Lords Sitting of 29 June 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayer—Read by the Lord Bishop of Leicester.

Lord Giddens
Anthony Giddens, Esquire, having been created Baron Giddens, of Southgate in the London Borough of Enfield, for life—Was, in his robes, introduced between the Baroness Blackstone and the Lord Grabiner, and made the solemn affirmation.
Lord Snape
Peter Charles Snape, Esquire, having been created Baron Snape, of Wednesbury in the County of West Midlands, for life—Was, in his robes, introduced between the Lord King of West Bromwich and the Baroness Boothroyd.

London Mayoral Elections
2.48 p.m.
Lord Waddingtonasked Her Majesty's Government:
Why voters in the London mayoral elections were instructed on the reverse side of the declaration of identity to, "Vote once for your first choice and once for your second choice", when there is no obligation to exercise a second choice.
Lord Bassam of Brighton:My Lords, the wording on the declaration of identity in relation to the mayoral election is a matter for the Greater London Returning Officer.
Lord Waddington:My Lords, I am only partially grateful for that reply. Is the Minister aware that I first raised this matter as long ago as 2000 during the mayoral election? I pointed out then that voters were being wrongly instructed that they had to vote twice. Is the Minister aware that I returned to the charge at the beginning of 2003 and I raised the matter again in good time for the matter to be put right for the mayoral election in 2004? However, on 4 March this year a series of orders came before the House. Tucked away in one of them was the same wholly improper instruction to voters.
Is it not obvious from the Hansard report of the proceedings on 4 March that no one—the Minister, the noble Lord, Lord Rooker, included—noticed that the order contained the improper instruction? In the debate the noble Lord, Lord Campbell-Savours,
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suggested various forms of wording to bring home to the voter that he had a choice regarding whether to vote once or twice and no one suggested that the noble Lord was wasting his breath, although the matter was cut and dried in the regulations.
Noble Lords:Too long.
Lord Waddington:My Lords, no. This matter is important and I must explain the background. Will the Minister state categorically that voters are not required to exercise a second choice? Will he give a categorical assurance that the Government will ensure that that will be made absolutely clear in future orders?
Lord Bassam of Brighton:My Lords, I have some sympathy for the noble Lord and I congratulate him on his diligence, but in the end I cannot agree with his conclusion. It is made clear to voters that they can vote once for their first choice and once for their second choice. It is up to voters whether they wish to use their second vote.
Lord Waddington:My Lords—
Noble Lords:Order.
Lord Waddington:My Lords—
The Lord President of the Council:My Lords, I really think that this is unacceptable. Perhaps the Minister should finish his answer.
Lord Bassam of Brighton:My Lords, in the guide that is sent to all electors in the Greater London area it is made clear that they have no obligation to make use of their second vote. That was made clear in the mayoral address booklet that was sent to every elector.
Lord Peston:My Lords, can my noble friend enlighten me on a matter of elementary logic? Does my noble friend agree that it does not remotely follow from the proposition put in the Question that one has to exercise a second choice? Indeed, it does not even follow that one has to exercise a first choice. There is nothing in the proposition that says that one must exercise any choice at all and, therefore, the noble Lord, Lord Waddington, is completely misguided—simply as a matter of logic.
Lord Bassam of Brighton:My Lords, I am drawn to conclude that what my noble friend says is absolutely right.
Baroness Gardner of Parkes:My Lords, is the Minister aware that a report published after the first mayoral elections for London on how the elections had been carried out showed that a great number of votes were considered to have been invalid? The reason given to the London group of this House was

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that people had not fully understood the voting instructions. Is it too early to know whether a similar situation exists for this election?
Lord Bassam of Brighton:My Lords, I know that concerns were expressed about the first set of elections for the Mayor and the Greater London Assembly and that greater flexibility was then given to the returning officer with regard to the wording. Fewer ballot papers were spoilt in the most recent elections—a drop of 10 per cent. On an increased turnout, we should be happy with that progress.
Lord Harris of Haringey:My Lords, I declare an interest as a candidate in the recent Greater London Assembly elections—although the question I ask has no bearing on whether or not I was elected. The instruction given suggested that people had two votes in those elections. Many electors followed that to the letter by voting twice in the same column, thereby invalidating their vote. Did the Greater London Returning Officer take advice from focus groups or take other steps to establish whether electors would understand the instructions given to them?
Lord Bassam of Brighton:My Lords, I am not immediately aware of whether the returning officer conducted research with focus groups, but I know that there was extensive consultation. No doubt that will be fed back into the various inquiries which will be undertaken into the conduct of the elections, and suggestions and improvements can be made for subsequent elections.
Lord McNally:My Lords, has the Minister or the Greater London Authority considered inviting electors simply to number their preferences—1, 2, 3, 4—voting for as many candidates as they like? Many trade unions and other bodies use this system, which is clear. Why are we continually making it complicated to vote?
Lord Bassam of Brighton:My Lords, I do not necessarily agree that it was that complex because a large number of electors managed to get it right. We should congratulate them on doing so. However, the noble Lord makes a valid point and no doubt the Greater London Returning Officer will want to consider it in reviewing the outcome of the election.
Lord Biffen:My Lords, will the Minister remind the returning officer that up until and including the 1945 general election there were a number of two-Member constituencies? It was then accepted that one could use only one vote, called a "plumper" vote, and not be required to use the two votes.
Lord Bassam of Brighton:My Lords, it is a matter for the electors. Adequate steps were taken to ensure that people were aware that they did not have to exercise both votes.
Lord Campbell-Savours:My Lords, is the issue here not the advice that was given to returning officers but
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what was written on the ballot paper? The issue that surfaced in the debate earlier this year was the wording on the ballot paper. Can we be assured that, at the next mayoral elections, the proposal made in the debate in February that there be a particular form of wording on the ballot paper to clarify the position is put into effect?
Lord Bassam of Brighton:My Lords, I take my noble friend's point—it is clearly a matter for the Greater London Returning Officer. Doubtless it is an issue to which the returning officer will give full consideration.
Lord Waddington:My Lords, I apologise to the House for having got over-excited earlier. Can I point out to the noble Lord—
Noble Lords:Question!
Lord Waddington:My Lords, can I ask the noble Lord to bear in mind that the regulations do not refer to voters having a choice? They state quite specifically that the voter is "instructed" to vote twice. That is my point—"instructed"—and it is wrong in law.
Lord Bassam of Brighton:My Lords, I do not agree with the noble Lord's interpretation. The regulations are clear. Obviously noble Lords are exercised about this matter and the Greater London Returning Officer will have to consider it, quite properly, in the fullness of time.
Baroness Hooper:My Lords, will the Minister confirm that anyone who voted only once in those elections was not considered to have spoilt his voting paper?
Lord Bassam of Brighton:My Lords, electors were fully entitled to vote just once. The fact that they voted only once did not invalidate the vote.

Seafarers: National Minimum Wage
2.57 p.m.
Lord Harrisonasked Her Majesty's Government:
What are the rules governing the application of the United Kingdom minimum wage for ratings on British-registered merchant ships; and what is the effect of these rules on the recruitment of British ratings.
Lord Triesman:My Lords, the national minimum wage applies to mariners employed on a UK-registered ship unless their employment is wholly outside the UK or they are not ordinarily resident in the UK. Foreign seafarers qualify for the minimum wage when they are serving on UK-registered vessels trading in UK waters.

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The effect of the minimum wage on the recruitment of British ratings depends on the crewing decisions of individual shipping companies, which are matters for the companies themselves.
Lord Harrison:My Lords, I thank my noble friend for that Answer. Is he in a position to say whether the tonnage tax introduced in 2000 has had the beneficial effect of increasing jobs for British ratings? Have the Government considered reforming the Race Relations Act 1976 and the National Minimum Wage Act 1998 to ensure that all ratings on UK-registered ships are paid the full minimum wage?
Lord Triesman:My Lords, recent research by the London Metropolitan University analyses the position on UK ships and that probably provides the current best statistical evidence. It shows that there were about 28,000 active seafarers in 2003, a slight decline from the 30,000 in 1997. The figure has risen again to about 28,000, which represents a small recovery, and there is a parallel small recovery in the number of officers.
There is no loophole in the Race Relations Act. Section 9 was amended last year to allow payment of foreign seafarers at differential rates on UK-registered ships on the ground of nationality only. I point out to your Lordships' House that it is possible—indeed, it is easy—for ships to be reflagged in order to avoid any such regulations.
Lord Bradshaw:My Lords, does the Minister agree that the effect of insisting that all ratings on British ships, wherever they are, are paid at British rates would be a large part of the present British fleet being flagged out to avoid that happening?
Lord Triesman:My Lords, there is a distinct possibility that that is what would happen. It is relatively easy to reflag a ship. Indeed, in the past 24 hours I have come across evidence that, by logging on to an on-line site in Cambodia, one can reflag a ship in slightly under 15 minutes.
Earl Attlee:My Lords, can the Minister say what the situation is with regard to the Royal Fleet Auxiliary?
Lord Triesman:My Lords, I do not think that the Royal Fleet Auxiliary is fully covered, but I shall check that and write to the noble Earl to confirm it.
Lord Harrison:My Lords, can my noble friend say how often the Inland Revenue has inspected UK-registered ships to ensure that the minimum wage is being applied?
Lord Triesman:My Lords, the Inland Revenue is responsible for compliance and, certainly, if it is aware that minimum wage regulations are being broken, it makes inspections. But other inspections are also undertaken under port authority regulations on
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matters of safety on board ships, contamination, and so on. In all such cases, I am happy to say that reports place the United Kingdom's registered ships at the very top of the international league.

Guantanamo Bay: Detainees
3.1 p.m.
Lord Sheldonasked Her Majesty's Government:
What representations they have made to the United States Government concerning the holding of prisoners at Guantanamo Bay.
Baroness Amos:My Lords, we have long said that the British detainees should be either tried fairly in accordance with international standards or returned to the UK. Following discussions with the US, we concluded that US military commissions would not provide sufficient guarantees of a fair trial in accordance with international standards. We therefore asked that all British detainees be returned to the UK. Five returned in March. We continue to work to resolve the situation of the remaining four.
Lord Sheldon:My Lords, I thank my noble friend for that reply and welcome the statement of the Attorney-General that the prisoners in Guantanamo Bay are not being guaranteed a fair trial but that there should be a fair trial in accordance with international law and that there should be no compromise in principle. I note the statements from the Supreme Court, but the fact is that, after two years of incarceration, these prisoners are still being held in wholly unacceptable circumstances. For a country with ideals of liberty, which we have always admired and often copied and which have been an example to the whole world, is this not a matter which merits universal censure?
Baroness Amos:My Lords, my noble friend will be aware that the Government have consistently sought to resolve the position of the British detainees. Our position has been that the British detainees should be either tried fairly in accordance with international standards or returned to the United Kingdom. That has been the core of our argument. We expressed our reservations about the military commissions nearly a year ago and it was on that basis that five detainees were returned. We continue to press the US Government with respect to the other four.
Lord Thomas of Gresford:My Lords, we sit within a stone's throw of the Star Chamber Court. Does the Attorney-General agree with Justice Stevens' opinion, voiced yesterday in the Supreme Court of the United States in the case of Padilla v Rumsfeld, that:
"At stake in this case is nothing less than the essence of a free society ... Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber"?

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Will the Government now support British citizens who are detained in Guantanamo with legal and financial assistance to challenge the lawfulness of their detention in the United States courts, as the United States Supreme Court said they could yesterday?
Baroness Amos:My Lords, we are obviously considering the implications of yesterday's judgment, and it is far too early for me to make any specific comments in relation to it.
The Lord Bishop of Oxford:My Lords, has the noble Baroness received any reports from the International Committee of the Red Cross on whether it is satisfied with the access that it has to prisoners and, in particular, on whether it is satisfied on the issue of mail? Relatives are receiving letters only infrequently and they are very delayed and heavily censored.
Baroness Amos:My Lords, I am aware that some concerns have been expressed by some detainees about the conditions in Guantanamo Bay, including the issue of mail. With regard to the International Committee of the Red Cross, I have not seen any specific reports, but I am happy to write to the right reverend Prelate if any issues relate to the substance of his question.
Lord Howell of Guildford:My Lords, does the noble Baroness agree that the United States Supreme Court majority ruling yesterday guarantees a fair review but it does not necessarily guarantee a fair trial, which is what the noble and learned Lord, Lord Goldsmith, the Attorney-General, understandably called for the other day? Can she explain the Government's attitude to bringing home the remaining four British detainees at Guantanamo? Earlier in the year, it seemed that we were reluctant to have them back. Has the policy now changed on that? If they do come back, what will be their status and what will be the charges against them, and will the evidence for those charges be admissible in British courts?
Baroness Amos:My Lords, I think that the noble Lord, Lord Howell, knows that I shall not be able to respond to much of the detail of the questions that he has just asked me. Following the return of the five detainees, we agreed with the United States Government to continue discussions about the remaining four. The circumstances leading to the return of the five detainees were explained to Parliament at that time. We have had further discussions, which are continuing, but there has not yet been a resolution. As I said in response to an earlier question, we are looking at the implications of yesterday's judgment and it is far too soon for me to say what those implications might be.
Lord Lloyd of Berwick:My Lords, does the noble Baroness agree that the decision of the Supreme Court is particularly welcome at this time as it underlines the importance of the rule of law on both sides of the Atlantic?
Baroness Amos:My Lords, I think that I made it absolutely clear in the responses that I have already
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given that our position has always been that the detainees should be either tried fairly in accordance with international standards or returned to the United Kingdom. That has been at the centre of our approach and it will continue to be so.
Lord Bridges:My Lords, will the Government be offering financial assistance to those detained so that their appeals can be heard expeditiously and efficiently?
Baroness Amos:My Lords, I am not sure to which appeals the noble Lord refers. He will know that a judicial review process is currently taking place in the United Kingdom, on which I am unable to comment, and, of course, we had the ruling yesterday on the cases heard in the US Supreme Court.
Lord Stoddart of Swindon:My Lords—
Baroness Hayman:My Lords, this side, I think. My noble friend will be aware that analogous, although not exactly parallel, concerns have been expressed about the detention regime under Part 4 of the Antiterrorism, Crime and Security Act in this country. Will she ensure that, in the Government's review of those provisions, exactly the same scruples and concerns are taken into account in the regime that we operate for foreign prisoners in this country?
Baroness Amos:My Lords, my noble friend is talking about a very different situation.
Lord Roberts of Conwy:My Lords, can the noble Baroness remind us what has happened to the five who have returned to this country? Are they now facing trial?
Baroness Amos:My Lords, they have returned and, so far as I recall, they are not facing trial. If I am wrong, I shall of course write to the noble Lord.
Lord Stoddart of Swindon:My Lords, while I applaud the efforts of the noble Baroness the Leader of the House and the Government to return British detainees to this country, the Question does not relate simply to United Kingdom detainees; it refers to all those who are detained in very severe circumstances at Guantanamo Bay. Are the Government making strenuous efforts to ensure that the United States obeys the international conventions and the rule of law under which prisoners should not be held in dire circumstances for very long periods without facing charge and proper judicial process?
Baroness Amos:My Lords, I think that I have made our position clear, but perhaps I should repeat it for the noble Lord, Lord Stoddart. We have consistently sought to resolve the position of the British detainees. If noble Lords look at the many statements which have been made, they will see that no other country has visited its detainees as frequently or made such strenuous efforts on their behalf.

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Again, I stress that our position has been that our detainees should either be treated fairly in accordance with international standards or returned to the United Kingdom. When we expressed our reservations over the military commissions last year, it was on the basis that the United States Government suspended all legal proceedings against two of the British detainees at our request.
Lord King of Bridgwater:My Lords, is it not clear, even for those who wish the United States well in the very difficult task that it has undertaken, that we have the greatest concern about the present situation? It has become a public relations disaster for the United States, and it is urgent and important that it makes its case more clearly to the world. In that connection, are the Government making any representations about the fact that the United States is not likely to have an ambassador in this country for the following six months?
Baroness Amos:My Lords, obviously the length of time that the United States takes to place an ambassador is very much a matter for it. The noble Lord will know, as I have said in response to many questions, that we have been strenuous in the representations we have made to the United States Government with regard to the position of the British detainees.

Regional Assemblies
3.12 p.m.
Baroness Hanhamasked Her Majesty's Government:
When the Bill on the powers and responsibilities of the regional assemblies will be introduced.
Lord Bassam of Brighton:My Lords, we will introduce a Bill to establish elected regional assemblies when one or more regions has voted in favour of establishing an assembly in a referendum. Our intention is that there should be referendums in the three northern regions this autumn. We will publish a draft Bill in July when Parliament has approved the date of the referendums.
Baroness Hanham:My Lords, I thank the Minister for that reply. In view of that response and as it is expected that the referendums will take place in the autumn, does the Minister not accept that to publish the powers and responsibilities of the regional assemblies some time in July, which will be probably less than a week or two before the Summer Recess, and with Parliament sitting for only two weeks in September, means that there will be very little time for this House to consider those powers and responsibilities? Can he give an assurance that opportunities will be presented to the House to discuss the powers and responsibilities in the draft Bill in good time before the start of a referendum campaign?
Lord Bassam of Brighton:My Lords, I understand the point made by the noble Baroness. I am sure that
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there will be plenty of time for debate following the referendums. As regards time for debate before the referendums, clearly that is a matter which should be properly discussed through the usual channels. No doubt there will be sympathy for that discussion.
Lord Renton:My Lords, how many millions of pounds will these regional assemblies cost our people, and are our people not already well represented in the House of Commons, county councils, district councils and in other ways?
Lord Bassam of Brighton:My Lords, I hear what the noble Lord says. In the end it will be for the people to decide. That is the purpose of the Government setting out a programme which enables people to vote in the regions on whether they wish to have a regional assembly. The Government take the view that regional government is of benefit, and no doubt many people agree with that.
Lord Alton of Liverpool:My Lords, will the Minister return to the point made by the noble Baroness, Lady Hanham; that is, that there should be proper parliamentary scrutiny of the Bill and proper debate in both Houses before these questions are put to a referendum? There is great anxiety in the north-west of England about the nature of the powers that will be given to the regional assemblies. Does the Minister not agree that those issues should be explored in this place and another place before they are put to the people?
Lord Bassam of Brighton:My Lords, in the six and a half years that I have been in your Lordships' House I have never noticed its failure to take these matters seriously and to scrutinise in great detail Bills that come before it. I am sure that there will be ample opportunity for proper scrutiny of the powers and functions of the regional assemblies. I understand that the Select Committee on the Office of the Deputy Prime Minister has announced its intention to hold an inquiry into the Bill and will examine how it may work. I am sure that that and other opportunities within the parliamentary timetable will exist for adequate scrutiny.
Lord Newby:My Lords, there are those of us who, like the Government, are keen to see the referendums reach a successful conclusion but our campaigns are being hobbled at the moment. We do not know what proposition we shall advocate to the electorate in the regions because we do not have a draft Bill. Does the Minister accept that to say that the question of whether there is adequate debate is up to the usual channels strikes many of us as completely unacceptable? Until we see a draft Bill we cannot have any kind of debate, far less any assurance, on the basis on which these referendums will be fought.
Lord Bassam of Brighton:My Lords, I do not hear people say that the usual channels do not work. Obviously there will have to be discussion there so that there can be debate before the referendums take place. I

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do not agree with the noble Lord's assessment that there is a hobbling of the opportunity for debate generally. In the White Paper, Your Region, Your Choice, the Government made clear the way in which they wish to address these matters. I am sure that there will be ample opportunities for thorough debate on what I think we all agree are important issues.
Lord Elton:My Lords, does the Minister recall the question asked by my noble friend Lord Renton; namely, what will these assemblies cost the people who are represented by them? What calculations have the Government made of that?
Lord Bassam of Brighton:My Lords, I do not have costings that I can provide today to your Lordships' House. I am happy to go away and see what figures exist. We have made plain our intention in this policy area. We spelt it out very clearly in the White Paper. In the end it is for the people to make the choice, and that is as it should be.
Lord Shutt of Greetland:My Lords, what are the Government doing to excite the people that there will be something really worth while in these regional assemblies?
Lord Bassam of Brighton:My Lords, I rather thought that the noble Lord was quite excited by them. Perhaps he can help us with this. We have been undertaking an information campaign over the past year or so, and I understand that there has been a very interested response. People are participating in public meetings and gatherings to discuss what might happen as a result of successful referendums. I am sure that any words the noble Lord can say to assist in that process will be gratefully received.
Lord Brooke of Alverthorpe:My Lords, if there is concern about the time available to address this legislation, will my noble friend convey to the usual channels that this House would be willing to meet exceptionally in the mornings to do that?
Lord Bassam of Brighton:My Lords, I think that the usual channels have probably heard those words already.
Lord Renton of Mount Harry:My Lords, what will be the difference in powers between those regional assemblies that are elected and those that are not elected, such as in the south-east of England where I assume they will continue to exist? What powers will the non-elected regional assemblies continue to have?
Lord Bassam of Brighton:My Lords, the non-elected regional assemblies will no doubt continue as they are. The elected regional assemblies will have a wide range of involvement in issues such as sustainable development,
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economic development, housing strategy, jobs, skills, and planning. We have made clear our proposition on this and it is for the people to make a judgment.
Lord Brooke of Sutton Mandeville:My Lords, does the Minister agree with his noble friend Lord Rooker that the existence of regional assemblies that are not sustained by legislation and the ones that may be if the referendum is successful is an Orwellian state of affairs?
Lord Bassam of Brighton:My Lords, the noble Lord puts me in a difficult position. I think that I shall have to settle for agreeing with my noble friend Lord Rooker.
Baroness Hanham:My Lords, in the light of these exchanges, can the Minister confirm that he has no idea when the Bill will be published? Can he also confirm that it is not the usual channels which will decide when the Bill is published? It is the usual channels which, presumably, will be given an indication as to when the matter is to be debated. Can he further confirm that if there are to be regional referendums in the autumn there is now insufficient time for this House and the other place to consider in the normal processes of Parliament the Bill that is to be introduced?
Lord Bassam of Brighton:My Lords, I simply do not agree with the noble Baroness. I made it plain that we intend to publish a draft Bill this July. It is for discussion whether there should be debate around the draft Bill in your Lordships' House. I hope that there is, but that is something for the usual channels to sort out. Following publication of the draft Bill there will be ample opportunity for scrutiny.

Euro 2004: Mr Garry Mann
3.20 p.m.
Lord Acknerasked Her Majesty's Government:
Whether the comments made by the Home Secretary about Mr Garry Mann on Mr Mann's return from Portugal and after his appearance before the Uxbridge magistrates were in accordance with government policy, and in particular the reported comment that the Home Secretary intended to "nail this individual".
The Minister of State, Home Office:My Lords, the individual concerned was convicted in Portugal of participating in, and leading, a riot and was sentenced to two years' imprisonment. The Home Secretary's concern was, and remains, seeing that any individual who is convicted by a court does not escape his sentence because of a technicality. My right

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honourable friend the Home Secretary remains committed to co-operating with the Portuguese authorities.
Lord Ackner:My Lords, has the noble Baroness read the article by Simon Jenkins published in the centre page of the Times last Wednesday, which stated that knee-jerk David Blunkett is:
"The judicial equivalent of a football hooligan".
Does she take the view that a senior judge—perhaps our reluctant Lord Chancellor—might be prepared to explain to the Home Secretary the fallacy of the proposition that any publicity is better than none? He might also be prepared to continue by pointing out to the Home Secretary that his intemperate outburst seriously undermines the integrity of that great department of state, the Home Office.
Baroness Scotland of Asthal:My Lords, I regret to tell the noble and learned Lord that I did not have the advantage of reading Mr Simon Jenkins's article last week. Needless to say, I do not agree with the noble and learned Lord's assessment. As to any tutelage that the noble and learned Lord the Lord Chancellor may see fit to give my right honourable friend the Home Secretary, I believe that may not be something that the Lord Chancellor would be likely to take up.
The suggestion that my right honourable friend the Home Secretary has behaved improperly in this regard is not one with which I feel able to agree.
Lord McNally:My Lords, would the Minister agree that the interference of the Home Secretary, which is not an isolated case, detracts from the great success of the campaign against soccer hooliganism; and that if he generalised his comments and committed himself to nailing soccer hooligans between now and the World Cup in two years' time he would get general support?
Baroness Scotland of Asthal:My Lords, I hear what the noble Lord says. I do not accept that my right honourable friend the Home Secretary has interfered in any improper way. I accept that some would rather he had expressed himself more felicitously. For instance, if he had said, "We wish to uphold the rule of law and act in comity with our Portuguese colleagues and enforce their judgments", I should imagine that the whole House would say, "Hear, hear!". He chose more colloquial language.
Lord Faulkner of Worcester:My Lords, following the point made by the noble Lord, Lord McNally, has my noble friend seen the very welcome statement issued this morning by UEFA, the European football governing body, praising England fans for their behaviour during Euro 2004. It states:
"The English authorities have worked hard in the last 10 years. Their work is starting to bear fruit and they should be commended. There has been a change in the make-up of England fans and we need to keep out the hard element".
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Is that not a great tribute to the work of my noble friend Lord Bassam of Brighton and his working group on football hooliganism, and a tribute to the good sense of this House and the other place in passing the Football Spectators Act 2000? It has made a real difference and for the first time one can be proud to be an England fan watching the team abroad.
Baroness Scotland of Asthal:My Lords, I agree without reservation with my noble friend.
Lord Hodgson of Astley Abbotts:My Lords, will the Minister comment on the view of Fair Trials Abroad that the recent comments of the Home Secretary in relation to Mr Mann will prejudice any chance of a fair retrial?
Baroness Scotland of Asthal:My Lords, I do not think that that is right. The matter will be dealt with by the Portuguese authorities, not here. I have already made it plain that although some may wish that my honourable friend had expressed himself differently, the import of his comments was clear.
Lord Maginnis of Drumglass:My Lords, surely government must adhere to a policy that justice should be seen to be done; or do they?
Is there not a similarity, in essence, to cases in Northern Ireland where public officials, given inadequate protection against terrorism and having had to employ pragmatic measures, can find themselves charged with offences that would not in themselves merit a criminal conviction? Otherwise, these "fall-guys" would not be held over for periods well in excess of a year, so that more dubious evidence can be accumulated out of time and certainly out of context. Is that justice?
Baroness Scotland of Asthal:My Lords, perhaps we could remain within the context of this Question. The Portuguese authorities applied the rules. Your Lordships will know that in this case the defendant had an opportunity, if he so chose, to postpone the hearing for 30 days. He chose to have an expedited hearing. It was a valid process within the meaning of the Portuguese law.
Lord Tomlinson:My Lords, does my noble friend agree that in this case government policy was communicated to the population with great clarity? Could she urge her ministerial colleagues throughout government to communicate government policy with equal clarity on all other matters, so that it can be just as easily understood?
Baroness Scotland of Asthal:My Lords, I know that many would prefer Anglo-Saxon terms to others.
Lord Roberts of Conwy:My Lords, does the noble Baroness not agree that it is quite clear to all of us that the Home Secretary, by using the words he did, has scored an own goal?
Baroness Scotland of Asthal:My Lords, I do not agree.
Viscount Bledisloe:My Lords, does the noble Baroness agree that the fact that a very senior

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government Minister can make remarks of this kind which are—to put it at its lowest—ambiguous, is a very clear demonstration of why it is important to have and to retain in the Cabinet a senior judicial and judicious figure who can seek to preserve his colleagues from these unfortunate errors? Does she also agree that noble Lords not cognisant of this point would do well to bear it in mind when we come to debate the Constitutional Reform Bill?
Baroness Scotland of Asthal:My Lords, I have to say to the noble Viscount that I am surprised that he should suggest that my right honourable friend the Home Secretary was "ambiguous" in any way. I think that the reverse is true.

Human Tissue Bill
Brought from the Commons; read a first time, and ordered to be printed.

Traffic Management Bill
3.29 p.m.
Report received.
Clause 1 [Traffic officers: introduction]:
Lord Peyton of Yeovilmoved Amendment No. 1:
Page 1, line 9, leave out "management" and insert "movement"
The noble Lord said: My Lords, I think that it is common ground between us that congestion is a nuisance and a source of irritation and expense. It may surprise the Minister to learn that I am ready to applaud the Government for bringing forward what seems a sensible Bill. I would welcome it even more warmly if the Minister, in replying to this very modest amendment, which I shall explain in a moment, could assure me that he was satisfied that the new powers given to the Highways Agency and the additional powers given to local authorities would be used. I am far from satisfied about that at the moment, because my own observations lead me to think that the highway authorities and the Highways Agency are extremely dilatory in some of their operations and thereby contribute considerably to blockages, which are a nuisance to us all.
This is a very modest and crude amendment. I do not for one moment expect the noble Lord to accept it; it would shock me if he did. But I seek an assurance—I hope that I have the attention of the noble Lord, Lord Davies of Oldham. I realise now that the noble Lord, Lord Evans, is to reply. I am glad that his attention is riveted on what I say.
In the past there has been a large measure of just going along with congestion as an inevitable fact of life. There has been no will on the part of government, local authorities or the Highways Agency to take steps to promote movement. When I was the Minister responsible for transport many years ago, I developed the rather old-fashioned idea that highways were
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for movement. I would be grateful for a generous acknowledgement by the Minister that he and the Government whom he represents rate highly the idea of freedom of movement, and that it ought not to be sacrificed in the way that it has been in the past— that is all that I expect today.
Both the Highways Agency and local authorities can be blamed for the irritating habit of coning off large sections of road and leaving the restrictions in place in the pious hope that something may happen in their absence. It does not.
My attitude to the whole Bill will depend on my getting a satisfactory answer from the noble Lord that the desirability of movement on the highways will not be lost sight of and that it will be secured only if the measures in the Bill are accepted by those who give them an opportunity, with pleasure and determination. I beg to move.
Lord Borrie:My Lords, I had the unworthy thought that perhaps there is just a small element of mischief in the mind of the noble Lord, Lord Peyton of Yeovil, because much of the Bill is concerned with easing movement, getting rid of congestion and dealing with traffic disruption.
Given that the noble Lord's amendment is based specifically on Clause 1 and the duties of the traffic officer, surely it will not have escaped his attention that in Clause 5, which sets out the special powers of the officer, the phrase "movement of traffic" appears at least twice. Clause 5(3) refers to the duties of the officer to maintain or improve the "movement of traffic". It also refers to,
"preventing or reducing the effect of anything causing ... congestion or other disruption to the movement of traffic".
Later on, when dealing with the highway authorities, the Bill is drafted in the same vein. Surely, there is no disagreement between Ministers and the noble Lord on the essence of what is being said about the need for the relevant authorities to ensure proper movement of traffic and to avoid congestion. I shall be amazed if the Minister disagrees with that, and if he wishes to accept the amendment.
Lord Evans of Temple Guiting:I am most grateful to the noble Lord, Lord Peyton, for welcoming the Bill. He asks for reassurances; I hope that I can give them to him. He seeks a generous acknowledgement that the Government have taken on board his amendment. But I underline the point that my noble friend Lord Borrie has just made: the main purpose of the Bill is to keep traffic moving. The point was made over and over again in Committee in the Moses Room, where, I know, the noble Lord, Lord Peyton, finds the acoustics dreadful. But there is no question but that keeping traffic moving is the fundamental point that underpins the Bill.
The use of the expression "management of traffic" is broad, encompassing the core activities that we intend traffic officers to undertake. It accurately captures the essence of a traffic officer's function and is also well understood by all stakeholders. Although a primary objective of traffic management is to help to keep

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traffic moving, traffic management may at times involve stopping or delaying traffic. For example, in the event of a road accident, it may be appropriate and necessary to close a road or part of a carriageway.
Traffic officers will have the power to stop traffic and may use that power to avoid danger to persons or other traffic. In such cases, the traffic officer's duties and powers are used, not to keep traffic moving, but to protect people and property. Another example would be their powers to stop and direct traffic at traffic surveys. That would inevitably delay traffic, albeit for a very good reason.
We therefore consider that "management" is a more apt word than "movement", particularly in the light of the underlying principle that we wish to keep traffic moving. I will hold my breath in the hope that the answer that I have given the noble Lord, Lord Peyton, satisfies him. If it does, I hope that he will agree to withdraw his amendment.
Lord Peyton of Yeovil:My Lords, I am very happy to declare myself entirely satisfied with what the noble Lord has said. He will recognise that it is far from the case that my anxiety springs from a desire to be mischievous, as suggested by the noble Lord, Lord Borrie. I am cut to the quick by the idea; I have no such intention. I am concerned that many of the powers to which the Bill will add have been unused in the past. I am sure that the noble Lord and the Government appreciate that. I take the whole Bill as evidence of that. However, I hope that they will keep their mind on the fact that energy in this field has not been particularly visible in either the Highways Agency or the local authorities. I hope that the noble Lord will bear that in mind. Meanwhile, I am happy to beg leave to withdraw the amendment, which, as the noble Lord said, I never intended to press to a Division.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guitingmoved Amendment No. 2:
Page 2, line 7, leave out "provided for by section 5" and insert "referred to in section 5(1)"

The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 5 and 10. All three amendments are small drafting improvements to improve consistency and accuracy. They have no policy implications.
Amendment No. 2 relates to the first clause and is to replace the words, "provided for by section 5" as they appear on page 2, line 7, with the more accurate wording, "referred to in section 5(1)".
Amendment No. 5 relates to Clause 5 and is to replace the word "regulations" as it appears on page 3, line 11, with the word "orders", for consistency with Clause 8, which uses the word "orders" not "regulations".
Amendment No. 10 relates to Clause 11 and is to replace the word "granted" as it appears on page 6, line 13, with the word "given", for consistency with Clause 2(2) which uses the word "given" not "granted". I beg to move.
On Question, amendment agreed to.
Clause 2 [Designation of traffic officers]:
Lord Peyton of Yeovilmoved Amendment No. 3:
Page 2, line 14, leave out paragraph (b).
The noble Lord said: My Lords, this amendment is grouped with Amendment No. 4, and they suggest that Clause 2(1)(b) and Clause 2(5) should be deleted. I want to know why those provisions are in the Bill. Are they necessary? I beg to move.
Viscount Astor:My Lords, I did not intervene on the first amendment of my noble friend Lord Peyton because I was sure that the Minister was going to give him a satisfactory answer, which he did. We are grateful.
My noble friend Lord Peyton has raised an important point about the designation of traffic officers. In the Explanatory Notes, the Government state that in the longer term there is the option to employ contractors to provide traffic officers. It would be helpful to the House if the Minister could say what they mean by "the longer term" and when they would consider that these traffic officers could be employed by external service providers.
Lord Evans of Temple Guiting:My Lords, I hope that I will be able to satisfy both noble Lords about this amendment. Traffic officers in England will be designated by the Secretary of State and will be employees of the Highways Agency, and there are no current plans to do otherwise. In fact, in the other place my right honourable friend the Minister made that clear when he said that there are no plans to contract out and that,
"the Government are keen to influence the development of the new role".—[Official Report, Commons Standing Committee A, 27/1/04; col. 37.]
However, the Government wish to retain the flexibility to be able to exercise the option of employing contractors in the future. We would consider this only where there are clear value for money benefits and benefits for road users, without undermining the integrity of the service.
For example, this might be a suitable option for limited parts of the network, such as a tunnel or a bridge. Indeed, the Dartford and Severn crossings have already set a precedent where the operator or concessionaire may directly appoint persons as traffic officers or similar. For this reason, the Government are not happy to take out the flexibility that Clause 2 provides to enable the use and development of new procurement and service delivery options in the future. Because we have no plans at all to take advantage of this flexibility at the moment, it is impossible to put a time scale on our determination not to contract out, but I hope that the explanation that I have given is satisfactory to the noble Lord and he will agree to withdraw his amendment.
Lord Peyton of Yeovil:My Lords, once again, I hope that the noble Lord, Lord Borrie, will forget entirely that word "mischief" as applied to myself. I am happy to say that I am content to withdraw the amendment.

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I shall read with care what the Minister has said, but he has made a useful contribution to my peace of mind. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 4 not moved.]
3.45 p.m.
Clause 6 [Powers to stop or direct traffic]:
Lord Evans of Temple Guitingmoved Amendment No. 5:
Page 3, line 11, leave out "regulations" and insert "orders"
On Question, amendment agreed to.
Viscount Simonmoved Amendment No. 6:
Page 4, line 25, leave out subsection (4).
The noble Viscount said: My Lords, this amendment is grouped with Amendment No. 9. My principal concern is why Highways Agency traffic officers require the same power to stop any vehicle in the same way as a police constable. It seems to be a general power with no specific purpose, which could lead to some confusion.
I am aware that consideration is being given elsewhere for non-police to offer fixed penalty notices, both endorsable and non-endorsable, for moving traffic; that is, criminal offences. Unless this enforcement is always done as a conditional offer by post, non-police will need to stop vehicles.
That leads me on to Amendment No. 9, which would allow the traffic officer to stop a vehicle only for offences for which the officer can prosecute under this Bill and for no other reason. I beg to move.
Lord Davies of Oldham:My Lords, my noble friend seeks to remove the power for traffic officers to stop traffic as set out in Clause 6(4) and add a power to stop traffic in Clause 10(4). The effect of his amendment would be to stop traffic officers from being given the power under Section 163 of the Road Traffic Act 1988 to stop vehicles. This power is necessary for traffic officers to be able to carry out their functions effectively.
It is true that under Clause 6 traffic officers will already be given the power of Section 35 of the 1988 Act to stop traffic. However, the Section 35 power may only be used where the traffic officer is,
"engaged in the regulation of traffic".
Section 163 does not contain that qualification. This means that it could be used in circumstances where the primary duty being carried out by the traffic officer was not clearly "the regulation of traffic" as such, for example, escorting an abnormal load, or on patrol on a motorway. He might notice that a tarpaulin cover on the back of a lorry was coming off and thus liable to cause an accident, and he may pull the vehicle over to get the driver to secure it properly. I stress that the use of Section 163 by a traffic officer would not be unlimited. It would be restricted by Clause 5 to the purposes defined in subsection (3), such as avoiding danger to other traffic using the road.
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It is on that basis that my noble friend will recognise that there are limited but nevertheless necessary powers with regard to this position, which are slightly wider than his amendment would permit. I hope that with this explanation, the noble Lord will be prepared to withdraw his amendment.
Viscount Simon:My Lords, I am delighted with the full and clear explanation given by my noble friend. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astormoved Amendment No. 7:
After Clause 8, insert the following new clause—
"GUIDANCE AS TO EXERCISE OF TRAFFIC OFFICERS' POWERS

The appropriate national authority may—

publish guidance as to the exercise of any powers conferred on traffic officers by or under this Part, or

approve for the purposes of this Part any such guidance published by another person.

A traffic officer shall have regard to any such guidance in exercising any such powers to which the guidance is relevant.

Before publishing or approving any guidance under this section, the appropriate national authority shall consult and have regard to any representations made by—

such bodies representing the police,

such persons who exercise functions as undertakers in relation to street works or apparatus in streets, and

such other persons,

as the authority considers appropriate.

In this section—

"undertakers" has the meaning given by section 48(4) and (5) of the New Roads and Street Works Act 1991 (c. 22) (streets, street works and undertakers), and
"street works" has the meaning given by section 48(3) of that Act."
The noble Viscount said: My Lords, this amendment would ensure that guidance issued to traffic officers also deals with how to handle street works activity, and that the undertakers of street works are consulted on the guidance. The utility companies have argued that the objective of traffic officers of keeping traffic flowing must be tempered with the additional objective of paying due regard to the need to provide and maintain other essential services.
The Minister has indicated that traffic officers will operate primarily on motorways and major trunk roads where there are proportionally fewer street works. It is none the less important that guidance issued to traffic officers should also deal with how to handle street work activity. Indeed, at an earlier stage, the Minister indicated that guidance would cover this point. Perhaps I may give an example. Where a permit has already been issued, traffic officers should have the power to stop street works only under limited and agreed conditions.
The Minister in another place confirmed that the Highways Agency is already in the process of introducing a system of governance to guide traffic officers in their existing duties and powers. However, he also indicated that there would be clear guidance on how officers should operate in connection with those carrying out work on

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roads for the Highways Agency or the utilities. It is therefore right and proper that the utilities should be included in the consultations promised by the Minister. Perhaps the noble Lord, Lord Davies, could repeat that assurance.
In our debate in Committee the noble Lord indicated that there was merit in the arguments I put forward, in particular in support of this new clause. But in his reply he also stated that he thought the new clause unnecessary because the national authority can issue guidance. However, the purpose of the new clause was not only to ensure that new guidance could be issued, but also to ensure that any guidance issued takes account of the consultation held with all interested parties, specifically including the statutory undertakers of street works.
In his reply the Minister focused on motorways where, as he rightly indicated, there are severe restrictions on statutory undertakers carrying out works. However, he neglected to refer to trunk roads where many street works take place and where traffic officers will perform their duties. Given that, is the noble Lord able to give me the assurances that I require? I hope that he will be able to do so and that he will realise that I am trying to be helpful in this process, enabling the Government to clarify what will and will not be included in guidance. I beg to move.
Lord Davies of Oldham:My Lords, I have some sympathy with the arguments put forward by the noble Viscount, but he will recognise that his new clause is exactly the same as that which we debated in Grand Committee. Although I understand the intention behind it, I have to report to the House that our views have not changed on the desirability of the proposed clause. It is unnecessary because the appropriate national authority may issue guidance already and does not need a specific statutory power to do so.
Indeed, formal guidance would normally be appropriate only where an authority is providing it to a third party carrying out functions on its behalf. However, the traffic officer service will be provided by the appropriate national authority, so it is not necessary to have a statutory power, and certainly not a statutory duty, for the publication of guidance to be set out on the face of the Bill.
In practice, and this is where I come close to the arguments articulated by the noble Viscount both today and in Grand Committee, operational guidance is a necessity. I acknowledge that what was sought in Committee was a reassurance in relation to such guidance. As most noble Lords will be aware, traffic officers, albeit without the powers proposed in this Bill, are already operating in the West Midlands. I can assure noble Lords that they are following a comprehensive set of working agreements, procedures and guidelines drawn up by the Highways Agency and the police that are already in place. These arrangements are working well, but will remain under review and will be subject to change when traffic officers are able to use the powers that this Bill seeks to provide.
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I can assure noble Lords that these documents have been prepared by working closely with the police. There has also been consultation—addressing the burden of the noble Viscount's remarks—where appropriate with other stakeholders, including local authorities, maintenance contractors and breakdown recovery service organisations. This consultation and liaison will continue.
With those assurances, I hope that the noble Viscount will feel that the main issues put forward in tabling his amendment have been addressed and that he can withdraw his amendment.
Viscount Astor:My Lords, I am grateful to the Minister for that reply. I think that he has given me the assurances I require. However, I was not quite clear whether he said that the utilities would be included in the consultation. He mentioned a number of bodies, which I think included the utilities, but it would be helpful if he could confirm that.
Lord Davies of Oldham:My Lords, I am happy to clarify the point. The utilities would be included in such consultation.
Viscount Astor:My Lords, I am most grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 [Removal of certain vehicles by traffic officers]:
Viscount Astormoved Amendment No. 8:
Page 5, line 19, at end insert—
"( ) In any regulation made under section 9(1), the Secretary of State shall not remove the right of a person present whose vehicle is to be removed pursuant to section 99(1)(b) of the Road Traffic Regulation Act 1984 (c. 27) (removal of vehicles illegally, obstructively or dangerously parked, or abandoned or broken down) to choose who shall remove the vehicle unless it would, in the reasonable opinion of the traffic officer, be unreasonable to do so due to an imminent danger to persons using the road or because the vehicle is causing an obstruction on the road."
The noble Viscount said: My Lords, this amendment also refers to the perennial problem of this Bill in that so much of it is to be left to secondary legislation and guidance. We have to accept the assurances of the Minister that his department will deal with this in a way that noble Lords find satisfactory. As a result I have to come back to the Government on this because they have gone some of the way, but not all the way. I seek two specific assurances, which I hope that the Minister will be able to give, that will certainly satisfy those involved in the rescue of motorists who break down.
This amendment would put on the face of the Bill an undertaking that the Government will not interfere with the right of individuals to choose who should rescue them, assuming that they are not obstructing traffic on the carriageway or posing a danger. We had a lengthy discussion about this in Grand Committee which resulted in two simple questions that I want to pose to the Minister. I hope that he will be able to give me satisfactory answers.

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First, in the secondary legislation, will the Government ensure that a motorist who breaks down on the hard shoulder of the motorway but does not cause an obstruction is to have the right to choose who will rescue him? Concern has been expressed by motorists and the rescue services about the risk of double charging. The Highways Agency will immediately ring a local contractor who will move the car off the motorway, but will not do anything more than that. The result will be a charge of just over £100. while the motorist will still have to call one of the other services to which he belongs, incurring a second charge. If the Minister can give me that assurance, it would be most helpful.
Secondly, we are concerned that unintentional muddles could be caused, ultimately resulting in motorists incurring higher costs. We want to make sure that traffic officers will not intervene if a vehicle is not obstructing traffic or posing a danger unless specifically asked to do so.
We have accepted the Government's assurances that they do not want to set up their own breakdown service. But we are concerned that the Highways Agency will use local contractors who could. in effect, re-charge the motorist. I know that the Minister's department has been in discussion with the rescue services, so I would be enormously grateful for his assurances. It will enable us to move on from this issue. I beg to move.
Lord Borrie:My Lords, I have much sympathy with the amendment proposed by the noble Viscount, Lord Astor. It could be called the "Automobile Association amendment", but is none the worse for that. The association is voicing a fear on behalf of millions of motorists belonging to that body. Other bodies engage in this exercise for a fee and provide a pretty satisfactory service overall. Unless there is an exceptional case of "imminent danger"—the phrase used by the noble Viscount in his amendment—surely there is no case for creating a situation in which the motorist is charged twice over.
I doubt whether there is a need for the amendment. We all hope that the Minister will be able to give a satisfactory assurance on this point. I cannot imagine that the highway authorities would wish to get involved in anything more than dealing with emergency and disaster situations.
4 p.m.
Viscount Simon:My Lords, all I would like to add to the amendment is the consolation—or whatever one may wish to call it—that when the Bill becomes an Act traffic officers will give to someone who has broken down the same leeway as at present if he or she has already called an emergency organisation.
Lord Davies of Oldham:My Lords, I am grateful to all noble Lords who have participated in this short debate. I am particularly grateful to my noble friend Lord Borrie, who has taken the words out of my mouth with regard to why the amendment is
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unnecessary and the basis of the assurances that we need to give in order to render it unnecessary. I agree with his remarks in that respect. I also agree with my noble friend Lord Simon. I can give him a full assurance on the point that he raised. The same situation will obtain for motorists when traffic officers are exercising their powers as obtain at present when the police are exercising theirs.
As the noble Viscount, Lord Astor, indicated, we have had discussions on this issue at each stage of the Bill thus far. This has been concomitant with the discussions taking place outside Parliament between the Government and the motoring organisations, which have been conducted, I am pleased to report, in a constructive vein. I understand that since Grand Committee the RAC and Green Flag have both written to my honourable friend the Minister indicating that they would be willing for their concerns to be addressed by secondary legislation rather than by any amendment to the Bill. The noble Viscount is right to articulate his concerns. However, I hope that he will recognise that those who express the greatest worries about the situation do not wish to see the Bill amended on this point.
The Government have consistently indicated that the proposed regulations would give traffic officers powers similar to those currently held by the police. The Minister indicated in correspondence with the motoring organisations that the Government would consider, in consultation with them, whether there is a need to set out more fully in the regulations or in other guidance material the criteria for the removal of broken-down vehicles by traffic officers. That consultation is taking place on the basis of the point articulated in this short debate—namely, that there should be no threat to the existing system whereby decisions are taken by the motorist as to which motoring organisation should be employed to remove the vehicle, except in those exceptional cases where the police at present, and traffic officers in addition in the future, need to institute immediate action in an emergency and as a matter of road safety.
Officials have prepared the groundwork for this. A working group, with representatives from the recovery organisations, has been established to help the Highways Agency to develop the detail of the policy and its implementation programme, including the preparation of the secondary legislation to which I have referred. It will also draft a memorandum of understanding setting out how the traffic officers service and the on-road services provided by the breakdown organisations will inter-relate in practice.
I am happy to repeat the assurances given by the Government that the Highways Agency will not operate an alternative vehicle breakdown recovery service. On that basis, I hope the noble Viscount will feel that he has had the necessary assurances and will withdraw the amendment.
Viscount Astor:My Lords, I thank the Minister for his assurances, as far as they go. I shall study carefully what he has said. If I consider his assurances are satisfactory, I shall have no need to come back to the

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matter at Third Reading. However, if I consider there are chinks in them, I shall reserve the right to do so. In the mean time, I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 [Offences]:
[Amendment No. 9 not moved.]
Clause 11 [Uniform]:
Lord Davies of Oldhammoved Amendment No. 10:
Page 6, line 13, leave out "granted" and insert "given"
On Question, amendment agreed to.
Clause 16 [The network management duty]:
Viscount Astormoved Amendment No. 11:
Page 7, line 25, at end insert—
"( ) The Royal Parks Agency in considering or proposing a new closure or restrictions in any part of the road network under its control, or in assessing the results of any such experiment, shall have a duty—

to have regard to the effects of any such closure or restriction on the road networks controlled by local authorities embracing or abutting on the park or parks concerned;

to consult with those authorities and to consider the results of any local ballot concerning the proposed closure or restriction that may be conducted by those authorities; and

not to make permanent any experimental closure or restriction that the other authorities concerned consider to conflict with their duties under this section."

The noble Viscount said: My Lords, the amendment would ensure that the Royal Parks Agency had a duty to take into account the possible effects it may have on the road network of surrounding boroughs and to consult those local authorities in the light of any changes it proposes to make.
The Minister will be somewhat relieved that this issue was debated in detail on Friday by my noble friend Lady Hanham, with the noble Lord, Lord McIntosh, responding for the Government. That debate concerned the speed limit in Richmond Park, which the Royal Parks Agency has lowered to 20 miles per hour. I do not wish to go into the merits of whether the speed limit should be 20, 30, 40 or even 10 miles per hour; however, it is important that the Royal Parks Agency should have a commitment to consult the boroughs in which it is situated and which surround it. That is the main issue.
A local park may not be a park in isolation; some parks have major thoroughfares running through them, and some have strategic roads which are important to Transport for London with regard to the movement of traffic. The Royal Parks Agency has a habit of making up its own mind and, for example, closing gates. It wanted to close two gates in Richmond, but there was an outcry because those living south of the park found that such an action would treble the time of their journey to the local hospital. Ultimately, only one gate was eventually closed. However, it was not a satisfactory process.
Local councils represent the local populace; they are their elected representatives. It is only fair that the Royal Parks Agency should, at the very least, have a duty to consult local authorities before it makes any
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changes. The amendment is reasonable. The noble Lord, Lord Berkeley, has tabled a similar amendment, although I have no idea whether it is better than mine. I shall listen with care to the Minister's response. I hope he realises that this is a serious local issue and that those who live next to parks in London feel that it is important that decisions should not be made without any reference to their elected representatives. I beg to move.
Lord Berkeley:My Lords, in speaking to this amendment I shall refer also to Amendment No. 95. The noble Viscount, Lord Astor, has demonstrated very well the perceived lack of democratic accountability with regard to the Royal Parks, an issue which was also referred to in the debate in your Lordships' House on Friday. It is particularly true on the highways and traffic management side.
I moved an amendment in Committee that would have enabled Transport for London to give directions to the Royal Parks, at least with regard to strategic roads. The Minister quite rightly said that TfL could not give instructions to the Government, the Royal Parks Agency being a government body. But, as we said on Friday, do the Government really need to worry about whether people take photographs or light bonfires in Royal Parks; have they not got more important things to do? However, that is a slightly different issue, to which we shall return.
I still get the impression that there are seriously bad communications between the Royal Parks, local authorities and some surrounding residents. I was advised that the best answer would be to move an amendment transferring the responsibility for highways and traffic in the Royal Parks from the Department for Culture, Media and Sport to local authorities. I received a communication from Westminster City Council which said that it would welcome such a move. I do not know whether it is a good idea or a bad idea, but it would enable TfL to give instructions to the city council in respect of any strategic roads running through the Royal Parks, such as the Mall, Constitution Hill and so on. I was then advised that the amendment was not acceptable to the clerks so I tabled the present amendment, which takes the Road Traffic Regulation Act 1984 a step further. Rather than just consult, the two or three parties—the Royal Parks, the Highways Agency and Transport for London—would have to reach agreement. That might help.
I shall briefly explain the reason for my amendment. It is not a vendetta against the Royal Parks on the part of me or anybody else. A Written Answer which I received yesterday illustrates my argument. It concerned the lovely party celebration that has been taking place in Hyde Park. The Royal Parks will receive £1.1 million of revenue for it, which is great. However, in the process of setting up and operating the event, it closed North Carriageway to westbound cyclists. It shouts at them if they go down there. The Written Answer stated that they could go round Marble Arch instead. I know that the Minister is a keen cyclist like me, but I would challenge many people to go round Marble Arch, either in or out of the rush hour, as a sensible alternative to going

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through the Royal Parks. In April, the Department for Transport issued a new document entitled Policy, Planning and Design for Walking and Cycling—Local Transport Note 1/04, which states in the first paragraph that the Government,
"recognises the necessity for improving conditions for pedestrians and cyclists ... Promotion of walking and cycling is important in helping to support other major Government objectives such as improved public health, better air quality, and sustainable land-use planning".
It is therefore clear that the Government support cycling, but here is an arm of government—somewhat removed, I suggest—which says, "You can get knotted. You can go round Marble Arch on your bicycle and if you get killed, it's nothing to do with us".
A related matter is the use of the North Carriageway as a car park for the contractors who are building that lovely edifice. The explanation which is given is that contractors come from all over the country. Is that not true of anybody who comes to London? They are allowed to park in North Carriage Drive because it is close to the site on which they work and there is nowhere else they can park within a reasonable distance. Actually, there is. There is an underground car park immediately underneath. Alternatively, they could come by public transport like everybody else if they do not want to pay the congestion charge.
Royal Parks needs to develop some policies that are joined up with the rest of government. My amendment and that of the noble Viscount, Lord Astor, would go some way towards encouraging or forcing it to do that.
Lord Davies of Oldham:My Lords, I thank the noble Viscount, Lord Astor, for his amendment and for providing us with the chance to debate this issue again and, of course, I respect the trenchant views of my noble friend Lord Berkeley. I shall address the majority of my remarks to the amendment of the noble Viscount, Lord Astor, but I pay due regard to the arguments of my noble friend. I assure him that joined-up government is an important concept. He will recognise that this issue touches on it.
If the roads in the Royal Parks were there solely for the effective movement of transport, there would be no gainsaying the argument of my noble friend; that is, that they should be fully integrated into a normal pattern of control. However, he will recognise that the roads in the Royal Parks are an integral part of the nation's heritage which those parks represent. We also have a responsibility to preserve the primary purpose of the parks, handed down over many generations, which is to provide enjoyment to the public. The Government are the responsible authority in that respect. I therefore assure my noble friend that although I am going to disappoint him in not accepting his amendment, which he would probably have predicted, he will recognise that the role of the Royal Parks goes beyond effective transport movements in London. They have a part to play in that, which I shall address shortly in responding to the amendment of the noble Viscount, Lord Astor. My noble friend will also

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recognise that we have an obligation to preserve the parks for their primary purpose and that is why they are the responsibility of the Government. I shall speak about the interface between government departments and agencies in a moment, but I am sure that my noble friend will appreciate that to change the status of the roads of the Royal Parks would create not integrated, joined-up government, but a considerable dissonance between government departments.
4.15 p.m.
Lord Berkeley:My Lords, I thank my noble friend for giving way. I shall be brief. I do not disagree with anything that he has said, but how are those sound objectives met by allowing contractors to park their cars there? I once saw a caravan parked there overnight. How does that enhance the quality and the beauty of Hyde Park?
Lord Davies of Oldham:My Lords, I am not here to defend the Royal Parks in every conceivable detail of its policies. I hope that the complaints that my noble friend has articulated will be borne in mind by the authorities and his representations are appropriate. However, I emphasise that the issue of the Royal Parks amounts to more than its roads. Nor are its roads simply or even primarily a part of the public highway; they are an integral part of the facilities that we offer in our great cities, particularly in London, to the public.
In response to the amendment of the noble Viscount, Lord Astor, I emphasise that it is essential that central government, who are responsible for the parks, can scarcely impose on local authorities the duty to consult if they are not prepared to follow the same principles in their own operations. In the particular case of the Royal Parks, I reassure your Lordships that the Government are concerned to fulfil their due obligations.
The Secretary of State is required under the Crown Lands Act 1851 to manage Royal Parks on behalf of the Crown for the quiet enjoyment of the public. The roads are an integral part of the parks. Although they have increasingly come to be seen in recent decades by those who use them as just another part of the local road network, park roads are not public highways. Their primary purpose is to allow access to the parks. They are not intended to be through roads for motorised traffic. Against that background, I emphasise that it would not make sense to impose a duty on the Royal Parks to manage their roads as if they were part of the local road network. We accept that where a volume of traffic is significant, there is a need to manage carefully the problem in conjunction with neighbouring authorities. My noble friend Lord Berkeley has voiced both today and in Committee some of the frustrations that have arisen when there has been insufficient consideration of the impact on the local network of decisions taken in respect of the Royal Parks.
The Highways Agency is already committed to consultation. The Secretary of State is required under the Greater London Authority Act 1999 to consult local boroughs and TfL before exercising any functions in relation to the management of park roads in such a way

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as to affect a highway for which the agency is responsible. There is a clear need for that form of consultation as park management would often involve different objectives to those of a local traffic authority. We all recognise that demands are sometimes made on parks which relate to their roads as part of the public highway. It is only reasonable that the Royal Parks should be considered a special case. For instance, in the case of a large event in the park which might lead to road closures, we insist that park managers work closely from an early stage with the local authorities, police and Transport for London on the arrangements for that event, including anything that might cause disruption to traffic. Sometimes it will be recognised that Royal Parks must accommodate projects or events, such as temporary stabling for the Household Cavalry in Hyde Park, which might impact on neighbouring roads. In each case, the organisation using the park is required to seek planning permission, which includes permission for any traffic arrangements.
In the same vein, local authorities are involved in planning the arrangements for national celebrations such as the Jubilee and other ceremonies. As for unforeseen incidents, as the GLA Act recognises, it might not be possible to consult local authorities when roads have to be closed through emergencies or at short notice. However, in such cases, the agency endeavours to communicate information to the relevant local authorities as soon as practicable. If authorities have any examples when that has not gone smoothly and wish to present those issues to the Royal Parks, I emphasise the fact that they will find a sympathetic response.
I recognise the points made about the necessity for some of the roads in the Royal Parks being relied on by the public as crucial routes, as has inevitably happened in recent decades. Because of that, we must balance the responsibility of the parks authorities to maintain the park as a public facility, while at the same time recognising that decisions in relation to those roads can have a significant effect on traffic flows. That is why the fullest consultation is necessary.
I hope on the basis of the assurances that I have given to the noble Viscount, he feels able to withdraw his amendment.
Viscount Astor:My Lords, the Minister has given a helpful answer. Of course, it is only really helpful if the parks authorities not only inform local authorities of what they are going to do but listen to responses. In many ways, they have done the first but not the second. I hope that this short debate will encourage them to listen more carefully to responses. In the mean time, I am grateful to the Minister for his response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Arrangements for network management]:
Viscount Astormoved Amendment No. 12:
Page 7, line 38, after "make" insert "and publish"
The noble Viscount said: My Lords, this small amendment inserts a duty so that the local traffic authority shall publish such arrangements as it
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considers appropriate for planning and carrying out the action to be taken in performing its network management duty, as set out in Clause 17.
We believe that the local authority should publish its objectives and policies. Many local authorities publish such information, but there is no duty on them to do so and no guarantee of uniformity in the terms of access to the information. If they were required to publish, it would help local accountability and it would help local residents and their local representative in another place—their Member of Parliament—to understand what was going on. It would also help the utility companies and any other road users, because they could see what local authorities were planning to do and how they were planning to achieve it.
It is important, if we are to have sensible traffic management, that we can all see what it is going to be. Each local authority should set out its plans, making them clear. I hope that the Government support this modest but useful amendment. I beg to move.
Lord Evans of Temple Guiting:My Lords, Amendment No. 12 would require a local traffic authority to publish its arrangements for carrying out its network management duty. We have deliberately not been prescriptive as to how a local authority should carry out its network management duty. Dissemination of relevant information is extremely important, but it is not for national government to determine how to do it in every circumstance. Those are local decisions, best left to a local authorities.
If the duty were to be considered in isolation, it might have its attractions. However, the provisions in the Bill have been designed to reflect the wider relationship between local and central government. Both central and local government have signed up to the new modernisation agenda. The principle of plan reduction is a key element in this. The aim is to reduce the amount of planning documents that central government departments require for approval or monitoring, looking instead for other means of achieving the same goal. Requiring the publication of an additional plan, as this amendment suggests, runs counter to that idea.
That said, we agree with the noble Viscount on the need for a robust monitoring and evaluation framework under which to assess an authority's performance. That is intrinsically linked to the determination of success and, ultimately, consideration of failure and possible intervention. As such, this framework will be developed for inclusion in the guidance under Clause 27.
The guidance will be developed with assistance from the working and advisory groups set up by the department to consider Part 2 of the Bill. The advisory group is composed of road user representatives. The working group consists of local authority practitioners and includes representatives from organisations such as the Local Government Association, the County Surveyors' Society, and the Association of London Government. The aim is to provide a proportionate framework of analysis which is consistent with the modernisation agenda, while allowing proper assessment of performance.

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As the guidance document will be subject to parliamentary scrutiny, noble Lords will be able to satisfy themselves that these issues are adequately covered. I hope that with that explanation, the noble Viscount will feel able to withdraw his amendment.
Viscount Astor:My Lords, the Minister said that the guidance would be subject to parliamentary scrutiny. Will it be subject to an affirmative order?
Lord Evans of Temple Guiting:My Lords, I am advised that it will not be subject to an affirmative order.
Viscount Astor:My Lords, then I am not sure how we are going to scrutinise it—perhaps that is an issue that we may consider. It is another issue in the Bill on which the Government have said, "Don't worry, we'll put the details in the guidance", yet we have to take on trust what the guidance is going to say. However, as the noble Lord, Lord Evans, has told me that the details will be in guidance and has given me assurances, I take him entirely at face value. I am sure that they will be there. But it would be helpful between now and Third Reading if the Minister could write to me and explain how we are going to scrutinise that guidance.
The Minister has been helpful in his reply, but he made one statement which I believe will come back to haunt him during later stages. He said that the Government were not being prescriptive in the Bill. Under a later amendment I shall demonstrate to your Lordships' House how they have been over-prescriptive. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Borriemoved Amendment No. 13:
Page 8, line 9, leave out "and"
The noble Lord said: My Lords, in moving the amendment, I shall speak to the amendments grouped with it, which stand in the name of my noble friend Lord Berkeley, the noble Earl, Lord Erroll, and myself.
I know that the Government recognise that alongside the need expressed very clearly in the Bill to reduce congestion and disruption of traffic on our roads, there is also a need from time to time to dig up our roads in order to maintain essential services. Clearly, a collapse in the supply of gas, water, electricity or telecoms is at the very least inconvenient and at its worst catastrophic to the general public and commercial enterprises alike. Therefore, roads must be dug up to deal with those requirements. It would be of value if that need were set out in Clause 17 and were traffic authorities were required not to discriminate between their own roadworks and those carried out by the utilities. As I understand it, local authorities are responsible for about half the roadworks that are regularly carried out.
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I was pleased in Grand Committee to hear my noble friend Lord Evans of Temple Guiting say that the Government sought to ensure that all works—whoever was responsible for doing them—would be better co-ordinated in future and based on an objective assessment, without discrimination as to who was performing them. But it is difficult to be convinced of that without explicit confirmation in the Bill that traffic authorities will not discriminate.
Of course, I see the absurdity of treating local authorities and utilities completely alike. It would be absurd if local authorities charged themselves for permits or fined themselves for offences under the Bill. But why cannot the same general terms and conditions—indeed, detailed terms and conditions—apply to whoever is carrying out the roadworks? For example, if night-time working is required of utility works at certain times of the year, such as Oxford Street in December, why should local authorities not be similarly constrained?
There has been some suggestion that local authorities will incur bad points rather than fines for committing offences as a way of measuring compliance. Why could the same not be done for utilities? At the very least, utilities should incur fines only for failure to reach, say, 90 per cent of a compliance target, with the target being raised in subsequent years in order to raise the compliance levels from year to year. This would be a positive incentive towards compliance, which would be less punitive in its immediate effect and which would certainly discriminate less between local authorities and utilities doing roadworks. I beg to move.
4.30 p.m.
Lord Berkeley:My Lords, I rise to support the three amendments in this group in my name and the names of my noble friend Lord Borrie and the noble Earl, Lord Erroll. I shall not delay the House long because my noble friend has articulated the importance of a level playing field between the utilities and local authorities very well. It is very important that local authorities are seen to be playing the same game with the same targets as the utilities. A time may come when some kind of permit scheme is necessary because as a noble Lord—I cannot remember who—said in Committee, the part of the local authority that deals with the permits is likely to be different from the part that deals with road surfacing.
I suspect that in the longer term it may be a good thing to treat everybody exactly the same. Otherwise, as my noble friend said, the incentives for local authorities will not be the same as the incentives for the utilities. Something like 50 per cent of delays are caused by surfacing and other local authority works and the other 50 per cent are caused by the utilities. I think it is important that this is addressed. I hope that my noble friend will have something to say about it. I gather that there have been some interesting meetings between Ministers and the utilities on this matter. I think it is important that the Government come up with some assurance that everybody will be treated equally.
The Earl of Erroll:My Lords, I added my name to this set of amendments in the names of the noble

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Lords, Lord Borrie and Lord Berkeley, because they seem eminently sensible. People may have good intentions about working together but unless it is specified, it probably will not happen. I am not convinced that bureaucrats always obey the spirit, rather than the letter, of what is written down. We need something of the letter. If we do not unify the system and bring it together, I can see that there will be two sets of regulations with cracks between them and they will not work together properly.
There is a big issue about why local authorities should charge themselves or fine themselves. The concept of one part of government paying another part of government for services is quite common, so I do not see it as much of a problem. It is called transfer charging or transfer pricing. One transfers charge from one part of government to another. I do not see a problem with it.
The idea of fining a utility does not seem to be particularly sensible. Utilities have to exist and utility companies have to provide utilities. The fine is basically a hidden tax as it will be passed on to consumers or the utility will go bust. One cannot allow water or electricity companies to go bust so there is no point in fining them. The suggested system of points, which I can see could be built into the comprehensive performance assessments of local authorities or other assessments, would be very sensible. I do think that it is sensible to have one unified approach to highway authorities, local authorities and utilities, which may have been privatised but which are carrying out a public service.
Lord Monson:My Lords, although I have some sympathy with this amendment I have a slight quarrel with its scope. Nobody can deny that gas, electricity and water supplies are essential services, but can the same always be said of telecommunications? A few years ago, I was seriously concerned by the road outside my house constantly being dug up in order to install cable television to some, not all, of the neighbouring houses. Can anybody seriously claim that cable television is an essential service? I think not.
Viscount Astor:My Lords, I very much support the principle behind these amendments. It is important that utilities and local authorities are treated on the same basis. We know that they are equally responsible for roadworks in our streets and they should be treated as equally as possible.
Lord Evans of Temple Guiting:My Lords, utility companies already have a statutory right to carry out their own works in order to install or maintain their apparatus. In Committee, we made it clear—but clearly not clear enough—that the duty placed on highway authorities in Part 2 of the Bill will not change this. My noble friend Lord Borrie makes the very specific suggestion that equal conditions should be applied to highway authorities' own works and to utilities' works. Where permit schemes operate, the regulation-making powers in the Bill would enable the same conditions to be applied to all works. The network management duty will require the effective management of utility works
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and authorities' own works. That would be based on an objective assessment and decisions taken on the basis of the best overall outcome without discrimination.
The statutory network management duty guidance will make clear to authorities the importance of parity in their dealings with all works and I must underline "all works". Authorities must, and will, have regard to this in meeting their duties. In drawing up the secondary legislation and guidance underpinning permit schemes, we will ensure that highway authorities take proper account of the disruption that may be caused by their own works. We will ensure that they do not discriminate unfairly against utility works.
I hope that on the basis of the very direct reassurance that I have given noble Lords these amendments will be withdrawn.
Lord Borrie:My Lords, I am most grateful to those noble Lords who have taken part in this debate and for the support of my noble friend Lord Berkeley and the noble Earl, Lord Erroll. I also welcome the point made by the noble Lord, Lord Monson, suggesting that the amendment was too broad in including telecommunications. However, my response is to consider commercial enterprises. If telecoms are not functioning, so work is needed in the roads, they are losing business, money and work day by day. Therefore, telecoms, as an essential service, rank alongside electricity, water and gas in the year 2004. I have no apology to make for including telecommunications in essential services.
I shall have to read how the Minister responded. I detected a slight sign of irritation on his part that I had not accepted his reassurances in Grand Committee. However, there were a number of uncertainties in his response. I will look closely at what he said today. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
Viscount Astormoved Amendment No. 16:
Page 8, line 24, at end insert—
"( ) A local traffic authority shall publish information (street works monitoring information) relating to the duration, location and extent of—

street works within the meaning of the New Roads and Street Works Act 1991 (c. 22); and

works for road purposes within the meaning of section 86(2) of the New Roads and Street Works Act 1991 (highway authorities, highways and related matters); on the authority's road network.

( ) The appropriate national authority may by regulations make provision with respect to the content of street works monitoring information and when it must be published."

The noble Viscount said: My Lords, this amendment deals with another "uncertainty"—as the noble Lord, Lord Borrie, put it—to the reply given in Grand Committee. My amendment makes provision to ensure that local traffic authorities have a duty to publish information relating to street works—their location, their duration and their planned extent. It aims to enhance the accountability of the highways authority in carrying out,

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and the traffic authority in monitoring, such works. It also helps with the Government's often-stated intention to bring the local authorities more fully in line within the same requirements as apply to utility companies.
It remains the case that the highways authorities—which, as we know, are responsible for half of the street works—are also charged with approving and policing the works of the utility companies, which are responsible for the other half. This is in itself an unequal situation, which of course we have recognised during the passage of the Bill.
In Grand Committee, the Government said that they would encourage local authorities to make publicly available any relevant information. However, encouragement is not quite a good enough incentive. The noble Lord, Lord Evans, indicated that Section 53 of the New Roads and Street Works Act 1991 covers much of what this amendment is meant to do by enabling regulations to be made by the appropriate national authority requiring local authorities to keep a register of undertakers' work and their own works. We all know that there is no duty to ensure that local authorities make that information about their own works available. That is the important point.
My amendment will provide the basic information on which others can check that highways authorities are carrying out their duties properly and will also enable greater coordination of works where possible. It will also enable the Government to assess properly the impact of the Bill on reducing congestion by reviewing not just utility works but local authority works and indeed any other works. I am aware that there have been concerns that this might create a bureaucratic burden for the local authorities. But they are already collecting and registering this information. We want to ensure that it is published and available to the public. I beg to move.
Lord Evans of Temple Guiting:My Lords, as the noble Viscount, Lord Astor, said, this amendment was debated in Grand Committee. I said then that in principle we would encourage parity between street and road works. The New Road and Street Works Act 1991 already enables regulations to be made by the appropriate national authority, requiring local authorities to keep a register of undertakers' street works as well as their own works for road purposes.
Regulations made in 1992 already prescribe that the description and location of street authority works for road purposes must be kept on the register. This could already be extended to cover duration under the existing legislation. Under the same Act it is required that, as long as the information is not restricted, it must be made available for inspection.
4.45 p.m.
The amendment requires this sort of information to be actively put in the public domain. This is on the basis that it could then be used to establish whether authorities were treating utilities' works and their own in the same way. However, while some of the works
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and some elements of those works may be similar, others will be different. Information on the location, duration and extent of works would not necessarily provide for an assessment of equitable treatment of all works within an authority.
Authorities maintain and upgrade the roads as well as undertaking safety and quality of life improvements such as junction modifications, home zones, traffic calming and the like. Utilities' interests require them to occupy the highway in a different way. Parity is extremely important and local authorities will need to take this into account when considering their own works and those of utilities. If they do not it might contribute to the failure of their network management duty.
The draft network management duty makes this clear. This has been developed with the assistance of the utilities to ensure that it reflects their concerns. The question of how best to assess this falls to the monitoring and evaluation framework and the criteria for determining whether to intervene. As the guidance will be subject to parliamentary process, your Lordships will be able to satisfy yourselves that this is adequately covered.
We have just debated the principles underpinning the modernising government agenda. Again, our desire is to avoid placing this sort of prescriptive burden on local government. I hope that with these assurances, the noble Viscount will feel able to withdraw his amendment.
Viscount Astor:My Lords, I thank the Minister for his reply. He said my amendment produced a prescriptive burden. I think my amendment was rather unprescriptive and produced hardly any burden at all. He said that this should be dealt with in guidance. I shall study his response carefully. However, I am somewhat disappointed. We are trying to encourage open government, and I am sure that the noble Lord would agree in principle with that sentiment. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Guidance to local traffic authorities]:
Lord Bradshawmoved Amendment No. 17:
Page 8, line 28, at end insert—
"( ) Subject to any guidance published by the national authority under subsection (1), the Mayor of London may publish further guidance to local traffic authorities in London in relation to Greater London Authority and strategic roads about the techniques of network management and any other matter relating to the performance of the duties imposed by sections 16 and 17."
The noble Lord said: My Lords, I know this is a matter that we debated in Grand Committee and I am seeking—on I think a very appropriate day—some sort of assurance from the Minister that arrangements exist for the proper consideration of the strategic bus network in London.
On a day when the whole of the capital is about to be held to ransom by the most irresponsible action by the Tube drivers—one about which I believe the Government should take action, because I think we are seeing a monopoly being exploited to the detriment of all of us—we need to know that we have a bus

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network that is coherent and extends over several London boroughs. The purpose of the amendment is to ensure that we have proper direction of that network and that it is not subject to the maverick concerns of any one borough. I beg to move.
Lord Berkeley:My Lords, I support this amendment. The noble Lord, Lord Bradshaw, has outlined the reasons behind it. We discussed at length in Grand Committee which roads might be subject to the guidance from the Mayor, a point which was certainly unclear. If most, if not all, bus routes could be included in such guidance, it would be a very important part of keeping London moving and of course filling the lovely buses that we have. It is an excellent idea and I fully support it.
Lord Davies of Oldham:My Lords, I am grateful to the two noble Lords who have spoken in this short debate. Perhaps I may interpret the amendment not specifically in terms of any particular day, but in terms of the significance of the bus network and bus provision throughout the year. I hear what the noble Lord says about the salience of buses, particularly today, but, as we all recognise, buses have a very significant role to play in public transport in London. That is why, as my noble friend indicated, there has been a very substantial increase in the number of buses and bus journeys, which we all recognise as a reflection of a more efficient transport system in London initiated over recent years.
As we explained in Grand Committee, the Government's view is that the issues specific to London are best set out in the national guidance. We shall consult on that guidance shortly, but it may help if I give a flavour of the relevant part. The guidance is intended to set out our view of what constitutes the objective to facilitate the expeditious movement of traffic on the road network for which another body is the traffic authority. It refers to joint working arrangements and ensuring that policies are consistent, which I think is the burden of the remarks of the noble Lord, Lord Bradshaw.
In London TfL has responsibility for activities such as bus services on some roads, as the noble Lord indicated, without having direct control over those roads. As he said, for that to work effectively across London, TfL will clearly need assistance from the boroughs and vice versa. We see part of TfL's role as London's strategic transport authority as identifying reasonable and practicable outcomes from borough activities to support the Mayor's transport strategy and TfL's policies for meeting the network management duty. Examples would include ensuring so far as possible that bus services were uninterrupted throughout the year, and that enforcement was undertaken to prevent unnecessary congestion.
It seems reasonable for boroughs to take into account both the objectives of the Mayor's transport strategy and the outcomes identified by TfL in their approach to their duty. It also seems reasonable for the boroughs to look to meet those outcomes when considering the arrangements that they need to put in place to meet the duty. This should all be reflected in boroughs' local improvement plans. Under the Greater London Authority Act 1999, local improvement plans are subject to the Mayor's approval.
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Subject to consultation it is our intention to include these principles in the network management duty guidance to which local traffic authorities must have regard. We recognise the point that the noble Lord, Lord Bradshaw, made that this is particularly significant in the capital city with regard to effective bus operation which is such a crucial part of transport provision. I hope he will recognise that we have addressed this issue as a matter of great significance and that on the basis of the points that I have made about how we intend to tackle this issue, he will feel able to withdraw his amendment.
Lord Bradshaw:My Lords, I am very grateful to the Minister for his statement, which I am sure is reassuring to many of us. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rotherwickmoved Amendment No. 18:
Page 8, line 30, at end insert—
"( ) The guidance shall cover, among other matters, the respective responsibility of a local traffic authority, the police and fire service to attend to spillages of diesel fuel and render the road safe again for the passage of motorcycles and other vehicles."
The noble Lord said: My Lords, this amendment seeks to ensure that diesel spills are cleared up by the authorities so that they do not pose a threat to road users, especially motorcycle riders and bicyclists. The problem of diesel spillage is a major concern to motorcycle riders. Indeed, Northamptonshire police launched in February of this year a year-long series of innovative initiatives, codenamed Operation Biker, to cut deaths of motorcyclists. So serious is the problem of diesel spillage that one of these initiatives is a diesel spillage campaign aimed at lorry drivers and other diesel vehicle drivers.
There are some awful statistics, enough to make a seasoned motorcyclist like myself give up his efficient mode of transport. On average more than 3,500 people are killed on British roads each year—the equivalent of 10 each day. However, new findings show that motorbike riders represent 22 per cent of this figure, even though motorcycles account for only 4 per cent of road traffic.
Nationally in 2003 about 28,000 riders were killed or seriously injured. A rider is 35 times more likely to be killed or seriously injured than any other class of road user, albeit the vast majority of motorcycle collisions occur in perfect riding conditions; that is, in daylight with dry road conditions. Surely the Government can demonstrate their concern for these vulnerable road users. By accepting this amendment they would demonstrate their concern. I beg to move.
Lord Bradshaw:My Lords, I support the amendment moved by the noble Lord, Lord Rotherwick, the need for which was amply demonstrated in the answers given to me yesterday by the Minister in response to my Starred Question regarding road casualties.
Lord Evans of Temple Guiting:My Lords, as we have heard, Amendment No. 18 would require that the

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guidance on the network management duty must include information on the respective responsibilities of traffic authorities, the police and fire service in dealing with diesel spillages. We have deliberately not singled out on the face of the Bill specific issues like this to be included in the guidance in order to avoid giving some more prominence than others. Part 2 of the Bill specifically deals with network management by local traffic authorities, thus any guidance under Clause 18 would not be binding upon the police or fire services.
That said, we are aware of the importance of tackling diesel spillage. I will aim to demonstrate that the issue is already covered and therefore this specific amendment is unnecessary. Guidance on dealing with diesel spillages and similar accidents is already available in Section 14 "Weather and Other Emergencies" of the Code of Practice for Maintenance Management published by the Institution of Highways and Transportation in 2001, and in the Highways Agency's Trunk Road Maintenance Manual. The existing provision in the Bill covering the network management duty guidance already allows us to build upon this. We have gone to great lengths to understand and reflect the needs of all road users, particularly those on two wheels, in the development of this policy.
We are about to go to public consultation on the draft of network management duty guidance. The department would be very happy to receive comments from the noble Viscount, Lord Astor, and the noble Lord, Lord Rotherwick, as part of that process. The guidance has been prepared with the help of the advisory group for Part 2, as mentioned previously, made up of representatives of all the major road user groups, including the Motorcycle Action Group and the British Motorcyclists' Federation. The advisory group is happy with the content of this draft.
The draft guidance recognises that both police and local authorities have responsibilities for the management of traffic on the road network. It also states that the best outcome will be achieved by authorities and police working together to establish which activities should be carried out by each organisation, and which are best carried out together.
On the specific question of diesel spills, these are covered in the advice to local traffic authorities on the management of incidents. This points to the need for local authorities to work closely with the emergency services to support them both in the management of the incident and the active management of its effects on the road network. Of course, this would include restoring the road to a safe condition. It talks of the need for local traffic authorities to have robust processes and procedures for dealing with the types of incident that occur frequently on the network. Authorities are also reminded of Section 14 of the code of practice in the network management duty guidance. I hope that with those assurances the noble Lord will accept that this amendment, however well intentioned and however important, is unnecessary and I ask that he withdraw it.
Lord Rotherwick:My Lords, I thank the noble Lord, Lord Bradshaw, for his kind support. I also thank the
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Minister for his comments. However. I do not believe that I was asking for too much in asking the Government to accept my amendment. After all, I believe that the guidance to local authorities states, "may publish guidelines". Therefore, there is no compulsion to publish guidelines. I do not accept the Minister's comment that motorcyclists should not be given more prominence than other road users. I have amply demonstrated that they should be given more prominence than other road users due to the horrific statistics. As I said, motorcyclists represent 22 per cent of those killed on British roads each year. Surely that more than amply demonstrates why more prominence should be given to the section of road users comprising motorcyclists.
In addition, the examples that I gave today and in Grand Committee show that the present system is not working. I have no reason to believe that any change that the Minister proposes would alter that fact. However, I shall read carefully what the Minister has said. It is more than likely that I shall return to the issue at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5 p.m.
Clause 19 [Power to require information relating to network management]:
Viscount Astormoved Amendment No. 19:
Page 8, line 35, leave out subsection (2).
The noble Viscount said: My Lords, on an earlier amendment, the Minister accused me of trying to be prescriptive and said that the Government were not prescriptive. In Clause 19, the Government are being prescriptive—perhaps over-prescriptive. It gives the Secretary of State additional powers to demand information from local authorities. My amendment would strengthen the principle that any information demanded by the national authority should be only what could be obtained reasonably and at reasonable cost.
The amendments also make it clear that the reasonableness principle should apply equally where more than one authority has been issued with a direction. Clause 19(3) would allow the Secretary of State to require all authorities to provide some information at short notice, and there would be administrative and financial costs. There must be good reason for demanding that information, and it is not stated or clear as the clause is written. I hope that the Minister will think my amendment entirely reasonable, because this time it is the Government who are being over-prescriptive. I beg to move.
Lord Evans of Temple Guiting:My Lords, when we were dealing with Amendment No. 12, I said that we had deliberately not been prescriptive about the way in which a local authority should carry out its network management duty. I did not say that the Government would not be prescriptive; I did not use the word in its absolute terms. Hansard will confirm that I used "prescriptive" and then heavily qualified it to local authority and management duty.

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The clause provides the ability to gain supplementary information without having to use the more formal intervention notice process. During the Bill's progress through Parliament, the Government have made it clear that we will not be looking to use the clause as the main way of gathering monitoring and evaluation information from local authorities. We will look to embed that process so far as possible within existing processes, such as the local transport plans. I am more than happy to repeat those assurances.
With that in mind, I will aim to demonstrate to the noble Viscount that his amendment is not necessary. Proposed new subsection (3B) requires a statement accompanying any request. That addresses issues of good governance, but those are not for the Bill. I cannot think of a circumstance where any request for information would not be accompanied by an explanation of why. If he would like reassurance that that would be the case, I am happy to give it.
The question of cost gets to the heart of the test of reasonableness. Either the request is reasonable or it is not. If an authority feels that the test has not been met, I would expect it to draw it to the attention of the appropriate national authority. No additional statement would be needed to ensure that that happened. The Bill in its entirety is subject to a regulatory impact assessment, as is only right and proper. However, that becomes disproportionate when extended to the exercising of individual provisions such as this.
Proposed new subsection (3A) looks to link the test of reasonableness to the specified period for a response and reflect the fact that a direction could be given to more than one authority. Clause 19(1) introduces the concept of a specified period for a response, and Clause 19(2) states that the information must be that which would be in an authority's possession, or that it could be reasonably expected to acquire. It is implicit that it would be for the appropriate national authority to request information that an authority could be expected to acquire within the specified period.
The addition of "authorities" is also unnecessary as that is implicit through the drafting of Clause 19(3), which allows the order to be given to more than one authority. I hope that the noble Viscount finds my explanation satisfactory and feels able to withdraw his amendment.
Viscount Astor:My Lords, the Minister has gone some way to reassure me. I shall have to study his response with care and consider whether it is satisfactory. However, I am grateful certainly for the spirit behind his response. The devil is always in the detail, and we will have to look carefully at that. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 20 not moved.]
Clause 20 [Intervention notices]:
Viscount Astormoved Amendment No. 21:
Leave out Clause 20.
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The noble Viscount said: My Lords, in moving Amendment No. 21, I shall speak also to Amendments Nos. 22 to 31. Those amendments would leave out Clauses 20 to 30. On this group, the Government and I have a difference of principle. It is not a difference about how the Bill will work or its technical details, but a major difference. The clauses give the Secretary of State the power to intervene in local government in a way that no Secretary of State can intervene in any other area. The noble Lord, Lord Bradshaw, who has much more experience of local government than I, may develop that point.
The Secretary of State will have the power to appoint a person or persons—it could be rather a lot of people—to be traffic directors. They will be appointed because the department and the Secretary of State consider that a local authority is not doing its job in traffic management. However, as we heard in Committee, we will not know the basis on which the decision is arrived at. There will be no criteria, so we will not know why the Secretary of State will decide that one local authority is managing and that another is not.
Some local authorities have agreements with others on traffic management. If one is intervened on, does that mean that the other takes over? We also heard in Grand Committee that there was no estimation of the cost, how many people might be involved, how long the appointment would last, under what criteria they would operate, or when the Secretary of State would consider that a traffic director had succeeded. The powers are the most interventionist that central government have ever produced in the area.
The power is extraordinary; I do not know how the Minister's department got away with it. I do not understand how it ever got it past the Deputy Prime Minister's department, which believes in local democracy, referendums and regional assemblies. If a local authority is failing that badly, the local electorate will throw it out. It will be obvious; the Secretary of State will not need to intervene, because the electors will. That is local democracy. The clauses are undemocratic. They take away power solely on the Secretary of State's judgment and give it to him. So far as I can see, he does not have to prove why an authority is failing. The Minister might say that an authority could take the Secretary of State to judicial review, but we all know the cost of that and the time that it takes; by that stage it would be far too late.
I looked very carefully to see whether we could table any amendments to the clauses that would make them more palatable. We could have tabled a raft of amendments, but they would not have made the clauses any better. The principle is wrong. It is undemocratic and interventionist, and will not produce better traffic management. The only thing that we can do is to take out this part of the Bill. It does not work. I do not know who dreamt it up, but I find it staggering that the party that the Minister represents could come forward with it. It seems against every principle that his party has ever enunciated when it comes to dealing with local government.

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I hope that noble Lords will support me because I have been unconvinced so far by the Minister's responses to all the amendments we have tabled to this part of the Bill. I shall listen with care, as I always do, to what the noble Lord, Lord Davies, says but he will have to produce a much better argument than he managed to produce last time. I beg to move.
Baroness Scott of Needham Market:My Lords, I wish to offer the support of these Benches for this group of amendments. I shall be brief, not because they are not important, but because, as the noble Viscount, Lord Astor, said, they are matters of principle. No amount of fiddling around with the detail of the Bill will get around that. Two fundamental points of principle are at stake. The first is whether it is right for any government to pass legislation that allows intervention into the work of local authorities in circumstances that are unspecified on the face of the Bill. That would be fundamentally wrong.
The second point of principle is that of intervention. Not only will we not know fully when the Bill is passed under which circumstances a traffic manager will be imposed on a local authority, but such a person will be accountable to no one in the local community. They will be able to effect policies that will affect the lives of many people living in an area. Those people will not know who that person was, they will not have voted for that person and the wishes of the democratically elected local authority will be overridden. That will be a step too far for almost anyone.
The proposals are also impractical. I need to declare two interests. I am a local councillor and chair of the Local Government Association's transport executive. I am also a member of the board of the Audit Commission which has a raft of inspection and regulatory powers over local authorities. It would be almost inconceivable to imagine a local authority that could undergo Audit Commission tests and not have any major failings picked up at that stage. This group of clauses is unnecessary and, sadly, seems to have been inserted as a knee-jerk reaction to Daily Mail-type stories about local authorities that do not know how to manage the traffic.
It would be a shame if we were to move to that type of centrist intervention in the work of local authorities just to satisfy ill-informed, vocal minorities made up of only a few people.
5.15 p.m.
Lord Borrie:My Lords, I am somewhat surprised by the extremes to which the Conservative and Liberal Democrat speakers have gone. This group of amendments seeks to remove 11 clauses. The noble Viscount said that the Government's proposals were so bad that he had been unable to think of any way to amend them. Certainly, no suggestions have been made as to what should replace them. Some of the statements made were extreme. The noble Viscount said that there was no clear basis for intervention. But the basis for intervention would be a failing by a local
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authority to perform the duties set out clearly in Clauses 16 and 17—at least the noble Viscount must believe that they are clear, because he accepts them. The noble Viscount must have noticed Clause 20(2). The authority must be given, it says,
"particulars of the grounds for giving the notice",
and,
"an opportunity … to make representations".
Those words provide suitable safeguards to ensure that the grounds for intervention are rational, sensible and not capricious.
The electorate has been brought into play by both previous speakers as the be-all and end-all of what the local community could do if it did not believe that traffic management was being run properly. Elections do not come every year; there are gaps. There would be a long gap if something went seriously wrong now, because we have just had a number of local authority elections. Is it being suggested that there should be no powers of intervention by anyone because local autonomy is so important that the electorate should have to wait two or three years before anything could be done? That would be unreasonable.
Local autonomy is vital. Local authorities have been treated with tremendous respect by all parties for a long time and that is an important part of the governance of the country. However, to suggest that nothing should be done when they completely fail in their obligations that are set out in the clauses passed today—and no one could intervene unless the matter was very serious—would be most unreasonable. Her Majesty's responsible opposition, whether Conservative or Liberal Democrat, owe it to us to make proposals or suggestions other than to say that there is a major difference of principle between us.
Viscount Astor:My Lords, I am grateful to the noble Lord, Lord Borrie. If this power of intervention is needed so badly, can the noble Lord give a recent example of when this power should have been used? Why has there been no clamour for that over the years?
Lord Borrie:My Lords, I cannot help the noble Viscount. I am just suggesting that by proposing powers in a Bill we should take into account the possibility of something going wrong. There should be some fail-safe mechanism and none would be provided if the two parties opposite were successful in removing these 11 clauses.
Lord Davies of Oldham:My Lords, it will come as no surprise to your Lordships that I should welcome the calm, lucid voice of my noble friend in destroying the case of the Opposition in, as he rightly pointed out, all its extremism. If there was ever a weapon of mass destruction fired at a Bill it would be one which did not include any amendments to any of 11 clauses, but proposed that all of them should be taken out of the Bill on an issue of principle.
We have discussed the matter of intervention with some intensity in both this House and another place. I recognise the force of the Opposition's arguments on certain issues of principle. Of course I accept that

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local authorities are in the best position to deliver improvements in their area and ensure that maximum use is made of the existing road network. But, as my noble friend indicated, the question is what should be done if they fail. Should the Government do nothing, particularly considering the responsibilities of a local authority that would be likely to impact on a much wider area than that local authority?
The concept behind the Bill, the issue of traffic management, is that we are addressing the problems of congestion, which are not the several and individual problems of any single local authority. So often a problem is solved in one place and not tackled in another and that merely moves the issue on. Of course we require some degree of integration with regard to this policy. We need responsible positions to be taken up by local authorities. As my noble friend indicated, the premise behind the Bill is that local authorities have that responsibility. It is clear that the power of intervention—certainly the final power—would be taken as a measure of last resort. A whole raft of prior processes are to be undertaken, beginning with guidance. They give the authorities a clear indication of what is reasonably expected of their traffic management.
After hearing the speeches of Members opposite. anyone would think that intervention was a new or novel concept. The noble Viscount, Lord Astor, asked me directly, "How on earth did you succeed in getting this past the Office of the Deputy Prime Minister?". Both local and central government accept the principle of intervention and have even gone so far as to agree a protocol governing how intervention should operate in practice. And which department is responsible for signing off that protocol? It is the Office of the Deputy Prime Minister.
Therefore, if the noble Viscount tries to suggest that my department has been involved in some sleight of hand to bypass the vigilance of the Office of the Deputy Prime Minister, I can reassure him that we are working entirely consistently with the protocol, which is agreed with local authorities.
The process outlined in Part 2 of the Bill is consistent with that protocol. Furthermore, it contains a long list of existing service-specific powers for statutory intervention. These allow the relevant Secretary of State to tackle failure relating to a range of areas. I do not know which planet some Members opposite have been inhabiting if they have not noticed intervention by Secretaries of State in relation to specific local authorities defined as failing in certain areas. Those areas include housing, the environment, planning, education, libraries and museums.
Of course, intervention of such a dramatic kind as envisaged in the Bill as last resort is exactly that—it is an intervention of last resort. How on earth could we propose to deliver the national management if we had no capacity to intervene in any local authority which was manifestly failing to live up to its duties in this respect?
Therefore, the powers of intervention are not at all unusual. It is a widely accepted concept that the appropriate national authority should intervene if an
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authority is failing in its duty. Surely it is not unreasonable to extend this in respect of something as important as the new duty of national traffic management.
It is also not unreasonable for the appropriate national authority to exercise the power without returning to Parliament. I emphasise the fact that the Delegated Powers and Regulatory Reform Committee did not upbraid the Government or criticise the provisions of the Bill in this respect. Its concern related to the guidance on criteria in Clause 27 and we have addressed that by ensuring that it is subject to the parliamentary process.
That is entirely right and proper. Parliament's role is to agree the framework within which this should operate, but individual decisions should fall to the appropriate national authorities. This is not an unfettered power. Any decision taken must be consistent with the principles outlined in the guidance under Clause 27, which would need to stand up to scrutiny. I also emphasise that this, too, could be subject to judicial review.
There are parallels elsewhere. The Local Government Act 1999 provides for the Secretary of State or the National Assembly for Wales, as the case may be, to direct that a specific function be exercised by him or by his nominee if a local authority is deemed to be failing. This can cover the work of the whole authority. The intervention powers are exercised by statutory direction and no parliamentary order is necessary. In practice, that is no different from the checks and balances of the intervention order contained in the Bill, so we are not breaking new ground. We are following a well-trodden path of prudent provision and of the necessary responsibility of the national authority to respond where there is conspicuous failure to deliver the objectives which are sought by the legislation.
We have offered reassurances throughout the parliamentary process, but I am happy once again to put on record our clear intention that these powers are very much a measure of last resort. We look for every opportunity to resolve problems with the local authority before considering the imposition of a traffic director. Even where that was unavoidable, the provisions are constructed in the Bill in such a way as to confer on the traffic director only the provisions that he would need to do the job.
The Bill therefore offers a flexible, proportionate approach to be taken to address the problem of a failing authority. I emphasise that there is nothing new in this Bill in terms of its powers in this respect. They are necessary powers and surely it will be recognised that, as regards all the powers of local authorities, traffic management is bound to have an impact on areas beyond the scope of those powers. It is therefore necessary to have a structure which tackles the significantly failing authority.
As I have indicated, the Opposition have not tabled amendments to refine the process and to indicate areas of improvement. They have said that 11 clauses of the Bill—11 clauses—are unacceptable and they propose that they should be deleted. I have not the faintest hope of dissuading them from pressing their deletion today.

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However, I am concerned that in this House and in the country as a whole the strength of the Government's position should be recognised.
Viscount Astor:My Lords, the Minister accused me of wanting to get rid of 11 clauses. But he will have another 87 left, so he should not worry too much.
The Minister did not address the very strong argument put forward by the noble Baroness, Lady Scott of Needham Market, who rightly pointed out that a scheme is already in existence under the Audit Commission's comprehensive performance assessment that can be utilised to judge how effectively a traffic authority is performing. As she said, it is there and it can be used, and that is why these clauses are unnecessary. That is the central point of my argument and that of the noble Lord, Lord Borrie. He rightly pointed out that in Clause 16 there is a network management duty. Local authorities will have to abide by that in any case. Removing those clauses will not affect their duties.
This whole part of the Bill is interventionist and undemocratic. It is objected to by most local authorities, including Conservative and Labour authorities. They believe in local democracy. This part of the legislation is extraordinarily interventionist. I believe that those clauses should be taken out. I have grouped together amendments to remove Clauses 20 to 30, and I should like to test the opinion of the House.
5.28 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 154; Not-Contents, 121.

Division No. 1

CONTENTS

Addington, L.

Colwyn, L.

Anelay of St Johns, B.

Cope of Berkeley, L.

Astor, V.

Courtown, E.

Astor of Hever, L.

Craig of Radley, L.

Attlee, E.

Craigavon, V.

Avebury, L.

Crathorne, L.

Baker of Dorking, L.

Dahrendorf, L.

Barker, B.

Dean of Harptree, L.

Beaumont of Whitley, L.

Denham, L.

Blatch, B.

Dholakia, L.

Bowness, L.

Dixon-Smith, L.

Bradshaw, L.

Eccles of Moulton, B.

Bridgeman, V.

Eden of Winton, L.

Brittan of Spennithome, L.

Elles, B.

Brooke of Sutton Mandeville, L.

Elliott of Morpeth, L.

Brookeborough, V.

Elton, L.

Brougham and Vaux, L.

Falkland, V.

Buscombe, B.

Falkner of Margravine, B.

Byford, B.

Flather, B.

Caithness, E.

Fookes, B.

Campbell of Alloway, L.

Freeman, L.

Carnegy of Lour, B.

Garden, L.

Carrington, L.

Geddes, L.

Clement-Jones, L.

Glentoran, L.

Cobbold, L.

Gray of Contin, L.

172

Greenway, L.

Oppenheim-Barnes, B.

Griffiths of Fforestfach, L.

Palmer, L.

Hamwee, B.

Park of Monmouth, B.

Hanham, B.

Parkinson, L.

Hanningfield, L.

Patten, L.

Harris of Peckham, L.

Peel, E.

Harris of Richmond, B.

Peyton of Yeovil, L.

Hayhoe, L.

Phillips of Sudbury, L.

Henley, L.

Plumb, L.

Higgins, L.

Plummer of St. Marylebone, L.

Hodgson of Astley Abbotts, L.

Prior, L.

Hooson, L.

Quinton, L.

Howe, E.

Rawlings, B.

Howell of Guildford, L.

Razzall, L.

Hunt of Wirral, L.

Reay, L.

Jenkin of Roding, L.

Redesdale, L.

Jopling, L.

Rees, L.

Kalms, L.

Renton, L.

King of Bridgwater, L.

Renton of Mount Harry, L.

Kingsland L.

Roberts of Conwy, L.

Knight of Collingtree, B.

Rodgers of Quarry Bank, L.

Lamont of Lerwick, L.

Rogan, L.

Lindsay, E.

Roper, L.

Liverpool E.

Rotherwick, L. [Teller]

Livsey of Talgarth, L.

Scott of Needham Market, B.

Lucas, L.

Seccombe, B.

Luke L.

Selborne, E.

McColl of Dulwich L.

Sharp of Guildford, B.

MacGregor of Pulham Market, L.

Sharples, B.

Mackay of Clashfern, L

Shaw of Northstead, L.

Maclennan of Rogart, L.

Sheppard of Didgemere, L.

McNally, L.

Shutt of Greetland, L.

Maginnis of Drumglass, L.

Skelmersdale, L.

Mar, C.

Smith of Clifton, L.

Mar and Kellie, E.

Steel of Aikwood, L.

Marlesford, L.

Stewartby, L.

Mayhew of Twysden, L.

Stoddart of Swindon, L.

Miller of Chilthorne Domer, B.

Strathclyde, L.

Miller of Hendon, B.

Swinfen, L. [Teller]

Monro of Langholm, L.

Thomas of Gresford, L.

Morris of Bolton, B.

Thomas of Walliswood, B.

Moynihan, L.

Tope, L.

Murton of Lindisfarne, L.

Tordoff, L.

Naseby, L.

Trumpington, B.

Newby, L.

Tugendhat, L.

Noakes, B.

Ullswater, V.

Northesk, E.

Vinson, L.

Norton of Louth, L.

Waddington, L.

Oakeshott of Seagrove Bay, L.

Wade of Chorlton, L.

O'Cathain, B.

Wallace of Saltaire, L.

Onslow, E.

Walmsley, B.

Wilcox, B.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Carter, L.

Ahmed, L.

Clark of Windermere, L.

Alli, L.

Clarke of Hampstead, L.

Amos, B. (Lord President of the Council)

Clinton-Davis, L.

Andrews, B.

Corbett of Castle Vale, L.

Ashton of Upholland, B.

Crawley, B.

Bach, L.

David, B.

Bassam of Brighton, L.

Davies of Coity, L.

Berkeley, L.

Davies of Oldham, L. [Teller]

Bernstein of Craigweil, L.

Dean of Thornton-le-Fylde, B.

Bhattacharyya, L.

Desai, L.

Billingham, B.

Dixon, L.

Blackstone, B.

Drayson, L.

Boothroyd, B.

Dubs, L.

Borrie, L.

Elder, L.

Brennan, L.

Evans of Parkside, L.

Brooke of Alverthorpe, L.

Evans of Temple Guiting, L.

Brooks of Tremorfa, L.

Falconer of Thoroton, L. (Lord Chancellor)

Campbell-Savours, L.

Farrington of Ribbleton, B.

173

Faulkner of Worcester, L.

Mason of Barnsley, L.

Filkin, L.

Massey of Darwen, B.

Fitt, L.

Morgan, L.

Fyfe of Fairfield, L.

Morris of Manchester, L.

Gale, B.

Nicol, B.

Gavron, L.

Paul, L.

Gilbert, L.

Pendry, L.

Golding, B.

Peston, L.

Goldsmith, L.

Pitkeathley, B.

Gordon of Strathblane, L.

Ponsonby of Shulbrede, L.

Goudie, B.

Powell of Bayswater, L.

Gould of Potternewton, B.

Puttnam, L.

Graham of Edmonton, L.

Radice, L.

Grocott, L. [Teller]

Ramsay of Cartvale. B.

Hannay of Chiswick, L.

Randall of St. Budeaux, L.

Harris of Haringey, L.

Rendell of Babergh. B.

Harrison, L.

Richard, L.

Hart of Chilton, L.

Rosser, L.

Haskel, L.

Sainsbury of Turville, L.

Hayman, B.

Sawyer, L.

Henig, B.

Sheldon, L.

Hilton of Eggardon, B.

Simon, V.

Hogg of Cumbernauld, L.

Smith of Leigh, L.

Hollis of Heigham. B.

Snape, L.

Howarth of Breckland, B.

Stone of Blackheath, L.

Howe of Idlicote, B.

Strabolgi, L.

Howells of St. Davids, B.

Temple-Morris, L.

Hoyle, L.

Tenby, V.

Hughes of Woodside, L.

Thornton, B.

Hunt of Chesterton, L.

Tomlinson, L.

Hunt of Kings Heath, L.

Triesman, L.

Irvine of Lairg, L.

Truscott, L.

Janner of Braunstone, L.

Tunnicliffe, L.

Kirkhill, L.

Wall of New Barnet, B.

Lea of Crondall, L.

Warner, L.

Levy, L.

Warnock, B.

Lockwood, B.

Whitaker, B.

Lofthouse of Pontefract, L.

Whitty, L.

McIntosh of Haringey, L.

Williams of Elvel, L.

McIntosh of Hudnall, B.

Williamson of Horton, L.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Mallalieu, B.

Resolved in the affirmative, and amendment agreed to accordingly.
5.39 p.m.
Clause 21 [Intervention orders]:
Viscount Astormoved Amendment No. 22:
Leave out Clause 21.
On Question, amendment agreed to.
Clause 22 [Appointment of traffic director: supplementary]:
Viscount Astormoved Amendment No. 23:
Leave out Clause 22.
On Question, amendment agreed to.
Clause 23 [Monitoring and reporting]:
Viscount Astormoved Amendment No. 24:
Leave out Clause 23.
On Question, amendment agreed to.
Clause 24 [Intervention in activities of local traffic authority]:
Viscount Astormoved Amendment No. 25:
Leave out Clause 24.
On Question, amendment agreed to.
174
Clause 25 [Exercise of local traffic authority functions]:
Viscount Astormoved Amendment No. 26:
Leave out Clause 25.
On Question, amendment agreed to.
Clause 26 [Application of sections 20 to 25 to local traffic authorities exercising functions jointly]:
Viscount Astormoved Amendment No. 27:
Leave out Clause 26.
On Question, amendment agreed to.
Clause 27 [Criteria for making intervention orders]:
Viscount Astormoved Amendment No. 28:
Leave out Clause 27.
On Question, amendment agreed to.
Clause 28 [Guidance to traffic directors]:
Viscount Astormoved Amendment No. 29:
Leave out Clause 28.
On Question, amendment agreed to.
Clause 29 [Traffic directors in London]:
Viscount Astormoved Amendment No. 30:
Leave out Clause 29.
On Question, amendment agreed to.
Clause 30 [Recovery of costs from local traffic authorities]:
Viscount Astormoved Amendment No. 31:
Leave out Clause 30.
On Question, amendment agreed to.
Clause 32 [Meaning of "permit scheme"]:
Lord Rotherwickmoved Amendment No. 32:
Page 14. line 27, after second "specified" insert "traffic-sensitive"
The noble Lord said: My Lords, the aim of the amendment is to ensure that the permit scheme is applied "intelligently", focusing on areas where it is most needed. It has arisen out of concerns expressed by the utilities industry, which are being ignored. that there is unnecessary bureaucracy in the permit scheme. There is also considerable concern that the secondary legislation will not deliver, particularly as it is felt that the working groups are being guided by the Government. I hope that the Minister can clarify the situation with regard to the concerns that I have put forward on behalf of the industry today.
A "traffic-sensitive street" can be defined by a whole range of criteria which are measurable and on which all local authorities will have data and local knowledge. Traffic-sensitive management will deliver results by focusing on the areas where it is needed. It will save on resources, reduce unnecessary bureaucracy, affect delivery of vital utility services only where absolutely necessary, and will meet the Government's objectives on congestion on our streets. I beg to move.
Lord Davies of Oldham:My Lords, when utilities carry out works on traffic-sensitive streets, they are required to give more advance notice of those works than they do in relation to other streets. Traffic-sensitive streets are designated by authorities. They have to satisfy certain criteria, including being trunk or principal roads, or having a high vehicle or pedestrian

175
traffic flow. Other streets can also be designated as traffic-sensitive but only with the agreement of all the utilities that have apparatus in that street.
Given that the highway authority is responsible for managing the roads in its area and for securing the expeditious movement of traffic, we do not believe that any one utility—I emphasise that there are now about 150 of them—should be in a position to veto the inclusion of a particular road when unnecessary and unmanaged delays on that road might lead to serious disruption on other parts of the network.
We do not believe that permit schemes should be confined on the face of the Bill to sensitive streets. Indeed, there is a strong case for saying that where an authority operates a permit scheme, it is better that it applies to all roads in that area. That means that those wanting to execute works would not have to deal with two different systems for managing their works, one on permitted roads and one on others.
We think that the question of what types of streets should be covered should be left to regulations. These will be prepared with the help of the interested parties, such as authorities and utilities, and debated in Parliament having been subject to public consultation. I should also remind the House that no permit scheme could be put in place without approval of the Secretary of State or the National Assembly in Wales. So, there are adequate safeguards to prevent authorities from operating permit schemes in an unreasonable manner.
On that basis I hope that the noble Lord will recognise that the Government's position is carefully thought through and that we could not possibly contemplate a situation where among a vast plethora of utilities, any one would be able to operate effectively a veto on a scheme. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Rotherwick:My Lords. I have listened with interest to the careful explanation given by the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guitingmoved Amendment No. 33:
Page 14, line 44, at end insert "(including provision with respect to applications for such variations)"
The noble Lord said: My Lords, in moving Amendment No. 33 I shall speak also to Amendments Nos. 41 to 44. Clause 34(6) to (8) and Clause 35(4) to (6) allow the national authority—the Secretary of State for Transport or the Welsh Assembly Government—to vary or revoke permit schemes which are already in operation. These might be needed, say, where a local authority chooses to stop operating a scheme and where it has to be wound up or where at some point in the future a second set of permit regulations makes changes to the earlier ones and where these changes need to be carried through to the details of individual permit schemes.
176
We believe it seems sensible to tidy up the provisions and bring them together. Amendments Nos. 41 and 43 delete the existing powers in the Bill covering permit schemes operated by local and national authorities respectively. Amendment No. 42 is simply a consequential one, following on from Amendment No. 43.
Amendment No. 44 replaces these and makes clear that schemes must be revoked or varied by order, and that a single order can apply to more than one scheme. The permit regulations have the power to modify or disapply existing enactments, for example, to ensure that undertakers do not have to comply with both permit rules and similar provisions under other Acts. The amendment provides that an order can also disapply enactments to reflect any changes needed to schemes already in operation at the time that future permit regulations make changes to the existing rules governing schemes.
Finally, Amendment No. 33 clarifies that the power in Clause 32(2)(e) allowing for permit regulations to provide for the review or variation of permits can also cover applications for variations. That might include, say, where a person granted a permit to dig up the street wishes to apply for conditions attached to it to be varied, perhaps because it is no longer possible to do the work to the original timetable. I beg to move.
5.45 p.m.
Lord Rotherwick:My Lords, these amendments apparently aim to set out in a more straightforward way the powers of the appropriate national authority to vary or revoke permit schemes by order. They allow for a single order to vary more than one permit scheme. The Minister said that they intend to use these powers for the purpose of the good administration of permit schemes or simply to make changes to reflect alterations in the permit regulations.
The utilities industry feels that this may have been an attempt by the Government to respond to complaints raised in Committee regarding the difficulties of varying permit schemes from authority to authority for those trying to comply, particularly when the works cut across boundaries. If so, the amendment arguably does not tackle that as it still does not introduce any degree of consistency between permit schemes for those utilities operating across the country which will be forced to contend with all these different schemes. It tightens up the existing wording but does not address our fundamental concern and very much leaves open the possibility of having a multiplicity of different systems throughout the country. For any one utility having more than one system to comply with and on which to train staff it will be a logistical nightmare. I would welcome any further response that the Minister could provide.
Lord Evans of Temple Guiting:My Lords, where a permit scheme is in force and the local authority needs to put into force another one, here is the method for getting rid of the first set of permit schemes. Clearly, the noble Lord raised issues other than that. I should like to take them away, consider what he said and write to him with our views.

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On Question, amendment agreed to.
[Amendment No. 34 not moved.]
The Earl of Northeskmoved Amendment No. 35:
Page 14, line 44, at end insert—
"(f) as to cases in which it is appropriate to draw the distinction between minor works and other more extensive works."
The noble Earl said: My Lords, in moving Amendment No. 35 I shall speak also to Amendment No. 45. I recognise that the subject matter of minor works in the context of the Government's proposed permit scheme was well aired in Grand Committee, notably with amendments tabled by the noble Lord, Lord Borrie. As he observed, it is explicit in the drafting of Clause 32(2)(c) that circumstances are envisaged when certain "specified works" will be exempted from the permit scheme. However, to repeat what the noble Lord said, these are not defined in any way on the face of the Bill.
I do not dispute the assessment of the noble Lord, Lord Evans, that the Government need,
"to discuss carefully how sensible it is to exempt minor works as these can cause significant disruption if they are in a busy street".

Nor do I dissent from the view that the fine detail of what constitutes "minor works" would be,
"best left to regulations rather than on the face of the Bill".—[Official Report, 27/4/04; col. GC 116.]
Nevertheless, there is merit in establishing the principle that the distinction between minor and more extensive works will be taken into account in drawing up the relevant regulations. That is what the amendment would do, although I am bound to say that Amendment No. 37 tabled by the noble Lord, Lord Borrie, probably deals with the matter rather better than my effort.
Of course were the Minister to give an unequivocal assurance that the Government intend to draw up the regulations on this basis, the amendments would be unnecessary. In that sense, they are probing in nature, and I await the Minister's response with interest. I beg to move.
The Earl of Erroll:My Lords, it is important to examine the whole area of what is minor and what is not. I was made to think about it when my noble friend Lord Monson pointed out the noise caused by digging up his pavement for cable TV. He was worried that that was part of a telecommunications emergency. There is a difference which some people do not understand. The matter just needs to be thought out. That is why the amendment is worth thinking about.
Lord Evans of Temple Guiting:My Lords, Clause 36(2)(c) already allows regulations to set out which works can be carried out without a permit—for instance, emergencies or very minor works; and there is the flexibility to vary requirements for obtaining a permit for different types of works.
As we made clear at an earlier stage of the Bill's progress, the working group looking at the details of permit schemes is considering whether certain minor
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works should be exempted altogether from the need for a permit. It goes without saying that the working group will be looking at today's discussions in Hansard to assist with its conclusions. The working group is also considering whether the level of supporting information that those applying for permits must supply to the permit authority should be reduced for lesser works. That seems sensible. There is no point in imposing unreasonable burdens on those carrying out works which have minimal impact.
However, it is also important to remember that more often than not the most significant factor in determining how disruptive individual works are is where they are carried out rather than how extensive they are. So, minor works in Trafalgar Square can be far more disruptive than major works in a residential road such as Chester Street in Belgravia.
We take on board the points made by the noble Earl, Lord Northesk. Given my explanation about the consideration being given for different treatment for minor works, I hope that the noble Earl will feel able to withdraw his amendment.
Baroness Oppenheim-Barnes:My Lords, before the Minister sits down, will he say what attention is paid, in designating minor works, to the duration of the works? Although they might be small, they could continue for an unacceptable length of time.
Lord Evans of Temple Guiting:My Lords, the noble Baroness makes a point that I mentioned when I talked about minor works in Trafalgar Square being far more disruptive than those in a quiet residential road such as Chester Street in Belgravia. The working group is looking at the question of what constitutes a minor work. Obviously, when it does so, it will take into account the amount of time taken for the minor works to be completed.
The Earl of Northesk:My Lords, I am most grateful to the Minister. On balance, I think I am satisfied that the Government intend to pay due attention to the distinction between minor works and more extensive works, notwithstanding the caveats that the Minister mentioned. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Borriemoved Amendment No. 36:
Page 14, line 44, at end insert—
"( ) Without prejudice to subsection (2)(c), a permit scheme must include provision enabling works urgently required—

for public safety, or

in other specified cases appearing to the authority to constitute an emergency or otherwise to be urgent,

to be carried out without a permit."
The noble Lord said: My Lords, the amendment stands in my name and those of my noble friend Lord Berkeley and the noble Earl, Lord Erroll. In the previous short debate, my noble friend Lord Evans of Temple Guiting said that Clause 32(2)(c) provided for a permit

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scheme to enable specified works to be carried out without a permit. He cited emergency works and minor works. The important point I want to make is that Clause 32(2)(c) does not mention either emergency works or minor works. It provides in general terms for a permit scheme to enable certain works to be carried out without a permit.
The purpose of my amendment is to exempt emergency works, which I would describe as works to deal without delay with gas, water escapes or electrical faults, from the permit requirements and similarly to exempt minor works. I say to my noble friend, and indeed to the noble Baroness, Lady Oppenheim-Barnes, that we have referred to minor works as works which,
"involve little or no disruption",
to be carried out and that would be part of the definition. We think such works should be allowed without a permit.
In Grand Committee, my noble friend Lord Evans of Temple Guiting said that Clause 36(2), which we have not yet reached, already allowed for regulations to be made for the purposes of exempting emergency and minor works from the permit schemes. I do not think that Clause 36 specifically gives the Minister power to make regulations requiring emergency or minor works to be exempt from permit schemes, but merely to make regulations about procedures, publicity and what it calls "standard provisions" for permit schemes. Perhaps—I obviously put this in the form of a question to the Minister— he intends to make regulations imposing—because anything less than that would be not worth while—standard provisions on local authorities about what are emergency and minor works and to the effect that such should not require a permit. Perhaps he could answer that in his response. Anything short of that would leave local authorities free to make no exemption or to make an inadequately worded exemption in respect of emergency and minor works.
In Grand Committee, my noble friend Lord Evans gave the impression that any regulations made, presumably under Clause 36, would distinguish between dealing with the immediately potentially dangerous emergency situation which could be carried out at once without a permit and the follow-up work—the filling-in of the hole and the resurfacing—which perhaps would need a permit.
Although the Minister suggested that it was commonly the utilities' fault when delay occurred in filling up holes after emergency work was completed, his proposal that the latter part of the work should require a permit would cause bureaucratic delay while a permit was being sought. So there are many problems here. I suggest that Amendment No. 36, combined with Amendment No. 37, would help to make clear what is involved in allowing emergency and minor works to be completed without the need for a permit. I beg to move.
6 p.m.
Viscount Astor:My Lords, the noble Lord, Lord Borrie, has raised an important issue. I certainly support all the sentiments that he expressed in moving the amendment, because these are crucial issues dealing with permits and emergency work. The general public—the customer—will not be forgiving if there is an emergency and it turns out that supply has been disrupted because we introduced a cumbersome system that did not allow remedial work to be carried out straightaway.
Lord Berkeley:My Lords, I support the amendment. Further to the noble Viscount's point about having to get a permit retrospectively after an emergency, it is worth pointing out that only 40 per cent of the holes that Transco digs are as the result of an emergency. We should take into account that a requirement to get a permit after dealing with an emergency without a permit could delay the process even longer, causing more traffic jams.
I wish to expand on what the noble Earl, Lord Erroll, said in an earlier debate. What is the definition of an emergency? We ought to accept that, in this day and age, urgency is the important aspect. A 999 call centre or a hospital losing power is an emergency because it affects people; so, too, is a major bank losing its connections to a data-network. It may be that nobody is hurt, although that would not be the case in a hospital. The consequence of losing power on such occasions is very serious. I hope that, when the detailed definitions of an emergency are drawn up, such cases will be included as emergencies and treated with the seriousness that they deserve.
The Earl of Erroll:My Lords, I have attached my name to these amendments because I feel strongly that the danger with bureaucracies is that they like to invent regulations to try to cover every situation. Real life never works that way. There must be some discretion for people to get the job done to prevent a crisis becoming an emergency or a disaster. If, for example, an incident were classified incorrectly as an emergency, or if unwisely the regulations were tightened further, suddenly one might find everything paralysed. I feel strongly that the Bill should not just provide discretion possibly to put such provisions into regulations; emergencies must be provided for and human discretion must be permitted in trying to cope with such events, and then we can sort it out afterwards.
Equally, it would be ridiculous to slow everything up on account of a minor incident. "Minor" is well described in the amendment as,
"little or no disruption to traffic".
If there is little or no disruption to traffic, what is the problem? Why create a huge bureaucratic event out of it? I cannot see the point of it, and I am sure that the Better Regulation Task Force could not either. I hope that it has cast its eyes over this.
I support in particular the remarks of the noble Lord, Lord Berkeley, that losing telecommunications and such incidents constitute an emergency. Nowadays, certain

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procedures are done remotely, perhaps over a remote telecommunications link—for example, a surgeon instructing another one at a distance. There are all sorts of cases where we are totally reliant on communications and we will lose lives if those communications go down. In many cases, restoring communications is not highly disruptive and will not require huge amounts of work. The noble Lord, Lord Berkeley, made a very good point about the need to include those in the emergency provisions.
Lord Peyton of Yeovil:My Lords, I think that I am in the minority. I would be a little surprised if, under the present law, any utility faced with a real emergency could not do it straightaway without difficulty. I would be surprised if that were not still the case after the Bill was enacted.
One of the reasons for introducing the Bill is the widespread feeling that utilities have abused their privileges and made too much of them. I, for one, would be nervous about saying, "We really didn't mean what we threatened to do. We do not want to do anything that would make you uncomfortable or put you under pressure". I believe that the purpose of the Bill is to put pressure on utilities to be fair and sensible when it comes to the interests of other road-users. I do not think that they have done that to date. I accept the reasons given by the noble Lord, Lord Borrie. On the face of it, the amendment is very reasonable, but it might be the thin edge of the wedge, allowing the utilities to revert to their previous, rather callous practices.
Lord Evans of Temple Guiting:My Lords, I apologise to the House. In responding to the previous amendment, I made a point about Clause 36; I should have made it about Clause 32. Similarly, in this amendment, any references to Clause 36 should read "Clause 32". Therefore, we should not be surprised that my noble friend Lord Borrie could not find what he was looking for on Clause 36. Due to a mistake on our part, we had directed him to the wrong clause. I apologise to my noble friend and to other noble Lords for the error.
I agree in principle with the arguments that my noble friend Lord Borrie has raised in moving his amendment. The Government agree that permit schemes should not delay essential works unnecessarily. I gave assurances in Grand Committee that the Government would consider these points carefully in the drafting of regulations, and I am happy to repeat those assurances today.
Clause 32 already allows regulations to state that certain works could be carried out without a permit. We are exploring what exemptions would be sensible, with the help of authorities and utilities, and will later go out to public consultation on draft regulations. All interested parties. including cable companies, will have a chance to put forward their views.
I repeat the assurances given in Grand Committee. We believe that no obstacles should be put in the way of dealing with dangerous, or potentially dangerous, situations—that is an unqualified statement. However, the issue of emergency works is not straightforward. For
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example, once the emergency is over, there can be lengthy delays in dealing with the work that follows. After the immediate danger has passed, a utility may take some time to fill in the hole that it has dug. In these circumstances, it may be that dealing with the emergency itself would not require a permit, but that utilities would still be expected to comply with appropriate conditions when completing the job. Explicitly exempting emergency works in the Bill would prevent regulations making this kind of distinction. The end result of such an exemption could be that, for weeks after an emergency occurred on a busy road, a utility would not be required to complete the works within any set timescale.
The Government may also consider further exemptions. Exempting minor works would require very careful consideration, as we pointed out in response to the previous amendment. For example, a customer connection completed within three days may appear very minor to the utility carrying out the works. However, if those works take out a lane of a busy city-centre street, they could cause very serious disruption.
The noble Lords, Lord Borrie and Lord Berkeley, asked whether emergency services should be exempt. We agree that it would probably be sensible to exempt certain works. However, we can do that in regulations, and it does not have to be done in individual permit schemes. There is no question of permit schemes delaying dealing with emergencies.
With these explanations and assurances, I hope that the noble Lord will feel able to withdraw the amendment. I renew my apologies for our mistake in referring to Clause 36 instead of Clause 32.
Lord Borrie:My Lords, I am grateful to the Minister for his remarks. However, I hope that I have not misheard him; I am still somewhat confused by his references to Clauses 32 and 36. Clause 32 does not specify the making of regulations at any point, whereas Clause 36 is not only headed "Permit regulations", but talks about permit regulations setting out standard provisions that must be included in a permit scheme. I hope that the Minister means that there will be permit regulations, which will set out standard provisions dealing with emergency works and minor works in the ways in which he has described. If that is what he means, I am reasonably content. I am happy to rabbit on a little while he reads his note. I will be ready then to withdraw my amendment.
Lord Evans of Temple Guiting:My Lords, I very much hope that the note I have just been passed answers the questions raised by my noble friend Lord Borrie. Clause 32(2)(c) allows schemes to exempt works. Clause 36(3)(a) enables general regulations to deal with this, making general provisions for all schemes. Minor works and emergencies would be dealt with by these provisions. I hope that that is a satisfactory explanation.
Lord Borrie:My Lords, I am grateful, and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 37 and 38 not moved.]

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Clause 33 [Preparation of permit schemes]:
Lord Evans of Temple Guitingmoved Amendment No. 39:
Page 15, line 8, leave out "him" and insert "the national authority"
The noble Lord said: In Committee, the noble Lord, Lord Berkeley, expressed concern that the wording in Clause 33 was ambiguous as regards to whom applications to operate permit schemes should be directed. We agreed to go away and consider that, and I am glad to confirm that having done so, we agree with the noble Lord. These amendments make clear that where directed to do so, one or more local highway authorities must submit a permit scheme to the national authority and that it must take such form as the national authority may direct. I beg to move.
Lord Berkeley:My Lords, I am grateful to my noble friend for listening so assiduously to previous representations about this issue. I thank him for bringing forward this amendment, which I welcome.
Lord Rotherwick:My Lords, we are happy with these minor drafting changes.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 40:
Page 15, line 9, leave out "he" and insert "the national authority"
On Question, amendment agreed to.
Clause 34 [Implementation etc. of local highway authority permit schemes]:
Lord Davies of Oldhammoved Amendment No. 41:
Page 15, line 32, leave out subsections (6) to (8).
On Question, amendment agreed to.
Clause 35 [Implementation etc. of other permit schemes]:
Lord Davies of Oldhammoved Amendments Nos. 42 and 43:
Page 16, line 2, leave out "("the authority")"
Page 16, line 8, leave out subsections (4) to (6).
On Question, amendments agreed to.
Lord Davies of Oldhammoved Amendment No. 44:
After Clause 35, insert the following new clause—
"VARIATION AND REVOCATION OF PERMIT SCHEMES

The appropriate national authority may by order vary or revoke any permit scheme which for the time being has effect.

An order under this section—

may relate to one or more permit schemes,

may vary or revoke any order under section 34 or 35, or any order previously made under this section,

may (in accordance with permit regulations) include provisions which disapply or modify enactments to the extent specified in the order."

On Question, amendment agreed to.
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Clause 36 [Permit regulations]:
[Amendment No. 45 not moved.]
The Earl of Errollmoved Amendment No. 46:
Page 16. line 23, at end insert—
"( ) Without prejudice to subsection (2)(b), permit regulations shall set out provisions which may be included in a permit scheme prepared by a local highway authority for its area and, if included in one such scheme, must be included in all such schemes."
The noble Earl said: My Lords, I put this amendment forward because trying to standardise these schemes will prevent things from falling through the cracks between them. If we have a myriad of different schemes throughout the country, even if they differ only in minor points, it will be a job creation scheme, because we will have to have different people who understand all the complexities of the possibly very minor differences between schemes in different parts of the country. As things come together and we centralise things more, and information I hope becomes available electronically on the Internet—which I will get on to in my later Amendment No. 55—standardisation is essential, or it will cause chaos. The whole point of this amendment is to ensure a consistent approach across England and Wales.
Interestingly, in Grand Committee the Minister said that it could not be sensible to have dozens of entirely different schemes operating in different parts of the country. This amendment would allow him to carry out that intention, and would assist him in that objective. I cannot see why it is not eminently sensible. I beg to move.
6.15 p.m.
Lord Evans of Temple Guiting:My Lords, as drafted, the intention of Amendment No. 46 seems to be to provide that regulations may set out provisions that may be included in a permit scheme prepared by a highway authority. However, the effect of the amendment would be that once one authority has taken advantage of the provision to determine the details of the scheme that it wishes to run, all other authorities wishing to operate a scheme would have to include identical provisions in the schemes that they submitted to the national authority for approval. We are not clear that this is the purpose of the amendment.
The Government agree that it is desirable that there should be some degree of standardisation between different permit schemes, and the relevant working group is considering how far that should extend. When the deliberations of that working group go out to public consultation, I am sure that it will be happy to hear from the noble Earl. It would be best for the primary legislation not to be prescriptive as to how far that consistency should extend. I hope that in the light of my comments the noble Earl will feel able to withdraw his amendment.
The Earl of Erroll:My Lords, I thank the Minister for his reply. I was not sure that it was the best way of achieving it, but I thought that I should sow the seeds of the concept in the mind of the Government. I thought that they might like to introduce something to

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say that there should be standardisation of these schemes across the country. To have local variations would lead to trouble. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker:My Lords, if Amendment No. 47 is agreed to, I cannot call Amendment No. 48.
Lord Davies of Oldhammoved Amendment No. 47:
Page 16, line 34, leave out paragraph (b) and insert—
"(b) for or in connection with the determination, or facilitating the determination, of disputes (including provision with respect to the appointment of persons to determine, or facilitate the determination of, disputes),
(ba) for or in connection with appeals (including provision with respect to the appointment of persons to hear appeals),"
The noble Lord said: My Lords, in moving Amendment No. 47, I shall speak also to Amendment No. 49. I also, in passing, hope to make a brief reference to Amendment No. 48, which I hope my noble friend will regard as unnecessary, given the arrangements that we seek to make.
In Committee, there was considerable discussion about what arrangements should be in place to allow for an appeal system as part of the permit scheme. As we explained then, we have asked a working group of local authorities, utilities, and others, to consider what rights of appeal should be allowed for; for instance, an appeal against a refusal of a permit for particular works, or any conditions that are attached to the granting of a permit, and who should hear such appeals. Utilities and local authorities in particular would be most affected by permit schemes. It makes sense to allow them to consider and recommend a sensible appeals system before we make final decisions on the arrangements.
When my noble friend Lord Evans wrote to noble Lords after the Committee stage, he explained that while the Government are not in a position to define exactly what appeal arrangements would be in place, we would be able to explain the principles that underlie them. The aim is to create a system that is not unnecessarily bureaucratic, drawn out, or expensive to operate. At the same time, we must ensure that any grievances are given proper consideration, and that there is recourse from those decisions to a court or to another independent tribunal. There are a variety of possible options, including arbitration, or an appeal to a panel of adjudicators; and the working group is looking at these options.
Amendment No. 47 fleshes out the existing provisions in Clause 36(4)(b) to make clear that the Government are able to make extensive provisions in regulations to allow for dispute resolution and a system of appeals. Amendment No. 49 makes clear that if regulations provide for adjudication, the consent of the Lord Chancellor would be required for the making of the regulations. That is in line with normal practice for making provision for adjudication in legislation. On that basis, I hope that my noble
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friend will recognise that we have covered the ground that he is concerned about. I hope that he will not feel the need to press his amendment. I beg to move.
Viscount Astor:My Lords, I thank the Minister for addressing through these amendments the concerns we raised in Grand Committee.
Lord Berkeley:My Lords, I should also like to thank my noble friend. There has been extremely positive correspondence and discussion on this point and I am most grateful to him and to the Government for proposing government Amendments Nos. 47 and 49. Of course I shall not press my Amendment No. 48.
On Question, amendment agreed to.
[Amendment No. 48 not moved.]
Lord Davies of Oldhammoved Amendment No. 49:
Page 16, line 43, at end insert—
"( ) Provision under subsection (4) in respect of adjudication may not be made without the consent of the Lord Chancellor."
On Question, amendment agreed to.
Lord Evans of Temple Guitingmoved Amendment No. 50:
Page 16, line 43, at end insert—
"( ) Permit regulations may make provision for or in connection with the giving of fixed penalty notices (including, in particular, provision applying Schedule 4B to the New Roads and Street Works Act 1991 (c. 22), with or without modifications) in relation to any offence created by permit regulations."
The noble Lord said: My Lords, in moving Amendment No. 50 I shall speak also to Amendment No. 60. Clause 40 allows for certain criminal offences under the New Roads and Street Works Act 1991 to be made subject to fixed penalty notices. Schedule 2 to the Bill lists these offences, which all relate to undertakers notifying highway authorities about works in the street which they are carrying out or which they intend to carry out.
Clause 36(4)(d) allows for permit regulations to define certain criminal offences in relation to permit schemes. The working group of local authorities, utilities and others which is considering the detail of how permit schemes would work, will look at which criminal offences should underpin them—for instance, carrying out works without a permit. While we do not know as yet what those offences may be, it is likely that at least some would be of a similar nature to those under the 1991 Act. Given this, we consider that they could be suitable candidates for dealing with by means of fixed penalty notices. So Amendment No. 50 will allow permit regulations to make provision for one or more of the permit offences to be fixed penalty offences.
Amendment No. 60 is consequential on this and simply provides a definition of "fixed penalty notice". I beg to move.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 51:
Page 16, line 44, leave out from "with" to "provision" in line 46 and insert "the payment of a fee in respect of any one or more of the following—

an application for a permit,

the issue of a permit,

an application for the variation of a permit or the conditions attached to a permit,

the variation of a permit or the conditions attached to a permit.

(5A) Provision made under subsection (5) may include"
The noble Lord said: My Lords, there was considerable discussion in Grand Committee over what level fees for permits should be set at, and we agreed to go away and consider these issues. We are now bringing forward amendments which I hope will meet the concerns expressed.
Amendment No. 51 makes clear that permit regulations may make provision for fees to be charged in relation to a person applying for a permit, the permit being issued, or for the permit—or conditions attached to the permit—to be varied. This allows some flexibility for permit regulations to determine at which stages of the process fees should be payable.
Amendment No. 52 covers the level of fees. This provides that the national authority, in making permit regulations, can prescribe which costs incurred by a permit authority in operating a scheme can be taken into account in setting the level of fees payable for a permit.
Amendment No. 54 makes explicit that permit regulations can make provision for the keeping of accounts on individual permit schemes and for the preparation and publication of statements of account. This would ensure transparency on how much authorities raise from permit schemes.
The exact details of permit fees will need to be set out in regulations, following the deliberations of the working group. Nevertheless, I hope that these amendments address the concerns expressed in Grand Committee and make clearer the Government's intention that permit schemes should not be able to be used by local authorities to raise significant revenue at the expense of those carrying out necessary works in the street. On that basis, I beg to move.
Lord Bradshaw:My Lords, I raised this point in Grand Committee. My concern is that while local authorities should not make a profit, they should be able to cover their costs. I must draw attention to the fact that regulations in respect of vehicles emitting pollutants provide for penalties so low that it actually costs local authorities money every time they stop a vehicle. While I have no wish to object to these amendments, I ask the Minister to ensure that the costs incurred in issuing permits are met by the fees set. The Minister should not bend over backwards to those people who complain that the fees are too high.
Lord Rotherwick:My Lords, we welcome these amendments and we are glad that the Government have taken note of the industry's concerns regarding
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the permit schemes. As the Minister can see, we have withdrawn our amendments on this issue. However, we would not have had half as many concerns regarding this Bill if these regulations had been made available in draft form. Can the Minister tell us when they will be published?
Lord Davies of Oldham:My Lords, I am grateful to noble Lords for their contributions to this short debate. Of course I shall bear in mind the point made by the noble Lord, Lord Bradshaw. In the same way that we do not look at the permit scheme as a means by which local authorities can make a profit, we do not expect them to incur significant losses either.
Turning to the point raised by the noble Lord, Lord Rotherwick, I am sure that the burden of his remarks is that we should have the regulations ready before Third Reading. I cannot give that undertaking. The noble Lord will recognise the amount of work that is going on. However, I can assure him that we recognise the significance of these regulations and we intend that they shall be completed by the end of this year.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 52:
Page 17, line 5, at end insert—
"(5B) In making provision under subsection (5), the appropriate national authority must try to ensure, so far as is reasonably practicable, that the fees payable in connection with permit schemes do not exceed such costs in connection with permit schemes as may be prescribed.
(5C) For the purposes of subsection (5B), the national authority may rely on such estimates (including estimates with respect to the average costs of highway authorities or particular descriptions of highway authority) as the national authority thinks fit."
On Question, amendment agreed to.
The Earl of Errollmoved Amendment No. 53:
Page 17, line 6, leave out "may" and insert "shall"
The noble Earl said: My Lords, in moving Amendment No. 53 I shall speak also to Amendment No. 55, which is the key amendment in the group. These amendments are an attempt to help the Government achieve their e-government 2005 targets. All local authorities are supposed to be able to provide most of their services online by that year.
I have some experience in this area. Some local authorities are excellent examples of how to use modern methods of communications to enhance their service delivery to local people, to increase productivity and to facilitate communication. But others make snails look positively rapid. Some local authorities are debating what e-government is and do not even know what they are meant to be doing in the next year or so.
The amendment would,
"require the registers to be kept in electronic form",
and to make them available on what I imagine would be an Internet site which could be accessed for free. People will be able to find out what is going on.
While it is all very well to make regulations, what will make these schemes work well is good communication. If people do not know when others are digging up the

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roads and so forth, they will not know when to cooperate. This amendment will help the Government achieve what they really want to do, which is not to regulate everything out of existence, but to make it possible for people to communicate well, thus enhancing their productivity and allowing the roads to be dug up faster and with less disruption to the public. This amendment takes us forward into the 21st century. I know already that the Minister thinks that this is basically a good idea, because he said so on the previous occasion. I beg to move.
Lord RotherwickMy Lords, these amendments aim to ensure that all registers are kept in electronic form, enabling those to whom a permit is issued by an authority to have unrestricted access to the information contained therein. We welcome the idea of increasing accessibility to information and thus the promotion of transparency and accountability. However, I want to ask the Minister what estimates have been drawn up for the costs of running such an online system, and where he envisages that money will come from.
Last week I was fortunate enough to be given an opportunity to see the London Traffic Control Centre control rooms. I was enormously impressed with the electronic systems already installed and the detail of the information provided by them. That is a great achievement since the centre has been up and running only since May. I understand from the staff that the information will be made available to undertakers and, perhaps, some of it to the general public in the future. I hope that this will be the standard to be set throughout the country, not only in London.
6.30 p.m.
Lord Davies of OldhamMy Lords, I am grateful to the two noble Lords who have spoken to the amendment and to the noble Earl, Lord Erroll, for the way in which he introduced it.
As the noble Earl said, the Government have considerable sympathy with the thinking behind these amendments and we have already charged the working group of utilities and local authorities looking at the details of permit regulations to consider what provision needs to be made in relation to the keeping of registers and permits. Our initial view is that such registers should build on the registers which local highway authorities already have to keep under the New Roads and Street Works Act 1991 on works which take place on streets in their areas.
We do not want to confine the group unnecessarily, especially as Clause 36 already allows for regulations to make the necessary provision in the light of the group's work. The work is going ahead in the hands of a useful, constructive working group. I am sure the noble Earl, Lord Erroll, recognises the importance of that.
As to Amendment No. 55, I should emphasise that the noble Earl is making a request to a Government who are very concerned that we should be up to date
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in the electronic age. He will know that a very large amount of government material is now kept in electronic form. We recognise the point he makes.
As they stand, the clauses already allow such matters to be prescribed in regulations but, once again, we believe that they are best left for the working group to consider and make recommendations before we take any firm decisions. In particular, there may be circumstances under which it would not be appropriate for information on certain works to be universally available—for instance, for reasons of commercial confidentiality. The noble Earl will recognise that automatic electronic access in those circumstances could raise some interesting points. It may be necessary to introduce appropriate checks and restrictions on the communication of such information.
We recognise the constant prods that the noble Earl gives us in relation to certain aspects of legislation and the need to move into the electronic age. We are not being obstructive, but the working group has one or two knotty problems to resolve. I hope the noble Earl will accept the assurance that we are making progress on this issue and feel able to withdraw the amendment.
The Earl of ErrollMy Lords, I thank the Minister for his kind comments. I am trying to prod some of the people behind the Minister rather than those on the Front Bench, who fully appreciate the need to move forward. However, certain elements are more hidebound and it sometimes needs a good prod from somewhere else to get them moving.
I should say to the noble Lord, Lord Rotherwick, that there will be a cost in not doing this because the Freedom of Information Act will become active from 1 January 2005. I believe that this is the kind of information that could be requested under that Act; I see no reason why it should be suppressed. Simply because some information may be embarrassing or difficult is no excuse for not producing it within 20 days.
It may be worthwhile looking at such systems to ensure that the information can be retrieved economically. Many government departments may not have become fully aware of these systems, although I know that they are thinking hard about them. They have been implemented in Northern Ireland and Scotland to great effect, although I believe that Susiephone has now changed its name.
I am delighted that the working group is looking at the issue. I am sure that its members are good people who, with a prod from their leaders, will get on with the job and ensure that this kind of enhanced communication takes place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldhammoved Amendment No. 54:
Page 17, line 10, at end insert—
"(c) with respect to the keeping of accounts, and the preparation and publication of statements of account, relating to permit schemes."

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On Question, amendment agreed to.
[Amendments Nos. 55 and 56 not moved.]
Lord Borriemoved Amendment No. 57:
After Clause 36, insert the following new clause
"WORKS CARRIED OUT BY LOCAL AUTHORITIES

The appropriate national authority may by regulations make provision for the control of the carrying out by local authorities of works which would be subject to a permit scheme if carried out by undertakers.

Regulations made under subsection (1) must secure that the controls correspond so far as possible with those that would apply if the works were carried out by undertakers.

Regulations made under section 36(6) (permit regulation) shall require the registers to include specified information concerning any specified works that the local highway authority proposes to undertake or is undertaking in the area to which the register relates."

The noble Lord said: My Lords, the amendment stands in my name and those of my noble friend Lord Berkeley and the noble Earl, Lord Erroll.
We have all been concerned, both in Grand Committee and earlier today, that there should be a measure of equity as between the utilities, on the one hand, and local authorities, on the other, when they are carrying out road works. The terms and conditions applied to utilities in order to constrain traffic disruption should, as far as possible, be also applied to local authorities when they are carrying out road works.
My noble friend Lord Evans of Temple Guiting said in Grand Committee that the word "works" in the interpretation clause, Clause 38, can be required to include works under the Highways Act 1980, covering a wide range of works carried out by local authorities, including road maintenance work. So they can be included in permit schemes. I was not entirely clear as to whether "they can be" meant "they will be". Perhaps the Minister will explain that a little further.
Given that highway authorities frequently work through the use of external contractors on annual contracts or even completely outsource the work, it seems appropriate that such works should require some kind of permit scheme in order to ensure compliance and a level playing field for the utilities. Indeed, when highway authorities grant licences to third party developers seeking access to the public highway, it is even more obvious that such works should attract some kind of permit scheme.
The amendment seeks to provide that regulations will ensure that controls over local authority works will correspond as far as possible with the controls applicable to works carried out by the utilities. I beg to move.
Lord BerkeleyMy Lords, I support the amendment. We discussed earlier today the principle of equity between highways authorities and those who dig up the road for other purposes. We should not forget that the definition of "roads" includes footpaths and cycle ways.
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As my noble friend Lord Borrie said, contractors are often used and, as the noble Earl said, within local authorities the department which issues the permit is often different from the one which organises the roads. It is therefore very important that an amendment of this kind is included for reasons of equity.
Whether contractors are working for Transco or the local authority, they all have the same signs—including "road works ahead", "footpath closed", "cyclists dismount" and all kinds of other horrible things. But it does not make any difference; they have all got the same road signs and they all need to come under the Bill, whoever they are working for.
Viscount AstorMy Lords, as we have discussed on previous amendments, local authorities are responsible for half the works that we see. The noble Lord, Lord Berkeley is right; we often do not know the difference between one and the other. This is an important principle and I support the amendment.
The Earl of ErrollMy Lords, the reason I have not spoken to the amendment is that I thoroughly concur with everything that has been said, in a much better way, by everyone else.
Lord BradshawMy Lords, the modern information system which the noble Lord, Lord Rotherwick, saw in the control room of Transport for London displays all work carried out by the highway authority as well as that carried out by contractors and the utilities. I believe that all modern systems do the same. It is important that the Government, whether through regulations or in the Bill, should insist on this.
Lord Evans of Temple GuitingMy Lords, works cause disruption whoever is carrying them out. Further to the assurances given in Grand Committee and by Ministers in another place, I wrote to all Peers who spoke at Grand Committee making a clear statement that the Government believe that permit schemes should apply to an authority's own work. That remains the Government's policy. As my noble friend Lord Borrie said, I pointed out in Committee that Clause 38 makes it clear that permit schemes can include works under the Highways Act 1980. That covers a wide range of works by authorities, including road maintenance. We have asked the relevant working group to consider how, not if—I repeat "not if"— authorities' work should be incorporated in permit schemes.
My noble friend Lord Borrie asked whether contractors who work for highways authorities can be covered by permit schemes. The answer is "yes" and they will be.
I have given a clear statement on behalf of the Government on a matter that has been of concern to your Lordships both in Committee and now on Report, but I hope that, given my assurance, my noble friend will feel able to withdraw his amendment.
Viscount AstorMy Lords, before the noble Lord sits down, he said that it is a question of "how" and not

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"if". Does that mean that, once the working group has produced recommendations, the Secretary of State will come forward with an order that brings them into effect, as stated in Clause 38(3)?
Lord Evans of Temple GuitingYes, my Lords. The working group will come forward with its recommendations. We are absolutely determined—I hope that it is now crystal clear—that local authorities will be treated in the same way as other undertakers. My guess is that an order will be brought forward to confirm that.
Lord BorrieMy Lords, I am most grateful to the Minister. His words sound exceedingly clear and encouraging. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Crown application]:
Lord Berkeleymoved Amendment No. 58:
Leave out Clause 37.
The noble Lord said: My Lords, the amendment is similar to that which I tabled in Grand Committee. I am grateful to Ministers for engaging in some interesting correspondence with me since then, but I regret to say that I still do not understand the clause. Perhaps I am being thick.
My problem is with "Crown application". As I read the clause, the Crown may introduce a permit scheme, but Her Majesty in her private capacity or in the right of the Duchy of Cornwall or the Duchy of Lancaster cannot be affected by one. Nor can they can be guilty of criminal offences, which is quite amusing.
The first letter I received from the Minister states that,
"permit schemes will be capable of applying to works carried out by, or on behalf of central government on publicly maintainable highways".
I assume that that may or may not include the Royal Parks, because their roads are not public highways but owned by central government. When I asked my noble friend Lord McIntosh of Haringey last Friday for the definition of a private road, he replied that it is one that is not a highway. I do not know whether a private road is a road on which one can drive or one on which one can be arrested or accosted for going down it. I do not understand the definition of "private".
The Minister went on to state in his letter that,
"works carried out by the Queen in her private capacity, or by the Duke of Cornwall on such highways, will not be capable of being governed by permit schemes".
I thought that Clause 37 was about who sets up permit schemes rather than who is governed by them, but I shall leave that aside.
In the second letter which the Minister kindly sent to me, he stated that,
"the Royal Parks Agency could run a permit scheme that covered its roads".
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That is regardless of whether they are private or public. He continued:
"Where the exemption comes in is with regard to works carried out by or on behalf Her Majesty or the two Duchies. Others carrying out work on Her Majesty's roads might still be required to apply for a permit. The Queen in her private capacity does not do much by way of works in the street".
But she could set up a permit scheme.
Where are all these roads that the Queen owns on which we are allowed to drive and which are not part of the Royal Parks? Where are the Duchy of Cornwall roads and where are the Duchy of Lancaster roads? If they are important roads which could be subject to traffic delays when people dig them up, whether the Queen has authorised it or not, surely she should apply to herself for a permit if she is the contractor. It seems odd that the Queen should be exempt in her private capacity from giving herself permits. I am sorry to confuse your Lordships, but I am totally confused. I do not know whether the Minister can help me or whether we should just put the matter to bed and say that it is just one of the consequences of having a constitutional monarchy. I look forward to my noble friend's reply. I beg to move.
6.45 p.m.
Lord Davies of OldhamMy Lords, I am sorry that our voluminous correspondence has not assuaged the anxieties of my noble friend. Of course, we recognise that works conducted by all bodies should be subject to appropriate controls and should be managed in a way that bears in mind the need to minimise disruption among other things.
Clause 37 leaves quite unchanged the existing controls applied to Her Majesty and the Duchies of Lancaster and Cornwall by the Highways Act and the New Roads and Street Works Act 1991. That should not impact on utilities which conduct works that would benefit Her Majesty, but it might mean, for example, that Her Majesty would not have to apply for a permit for an activity which might obstruct a street. In practice, we would not expect that to hamper an authority's ability to manage its road network effectively.
I shall make an obvious point to my noble friend. In Westminster, where there is the greatest potential for such a problem to arise, there is an arrangement whereby Westminster manages the Crown Estate's works on its behalf. Therefore, the authority conducts the estate's work. My noble friend may say that the authority might thereby be applying for a permit to itself, but he will recognise that those are exceptional arrangements for a particular case.
I cannot answer my noble friend's questions about roads which may be in the royal purview. We have discussed the position of the Royal Parks. As far as I know, in all other circumstances, there are no royal highways in the country. They all come under some form of public authority. My noble friend would recognise that when a highway is obstructed, it is often related to events which we all recognise as needing special and proper priority, such as the necessary arrangements for a constitutional monarchy. While

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my noble friend is not entirely satisfied by my letters to him, he will recognise that we are operating under the constraints of particular arrangements and that I have gone as far as I am able to go.
Lord BerkeleyMy Lords, I am grateful to my noble friend. He has tried very hard, both in writing and in the House, to answer my concerns. That is a pretty impossible task, but I shall not pursue the matter further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Clause 38 [Interpretation of Part 3]:
Lord Davies of Oldhammoved Amendment No. 60:
Page 17, line 35, at end insert—
""fixed penalty notice" means a notice offering a person the opportunity of discharging any liability to conviction for an offence by payment of a penalty;"
On Question, amendment agreed to.
Lord Evans of Temple Guitingmoved Amendment No. 61:
Page 18, line 18, at end insert "or different areas"
The noble Lord said: My Lords, the amendment is a simple one, designed to make clear that the power for the national authority to make permit regulations or to make orders approving, varying or revoking permit schemes can make different provisions for different areas.
We believe that it must be sensible to have that flexibility. To take just one example, it may be, after considering the recommendations of the working group which we set up to consider permit schemes, that the Government deem it sensible to put different arrangements in place covering permit schemes in urban as against rural areas, perhaps to reflect the greater disruption that occurs in those areas. The amendment allows us to do that. I beg to move.
Lord RotherwickMy Lords, can the Minister clarify the definition of "different areas"? Will that mean urban versus rural, or from city to city or borough to borough? Furthennore, will that enable the implementation of permit schemes, and the action taken if the work is carried out without a permit, to vary from area to area? What steps will be taken to ensure that all those who may be affected by differences in different areas are aware of those differences? How will the notices of differences be published—electronically, or how else?
Lord Evans of Temple GuitingMy Lords, a few moments ago, I said that after considering the recommendations of the working group that we set up to consider permit schemes, the Government deem it sensible, for example, to put different arrangements in place covering permit schemes in urban as opposed to rural areas. The answer to the noble Lord's questions is that we must wait for the working group to come up with its proposals. We shall go out to consultation, and the department will ensure that the noble Lord is
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involved in those consultations, so that he can get satisfaction on the points that he raised. I hope that that reassures him.
On Question, amendment agreed to.
Schedule 1 [Increase in maximum fines for certain summary offences under the 1991 Act]:
Lord Davies of Oldhammoved Amendment No. 62:
Page 60, line 10, column 2, after "works" insert ", etc."
The noble Lord said: My Lords, Schedule 1 increases the level of fines for a number of offences under the New Roads and Street Works Act 1991. Amendment No. 62 corrects the description of an offence under Section 54(4) so that it refers to a failure to meet all of the duties under that section, not just the giving of advance notice.
The new clause amends Sections 54 and 55 of the 1991 Act. It provides that the advance notice that must be given under Section 54 should contain the date when the works are intended to start and such other information as may be prescribed. If an undertaker does not submit before this start date a notice required under Section 55, it must supply the authority with a further notice. This will contain such information as may be prescribed—for example, whether it still intends to go ahead with the works and, if so, when.
If the works referred to in an advance notice do not start within a prescribed period after the original start date, then the undertaker would have to start the process of giving advance notice all over again. That will deter undertakers from giving random dates for the expected start date. An undertaker is also required to give a notice under Section 55 giving the exact start date of works. If the works do not start within a prescribed time of that date, the Section 55 notice becomes invalid and the works cannot go ahead until a further Section 55 notice has been issued.
The new clause requires that where a notice becomes invalid, the undertaker must provide a further notice to the authority with certain information about the works. Again, that is likely to be whether it still intends to go ahead with the works and, if so, when. If the undertaker fails to provide that further notice under Section 55, it commits a criminal offence and can face a level 4 fine of £2,500. It will also have to provide the information to the relevant transport authority, when the works affect a level crossing or tramway.
Amendment No. 67 is consequential on Amendment No. 74 and adds the new offence to the list of offences under the 1991 Act in Schedule 2 to the Bill, which can be made subject to fixed penalty notices. I beg to move.
Lord RotherwickMy Lords, I thank the Minister for his explanation of the amendment. We welcome the idea as a whole, but we have one question. Should not the local authorities also have a duty to inform others of any planned works that they might have to cancel, in case that then influences their plans for trying to get works done in the road? If they do not do

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that, should they have to pay a fine? How do they intend to notify people of their intention to cancel works?
Lord Davies of OldhamMy Lords, I cannot give a categorical response to that question, although the noble Lord makes an entirely reasonable point. We are concerned to create fairness among the participants in the scheme. I shall consider the matter further and write to the noble Lord.
On Question, amendment agreed to.
Clause 40 [Fixed penalty offences]:
Lord Berkeleymoved Amendment No. 63:
Page 19, line 24, at end insert—
"(3A) The Secretary of State may by order modify that Schedule so as to designate any offence listed in that Schedule involving a failure in respect of a notice as an offence for which different fixed penalties are to be prescribed in accordance with paragraph 4 of Schedule 4B, according to the seriousness of the failure in question."
The noble Lord said: My Lords, in moving Amendment No. 63, I shall speak also to Amendment No. 64. The amendments are designed to discover whether my noble friend agrees that there needs to be some means to ensure that the fixed penalties are proportionate to the offences committed and take into account the level of congestion and disruption caused and, therefore, the seriousness of the offence.
We heard in Grand Committee that the working groups had considered a penalty of £750. Noble Lords may say that that is not very much. However, given the fact that there may be 5 million notices every year, as there are under the current scheme, and will probably be a lot more, if the utilities start off by getting 90 per cent of them right and 10 per cent wrong, they might end up paying something like £375 million. In the end, that money would come out of the customer's pocket.
Serious offences clearly deserve serious levels of penalty. However, spelling variations in street names, leaving one cone around or making a mistake with a sign on a side road, which clearly has minimal effect on traffic, are failures that could have a much lower penalty rate. The amendments would add a requirement that there should be a sliding scale relating to the level of congestion or disruption caused—that is, the seriousness of the offence. I beg to move.
Lord RotherwickMy Lords, the amendments would ensure that the fixed penalties awarded are proportionate to the offence committed and take into account the level of congestion and disruption caused—and, thereby, the seriousness of the offence. We would perhaps agree that there could be different levels of failure. However, failure is failure, regardless of degree.
Furthermore, I foresee difficulties in how the decision could be made with regard to different levels of failure. Failure can be relative and subject to different interpretations, depending on the individual making the judgment. As decisions will be made by
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individuals, that may open up a call for appeals and result in an endless bureaucracy of utility companies appealing over the level of failure that has occurred.
I question how the levels of congestion will be measured. There can be a small traffic jam or a big traffic jam, but how does one measure the difference between traffic jams? To what will they be compared? Congestion levels may vary throughout the day, so something may cause a high level of disruption at rush hour but not be a problem for the rest of the day. The amendment is a difficult one to judge.
7 p.m.
Lord Davies of OldhamMy Lords, for once the Government and the Opposition are united in one respect: we are having difficulty with this amendment. This is a difficult area as there will be variations in the seriousness of certain offences. However, it would be extremely difficult to devise a workable system that easily identified and measured the seriousness of the offences in certain circumstances and set different amounts accordingly and accurately.
The level of seriousness will vary according to the facts of each case. It is possible that certain factors could make the consequences of failing to notify street works correctly more serious on one day than on another, for instance, if the street works in question are carried out on a busy diversion route. It would be very difficult to prescribe how serious an offence is in advance of the offence occurring. I think that this is the point at which the noble Lord, Lord Rotherwick, was hinting in his contribution.
I understand that utilities are concerned that they may receive penalties for offences that they may consider to be minor. I want to get to the root of the concept behind fixed penalties because I cannot cope with the refinements that my noble friend sought to introduce. The concept of the fixed penalty is that it is an opportunity to discharge liability for conviction. If the utility wishes to make representations to the authority, it may do so. If the utility is still convinced that the penalty should not have been given it can refuse to pay and argue its case in court if the authority pursues the matter.
On balance, we feel that the fixed penalty system needs to be a straightforward, simple scheme. It is the first point of penalty. It would not be practical to try to categorise offences and fix differential amounts in relation to them. It is clear from the concept behind the fixed penalty that, if the utility feels that it has been unfairly treated, it is a question not of going to appeal but of challenging the authority and taking the matter to a further stage when the particular circumstances of the case would be identified. The concept behind the fixed penalty is the simplicity of the offence being triggered and the penalty being applied without a great deal of sophistication. We cannot see, for the reasons that the noble Lord, Lord Rotherwick, and I outlined, that each offence could be so very different in its implications.
I hope that my noble friend will recognise that we are not seeking to let people get off when they have made mistakes but nor are we seeking to produce

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anything remotely like the punitive regime that his rapid mathematics conjured up for us as the potential cost to utilities over the course of a year. Our concern is not to fine utilities or anyone else who causes obstruction. It is to make the highway as clear as possible and to ensure that people obey the law when it comes to any intrusion that they need to make. That is the basis behind the legislation. I hope that my noble friend will therefore feel able to withdraw his amendment.
Lord BerkeleyMy Lords, I am grateful for the comments from the noble Lord, Lord Rotherwick, and my noble friend Lord Davies of Oldham. It is a difficult problem. My fear was of the figure of £750 that has been bandied around. My noble friend is quite right: if it is a lower figure and a fixed penalty then it comes into the same category as fixed penalties for bus lane offences, yellow box offences or even speed camera offences, which we may be discussing later. If that is the level of penalty that is appropriate, I think everybody will be much happier. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 64 not moved.]
Lord Evans of Temple Guitingmoved Amendment No. 65:
Page 19, line 28, leave out "notices" and insert "offences"

The noble Lord said: My Lords, I rise to move Amendment No. 65 and to speak to Amendments Nos. 66, 96 and 97. These are minor technical amendments to the fixed penalty notices provisions in the Bill. Amendment No. 65 corrects an error in Clause 40. The Bill incorrectly says that Schedule 4B makes provision "for fixed penalty notices". It should read "for fixed penalty offences".
Amendment No. 66 also amends Clause 40. It is not necessary to refer to the power to prescribe notices in relation to the New Roads and Street Works Act fixed penalties, as the power is already implicit in the existing provision in Section 97. The subsection is therefore deleted.
Clause 61(2) refers to a "penalty charge notice" as being disapplied from provisions relating to the service of notices under the Highways Act. Amendment No. 96 corrects this so that it only refers to a "notice". The "notice" will include the fixed penalty notice and a notice withdrawing a fixed penalty.
Amendment No. 97 inserts a new subsection into Clause 61 providing for a power in the New Roads and Street Works Act to prescribe notices for the Highways Act fixed penalty offences. I beg to move.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 66:
Page 19, line 29, leave out subsection (2).
On Question, amendment agreed to.
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Schedule 2 [Schedule 4A to the New Roads and Street Works Act 1991]:
Lord Davies of Oldhammoved Amendment No. 67:
Page 61, line 37, at end insert—
"An offence under section 55(9) Failure to give notice in accordance with s.55(8) (notice to be given on s.55 notice ceasing to have effect)"
On Question, amendment agreed to.
Schedule 3 [Schedule 4B to the New Roads and Street Works Act 1991]:
Lord Berkeleymoved Amendment No. 68:
Page 64, line 8, at end insert—
"Appeals about fixed penalty notices
7A (1) A person who is given a fixed penalty notice under paragraph 1 may appeal against it on the ground that in all the circumstances—

it was unreasonable to give the notice to him; or

the amount of the penalty is unreasonable.

(2) The Secretary of State shall by regulations make provision for the hearing and determination of such appeals by independent adjudicators.
(3) Regulations under this section may, in particular, include provision—

for the appointment of such adjudicators;

for requiring the street authority whose officer gave the notice to reconsider, before an appeal is determined, whether the notice should be withdrawn; and

for giving effect to the adjudicators' decisions.

(4) Regulations under this section may not be made unless a draft of them has been laid before and approved by resolution of each House of Parliament."
The noble Lord said: My Lords, Amendment No. 68 follows on from our discussion of Amendments Nos. 63 and 64. It is about appeal procedures for fixed penalty notices. My noble friend very kindly tabled Amendments No. 47 and 49, which I think the House welcomed, on appeals in respect of permits. This amendment is designed to do the same for fixed penalty notices as an alternative to clogging up the court system at an intermediate stage. It is another attempt to find something that is a bit more acceptable to the Government than what I proposed in Committee. It is designed so that regulations could introduce a system of adjudication, which works well in other areas that we discussed in Committee. I do not think that I need speak to this amendment any longer. I hope that my noble friend will consider it. I beg to move.
Viscount AstorMy Lords, I support the principle behind this amendment because there should be some simple alternative to going straight to the courts to appeal on a fixed penalty notice. After all, a fixed penalty notice can be sent out for rather minor reasons or it might have the wrong address or the wrong date. As we know, that often happens. This way, it would mean that there would be less time in court and the process could happen simply and easily. It would not affect the system. I think that the Government may welcome the process.
Lord Davies of OldhamMy Lords, the Government do not welcome the process for the reasons that I

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identified when we were discussing the earlier amendment tabled in the name of my noble friend. The fixed penalty system does not in itself make the offender any worse off than he is now under the existing provisions in the 1991 Act. The system is designed to offer a quick and efficient way of dealing with offences. The notice is simply a means of discharging liability for conviction.
As I mentioned in response to the previous amendment in which this issue was identified, if a utility believes that it should not have received a fixed penalty notice it can make representations and the authority will have to consider whether the fixed penalty notice should be withdrawn. If the authority still believes that the fixed penalty notice was justified, it would then be up to the utility to decide whether or not it wanted to pay it. If it chose not to pay, it would then be for the authority to decide whether it wanted to pursue the offence in court, where both sides could argue their respective cases.
We expect the utilities to behave reasonably. If the fixed penalty notice is justified and it is clear that the offence was committed, they would be able to make payment and that would be the end of the matter for both. That is the beauty of the concept. However, if they think that the authority was unreasonable, they are no worse off than they are now under the existing arrangements. They can refuse to pay and they can argue the facts of their case in court.
This system is not the same as a decriminalised penalty charge notice for a parking contravention. In such cases non-payment of the notice can of course be enforced. However, the fixed penalty notice does not confer guilt or innocence and there is no provision for its enforcement. We would accept that appeal or adjudication would be necessary if there was a provision to enforce it, but there just is not. If we provided for appeal or adjudication it would effectively rule out the courts' involvement in resolving the matter if an offence has been committed. That would mean decriminalising the offence.
However, we take these offences seriously. Notification of where and when works are taking place is essential if authorities are to co-ordinate works effectively. We do not wish to send out a message that these offences are in some way becoming less important and for that reason we do not wish to decriminalise them. It is important to have the ultimate sanction of the courts if need be. There are precedents for this type of system with fixed penalty notices, such as those for litter, dog fouling and fly posting.
That is the basis behind this scheme. We had an insight into it during the discussion of the previous amendment, when my noble friend was gracious enough to withdraw his amendment. I hope that I have fleshed matters out further so that he feels able to do the same with regard to this amendment.
Lord BerkeleyMy Lords, I am very grateful to my noble friend. Half way through his contribution I thought that he was issuing an invitation to the utilities to ignore any payment that they did not think was reasonable—but I do not think that he is saying that. However, there could come a time when, if there are a lot of complaints, the courts and local authority resources become clogged up. But we will have to see what happens. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 42 [Directions relating to timing of street works]:
Lord Lucasmoved Amendment No. 69:
Page 20, line 33, at end insert—
"(1B) A direction may not be given under subsection (1A) in respect of works for which a permit has been issued under a permit scheme which is in effect under Part 3 of the Traffic Management Act 2004."
The noble Lord said: My Lords, we had this amendment in Committee. I had hoped that the Government's thinking had moved on somewhat and that we might hear rather more about how these two bits of legislation are expected to work together. I beg to move.
Lord Evans of Temple GuitingMy Lords, the Bill would allow permit regulations to modify or disapply primary and subordinate legislation. One reason for that is to make sure that we do not duplicate certain controls. I said in Grand Committee that we would expect permit regulations to set aside various sections of the New Roads and Street Works Act, including provisions governing where, when and how works take place.
I hope that it is of great reassurance to the noble Lord, Lord Lucas, when I tell him that we have asked the working group of utilities and local authorities to consider precisely what legislation should be dealt with in this way. As the Government accepted the recommendation of the Select Committee on Delegated Powers and Regulatory Reform, these regulations will be subjected to the affirmative procedure, and Parliament will also have an opportunity to scrutinise them. I hope that, in these circumstances, the noble Lord will feel able to withdraw his amendment.
Lord LucasMy Lords, he does. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.15 p.m.
Clause 46 [Duties relating to the location of unexpected apparatus]:
Viscount Astormoved Amendment No. 70:
Page 23, line 17, leave out "and keeps"
The noble Viscount saidMy Lords, as we discussed in Committee, it seems sensible that any person or entity undertaking work on the streets who happens upon unexpected apparatus, which is referred to in Clause 46, should be asked to record it. It also seems sensible that

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those records are held centrally. Clause 46(6)(5) allows for that. In Standing Committee in another place the Minister helpfully commented:

"It is right and sensible to set up a practical regulatory regime …that balances the need to ensure that all apparatus under the street is accurately recorded with not placing an unfair burden on the 'innocent persons carrying out the work'".
He continued:
"They are not responsible for what they find under the road, but as and when they find apparatus, it seems logical to mark it and inform whoever keeps the register".—[Official Report, Commons Standing Committee A, 3/2/04; col. 229.]
Under the Government's proposals, the utilities that find an apparatus—it is most likely that the utilities will find them—will be asked to store and make records of the find. However, as the apparatus does not belong to them, it seems inappropriate to place on them the burden of storing it. Every utility's records will have to be searched to determine what is under the ground and what has been discovered there in the past. It would seem much more sensible to require the local authority, as the road network manager, to keep those records. That would better meet the need for record keeping without placing an unfair burden on innocent parties. It would also increase safety and accessibility of relevant information that is held by the interested parties, which will know where to look for it.
In Committee the noble Lord, Lord Evans—rather generously, I thought—said that we had laid out the problem very fairly and that the Government must think about the matter "between now and Report". I hope that he has had a chance to think carefully about it and will be able to give us his conclusions or helpful assurances. I beg to move.
Lord Davies of OldhamMy Lords, the noble Viscount, Lord Astor, was kind enough to refer to my noble friend's generous spirit. But I am not going to be outdone by my noble friend; I am going to seek to be equally generous.
We have not yet made a decision on when the regulations might be brought forward, but I expect that when the time comes the option for which the noble Viscount has argued will be one that the Government will consider very carefully indeed. We all recognise that there is a problem if we do not have a proper record of the location of apparatus as that could result in great damage and consequent massive disruption to traffic flows. A central register showing the location of apparatus may be set up in the future. In that case, it may be that all the undertaker would have to do is pass on the record to the person keeping the register. We are consulting on the regulations.
I assure the noble Viscount that we do not intend to place an unfair burden on those who find unmarked apparatus. If he doubts our good faith in these terms—and I am asking him to take the regulations on trust— it will come as some comfort to him that Section 80 of the New Roads and Street Works Act, which this clause amends, has never been commenced, precisely because the Government believe that, as it stood, it
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would have placed too heavy a burden on the finder of the apparatus. So there has been a genuine recognition of the difficulties that attended the matter in the past.
I assure the noble Viscount that we intend to make progress with similar sensitivity. On that basis, I hope that he will feel able to withdraw the amendment.
Viscount AstorMy Lords, I am grateful to the Minister for those remarks. He has certainly satisfied our concerns. I thank him for taking the issue on board. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 71 to 73 not moved.]
Lord Davies of Oldham moved Amendment No. 74:
Before Clause 48, insert the following new clause—
"NOTICES OF STREET WORKS
(1) In section 54 of the 1991 Act (advance notice of certain works)—

in subsection (3) for "contain such" there is substituted "state the date on which it is proposed to begin the works and shall contain such other";

after subsection (4) there is inserted—

(4A) If an undertaker who has given advance notice under this section has not, before the starting date specified in the notice, given to the street authority a notice under section 55 in respect of the works, he shall within such period as may be prescribed give to that authority a notice containing such information as may be prescribed.
(4B) An advance notice under this section shall cease to have effect in relation to the proposed works (so that subsection (1) applies again in relation to the works) if those works are not substantially begun before the end of such period beginning with the starting date specified in the notice as may be prescribed, or such further period as the street authority may allow.
(4C) Different periods may be prescribed under subsection (4B) for different descriptions of works."
(2) In section 55 of that Act (notice of starting date of works) after subsection (7) there is inserted—
"(8) If a notice under this section ceases to have effect the undertaker shall, within such period as may be prescribed, give a notice containing such information as may be prescribed to those to whom the notice under this section was required to be given.
(9) An undertaker who fails to give notice in accordance with subsection (8) commits an offence and is liable on summary conviction to a fine not exceeding level 4 on the standard scale."
(3) In section 93 of that Act (works affecting level crossings or tramways) in subsection (2) for "(7)" there is substituted "(9)"."

On Question, amendment agreed to.
Clause 50 [Restriction on works following substantial street works]:
Lord Evans of Temple Guitingmoved Amendment No. 75:
Page 26, line 11, at end insert—
"( ) In section 57 of that Act (notice of emergency works)—

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(a) in subsection (1) after "works)" there is inserted "or paragraph 2(1)(d) or 3(1) of Schedule 3A (notification of proposed works or directions as to timings of works)";
(b) in subsection (2) after "is" there is inserted "(or would, but for paragraph 2(6) of Schedule 3A, be)".
( ) In section 64 of that Act (traffic-sensitive streets) in subsection (1) after "works)" there is inserted "or paragraph 2 of Schedule 3A".
( ) In section 74 of that Act (charge for occupation of highway where works unreasonably prolonged) in subsection (3)(b) after "date)" there is inserted "or notification under paragraph 2(1)(d) of Schedule 3A (notification of proposed works)".
( ) In section 88 of that Act (provisions relating to bridges) in subsection (4) after "date)" there is inserted ", or making a notification under paragraph 2(1)(d) of Schedule 3A (notification of proposed works),".
( ) In section 89 of that Act (provisions relating to sewers) in subsection (2) after "date)" there is inserted ", or making a notification under paragraph 2(1)(d) of Schedule 3A (notification of proposed works),"."
The noble Lord said:My Lords, in moving Amendment No. 75, I wish to speak also to Amendments Nos. 76 and 77.
Amendment No. 75 makes minor drafting amendments to the Bill in relation to the notification of street works where restrictions on works following substantial street works are proposed.
Schedule 3A provides that if an authority intends to restrict the carrying out of further works in a particular street, it must publish a notice informing undertakers. Such a notice can also require the undertaker to notify the authority if it wishes to carry out works in that street before the restriction takes effect. This means that the normal requirement for the undertaker to send a notice of the starting date of any of its forthcoming works to the authority under Section 55 of the 1991 Act is replaced by noticing requirements under Schedule 3A.
Under the 1991 Act, a number of other actions need to be carried out in combination with the sending of a notice under Section 55. The amendment makes a number of consequential amendments to provide that these other actions also need to be carried out in relation to the notices required to be given by the undertaker under Schedule 3A. The amendment makes consequential amendments to the following parts of the 1991 Act: Section 57 (emergency works); Section 64 (traffic sensitive streets); Section 74 (charging for overrunning works); Section 88 (works affecting bridges); and Section 89 (works affecting sewers).
Under Schedule 3A, undertakers that want to carry out works before a restriction should notify the authority. Amendment No. 76 widens the power to prescribe the notification requirements so that the form and information contained in such notification can be prescribed as well as the manner of the notification.
Amendment No. 77 clarifies that the replacement of the Section 55 noticing arrangements with those under Schedule 3A relates to works which begin in the period between the deadline set by the authority for notifying it of works and the completion of all those works set
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out under paragraph 3(1)(a) of the schedule. Other works will remain subject to the Section 55 arrangements.
Schedule 3A provides that in certain cases it is a criminal offence to carry out works before the restriction comes into force, where these are not notified to the authority or where they are carried out in defiance of a direction from the authority. The Bill provides that certain prescribed works could be carried out in this way without constituting an offence—for example, emergency works.
Amendment No. 77 also provides that the disapplication of the Section 55 noticing rules under paragraph 2(6) of the schedule would not apply to such prescribed works. I beg to move.
On Question, amendment agreed to.
Schedule 4 [Schedule 3A to the New Roads and Street Works Act 1991]:
Lord Davies of Oldhammoved Amendments Nos. 76 and 77:
Page 65, line 30, after "be" insert "in such form, contain such information, and be made"
Page 65, line 32, leave out sub-paragraph (6) and insert—
"( ) Section 55 does not apply in relation to works in the part of the highway specified under sub-paragraph (1)(c) that are begun between the end of the notice period and completion of the works referred to in paragraph 3(1)(a) to (c).
This sub-paragraph does not apply to cases prescribed under paragraph 3(6)(b)."
On Question, amendments agreed to.
Lord Lucasmoved Amendment No. 78:
Page 66, line 21, leave out paragraph (a) and insert—
"( ) where no reasonable alternative method exists for the connection of a customer to a utility;"
The noble Lordsaid: My Lords, I hope that we may be able to hear a little more on how the Government's thinking has moved since Committee in conjunction with the thinking of the many committees working on the regulations. I am very fond of beautiful new tarmac. I bicycle into work most days, and the little holes and dips are extremely inconvenient. I have not yet been thrown off, but I shall be one day, thanks to Lambeth and its cohorts. Therefore, I am all in favour of smooth roads, but none the less if someone wants a utility connection, that should be allowed, even though the road has just been redone. I beg to move.
Lord Davies of OldhamMy Lords, I am grateful for the way in which the noble Lord moved his amendment. I have sympathy for his cycling endeavours.
I emphasise that Schedule 3A already allows regulations to allow certain types of work to be carried out during a restriction period. We have asked a working group on utilities and authorities to consider what exemptions should be allowed for.
Existing regulations providing equivalent powers for restrictions after substantial road works set out exemptions for urgent works, and also for customer connections which it was not practicable to carry out

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before the restriction began. No decision has yet been taken on what exemptions it would be sensible to allow for in relation to this new power.
We believe that it would be sensible to retain flexibility to provide for exemptions in secondary legislation so that initial decisions can be taken in the light of expert advice and public consultation, and so that if it proved necessary, particular categories of works could be added to or taken away from the list of exemptions in the future. We are seeking to maintain a degree of flexibility on this. I hope that in the light of those comments the noble Lord will feel able to withdraw his amendment.
Lord LucasMy Lords, I think that is about as much comfort as I am going to get, and I am grateful. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Power of street authority to require undertaker to re-surface street]:
Lord Lucasmoved Amendment No. 79:
Page 27, line 24, leave out from "to" to end of line and insert—"(a) execute such re-surfacing works in the street as may be specified, or
(b) make a specified financial contribution to the cost of future resurfacing works,"
The noble Lord said:My Lords, in moving Amendment No. 79, I wish to speak also to Amendments Nos. 81 and 82.
There is to my mind a rather more serious question involved here. I think we all agree that liability should be placed on people who dig up the road to put it back nicely. I do not think that any of us are arguing against that. It is a question of whether we can put utilities in a position where they can quantify the liability, ideally at the time when they are doing the installation, so that they can make a proper charge to the customer, certainly within a reasonable time limit, and can provide properly in their balance sheets for this liability. I beg to move.
Viscount AstorMy Lords, I take this opportunity to ask some questions about how resurfacing affects utilities. It seems to me that this could be a responsibility that they might have to carry for some time. Therefore, it would be helpful if the Minister in responding to my noble friend could say something about the circumstances and the timescale that will apply to the duty to resurface roads. How long would a company be liable to resurface the road to the standard required after the works have finished? Will there be a cut-off date? This is possibly a liability that the company would have to accrue on its accounts. It would be helpful if the Minister could explain how this would work. I presume that a utility could, as it were, pass the responsibility on to someone else to carry out, or pay someone else to do it. It would be helpful if the Minister would explain how he envisages Clause 53 operating.
Lord Davies of OldhamMy Lords, I am grateful to noble Lords who contributed to the debate, although I am afraid that I have a very limited answer. On the
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question of timescale, to which the noble Viscount, Lord Astor, appropriately drew attention, we have not taken a decision. We recognise that it is an important matter, and it is under active consideration, but we have not reached a decision on it.
A number of important points were made by the two speakers to the amendment, and we discussed the issue extensively in Grand Committee when important points were also made. I reiterate that the Government envisage that the powers would be used only where serious problems arose and where a succession of works had left roads in a particularly bad condition. We hope that those will be relatively exceptional circumstances. Regulation will place appropriate limitations on the circumstances in which the powers could be used. That would obviously also involve the question of the time factor to which the noble Viscount referred.
I can give an assurance that the powers will not provide authorities with a neat way of having their roads resurfaced at someone else's expense. Indeed, as noble Lords will recognise, assurances were given in another place that we envisage that, however the costs of resurfacing will be shared between the various parties in the circumstances, the authority itself will still be expected to make the largest contribution.
7.30 p.m.
The government amendments on the resurfacing powers clarify the responsibilities of undertakers to contribute to resurfacing in appropriate circumstances. They also clarify the processes involved. That, together with powers under Section 78 of the New Roads and Street Works Act, covers the aims behind Amendments Nos. 79 and 82. Those and finer details, such as of what formula might be put in place to determine which bodies pay how much, and to which works the power could apply, will be set out in regulations. I draw attention to the fact that the Bill would apply the affirmative procedure to the first set of such regulations, so there would be proper and full parliamentary scrutiny of what we all recognise are important regulations. The negative procedure would apply only to subsequent refinements to the legislation.
As and when the regulations are brought forward, they will be developed with the help of authorities and utilities, and will be subjected to public consultation. I agree that the question of how utility companies' balance sheets might reflect those resurfacing costs is a difficult one. However, the effect of the government amendments is that the liability to resurface or to contribute to the cost of resurfacing will arise only in connection with works undertaken after commencement of the clauses, irrespective of whether regulations have been made under them. That is an important point. We are not engaged in the exercise of a retrospective recouping of resources from utilities.
The Government believe that the broad powers in the Bill reflect a justifiable principle; namely, that where utilities' street works have made a significant contribution towards damaging a road, the utilities in question should contribute towards the necessary resurfacing. Amendment No. 81 will be recognised as

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a problem, as it would undermine that by limiting liability only to undertakers planning to carry out future works.
We cannot emphasise too much that the road network is one of our most valuable national assets in resource accounting terms. The Highways Agency's road network alone is valued at £65 billion, and the 10-year plan set aside £30 billion for local authorities to maintain their road networks between 2000 and 2010. We should not be content to see such valuable assets and high levels of investment undermined. With that in mind, and with the reassurance that the regulations will be brought to Parliament for scrutiny in the light of public consultation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord LucasMy Lords, of course I shall withdraw the amendment. I shall consult my noble friend on the Front Bench to see whether we can think of anything ingenious that we might bring forward at Third Reading. The Minister gives lots of reassurances, but nothing in the fundamental legislation will prevent it being used much more extensively than the Minister says will be the case initially. If we could find a way to limit things reasonably closely to the promises given by the Minister, that would be desirable, but that will take some reading and thinking. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple GuitingMy Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Asylum Support (Amendment)(No. 2)Regulations 2004
7.34 p.m.
Lord Aveburyrose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 13 May, be annulled (S.I. 2004/1313).
The noble Lord said:My Lords, the regulations abolish the six-monthly single additional payments of £50 to NASS-supported asylum seekers. When the SAPs were introduced, the argument was that support was provided largely in the form of vouchers with only a small cash element, making it difficult for the recipients to save for larger purchases and limiting where they could shop. At the end of the six months, the £50 was to make up for that disadvantage.
The scheme was ended in April 2002 when the vouchers were replaced by cash payments equal to 70 per cent of income support—£38.96 for a single person over 25, and £61.11 for a married couple—plus their accommodation and utility bills. When the order abolishing the vouchers was debated in March 2002, my noble friend Lord Dholakia asked the noble Lord,
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Lord Bassam—I am glad to see that he will reply this evening—to explain the arithmetic. The Minister then said:
"The calculation has been made that the discount, the 30 per cent, is approximate to the value of housing accommodation which is fully furnished and has all the necessary utensils and furniture in place. It is felt that 70 per cent is a fair reflection of the true cash needs of asylum seekers and that the 30 per cent covers utility payments such as rent and so on. It is assumed that that is all included".—[Official Report, 14/3/02; col. 1018.]
The Minister was evidently confused by the difference between utility payments and rents, so can we get that straight from the start? From the initiation of the voucher scheme in the 1999 Act, both the rent and the furnished accommodation were provided, and the utilities were paid for separately. It was calculated that the support provided was equivalent to 90 per cent of income support, as was explained by the Home Secretary at the time, Mr Jack Straw, in another place on 16 June 1999.
When the vouchers were scrapped in 2002 because the Government finally conceded that cash benefits did not after all provide an incentive to come here for non-genuine claimants—as Mr Straw said that he strongly believed less than three years before—the value of the package remained unchanged. Therefore, people on NASS support still received 10 per cent less than if they had been entitled to ordinary income support and housing benefit. For a single person, that comes to £434 over the six months before which he becomes entitled to the SAP £50.
In response to the representations made by my noble friend Lady Williams of Crosby about the hardship felt by people who had been on NASS support for more than six months, Lord Williams of Mostyn explained that the Government had,
"decided to introduce a discretionary payment to asylum seekers who stay in the support system through no fault of their own for more than six months".—[Official Report, 2/11/99; col. 824.]
It was acknowledged that long-term asylum seekers would not have the money to replace essential household durables, or buy expensive replacement items such as children's shoes. In that respect, they were different from natives or persons settled here, who were entitled to income support. No one suggested, as the Government do in the Explanatory Memorandum attached to the order, that the £50 would actually make asylum seekers better off than UK citizens. That is a specious argument worthy of the Sun or Daily Mail.
Utility bills were always paid from the inception of the national scheme in 2000. It was that, together with the value of fully furnished accommodation, that took the NASS-supported asylum seeker up to 90 per cent of the level of those on income support. Now the Government come along and say—as the noble Lord, Lord Rooker, did on 15 June when we debated the ending of back-payments𠅅that the value of those items comes to 30 per cent, not the 20 per cent of the income support with which it is compared. NASS pays for the bare necessities, and the model contract does not specify, as some malign commentators have suggested, that telephones, TVs, new cookers or washing machines would be provided. For a married couple, it is assumed

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that basic utilities and household durables will come to 30 per cent of income support of £87.30 a week or £681 over six months, the difference between the NASS payments and income support.
I want the Minister to listen carefully to my arithmetic, because it is the basis of my challenge to the regulations. Comparing the £87.30 with the detailed household expenditure figures for the bottom 10 per cent of households by income in table 1.3 of Family Spending—a report on the Expenditure and Food survey, for 2002—03, published this month by the Office for National Statistics, household goods and services less routine maintenance, such as cleaning materials, came to £9 per week and electricity, gas and water to £11.80 per week. The total of those items for six months was £540.80, compared with the difference of £681, which I have calculated before, between NASS payments and income support. So the payments made on behalf of the asylum seeker couple leaves them short of £140 at the end of the six months, compared with their counterparts on income support. The continuation of this payment of SAP 𠄔£50 to each—would still leave the couple out of pocket to the tune of £40.
In the debate on back payments, the noble Lord, Lord Rooker, said that, on the basis of the number granted asylum and the average wait for decisions of six months, the cost of back payments came to about £11 million per year. I worked out a cost of £1 million on 16,000 successful appeals and on an average wait of three months. I took the number of successful appeals dealt with by the IAA in the first quarter of 2004 and multiplied that by four, which is likely to be an overestimate given that the rate of appeals is declining and will be reduced still further as the backlog is cleared and non-suspensive appeals kick in.
Regarding the wait, the Government are to be congratulated on speeding up initial decisions so that 80 per cent of cases are now dealt with inside two months. In 2002–03, 87 per cent were dealt with within six months. If one took 13 per cent of the 575 favourable decisions on initial applications in the first quarter of this year, it would come to 75 per cent. If those 4,000 successful appellants had been waiting for an average of six months, as the noble Lord, Lord Rooker, suggested, it could be assumed that half of those would have qualified for that payment. That is also an overestimate, given that the average figure is weighted by the small proportion of appellants whose cases take much longer to resolve. The total cost would then be about £100,000 per quarter and falling. That is a small amount, but not insignificant in the budgets of people who have been trying to exist for the previous six months on levels lower than income support.
Another way of looking at the 30 per cent claim made by Ministers in recent months would be to examine the number of people who receive support from NASS, the length of time that each recipient is supported and the total cost. Unfortunately, NASS does not maintain its accounts in a way that would enable such an assessment to be made. The independent review of
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NASS, submitted to the Government in May 2003, but published only recently after a nine-month delay, said that the authors found,
"a worrying lack of financial discipline permeating the organisation, stemming … from the fact that NASS has never had a meaningful three-year budget to work to".
Two months after beginning of the financial year, NASS did not even have a budget for the current year, 2003–04. That was because the IND was still engaged in discussions with the Treasury about its own budget. A figure of £35 million as its running costs was mentioned in the review, but that did not include payments to the asylum seekers.
The review gave some statistics on the applications for NASS support and the numbers receiving subsistence only and, respectively, full support, but there was no indication of the length of time for which they were receiving that support. If the original targets in the White Paper are reached, the majority of asylum seekers would not be in receipt of NASS support for more than six months; and a diminishing number of SAP claims would then be made.
I hope that the Minister can assist the House, first, by telling us what the NASS budget is for 2004–05 and, secondly, by telling us the calculations on which that budget is based. There are no figures whatever on the NASS website, which is one of the least informative that I have looked at of any public sector organisation. In the past year I must have looked at several hundred websites relating to local and national government. How many people, is it assumed, will be on subsistence-only benefit and how many will be on full support during the year and for what average time? The Minister must have had those figures, otherwise it would have been impossible to construct the budget. If we knew the figures we could assess the Minister's claim that the value of utility payments and household expenses amounted to 30 per cent of income level and not to the 20 per cent originally stated by Jack Straw.
7.45 p.m.
Two further reasons were given by the Government for abolishing the SAPs in an e-mail to stakeholders on 11 May. First, the Government said that it would be difficult to continue to make the payments given that UK citizens receiving income support had no access to additional payments. That is wrong. In fact, people on income support have access to Social Fund payments, which depend on individual circumstances and needs; and they may also apply for community care grants if, say, they have an unsettled way of life or their households face exceptional pressure. That grant could be used to pay for the same article or service every 26 weeks, which is the same interval between successive payments of SAP. Asylum seekers have an unsettled way of life, by definition, and face exceptional pressure. Unlike most people on income support, they left behind them when they fled their countries a lifetime of possessions and usually arrived in the UK with few clothes, household items or standard belongings, such as radios and TVs.

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Secondly, it was said that the administrative costs of processing the SAP claims was disproportionate. I do agree with the Government in that matter. The solution is to make the payments automatic, like, say, winter fuel allowances for pensioners. Even if the Government's 100 per cent claim was correct, it would not apply to those who opt for NASS subsistence-only support or who receive cash payments amounting to 70 per cent of income support. That was confirmed in a Home Office fact sheet, published in May. Nor does the 100 per cent claim apply to asylum seekers who fail to apply within three days of arriving in the country. Whatever the reasons for the delay, they receive nothing at all and have to live on thin air while they wait for their applications to be decided.
This is a mean proposal to save taxpayers a small amount of money at the expense of some of the worst-off people in this country and I am sorry that the Government brought it forward. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 13 May, be annulled (S.I. 2004/1313).— (Lord Avebury.)
Viscount BridgemanMy Lords, I thank the noble Lord, Lord Avebury, for bringing this matter before the House for due consideration and discussion. While I am grateful to the noble Lord for highlighting this highly topical issue, we on these Benches cannot support the line that he is taking, although the noble Lord has, at least, given us an insight into the disorganised state—or the not "joined-up" state, to use the current phrase—of the asylum legislation in this country. Somewhat vicariously I look forward to seeing whether the Minister and the noble Lord can settle their arithmetical differences.
I should like to take this opportunity to raise other grave concerns about the state of asylum in this country. We how have a situation where, on the one hand, the Government are withdrawing single additional payments to asylum seekers, while at the same time we read in the press that approximately 25,000 properties rented to asylum seekers are empty due to a lack of tenants, allegedly costing the Government £110 million a year. My noble friend Lady Carnegy of Lour raised this matter yesterday at Report stage on the re-committal of the Asylum and Immigration Bill, to which the Minister, the noble Lord, Lord Rooker, in cols. 38 and 39 of Hansard, gave a spirited, but not wholly convincing reply. In a period of acute housing shortage and at this huge cost, this is a failure of resource management on the part of the Government on a massive scale and I hope that the Minister can give us some more information on how the Government propose to address the problem.
It appears that the Government have never been able to develop a proper system of asylum that benefits both the applicants and the country at large. Apart from the well-documented difficulties in processing applications and tracking their progress, it is becoming increasingly difficult to remove failed asylum seekers due to the implementation of the Human Rights Act. Currently the Government face a major court defeat
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over a ruling that a policy denying shelter to asylum seekers breached human rights law. This is yet another example of the chaotic asylum situation that we have in Britain today.
On these Benches, we would urge the Government to think through the implications of their policy instead of pushing through asylum Bill after asylum Bill and ending up with challenges in the courts due to their ill thought-out policies. We all know that the Home Secretary does not like challenges in the courts.
Once again, I thank the noble Lord for introducing this interesting debate. I look forward with interest to hearing the Minister's reply.
7.50 p.m.
Lord Bassam of BrightonMy Lords, I, too, am grateful to the noble Lord, Lord Avebury, for raising this issue. I congratulate him on doing so with his customary charm and precision. He is good at following up these points and it is right and proper that we, as the Government, are held to account for what we seek to do with the asylum process and the improvements and changes we make.
It is worth reminding ourselves where we have come from and put on record how the Government see the position changing. On 3 April 2000, we revised the system of support for asylum seekers who would otherwise be destitute. This provided that support would mainly be provided "in kind", through vouchers. These were exchangeable for goods at shops affiliated to the scheme. They were issued to supported asylum seekers. A small amount of the support entitlement—£10 for each supported person—was issued in cash.
Vouchers were unpopular with many asylum seekers and their representatives and many working in the voluntary sector who give aid to asylum seekers. Concern was expressed that the use of vouchers was socially divisive and demeaning. Asylum seekers complained that the limitations on the number of outlets affiliated to the scheme limited their choice. Asylum seekers could not, for example, purchase food from markets or use low-budget and charity shops to obtain necessary clothing.
The Home Secretary ordered a review of the voucher system and published its findings on 29 October 2001. At the same time, he announced that all asylum seekers would be issued with application registration cards— ARCs, as they have become known to the trade. The voucher scheme was to be superseded once these cards were introduced. The Home Secretary said that,
"by the Autumn of 2002 we will have established a robust but less socially divisive scheme".
Application registration cards were introduced much more quickly. Goods vouchers ceased to be issued in March 2002 and from April 2002 all regular support payments to asylum seekers have been made in cash.
The purpose of paragraph 2 of the Asylum Support (Amendment)(No. 2) Regulations is to remove the now obsolete references to vouchers in the Asylum Support Regulations 2000. That has been broadly welcomed. This amendment is solely aimed at tidying

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up the regulations as vouchers have not been issued for over two years. It is therefore appropriate to remove references in the 2000 regulations to voucher support and to replace them with terms relating to the provision of cash support.
Paragraph 4 of the same regulations revokes Regulation 11 of the Asylum Support Regulations 2000. This provided that asylum seekers and their dependants in receipt of support for a continuous period of six months could apply for a single additional payment of £50. That has caused the noble Lord, Lord Avebury, to table this Motion.
As the noble Lord acknowledged, asylum support is set at 70 per cent of the income support levels for adults and 100 per cent for children. The level of asylum support is intended to reflect the fact that NASS-supported asylum seekers do not have to meet the cost of accommodation, furnishings or utility bills. Single additional payments have previously been payable to asylum seekers after six months if their claim was still outstanding and thereafter at six-monthly periods to asylum seekers whose claims were awaiting a final determination.
On 25 March this year, Beverley Hughes, the then Minister, announced in a Written Statement that single additional payments to asylum seekers and their dependants supported by NASS were to cease. Single additional payments were introduced when support was provided mostly in the form of vouchers exchangeable for goods, with only a small cash element. The six-monthly payments of £50 in cash were intended for the purchase of renewable items such as clothing. Now that support is provided entirely in cash, asylum seekers are no longer limited to where they can shop and can get better value for their money by visiting markets and charity shops. That point was argued in discussions and debates on the need to replace vouchers.
The payment of support in cash gives those who receive asylum support a greater amount of flexibility and choice in how they spend their support and allows them to shop at a wider range of outlets. As a result, they can budget more effectively and shop at the most competitive retailers.
Asylum seekers can still apply for a ?300 maternity payment and since March 2003 additional support for pregnant women and children under three has meant that the level of asylum support has increased overall for these more vulnerable groups.
We intend to phase out these payments over six months following their abolition to ensure that final payment is received by all of those eligible up to the date of abolition. The changed effected by the Asylum Support (Amendment) (No. 2) Regulations 2004 are intended to improve the Government's system of asylum support.
Some concern has been raised about the difference in the way support is paid to asylum seekers as opposed to income support and jobseeker's allowance, which is payable to UK residents. There is no direct
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comparison between asylum support and income support or jobseeker's allowance, which are intended to serve different roles in supporting people.
Asylum support is paid to eligible asylum seekers who would otherwise be destitute and is intended to provide a safety net for those who are in need of help while deterring those who may attempt to abuse our asylum system for the economic benefit it may bring. The level of financial support paid to adults is, as commonly agreed, set at 70 per cent of income support levels. Children receive 100 per cent of the personal allowance paid for children and families in receipt of income support. This level of support is intended to reflect the fact that NASS-supported asylum seekers do not have to meet the cost of accommodation, furnishings or utility bills.
Lord AveburyMy Lords, I wonder whether the noble Lord can help the House. I gave some calculations based on recent statistics published by the Government showing that the value of the accommodation, furnishings and utility bills paid by the state on behalf of the asylum seeker did not come to 30 per cent claimed by the Minister or by the noble Lord, Lord Rooker. They came to 23 per cent and therefore the asylum seeker was out of pocket to the tune of 7 per cent as compared with someone receiving basic income support. Will the noble Lord address that part of my arithmetic?
Lord Bassam of BrightonMy Lords, in his earlier contribution, the noble Lord said that he wanted me to listen carefully to what he had to say and I did. The noble Lord has given us statistics and his own calculations and I should like to have the opportunity to reflect on them. I am more than happy to write to him going over the points he has raised because it may be a more useful and constructive way of dealing with the issue. The noble Lord knows that this has been a rough-and-ready approach, but we have provided improvements. I have previously argued the case from the Dispatch Box—and I am happy to do so again today— that we are providing a safety net for those who are destitute. I believe that the noble Lord understands that.
In developing the asylum system, we are trying to drive up the efficiency and effectiveness of the support system. We now have through NASS 12 established offices in the regions of the UK. Staff already deal with "outreach" work, involving visiting newly arrived asylum seekers to help them access services, housing management and investigations. Regional management teams liaise closely with local authorities and others to ensure an effective system of support. That is particularly helpful in continuing the improvement of community relations and in ensuring that we preserve community cohesion, which is an extremely important part of their work.
It is worth putting on the record that we do not see this as the end of our plans for NASS to have a greater presence in the regions. We are now working on decentralising to the regions some of the NASS casework which is carried out in Croydon. We are approaching that with care and sensitivity because it is important that the processes that are in place enable the work to be done well and effectively.

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NASS is also working on procuring new contracts for accommodation—a matter about which I know the noble Viscount, Lord Bridgeman, is concerned —post 2005 when the current ones expire. Again, NASS is working closely with local authorities on that as it is vital that we take account of local issues in determining where to place asylum seekers.
Budgetary pressure has encouraged NASS to make efforts to reduce its costs, and it is estimated that the abolition of the discretionary single additional payment will save approximately £4 million in the next financial year. The Government are also proposing to abolish back-payments of income support to successful asylum seekers and to replace that with a refugee integration loan, which will be available on application to those who qualify. We want the asylum process to be as efficient, as timely and as effective as possible. Therefore, we believe that it should be forward-looking and that we should look to move away from retrospective payments that, in effect, reward time spent as an asylum seeker.
It is important to remember that no scheme directly equivalent to the single additional payments scheme is available to United Kingdom citizens who receive income support or jobseeker's allowance. Therefore, we intend to proceed with the Asylum Support (Amendment) (No. 2) Regulations as implemented.
There were a few other points which I do not think I covered in my commentary on the Motion of the noble Lord, Lord Avebury. I want to reiterate that I do not believe that I was confused when debating these matters earlier. It is our contention that asylum seekers receive roughly the same amount as those on income support when payments in kind are taken properly into account. I know that the noble Lord disputes those figures. I am not saying that they add up exactly; I am saying that they are broadly the same.
Lord AveburyMy Lords, if we can prove from the statistics, as I think I have done with the figures that I gave, which, after all, are the Government's own figures, that the asylum seeker is worse off to the tune of 7 per cent of the value of income support compared with the native who is on the basic rate of income support, will the noble Lord reconsider what he said? He said that the objective of the Government is to put people on broadly the same footing as those on income support. If it can be proved that they are considerably worse off than someone on income support, will the Government take action to correct that?
Lord Bassam of BrightonMy Lords, that is not the kind of commitment that I intend to give from the Dispatch Box. But, of course, the Government always keep carefully under review the levels of support that are provided through schemes. We can argue the finite detail of these matters, but I believe that we are providing a scheme which is effective, which covers the fundamental needs of asylum seekers and which I think many would say is generous in the way in which it works and in its application.
We have to stick to budgets. NASS now has a budget. I am happy to provide the noble Lord with some more details and I shall be happy to write to him
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on that point. We are working to achieve a better level of prediction in terms of the demand for asylum support in the context of the 2005 accommodation strategy.
I am grateful to the noble Lord for his questions. The noble Viscount, Lord Bridgeman, asked a further question, which I believe concerned the denial of support to late applicants and whether that had been the subject of litigation under human rights law. In our view, Section 55 has played its part in reducing the asylum intake. The Court of Appeal has granted leave to appeal to the House of Lords and the Government are preparing their case further. I hope that that clears up the point raised by the noble Viscount.
I am grateful to the noble Lord, Lord Avebury, for raising this issue and I appreciate the sensitive nature of it, but we in government believe that we have a responsibility to the nation to provide proper systems of support. However, those systems of support must be effective and efficiently organised and must also keep to budget.
Viscount BridgemanMy Lords, before the noble Lord sits down, can he give an assurance—if he is not able to answer it tonight, perhaps we can have something in writing—about the large stock of houses which remains unoccupied at great cost to the taxpayer?
Lord Bassam of BrightonMy Lords, I shall be happy to write to the noble Viscount. I think that his point relates to an article in the Sunday Times. I can furnish him with some additional details and perhaps it would be better if I dealt with that matter in correspondence.
Lord AveburyMy Lords, I am grateful to the Minister for the information that he has given to the House but, as he will realise from my last intervention, the fundamental point I made still remains. I say that it is wrong to withdraw the £50 single additional payment (SAP) because the asylum seeker who has been on NASS support for six months, and who would otherwise have received that payment but for the order now before us, would have been worse off if he was on full NASS support, to the tune of 7 per cent; if he was on subsistence only he would be worse off to the tune of 30 per cent; and if he was one of the Section 55 cases to which the noble Viscount, Lord Bridgeman, referred, he would be worse off to the tune of 100 per cent.
So someone who has been a victim of Section 55 of the 1999 Act who has been living on thin air for six months would then receive this small amount of £50 and the Minister proposes to remove that. He proposes to remove the £50 from people who, by definition, are worse off to the tune of 30 per cent because they were on subsistence only. As the Minister and everyone else has acknowledged, that amounts to 70 per cent of income support. The Minister has not produced any alternative figures to contest my basic calculation that someone on full NASS support, living in NASS provided accommodation and getting his utility bills and household expenses paid for is still

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7 per cent worse off than a native or a person who has indefinite leave to remain and who is receiving normal income support.
The Government say that it is their objective to put the asylum seeker on broadly the same footing as if he was on income support. I have demonstrated from government figures that that is not being achieved. Irrespective of what is decided tonight—clearly, we shall pass the order and the £50 single additional payment will disappear—I beg the Government to look carefully at the figures that I have provided. If they think that there are alternative figures, either from the NASS accounts, which I have not been able to access or from any other source, which will show that the accommodation and the utility payments on behalf of the asylum seekers are worth 30 per cent and not 20 per cent as Mr Jack Straw said originally, then we should get together and discuss this.
There is a dispute between us. We have produced some figures. The Government have not produced their calculation and it is a rather unsatisfactory way to end this debate for me to have shown my arithmetic to the Government and for them not to have satisfied the House with any alternative. In the circumstances, there is no more I can do this evening than to beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
Lord Bassam of BrightonMy Lords, I beg to move that the House do now adjourn until 8.35 p.m.
Moved, accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.9 until 8.35 p.m.]

Traffic Management Bill
Consideration of amendments on Report resumed on Clause 53.
Lord Davies of Oldhammoved Amendment No. 80:
Page 27, line 27, after "of" insert ", or made a notification under paragraph 2(1)(d) of Schedule 3A in respect of,"
The noble said:My Lords, Clause 53 provides powers for a street authority to require an undertaker to resurface a street or part of a street in circumstances that will be prescribed in regulations. Such an undertaker would have to be carrying out works, have carried out works previously or have sent a notice under Sections 54 or 55 of the New Roads and Street Works Act 1991 that it plans to carry out works on the stretch of road in question. This is listed in the Bill in subsection (2) of new Section 73A, inserted by Clause 53.
If an authority has issued a notice under Section 58A of the 1991 Act of its intention to carry out substantial road works, undertakers do not have to send the normal Section 54 and 55 notices. Amendment No. 80 clarifies that undertakers can still
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be subject to the resurfacing requirements, if they propose to carry out works on the road that is subject to the resurfacing notice.
Amendment No. 83 clarifies that an undertaker cannot be required to resurface a particular road, or stretch of road, if the works which he carried out in the road took place before the date on which Clause 53, inserting the new Section 73A, is commenced.
Amendment No. 88 makes similar provision for limiting the liability of other undertakers to contribute to the cost of resurfacing under Clause 55, which inserts new Section 78A. The effect of these amendments is that the liability to resurface or to contribute to the cost of resurfacing will arise only in connection with works undertaken after commencement of the clauses, irrespective of whether regulations have been made under those clauses.
Amendment No. 84 simply makes explicit that it is the road surface, rather than any other works that the undertaker may be carrying out, that will be subject to any performance standards that may be prescribed under this new Section 73A. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 81 and 82 not moved.]
Lord Davies of Oldhammoved Amendments Nos. 83 and 84:
Page 28, line 11, at end insert—
"(8) The reference in subsection (2)(c) to the execution of street works is a reference to the execution of such works after the commencement of this section (whether or not regulations under it have been made)."
Page 28, line 34, leave out "those works conform" and insert "the new surface conforms"
On Question, amendments agreed to.
Clause 54 [Re-surfacing: regulations and guidance]:
Lord Davies of Oldhammoved Amendment No. 85:
Page 29, line 19, leave out "is entitled to pay a sum" and insert "may elect to make a payment"
The noble Lord said:My Lords, Clause 54 provides for regulations in relation to aspects of resurfacing by inserting new Section 73D into the New Roads and Street Works Act 1991. New subsection (2)(d) allows regulations to set out circumstances in which an undertaker who has been asked to carry out resurfacing can choose to ask the highway authority to carry out the work in return for a contribution to the cost of the works. The subsection also allows for the calculation of such a contribution.
Amendments Nos. 85 and 86 tidy up the wording in this subsection. The intention is that whether the undertaker or the authority carry out the works, the basis for apportioning the costs between the parties should be the same.
Undertakers have duties under Section 70 of the 1991 Act to reinstate the road after their works. "Reinstatement" in this context covers both temporary and permanent reinstatement, and the road surface as well as the material beneath.

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Amendment No. 87 provides for regulations to relieve undertakers contributing to the cost of resurfacing works of their duties under Section 70, wholly or partly. It mirrors the provisions in new Section 73A(4) for the undertaker to whom the resurfacing notice has been issued. The amendment will be most relevant where more than one undertaker was working at a similar time. It would be wasteful for one undertaker to be obliged to carry out a full reinstatement of the road surface over his works, if another undertaker or the authority was shortly to carry out resurfacing over a wider area. However, an interim reinstatement might still be needed. Amendment No. 87 will allow appropriate regulations to be developed for practical ways of dealing with this in discussion with utilities and authorities. I beg to move.
Lord RotherwickMy Lords, these amendments aim to clarify that an undertaker asked to resurface a road can choose to ask the highways authority to do the work in exchange for the undertaker contributing towards the cost of the works. They would also allow for regulations to determine how the amount of any such contribution will be calculated and to provide for authorities to send a notice to an undertaker relieving it of its legal duty to reinstate the road after carrying out works.
The utilities industry still fails to see how that clarifies that an undertaker can choose to ask the authority to undertake resurfacing in exchange for a payment. It argues that the wording has been changed but still has the same meaning. It also remains extremely concerned that the regulations do not provide undertakers with a choice but will prescribe circumstances where an undertaker is entitled to pay a sum. Can the Minister outline under what circumstances an undertaker can choose to pay rather than resurface the road itself? Will they have to meet set criteria? Will they have a choice or will it be decided for them? When will they be able to give the industry fuller information on the issue? I look forward to the Minister's response on the matter.
Lord Davies of OldhamMy Lords, I am grateful to the noble Lord. He will recognise that we do not have the draft regulations yet and that we are involved in consultation on these very interesting issues. He has rightly identified some of the most significant and salient points. I thought that I had identified the position in speaking to the amendments in which we had met some of the anxieties represented by undertakers. I take on board the points that he has made and assure him that we intend to clarify these matters. We have gone as far as we can with the amendments at this stage. If the noble Lord is still dissatisfied I am sure that we will return to it at Third Reading. In the mean time, I assure him that the regulations will take account of these points. Of course they are subject to development.
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendments Nos. 86 and 87:
Page 29, leave out line 22 and insert "calculation of the amount of such payments;"
Page 29, line 36, at end insert—
"( )The regulations may provide that where a re-surfacing notice has been served on an undertaker, the street authority may (in such circumstances and to such extent as may be prescribed) by notice relieve any other undertaker within section 73A(2) of his duty under section 70 to reinstate the surface of the street."
On Question, amendments agreed to.
Clause 55 [Contributions to costs of re-surfacing by undertaker]:
Lord Davies of Oldhammoved Amendment No. 88:
Page 30, line 24, after "has," insert "after the commencement of this section (whether or not regulations under it have been made) and"
On Question, amendment agreed to.
Lord Davies of Oldhammoved Amendment No. 89:
Page 30, line 34, after "provision" insert"—
(a) requiring a street authority, within such period of such event as may be prescribed, to give to an undertaker to whom subsection (2) applies a notice containing such information as may be prescribed;
(b) requiring a street authority to pay to an undertaker to whom it has given a re-surfacing notice such sum as he has been unable to recover under subsection (1)(b) on account of the insolvency of an undertaker;
(c)"
The noble Lord said:My Lords, Clause 55 inserts new Section 78A into the New Roads and Street Works Act. It provides that an undertaker who has carried out works in the past in a street that is to be resurfaced can be required to contribute towards the cost of resurfacing. Amendment No. 89 provides that regulations can be made to ensure that relevant undertakers are explicitly informed of their requirement to contribute, by requiring the highway authority to send a notice to them.
The amendment also makes clear that regulations will be able to ensure that where one of the undertakers who has previously carried out work is now insolvent, the highway authority will have to meet any share of the costs that cannot be recovered as a result. It would be unreasonable for those costs to fall on the other undertakers, who are already contributing to the costs of the resurfacing. Amendment No. 91 is consequential, and provides a definition of "insolvency".
I have previously mentioned our intention to provide a consistent approach to these resurfacing provisions, whether an undertaker or the authority carries out the actual resurfacing work. Amendment No. 90 does this by providing that subsections (1) to (5) of the new Section 78A inserted by Clause 55—which allows regulations to set out the arrangements for the making of payments—apply in both cases; that is, not only where the undertaker issued with a resurfacing notice carries out the work, but where it has chosen instead to ask the authority to do the work in exchange for a contribution.
Finally, on resurfacing, new subsection (6B) of Amendment No. 90 enables a link to be made between Section 78 of the 1991 Act and the resurfacing provisions

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in the Bill. Section 78 provides for payments to an authority by an undertaker in respect of the long-term damage to the road structure that their street works caused. This section has never been commenced. If or when it is commenced in the future, this amendment will enable previous payments, or payments due under Section 78, to be taken into account when calculating contributions for resurfacing. Otherwise, undertakers could conceivably be liable to pay twice for the same consequences of their work, and that would be unreasonable. I beg to move.
On Question, amendment agreed to.
8.45 p.m.
Lord Davies of Oldhammoved Amendments Nos. 90 and 91:
Page 30, line 42, at end insert—
"(6A) The Secretary of State may by regulations make provision (corresponding to subsections (1) to (5)) requiring undertakers to make payments to a street authority where—
(a) the authority has given a re-surfacing notice to an undertaker,
(b) that undertaker has exercised a right, conferred by regulations under section 73D, of the sort mentioned in subsection (2)(d) of that section, and
(c) the authority has carried out any of the works specified in the notice.
(6B) Regulations under this section may make different provision for cases where an undertaker mentioned in subsection (1) or (6A) has made, or is liable to make, a payment under section 78."
Page 31, line 2, at end insert—
"(8) In subsection (5)(b) "insolvency"—
(a) in relation to a company, has the meaning given by section 247(1) of the Insolvency Act 1986;
(b) in relation to an individual, includes the approval of a voluntary arrangement under Part 8 of that Act."
On Question, amendments agreed to.
Lord Davies of Oldhammoved Amendment No. 92:
After Clause 55, insert the following new clause—
"INSPECTION FEES
(1) In section 72 of the 1991 Act (powers of street authority in relation to reinstatement) after subsection (2) there is inserted—
"(2A) The Secretary of State may prescribe a fee in respect of a prescribed description of inspection mentioned in subsection (2).
If he does so that subsection has effect, in relation to that description of inspection, as if for "he shall bear the cost of" there were substituted "he shall pay the prescribed fee in respect of".
(2B) The power to make different provision under subsection (2A) for different cases includes power—
(a) to make different provision for different descriptions of street authority or undertakers;
(b) to prescribe different fees by reference to the nature or extent of the inspection, the place where it is carried out and such other factors as appear to the Secretary of State to be relevant."
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(2) For section 75 of that Act (inspection fees) there is substituted—
"75 INSPECTION FEES
(1) The Secretary of State may make provision by regulations requiring an undertaker to pay to the street authority the prescribed fee in respect of—
(a) all inspections carried out by the authority of his street works; or
(b) such inspections of those works as may be prescribed.
(2) The regulations may—
(a) require undertakers to make payments in respect of inspections anticipated to take place within a prescribed period; and
(b) make provision for the striking of an account between an undertaker and a street authority and the making of any necessary payment or repayment.
(3) The power to make different provision under this section for different cases includes power—
(a) to make different provision for different descriptions of street authority or different descriptions of undertakers (including descriptions framed by reference to their previous performance);
(b) to prescribe different fees by reference to the nature or extent of the excavation or other works, the place where they are executed and such other factors as appear to the Secretary of State to be relevant.
(4) The reference in subsection (3)(a) to the previous performance of an undertaker is to the performance of the undertaker, during such period as may be prescribed, as respects such description of his duties under this Part as may be prescribed.
(5) The regulations may require disputes of any prescribed description to be determined by arbitration.
(6) Nothing in this section applies to inspections in respect of which the undertaker is obliged to bear the cost, or pay the prescribed fee, under section 72(2) (inspections consequent on failure to comply with duties as to reinstatement).""
The noble Lord said:My Lords, Section 75 of the New Roads and Street Works Act 1991 provides that statutory undertakers shall pay a fee to the street authority for each inspection of their works that the street authority carries out. These inspections are to make sure that the works are carried out to the required standard. The Secretary of State prescribes the inspection regime in regulations. These currently allow a street authority to inspect up to 30 per cent of each undertaker's works in its area at the undertaker's expense, at a fee of £21 per inspection.
While the existing regime works as a general monitoring tool, it is not effective in improving the quality of work and reducing the amount of remedial work that causes unnecessary disruption. Amendment No. 92 replaces the existing Section 75, widening the remit of the regulations that the Secretary of State can make. In addition to the factors presently covered, the replacement Section 75 would allow the regulations to differentiate between different descriptions of street authority and undertaker. The latter case will include making stricter or less strict provisions depending upon an individual undertaker's performance in the past. This would allow increased inspections for the poorest performers, with the aim of driving up the standard of works. It is not expected that good performers should have more inspections than at present. Regulations can prescribe how and over what period an undertaker's performance would be

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assessed. The amendment also allows for regulations to prescribe how disputes relating to the charging of fees are to be settled by arbitration.
Section 72 of the 1991 Act covers circumstances where a street authority's inspection uncovers a failure to meet the prescribed performance standards. Where this occurs, the undertaker has to meet the cost of three inspections: a joint inspection with the authority, to see what action is needed to remedy the fault; an inspection during the "remedial" works; and another after their completion. Subsection (1) of Amendment No. 92 allows the Secretary of State to prescribe in regulations that the undertaker in question shall pay a fee to the authority for each of the three types of inspections and also what that fee should be. It allows for the fee to vary according to what type of inspection is needed, how extensive it is, where it is carried out, or any other factor that the regulations might provide for. For instance, a badly failed reinstatement might need a more extensive and therefore more costly inspection. In all of this, the intention of the Government is to target poor performance and improve the quality of street works, so that doing reinstatements properly first time becomes the norm. To monitor performance and changes in performance effectively, there would still be a minimum proportion of all utilities' work inspected.
The Government intend to ask a working group of utilities and authorities to consider what changes should be made to the inspection regulations in light of the changes introduced by the Bill. We will consult publicly before new regulations are made.
Amendment No. 93 is a simple drafting change to ensure the consistency of new Section 73F of the 1991 Act, inserted by Clause 56, with the existing provisions in the Act. I beg to move.
Lord RotherwickMy Lords, the utilities industry welcomes the move towards the principle of rewarding good practice. However, it argues that this clause leaves matters too vague. The accompanying explanatory text in the letter the Minister was kind enough to send us before this stage of the Bill makes it clear that the Government are at least contemplating a regime where effort and resource are concentrated on those who have not demonstrated good records in street works. That much is to be welcomed.
The letter also makes it clear that while the Government envisage using a stick to punish those who do not improve, the industry questions why the department is not contemplating a corresponding carrot for those who make improvements, in the sense that those who improve will continue to pay for inspections at the current level. Those who do not will face increases. Can the Minister comment on whether he believes that there ought to be some incentive to make further improvements, such as better performance leading to a reduction in inspections and therefore fees? This would encourage better performance and would free up resources to deal with those who continue to perform below par.
Lord Davies of OldhamMy Lords, I am grateful to the noble Lord for welcoming certain aspects of the
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provisions, and I appreciate the fact that my letter has helped to clarify some of these matters. I am not entirely surprised to learn that he is content with our clear determination to improve performance by applying the stick to undertakers who do not improve their performance.
The noble Lord has asked the additional question of whether we can think of ways of providing a carrot for those who do well. Of course there is one obvious carrot; namely that the number of inspections could be reduced for undertakers with a track record of satisfactory performance. I am sure that the noble Lord will share with me the broad intent behind the provisions, which is to improve the quality of road works so that we do not have the most irritating of all circumstances, those where work has to be attended to time and again, causing the same section of road to be subject to disruption.
I hear what the noble Lord has said. We shall look at his point, but I think he will recognise that there is an incentive for good performance. Undertakers in the category of good performers could find themselves subject to reduced inspections. Surely that ought to provide some incentive.
On Question, amendment agreed to.
Clause 56 [Inspections]:
Lord Davies of Oldhammoved Amendment No. 93:
Page 31, line 12, leave out "(including inspections following their completion)"
On Question, amendment agreed to.
Clause 58 [Orders of the Greater London Authority changing what are strategic roads]:
Viscount Astormoved Amendment No. 94:
Page 32, line 23, leave out paragraph (b).
The noble Viscountsaid: My Lords, I stress at the start that this probing amendment has come about because it has been brought to my attention that, in the working groups set up by the department to consider these issues, considerable differences have been expressed. Moreover, concerns have been raised by several London boroughs on the issue.
As it stands, the Bill will reduce the responsibilities of the boroughs over their own highways network and add central control and what they feel is central bureaucracy to a much-increased strategic road network. I am sure that the Minister is well aware of the Transport for London plan, which is vastly to increase that network of strategic roads.
I have to say straightaway that I am not against the increase in principle, but we must ensure that it is measured. It will give Transport for London a much larger role in co-ordinating traffic management over borough roads.
I would be the first to say that, in some instances, Transport for London has done a very good job, but we have all seen instances where we occasionally have to raise questions. I do not know whether the Minister or any other noble Lord has been to Oxford Street recently. If so, they would have found that the whole street was clogged up by buses. There is no point in getting on a bus because you can walk faster than the

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bus. There are often 30 buses in a line clogging up the street. It is an example of where the interface is not working.
It is important that we give Transport for London some oversight of strategic roads but, at the same time, it has to work with the boroughs as opposed to against them. I am sure the Minister will agree with that. They all have slightly different views and it is important to introduce a system that works, rather than one which increases bureaucracy and brings stagnation.
The amendment seeks to elucidate from the Minister how he thinks the system is working and what he believes both sides of the House can do to improve the working relationship between Transport for London and the boroughs. I am sure the Minister has the same ambition as I have; we want the relationship to work.
I am not sure that the Bill has the balance right at the moment. I am not sure that my amendment is exactly right either because it is rather severe. I am looking to the Minister for an explanation so that we can help move the process forward in a constructive way. I beg to move.
Lord Davies of OldhamMy Lords, I am grateful to the noble Viscount, Lord Astor, for the way in which he has introduced this probing amendment. In my experience, a probing amendment is no less difficult to handle than any other amendment. All it indicates is that it will be withdrawn irrespective of the quality of my reply. Nevertheless, there is a certain amount of pride involved in my reply because I hope to give him good measure for the questions he has asked.
I shall respond to the "probing" as best I can in a moment, but the problem with the amendment is that it would take the referee out of the game. Without mentioning name or nationality, I can think of one recent game where I would have cheered if the referee had been removed. However, as a general rule, when there is a dispute between conflicting elements, someone has to produce a resolution to it. The amendment would take out, if not the referee, the arbiter.
The Mayor of London and the Greater London Authority can direct by order that a road or proposed road should become strategic, but it happens only where the consent of the borough through which the road runs is obtained. What if they disagree? Quite clearly, the solution is that the Secretary of State must act in such circumstances. What the amendment would do—probing or not—is take the Secretary of State out of the picture and leave the parties in a state of stalemate.
I do not think a great deal of the amendment but I recognise the point that the noble Earl is making; that we must be concerned about the process by which we develop the concept of the strategic network. As far as the United Kingdom is concerned, the Secretary of State has the responsibility for the strategic network, but in London the mayor plays a crucial role.
I heard what the noble Lord said about buses. I confess that I have been on a bus in Oxford Street whose performance has been a little less than my
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walking speed, although it was marginally more comfortable. I understand what the noble Lord said, but I would sooner see Oxford Street crowded with buses than bereft of them, which was perhaps the danger in the past when public transport was not identified as the priority that it is now. However, we have always said that the only way in which we can solve the problem of congestion in our major cities, and ab extenso as far as the capital is concerned, is by using public transport more intensively and intelligently. Buses clearly have a role to play in that.
I enjoyed the "probe" of the noble Lord's amendment and his illustration of where we need to tidy things up, but we obviously cannot accept the amendment. Some final authority must rest with the Secretary of State in circumstances where we would need to advance the cause of the strategic network and no-one else but he would be in a position to do so.
9 p.m.
Viscount AstorMy Lords, I am grateful to the Minister for his response. I am particularly grateful for the fact that he has understood the issue and sought to address it. It is really an issue between Transport for London and the boroughs. My plea in moving the amendment was to encourage the Minister's department to be the arbiter and to be helpful in the process, as I am sure that it wants to be. It seemed to be an issue that needed to be raised, so that both sides of the House might express their concerns and a satisfactory conclusion could be reached. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 95 not moved.]
Clause 61 [Fixed penalty offences under the Highways Act 1980]:
Lord Davies of Oldhammoved Amendments Nos. 96 and 97:
Page 34, line 42, leave out "penalty charge".
Page 35, line 2, at end insert—
"( ) In the New Roads and Street Works Act 1991 (c. 22), in section 97 (service of notices etc.) after subsection (2) there is inserted—
"(3) References in this section to notices authorised to be given or served for the purposes of this Part include a reference to notices under Schedule 22B to the Highways Act 1980 (fixed penalties for certain offences under that Act).""
On Question, amendments agreed to.
Clause 63 [Builders' skips: charge for occupation of highway for unreasonable period]:
Lord Davies of Oldhammoved Amendment No. 98:
Page 37, line 43, at end insert—
"(17A) The regulations may make provision about their application to a series of deposits of skips.
(17B) And they may, in particular, provide that a series of deposits of skips is to be treated as a single deposit of a skip—
(a) beginning at the time the first in the series was deposited, and
(b) ending at the time the last in the series was removed."
The noble Lord said:My Lords, in moving the amendment, I shall speak also to Amendments Nos. 99, 100 and 101. Clauses 63 to 67 concern the

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possible establishment of charging schemes to encourage those who place skips, scaffolding and building materials on the highway and carry out temporary excavations to keep to a minimum the period for which they disrupt road users.
The four amendments are intended to deal with a possible ambiguity. The scheme could be frustrated where, for instance, the owner of a skip replaced it continually with further skips as it became full and, each time he replaced the skip, that was treated as if the time he was occupying the road and causing disruption had started all over again. That would provide no incentive for the owner of the skip to limit the disruption that it causes. The same principle applies to scaffolding and other materials which might occupy the highway.
The amendments have the combined effect of providing that regulations can make clear that a series of skips or scaffolding et cetera can be treated as a single one for the purpose of calculating how long they have occupied the highway. I beg to move.
Lord RotherwickMy Lords, we welcome the amendment as a means of cracking down on those who regularly flout their agreed duration period. It is vital, however, that these changes and all others that are made in the Bill are communicated in an easy-to-understand way to all interested parties. Will the Minister explain to the House how his department plans to ensure that everybody knows about the changes?
Lord Davies of OldhamMy Lords, certainly it is not conceivable that penalties could be visited on our fellow citizens without them being aware of the nature of the offence and the difficulty that they might be causing. I find it difficult to think that people who occupy the public road with building materials as wide as a skip or as extensive as scaffolding would not be aware that an authority would take an interest in keeping such a road free from disruption. Consequently, we will not have a great deal of difficulty in publicising the obvious fact that activity of that kind is liable to produce unwelcome attention from the authority and a possible penalty.
On Question, amendment agreed to.
Clause 64 [Builders' skips: charge determined by reference to duration of occupation of highway]:
Lord Davies of Oldhammoved Amendment No. 99:
Page 38, line :20, after first "to" insert "(17) and (17A) to"
On Question, amendment agreed to.
Clause 65 [Scaffolding, building materials and excavations: charge for occupation of highway for unreasonable period]:
Lord Davies of Oldhammoved Amendment No. 100:
Page 40, line 32, at end insert—
"(18A) The regulations may make provision about their application to a series of deposits of things.
(18B) And they may, in particular, provide that a series of deposits of things is to be treated as a single deposit of things—
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(a) beginning at the time the first in the series was deposited, and
(b) ending at the time the last in the series was removed.
(18C) The regulations may make provision corresponding to that mentioned in subsections (18A) and (18B) in relation to the erection of relevant structures and the making of excavations."
On Question, amendment agreed to.
Clause 66 [Scaffolding, building materials and excavations: charge determined by reference to duration of occupation of highway]:
Lord Davies of Oldhammoved Amendment No. 101:
Page 41, line 21, after first "to" insert "(18) and (18A) to"
On Question, amendment agreed to.
Clause 70 [Contraventions subject to civil enforcement]:
Viscount Simonmoved Amendment No. 102:
Page 43, line 7, leave out "that are" and insert "which may be"
The noble Viscount said:My Lords, I shall speak briefly to both the amendments standing in my name. I am concerned that much of the civilian enforcement includes traffic signs that are designed to be used not only to control the movement of traffic but also for road safety. For this reason, and for the purpose of road safety, contravention of the signs must also be subject to criminal prosecution. The assumption that a civil violation of a no-right-turn sign, for example, that results in a collision causing injury will always result in a prosecution for driving without due care is naïve in the extreme and does nothing to enhance the misused provision of Section 3 of the Road Traffic Act.
In order to ensure that enforcement can be carried out at each level, I have tabled these two amendments, which together widen the Bill in such a way that eases the lot of the enforcer. I beg to move.
Viscount AstorMy Lords, the amendments tabled by the noble Viscount, Lord Simon, clarify the boundaries between police and civil enforcement officers, and are rather helpful.
I have one concern about the clause, on which the Minister may be able to help me. The noble Viscount's amendment would offer protection to the motorist, who might otherwise have to pay double for one offence. I hope that the Minister will be able to disabuse me of that view and explain with clarity that I have got it wrong. The noble Viscount raises an important point, and I look forward to the Minister's reply.
Lord Davies of OldhamMy Lords, far be it from me to accuse the noble Viscount, Lord Astor, of having got things wrong. He may have interpreted matters in a different way from the intent and the reality of the Bill, but not got anything wrong. That is also the case with my noble friend Lord Simon, who has helpfully tabled the amendments, giving me the chance to clarify the issues. We do not believe that the two amendments are necessary, but I shall try to establish the case for that—and I am grateful for the opportunity to do so.

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Clause 69 enables the Secretary of State or the National Assembly for Wales to make regulations for the imposition of penalty charges for or in connection with the imposition of penalty charges in respect of road traffic contraventions that are subject to civil enforcement. The contraventions that are subject to civil enforcement are specified in Clause 70 and are set out in detail in Schedule 7. To be subject to civil enforcement, the contraventions must be committed in an area that is a civil enforcement area for those contraventions by virtue of Clause 71 and Schedule 8.
By virtue of subsection (3) of Clause 69, regulations enabling civil enforcement of contraventions by means of penalty charges must include provision either prohibiting criminal proceedings in respect of those contraventions or securing that a penalty charge is not required to be paid, or is refunded where the conduct concerned is the subject of criminal proceedings or a fixed penalty notice issued by the police.
I assure my noble friend Lord Simon and the noble Viscount, Lord Astor, that there is no question of someone incurring both a civil penalty charge and a criminal fine for the same act. On that understanding I hope that my noble friend will be prepared to withdraw his amendments.
Viscount SimonMy Lords, I am grateful to the noble Viscount, Lord Astor, for his contribution. I listened carefully to what my noble friend the Minister said in response to my amendments. I am not sure that I understood fully what he said, so I shall read his remarks carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 103 not moved.]
Viscount Astormoved Amendment No. 104:
Page 43, line 19, at end insert—
"( ) The Secretary of State may not make regulations under this section unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House."
The noble Viscount said:My Lords, we come to what might be called the traffic warden section of the Bill. Your Lordships will realise, having listened to the Committee stage, that this is an area that concerns me. I will accept the criticism that I have a bee in my bonnet but that is because I have been bombarded by many people who have concerns. I am concerned about the powers of civil enforcement officers. In the past, I have been concerned about the way in which they have carried out their work. They seem to have been given incentives that make them behave in a way that is not in the best interests of the service, parking or the local authority. I have been heartened by the area that I know best, which is Westminster, where I live. Westminster Council has taken very much into account the concerns raised over this matter and has announced its intention to alter its guidelines.
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I understand that various pilots on these new powers are going on in London and that regulations to extend them beyond London are not expected for some time. It would be helpful if the Minister could outline exactly which moving traffic contraventions can or cannot be included. I understand that speeding will not be included. I think that I am correct in saying that contraventions of box junctions will be included, but that the Minster considers that these will largely be dealt with by camera evidence.
My amendment makes these regulations affirmative because I think that Parliament should have the ability to discuss any extension. Appeals are an other matter that I shall come on to later. This is an area where there is general public concern and it would be helpful if the Minister could briefly outline how he sees the powers being used and how they might roll out over the country. It would be extremely helpful to those who have concerns. I beg to move.
Lord Davies of OldhamMy Lords, I shall begin with the general question. The regulation-making powers in the Bill have been scrutinised by the Delegated Powers and Regulatory Reform Committee. The committee made a number of recommendations in its report to your Lordships. All the committee's recommendations were accepted by the Government and appropriate amendments were made to the Bill in Grand Committee to give them effect.
The Delegated Powers and Regulatory Reform Committee did not consider it necessary that regulations to be made under Clause 70 should be subject to the affirmative procedure and nor do we. We do not propose to do that. The regulation-making power in Clause 70(4) enables consequential amendments to be made to Schedule 7 if subordinate legislation referred to in it is amended, replaced or revoked. For example, the House will recognise that traffic signs regulations are periodically updated. So, when new regulations are made in the future, a reference to the new regulations will have to be included at paragraph 9(2)(a) which presently refers to the 2002 regulations. We see no need for regulations under Clause 70(4), which will be concerned with technical changes to Schedule 7 consequent upon the passing of other subordinate legislation, to be subject to parliamentary approval. I hope that the noble Viscount will feel able to withdraw his amendment.
I imagine that the noble Viscount, in tabling his amendment, is less concerned about the particular question of parliamentary scrutiny and is more concerned about the extent to which we are able to allay his various anxieties. The noble Viscount was particularly concerned about regulations allowing the imposition of penalty charges for moving traffic contraventions. He will know that London authorities already have those powers by virtue of the London Local Authorities and Transport for London Act 2003. Use of those powers is now being piloted in

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London. I assure the House and the noble Viscount, Lord Astor, that we will have regard to the experience gained in London in framing regulations enabling civil enforcement of moving traffic contraventions by authorities outside London. There will of course be the normal public consultation on such regulations.
We could add to the regulations the moving traffic contraventions specified in paragraph 9 of Schedule 7, but that might not include endorsable offences such as speeding. We are seeking to keep clear of the offences that may lead to endorsement for anyone who has infringed. As the noble Viscount will recognise, and as he indicated in his own contribution, we regard the issue of moving traffic offences as an issue mainly for cameras, not officers, to identify. Given that officers are on foot and the offence is committed by a moving vehicle, it is not possible for them to take immediate action anyway. They may record the offence, but their recording of it is not likely to occur as frequently or readily as that done by cameras judiciously placed at box junctions and other places where such offences occur.
We are piloting the scheme in London and we will learn from that experience as to what can be introduced in regulations for the country as a whole. We bear in mind the noble Viscount's real anxieties, which he has expressed both in Committee and again today. I assure him that we have a ready-made pilot working at present, against the principle that I have adumbrated. On the whole, the issue of moving contraventions is for cameras rather than these officers.
Viscount AstorMy Lords, the Minister's answer was helpful, particularly in outlining that these offences will not be covered by endorsement. We all know that one can quite reasonably enter a box junction when there is a space on the other side, but, half way through, someone nicks that space. That happens. It is unfortunate and irritating because one gets stuck in the middle and it is rather embarrassing. But through no fault of one's own, it occasionally happens.
I am reassured that the Government are piloting the scheme. It is an important issue. With this extension of powers, we go back to saying that we are trying to produce effective traffic management—or "effective traffic movement", as the noble Lord, Lord Peyton, might refer to it. At the same time, however, we have to have rules that are not only fair and respected by the motorist but are seen to be fair; otherwise they are not going to work.
I am grateful for the Minister's answer. He has gone quite a long way in giving me the assurance that I require, but obviously I will have to consider the matter carefully. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
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Schedule 7 [Road traffic contraventions subject to civil enforcement]:
Lord Berkeleymoved Amendment No. 105:
Page 74, line 22, at end insert—

PART 2A

  CYCLE LANE AND CYCLE TRACK CONTRAVENTIONS
  Cycle lane and cycle track contraventions

  A cycle lane contravention is a contravention of any provision of a traffic order relating to the use of an area of carriageway that is or forms part of a cycle lane.

  An area of carriageway is or forms part of a cycle lane if the order provides that it may be used only by pedal cycles.

  There is a cycle track contravention in relation to a vehicle if it is driven in circumstances in which an offence is committed under section 21 of the Road Traffic Act 1988 (c. 52) (offences relating to cycle tracks) of driving a vehicle wholly or partly on a cycle track.

  In this paragraph "traffic order" means an order under section 1, 6, 9 or 14 of the Road Traffic Regulation Act 1984 (c. 27)."

  The noble Lord said:My Lords, in moving Amendment No. 105 I should like to speak also to the other amendments in this group, including those of my noble friend Lord Davies of Oldham. Before I go into detail, however, I should like to thank my noble friend very sincerely for the constructive way in which his officials have been meeting the cycling groups. That has resulted not only in the government amendments in this group but also the amendments in the group starting with Amendment No. 122. Those are very welcome. They do not provide everything that was asked for, but you do not get everything that you want. It is good to see the Government taking such a proactive role in promoting and encouraging cycling and making cyclists feel not only wanted but also safe. I trust that my noble friend will send a copy of today's Hansard to the Royal Parks Agency, but I shall not mention that body again tonight.
  Amendment No. 108 standing in my name contains a mistake for which I apologise. Amendment No. 107 standing in the name of my noble friend Lord Davies of Oldham is the correct version. I shall not move Amendment No. 108. I congratulate my noble friend on the drafting of Amendment No. 107.
  Amendment No. 106 refers to buses and Amendment No. 107 concerns cycling. It seems to me that, having got this lovely list of cycling signs, there needs to be a preamble about cycle lane and cycle track contraventions in Schedule 7 to match the descriptions of parking contraventions (Part 1 of the schedule), bus lane contraventions (Part 2 of the schedule) and lorry ban contraventions (Part 3 of the schedule). As we have five signs with regard to cycling, it would be useful to have a section dealing with what they mean. That is the purpose of Amendment No. 105. If my noble friend accepts the principle of that, I should welcome his producing an appropriate amendment—I am sure that he will draft a better one than I can—at Third Reading. It is clear that, if the relevant amendment is accepted, there would need to be a cross-reference in Clause 70 on page 43 to add another section to Schedule 7. In principle, I am very grateful

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  to my noble friend for all the amendments on cycling. I offer my Amendment No. 105 as a contribution to clarity. I beg to move.
  Lord RotherwickMy Lords, we welcome the fact that the Government listen to the concerns highlighted by the noble Lord, Lord Berkeley. However, at the same time we have concerns regarding this issue that we spoke of in Committee. I may be considered biased when I say that cyclists are very important—the Minister and I are both cyclists—but I can say with authority that considerable good will is shown towards cyclists on the part of other road users. However, I feel the need to raise the flag of caution once again. By accepting these amendments we would set up another barrier between cyclists and car owners, which may not make the latter so amicable on the whole towards cyclists.
  There is also the issue of privilege and responsibility. While these amendments would help to protect the privileges of cyclists on the road, there should also be a balance of responsibility; otherwise, we shall lose the good will of car drivers.
  Cyclists can often be seen jumping red lights and cycling on pavements, although I have to say that I have not seen the latter activity recently. They can also be seen ignoring other road regulations that all other traffic has to comply with. Are these offences also subject to civil enforcement? What steps is the department taking to ensure that offenders are penalised just as those car owners who stray into cycle boxes or lanes will be penalised under these changes? Can the Minister give comfort to cyclists that in awarding privileges he will highlight the responsibilities that go hand-in-hand with them? What is the estimate of the costs of enforcing the amendments of the noble Lord, Lord Berkeley? Who would be responsible for enforcement?
  Viscount SimonMy Lords, the noble Lord, Lord Rotherwick, referred to cyclists going through red lights. If one did a survey of traffic lights, one would find that probably nine out of 10 cyclists go through red lights. I assume that the tenth one is a Member of your Lordships' House. Bearing in mind the fact that—
  Lord RotherwickMy Lords, I hope that the noble Viscount is not referring to the Minister or me.
  Viscount SimonNot at all, my Lords—completely the opposite. If one bears in mind the infringements, is not combining a carriageway for pedestrians and cyclists together a possible recipe for disaster? Is there any intention to separate those routes so that collisions will not occur?
  Lord Davies of OldhamMy Lords, I am grateful to my noble friend Lord Berkeley for the way in which he spoke to Amendment No. 105 and his other amendment, and I appreciate this short debate. I reassure the noble Lord, Lord Rotherwick, that I understood my noble friend Lord Simon to be
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  identifying that there might be nine offending cyclists out of 10, but that the 10th would be a Member of this House—so either the noble Lord, Lord Rotherwick, or myself. I am sure that my noble friend has carried out that statistical survey with great accuracy. The only way in which I succeed in protecting myself against traffic-light infringements is by making sure that I spend most of my time on the towpath, where there are not too many traffic lights. I understand what the noble Lord said, however.
  A side issue—a balancing issue, I suppose—has emerged about what we will do about cyclists who do not behave themselves. Such cyclists are a menace, first, to themselves. It is risky under any circumstances to jump a red light, and it is certainly risky when one has the limited protection of a cycle. They are of course a danger to other people. When they carry out the other offence to which the noble Lord referred—cycling on the pavement—there are people even more vulnerable to injury than the cyclists, and it is right that we pay due regard to making sure that all road users comply with the law. In circumstances in which we are making increasing provision of cycle lanes and proper provision for cyclists, we ought to be intolerant of those who use the pavement.
  Viscount AstorMy Lords, under the Government's proposals, would civil enforcement officers have the power to stop cyclists cycling on the pavement, or is that something with which only the police can deal?
  Lord Davies of OldhamMy Lords, we are extremely wary of the officers being involved in any moving traffic, for obvious reasons. They are merely pedestrians, and although a cyclist is a jolly sight easier to arrest than a car driver I can think of some circumstances where that might not necessarily be so. The issue is certainly not straightforward. I stand by my earlier point—we do not regard the officers as being engaged as police officers in summary charge against people who misbehave. Frankly, such matters are for the police; they are the enforcing agency, as the noble Viscount will acknowledge. It is right that that be so, as everyone recognises the particular and exceptional powers of the police in respect of such offences.
  I shall turn to the main amendment, as I seem to have been sidetracked by the other elements that cropped up in the debate. There is no need to add to Schedule 7 a definition of a contravention of a cycle lane or cycle track, as proposed by my noble friend in Amendment No. 105. That is because government Amendment No. 107 will enable enforcement of driving in a mandatory cycle lane or on a cycle track as moving contraventions under part 4 of Schedule 7. The provisions of part 1 of Schedule 7 already cover civil enforcement of parking in cycle lanes or on cycle tracks. So my noble friend was generous enough to recognise that the Government's Amendment No. 107 covers such issues.
  Amendments Nos. 106 and 107 add six additional signs to the table at paragraph 9 of Schedule 7. This will enable a moving contravention of these signs to be

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  subject to civil enforcement. The addition of the "buses prohibited" sign 952 is being made in response to a request from Westminster City Council. They have a particular problem with enforcing coach bans on residential roads around Victoria Coach Station. The inclusion of this sign will also be helpful for the enforcement of coach bans elsewhere, but that is the problem that Amendment No. 106 addresses.
  The five signs added by Amendment No. 107 will enable the civil enforcement of the prohibition against driving in mandatory cycle lanes or on cycle tracks. We undertook in Committee to consider adding signs to Schedule 7 that would enable civil enforcement of driving in a mandatory cycle lane. Since then we have also had discussions with representatives of the London Cycling Campaign and the National Cycling Strategy Board—my noble friend Lord Berkeley indicated that he was aware of those discussions. This led us to conclude that we should add the five cycling related signs included in Amendment No. 107. We do not need to add to Schedule 7 the sign 960 for a contra-flow bus lane as bus lane contraventions are already covered in part 2 of the schedule.
  I acknowledge the comment made by the noble Lord, Lord Rotherwick, in Committee that he would be worried if car drivers were persecuted in a draconian way that set them against cyclists. He has reflected on that again this evening. We are aware of the fact that a crucial aspect of road safety is mutual respect between different forms of traffic and anything that causes significant irritation and leads to bad relationships between different forms of traffic affect road safety adversely. This is a matter that we can address in guidance, but it is important to ensure that there are appropriate powers to increase the safety of cyclists using dedicated cycle lanes and routes. Regarding driving on cycle tracks the main culprits are, I understand, not motor cars but motor scooters. That is another dimension to the difficulty with the segregation of traffic.
  The noble Lord, Lord Rotherwick, asked me for some estimates of the cost of cycle lane measures and who would be responsible for their enforcement. That would rest with local authorities. In terms of other contraventions in Schedule 7, we have not made any estimates of costs at this stage.
  Noble Lords would recognise that cycling on a footway and cycling through a red light are offences which should be deplored. I know the self-justification that cyclists use from time to time is—I am not referring to any noble Lords first, that the pavement is the only safe place because the roadway is so frighteningly dangerous and, secondly, that jumping the red light gives cyclists a head start on the rest of the traffic which avoids that traffic doing dangerous things, particularly if it is turning left and the cyclist is seeking to go straight ahead. All that I can say is that seeking to re-interpret the law in those terms when everyone else is obeying the law and following the red light practice is extremely dangerous. Cyclists would be putting themselves in jeopardy and would not improve matters.
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  On that basis, I hope that my noble friend will think that the Government have responded, both to today's debate and in Committee, and he will feel able to withdraw his amendment.
  Lord BerkeleyMy Lords, I am grateful to my noble friend, not only for his explanation, but, as I have said before, for the work that he has undertaken with the cycling groups. In Grand Committee I tried to include another sign, the advanced stop line for cyclists, but I received a long and interesting explanation about why that was not possible. I accept that.
  Noble Lords opposite commented on cyclists going through red lights. During the past week, I witnessed two cases—one in Oxford and one in London—of police stopping cyclists doing that. It is to be welcomed, and let us hope that they do more of that. On that basis, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldhammoved Amendments Nos. 106 and 107:
  Page 76, line 8, at end insert—

  Buses prohibited

  952"

  Page 76, line 10, at end insert—

  "Route for use by pedal cycles only

  955

  Route for use by pedal cycles and pedestrians only

  956

  Route comprising two ways, for use by pedal cycles only and by pedestrians only

  957

  With-flow cycle lane

  959.1

  Contra-flow cycle lane

  960/"

  On Question, amendments agreed to.
  [Amendment No. 108 not moved.]
  Schedule 8 [Civil enforcement areas and enforcement authorities]:
  [Amendments Nos. 109 and 110 not moved.]
  Clause 76 [Immobilisation of vehicle where penalty charge payable]:
  [Amendments Nos. 111 to 113 not moved]:
  Viscount Astormoved Amendment No. 114:
  Page 46, line 43, at end insert—
  "(iv) not more than 15 minutes have elapsed since the issue of a parking ticket or notification of a penalty charge; and"
  The noble Viscount said:My Lords, the Minister has caught me by surprise. I assumed that he would move his Amendment No. 111 concerning clamping and the 15-minute interval we discussed in Committee. Indeed, the Minister and I discussed it when he kindly arranged a meeting with his officials. I am not sure why he did not move the amendment, but perhaps I may speak briefly to mine.
  The difference between us is that the Minister is seeking to resolve an anomaly that has been drawn to his attention by the chief parking adjudicator for London. When someone does not display a ticket and is clamped, he is able to write to the adjudicator and

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  say, "Actually, I bought one and here is the evidence. It fell down the dashboard and was not displayed". I understand the logic behind that.
  However, we differ in that increasingly in London the pay-and-display machines do not work. Occasionally they gobble up your money and give you a ticket and occasionally they gobble up your money and do not give you a ticket. You are then forced to walk around and find another one. If this happens to you while you are parked in a London square and are seeking to obey the law and to pay, a parking warden can come along and give you a ticket. You can then write to the local authority and say, "I was attempting to buy a ticket and I want to appeal". In 99 per cent of such cases, it is successful.
  However, under the Bill, after the traffic warden has issued the ticket he can use his radio or mobile phone to inform those in the clamping van, who are driving around the square desperately seeking to earn their money by clamping more and more offenders, "Quick, get over here and clamp this car". In those circumstances, the driver is the innocent party.
  If the driver merely gets a ticket, he can write in and appeal against that and he will not have to pay. However, if he is on the other side of the square trying to find a machine that works, he will return and find that his car is clamped. That is a severe inconvenience—it happens to mothers collecting children from school—and the drivers appear to be guilty until proven innocent. They must first pay and then go through the difficult and somewhat tedious process of trying to get their money back.
  I stress that in tabling the amendment we want to produce a policy that is fair and does not allow people to park illegally. We therefore propose a 15-minute interval. Therefore, a car cannot be clamped for 15 minutes after a traffic warden has issued a ticket. That seems to be reasonable. Wardens and dampers communicate with each other, and a warden can say, "I have just issued a ticket and if the vehicle is still here in 15 minutes you can come and clamp it".
  I admit to your Lordships that this situation is made more difficult because of the appeal system, which does not work. We shall come to that when we reach a later amendment. It is of concern to those who appeal, as it is to the adjudicators. That is the issue. I stress again that I am not seeking to allow those who break the law an excuse to get away with it. I am seeking to protect those who, through no fault of their own, have not been able to buy a ticket and who are then seriously inconvenienced and put in a difficult situation. That is the difference between the Government's proposal and mine.
  We have had some discussions on this matter. I am very grateful to the Minister for listening to the concerns at the meetings that we have had and for listening with an open mind. I am sure that we shall be able to continue debating the issue to see whether we can find a solution.
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  I apologise to your Lordships for going on at length, but it is important to set the amendment in context so that noble Lords understand the process. This may be an opportunity for the Minister to say what considerations he has given to the matter and whether he is able to give me some comfort with regard to how the Government intend to deal with this issue. I beg to move.
  Lord Davies of OldhamMy Lords, I am grateful to the noble Viscount for the way in which he moved his amendment. I am sorry if I wrong-footed him by not moving the government amendments immediately preceding this one. It is my first effort at retaliation: Ministers are frequently put in that position when the Opposition do not move their amendments. Therefore, I sympathise entirely with the noble Viscount in finding that the progress of business has suddenly accelerated.
  However, I must say to him that we have not reached a definitive position on this issue. That is why the government amendments were not moved and why I shall give him both a positive and, as he would expect, a guarded reply—that is, I cannot give very clear undertakings about the eventual position. But, as I am sure he will have recognised, I am certainly seeking to reflect the fact that the discussions that we have had on this issue have caused us to reconsider the position. We are looking at the matter carefully and, I hope, constructively.
  I believe that the noble Viscount and I both recognise that offenders should not get away with offences, and clamping is an effective deterrent. It is an important weapon in the armoury of central London boroughs, in particular, as part of their decriminalised parking enforcement operations.
  Charges and time limits on parking are designed to ensure a turnover of spaces. It is important to ensure that these controls are enforced in order to give drivers a reasonable chance of finding a space. Immobilisation is an additional measure, over and above a penalty charge, to deter overstaying. The question is: after what period of overstaying should immobilisation be permissible? That is the issue that we have been seeking to resolve in our discussions and, as I indicated, we are not entirely definitive about it yet.
  As drafted, Clause 76 enables a penalty charge notice to be issued immediately the period of parking that has been paid for has expired. However, the vehicle may not be immobilised until 15 minutes have elapsed following the period of parking paid for. That means that there is a grace period of 15 minutes, and that reflects the current position in Section 70 of the Road Traffic Act.
  The noble Viscount's amendment proposes that at least 15 minutes should elapse between the issue of the penalty charge and a vehicle being clamped. The effect is variable rather than a fixed 15-minute grace period. If the penalty charge notice is issued exactly at the end of the period of parking paid for, the vehicle could be clamped after 15 minutes of overstay. But if the notice is not issued until two hours after the period of parking

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  paid for has expired, clamping is postponed in that case for two and a quarter hours. In other words, people would be subject to an arbitrary variable possibility.
  9.45 p.m.
  A more serious drawback is that the proposed amendment would apply not just to overstaying in a paying parking bay, which is the area about which we are concerned in order to maximise the use of certain bays; it would prevent immobilisation for 15 minutes following the issue of a charge notice for other parking contraventions such as parking on yellow lines. The Government take the view that people who knowingly park unlawfully in the first place should not be given a period of grace against having their vehicle immobilised, particularly as in some circumstances the vehicle could present a very real danger and prompt action would be necessary. Enforcement against unlawful parking needs to be effective.
  I very much appreciate the discussion that the noble Viscount and I had the other day. I have been able to listen carefully to the concerns he expressed then and on which he has reflected again this evening about the use of clamping. We are, therefore, prepared to consider amending Clause 76 so that a vehicle cannot be immobilised for contravening the conditions of use of a paid for parking bay until a period of 15 minutes has elapsed from the time that a penalty charge notice for the contravention was issued.
  That requirement would replace the existing provision in Clause 76 that prevents the immobilisation of a vehicle until 15 minutes has elapsed since the end of the period of parking paid. While that approach may give rise to variable and longer grace periods for overstaying, that can be counteracted by more frequent patrolling by parking attendants.
  However, I want to make clear that the amendment would relate only to paid for parking bays. It would not cover other parking contraventions such as parking on yellow lines. In those cases it would still be possible to immobilise a vehicle immediately after a penalty charge notice is issued. On that understanding I hope that the noble Lord will recognise that I have gone as far as I can at this stage to meet his reasonable concerns. I hope that he will feel able to withdraw his amendment.
  Viscount AstorMy Lords, I thank the Minister for his response. Indeed, I believe he has gone as far as he can and as far as I would ask him to go in dealing with this issue. I shall study carefully what he said and if I have any questions I hope that he will allow me to discuss them with his department between now and the next stage. I fully accept that as regards his amendment and mine we have a no score draw. My amendment did not entirely do what I wanted it to and I think that by not moving his we achieved the same effect. I hope that we have come to an understanding on what we both agree is a sensible way forward. I am extremely grateful to the Minister and, indeed, his officials, for
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  the helpful and constructive way in which they have dealt with this issue. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 115 and 116 not moved.]
  Clause 77 [Representations and appeals]:
  Viscount Astormoved Amendment No. 117
  Page 47, line 33, at end insert—
  "( ) enabling an adjudicator to make any decision made on, or in the course of an appeal taking into account mitigating circumstances."
  The noble Viscount saidMy Lords, this amendment concerns adjudication. The Minister will recognise that this has been brought to his and my attention not only by those who have had difficulty achieving what they regard as the desired result from the adjudicators but, indeed, by the adjudicators themselves, who have felt restricted by the circumstances in which they find themselves operating and the rules. It is a concern which has been expressed on both sides. For the system to work it must be fair, reasonable and respected by both sides, as we have always tried to emphasise.
  The difficulty is simple to explain. I start with an example that we used in Grand Committee and which took place in the spring of this year. Traffic wardens placed notices on cars that were abandoned because of snow. The police said the road was blocked. The local authority had not cleared the road. The next morning, before people had a chance to move their cars, the traffic wardens ticketed the whole lot. Clearly, that was not terribly fair and no doubt the traffic wardens received a huge bonus from being able to issue so many tickets in such a short period of time. Having done so in extremely cold circumstances, it enabled them to go off for the rest of the day and have a nice cup of coffee, thinking that they had reached their quota.
  One would have thought that those poor unfortunates to whom this happened would be able to appeal to the adjudicator. They did. The adjudicator was extremely sympathetic but he had a problem. Because of technical points he was not able to say that the behaviour was unreasonable as he was not allowed to take into account those circumstances. That is the issue.
  I say to the noble Lord that I am not sure whether my amendment is right. The noble Lord, Lord Borrie, who is nearly in his place, quite rightly gave me a frightful ticking off in Grand Committee for putting the amendment in the wrong place, which I fully accept. I apologise to your Lordships' House for doing so. I hope that I have got it in a slightly better place now. However, I hope that the Minister will take my point and set out the Government's view and how they consider they can deal with the issue. It is an important issue because a system has to work for it to have respect.
  As I said at the beginning, this issue has been drawn to my attention both by those who adjudicate and those who have been adjudicated on. It is not one side against the other; it is both. So it would be extremely

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  helpful—I have to say that the Minister has been enormously constructive throughout the passage of the Bill—to your Lordships' House if he could say what the Government can do to take into account the genuine concerns which have been raised. There are many examples. I just happen to have given one. I beg to move.
  Lord Davies of OldhamMy Lords, I fear that I shall clash with the noble Viscount, Lord Astor, over this issue because I think that there is a significant difference of principle and interpretation between us on this point. Therefore, I shall not be able to move very far down the road in following his argument.
  I hear what the noble Viscount says about mitigating circumstances. We all know that the quality of mercy is not strained and that it helps therefore if people can take into account circumstances affecting offending behaviour. I am afraid that that is for a law court and a judge or a magistrate; it is not for an adjudicator. The adjudicator is not in that position. He is in the position of being a tribunal of fact and law. His or her role in considering an appeal is to determine the facts of the case and to resolve any questions of law should they arise. It is not to make judgment on the nature of the offence and whether there are any mitigating circumstances.
  The noble Viscount has quite rightly identified a hard luck case. I cannot think of a harder luck case than the one he illustrated where one gets blocked on the road and gets ticketed the next day before one can remove one's car. I certainly think a local authority might look somewhat sympathetically on that situation. It is for the local authority to make up its mind whether it prosecutes at that stage; it is not for an adjudicator. To enable adjudicators to take into account mitigating circumstances and to make policy decisions about enforcement would alter the whole nature of the process. They would be asked to make decisions about reasons, motives and circumstances that fall short of a defence as currently understood. Taking into account mitigating circumstances is the role of the local authority undertaking civil enforcement of any traffic contraventions. There is no compulsion on an authority to enforce penalty charges. It has the discretion to cancel a penalty charge if it believes that there were mitigating circumstances.
  The noble Viscount, Lord Astor, cited an occasion where a local authority's sympathetic interpretation of a car-owner's problems might have been entirely appropriate, but I am not in full possession of the facts, as the noble Viscount will appreciate. It is for local authorities to take such a decision. After all, the situation is analogous on a more significant scale to the Crown Prosecution Service's deciding whether it is in the public interest to pursue a prosecution even if an offence was clearly committed. It is for the authority to decide that. The real need is to get enforcing authorities properly to consider mitigating circumstances in the first place. Existing guidance on decriminalised parking
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  enforcement contained in local authority circular 1/95 suggests circumstances in which local authorities may feel it appropriate to cancel penalty charges.
  In publishing guidance under Clause 84, we will certainly look to reinforce the message that authorities should consider mitigating circumstances in dealing with representations from recipients of penalty charge notices. There will be a new statutory duty on authorities to have regard to that guidance, including when they decide whether to pursue penalty charges when mitigating circumstances are put forward.
  As it stands, Clause 77 is a wide-ranging power to make regulations in connection with representations and appeals. I assure the noble Viscount that in drafting those regulations we will consult the chief adjudicators of the National Parking Adjudication Service and the London Parking and Traffic Appeals Service to see how we can address what are perceived to be constraints on their roles in deciding appeals. But regulations made under Clause 77 will in any case be subject to the affirmative procedure as recommended by the Select Committee on Delegated Powers and Regulatory Reform.
  I hope that that fact, coupled with the assurance that I have given on strengthening guidance to the authorities, which take the prime responsibility for prosecution and the enforcement of a parking penalty, will be taken into consideration. It is the authorities that must consider mitigating issues; it is not the responsibility of adjudicators, who have a different role. I hope that, on that basis, the noble Viscount will feel able to withdraw his amendment.
  Viscount AstorMy Lords, I am disappointed by that reply for a number of reasons. First, it is not only respondents who are complaining; adjudicators, including the chief adjudicator, have said that the system is not working satisfactorily. It will become even more important, because under the powers in the Bill we will extend the role of civil enforcement officers. As a result, there will be more situations, they will be more complex and the issues will be more difficult. It will become even more important that adjudicators can look at all the circumstances.
  The Minister rests his case on the argument that it is for local authorities to look at mitigating circumstances and that there will be guidance and perhaps regulations made under the affirmative procedure. I accept that point, but my point is that the Bill should contain a clause that says that the adjudicator may take into account mitigating circumstances. Guidance could then dictate what those circumstances may be, but there must be provision in the Bill.
  I cannot accept the Minister's reply. I think that he is wrong. This is an important issue that will become more difficult and more prevalent. Bigger issues will arise in the future. I am disappointed by the Government. I do not intend to divide the House on this issue this evening; but I will come back to it at the next stage. In the mean time, I hope the Minister will consider the representations that have been made to

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  him on all sides and that we might see whether there is some way forward. If there is not, I assure the Minister that we will take this issue very seriously at Third Reading. It is particularly important because of the extension of powers of civil enforcement officers that are in the rest of the Bill. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  10 p.m.
  Clause 82 [Prohibition of double parking etc.]:
  [Amendment No. 118 not moved.]
  Lord Davies of Oldhammoved Amendment No. 119:
  Page 51, line 7, leave out "road" and insert "carriageway"
  The noble Lord saidMy Lords, Amendment No. 119 is a technical amendment to substitute "carriageway" for "road" in Clause 82(2). The carriageway is that part of a road over which there is a right of way for passage of vehicles. Together the carriageway and the footway form a highway. The amendment ensures consistent terminology as between subsections (1) and (2) of the clause. I beg to move.
  Lord RotherwickMy Lords, will the Minister clarify, for those noble Lords who do not have a copy of the Highways Act 1980 to hand, the definition of "carriageway", and how it differs from the use of "road" for the purpose of these Acts?
  Lord Davies of OldhamMy Lords, as I thought I made clear, the pedestrian part of the footway added to the carriageway make the highway. The carriageway is that part of the road over which there is a right of passage of vehicles. In technical terms, the road is for vehicles—this is a reflection of the vernacular—but we are with precision here identifying the combination of footway and carriageway—the one for pedestrians, the other for vehicles, which together form the highway.
  On Question, amendment agreed to.
  [Amendments Nos. 120 and 121 not moved.]
  Clause 83 [Prohibition of parking at dropped footways]:
  Lord Davies of Oldhammoved Amendment No. 122:
  Page 52, line 2, leave out "in Greater London"
  The noble Lord saidIn moving this amendment, I shall speak also to the other amendments in this group. Clause 83 would re-enact Section 14 of the London Local Authorities and Transport for London Act 2003 prohibiting parking at dropped footways in London. My noble friend Lord Berkeley proposed in Grand Committee that this clause should apply nationwide. He also suggested how it could be improved in other ways. After further consideration of the matter, we have decided that the prohibition in Clause 83 should apply to special enforcement areas outside London. Before we commence the provision of the clause in areas outside London, we would first want to have
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  some experience of the effect in London of the corresponding provision found in the 2003 Act. In particular, we would want to be assured that use of the powers had positive benefits and has proved workable in practice.
  Subject to the proviso about its commencement outside London, the amendment will apply Clause 83 to special enforcement areas in England and Wales generally. Amendments Nos. 128, 132 and 133 are consequential on the application of Clause 83 being extended to England and Wales generally. We have also had discussions with representatives of the London Cycling Campaign, and the National Cycling Strategy Board to try to improve Clause 83. We are persuaded that there is merit in extending Clause 83 to prohibit parking where the kerb has been lowered to assist cyclists using a cycle track to enter or leave the carriageway, or to assist cyclists as well as pedestrians to cross the carriageway. This is the motivation and thinking behind Amendments Nos. 123 and 125.
  We also agree that parking should equally be prohibited at locations where the carriageway has been raised to meet the level of the footway to assist pedestrians and cyclists to cross. This is the purpose of Amendment No. 127.
  Amendment No. 124 is a minor technical amendment substituting "carriageway" for "road" in subsection (1), while Amendment No. 131 serves to define "cycle track".
  With these amendments we are making improvements to Clause 83, as we undertook to do in Grand Committee, as well as extending its application to special enforcement areas outside London. I beg to move.
  On Question, amendment agreed to.
  Lord Davies of Oldhammoved Amendments Nos. 123 to 128:
  Page 52,1ine 3, leave out "part of the footway or verge that" and insert "footway, cycle track or verge where—
  (a) the footway, cycle track or verge"
  Page 52, line 5, leave out "road" and insert "carriageway"
  Page 52, line 5, at end insert—
  "( ) assisting cyclists entering or leaving the carriageway,"
  Page 52, line 6, leave out from "vehicles" to end and insert "entering or leaving the carriageway across the footway, cycle track or verge;"
  Page 52, line 6, at end insert "or
  (b) the carriageway has, for a purpose within paragraph (a)(i) to (iii), been raised to meet the level of the footway, cycle track or verge."
  Page 52, line 8, leave out from "parked" to end of line 14 and insert "wholly within a designated parking place or any other part of the carriageway where parking is specifically authorised. A "designated parking place" means a parking place designated by order under section 6, 9, 32(1)(b) or 45 of the Road Traffic Regulation Act 1984 (c. 27)."
  On Question, amendments agreed to.

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  [Amendments Nos. 129 and 130 not moved.]
  Lord Davies of Oldhammoved Amendments Nos. 131 to 133:
  Page 52, line 43, leave out "has the meaning" and insert ", "cycle track" and "footway" have the meanings"
  Page 53, line 5, after "imposed" insert "—
  (a) in Greater London,"
  Page 53, line 6, at end insert—
  "(b) elsewhere in England and Wales, by an order under section 1 of that Act."
  On Question, amendments agreed to.
  [Amendment No. 134 not moved.]
  Schedule 11 [Repeals]:
  [Amendments Nos. 135 and 136 not moved.]
  Lord Rotherwickmoved Amendment No. 137:
  Before Clause 91, insert the following new clause—
  "MOTORWAYS: MAXIMUM SPEED
  The maximum speed on a motorway shall be 80 mph and in bad weather determined by highway controllers with access to the motorway warning signs system."
  The noble Lord saidMy Lords, the intention is simple. We seek a clear, straightforward and safe system of speed limits that retain the confidence of the motorist. This amendment would introduce the concept of variable speed limits due to weather conditions on motorways. Raising the maximum speed limit to 80 miles per hour would ensure the most expeditious, effective and efficient use of our motorway network.
  We all believe that low speed limits need to be imposed where pedestrians are concentrated, such as around schools, in densely residential areas and near the homes of the elderly. These are important speed limits that should be stringently enforced—and quite right too.
  Speed limits are not enforced on our motorways. It is quite usual to witness drivers overtaking one in the far lane at 85 miles per hour. Drivers do not consider themselves to be criminals for doing so, and the police use their discretion by choosing not to prosecute thousands of motorists. This, as my noble friend Lord Goschen pointed out in Grand Committee, demonstrates a seeming de facto agreement between the police and motorists that in good weather the speed limit is actually around 85 miles per hour.
  This is deeply unsatisfactory. Most motorists and the public at large need to know what the law is, have confidence in it and believe that it will be enforced. Edmund King, the executive director of the RAC Foundation, has argued that there should be a review of speed limits. Driving at 80 miles per hour in a modern car on a good road surface at the correct distance from the car in front is perfectly safe. The safety features, braking, steering and suspension systems in modern cars are radically different from those that prevailed in the days when the 70 miles per hour limit was introduced. At that time, 70 miles per hour represented the peak of a car's performance.
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  Indeed, I believe that it was introduced as a temporary measure due to the oil crisis of the time. This is no longer the case and we need to recognise that.
  It is also the case that in a number of European countries the motorway speed limit is considerably higher. Has the Minister been lucky enough to have driven along a French or even an Italian motorway? He will have noticed that while driving at 112 kilometres per hour, which is 85 miles per hour, cars speed past him quite safely in the outer lane. Surely when the Government are keen to import so much else from Europe, it is odd to refuse to look at established practices in countries that have operated motorway systems effectively for far longer than us.
  As the noble Lord, Lord Davies, pointed out in Grand Committee, the last government review of motorway speed limits concluded that increasing the speed of cars on motorways would lead to higher levels of air pollution. We need to bear in mind that traffic contributes to only one quarter of airborne pollution, the majority of which is produced by the large diesel engines of buses and heavy goods vehicles. We are told that the pollution from buses is 120 to 150 times worse than that from cars.
  Lord BradshawMy Lords, I do not know whether the noble Lord, Lord Rotherwick, will acknowledge that modern buses, with proper injection systems and the addition of urea, contribute very little pollution indeed. In fact, there is no nitrogen oxide pollution at all. Most pollution comes from diesel-powered lorries and it is quite wrong to associate the bus industry with pollution.
  Lord RotherwickMy Lords, I thank the noble Lord for his intervention. I wish it were so but, as a bicyclist, I can tell him absolutely that it is not. Being stuck behind a bus with an exhaust pipe blowing into your face is a most unpleasant state of affairs. Indeed, I wonder why most diesel buses do not have diesel particulate filters fitted. It would be a positive advance if they were to be fitted, but that does not seem to be happening at the moment.
  Cars are at their most polluting when they are jammed bumper-to-bumper in city centres. Getting cars moving expeditiously on the motorways would improve matters. Indeed, the Association of British Drivers has shown that an increase in the motorway speed limit to 80 miles an hour would save approximately 11 million vehicle hours per year for cars and 1.5 million vehicle hours for light goods vehicles.
  There was much debate in Grand Committee over the issue of speed and safety. I am grateful to the Royal Society for the Prevention of Accidents for providing me with some of its briefing material. We need to be wary about any straightforward causal link between speed change and accidents. Indeed, the Government's three-year review, Tomorrow's Roads: Safer for Everyone, found that there was a broad reduction of casualties from the baseline of the 1994–98 averages, while motorways remain some of our safest roads.

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  When presented with studies that seem to claim a direct relationship between an increase in speed and an increase in accidents, one finds that different studies often relate to very different measurements. For example, some refer to fatalities and others to injury numbers. Highly specific studies often contradict the general trend observed by the whole motoring population. Injury accident rates fell by 30 per cent in the UK during the 1980s while road speeds increased.
  Average speeds are unhelpful when measuring accident rates; injury accidents happen only once for every 1.8 million kilometres driven in the UK. An accident arises usually from an exceptional combination of circumstances. Certain demographic groups, locations and conditions dramatically affect accident rates.
  As noble Lords are well aware, a vast number of motorway users already travel above 70 miles per hour in good weather. We heard a variety of testimonials to that effect in Grand Committee, most notably from the noble Lord, Lord Faulkner, who observed that he himself travelled at a fairly sedate 71 or 72 miles an hour on the M40 and was still passed by vehicles.
  Under these circumstances, why should we expect an increase in accidents after we sanction responsible motorists for already travelling safely at this speed? As my noble friend Lord Goschen pointed out in Grand Committee, effectively enforcing a higher speed limit is preferable to the authorities "looking the other way" when thousands of motorists daily break the law because they have no confidence in it, do not believe that it will make them safer and know that it will not be enforced.
  The question must be one of achieving balance. The law must be enforceable and it must enjoy public support. The amendment will allow us to stop criminalising drivers who travel on our motorways at safe speeds. I beg to move.
  10.15 p.m.
  Baroness Scott of Needham MarketMy Lords, if the noble Lord, Lord Rotherwick, is expecting a debate on speed management this evening, I suspect that he will be disappointed, although I imagine that other Members of your Lordships' House will be rather pleased. That is partly because of the lateness of the hour, but also because I do not believe that this Bill is the right place for it. However, I have a lot of sympathy with the noble Lord's motives in bringing the amendment forward, because we clearly need a systematic review of speed limit policy in this country. That can partly be seen in the kind of headlines that we see in the tabloid newspapers, but the issue goes back much further than that. Certainly, when I arrived in your Lordships' House in 2000, I successfully moved an amendment to the Transport Act which called for a review of speeds on rural roads. All this time later, we are still waiting for the review to take place. Therefore, I hope that Minister will at least go away and consider how the Government might bring forward a more
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  coherent debate and possible legislation on the wider question of speed limits, rather than addressing the issue of motorway speed limits in isolation.
  Lord Davies of OldhamMy Lords, I am grateful to both noble Lords who have contributed to the debate, but I took solace from the fact that the noble Baroness, Lady Scott, indicated that she does not think that this is the appropriate Bill to which an amendment should be tabled in these terms. I largely agree with that and I hope that the noble Lord, Lord Rotherwick, having given the issue an airing even at this late hour, will be content with having done so and will not press his amendment.
  As the noble Lord will have surmised, the Government are not persuaded of the need for such a change to maximum speeds. I acknowledge what the noble Lord said about the safety of cars travelling at 80 mph and the behaviour of road traffic at present. He should ask himself if the limit were raised to 80 mph, would not people expect a level of tolerance beyond that? Would they not be absolutely astounded if they were pulled in for doing 81 or 82 mph and would it not be just a matter of months before we saw a regular pattern of speeds that were 10 mph in excess of that limit, on the grounds that the technological development of cars is such that all that is safe?
  We also know that speed has a dramatic effect on fatalities. Recent evidence from the United States has shown an increase of up to 38 per cent in the fatal accident rate following an increase in speed limits on its motorways, so we should approach the issue with some care.
  The Government believe that raising speed limits could jeopardise a good record in this country and could cost lives. In 2002, there were 224 fatalities on our motorways, which represented 6.5 per cent of the total number of deaths on our roads. We would of course prefer no deaths, but that figure is low in comparison with roads in built-up areas and rural roads. That is why the Government are committed in their road safety strategy to improving rural road safety through better speed management and driver information on rural roads, where by far the worst accident rate occurs. We have also provided guidance to local highway authorities on introducing vehicle-activated warning signs and 30 mph speed limits in villages.
  The motorway speed limit has been the subject of frequent reviews, most recently in 2001. That review concluded that to raise the motorway speed limit would run too great a risk of increasing accidents and casualties. In addition —it is not a negligible factor—a higher speed limit would also result in higher emissions of carbon dioxide and oxides of nitrogen. It would also lead to more noise pollution.
  The Secretary of State already has a power to bring regulations before Parliament to change the speed limits on our roads. This power is contained in Section 86 of the Road Traffic Regulation Act 1984. Should any future review recommend that the speed limit were raised, primary legislation would not be necessary.

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  However, I agree with the noble Baroness, Lady Scott, that it would not be in the framework of the Bill to make such changes.
  Sections 17 and 84 of that Act also provide for orders to be made so that speed limit changes can be made and indicated in circumstances detailed in such orders. To date, the power to introduce variable speed limits has been used on only one road—the M25—although we intend to use the power in connection with a new active traffic management scheme on the M42.
  The issue was raised of a reduction in speed limit during bad weather. That has some attractions. However, there are a number of issues that would need to be resolved before serious consideration could be given to taking that forward. Defining bad weather and determining the appropriate speed limit needs more serious consideration, and there may not be a simple solution. For example, what lower limit would be appropriate for which conditions?
  The noble Lord probably thought that I would not be enormously sympathetic to his amendment at this late stage in the proceedings. However, I reassure him that we are keeping the matter under review. As I said, the last review was in 2001, and it expressed negative approaches to the issue. However, we do not consider the amendment appropriate at this time. Having given this significant debate a further airing, I hope that he feels free to withdraw the amendment.
  Lord RotherwickMy Lords, will the Minister confirm that, as the noble Baroness, Lady Scott, suggested, there will be a review of speed limits in the future? That will save me dividing the House.
  Lord Davies of OldhamCertainly, my Lords. As I said, we have provision for regular reviews. The last one was only in 2001. We are aware of the fact, as the noble Lord is, that traffic moves at a speed in excess of the speed limit quite frequently on our major motorways. It does not do so, in my experience, on the M25 during about eight living hours of the day, because it cannot. But I am aware of the noble Lord's point about the motorway when it is relatively free of heavy traffic.
  The issue is not settled for all time. Far from it—we are mindful of the fact that we need to consider the situation from time to time. I give him that assurance.
  Lord RotherwickMy Lords, I am grateful to the Minister for clarifying the issue a little further. I shall think of his words as I drive back to Oxfordshire tonight—naturally, keeping to 70 miles per hour on the motorway, like all noble Lords who have long distances to travel tonight. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
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  Clause 92 [Application of surplus income from parking places]:
  [Amendment No. 138 not moved.]
  Viscount Astormoved Amendment No. 139:
  After Clause 92, insert the following new clause—
  "PUBLIC CONSULTATION ON THE LONDON CONGESTION CHARGE
  (1) The Greater London Authority Act 1999 (c. 29) shall be amended as follows.
  (2) After section 295(1) there is inserted—

  (1A) After the coming into force of section (Public consultation on the London Congestion Charge) of the Traffic Management Act 2004, the Mayor of London and Transport for London may not establish, extend or operate a scheme under subsection (1) above unless the scheme has been approved by a majority of the residents of any London borough proposed to be included, wholly or in part, in the charging area.

  (1B) The approval of a scheme mentioned in subsection (1A) shall be determined by—

  (a) a local referendum conducted by the borough concerned under section 116 of the Local Government Act 2003 (c. 26) (local polls); and

  (b) where at least 50 per cent of the residents of the borough concerned have voted in that referendum.

  (1C) Subsection (1A) shall not apply in the case of a scheme already in operation, but Transport for London shall take into account the result of any referendum that may be conducted by a borough in which such a scheme is in operation in determining—

  (a) whether it is reasonable to continue to operate an existing scheme concerned; or

  (b) whether the existing scheme shall be modified.

  (3) In Schedule 23 to that Act (road user charging) after paragraph 3 insert—

  3A A charging scheme may only be made by the Mayor if it is also approved by the council of the borough or boroughs, included wholly or partly within the boundaries of the scheme, following a referendum conducted by the borough or boroughs concerned under Section 116 of the Local Government Act 2003 (c. 26).

  The noble Viscount saidMy Lords, this is a simple little amendment on which I hope that the Government will look favourably. As we know, the Government believe in local accountability, referendums, local people being consulted, regional assemblies and all such things. The amendment refers to the congestion charge which, as the Minister will know, has been the subject of some controversy in London and during the mayoral election.
  Whatever one feels about the current congestion charge, the issue is—now that Ken Livingstone has returned to the fold or the bosom of the Labour Party—whether the congestion charge zone should be extended. I have no particular view on that, as I believe that it should be a subject for those who will suffer the consequences if it is extended. My modest amendment would allow those who might find themselves in a new extended zone a right to say in a democratic way whether they approve of the extension. I should have thought that the Government would think that that is a very commendable way for any government to behave and, indeed, for the Mayor to behave.
  It seems to me that, before this controversial proposal goes ahead, the very least that the Mayor could do is to ensure that those who are affected have

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  some say about whether they want to be in the congestion charge zone. This is a matter of allowing local people to have a local say. It is a London issue but if the amendment is accepted by your Lordships' House, it is something that could be used for other towns and cities that may have plans to introduce congestion charges of their own. We believe in giving people the right to chose whether they want it. I hope that the Minister will look favourably on my modest amendment because I am sure that he believes in local accountability. I beg to move.
  Lord Davies of OldhamMy Lords, if the Opposition had any courage at all they would be proposing a referendum on the abolition of the congestion charge. But they would be up against the small matter that the election was won by the present Mayor with that issue very much up-front. It was not only up-front but was also canvassed very strongly by the candidate who represented the noble Viscount's party, who was intent on its abolition. We all know the result of that election.
  Of course, the noble Viscount is right. We are in favour of consultation. The Greater London Authority Act makes absolutely clear how that consultation should be carried out and who is responsible for ensuring that it is carried out; namely, the Mayor of London. It is quite clear that we have in place under that Act the checks and powers that are necessary to govern the way in which he arrives at such a decision. He is charged with taking account of the impact of the congestion charge on residents,
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  businesses, visitors and tourists and he is uniquely placed to do so. As everyone will recognise, he has a duty to provide and implement a transport strategy for London. The congestion charge is a part of that.
  I also note that the noble Viscount introduced into his amendment a uniquely high hurdle that would have to be leapt in order for any extension to be considered. I recognise the fact that it is a misfortune for the Opposition that this part of the Bill was not before the House immediately prior to the recent election so that they could have articulated their arguments with the force and charm of the noble Viscount this evening. But I predict that the result would have been exactly the same.
  Viscount AstorMy Lords, the Minister seems to have put the case that Ken Livingstone won the election for Mayor of London solely on the basis of the congestion charge. Looking at some of his other policies on the Tube and similar matters, that may be the case. Bearing in mind the lateness of the hour and that some of us will have to walk home, some will bicycle and some will be able to get into the ministerial limo—I am not mentioning names, of course—I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Schedule 12 [Repeals]:
  [Amendment No. 140 not moved.]
  House adjourned at half past ten o'clock.