Traffic Management Bill

HL Deb 29 June 2004 vol 663 cc139-209

3.29 p.m.

Report received.

Clause 1 [Traffic officers: introduction]:

Lord Peyton of Yeovil

moved 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 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 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 Guiting

moved 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 Yeovil

moved 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. 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 Guiting

moved Amendment No. 5: Page 3, line 11, leave out "regulations" and insert "orders

On Question, amendment agreed to.

Viscount Simon

moved 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. 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 Astor

moved Amendment No. 7: After Clause 8, insert the following new clause— GUIDANCE AS TO EXERCISE OF TRAFFIC OFFICERS' POWERS

1. The appropriate national authority may—
1. publish guidance as to the exercise of any powers conferred on traffic officers by or under this Part, or
2. approve for the purposes of this Part any such guidance published by another person.
2. A traffic officer shall have regard to any such guidance in exercising any such powers to which the guidance is relevant.
3. Before publishing or approving any guidance under this section, the appropriate national authority shall consult and have regard to any representations made by—
1. such bodies representing the police,
2. such persons who exercise functions as undertakers in relation to street works or apparatus in streets, and
3. such other persons,
4. as the authority considers appropriate.
5. 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 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. 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 Astor

moved 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. 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 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 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 Oldham

moved 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 Astor

moved 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—

1. 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;
2. 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
3. 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 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 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 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 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 Astor

moved 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 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. 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 Borrie

moved 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. 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 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 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 Astor

moved 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—

1. street works within the meaning of the New Roads and Street Works Act 1991 (c. 22); and
2. 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.
3. ( ) 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, 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 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 Bradshaw

moved 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 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. 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 Rotherwick

moved 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 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 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 Astor

moved 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. 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 Astor

moved Amendment No. 21: Leave out Clause 20. 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. 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 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 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 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. 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.

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.

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.

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.

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 Astor

moved Amendment No. 22: Leave out Clause 21.

On Question, amendment agreed to.

Clause 22 [Appointment of traffic director: supplementary]:

Viscount Astor

moved Amendment No. 23: Leave out Clause 22.

On Question, amendment agreed to.

Clause 23 [Monitoring and reporting]:

Viscount Astor

moved Amendment No. 24: Leave out Clause 23.

On Question, amendment agreed to.

Clause 24 [Intervention in activities of local traffic authority]:

Viscount Astor

moved Amendment No. 25: Leave out Clause 24.

On Question, amendment agreed to. Clause 25 [Exercise of local traffic authority functions]:

Viscount Astor

moved 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 Astor

moved Amendment No. 27: Leave out Clause 26.

On Question, amendment agreed to.

Clause 27 [Criteria for making intervention orders]:

Viscount Astor

moved Amendment No. 28: Leave out Clause 27.

On Question, amendment agreed to.

Clause 28 [Guidance to traffic directors]:

Viscount Astor

moved Amendment No. 29: Leave out Clause 28.

On Question, amendment agreed to.

Clause 29 [Traffic directors in London]:

Viscount Astor

moved Amendment No. 30: Leave out Clause 29.

On Question, amendment agreed to.

Clause 30 [Recovery of costs from local traffic authorities]:

Viscount Astor

moved Amendment No. 31: Leave out Clause 30.

On Question, amendment agreed to.

Clause 32 [Meaning of "permit scheme"]:

Lord Rotherwick

moved 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 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 Guiting

moved 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. 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. On Question, amendment agreed to.

[Amendment No. 34 not moved.]

The Earl of Northesk

moved 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 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 Borrie

moved 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—

1. for public safety, or
2. 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 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 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 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.] Clause 33 [Preparation of permit schemes]:

Lord Evans of Temple Guiting

moved 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 Oldham

moved 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 Oldham

moved 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 Oldham

moved 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 Oldham

moved Amendment No. 44: After Clause 35, insert the following new clause— VARIATION AND REVOCATION OF PERMIT SCHEMES

1. The appropriate national authority may by order vary or revoke any permit scheme which for the time being has effect.
2. An order under this section—
1. may relate to one or more permit schemes,
2. may vary or revoke any order under section 34 or 35, or any order previously made under this section,
3. 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. Clause 36 [Permit regulations]:

[Amendment No. 45 not moved.]

The Earl of Erroll

moved 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 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: (Lord Brougham and Vaux)

My Lords, if Amendment No. 47 is agreed to, I cannot call Amendment No. 48.

Lord Davies of Oldham

moved 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 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 Oldham

moved 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 Guiting

moved 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 Oldham

moved 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—

1. an application for a permit,
2. the issue of a permit,
3. an application for the variation of a permit or the conditions attached to a permit,
4. 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 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 Oldham

moved 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 Erroll

moved 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 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 Rotherwick

My 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 Oldham

My 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 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 Erroll

My 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 Oldham

moved 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. On Question, amendment agreed to.

[Amendments Nos. 55 and 56 not moved.]

Lord Borrie

moved Amendment No. 57: After Clause 36, insert the following new clause WORKS CARRIED OUT BY LOCAL AUTHORITIES

1. 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.
2. 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.
3. 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 Berkeley

My 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. 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 Astor

My 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 Erroll

My 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 Bradshaw

My 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 Guiting

My 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 Astor

My Lords, before the noble Lord sits down, he said that it is a question of "how" and not "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 Guiting

Yes, 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 Borrie

My 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 Berkeley

moved 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". 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 Oldham

My 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 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 Berkeley

My 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 Oldham

moved 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 Guiting

moved 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 Rotherwick

My 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 Guiting

My 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 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 Oldham

moved 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 Rotherwick

My 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 that, should they have to pay a fine? How do they intend to notify people of their intention to cancel works?

Lord Davies of Oldham

My 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 Berkeley

moved 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 Rotherwick

My 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 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 Oldham

My 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 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 Berkeley

My 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 Guiting

moved 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 Oldham

moved Amendment No. 66: Page 19, line 29, leave out subsection (2).

On Question, amendment agreed to. Schedule 2 [Schedule 4A to the New Roads and Street Works Act 1991]:

Lord Davies of Oldham

moved 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 Berkeley

moved 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—

1. it was unreasonable to give the notice to him; or
2. 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—

1. for the appointment of such adjudicators;
2. for requiring the street authority whose officer gave the notice to reconsider, before an appeal is determined, whether the notice should be withdrawn; and
3. 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 Astor

My 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 Oldham

My Lords, the Government do not welcome the process for the reasons that I 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 Berkeley

My 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 Lucas

moved 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 Guiting

My 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 Lucas

My 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 Astor

moved Amendment No. 70: Page 23, line 17, leave out "and keeps

The noble Viscount said

My 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 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 Oldham

My 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 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 Astor

My 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)—

1. 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";
2. 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 Guiting

moved Amendment No. 75: Page 26, line 11, at end insert— ( ) In section 57 of that Act (notice of emergency works)— (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 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 Oldham

moved 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 Lucas

moved 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 Lord

said: 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 Oldham

My 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 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 Lucas

My 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 Lucas

moved 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 Astor

My 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 Oldham

My 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 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 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 Lucas

My 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 Guiting

My 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.