§ Consideration of amendments on Report resumed on Clause 53.
§ Lord Davies of Oldhammoved Amendment No. 80:
Page 27, line 27, after "of" insert ", or made a notification under paragraph 2(1)(d) of Schedule 3A in respect of,
The noble said:My Lords, Clause 53 provides powers for a street authority to require an undertaker to resurface a street or part of a street in circumstances that will be prescribed in regulations. Such an undertaker would have to be carrying out works, have carried out works previously or have sent a notice under Sections 54 or 55 of the New Roads and Street Works Act 1991 that it plans to carry out works on the stretch of road in question. This is listed in the Bill in subsection (2) of new Section 73A, inserted by Clause 53.
If an authority has issued a notice under Section 58A of the 1991 Act of its intention to carry out substantial road works, undertakers do not have to send the normal Section 54 and 55 notices. Amendment No. 80 clarifies that undertakers can still 220 be subject to the resurfacing requirements, if they propose to carry out works on the road that is subject to the resurfacing notice.
Amendment No. 83 clarifies that an undertaker cannot be required to resurface a particular road, or stretch of road, if the works which he carried out in the road took place before the date on which Clause 53, inserting the new Section 73A, is commenced.
Amendment No. 88 makes similar provision for limiting the liability of other undertakers to contribute to the cost of resurfacing under Clause 55, which inserts new Section 78A. The effect of these amendments is that the liability to resurface or to contribute to the cost of resurfacing will arise only in connection with works undertaken after commencement of the clauses, irrespective of whether regulations have been made under those clauses.
Amendment No. 84 simply makes explicit that it is the road surface, rather than any other works that the undertaker may be carrying out, that will be subject to any performance standards that may be prescribed under this new Section 73A. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 81 and 82 not moved.]
§ Lord Davies of Oldhammoved Amendments Nos. 83 and 84:
Page 28, line 11, at end insert—(8) The reference in subsection (2)(c) to the execution of street works is a reference to the execution of such works after the commencement of this section (whether or not regulations under it have been made).Page 28, line 34, leave out "those works conform" and insert "the new surface conformsOn Question, amendments agreed to.
Clause 54 [Re-surfacing: regulations and guidance]:
§ Lord Davies of Oldhammoved Amendment No. 85:
Page 29, line 19, leave out "is entitled to pay a sum" and insert "may elect to make a payment
The noble Lord said:My Lords, Clause 54 provides for regulations in relation to aspects of resurfacing by inserting new Section 73D into the New Roads and Street Works Act 1991. New subsection (2)(d) allows regulations to set out circumstances in which an undertaker who has been asked to carry out resurfacing can choose to ask the highway authority to carry out the work in return for a contribution to the cost of the works. The subsection also allows for the calculation of such a contribution.
Amendments Nos. 85 and 86 tidy up the wording in this subsection. The intention is that whether the undertaker or the authority carry out the works, the basis for apportioning the costs between the parties should be the same.
Undertakers have duties under Section 70 of the 1991 Act to reinstate the road after their works. "Reinstatement" in this context covers both temporary and permanent reinstatement, and the road surface as well as the material beneath. 221 Amendment No. 87 provides for regulations to relieve undertakers contributing to the cost of resurfacing works of their duties under Section 70, wholly or partly. It mirrors the provisions in new Section 73A(4) for the undertaker to whom the resurfacing notice has been issued. The amendment will be most relevant where more than one undertaker was working at a similar time. It would be wasteful for one undertaker to be obliged to carry out a full reinstatement of the road surface over his works, if another undertaker or the authority was shortly to carry out resurfacing over a wider area. However, an interim reinstatement might still be needed. Amendment No. 87 will allow appropriate regulations to be developed for practical ways of dealing with this in discussion with utilities and authorities. I beg to move.
§ Lord RotherwickMy Lords, these amendments aim to clarify that an undertaker asked to resurface a road can choose to ask the highways authority to do the work in exchange for the undertaker contributing towards the cost of the works. They would also allow for regulations to determine how the amount of any such contribution will be calculated and to provide for authorities to send a notice to an undertaker relieving it of its legal duty to reinstate the road after carrying out works.
The utilities industry still fails to see how that clarifies that an undertaker can choose to ask the authority to undertake resurfacing in exchange for a payment. It argues that the wording has been changed but still has the same meaning. It also remains extremely concerned that the regulations do not provide undertakers with a choice but will prescribe circumstances where an undertaker is entitled to pay a sum. Can the Minister outline under what circumstances an undertaker can choose to pay rather than resurface the road itself? Will they have to meet set criteria? Will they have a choice or will it be decided for them? When will they be able to give the industry fuller information on the issue? I look forward to the Minister's response on the matter.
§ Lord Davies of OldhamMy Lords, I am grateful to the noble Lord. He will recognise that we do not have the draft regulations yet and that we are involved in consultation on these very interesting issues. He has rightly identified some of the most significant and salient points. I thought that I had identified the position in speaking to the amendments in which we had met some of the anxieties represented by undertakers. I take on board the points that he has made and assure him that we intend to clarify these matters. We have gone as far as we can with the amendments at this stage. If the noble Lord is still dissatisfied I am sure that we will return to it at Third Reading. In the mean time, I assure him that the regulations will take account of these points. Of course they are subject to development.
On Question, amendment agreed to.
§ Lord Davies of Oldhammoved Amendments Nos. 86 and 87:
Page 29, leave out line 22 and insert "calculation of the amount of such payments;Page 29, line 36, at end insert—( )The regulations may provide that where a re-surfacing notice has been served on an undertaker, the street authority may (in such circumstances and to such extent as may be prescribed) by notice relieve any other undertaker within section 73A(2) of his duty under section 70 to reinstate the surface of the street.On Question, amendments agreed to.
Clause 55 [Contributions to costs of re-surfacing by undertaker]:
§ Lord Davies of Oldhammoved Amendment No. 88:
Page 30, line 24, after "has," insert "after the commencement of this section (whether or not regulations under it have been made) andOn Question, amendment agreed to.
§ Lord Davies of Oldhammoved Amendment No. 89:
Page 30, line 34, after "provision" insert"—(a) requiring a street authority, within such period of such event as may be prescribed, to give to an undertaker to whom subsection (2) applies a notice containing such information as may be prescribed;(b) requiring a street authority to pay to an undertaker to whom it has given a re-surfacing notice such sum as he has been unable to recover under subsection (1)(b) on account of the insolvency of an undertaker;(c)
The noble Lord said:My Lords, Clause 55 inserts new Section 78A into the New Roads and Street Works Act. It provides that an undertaker who has carried out works in the past in a street that is to be resurfaced can be required to contribute towards the cost of resurfacing. Amendment No. 89 provides that regulations can be made to ensure that relevant undertakers are explicitly informed of their requirement to contribute, by requiring the highway authority to send a notice to them.
The amendment also makes clear that regulations will be able to ensure that where one of the undertakers who has previously carried out work is now insolvent, the highway authority will have to meet any share of the costs that cannot be recovered as a result. It would be unreasonable for those costs to fall on the other undertakers, who are already contributing to the costs of the resurfacing. Amendment No. 91 is consequential, and provides a definition of "insolvency".
I have previously mentioned our intention to provide a consistent approach to these resurfacing provisions, whether an undertaker or the authority carries out the actual resurfacing work. Amendment No. 90 does this by providing that subsections (1) to (5) of the new Section 78A inserted by Clause 55—which allows regulations to set out the arrangements for the making of payments—apply in both cases; that is, not only where the undertaker issued with a resurfacing notice carries out the work, but where it has chosen instead to ask the authority to do the work in exchange for a contribution.
Finally, on resurfacing, new subsection (6B) of Amendment No. 90 enables a link to be made between Section 78 of the 1991 Act and the resurfacing provisions 223 in the Bill. Section 78 provides for payments to an authority by an undertaker in respect of the long-term damage to the road structure that their street works caused. This section has never been commenced. If or when it is commenced in the future, this amendment will enable previous payments, or payments due under Section 78, to be taken into account when calculating contributions for resurfacing. Otherwise, undertakers could conceivably be liable to pay twice for the same consequences of their work, and that would be unreasonable. I beg to move.
On Question, amendment agreed to.
§ 8.45 p.m.
§ Lord Davies of Oldhammoved Amendments Nos. 90 and 91:
Page 30, line 42, at end insert—(6A) The Secretary of State may by regulations make provision (corresponding to subsections (1) to (5)) requiring undertakers to make payments to a street authority where—(a) the authority has given a re-surfacing notice to an undertaker,(b) that undertaker has exercised a right, conferred by regulations under section 73D, of the sort mentioned in subsection (2)(d) of that section, and(c) the authority has carried out any of the works specified in the notice.(6B) Regulations under this section may make different provision for cases where an undertaker mentioned in subsection (1) or (6A) has made, or is liable to make, a payment under section 78.Page 31, line 2, at end insert—(8) In subsection (5)(b) "insolvency"—(a) in relation to a company, has the meaning given by section 247(1) of the Insolvency Act 1986;(b) in relation to an individual, includes the approval of a voluntary arrangement under Part 8 of that Act.On Question, amendments agreed to.
§ Lord Davies of Oldhammoved Amendment No. 92:
After Clause 55, insert the following new clause—"INSPECTION FEES(1) In section 72 of the 1991 Act (powers of street authority in relation to reinstatement) after subsection (2) there is inserted—(2A) The Secretary of State may prescribe a fee in respect of a prescribed description of inspection mentioned in subsection (2).If he does so that subsection has effect, in relation to that description of inspection, as if for "he shall bear the cost of" there were substituted "he shall pay the prescribed fee in respect of".(2B) The power to make different provision under subsection (2A) for different cases includes power—(a) to make different provision for different descriptions of street authority or undertakers;(b) to prescribe different fees by reference to the nature or extent of the inspection, the place where it is carried out and such other factors as appear to the Secretary of State to be relevant.224(2) For section 75 of that Act (inspection fees) there is substituted—"75 INSPECTION FEES(1) The Secretary of State may make provision by regulations requiring an undertaker to pay to the street authority the prescribed fee in respect of—(a) all inspections carried out by the authority of his street works; or(b) such inspections of those works as may be prescribed.(2) The regulations may—(a) require undertakers to make payments in respect of inspections anticipated to take place within a prescribed period; and(b) make provision for the striking of an account between an undertaker and a street authority and the making of any necessary payment or repayment.(3) The power to make different provision under this section for different cases includes power—(a) to make different provision for different descriptions of street authority or different descriptions of undertakers (including descriptions framed by reference to their previous performance);(b) to prescribe different fees by reference to the nature or extent of the excavation or other works, the place where they are executed and such other factors as appear to the Secretary of State to be relevant.(4) The reference in subsection (3)(a) to the previous performance of an undertaker is to the performance of the undertaker, during such period as may be prescribed, as respects such description of his duties under this Part as may be prescribed.(5) The regulations may require disputes of any prescribed description to be determined by arbitration.(6) Nothing in this section applies to inspections in respect of which the undertaker is obliged to bear the cost, or pay the prescribed fee, under section 72(2) (inspections consequent on failure to comply with duties as to reinstatement)."
The noble Lord said:My Lords, Section 75 of the New Roads and Street Works Act 1991 provides that statutory undertakers shall pay a fee to the street authority for each inspection of their works that the street authority carries out. These inspections are to make sure that the works are carried out to the required standard. The Secretary of State prescribes the inspection regime in regulations. These currently allow a street authority to inspect up to 30 per cent of each undertaker's works in its area at the undertaker's expense, at a fee of £21 per inspection.
While the existing regime works as a general monitoring tool, it is not effective in improving the quality of work and reducing the amount of remedial work that causes unnecessary disruption. Amendment No. 92 replaces the existing Section 75, widening the remit of the regulations that the Secretary of State can make. In addition to the factors presently covered, the replacement Section 75 would allow the regulations to differentiate between different descriptions of street authority and undertaker. The latter case will include making stricter or less strict provisions depending upon an individual undertaker's performance in the past. This would allow increased inspections for the poorest performers, with the aim of driving up the standard of works. It is not expected that good performers should have more inspections than at present. Regulations can prescribe how and over what period an undertaker's performance would be 225 assessed. The amendment also allows for regulations to prescribe how disputes relating to the charging of fees are to be settled by arbitration.
Section 72 of the 1991 Act covers circumstances where a street authority's inspection uncovers a failure to meet the prescribed performance standards. Where this occurs, the undertaker has to meet the cost of three inspections: a joint inspection with the authority, to see what action is needed to remedy the fault; an inspection during the "remedial" works; and another after their completion. Subsection (1) of Amendment No. 92 allows the Secretary of State to prescribe in regulations that the undertaker in question shall pay a fee to the authority for each of the three types of inspections and also what that fee should be. It allows for the fee to vary according to what type of inspection is needed, how extensive it is, where it is carried out, or any other factor that the regulations might provide for. For instance, a badly failed reinstatement might need a more extensive and therefore more costly inspection. In all of this, the intention of the Government is to target poor performance and improve the quality of street works, so that doing reinstatements properly first time becomes the norm. To monitor performance and changes in performance effectively, there would still be a minimum proportion of all utilities' work inspected.
The Government intend to ask a working group of utilities and authorities to consider what changes should be made to the inspection regulations in light of the changes introduced by the Bill. We will consult publicly before new regulations are made.
Amendment No. 93 is a simple drafting change to ensure the consistency of new Section 73F of the 1991 Act, inserted by Clause 56, with the existing provisions in the Act. I beg to move.
§ Lord RotherwickMy Lords, the utilities industry welcomes the move towards the principle of rewarding good practice. However, it argues that this clause leaves matters too vague. The accompanying explanatory text in the letter the Minister was kind enough to send us before this stage of the Bill makes it clear that the Government are at least contemplating a regime where effort and resource are concentrated on those who have not demonstrated good records in street works. That much is to be welcomed.
The letter also makes it clear that while the Government envisage using a stick to punish those who do not improve, the industry questions why the department is not contemplating a corresponding carrot for those who make improvements, in the sense that those who improve will continue to pay for inspections at the current level. Those who do not will face increases. Can the Minister comment on whether he believes that there ought to be some incentive to make further improvements, such as better performance leading to a reduction in inspections and therefore fees? This would encourage better performance and would free up resources to deal with those who continue to perform below par.
§ Lord Davies of OldhamMy Lords, I am grateful to the noble Lord for welcoming certain aspects of the 226 provisions, and I appreciate the fact that my letter has helped to clarify some of these matters. I am not entirely surprised to learn that he is content with our clear determination to improve performance by applying the stick to undertakers who do not improve their performance.
The noble Lord has asked the additional question of whether we can think of ways of providing a carrot for those who do well. Of course there is one obvious carrot; namely that the number of inspections could be reduced for undertakers with a track record of satisfactory performance. I am sure that the noble Lord will share with me the broad intent behind the provisions, which is to improve the quality of road works so that we do not have the most irritating of all circumstances, those where work has to be attended to time and again, causing the same section of road to be subject to disruption.
I hear what the noble Lord has said. We shall look at his point, but I think he will recognise that there is an incentive for good performance. Undertakers in the category of good performers could find themselves subject to reduced inspections. Surely that ought to provide some incentive.
On Question, amendment agreed to.
Clause 56 [Inspections]:
§ Lord Davies of Oldhammoved Amendment No. 93:
Page 31, line 12, leave out "(including inspections following their completion)On Question, amendment agreed to.
Clause 58 [Orders of the Greater London Authority changing what are strategic roads]:
§ Viscount Astormoved Amendment No. 94:
Page 32, line 23, leave out paragraph (b).
The noble Viscountsaid: My Lords, I stress at the start that this probing amendment has come about because it has been brought to my attention that, in the working groups set up by the department to consider these issues, considerable differences have been expressed. Moreover, concerns have been raised by several London boroughs on the issue.
As it stands, the Bill will reduce the responsibilities of the boroughs over their own highways network and add central control and what they feel is central bureaucracy to a much-increased strategic road network. I am sure that the Minister is well aware of the Transport for London plan, which is vastly to increase that network of strategic roads.
I have to say straightaway that I am not against the increase in principle, but we must ensure that it is measured. It will give Transport for London a much larger role in co-ordinating traffic management over borough roads.
I would be the first to say that, in some instances, Transport for London has done a very good job, but we have all seen instances where we occasionally have to raise questions. I do not know whether the Minister or any other noble Lord has been to Oxford Street recently. If so, they would have found that the whole street was clogged up by buses. There is no point in getting on a bus because you can walk faster than the 227 bus. There are often 30 buses in a line clogging up the street. It is an example of where the interface is not working.
It is important that we give Transport for London some oversight of strategic roads but, at the same time, it has to work with the boroughs as opposed to against them. I am sure the Minister will agree with that. They all have slightly different views and it is important to introduce a system that works, rather than one which increases bureaucracy and brings stagnation.
The amendment seeks to elucidate from the Minister how he thinks the system is working and what he believes both sides of the House can do to improve the working relationship between Transport for London and the boroughs. I am sure the Minister has the same ambition as I have; we want the relationship to work.
I am not sure that the Bill has the balance right at the moment. I am not sure that my amendment is exactly right either because it is rather severe. I am looking to the Minister for an explanation so that we can help move the process forward in a constructive way. I beg to move.
§ Lord Davies of OldhamMy Lords, I am grateful to the noble Viscount, Lord Astor, for the way in which he has introduced this probing amendment. In my experience, a probing amendment is no less difficult to handle than any other amendment. All it indicates is that it will be withdrawn irrespective of the quality of my reply. Nevertheless, there is a certain amount of pride involved in my reply because I hope to give him good measure for the questions he has asked.
I shall respond to the "probing" as best I can in a moment, but the problem with the amendment is that it would take the referee out of the game. Without mentioning name or nationality, I can think of one recent game where I would have cheered if the referee had been removed. However, as a general rule, when there is a dispute between conflicting elements, someone has to produce a resolution to it. The amendment would take out, if not the referee, the arbiter.
The Mayor of London and the Greater London Authority can direct by order that a road or proposed road should become strategic, but it happens only where the consent of the borough through which the road runs is obtained. What if they disagree? Quite clearly, the solution is that the Secretary of State must act in such circumstances. What the amendment would do—probing or not—is take the Secretary of State out of the picture and leave the parties in a state of stalemate.
I do not think a great deal of the amendment but I recognise the point that the noble Earl is making; that we must be concerned about the process by which we develop the concept of the strategic network. As far as the United Kingdom is concerned, the Secretary of State has the responsibility for the strategic network, but in London the mayor plays a crucial role.
I heard what the noble Lord said about buses. I confess that I have been on a bus in Oxford Street whose performance has been a little less than my 228 walking speed, although it was marginally more comfortable. I understand what the noble Lord said, but I would sooner see Oxford Street crowded with buses than bereft of them, which was perhaps the danger in the past when public transport was not identified as the priority that it is now. However, we have always said that the only way in which we can solve the problem of congestion in our major cities, and ab extenso as far as the capital is concerned, is by using public transport more intensively and intelligently. Buses clearly have a role to play in that.
I enjoyed the "probe" of the noble Lord's amendment and his illustration of where we need to tidy things up, but we obviously cannot accept the amendment. Some final authority must rest with the Secretary of State in circumstances where we would need to advance the cause of the strategic network and no-one else but he would be in a position to do so.
§ 9 p.m.
§ Viscount AstorMy Lords, I am grateful to the Minister for his response. I am particularly grateful for the fact that he has understood the issue and sought to address it. It is really an issue between Transport for London and the boroughs. My plea in moving the amendment was to encourage the Minister's department to be the arbiter and to be helpful in the process, as I am sure that it wants to be. It seemed to be an issue that needed to be raised, so that both sides of the House might express their concerns and a satisfactory conclusion could be reached. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 95 not moved.]
Clause 61 [Fixed penalty offences under the Highways Act 1980]:
§ Lord Davies of Oldhammoved Amendments Nos. 96 and 97:
Page 34, line 42, leave out "penalty charge".Page 35, line 2, at end insert—( ) In the New Roads and Street Works Act 1991 (c. 22), in section 97 (service of notices etc.) after subsection (2) there is inserted—(3) References in this section to notices authorised to be given or served for the purposes of this Part include a reference to notices under Schedule 22B to the Highways Act 1980 (fixed penalties for certain offences under that Act)."On Question, amendments agreed to.
Clause 63 [Builders' skips: charge for occupation of highway for unreasonable period]:
§ Lord Davies of Oldhammoved Amendment No. 98:
Page 37, line 43, at end insert—(17A) The regulations may make provision about their application to a series of deposits of skips.(17B) And they may, in particular, provide that a series of deposits of skips is to be treated as a single deposit of a skip—(a) beginning at the time the first in the series was deposited, and(b) ending at the time the last in the series was removed.
The noble Lord said:My Lords, in moving the amendment, I shall speak also to Amendments Nos. 99, 100 and 101. Clauses 63 to 67 concern the 229 possible establishment of charging schemes to encourage those who place skips, scaffolding and building materials on the highway and carry out temporary excavations to keep to a minimum the period for which they disrupt road users.
The four amendments are intended to deal with a possible ambiguity. The scheme could be frustrated where, for instance, the owner of a skip replaced it continually with further skips as it became full and, each time he replaced the skip, that was treated as if the time he was occupying the road and causing disruption had started all over again. That would provide no incentive for the owner of the skip to limit the disruption that it causes. The same principle applies to scaffolding and other materials which might occupy the highway.
The amendments have the combined effect of providing that regulations can make clear that a series of skips or scaffolding et cetera can be treated as a single one for the purpose of calculating how long they have occupied the highway. I beg to move.
§ Lord RotherwickMy Lords, we welcome the amendment as a means of cracking down on those who regularly flout their agreed duration period. It is vital, however, that these changes and all others that are made in the Bill are communicated in an easy-to-understand way to all interested parties. Will the Minister explain to the House how his department plans to ensure that everybody knows about the changes?
§ Lord Davies of OldhamMy Lords, certainly it is not conceivable that penalties could be visited on our fellow citizens without them being aware of the nature of the offence and the difficulty that they might be causing. I find it difficult to think that people who occupy the public road with building materials as wide as a skip or as extensive as scaffolding would not be aware that an authority would take an interest in keeping such a road free from disruption. Consequently, we will not have a great deal of difficulty in publicising the obvious fact that activity of that kind is liable to produce unwelcome attention from the authority and a possible penalty.
On Question, amendment agreed to.
Clause 64 [Builders' skips: charge determined by reference to duration of occupation of highway]:
§ Lord Davies of Oldhammoved Amendment No. 99:
Page 38, line :20, after first "to" insert "(17) and (17A) toOn Question, amendment agreed to.
Clause 65 [Scaffolding, building materials and excavations: charge for occupation of highway for unreasonable period]:
§ Lord Davies of Oldhammoved Amendment No. 100:
Page 40, line 32, at end insert—(18A) The regulations may make provision about their application to a series of deposits of things.(18B) And they may, in particular, provide that a series of deposits of things is to be treated as a single deposit of things—230(a) beginning at the time the first in the series was deposited, and(b) ending at the time the last in the series was removed.(18C) The regulations may make provision corresponding to that mentioned in subsections (18A) and (18B) in relation to the erection of relevant structures and the making of excavations.On Question, amendment agreed to.
Clause 66 [Scaffolding, building materials and excavations: charge determined by reference to duration of occupation of highway]:
§ Lord Davies of Oldhammoved Amendment No. 101:
Page 41, line 21, after first "to" insert "(18) and (18A) toOn Question, amendment agreed to.
Clause 70 [Contraventions subject to civil enforcement]:
§ Viscount Simonmoved Amendment No. 102:
Page 43, line 7, leave out "that are" and insert "which may be
The noble Viscount said:My Lords, I shall speak briefly to both the amendments standing in my name. I am concerned that much of the civilian enforcement includes traffic signs that are designed to be used not only to control the movement of traffic but also for road safety. For this reason, and for the purpose of road safety, contravention of the signs must also be subject to criminal prosecution. The assumption that a civil violation of a no-right-turn sign, for example, that results in a collision causing injury will always result in a prosecution for driving without due care is naïve in the extreme and does nothing to enhance the misused provision of Section 3 of the Road Traffic Act.
In order to ensure that enforcement can be carried out at each level, I have tabled these two amendments, which together widen the Bill in such a way that eases the lot of the enforcer. I beg to move.
§ Viscount AstorMy Lords, the amendments tabled by the noble Viscount, Lord Simon, clarify the boundaries between police and civil enforcement officers, and are rather helpful.
I have one concern about the clause, on which the Minister may be able to help me. The noble Viscount's amendment would offer protection to the motorist, who might otherwise have to pay double for one offence. I hope that the Minister will be able to disabuse me of that view and explain with clarity that I have got it wrong. The noble Viscount raises an important point, and I look forward to the Minister's reply.
§ Lord Davies of OldhamMy Lords, far be it from me to accuse the noble Viscount, Lord Astor, of having got things wrong. He may have interpreted matters in a different way from the intent and the reality of the Bill, but not got anything wrong. That is also the case with my noble friend Lord Simon, who has helpfully tabled the amendments, giving me the chance to clarify the issues. We do not believe that the two amendments are necessary, but I shall try to establish the case for that—and I am grateful for the opportunity to do so. 231 Clause 69 enables the Secretary of State or the National Assembly for Wales to make regulations for the imposition of penalty charges for or in connection with the imposition of penalty charges in respect of road traffic contraventions that are subject to civil enforcement. The contraventions that are subject to civil enforcement are specified in Clause 70 and are set out in detail in Schedule 7. To be subject to civil enforcement, the contraventions must be committed in an area that is a civil enforcement area for those contraventions by virtue of Clause 71 and Schedule 8.
By virtue of subsection (3) of Clause 69, regulations enabling civil enforcement of contraventions by means of penalty charges must include provision either prohibiting criminal proceedings in respect of those contraventions or securing that a penalty charge is not required to be paid, or is refunded where the conduct concerned is the subject of criminal proceedings or a fixed penalty notice issued by the police.
I assure my noble friend Lord Simon and the noble Viscount, Lord Astor, that there is no question of someone incurring both a civil penalty charge and a criminal fine for the same act. On that understanding I hope that my noble friend will be prepared to withdraw his amendments.
§ Viscount SimonMy Lords, I am grateful to the noble Viscount, Lord Astor, for his contribution. I listened carefully to what my noble friend the Minister said in response to my amendments. I am not sure that I understood fully what he said, so I shall read his remarks carefully. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 103 not moved.]
§ Viscount Astormoved Amendment No. 104:
Page 43, line 19, at end insert—( ) The Secretary of State may not make regulations under this section unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House.
The noble Viscount said:My Lords, we come to what might be called the traffic warden section of the Bill. Your Lordships will realise, having listened to the Committee stage, that this is an area that concerns me. I will accept the criticism that I have a bee in my bonnet but that is because I have been bombarded by many people who have concerns. I am concerned about the powers of civil enforcement officers. In the past, I have been concerned about the way in which they have carried out their work. They seem to have been given incentives that make them behave in a way that is not in the best interests of the service, parking or the local authority. I have been heartened by the area that I know best, which is Westminster, where I live. Westminster Council has taken very much into account the concerns raised over this matter and has announced its intention to alter its guidelines. 232 I understand that various pilots on these new powers are going on in London and that regulations to extend them beyond London are not expected for some time. It would be helpful if the Minister could outline exactly which moving traffic contraventions can or cannot be included. I understand that speeding will not be included. I think that I am correct in saying that contraventions of box junctions will be included, but that the Minster considers that these will largely be dealt with by camera evidence.
My amendment makes these regulations affirmative because I think that Parliament should have the ability to discuss any extension. Appeals are an other matter that I shall come on to later. This is an area where there is general public concern and it would be helpful if the Minister could briefly outline how he sees the powers being used and how they might roll out over the country. It would be extremely helpful to those who have concerns. I beg to move.
§ Lord Davies of OldhamMy Lords, I shall begin with the general question. The regulation-making powers in the Bill have been scrutinised by the Delegated Powers and Regulatory Reform Committee. The committee made a number of recommendations in its report to your Lordships. All the committee's recommendations were accepted by the Government and appropriate amendments were made to the Bill in Grand Committee to give them effect.
The Delegated Powers and Regulatory Reform Committee did not consider it necessary that regulations to be made under Clause 70 should be subject to the affirmative procedure and nor do we. We do not propose to do that. The regulation-making power in Clause 70(4) enables consequential amendments to be made to Schedule 7 if subordinate legislation referred to in it is amended, replaced or revoked. For example, the House will recognise that traffic signs regulations are periodically updated. So, when new regulations are made in the future, a reference to the new regulations will have to be included at paragraph 9(2)(a) which presently refers to the 2002 regulations. We see no need for regulations under Clause 70(4), which will be concerned with technical changes to Schedule 7 consequent upon the passing of other subordinate legislation, to be subject to parliamentary approval. I hope that the noble Viscount will feel able to withdraw his amendment.
I imagine that the noble Viscount, in tabling his amendment, is less concerned about the particular question of parliamentary scrutiny and is more concerned about the extent to which we are able to allay his various anxieties. The noble Viscount was particularly concerned about regulations allowing the imposition of penalty charges for moving traffic contraventions. He will know that London authorities already have those powers by virtue of the London Local Authorities and Transport for London Act 2003. Use of those powers is now being piloted in 233 London. I assure the House and the noble Viscount, Lord Astor, that we will have regard to the experience gained in London in framing regulations enabling civil enforcement of moving traffic contraventions by authorities outside London. There will of course be the normal public consultation on such regulations.
We could add to the regulations the moving traffic contraventions specified in paragraph 9 of Schedule 7, but that might not include endorsable offences such as speeding. We are seeking to keep clear of the offences that may lead to endorsement for anyone who has infringed. As the noble Viscount will recognise, and as he indicated in his own contribution, we regard the issue of moving traffic offences as an issue mainly for cameras, not officers, to identify. Given that officers are on foot and the offence is committed by a moving vehicle, it is not possible for them to take immediate action anyway. They may record the offence, but their recording of it is not likely to occur as frequently or readily as that done by cameras judiciously placed at box junctions and other places where such offences occur.
We are piloting the scheme in London and we will learn from that experience as to what can be introduced in regulations for the country as a whole. We bear in mind the noble Viscount's real anxieties, which he has expressed both in Committee and again today. I assure him that we have a ready-made pilot working at present, against the principle that I have adumbrated. On the whole, the issue of moving contraventions is for cameras rather than these officers.
§ Viscount AstorMy Lords, the Minister's answer was helpful, particularly in outlining that these offences will not be covered by endorsement. We all know that one can quite reasonably enter a box junction when there is a space on the other side, but, half way through, someone nicks that space. That happens. It is unfortunate and irritating because one gets stuck in the middle and it is rather embarrassing. But through no fault of one's own, it occasionally happens.
I am reassured that the Government are piloting the scheme. It is an important issue. With this extension of powers, we go back to saying that we are trying to produce effective traffic management—or "effective traffic movement", as the noble Lord, Lord Peyton, might refer to it. At the same time, however, we have to have rules that are not only fair and respected by the motorist but are seen to be fair; otherwise they are not going to work.
I am grateful for the Minister's answer. He has gone quite a long way in giving me the assurance that I require, but obviously I will have to consider the matter carefully. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn. 234 Schedule 7 [Road traffic contraventions subject to civil enforcement]: