, already in many areas of the Road Traffic Acts the requirement is on the keeper. The owner, strictly speaking, should identify who was driving the car at that time. That is not altered in this context or in other Road Traffic Act contexts by this amendment or this Bill because it would remove what might prove to be necessary flexibility. I hope that the noble Lord, Lord Dixon-Smith, will not press this amendment.

On Question, amendment agreed to.

Lord Bradshaw moved Amendment No. 127: Page 85, line 44, leave out ("bus lane").

The noble Lord said: My Lords, the reason this amendment was tabled is that it is apparent that bus operation in some of our major cities is in crisis. The Minister may know that the traffic commissioners have been pressing bus companies to improve their performance and to ensure that buses run within narrow time parameters of one minute before time and up to four or five minutes late but no more. At a recent hearing in Bristol, where bus operation is in crisis, evidence given by Colin Buchanan and Partners, who are leading consultants in this field, showed conclusively that it is impossible to operate a bus service reliably in that city. Even if extra buses were added to the service, they could not keep within the timetable because of the unpredictability of traffic flows.

I went through the evidence carefully with a senior partner of the firm. He showed me evidence from Birmingham where the bus service is completely breaking down and what is operating bears no resemblance whatever to the timetable. The traffic commissioners, as they are empowered to do under the law, are threatening to withdraw the licence of the operators and ban them operating. If they did that, it is difficult to believe that any other operator would want to enter a market to operate a bus service which, in time, would give rise to complaint and to their finding themselves in court also answering charges of running an unreliable bus service.

The only way to deal with this situation is to manage the highway more effectively. A number of authorities have not taken up the special parking arrangements now available under the law; they do not properly enforce parking restrictions; and we know that the police do not do so because they believe they have other priorities. We need active traffic management.

No doubt camera enforcement of bus lanes will be effective in helping to restore punctuality to bus services. However, when I spoke to local authorities and to bus companies they said that the enforcement of box junctions—many bus lanes end in box junctions—is also of great importance. When we raised this matter at earlier stages of the Bill, we asked from these Benches for more camera enforcement. Ministers said that they were not willing to take powers which they had no immediate intention of using.

The purpose of tabling Amendment No. 127 is to ask Ministers to think again about taking powers in respect of box junctions to enhance the efficiency of bus operation. It was moved solely to help local authorities to carry out the responsibilities placed on them by the Government in the consultation paper From Workhorse to Thoroughbred, and other documents published by the Government. I hope that the Government will take the amendment seriously. I beg to move.

Lord Berkeley

My Lords, I support the noble Lord, Lord Bradshaw, in his amendment. I too had details of the problems arising in Bristol. It is always a surprise to me that we have bus lanes in many places, some enforced better than others, but in many cases the junctions allow cars in or consist of a box junction.

It has been my belief for many years that the only viable way to get buses running on time and to schedule is to have a continuous lane, be it bus lane, box junction or whatever. The noble Lord, Lord Bradshaw, is right in relation to the lack of enforcement in that regard. People contravene box junctions with great frequency. If it was possible to have camera enforcement of those regulations alongside those for bus lanes, we might actually get the buses to run on time and therefore more people using them, which is the objective, I believe, of government policy.

Lord Peyton of Yeovil

My Lords, I too should like to express a few words in favour of the amendment of the noble Lord, Lord Bradshaw.

In this country, we seem to have a talent for introducing sensible rules; but the more sensible they are, the less we seem to enforce them. That is truly ridiculous. If an amendment such as this could nudge some of the relevant authorities into something approaching action and stir them out of their habitual lethargy and inertia, it would be a good thing.

Box junctions are not the only example. Parts of London are festooned with notices saying, "No delivery and no collection between 7 a.m. and 7 p m.". But one cannot see the notices for the crowds of vehicles around them collecting and delivering.

When governments take powers, introduce legislation and make sensible rules, they should do so with the determination that they should be enforced, instead of which they tend to walk away—I refer to all governments, not just this one—leave the powers on the statute book and do nothing. Once rules are made, if anyone is to respect the law they must be enforced, and time and again they are not. Motorists are driven mad by that failure to enforce sensible rules. Therefore I support Amendment No. 127.

Lord Whitty

My Lords, our provisions in this context considerably extend the powers of local authorities in relation to camera enforcement in bus lanes. Were we to extend that further into the area of yellow box junctions, we should need to be clear about what we were doing.

As the noble Lord, Lord Peyton of Yeovil, indicated, yellow box junctions are perhaps not the only area where camera enforcement might be helpful in the longer term. However, bus lanes seem to us to be the priority. As I understand it, we have only one limited experiment in which cameras have been used by the Metropolitan Police in Euston Road to enforce yellow box markings at two junctions. At this time that cannot be the basis for moving forward to local authority enforcement as proposed in the amendment.

We are aware of the difficulties generally in relation to bus lanes, and sometimes that can be complicated by yellow box junctions. But in general it is the continuous bus lanes which need to be more effectively enforced. We are aware of problems such as those identified by the Buchanan report in Bristol, which we shall clearly have to consider and are looking into.

I am further advised that the amendments proposed by the noble Lord, Lord Bradshaw, are in any case defective. Amendment No. 132 defines a "box junction" by reference to a traffic order, but the Traffic Signs Regulations and General Directions 1994 revoked the 1981 version, whereby the requirement for box junctions had to be backed by an order. Therefore it is not in the appropriate form in any case.

The amendment also attempts to define "box junction" in primary legislation by reference to the use of road markings prescribed in specific diagrams in secondary legislation. That secondary legislation is expected to be superseded next year and that may well occur again in the future. Primary legislation therefore needs to be more flexible so that it is not overtaken by changes in secondary legislation on the definition of the areas or the traffic signs to which it is expected to apply.

I hope therefore that, in regard to both the rather technical deficiencies of the drafting and the need to approach reasonably cautiously what is a major expansion of powers in relation to bus lanes, the noble Lord, Lord Bradshaw, will not press his amendment.

4.30 p.m.

Lord Bradshaw

My Lords, I thank the Minister for that reply. I accept that the amendment may be subject to technical drafting difficulties. I hope the noble Lord accepts that in such a technical area it is extremely difficult to draft amendments of this kind. However, before we finish our consideration of the Bill, I urge the Minister to consider whether the Secretary of State should take powers. From the evidence that I have seen, in many cities bus operations are at the point of breaking down and, unless something is done, there will be a real problem. It will be impossible to operate bus services economically and to time, and I do not see how that can in any way further the Government's strategy. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 128 not moved.]

Lord Whitty moved Amendments Nos. 129 to 131: Page 86, line 1, at end insert— ("( ) Regulations under subsection (1) may provide for the imposition of penalty charges—

1. (a) by approved local authorities, or
2. (b) both by approved local authorities and by Transport for London or London local authorities or both.").

Page 86, line 16, leave out from ("buses") to end of line 18 and insert ("(or a particular description of bus), or (b) only by buses (or a particular description of bus) and some other class or classes of vehicular traffic."). Page 86, line 18, at end insert— ("(4A) The roads in relation to which regulations under subsection (1) may authorise the imposition of penalty charges are—

1. (a) in the case of an approved local authority, roads in its area,
2. (b) in the case of Transport for London, roads in Greater London of a description prescribed by such regulations or all roads in Greater London, and
3. (c) in the case of a London local authority, roads in its area of a description prescribed by such regulations or all roads in its area.

(4B) Before making any regulations by virtue of subsection (4A)(b) or (c) the Secretary of State shall consult—

1. (a) Transport for London, and
2. (b) the London local authorities affected by the regulations.").

On Question, amendments agreed to.

[Amendment No. 132 not moved.]

Lord Whitty moved Amendment No. 133: Page 86, line 20, leave out paragraph (a).

On Question, amendment agreed to.

[Amendment No. 134 not moved.]

Lord Whitty moved Amendments Nos. 135 to 140: Page 86, line 30, leave out from first ("the") to ("and") in line 32 and insert ("conduct constituting the contravention is the subject of criminal proceedings or where a fixed penalty notice has been given in respect of that conduct"). Page 86, line 33, leave out ("by approved local authorities"). Page 86, line 34, at end insert— ("( ) Regulations under subsection (1) shall include provision for the level of penalty charges in the case of approved local authorities to be set by the authorities subject to the approval of the relevant national authority; and sections 74 and 74A of the Road Traffic Act 1991 apply to penalty charges in the case of Transport for London and London local authorities as they apply to additional parking charges."). Page 86, line 36, after ("charges,") insert— ("( ) make provision for discounts or surcharges (or both),"). Page 87, line 5, at end insert— ("( ) Regulations under this section made by the Secretary of State or the Lord Chancellor may make provision in respect of Greater London different from that in respect of the rest of England."). Page 87, line 8, at end insert— (""bus" includes a tramcar (within the meaning of section 141A of the Road Traffic Regulation Act 1984) and a trolley vehicle (within the meaning of that section),").

The noble Lord said: My Lords, I spoke to Amendments Nos. 135 to 140 with Amendment No. 126. I beg to move these amendments en bloc.

On Question, amendments agreed to.

[Amendment No. 141 not moved.]

Lord Whitty moved Amendments Nos. 142 to 145: Page 87, line 9, leave out ("the Road Traffic Regulation Act 1984") and insert ("that Act"). Page 87, line 12, at end insert— (""London local authority" means a London borough council or the Common Council of the City of London,"). Page 87, line 23, leave out ("outside Greater London"). Page 87, line 30, after ("1") insert ("or 6").

The noble Lord said: My Lords, I spoke to these amendments with Amendment No. 126. I beg to move Amendments Nos. 142 to 145 en bloc.

On Question, amendments agreed to.

Clause 144 [Mandatory concessions outside Greater London]:

The Deputy Speaker (Lord Brougham and Vaux)

My Lords, I must advise the House that if Amendment No. 146 is agreed to, I cannot call Amendments Nos. 147 to 149.

Lord Macdonald of Tradeston moved Amendment No. 146: Page 87, line 32, leave out from ("Any") to ("subsection") in line 43 and insert ("person to whom a current statutory travel concession permit has been issued by a travel concession authority and who travels on an eligible service on a journey—

1. (a) between places in the authority's area, and
2. (b) beginning at a relevant time,

is entitled, on production of the permit, to be provided with a half-price travel concession by the operator of the service. (2) A travel concession authority must, on an application made to it by any person who appears to the authority to be an elderly or disabled person residing in its area, issue to the person free of charge a permit, in such form and for such period as the authority considers appropriate, indicating that he is entitled to the concession specified in subsection (1). (2A) In this section "statutory travel concession permit" means a permit issued pursuant to subsection (2). (2B) The Secretary of State (as respects England) or the National Assembly for Wales (as respects Wales) may issue guidance to travel concession authorities to which they must have regard in determining for the purposes of subsection (2) whether a person is a disabled person. (2C) Before issuing guidance under subsection (2B) the Secretary of State or National Assembly for Wales shall consult—

1. (a) the Disabled Persons Transport Advisory Committee,
2. (b) associations representative of travel concession authorities, and
3. (c) such other persons as he or it thinks fit.

(2D) A person entitled to be issued with a statutory travel concession permit by a travel concession authority may agree with the authority that he is not to be entitled to the concession specified in").

The noble Lord said: My Lords, this group of amendments concerns the important question of concessionary fares for disabled people. Your Lordships' House amended the Bill in Grand Committee so that the statutory minimum concessionary bus fare scheme, which the Bill al ready provided for elderly people, should apply also to people with disabilities. That change was widely and warmly welcomed. Certainly, these amendments do not change the important principle. However, it was subsequently represented to us that in a practical sense the new provisions could be improved in the interests of clarity and to help those who had to implement the legislation on a day-to-day basis. We have listened to those representations, which came initially from local government but have also been supported by members of the Disabled Persons' Transport Advisory Committee (DPTAC).

Accordingly, the amendments do two things. First, they provide for the Secretary of State to issue guidance on eligibility for concessionary fares to which local authorities must have regard. The amendments require consultation on that guidance. Secondly, associated with the guidance provision, the amendments clarify the definitions of the various categories of disability on the face of the Bill so that all concerned can have greater certainty about eligibility and be clearer as to exactly what the guidance is to relate to. Perhaps I may give one example. The Bill as at present drafted refers to people who are "deal". The amendments clarify that by referring on the face of the Bill to "profoundly or severely deaf", those being two recognised terms for describing degrees of deafness. We envisage that the guidance would speak in terns of people who are, or could be, registered as profoundly or severely deaf.

I stress that we have tabled these amendments only after discussion not only with representatives of local government but with members of DPTAC. The amendments respond to what all those people have said to us. Our objective is to make the Bill a more workable and effective piece of legislation for disabled people and local authorities, and on that basis I hope that noble Lords will feel able to accept these amendments.

I should also refer to the amendments in this group tabled by the Liberal Democrat Front Bench. There are always different ways to express similar ideas in law, but I hope that, on reflection, the noble Baroness and the noble Lord who have tabled these amendments accept that much the same objectives have been achieved by the government amendments. I note that the noble Baroness seeks to provide that the Secretary of State "shall", rather than "may", issue guidance. I understand that "may" is the usual formulation in such cases, but I assure the noble Baroness that guidance will be issued. In view of what I hope will be seen as a large amount of common ground between us, perhaps those amendments will be withdrawn.

Baroness Thomas of Walliswood

My Lords, I thank the Minister for replying to my amendments before I speak to them. Amendments Nos. 162 and 168 in this group, which raise an important issue, are both slightly controversial, particularly the latter. Do the Government envisage that when a driving licence is withdrawn on account of disability, which is one of the reasons why an individual is granted a concessionary fare, it shall be done permanently on the grounds of permanent disability? Alternatively, if a person has been unable to obtain a licence because of a disability which can he alleviated—therefore, the loss may be only temporary—will the individual be able to have a concessionary fare while he or she is without a licence? I dare say the noble Lord, Lord Swinfen, will have something to say about this complicated matter because it is something about which disability groups are quite concerned. I put forward this matter, with which the noble Lord may not agree, in order to have the Government's views on the record.

Lord Swinfen

I deal first with government Amendment No. 171. That amendment requires that local authorities should only "have regard to" the issues. I am advised that originally the Government intended to insert the words "must act in accordance with". Guidance is purely advice. No matter how often one gives advice, one cannot make the person take it. The Government may wish to strengthen that particular amendment at the next stage of the Bill.

At the same time, I welcome government Amendment No. 190. However, does it include the aspect that is referred to in my Amendment No. 170, which mainly achieves the same object? My amendment includes, persons who have used in-patient mental health services and require continuing support". As I read it, the Government's amendment does not cover such people. Further, given that the Greater London Authority Act is now in force, does the government amendment include London?

Lord Macdonald of Tradeston

My Lords, in answer to the noble Baroness, Amendment No. 168 would cover a person who had been refused a driving licence permanently. The government amendments do not echo that. It is possible for a person to be refused a driving licence on medical grounds but to be issued with one if the medical condition improves: epilepsy is one example and blindness through cataracts which are subsequently operated on is another.

The noble Baroness asked whether I believed that a temporary licence would be issued. I believe that that would be the case. But if I am wrong I shall certainly write to the noble Lord and try to sort out the problem.

In reply to the noble Lord, Lord Swinfen, and the question of "having regard to" as opposed to "must act in accordance with", I am advised that the wording, which has been strengthened slightly, is that it "must have regard to". I hope that that added emphasis may be of some use to him there.

Mental health in-patients will not be included as such on the face of the Bill but may be subject to regulation later on. London is indeed covered by the government amendments.

On Question, amendment agreed to.

[Amendments Nos. 147 to 149 not moved.]

Lord Macdonald of Tradeston moved Amendment No. 150: Page 88, leave out line 8 and insert ("the concession specified in subsection (1)").

On Question, amendment agreed to.

Clause 145 [Mandatory concessions: supplementary]:

Lord Whitty moved Amendments Nos. 151 to 155: Page 88, line 11, leave out from first ("blind") to end of line 15 and insert ("or partially sighted,"). Page 88, line 16, after ("is") insert ("profoundly or severely"). Page 88, line 18, leave out ("seriously impairs") and insert ("has a substantial and long-term adverse effect on"). Page 88, line 20, leave out paragraph (f) and insert— ("(f) does not have arms or has long-term loss of the use of both arms,"). Page 88, line 28, at end insert ("otherwise than on the ground of persistent misuse of drugs or alcohol").

On Question, amendments agreed to.

Lord Swinfen had given notice of his intention to move Amendment No. 156: Page 88, line 28, at end insert—

• ("( ) is a specified companion of an eligible person who, in the opinion of the authority responsible for the administration of the scheme, requires the assistance of a companion to be able to travel on public transport, or
• ( ) is a person who has used in-patient mental health services and requires continuing support.").

The noble Lord said: My Lords, we seem to have moved suddenly from Amendment No. 146 to Amendment No. 156. I have a group of amendments which starts with Amendment No. 148 which was originally grouped with Amendment No. 147 standing in the name of the noble Baroness, Lady Thomas. I was waiting for that to be called.

The Deputy Speaker

My Lords, I told the House that if Amendment No. 146 was agreed to, I could not call Amendments Nos. 147 to 149 because they were pre-empted by Amendment No. 146.

Lord Swinfen

My Lords, I shall not move Amendment No. 156 but come back to it at a later stage if necessary.

[Amendment No. 156 not moved.]

[Amendment No. 157 not moved.]

Lord Macdonald of Tradeston moved Amendment No. 158: Page 89, line 9, leave out from ("Wales") to end of line 14.

The noble Lord said: My Lords, I spoke to Amendment No. 158 with Amendment No. 146. I beg to move.

On Question, amendment agreed to.

[Amendment No. 159 not moved.]

Clause 146 [Variation of mandatory concessions]:

[Amendment No. 160 not moved.]

Clause 148 [Reinbursement of operators]:

Lord Dixon-Smith moved Amendment No. 161: Page 89, line 46, leave out ("for") and insert ("the full cost to the operator of").

The noble Lord said: My Lords, Clause 148 provides that: Where an operator provides concessions under section 144(1)"— that is concessionary fares— for persons who reside in a travel concession authority's area, the authority shall reimburse the operator for providing the concessions". On these Benches we are not clear whether that means providing the operator not just with the actual cost of the concessions but also the administrative costs involved. The administrative costs could be a burden—not an unreasonable one—on anyone obliged to operate the concessions because they must account for the number of concessionary clients they have and for whom they provide services. That cannot be done for nothing. Therefore, we thought it was appropriate to table the amendment which says that the full cost should be reimbursed to the operator. It is a small but not unreasonable point which I hope the Minister will consider. I beg to move.

4.45 p.m.

Lord Whitty

My Lords, I thank the noble Lord for explaining the amendment. I can assure the noble Lord that our firm intention is to maintain the present principle. That principle is underlined in the regulations. It provides for the reimbursement to operators of concessionary fares. That principle is that each operator should be left no better and no worse off by virtue of participation in the concessionary fare scheme.

The difference between being reimbursed for providing the concessions and reimbursed the full cost is perhaps a little obscure. But the basic principle makes it absolutely clear. That is embodied in the existing regulations. It is fair to say that on the whole these arrangements have worked reasonably well and they are fairly well understood. It would not therefore be our intention to change that basis. But it does seem right to have the regulation-making power available for future flexibility. In the light of that I hope the noble Lord will not pursue the amendment.

Lord Swinfen

My Lords, I am grateful to the Minister for his response. The amendment was tabled with a desire not to upset anything but to make sure that stability would continue. I think the Minister answered the point when he said that the operator should be no worse off. That seems to cover the point quite adequately. I am grateful for that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150 [Concessions in Greater London]:

[Amendment No. 162 not moved.]

Lord Whitty moved Amendments Nos. 163 to 167: Page 91, line 36, after ("(5),") insert ("for "are persons, or any description of persons," substitute "by an authority are persons appearing to the authority to be persons" and"). Page 91, line 36, leave out from ("for") to end of line 39 and insert ("paragraphs (b) and (c) substitute—

1. "(b) who are blind;
2. (c) who are partially sighted;").

Page 91, line 40, after ("are") insert ("profoundly or severely"). Page 91, line 43, leave out ("seriously impairs") and insert ("has a substantial and long-term adverse effect on"). Page 91, line 44, leave out from ("who") to end of line 45 and insert ("do not have arms or have long-term loss of the use of both arms;").

The noble Lord said: My Lords, I spoke to Amendments No. 163 to 167 with Amendment No. 146. I beg to move.

On Question, amendments agreed to.

[Amendment No. 168 not moved.]

Lord Whitty moved Amendment No. 169: Page 92, line 7, at end insert ("otherwise than on the ground of persistent misuse of drugs or alcohol").

On Question, amendment agreed to.

[Amendment No. 170 not moved.]

Lord Whitty moved Amendment No. 171: Page 92, line 7, at end insert— ("( ) After that subsection insert— (5A) The Secretary of State may issue guidance to local authorities to which they must have regard in determining whether a person falls within subsection (5)(b) to (i) above. (5B) Before issuing guidance under subsection (5A) above, the Secretary of State shall consult—

1. (a) the Disabled Persons Transport Advisory Committee;
2. (b) associations representative of local authorities; and
3. (c) such other persons as he thinks fit."").

The noble Lord said: I beg to move.

Baroness Thomas of Walliswood moved, as an amendment to Amendment No. 171, Amendment No. 172: Line 3, leave out ("may") and insert ("shall").

The noble Baroness said: My Lords, this is an amendment to Amendment No. 171. It is the famous "shall" rather than "may" amendment—"shall issue guidance" rather than "may issue guidance". Perhaps we may have an assurance of the Government's firm intention to issue this guidance on the rather complicated subject of who does and who does not qualify for a concessionary fare on grounds of disability and old age. I shall be grateful if the Minister can do that. I beg to move.

Lord Whitty

My Lords, I can indeed give that assurance to the noble Baroness. I hope that meets her requirements in her amendment to my amendment.

Baroness Thomas of Walliswood

My Lords, I beg leave to withdraw the amendment.

Amendment No. 172, as an amendment to Amendment No. 171, by leave, withdrawn.

On Question, Amendment No. 171 agreed to.

Lord Swinfen moved Amendment No. 173: Page 92, line 7, at end insert— ("( ) After that subsection insert— (5A) Where a disabled person's impairment prevents them making use of mainstream public transport services concessionary fares shall apply to services operated under sections 19 or 22 of the Transport Act 1985 that are fully accessible to people who travel in their wheelchairs."").

The noble Lord said: My Lords, in moving Amendment No. 173, I shall speak also to Amendments Nos. 174 and 175. Amendment No. 173 seeks to extend the eligibility for concessionary fares to all eligible English and Welsh residents.

Amendment No. 174 seeks to delete the provision that concessionary fare passes may not be used between 4.30 a.m. and 9.30 a.m.

I am concerned that the national concessionary scheme fails to recognise that travel patterns are often independent of local administrative boundaries. Many people from outside London must visit the capital. The voluntary national concessionary scheme for free travel for blind people in Scotland provides concessions throughout the country and across different modes of travel. The proposed scheme would benefit from similar provisions relating to area of operation and integration across modes. I do not see why the same should not apply to people in Wales and England.

I am also concerned that the scheme is limited by the expression "relevant time", meaning that it will not be available between 4.30 a.m. and 9.30 a.m. The scheme should apply to all journeys in the local area regardless of the time. The restrictions could, for example, mean that someone returning from a night out in town no longer received the concession, making the evening out impossible. More importantly, the provision also means that if the scheme extended to disabled people of working age, they would be unable to benefit from the concessions if working at these unreasonable hours.

As a minimum alternative, I should like to have the start time brought forward to 9 a.m. A 9 a.m. start time applies to the scheme currently running in London and any reserve scheme introduced in future if the boroughs and Transport for London fail to reach agreement. The 9 a.m. start time also applied to the minimum half-price scheme prior to an amendment agreed in the other place.

There are unlikely to be congestion problems in peak periods as people who do not need to travel at those times will not choose to do so, ensuring that they are more likely to be able to travel in comfort. However, removing the restriction will allow people to undertake necessary journeys. I beg to move.

Baroness Darcy de Knayth

My Lords, I warmly support the amendments, particularly the amendment which seeks to remove the time restriction. I very much support the amendment which would publicise the eligibility criteria. There are problems. Many people do not know whether they are entitled. Some people miss out. If those people knew the criteria, they might find that they were able to make use of the concession.

Lord Addington

My Lords, perhaps I may add a few words in support of the amendment. It is a good aim that the concession should be available when people want to use it. To say that there is a concessionary fare but that at certain times people are not allowed to use it is merely giving half a loaf rather begrudgingly as opposed to giving the whole loaf, to which they are surely entitled.

Lord Whitty

My Lords, I am not too clear that the issue of timing arises on any of the amendments to which the noble Lord referred. As I understand it, he is speaking to Amendments Nos. 173 and 174. He also referred to Amendment No. 175. I do not think that those amendments directly deal with the time issue. Perhaps the noble Lord can offer clarification. He is looking as puzzled as I was when he was speaking. There is an issue of timing and I am quite happy to talk about it. We have discussed the matter before; but it does not seem to arise on these amendments.

Lord Swinfen

My Lords, I am sorry if I muddled the noble Lord. I was speaking also, and should have said so, to Amendment No. 176, which does deal with the issue of timing. I must apologise to the noble Lord because I know that it is not his fault. I gave my preferred groupings some 10 days ago to the Government Whips' Office and I faxed them through again on Friday evening. But I am told that they never arrived, which I find extraordinary because my fax machine told me that they had gone through satisfactorily.

Lord Whitty

My Lords, I shall not quarrel with the noble Lord on the efficacy or otherwise of his technology or the Whips' Office technology. Clearly, there has been some confusion. That was compounded by the fact that he did not refer to Amendment No. 176 in his opening remarks.

Perhaps I may deal first with the question of the time restriction and the effect of the 9.30 a.m. cut-off, to which other noble Lords have referred. As with many concessionary fare schemes up and down the country, the provisions in the Bill are relatively generous. It is not a matter of the Government looking for economies. When we first proposed that the restrictions should start earlier, the view was expressed by local authorities that that would impose too great a strain on transport resources at the morning peak—at the busiest time of day. At that point we were dealing specifically with the concessions for pensioners. Those have since been extended to the disabled. If the question is being raised in relation to those disabled who are travelling to work, there is no overwhelming reason why those disabled who are employed should receive a concessionary fare. They are clearly in a different position from pensioners who are covered by a concessionary fare scheme. I am not convinced—

Baroness Thomas of Walliswood

My Lords, I do not normally interrupt Ministers when they are in full flow but I think that we are missing a beat here. People who are disabled are for one reason or another often not able to drive themselves to work or anywhere else. It is for that reason, and not because they are receiving a pension or are poor, that they are being offered this concession, which is greatly valued by noble Lords on all sides of the House. I hope that the Minister will consider this point. There is an important difference between concessions for people because they are disabled and concessions for people because they are elderly.

Lord Whitty

My Lords, but if one looks at the issue from the point of view of the operator, it is difficult to see why there should be a concessionary scheme for one group of people with the same scheme operating for different hours for another group of people benefiting from the concession. It is admittedly the case that when we first discussed the issue we were discussing it in relation to pensioners. I still do not believe that if we extended it to the disabled, which everyone has welcomed, we should necessarily alter the time of day at which the concession applies on the ground that it enables a particular group of workers to get to work. Were it to be opened up, I suspect that other groups of workers besides the disabled might well find a special case for having concessionary fares. I admit that different arguments apply to the disabled from those that apply to pensioners, but the case is not so overwhelming that I would wish to confuse the operation of the scheme by having different times. I therefore hope that the House will not be persuaded by the noble Lord's amendment in that respect.

Amendment No. 174 would place an obligation on each London authority to make and review criteria about impaired ability to walk, in consultation with disability groups and taking account of guidance by a joint concessionary fare body. I suggest that the amendment is now overtaken by the government amendment, which provides for the Secretary of State to issue guidance on eligibility. All local authorities will be required to have regard to that guidance. The amendment also provides for the Secretary of State to consult DPTAC and others in preparing the guidance. What lies behind the amendment is the fact that there are different interpretations by different local authorities. The government amendment already meets that point.

Amendment No. 175 relates to a national scheme. The noble Lord mentioned the amendment but he did not speak in any great detail on it. I assume that he wishes for a reply from me. It advocates a national scheme rather than one based on individual local authorites. The principle of local authority discretion is important. It is open to local authorities to add to the statutory minimum, which would make it even more complicated to provide for national transfer of eligibility. Under the amendment, a bus pass issued by one local authority would provide reduced-fare travel anywhere in the country. I see the attractions but if we were to allow local authorities to be more generous than the statutory minimum, it is difficult to envisage how the scheme could operate. Would a pensioner living in Birmingham, which has a free travel scheme, be entitled to free travel in Cornwall? It is difficult to see how one could transfer differential provisions and eligibility to another local authority area.

As to administration and finance, bus operators are reimbursed by local authorities for carrying bus card holders at reduced fares. If a lot of West Midlands pensioners went to Cornwall for their holiday, who would reimburse who? This straightforward amendment does not address that complex issue and although it may be attractive, I ask the noble Lord not to press it.

Baroness Darcy de Knayth

My Lords, before the Minister sits down, can he say whether the government amendment would cover my point about publicising the eligibility criteria to make sure they are known by anyone who might be able to apply?

Lord Whitty

My Lords, the regulations would not necessarily cover publicity but guidance would be given to local authorities.

Baroness Darcy de Knayth

That they should publicise the scheme well?

Lord Whitty

Yes.

Lord Swinfen

The Minister has given a full answer, which I shall study with care. If necessary, I shall return to the matter on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 174 to 176 not moved.]

5 p.m.

Baroness Scott of Needham Market moved Amendment No. 177: After Clause 150, insert the following new clause—

cc698-739
1. REVIEW OF COSTS OF CONCESSIONARY TRAVEL PROVISIONS 20,189 words