Grand Committee
Infrastructure Bill [HL]
(10 years, 5 months ago)
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The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, as is usual on such occasions, I must advise the Grand Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.
Clause 13: Transfer of additional functions
Amendment 32
Lord Davies of Oldham
Lord Davies of Oldham (Lab)
My Lords, Amendment 32 is designed to probe two issues: the motivation behind the move to a strategic highways company and the extent to which the Minister will be able to affect its day-to-day operations. We are concerned about the cost implications of putting the Highways Agency at arm’s length because doing so could result in significantly increased managerial pay. In fact, there have been comments by informed individuals to suggest that that is certainly one of the attractions of the proposal. It will free the company from the constraints of Civil Service pay. We are also concerned about the issue of additional VAT payments. At present, considerable sums are returned on the basis of the role played by the Highways Agency, but as a company, of course, it will not receive such concessions and will have to meet its VAT obligations in full. We are concerned about fines because we are not at all sure about how any fines would be levied, and on whom. We are concerned about poor value cyclical investments, and we are concerned about the reduced flexibility of the Government in the area of spending in the future.
We recognise that the point of this attempt at improving the infrastructure basis of the Department for Transport as far as roads are concerned is about guaranteeing that certain sums will be spent in the future so that infrastructure projects which clearly need a long time-line of assured expense will have that guarantee. However, we also need some assurance from the Minister that the absolutely critical issue of ensuring that the necessary flexibility, either when situations change or the perspective of Ministers alters, is available. According to the transparency page on the Highways Agency website, at present the top five jobholders all make significantly more than £100,000 a year. One would have thought that in the context of pay in the public service and the other advantages of being in the public sector—the oft-quoted security of pensions, although that is becoming less advantageous as time goes by; job security, although by heavens one cannot talk to many civil servants and get the impression that they feel they enjoy job security—people on salaries of over £100,000 could be expected to discharge a significant area of responsibility. Let us consider whether the pay at the top of the strategic highways company will be boosted by any additional income streams. The Government have quite clearly indicated that these proposals have nothing to do with a long-term perspective on road pricing; we had that discussion at the end of our sitting last week. However, if there are no additional income streams, the taxpayer will be paying those potentially increased wages of the staff.
The impact assessment lists pay and remuneration under the heading “Institutional constraints under central controls”. I want to know what central controls those are, or yet again is a model being followed that we know all too well, in fair weather and in foul, of creating a non-governmental body and seeing its salaries inflate so that they match the private sector, which can always be relied upon to have a significant differential between the top few and the very many who do a great deal of the work and are responsible to them? Is that what we are going to see again prior to privatisation? I beg to move.
Lord Berkeley (Lab)
My Lords, I support my noble friends on this amendment. It may well be that in her reply the Minister will refer to more than one of the five documents that she referred to in last week’s Committee sitting and kindly e-mailed to us the next day. I have now read them but they do not tell me a lot about the questions that we were asking. I hope that before we get to Report we will have the detail—I think that the Minister suggested that more would be forthcoming—of the relationship between a strategy, if there is to be one, a licence for this company, directions and guidance, articles, duties, governance and things such as that. However, in the case of this amendment, who is going to decide how much the staff of the new company are paid unless it is the Secretary of State?
As my noble friend said, it is beginning to look as though the only reason for making this change is so that the staff can be paid more than they are at the moment. It may be that the people who proposed this looked longingly at the remuneration and bonuses received by the senior staff at Network Rail in recent years without seeing that that is changing quite dramatically to a lower figure. Of course, once Network Rail is fully owned by the state, it may change even further. It would be interesting to hear how we are going to know who is in charge of remuneration, management, financial arrangements and staffing if it is not the Secretary of State. Therefore, I think that this is a very good amendment and I fully support it.
Lord Jenkin of Roding (Con)
My Lords, I take this opportunity to thank my noble friend and her private office for the help that we were given after last week’s sitting with the supply of the documents to which she had referred and to which the noble Lord, Lord Berkeley, has also just referred. I am very grateful. I, too, have read them, and the draft licence in particular, with all the caveats surrounding it, which I totally understand, is a very helpful indication. It might have been helpful if I had known about it when we were discussing the purposes of setting up this body and what its objectives would be.
I would have expected a remuneration committee to be the sort of thing to be covered by the articles of association. Indeed, the paper that the Minister has circulated, entitled Strategic Highways Company: Approach to the Articles of Association, makes reference to the,
“Model Articles for a company limited by shares”.
Of course, this company cannot be the same as that because, in a sense, it is rather different with all the shares owned by the Secretary of State. However, I would have expected the whole question of a remuneration committee to be covered by the articles when they are finally drawn up and issued.
It is absolutely within the powers of a board of directors to decide how that is going to operate, but I think that it is not unreasonable that the Secretary of State should keep a very close eye on this issue. Some of the remuneration that has been paid—not only in the private sector, as the noble Lord, Lord Davies, implied, but sometimes also in the public sector—has been a bit absurd and given rise to a good deal of criticism and uneasiness. I should have expected the Secretary of State to want to keep a close eye on what the company is doing. As I understand it, it will primarily be for the articles of association to spell out this sort of thing, and I would be most grateful if my noble friend would be willing to confirm that.
Lord Whitty (Lab)
My Lords, I support the amendment because it raises wider issues. Although I do not want to go over much of what was said in our previous sitting, the Minister gave some unsatisfactory answers. Since then, like my noble friend Lord Berkeley, I have read the draft licence agreement, which does not answer most of my points or, indeed, the points regarding this amendment. Before we get to Report, we need to be clear—either through draft articles of association or through some greater management guidance for the proposed, hived-off company—about what the company can and cannot do.
On reading the impact assessment, it appears that the alleged benefits of this hiving-off arise almost entirely from the certainty of funding. They do not seem to arise significantly—the £3.8 billion over 10 years arises almost entirely from the certainty of funding on maintenance and schemes within that timescale. Very little of it seems to arise from better management, novel forms of contracts or technological improvements. If that is the case, all that the Treasury and Secretary of State need to do is ensure that there is firm funding from Parliament. Admittedly, a Parliament lasts only five years, and the aggregate period we are talking about is 10 years; but, nevertheless, the institutional change of itself does not seem to deliver a significant contribution to that alleged net benefit.
The questions on how the company runs its staffing, and how it recruits and pays the management, could have a bearing on that, but it is never explicit. It is certainly not explicit in the documents to which we have referred. The anxiety of the rest of the staff and the PCS union is that, although moving away from the Civil Service may mean that the Government can pay the senior management significantly more—if they are going to go the way of HS2 and pay the 23 senior managers, the chief executive or anyone else, more than the Prime Minister, that will be difficult for anyone to accept politically—the rest of the staff will face greater insecurity, as my noble friend has said, as well as the possibility of changes to all their terms and conditions.
Therefore, for the morale of the existing Highways Agency staff, unless we are explicit about what the advantages of better management and a better situation for the workforce will be, it will be difficult to envisage a wholehearted endorsement of this proposition from the staff. Unless there is a reflection of some improved management in terms of the benefits of the hiving-off, as distinct from the substantial assumptions about what the certainty of funding delivers, the case for going through all this change begins to look a bit thin.
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, let me deal with a couple of issues. I will be talking about fines under the next grouping, so if the noble Lord, Lord Davies of Oldham, will indulge me, I will leave that conversation until that point, so as not to be repetitive. He asked a question about paying VAT. The SHC will not be required to pay VAT, which is exactly the same as for the HA now. That should clear up that issue. To pick up on discussions in the Committee’s previous sitting, he asked about funding certainty and whether that impacts on future flexibility. It must impact on future flexibility, but we have been very clear that we have been making sure that we strike a balance between providing long-term certainty of funding and recognising the democratic right of any new Government to come to different decisions. As the noble Lord will remember, we are making the process highly transparent and consultative, so that any change in the RIS will have to be through a very clear process, which means that it is explicit and all can see what is taking place. I think the noble Lord understands how that balance is being struck.
Lord Davies of Oldham
My Lords, the Minister has produced the best reply possible while giving little hard information which the Committee really needs. She made one point that I am pleased to see on the record, as long as she stays consistent with it—that there is no change to the VAT arrangements for the new company. We on this side of the Committee are still struggling to see where the significant gains from the new company are coming from. We are meant to top up towards £2.6 billion in due course from these arrangements. I and several of my noble friends have difficulty in reaching such figures, but I guess that the Minister is seeking to counteract what has been expressed as a general hope and intent outside the House with what can be said in Committee and inside the House, on which the Government can be questioned much more closely. I have listened very carefully to the Minister’s comments. Of course I shall withdraw the amendment, because it was meant only to probe. It did not probe very far, so we may feel that we have to table an amendment at a later stage. I beg leave to withdraw the amendment.
Lord Bradshaw
Lord Bradshaw (LD)
This brings us to another clause and concerns the payment of fines, to which reference was just made by the noble Lord, Lord Davies of Oldham.
The clause refers to the “Secretary of State” in successive subsections, and I believe that that might be wrong. One of the advantages of the Office of Rail Regulation is that it is independent from the Government. It is the Office of Rail Regulation that sets fines for Network Rail when it does not comply with the official standards that the regulator has approved. It may be a question of semantics, and it may be relevant to ask whether the ORR should not become the “Office of Transport Regulation” to stop comments such as those we heard this afternoon of something being done to roads by the rail lobby. I totally disagree with what was said, but to stop this bickering between both sides it might be better to make it the office of transport regulation.
There is a process with the railway. As it approaches the control period, which is a five-yearly period, the industry says what it would like. The Government then say how much money is available and the regulator decides how much an efficient undertaker—Network Rail in that case—needs to carry out the job that it has to do.
The Office of Rail Regulation has just issued a fine to Network Rail because Network Rail has failed to live up to the punctuality targets that had been set for it by the regulator. The money from the fine—this is very interesting—is going to be spent on providing wi-fi access for railway commuters; it is not going back into the maw of the Treasury. I believe that this might be behind the wording in Clause 5 saying that the fine will be levied by the regulator. If it is the intention that the fines will go towards the benefit of the user—in this case, the motorist or people running lorries—it needs to be carefully thought through how that will be achieved. I fully applaud the principle, but in order to get satisfactory separation from the Secretary of State it would be much better if the Bill said “the regulator” or “the Office of Rail Regulation”, whichever was the case.
I am not in any way denigrating the work done by the Office of Rail Regulation; in my view it is one of the most effective regulators, although perhaps it does not have to meet a very high standard when you think of Ofgem, Ofwat and Of-everything else—some of them are doing a very poor job. The ORR has driven up standards in the industry quite considerably, and it is a safety regulator as well. If the Minister can give me reasons why the alterations to the wording that I have suggested cannot be agreed, will she give me a view as to whether it would not be better to change the title of the Office of Rail Regulation to something like the office of transport regulation? I beg to move.
Lord Whitty
My Lords, I agree with much of what the noble Lord, Lord Bradshaw, has said, but of course the problem with the Bill is that under the Government’s current proposals the Office of Rail Regulation—perhaps with a better name—will be not a regulator but simply a monitor. There is no equivalence between the ORR’s relationship to the railways and what is currently proposed. We will come to one of my amendments later on that would allow some degree of regulation of quality, standards, the performance of the road network and road safety. At the moment, though, that is not what the Government envisage, and I would hope that the Minister would explain why. As the noble Lord has indicated, equivalence in our strategic network would appear to be common sense.
Lord Berkeley
My Lords, I also support these amendments. It is very difficult to see how the Secretary of State can fine himself, which is effectively what will be happening. As we know, that actually would not happen because long before it got to that stage—not that we know how it will get there, because that appears in Clause 5(2) and we have not seen the documents yet—the people running the SHC will get the sack, they will be told to change their policy in order that they comply with the road investment strategy or they will comply with the directions and guidance. So to some extent I think that this clause is a complete waste of time, although it would be nice to see what the Secretary of State said about the circumstances that may require the payment of a fine.
I agree with the noble Lord, Lord Bradshaw, and my noble friend Lord Whitty that we need to debate in more detail why this is not done by an independent regulator. Independence is the answer, and the independent rail regulator has the trust of the industry and, I think, of government; I am not sure about the other regulators, but we are talking about the ORR today. If it had those powers and it could use them, everybody would feel very happy that it had looked at the expenditure, efficiency, safety and everything else to do with the highways and come to an independent conclusion.
Lord Davies of Oldham
My Lords, I have sufficient sympathy with these amendments that I hope we will be able to attract the noble Lord, Lord Bradshaw, to our later amendments, which are concerned with regulating the industry, as opposed to being just a monitor. I noticed that he left out Ofsted in his list of Ofgem and the other “Ofs”. I guess he did not want to plunge the Committee into a debate about the efficiency of a regulator that changes its mind about the categorisation of certain schools in Birmingham in the space of a month or so. We are not going to deviate from transport and particularly roads at this stage. However, I hope he will recognise that our sympathy with his amendments will become much more apparent when we discuss the real issue of regulation.
Baroness Kramer
I thank your Lordships. I want to make clear that the Office of Rail Regulation in its role as a highways monitor would advise the Secretary of State on these issues. Perhaps it would be helpful if I took your Lordships through the thought process that took us to the current arrangement of enforcement, because we recognise that there are different ways to approach enforcement.
In looking at the system of fines we followed quite a usual practice, which is to keep the setting of performance standards and objectives together with the enforcement of that performance regime. That tends to be the line most experts in this field would recommend, because it means the enforcer, having been involved in setting those standards, has confidence that the regime as a whole is fair and that enforcement is justified. It is quite difficult for a body that is not setting those standards to then enforce them. Given that the company’s funding will come from the Secretary of State, it seemed to us right that he should be the one to set the performance expectations for the company and consequently to enforce them, following the general principle that I just described. That is the role that we have set in place here.
There have been other views. For example, I note that the report of the Transport Select Committee in the other place recommended giving greater powers to the monitor, closer to the functions discharged by a regulator. It is quite clear, as we have discussed before, that the role that the ORR would play with regard to the SHC is, by definition, different from its role in rail. For example, it is clear that there are no passengers who are paying fares, as there are with rail; there is no equivalency with the roads that would be under the responsibility of the SHC. There is no competitive arrangement between the various operators. For example, there is not the relationship that exists between Network Rail and the operators, which obviously has its tensions. We looked at it as rather a different role, and that is why we came up with the structure that we have here.
I agree with the comments that have been made on fines. Any fines that are paid by the SHC—I hope that it would not get to the point of paying fines, but it happens—will come out of the money that the company can spend on improving the road network. We have always assumed that the fines would be much more reputational in nature, rather than a heavy punishment. They are much more aimed at signalling poor performance, rather than transferring large sums of money out of the company. Obviously we want constant improvements in the road network.
The noble Lord, Lord Bradshaw, asked again about changing the title to be used from the Office of Rail Regulation to the office of transport regulation. I think that we have said that one of the interesting things about the role that the ORR will have—a role in relationship to rail and a role in relationship to road—is that it may, over time, lead to more thought about how the various modes interrelate. However, at this point we do not think that we are at that stage. It will be interesting to see how this monitoring role evolves. We will need to see how the SHC carries out its work and how that process evolves, so there may be a point in the future when that name change is appropriate.
I also point out that there is nothing to prevent a name change. It is not provided for in the Bill because the body has an advisory role with regard to roads, but it is open to the ORR to use a different trading name if it so chooses. Therefore, if it wanted to call itself a transport regulator, it could choose that as a trading name.
Lord Berkeley
I am grateful to the noble Baroness. I want to go back to the performance criteria that she mentioned in relation to fines and things such as that. She mentioned that there was a reputational issue, and of course exactly the same would apply to Network Rail—a fine on it would be significant in terms of reputation. However, can she give the Committee any idea of the sort of criteria that would be used? Presumably, road closures for maintenance is one of them, but might they include happy cyclists, happy motorists or happy pedestrians, or something like that? Is she able to expand on any of the criteria either now or in a letter if necessary?
Baroness Kramer
What we are doing now is basically setting up implementation vehicles. That is the purpose of this language. The content of the road investment strategy will undoubtedly lead to performance criteria. It is very hard to set performance standards without that document in front of us, and obviously we hope to see it some time in the autumn. I think that we have to pass the hurdle of having a road investment strategy before we can sensibly ask a Secretary of State to set those standards.
I am being reminded that it is very likely that breaches of the licence conditions would be the kind of standards used by the Secretary of State. It is possible that he might set standards so that there is a penalty, for example, for the failure to control costs or to achieve delivery. Quite a range of performance standards might be selected but I think that we are rather too early in the process, without having the RIS, to put sensible names to them.
Lord Bradshaw
I thank the noble Baroness for that reply. I do not see the difference between the SHC and Network Rail in that they both derive their funding principally from the Secretary of State. I know that train companies pay track access charges but so do lorries and motorists—only they are not called track access charges. The Minister makes the point that people do not pay, but in fact, in the same way that season ticket holders pay once a year for their journeys, people pay once a year for their licence and probably once a week for their petrol, so they are paying customers. I do not see the difference there. When you talk about competition between operators on the railways, except in the freight sector there is precious little real competition for people to choose which train company they use on a day-to-day basis.
I am glad to hear the Minister say that the title might change. I also hasten to say that the Office of Rail Regulation does a very good job in holding Network Rail to account. I am rather sad to hear that we are going to see how the monitor role works and how the strategic highways agency works—that sounds to me like a bit of a kick into the long grass, rather than a radical experiment.
Lastly, the Minister has also passed to me today—thank you—a letter about the experience in other countries. I have read it. What comes out of it is the fact that people who use longer funding periods of up to 15 years achieve savings of 15% or more. I think that that only underlines the need for long-term thinking in getting away from this very short-term funding, which in both cases far outweighs the life of any Government or series of Governments.
I will beg leave to withdraw the amendment but, in this case, I intend to raise the issue again on Report.
Lord Whitty
“( ) In all enactments the Passengers’ Council shall henceforth be renamed the “Passenger and Road Users’ Council”.”
Lord Whitty
My Lords, I will be brief on this amendment because the main discussion of Passenger Focus is in the next group of amendments. My amendment is simply about the name. I prefer my formulation to that of my noble friends Lord Berkeley and Lord Judd, because my amendment makes it clear that it is actually the users—the consumers—of these services who are represented by the council. I think that that point is more ambiguous in the title they are proposing. We need a new name, so I commend my formulation and beg to move.
Lord Berkeley
I am going to confuse the Committee because my Amendment 42, which we will come on to shortly, suggests that the name should be the transport infrastructure and services council. However, after I tabled this amendment I had a discussion with the chief executive of the Rail Passengers’ Council, who said that a much better name than anything anyone has suggested before, including the Government, was the transport users’ council. I will just throw that into the ring and see what the Minister and other noble Lords think of it.
Lord Jenkin of Roding
It sounds a very good name. However, might there not be some confusion with another body with the same initials—the TUC?
Lord Judd (Lab)
My Lords, I think that this amendment deserves full-hearted support. What has raised a great deal of concern is that roads should become the exclusive prerogative of drivers and passengers. Of course, they are serving the wider community, or could serve the wider community. If we are taking the opportunity for more strategic thinking about the future in transport, it seems very unfortunate inadvertently to work against that objective by limiting imagination in titles like this. Amending the title in the way suggested would begin to open up the responsibility of those who are administering roads and those who are driving on roads—passengers who are using or riding in cars—to think of the wider community. From that standpoint, I am very glad that my noble friend has moved the amendment.
Baroness Kramer
My Lords, I think that we may again be confusing a legal name and a trade name. For example, there has been a proposal that the watchdog should use the title “Road User Focus” to try to describe its activities, in order to make it clear that it represents the whole motoring community, including car drivers, passengers, drivers of commercial vehicles, commercial passengers and operators. People have said to me, “Don’t forget the motorbikes or the electric bikes”. This body will also look out for cyclists, pedestrians and other non-motorised users, and listen to the needs of those who have a special relationship with the network, such as disabled motorists and disabled people more generally who use the road network. It is an attempt to bring together all these voices, many of whom are represented as a sub-segment by an existing organisation such as the AA or RAC. This organisation would, frankly, draw them all together.
I fully accept that the title Passengers’ Council does not match this arrangement. However, the Local Transport Act 2008 already provides the legal powers to change the name of the council through secondary legislation. We are working with the existing council to develop a new name, and plan to bring forward the relevant orders to make the change once the legislation is ready. I am sure that your Lordships would be very welcome to contribute your various ideas for a more appropriate name. In addition, the Passengers’ Council is free to choose to use any branding name it considers appropriate on a day-to-day practical level, and may even operate under more than one name if that reflects its needs. For several years now, it has been known publicly as Passenger Focus rather than by its legal name. We do not think that this issue will give rise to any difficulties. Establishing the watchdog under the title “Road User Focus” should not inhibit coming to an ideal name for public use.
Lord Judd
I put it to the Minister that the purpose of having this kind of discussion in a Committee format is that it is, as it were, pre-legislative consideration. Otherwise, what is the point? We do not press matters to a vote. We are putting up new ideas and suggestions about how things can be improved. The Minister made some conciliatory remarks about the spirit of the amendment but if the Government are really that open-minded, why should they limit the concept from the start? Okay, we can change the title later, but why do we not say from the very beginning that roads involve a much wider community interest than just the interests of those who drive cars and ride in them? Right from the beginning, we want to give a signal to the whole community that this is about something wider.
Baroness Kramer
Perhaps I may just explain. We have had a number of conversations about the wider community who make up road users, and we have talked about the possibility of having lists. Such an approach would create problems because there are always additional thoughts about who should be included in the list. As noble Lords will see in Hansard, we started out with a discussion that covered obvious road users such as car drivers, pedestrians and cyclists. People have certainly come to me and said, “You’ve got to include Segways in it”, “We certainly need to include horse riders”, and, “What do you do about mobility scooters?”. Many potential issues arise once you start getting into list mode. What we have tried to do throughout this whole process is make it clear that we, and indeed the Passengers’ Council, have a very wide interpretation and intend to capture everyone who actually uses the road in one way or another. Just creating a detailed list gets us into more trouble than having just that broad understanding. That is why we have kept with this name.
As I said, there are ongoing discussions. Noble Lords have excellent ideas and are in frequent communication with the community. We would be very glad to share with the Passengers’ Council the names that have been proposed today to see whether it is inspired by them to identify what it thinks would be the most appropriate name for it to use. I do not think that we want to start making legislative changes at this stage, when there is so much flexibility provided for in the system we have.
Lord Berkeley
My Lords, the Bill refers to the Passengers’ Council, which is clearly wrong, and we have all come up with different suggestions about what it should be. However, as the Minister is in discussion with various groups and the department, will she commit to coming back on Report with a suggestion of what it should be? Otherwise, every time we get to this point we will have an argument and say, “Well, it is not the Passengers’ Council because it does not represent trucks”. If we could move this matter on, it would be very good for everybody.
Baroness Kramer
I should point out to the noble Lord, Lord Berkeley, that it is the Passengers’ Council today; that is its legal name. If we were to include a different name in the legislation now, it would not be clear to anybody which group of people it applied to. We are identifying the organisation. It might be appropriate for that organisation to make changes to either its name or its trading name to meet the new set of responsibilities that it will have. However, if I were to put in some other name today it would not be clear that it applied to the Passengers’ Council, a body for which everybody in your Lordships’ House has great respect.
Lord Jenkin of Roding
Would it be open to the body to change its own name for popular use? I cite the example of the body that I set up when I was Environment Secretary and which is now known as English Heritage. It had some very dreary bureaucratic name—the National Council for Historic Sites and Buildings—and I appointed the noble Lord, Lord Montagu of Beaulieu, as its first chairman. At his first meeting he agreed with the entire council that the name should be changed to English Heritage. That has been a huge success as it describes precisely what that body does. I have always been enormously grateful to him because he really got that body off the ground and made it a popular institution that attracts the loyalty of many millions of people. Would the Passengers’ Council be entitled to do the same thing?
Baroness Kramer
The noble Lord, Lord Jenkin of Roding, is exactly right. Passengers’ Council is the legal name of this body. It could be changed in secondary legislation but, as I said, it uses a trading name and calls itself Passenger Focus in the work that it does with the rail industry. It is perfectly able to choose what it considers an appropriate name. I have enormous respect for the Passengers’ Council, and for it to use its correct legal name. I am comfortable leaving it to decide on the appropriate trading name to use. I suggest that we communicate to the Passengers’ Council the various names that have been suggested today, but it seems to me that the council is best positioned to test the matter with various people to discover what the public think most clearly expresses the role that it wants to carry out, rather than for the Committee to come up with an appropriate trading name. Our skill, after all, is legislation. The noble Lord, Lord Jenkin, provided an excellent example of a body understanding its role and coming up with a name that resonated strongly with the public by accurately describing its activities.
Lord Judd
Perhaps the Minister could clarify one point. I thought that the noble Lord, Lord Jenkin, gave a marvellous example of imaginative thinking by people who were given a task and who realised that fulfilment of that task was related to the public perception of what the organisation was about, and so the title should have conveyed the spirit of what it was about. However, I am not quite clear whether the Minister said that it would depend on secondary legislation or whether the power already exists. That point should be clarified. If it does depend on secondary legislation, it would be a pity not to have a wider concept at this stage. I should like to think that everyone working on the Bill is saying, “Here’s a great opportunity to open up the imagination about the responsibility of all concerned”.
Lord Davies of Oldham
My Lords, I assumed that the Minister was indicating that of course there would need to be legislative change if the title of the Passengers’ Council were changed. I am reluctant to get too much involved in proposals at this stage because we have a fair legislative trail ahead of us. We have this stage of the Bill as well as two later stages to consider the matter. The Bill will then go to the Commons, which I think will be pretty articulate about the unsatisfactory nature of the present name and will propose changes. As I understand it, the Minister was saying that it is quite possible that the council will recognise the necessity for change, particularly if it is endorsed in the Commons, and that there would still need to be legislative change, but that it would be secondary legislation when we could all pile in again. I do not think that we need worry too much about the degree of definitiveness that we need to arrive at at this point, although there have been some very useful suggestions from those who have spoken to the amendments.
Baroness Kramer
So many of your Lordships have been really helpful on this point. I clearly have not been very clear. Passengers’ Council is the legal name. If the legal name were to be changed, that would require a change in secondary legislation under the Transport Act 2008, so that is entirely possible. However, the Passengers’ Council already uses a trading name that is different from its legal name; it uses the name Passenger Focus, just as English Heritage has a different legal name—I fear that I do not know what it is—but clearly its trading name is English Heritage. A body such as the Passengers’ Council can adopt one or more trading names. I suggest that we leave it to the Passengers’ Council to decide whether it uses “Road User Focus” or another name as its trading name for this role. If your Lordships have suggestions for a change to the legal name or for a particular trading name, I will gladly pass them over and make sure that they get to the right ears at the Passengers’ Council. I am sorry if I am confusing matters.
Lord Whitty
I think that the Minister has been very clear in her latest remarks, but the point that I would make is that both the legal name and what eventually becomes the brand name have to convey the scope of the body. I do not mind when it happens or whether it is done by primary or secondary legislation—although I would prefer primary legislation—but the legal name at the end of this process must reflect something broader than “Passengers’ Council”. I am happy to leave it to the Minister and her colleagues to work their way through what is, as my noble friend said, quite a long legislative programme before we get to that point—if necessary, leaving it to secondary legislation, but it would be nicer if it were in the Bill. It needs a comprehensive legal title. The Government must then go on to ask the organisation to find out what the best public name—brand name—would be.
If I may reminisce slightly, I was the chair of a quango which had to find a new name—unfortunately, the Government have abolished it now, but there we go. It was the old National Consumer Council, transformed by the 2006 Act. At the first meeting of the governing body, we had to decide what the new name would be. Two possibilities were advocated by my colleagues following a presentation by one of these branding companies—in those days, quangos were allowed to spend a certain amount of money. It came down to whether it should be called “Consumer Matters”—double entendre—or Consumer Focus. As chair, I said that I not like either name. “Consumer Matters” sounded as though it was an entry in a filing system and Consumer Focus sounded like a Lib Dem leaflet. However, noble Lords opposite will be pleased to hear that the majority of my board went for Consumer Focus. We went through a proper branding exercise. It is important to leave that aspect of it to the newly enlarged council.
At the end of this process, I would like the legal name to indicate the real scope and Passengers’ Council does not do that. However, for the moment I withdraw the amendment.
Lord Berkeley
“(1) In all Acts and secondary legislation the Passengers’ Council is renamed the “Transport Infrastructure and Services Council”.
(2) In this section “relevant activities” mean, in relation to specific highways, activities to—
(a) protect and promote the interests of users of such highways,(b) protect and promote the interests of communities impacted upon by such highways, and(c) promote the need to reduce impacts of such highways on the natural and historic environment.(2A) In this section, consideration of users of highways shall include consideration of—
(a) potential users, who, in the absence of safe infrastructure or convenient services, do not currently use or cross over such highways, (b) the potential for modal shift to more sustainable modes of transport, and(c) the potential to reduce the need to travel, including by making more efficient use of vehicles, such as through better logistics, and through better land use and travel planning along such highways.(2B) The Transport Infrastructure and Services Council must carry out relevant activities in relation to highways for which a strategic highways company is the highway authority.
(2C) Those activities may include investigating, publishing reports or giving advice to the Secretary of State on—
(a) how a strategic highways company’s exercise of its functions or achievement of its objectives under a Road Investment Strategy is relevant to the interests listed in subsection (2A),(b) any other matters which the Council considers to be of use in relation to relevant activities.”
Lord Berkeley
My Lords, in moving Amendment 42, I shall also speak to some of the other amendments in this group. The intention of this group is to discuss in more detail the role of the watchdog, what it might do, who it might look after and some of its objectives. We discussed this in outline during Second Reading.
We should start with Amendment 51, because that defines who the users of this road network are. One of these days I shall start putting pedestrians first, then cyclists and then motor vehicles to make people realise it is not just for fast cars. However, as other noble Lords have mentioned, there are also horseriders and perhaps in the future Segway users and all kinds of things. The monitor—Passengers’ Council or whatever we call it—should look after the interests of all those.
As to Amendment 42, it would be useful to expand some of the relevant activities to take into account the needs of not only the users but the communities that are affected by roads, and also to put in this objective to reduce their impact. There is then the issue of looking into modal shift, which I make no apology for coming back to again. Reducing the need for travel is something very few Governments ever look at. They currently look separately at forecasts for road, for rail and for air. Cycling does not really come into it, and neither does the thought of looking into the possibility of modal shift and what would be needed for that to be achieved. The end of proposed new subsection (2A)(c) covers this with reference to,
“land use and travel planning along such highways”.
Passengers’ Council produces some excellent data and reports on transport trends in the railway industry. I am sure that it would do the same thing on highways if it gets the chance to do so. It would be nice to think that some of its reports could then be used by either the Office of Rail Regulation or the Secretary of State in looking at the performance of the companies and whether they get fined, as we debated earlier. Again, it would be much better if it were done by the ORR.
This watchdog has an enormously important role to play. The Minister has already indicated that its role would be completely different from those of the organisations looking after the interests of current users, such as the British Horse Society, the Freight Transport Association, the Road Haulage Association, the Cyclists Touring Club, the pedestrians’ association, the AA and the RAC. I have probably forgotten a few and the Minister will not want a list anyway. However, I would like her to confirm that these organisations will not see their roles changing very much. The passenger watchdog should produce something that is more strategic and detailed in its analysis while also looking at some of the wider benefits and disbenefits which I have tried to outline in the amendment. I beg to move.
Lord Judd
My Lords, I warmly support what my noble friend has said. I should say at the outset of our deliberations that I am sorry that I was not able to be here for the first meeting. I should also underline that I am a strong supporter of the CPRE and that I am involved in the capacity of honorary officer in a number of environmental agencies, not least those dealing with our national parks. All of that is relevant.
We should go back to the mainstream of the argument that we had on the previous amendment. The roads should serve the community. We are a closely knit island with a lot of complex interests to reconcile. Direct impacts and consequences can arise from a new piece of legislation which may quickly become unintended consequences. It is therefore terribly important to get right, at the beginning of a Bill, the approach and ground rules for any strategy that is to be established. An example is the realm of public health. We keep saying that we want more people to take up cycling and walking. It is perfectly clear to me that the role of any regulation in this sphere should be to ensure that not only are those objectives reconcilable with other policies in the public realm, but that they can be furthered.
But then there are all the people who do not use the roads because they are intimidated by and frightened of them. Their interests also need to be looked at very carefully. There are communities which have to contend with increased noise on roads arising from more feed-ins and feed-outs from strategic routes. We need to have some imagination and clarity of thinking right at this early stage about the wider social purposes which the regulator should be looking at in the fulfilment of the Government’s policy. At the moment, looking at the responsibilities of Government and quite apart from their aspirations as expressed for, as I have just said, public health, there is a conflict. We keep narrowing the scope down to, in effect, passengers and drivers, when the much wider community is involved. It is therefore sensible to make this clear at the outset in the tasks set out for regulation.
Lord Davies of Oldham
My Lords, we have major doubts about whether the Passengers’ Council will provide an adequate forum for the public response, so we want to take the opportunity in this new legislation of not just renaming the body, but of widening its perspective. I have tabled two amendments which seek to ensure that the interests of cyclists and pedestrians would form part of the perspective of the strategic highways company, and that the needs of local communities are taken fully on board. Major road schemes clearly have an impact on all communities. However, both of my amendments can more than safely be withdrawn because they are overwhelmed by the more extensive and detailed series of amendments which have been put down by my noble friend Lord Berkeley, and typically my noble friend Lord Judd has backed the winning side. I will certainly not move my amendments when we come to them, and I have a great deal of sympathy with what my noble friend Lord Berkeley has said.
Lord Jenkin of Roding
My Lords, I listened to the noble Lord, Lord Berkeley, with great interest, and I have been pondering for a few minutes whether in fact he is right. My mind goes back, if I am allowed to reminisce, to when the then Government were planning the motorway network. At one stage this involved taking the M11 motorway from London up towards Cambridge and then to join the A14, and it went slap bang through the middle of my constituency, Wanstead and Woodford. Initially my constituents were pretty horrified by this, as indeed was I. This urban area was proposed to have, in effect, a four-lane dual carriageway going from Hackney Wick towards Epping Forest.
The Minister of Transport at the time was my noble friend—as he now is—Lord Fowler, and his junior Minister was my right honourable friend Kenneth Clarke. I persuaded the Minister that they should come and spend a morning with me in Wanstead, which was the part of my constituency that would be most dramatically affected. They came to the perfectly wise conclusion that that part of the road should go underground. It would involve a cut-and-cover operation, which eventually happened.
Once that announcement had been made, though, overwhelmingly my constituents said, “Well then, get on with it”. They did not want constant delay. However, and this is the point that I want to make to the noble Lord, Lord Judd, it was held up for nearly eight years by a series of demonstrations supported by precisely the environmental bodies that he mentioned, and others. Some of them were quite clearly anarchists. They rechristened the area of Wanstead Green “Wanstonia” and declared independence, and all that sort of nonsense. The courts became bogged down with a series of cases to try to get them out, which held up the process for years to the increasing fury of my constituents, virtually none of whom took part in those demonstrations. The demonstrators were all from outside and were the kind of people who live for demonstrating. That is what makes them tick; it is their new religion. I can tell the Committee that that caused enormous irritation in the area. Now, of course, if anyone drives up to Cambridge by that route they go through the cut-and-cover and it is entirely sensible, and people say, “But why couldn’t it be done before?”.
I question whether it is possible that the monitor should regard, as it were, the CPRE and bodies like that as within its remit. It is monitoring the transport system. It is for the planning system to determine whether or not the environmental consequences are acceptable. I do not believe that the monitor should have anything to do with it. There are already enough obstacles. We are debating in another Bill the question of judicial review, because that can also be a great obstacle to getting a transport system properly up and running because of local nimbys and so on. When one is dealing with road and rail—look at what is already happening with HS2—there are enough obstacles in the way already. What we should be arguing about here, in an infrastructure Bill, is ensuring that what we want to produce actually happens without undue delay.
I hope that we shall never see anything again remotely like what happened in my constituency and indeed in other areas around the country, as plenty of former Members of Parliament will be able to testify. That has been one of the biggest obstacles to getting a modern road and rail network, and it does not seem to me that the monitor can have anything to do with that at all.
Lord Judd
My Lords, if this Committee is doing nothing else, it is giving us a wonderful opportunity to hear a series of very real, illustrative and important anecdotes from the noble Lord about what actually happens and what happened in his direct experience. I find that valuable in our deliberations. However, I am a bit puzzled as to why he thinks that he and I are on different sides of the fence; we are not. Of course the monitor’s job is not to make decisions in this field. A monitor’s job is to ensure that the procedures have been properly followed. All that I am arguing is that the monitor should therefore have a responsibility in the Bill to ensure that the consultations have been as wide as they should have been.
The noble Lord gave a beautiful example of how, by using good sense, imagination and contacts, he was able to persuade the relevant Ministers to come to see the situation and why his constituents felt so strongly. Unless I misheard him, he went on to say that the Ministers agreed that that particular section of road should be put underground. All I want is a situation in which the monitor has a responsibility to ensure that that kind of consultation has taken place and that it is not just up to the personal relationships and contacts of certain Members of Parliament and certain Ministers.
Lord Jenkin of Roding
I do not want to prolong this, but is that not the function of the planning system rather than of a body that is monitoring the strategic highways company and the railways? There is a separate planning system, which is going through Parliament at the moment with regards to HS2 and which has nothing whatever to do with the Office of Rail Regulation. It is a planning system and I think that these two things should be kept entirely separate.
Lord Davies of Oldham
My Lords, I, too, have memories of motorways. The M25 went around the north of the constituency that I represented, in Enfield. The only tunnel constructed on the M25 was there, in order to protect the interests of my constituents. Subsequently there was an additional tunnel in order to protect a great deal of Epping Forest, which I also greatly supported. However, our negotiations and discussions were nothing to do with planning authorities; we had to deal with the Department of Transport and the excessive, terrifying costs of what is involved in tunnelling. That is why the M25 is a circular route 125 miles long but has only one tunnel, which is constructed as far as the immediate neighbourhood’s interests are concerned. It was nothing to do with planning; the Department of Transport had to answer.
Lord Berkeley
My Lords, I do not want to prolong this discussion for much longer, but some of us, in setting out a role for the Passengers’ Council, are trying to ensure that it produces the right data and looks at alternative options before the company goes ahead and develops new roads. With regard to the planning system, I do not believe that the Passengers’ Council should have a role at all, but I believe that it has a role in producing the data to justify—or not—what gets done and to look at alternatives.
Lord Whitty
My Lords, I have tabled two amendments but I want to comment briefly on what has been said. I find myself slightly between the noble Lord, Lord Jenkin, and my noble friend Lord Judd. As Roads Minister for three and a half years in the last days of Swampy, I know what the noble Lord, Lord Jenkin, is talking about. We have to separate out the planning process from the monitoring of the operational process. On the other hand, I agree with my noble friend Lord Judd that when we are talking about users of the road network, we are talking not only about the people who that day happen to be driving a car or a lorry on that network, but also about all the people who depend on that network or whose premises and lives are affected by it. We therefore need to interpret “road user” in the broadest possible sense. Without straying into the planning system, I think that some of what my noble friend said should be reflected in the Bill.
My two amendments deal with different issues. Amendment 47 refers to the setting up a complaints system. One of the most effective jobs of Passenger Focus in relation to rail, and latterly buses, has been in dealing with a complaints system. Its effort has pushed the responsibility for dealing with complaints back on the railway and bus companies. It is there to pick up what those companies failed to do in terms of complaints. Similarly, we have never had the equivalent system in relation to strategic roads. It is important that a complaints system is seen as one of the responsibilities of whatever we eventually call the Passengers’ Council.
My second amendment is a probing amendment, which I will not press. It relates to Clause 8(6), which refers to a relationship between the Passengers’ Council and local authority rights. It says that the new consumer body could have responsibility for matters relating to local authority roads if the local authority asks it to. That is a bit cock-eyed. Either we make it responsible for complaints about all local authority roads, which I do not really want to do, although my amendment would have that effect, or we leave it as the user body for the strategic road network, which would be tidier. After all, complaints about roads for which the local authority is responsible need to be dealt with largely within the local authority context. There is plenty of scope for complaints to local councils about local authority roads.
If some local authorities want the Passengers’ Council to be there for consumers but others do not, there will be confusion. My local road, the A30, in 10 miles goes through Wiltshire, Dorset and Somerset. If only one of those councils agrees that the Passengers’ Council should be the consumer body, we would have to pinpoint exactly where the complaint arose—over a traffic jam, police incident, or whatever—and we would end up with a patchwork of bodies. Some councils would say that the Passengers’ Council was responsible and would shove off all complaints to it, while others would continue to deal with the complaints in their highways departments. Subsection (6) extends the Passengers’ Council’s role into local authority roads, which may be a step too far. My amendment should probably have been worded differently, but I want to hear what the Minister says in her summing up.
Baroness Kramer
My Lords, in this set of amendments we are dealing with the watchdog. We will come on to the monitor in the following clause, so I shall try to narrow what I say to the watchdog role and the body that legally today is known as the Passengers’ Council, or whatever name it chooses for the future.
I think that we have made it absolutely clear that the Passengers’ Council, or “Road User Focus”, or whatever name it chooses as its trading name, will deal with the role identified in the Bill. It anticipates having to represent and to be a voice for that very wide range of users that we have described in the past few minutes of our discussion. I believe that the noble Lord, Lord Judd, and others were suggesting that we apply it to non-users and to surrounding communities. We are then back in the territory where it is hard for a group to be a voice for users. That is necessary in the kind of structure that we have here with the SHC. In other parts of the Bill, it is clear that there is an important role for the SHC itself to be working closely with local authorities. That was reinforced in some of the agreements that have been drawn up and were announced on Monday between the Highways Agency and local enterprise partnerships, which will carry over into the role of the SHC. We have all kinds of mechanisms, including a great deal of detail, about how environmental issues will be addressed and how the SHC will relate to local authorities. There will undoubtedly be implications that come out of the RIS.
Therefore, I see the role of watchdog as being very much a voice for the road user. As I read the clauses here, if there were issues such as modal shift, I think that that would be an area that the Passengers’ Council, in whatever guise it has for these services, could, if it chose to do so, explore and advise on, but very much from the perspective of the road user.
The noble Lord, Lord Whitty, asked about complaints. At present, complaints go to the Highways Agency, and our concept is that that will carry on and pass through to the new SHC. When a body acts as the SHC will be doing, it is important that complaints go directly to it. It must hear those complaints, it must be aware of them and it must take them on board. It must not be allowed, as it were, to offload that responsibility to a watchdog. “Road User Focus”, or whatever it is called, will be able to see through to those complaints so that it can access the data and use them in its work. However, I very much want to see the complaints going directly to the SHC because that will be one of the most important ways of ensuring that it provides the service that is needed.
Lord Whitty
My Lords, perhaps I may just clarify that. It will certainly be the company’s first responsibility to deal with complaints. In the case of the railways, you complain to South West Trains and, if it fails to deal with your complaint effectively, you can complain to Passenger Focus. It is the equivalent of that that I am looking for.
Baroness Kramer
My understanding is that “Road User Focus” will be able to see right through to the complaints to see what they are and whether they are being appropriately handled. At the moment, complaints are not a large issue for the Highways Agency. Of all the letters sent to it last year—I do not have the total number, unfortunately—only 16 needed outside help in resolving them, which represented about 2% of the letters received. So it has a good complaints system in place and a good track record on resolution, and that will pass over to the new company. However, as I said, it is important that the watchdog should be able to see all the way through that process. I am sure that it will choose how it engages with that—it is not constrained by the language in Clause 8.
Lord Berkeley
My Lords, I wonder whether I may probe the Minister a bit more. With the railways, on most trains there is a notice in each coach that says that if you do not like what is going on and want to make a complaint, first, you contact the train operator and, if that does not work, you can go to the Rail Passengers’ Council. The users of the railway service read this every day and the Rail Passengers’ Council will pass a complaint on to Network Rail if that is appropriate. On the highways, you are sitting in your car or your truck or on your cycle and there are not the same opportunities for knowing whom to complain to. Therefore, to some extent, it is not surprising that the number of complaints is probably a great deal lower than it is for the railways, but the principle needs to be there, which is why the comments of my noble friend Lord Whitty are so important. If you do not get the right answer from the SHC or the passenger train operator, you need to have an independent body to appeal to who you know will guarantee to give you a decent answer within a reasonable time.
Lord Judd
My Lords, just as the noble Lord, Lord Jenkin, was quite right to emphasise the importance of the functions that are attached to a particular terminology—I do not dissent from his argument at all—it is also important to recognise that we are dealing with a watchdog here, something that the Minister has herself made plain. We are debating what the responsibilities of that watchdog should be and on whose behalf it should be working. I am convinced that I will go to my grave saying that one of the things that has gone wrong in the public perception of successive Governments is that in road policy you can somehow separate out the interests of drivers and passengers from the interests of the communities through which they are driving. Of course, when the planners have had their say and so on, the road will be built. One of the things the watchdog can do is say, “Hang on a moment. What is happening to the people who live here as distinct from the people who will drive through?”. I think that that is an imaginative concept which we need to take hold of, and there is an opportunity in this new legislation to acknowledge the interests that go wider than just those of drivers and passengers. I have a concept of cohesive society and community, not of the interests of one group of people prevailing willy-nilly over the interests of another group.
Baroness Kramer
I would say first to the noble Lord, Lord Judd, that the watchdog is just one part of the total family of entities here, which include the monitor, the Secretary of State and the SHC. It is therefore right that it should have a very specific role, which is to represent the road user. I have underscored over and again that it is not the car driver and the passenger but the whole body of people who we understand as making up “road users”. That is important. I rather object to lists because they tend to miss various categories of road user, which would be neither fair nor, frankly, right. That is why I prefer the broader term of “road user”, and I repeat that it is not meant to be confined to the driver and the passenger; it embraces a much broader group.
Secondly, we must make sure that the watchdog has a manageable job of work that it can do effectively. It is meant to be a voice for road users. If we give it a much wider breadth of responsibility for local communities and other kinds of objectives that we want to achieve, it will struggle to provide the voice that is needed to ensure that the road user is heard. I think we can say that historically many road users do not feel that they have had a voice, and they want to make sure that it is there for them in the future because that is appropriate.
Let us look at the equivalent on the rail side of transport. We do not ask Passenger Focus to explore the needs of communities through which our railways pass. The body is focused very much on the needs of the passenger, and that is why it delivers. I therefore disagree with the noble Lord, Lord Davies of Oldham. Passenger Focus is a highly respected body that is considered to be doing an incredibly good job and is very effective. We want to try to replicate that effectiveness over on the road side of transport.
The issues raised by the noble Lord, Lord Judd, about the relationship between roads and communities, as well as the issues raised by others about roads and the environment, are entirely legitimate and important, but they should be handled using strategies other than through the particular role of the watchdog. It is important to make sure that the road user defines the tasks of the watchdog. For those reasons, I resist this proposal.
Lord Berkeley
My Lords, I am grateful to all noble Lords who have taken part in this very interesting debate. We have covered a wide range of possible roles for the watchdog. I shall read what everyone has said and we may come back to this issue on Report. In the mean time, I beg leave to withdraw the amendment.
Lord Whitty
Lord Whitty
My Lords, I shall speak also to Amendment 45. Amendment 43 deals with the role of the Passengers’ Council—however in future designated—and the fact that it had initially dealt solely with railways. There was once a proposal to extend it to air passenger transport, which was dropped, but it has been extended to buses. It has developed expertise in those two areas of public transport. It is now dealing with a much wider user group, even if the Minister is reluctant to go down the route of widening it to the whole community, as proposed by my noble friend Lord Judd. It will have to develop capacity to deal with a whole different user group, and that needs to be reflected here. It is also important that the Government commit to finding a way to finance that extension.
Unusually, when the railways were privatised, the taxpayer paid for the user representative body. That was also extended when its remit was extended to buses. In other industries, consumer bodies have an allocation via the licence fee or otherwise. I do not mind which way the Government fund it, but it seems to me important that it is required in legislation, and that it is done over a reasonably lengthy period—in other words, that the new, broader organisation does not have to wait each year to know what its allocation will be next year. There will need to be an allocation at least every three years either by requiring a payment from the licence fee or whatever else, which would be the equivalent of the situation in water or in energy, or by making an allocation out of general taxation. That requirement should be in the Bill, as should be the Government’s preferred method of funding. That will give the conceived stability to the representatives of road users. I beg to move.
Baroness Kramer
My Lords, the noble Lord, Lord Whitty, is absolutely right that Passenger Focus also works on buses, coaches and trams. In my enthusiasm I think I said it focuses on rail, but of course all those passengers are part of its work. However, I point out that all those activities are funded in non-specific terms.
Passenger Focus is given sufficient funds to discharge all its responsibilities and we expect it to do exactly the same for roads. It is not usual for government to make commitments of this kind in statute and we struggle to see why this should be a special case. To assure your Lordships in more practical terms, officials in the department are already making arrangements for a long-term funding settlement. I would expect sufficient funds to be made available for “Road User Focus” to represent road users of all types effectively.
With the assurance that the same kind of approach would be used as we already use for Passenger Focus and that it would be funded by the Government, not by the industry, I ask the noble Lord, Lord Whitty, to withdraw the amendment.
Lord Whitty
My Lords, at least we have on the record the assurance that it will be funded—and, one hopes, on a forward-looking basis. I will consider the implications of that but, for the moment, I beg leave to withdraw the amendment.
Lord Berkeley
“Network Rail.”
Lord Berkeley
My Lords, I shall speak also to Amendment 52A. This is to do with freedom of information. In Clause 8(8), I see that the Passengers’ Council is going to be subject to the Freedom of Information Act. I did not know whether or not it was at the moment but presumably it is not, otherwise that wording would not be there. I thought that it would be interesting to explore whether the infrastructure operators of rail and road would also be subject to FoI. Local authority roads must be subject to FoI at the moment because they are local authorities, as, I assume, is the Highways Agency, so it would be logical for the SHC to be in the same position. I believe that the Minister said that Network Rail would be subject to FoI after 1 September when it became fully owned by the Government. I personally think that it should be, for tidiness and transparency reasons, but it would be good to hear the Minister’s comments on this to see whether I have misunderstood anything. I beg to move.
Baroness Kramer
My Lords, I thank the noble Lord, Lord Berkeley. This is an opportunity to clarify some points on the subject of freedom of information. As he will know, on 17 December 2013 the ONS announced that under new EU statistical rules, which come into force on 1 September 2014, Network Rail will be reclassified to the public sector. The Department for Transport is working with Network Rail to decide on the details of how Network Rail will operate in the public sector. A framework agreement explaining these decisions will be published before 1 December—that is, well before the Report stage of the Bill.
The framework will address a number of issues, which are likely to include our intended approach to the Freedom of Information Act. It has been pointed out to me that there is a strong preference to announce the whole agreement rather than drip-feed announcements around individual measures, so all announcements associated with that will be part of a single package. As I say, they will come out on 1 September, so the Committee will know exactly what the position is on FoI before we come to Report. I confirm that the Passengers’ Council is not currently subject to the FoI Act, and we are correcting that by adding it to the Bill. The Office of Rail Regulation, however, has always been subject to the FoI Act. Following the publication of the framework agreement, which makes comments on this, if the Committee feels that its concerns have not been addressed then it may wish to return to this issue, but obviously there will be clarity around it before 1 September.
The strategic highways companies will be public authorities for the purposes of the Freedom of Information Act 2000 by virtue of being companies wholly owned by the Secretary of State. Public authorities are subject to the freedom of information duties under Section 1 of that Act. I argue that in the Government’s view the amendment is not needed, and I ask the noble Lord to withdraw it.
Lord Berkeley
I am grateful to the Minister for that helpful reply. With regard to Network Rail, I think that she said 1 September, rather than 1 December, is the date when the transfer will take place, if I understand it correctly. I am pleased with that clarification and beg leave to withdraw the amendment.
Lord Whitty
“(c) proposing regulations and enforcement powers governing the activities of the Strategic Highways Company”
Lord Whitty
My Lords, I shall speak also to Amendment 58 in this group.
The first amendment is to make clear that the ORR, or whatever we end up calling it, will be a regulator as well as simply a monitor. I said earlier that we needed something equivalent to the ORR, which monitors the rail network, to be applied to the road system. There are areas of a strategic road system that need to be regulated. They include safety records—I declare my interest as chair of the Road Safety Foundation. They also include environmental performance in relation to all sorts of things such as carbon emissions, air pollution, water runoff and so on. Someone needs to be regulating specifically the strategic network, which is seen increasingly as a system. It has hitherto been subject to either general regulation or specific regulation by the Department for Transport.
It is important that the new body, as it extends its role into roads, is seen to have as powerful a leverage in that area as the ORR does in rail, to achieve the excellent levels of safety that we have achieved in the railway system in recent years and to ensure that the strategic network continues to make substantial improvements in the safety record on the highways network. If the Government maintain their line that the monitor is not a regulator, then it is not just a question of symmetry between the different modes but a question of the effectiveness of the Government’s role in relation to the strategic transportation system within England. The ORR-plus needs to be given that clear role.
As to my second amendment, I suspect that I shall get from the Minister the same answer that I received in relation to the Passengers’ Council’s funding. It is important, though, to recognise that this situation is unusual. In energy, water and telecoms the money comes from the regulated industry. In her response on the issue of funding for the Passengers’ Council-plus, the Minister said that it would come from the Government. I assume that I am going to get the same answer in relation to the regulator/monitor.
It is important for the Government to recognise that this is unusual, and someone sitting in the Treasury probably realises that. On reflection, I still think that this should probably be a matter for the user organisation, the watchdog, if such a provision were to be written into the legislation. Some future Chancellor, of whatever party, may ask: “Why are we, the taxpayer, paying for this in relation to transport, when in all the other regulated sectors it is the industry that pays for it?”. In the great scheme of things, the Treasury, wearing another hat, regards all this as taxation because it is a mandated levy on the industry, but in terms of the impact on the general expenditure of the Government it is in a different category. It would therefore be useful not only to have on the record the Minister saying that that is how this body will be funded but, for added certainty, to put something like that in the Bill. I beg to move.
Lord Davies of Oldham
My Lords, I have amendments grouped with those of my noble friend Lord Whitty, and I agree with a great deal of what he has just said.
Amendment 54 is my chief amendment and is designed to ensure that the monitor focuses not simply on the financial cost of the strategic highways company’s activities—that is, the bill to the taxpayer for the SHC—but on its wider non-monetisation impacts such as landscape, biodiversity and social distribution. We need breadth to the monitor’s analysis of the performance of the company. The text is based on guidance in the Treasury Green Book on appraisal, so I am merely suggesting that where the Treasury thinks that the proper appraisal of an activity should include these features, I want them to be included when considering the SHC.
The other amendment in the group is a minor one about removing all exemptions in documents. We do not see why these powers should be restricted in the documents that are made available, but that is a relatively minor aspect. Amendment 54, however, is of considerable import.
Lord Berkeley
My Lords, I have tabled two amendments in this group, but I shall speak to the whole group because all the amendments consider the role of the monitor—the Office of Rail Regulation or whatever it may be. I get the feeling that Ministers are rejecting any comment that might enable the SHC, or the government policy that surrounds it, to climb out of its roads silo. There is probably a rail silo because that is the way the railways work. There is also clearly a road silo, so what these and several previous amendments are trying to achieve is the ability to look at cross-modal choice and to consider the issue of sustainability, which seems to be forgotten about for much of the time. The ORR would have the opportunity and the capability to look at the alternatives and it would be able to consider the costs, which of course it is meant to be monitoring.
Monitoring something is not quite the same as pushing for greater efficiencies, a point I made when speaking to a series of amendments that we considered last Thursday. What the ORR has achieved with Network Rail is a reduction in its costs by 60%. If the new construction and maintenance costs of the highways were to be reduced by 60% in a period of 10 years, either we would have quite a few more roads that were in better condition or the Treasury would be very happy—or both. It is an opportunity that will be missed unless the regulator is given more powers. That is the point of Amendment 57. The compromise would be that the ORR would report to the Secretary of State within three years with ideas on how it might do its job properly.
There are several other issues. My noble friend Lord Whitty mentioned safety. During a Question for Oral Answer earlier today a noble Lord talked about road safety and the issue of HGVs. Safety on the roads may have got better, but it is still disastrous compared with safety rates on the railways. It is not just about people being run over; it covers a multitude of different issues for which I believe the ORR could come up with some new ideas. I have separated out two amendments related to level crossings so that they will be considered later, though I am not sure when. However, level crossings are a major safety issue for the railways. There is really no reason that I can see for not putting all these together under one safety rule—based, in my book, on the Health and Safety at Work etc. Act. I know that that was being debated in the Deregulation Bill yesterday and some rather distressing issues were brought to the fore.
Safety is one thing but pollution is another. Recently we were told that the pollution measurements in Oxford Street are three times the EU limits. There would not be any harm if the ORR were able to look at that as well.
Finally, on funding, the Office of Rail Regulation is funded by the industry: 50% by Network Rail and 50% by the train operators. I cannot see why the ORR’s monitoring of road activities should not be funded partly by the company running the infrastructure and partly by the users. That would be a good balance. There is absolutely no reason why that should not happen except, I suppose, that Ministers would be frightened of the road lobby. However, there would be a consistency between road and rail, and there is an opportunity here for at least getting the funding for the ORR on a consistent basis between the two.
Viscount Hanworth (Lab)
My Lords, I wish to lend strong support to Amendment 56 in the name of my noble friend Lord Berkeley. In the phraseology of the Labour Party, paragraph (b) in his amendment contains an injunction to think in a joined-up manner and to envisage road and rail as parts of an integrated transport system.
The perspectives from which our party views matters of transport policy differ greatly from those of the Conservatives. We envisage an integrated system. The Conservatives, by contrast, tend to place road and rail in quite different categories. The railways were regarded by them as a prime example of a loss-making nationalised industry that required to be privatised. The roads have been regarded as a means whereby our citizens have been able to exercise a fundamental liberty to come and go as they please throughout the land, and for this the road users have been heavily subsidised.
The consequence of this dichotomy—or should I call it a schism?—has been a failure to envisage how these different modes of transport might interact or have a clear idea of their relative advantages. For example, the damage inflicted on the roads by HGVs has not been properly taken into account, and therefore the benefits of transferring road freight to the rails have been largely ignored.
We have before us an Infrastructure Bill that is liable to make joined-up thinking in respect of our transport system even more difficult to achieve. By putting the strategic highways company at arm’s length from the ministry, it will be out of mind and out of sight as far as the Secretary of State is concerned. The only respect in which the Bill proposes to join the roads with the rails is by asking the Office of Rail Regulation to monitor the highways company and by giving the oversight of road users’ interests to the Passengers’ Council, which is ostensibly a body that was intended to serve the interests of rail passengers.
Lord Judd (Lab)
My Lords, frankly, I am not very optimistic about the messages that are being put forward from this side of the Committee being taken very seriously by the Minister because she seems to be completely preoccupied with drivers and passengers as the paramount interests at which we should be looking.
If one were looking at the United Kingdom from another galaxy, the first thing that would be said is, “My God, look at the size of the population of that country. Look at the different, complex dimensions to that society. Look at all the issues that arise, the different groups of real communities and real industry and commerce. How can all that be reconciled?”. From that standpoint, where is the evidence of a strategic approach? This talk about being in silos is exactly what frightens me. It is a mad way to look to our interests as an integrated, complex, interdependent nation; it is crazy. We should be looking at what strategies are required, what the interests of the community are as a whole and how to bring them together to maximum effect. That must mean a closely integrated approach towards our railway and road development—but we just do not have that. Successive generations at the Ministry of Transport and the Department for Transport have completely failed to grasp that it is just not in the interests of the British people to go on operating in this way; we have to bring it all more closely and constructively together. From that standpoint, I applaud the amendment.
Baroness Kramer
My Lords, I thank your Lordships for a wide range of amendments that address the monitor at the Office of Rail Regulation. If I understand the comments that I have heard correctly, I think there is great respect for the body and the work it has done on rail; obviously, we intend that the same expertise and focus should now apply to the road infrastructure, the strategic highways company.
From the Government’s perspective, there is tremendous value to be had in subjecting the costs and performance of the new SHC to serious external scrutiny: that is what the monitor is meant to provide. At last week’s sitting, the noble Lord, Lord Whitty, mentioned some of the challenges that he faced in his time as a Transport Minister in keeping down the costs of road schemes, and the noble Lord, Lord Berkeley, has referred to the success, in which the ORR has played a part, in bringing down the cost of rail schemes. We recognise that this is an ongoing challenge that the Government have to face. Looking at what the SHC will do and comparing it against past performance or international benchmarks will be important. The monitor exists to provide that information. It has the power to require the company to provide data on its performance; it will have the capacity to maximise performance and see where the company has excelled and where it has fallen short; and the Secretary of State will be obliged to listen to what it says.
We are also absolutely determined to ensure that the monitor is a transparent organisation, so its advice will not be quiet, secret reports passed to the Secretary of State. We are clear that publication will be the norm for the work of the monitor. The public have a right to see what the monitor is saying about the performance of the company.
The questions today clearly go to how far the monitor’s role should extend. Before I go into the detail of specific amendments, let me address some points of principle. I see the obvious attraction to saying that in its work on roads, the ORR should match the role that it discharges on railways, but there are such fundamental differences between the two systems that I think that it is hard to continue that argument in depth. Regulation of the railway means regulating the track, the rolling stock and the operator. On roads, in effect, only the equivalent of the track will be covered. The monitor will not be regulating HGVs, cars or drivers, so those roles remain with the Secretary of State. It is as though it will have just one part of the range of tasks that the ORR has in dealing with the railway. On the railways, there are paying customers; on the roads, there are not. Yes, people pay vehicle duty and, obviously, fuel tax, but that money is direct to the Treasury; it is not a dedicated amount of money that goes through some direct channel to the SHC.
That means that the railways have a complex funding system that has to be orchestrated by an independent, impartial body. Roads are funded almost entirely by the Government out of general taxation. It seems almost impossible to apply the same system to roads and rail. If we did so, we would end up with a great deal of confusion rather than simplification and effectiveness.
Lord Berkeley
The Minister is absolutely right that there are differences, but a specific role of the ORR—its roles are specific; they do not quite have a barrier around them, but it is close to that—is to monitor the costs and efficiencies of Network Rail, which is the infrastructure manager, and then to fine it if it does not achieve its targets, as we heard last week. The ORR does things on capacity, too. When it comes to running the trains, passenger trains are run by the Department for Transport or are franchised out, while freight is independent, as we all know. However, when it comes to infrastructure, there are great similarities. There is the civil engineering of new build both on railways and on roads. On the railways, the ORR has a role of seeing whether the embankments stay up or the bridges fall down—one hopes that they do not. A similar thing could happen with the Highways Agency network. On the railways, the costs are to do with the quality of the track; on the roads, they could be to do with the quality of the road surface, which is just as important. There is also the question of the time during which infrastructure is closed for maintenance. Network Rail produces figures, which the regulator sometimes complains about. There are similar problems on some of the motorways when they are closed for maintenance. On the straight issue of infrastructure, therefore—if we leave out the train operations and everything else—I think that there are enormous similarities. I hope that the noble Baroness agrees with that.
Baroness Kramer
Clearly there are similarities, which is one reason why we turned to the ORR—it has a lot of expertise that it would be able to translate to the road side. However, I think that I have made it absolutely clear that the key benefit that the ORR will bring will be the ability to subject to real scrutiny the costs and the performance of the new company. That includes the asset management issues that the noble Lord has described. Its role will be to do that work and then to use it to advise the Secretary of State.
We are choosing that route because the Secretary of State remains at the heart of the system, as the Government are in effect providing all the funding. We think that that makes a fundamental difference in finding the appropriate structure. As I said in response to earlier amendments, those who have expertise in regulation consistently stress to us that the enforcement of a performance regime goes hand in hand with the ability to set that regime. That is a responsibility that we are putting on the Secretary of State, both because of the funding and because of the role that he plays in setting the road investment strategy. Since the policy and the RIS will be the Secretary of State’s and since he is providing the funding—pretty much wholly, in this case—we believe that this should be his decision. Therefore, the monitor doing all that work acts, in effect, in an advisory role. That will be a very effective arrangement.
Let me move on to some of the other issues that have been raised, such as whether the ORR should be promoting multimodal choice or increasing links with rail. I would argue that these areas should be part of the Secretary of State’s responsibility and I suspect that we will see them reflected in the RIS when it comes forward. It is at the government level that we are committed to developing a comprehensive transport policy that covers the whole range of issues that we have discussed today. The draft documents on the company’s governance, which we published on 23 June, and the licence condition make it clear that the company must abide by a continued commitment to deliver sustainable development, for example. Again, there is clear language on road safety and clear language on working with communities and local authorities. So the roles will work out in such a way that the Secretary of State develops the policy, and the role of the monitor is to assess the efficiency and performance of the company running the network. That revolves around judging delivery and capacity, principally by reference to the objectives to be achieved by the company, as set out in the RIS. The amendments propose a very different approach, whereby the monitor’s role involves much broader speculation on whether or not the company is following the right policy, whereas I would argue that it is the Government’s responsibility to determine the right policy.
We should give the Government the right to decide what balance of different transport measures is needed. At the very beginning of this debate, the noble Lord, Lord Davies of Oldham, expressed real concern that we would set up a system that would take away flexibility from future Governments, which would be unacceptable in a democratic society. This matter also reads into that issue. It is important for the Government to set transport policy, and I am somewhat concerned with the notion that it would transfer over to the Office of Rail Regulation. That responsibility is appropriately with the Government, and the Government are rightly accountable to Parliament for their decisions on issues such as prioritisation and allocating resources.
I want to strike a note of caution on the efforts of these amendments to link decision-making on roads with that on rail. Cross-modal integration is an important part of a successful transport network, and the thought periodically passes one’s mind that here is the ORR acting as a regulator for one transport mode and a monitor for the other, and whether this is not an opportunity to integrate them. However, there are fundamental differences. I come back to the point that rail has a full system of price regulation. If we think through the consequences of bringing the two closer together, we could end up with the ORR’s road advice having to account for rail but not vice versa. There would be a one-sided thought process on modal thinking. However, forcing the ORR to take account of road matters when making decisions on rail matters would fundamentally change decision-making in the rail regulation regime. We are committed to introducing the new role of the monitor without disrupting the ORR’s existing work. I think that noble Lords would agree that the rail structure is working well. To disrupt that and suddenly force plans such as CP4, CP5 and CP6 to be adjusted to deal with road issues would undermine a lot of the good work that we are trying to do here and, frankly, put all the ORR’s current activities in flux, including the price settlement. I do not think that it is anyone’s intention to make a disruptive change. However, I take on board the overall issue, which is that we need to integrate our transport thinking, but that should happen at the Secretary of State level rather than at the level of the monitor or regulator.
If we are considering increasing the enforcement powers of the monitor, as proposed by the amendment, we end up with many similar questions. The monitor has a valuable role to play in assessing the performance and efficiency of the new company. We expect that to mark a radical improvement in the transparency and accountability of the people running the strategic road network. However, this does not go so far as to give the monitor the responsibility for proposing changes to the legal regime around the company. Again, that is the responsibility of Parliament and the Secretary of State. It does not mean that the monitor cannot take a view on these issues, should it wish to do so, but formally making this a role of the monitor that is equal to that of advising on the RIS seems to go well beyond this point.
Looking at parts of Amendment 56, I should note that we think that the proposal to allow the Secretary of State to issue guidance to the ORR on road matters, mirroring the provisions in the rail sector, has value. At present, we expect the monitor and the Secretary of State to have a fairly detailed working relationship negotiated through other documents—not necessarily on the face of the Bill—which will set out what the monitor is expected to do in day-to-day terms and what is agreed to be a proportionate level of oversight for the new company. However, there are a lot of ways of doing this. It may be, in the light of developments to the Bill, that this is a more appropriate way to set out the relationship between the Secretary of State and the ORR. We will continue to look at that.
Lord Whitty
My Lords, I have found this discussion a little bizarre. Earlier, I felt that my noble friend Lord Hanworth—obviously very unusually for him—exaggerated the difference between the ideologies of the Government and of this side, but in fact, taking what the Minister has just said, he was understating the case. We are looking for a more efficient strategic transport system and the Minister is resisting any degree of integration of the different parts of that system, or even the application of the same criteria to the different parts of that system.
These amendments, and my amendment at the beginning, are about expanding the ORR. She is right to say that Ministers set the policy, but it is also the job of the regulator to ensure that that policy is carried out. Whether you call it a regulator or a monitor, that is its job. If we are looking to have the best outcome at the lowest cost, it is the job of the monitor/regulator to ensure that that is what is being achieved, and to do that you have to look at both modes. As far as possible, you have to have the equivalent approach to both modes, given the differences that the Minister rightly outlines in the ways in which the two sides operate.
If, for example, there is a proposition for expenditure on improving the A303—one of my favourite roads, as noble Lords know—and the M5 to the south-west, it is a nonsense to do that in strategic terms without also looking at the capacity of the various routes from London or Bristol to Exeter. If you are looking at the M6, it is daft to look at that without also looking at the west coast main line north of Crewe. If you are looking to make maximum return, from the point of view of a road user, a rail passenger or government expenditure on the rail network, then you ought to be bringing together both aspects. I thought that the Government’s logic in setting up the ORR to cover both aspects was exactly that, but I am now confused.
Baroness Kramer
For clarity, is the noble Lord saying that it is his advice to his party that those decisions should be transferred to the ORR rather than remaining with the Secretary of State and the Government of the day?
Lord Whitty
No, my Lords, I am saying that the policy has to be decided by the Secretary of State. I would query if the Secretary of State always has to be involved in deciding whether or not we are going to put another two miles on a particular road junction because that could probably be devolved further down the line, but leaving that aside, the Secretary of State sets the policy and the Treasury gives him the taxpayers’ contribution to that policy. However, an expanded ORR would see that it was carried out on both the rail side and on the road side, in corridors in both modes, and with interconnections between them at various key points on the strategic network. One of the things that is sadly lacking in our transport system is intermodal transfer. I would actually include access to ports and airports within that too, if we were doing a comprehensive job.
I thought that the whole point of hiving off the Highways Agency and giving responsibility for its regulation to the ORR was a move in that direction, but the Minister seems to be unravelling all that and saying, “We don’t need any of that. That is far too many steps too far. Railways are completely different from roads. We have to consider them in two different frameworks”. I would have thought that in terms of efficiency of return on taxpayers’ contributions, you would have to look at them together. There are different levels of policymaking and delivery, but this is actually an opportunity for increasing the degree of integration and of comprehensiveness, and therefore for increasing the return to the taxpayer and the transport user of expenditure on this area.
Lord Bradshaw
In the letter that the Minister sent me about practice in Europe, she makes reference to Sweden. Rather underlining the points that the noble Lord, Lord Whitty, has just made, reference is made in the letter to a thing called Trafikverket. The Swedish Government set the long-term aims and provide the funding, and Trafikverket is expected to deliver them. The point is that Trafikverket is located in Borlänge in the north of Sweden in the same offices as Banverket, which looks after and regulates the railways in Sweden. They work together to the same criteria.
Lord Whitty
My Lords, perhaps our Swedish colleagues can show us the way, and I bow to the knowledge of the noble Lord, Lord Bradshaw, about the Swedish position. I have read the letter from the noble Baroness about the overseas experience, none of which seems to be entirely congruent with what is being proposed here, but nevertheless it is instructive in this particular instance.
My relatively humble amendment proposes that the two should be considered together, but clearly the Government’s thinking has not yet developed that far and is not reflected to that extent in this Bill. I can only hope that an alternative Government might take it a bit further, if that is the legacy we are bequeathed. For the moment, however, with some regret I will have to accept that the Minister is not going to be persuaded to go down that road, or indeed that railway, tonight.
Lord Whitty
“( ) Where a transfer involves staff or obligations and liabilities to staff, either the Transfer of Undertakings provisions shall apply or equivalent provisions will apply.”
Lord Whitty
I am sure that the Minister will have no difficulty in accepting Amendment 59 because I think she said in reply to one of the first of our amendments that for any transfer of staff out of the Highways Agency, the DfT remit to civil servants would be covered by TUPE or its equivalent. For reassurance to those who are involved in this, it would be jolly useful if that was reflected in the Bill. I say that because there is some anxiety and different situations have applied in a few—not many—as a consequence of the Public Bodies Act 2011. It should be made clear that that will be the criterion. It would provide a reassurance to the staff and their trade union if it were in the Bill. I beg to move.
Baroness Kramer
My Lords, I will resist this being put into the Bill because it will be in the supporting documents. The transfer is an important stage of setting up the strategic highways company. Discussions with staff representatives relating to the transfer of staff have already begun and, subject to the will of Parliament and Royal Assent, it is envisaged that staff will transfer to the new company from 1 April 2015. The Government have already stated that the terms and conditions of employment of those staff who transfer into the company will be protected in accordance with wider Government policy and practice on staff transfers within the public sector through COSOP, under which the Government are expected to apply the principles of TUPE. I can therefore reassure the noble Lord that the terms and conditions of employment of any staff being transferred from the Highways Agency to the new company are protected.
Furthermore, under the Public Service Pensions Act 2013, public service workers who are transferred out of the Civil Service will be able to remain members of the civil service pension scheme. Most Highways Agency staff are in the Principal Civil Service Pension Scheme. I hope that that is sufficient reassurance for noble Lords and I therefore invite the noble Lord, Lord Whitty, to withdraw the amendment.
Lord Whitty
My Lords, I thank the Minister for putting that assurance on the record so clearly. I never quite understand why Ministers resist putting such provisions in a Bill. This is a fairly substantial piece of legislation which includes all sorts of things, but the one thing which is to be omitted is an assurance for those people who will be most directly and immediately affected by the changes to the institutional structure. I regret the continuing resistance by Ministers to setting this out in the Bill, but I accept that that is the way things are at the moment. With the Minister’s assurance, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, if Amendment 61A is agreed, I cannot call Amendment 61AA due to pre-emption.
Amendment 61A
Lord Davies of Oldham
Lord Davies of Oldham
My Lords, we come to a very serious part of the Bill. I doubt whether there is any Minister who does not quail at the thought that the Delegated Powers and Regulatory Reform Committee might offer a smidgen of criticism of a Bill that the Minister is setting out to defend. I see a no more trenchant onslaught of the Bill than the second report of the Delegated Powers and Regulatory Reform Committee. I suppose that as soon as we all saw the report, we ought to have anticipated that there would be government amendments compliant with the requirements of the main recommendations in the report, but we were not certain. That is why we have tabled Amendments 61A and 61B, which are committee recommendations.
The committee expressed itself in very forthright terms indeed. It was quite explicit about the Henry VIII powers in the Bill, and its certain condemnation that that attempt should be successful. There is no need for me to read out the full report. Its indictment is clear enough. It says in its crucial paragraph 4:
“We draw these powers, and the deficiencies in the explanations for them, to the attention of the House. We recommend that, unless the reason for their inclusion and their intended purpose can be fully explained to the satisfaction of the House, the words ‘otherwise modify’ and ‘(whenever passed or made)’ should be omitted from clauses 13(5), 14(2) and 28(2); and that, if the words ‘otherwise modify’ are retained in clause 14 or 28, the same words should be inserted in clause 29(2)(c) so that regulations made under that clause in reliance on them will require the affirmative procedure”.
The committee seeks excision of certain parts of these clauses. In other respects, it is determined that it should be affirmative procedure. That is what my amendment seeks to achieve. I beg to move.
Baroness Kramer
My Lords, most of these amendments concern the comments made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I do not think there is any disagreement on the points that have been raised. The amendments tabled by the noble Lord, Lord Davies and Lord McKenzie, address comments made by the committee by providing that the references to modifying legislation should be removed, leaving the powers in Clauses 13, 14 and 28 as powers to amend, repeal and revoke legislation.
The Government prefer to take a slightly different tack, retaining the power to modify, but adjusting Clause 29 so as to ensure any modification of the application of an act is subject to the same affirmative resolution procedure as applies to the amendment of an Act. As the Select Committee report noted:
“Non-textual modifications of primary legislation are capable of making changes which are no less significant than textual amendments”.
We prefer our approach, simply because it can be preferable, in some circumstances, to modify the application of an Act so as to cover additional circumstances, rather than by making textual amendments. As the power will be subject to the affirmative procedure, Parliament will have the opportunity to scrutinise any use made of the power, which will include consideration of whether a non-textual amendment approach would be inappropriate in the particular circumstances.
The government amendments also address the point raised by the committee regarding future legislation. It provides that repeals, amendments and modifications of primary legislation under these powers can be made only in respect of Acts passed before the end of a Session. I am sure that is much the same as the intention behind the amendment laid by the noble Lords, Lord Davies and Lord McKenzie, which remove the words “whenever passed or made” from the relevant clauses.
Amendment 97, the final amendment in the group, addresses a different point. It adjusts the extent of a provision so as to ensure that not only do Clauses 13 and 14 extend to the whole of the UK, but Clause 15, which defines some of the terms used in Clauses 13 and 14, also does so. It was always our intention that the definitions in Clause 15 should apply to Clauses 13 and 14 in all jurisdictions. This technical amendment makes that slight correction.
I hope noble Lords agree that the government amendments are an appropriate response and will agree to withdraw their similar amendments accordingly.
Lord Davies of Oldham
My Lords, the Government have made a shot at giving a response, but I do not need to point out to the Committee the difference between compliance with what the Delegated Powers and Regulatory Reform Committee suggested and a dependence on affirmative procedure in crucial parts of the legislation. We all know the limitations on affirmative procedure. Of course it is an important dimension that gives a chance for effective reassessment, but it is not the same as getting the statute right. I am not going to press the amendment in Committee, but I am by no means sure that my colleagues in the other place will feel so inhibited. The Government will therefore have to work quite hard to establish the fact that they are not taking advantage of the situation in a way that is to the detriment of parliamentary scrutiny of the legislation we are considering. For the moment, and with some reluctance, I beg leave to withdraw the amendment.
Baroness Kramer
Baroness Kramer
“Powers of the British Transport Police to protect transport infrastructure
(1) In section 100 of the Anti-terrorism, Crime and Security Act 2001 (jurisdiction of transport police)—
(a) at the end of subsection (2)(b) insert “or to prevent damage to property”; and(b) omit subsection (3).(2) In section 172(2) of the Road Traffic Act 1988 (duty to give information as to the identity of driver etc in certain circumstances), in relation to an offence involving a railway crossing, “chief officer of police” includes the Chief Officer of the British Transport Police.”
Lord Faulkner of Worcester (Lab)
My Lords, in moving Amendment 63, I remind the Committee that we in this House have debated the role, jurisdiction and effectiveness of the British Transport Police on a number of occasions over the past decade, and on each occasion the unanimous view has been that it does a remarkably effective job, not just in helping to keep the railways of England, Wales and Scotland safe and free from crime but also in contributing to the policing of our society as a whole. It has been around since the earliest days of the railway. Indeed, the officers employed on the Stockton and Darlington railway in 1826 predate the passing of the Metropolitan Police Act by three years.
The force deploys capabilities similar to Home Office forces in undertaking counterterrorism, firearms, public order, response policing and criminal investigations. It participates in joint operations such as the G8 and the Olympics and in cable theft operations. The force has ACPO officers in command, trains its officers to national standards and has a high degree of interoperability with partner forces.
The situation relating to its jurisdiction is, however, neither straightforward nor satisfactory, and the purpose of my amendment is to put right one or two of those anomalies. I believe that it has the support of the Home Office and a section of the Department for Transport. It certainly has the support of the British Transport Police itself, and I hope that it will have the support of the Minister.
I start with Section 100 of the Anti-terrorism, Crime and Security Act 2001. Subsection (2) states:
“Members of the British Transport Police Force have in any police area the same powers and privileges as constables of the police force for that police area—
(a) in relation to persons whom they suspect on reasonable grounds of having committed, being in the course of committing or being about to commit an offence, or
(b) if they believe on reasonable grounds that they need those powers and privileges in order to save life or to prevent or minimise personal injury”.
That is fine until you read subsection (3), which states that members of the British Transport Police force,
“have powers and privileges by virtue of subsection (2) only if”
—I repeat: only if—
“(a) they are in uniform or have with them documentary evidence that they are members of that Force, and
(b) they believe on reasonable grounds that a power of a constable which they would not have apart from that subsection ought to be exercised and that, if it cannot be exercised until they secure the attendance of or a request under subsection (1) by a constable who has it, the purpose for which they believe it ought to be exercised will be frustrated or seriously prejudiced”.
I shall describe to the Committee what that means. Let us imagine that a BTP officer is off railway jurisdiction—perhaps walking between one railway station and another close by—and the officer comes across an incident where a member of the public requests his or her help and there may be a need to arrest someone. First, the officer has to check whether the local force will make a request for the BTP officer to deal with it. If it does, the BTP officer has the power to arrest. That could result, however, in considerable delay and lead to the loss of evidence and, worse, loss of the offender. It also damages public confidence in the police service, bearing in mind that the public do not distinguish between police officers from BTP and other forces. They see a police officer in uniform and expect a responsive and effective service.
There is an exception where making those inquires or requests could frustrate or seriously prejudice the exercise of the arrest function. The crucial point is: how are the circumstances that will amount to a frustration or serious prejudice defined? Different officers and different bystanders will have different interpretations, and that can lead to uncertainty, confusion and delay.
There is also a requirement for the BTP officer either to be in uniform or to be in possession of documentary evidence that they are a member of the force, such as a warrant card. For Home Office forces there is no such legislative requirement in general for making an arrest. Although it may be good practice to carry a warrant card, there seems to be no justification for making this rule apply solely to the BTP. That could compromise criminal cases where an off-duty BTP officer who was acting in the public good made an arrest but did not have the warrant card on them. I am, therefore, proposing the complete removal of subsection (3) from the Act.
My amendment also suggests the insertion of the words,
“or to prevent damage to property”,
at the end of subsection (2)(b). This is important and necessary because it will authorise the BTP to take action to prevent or detect incidents in a suddenly escalating public disorder situation. Imagine that BTP officers come across incidents of disorder in a high street when they are passing by. The public and owners of businesses expect the police to protect their property when necessary, and they are not going to be interested in whether they are from a Home Office force or from the British Transport Police.
Lord Bradshaw
My Lords, I support all that the noble Lord opposite has said. I have been here for only 15 years, but I am sure that the noble Lord, Lord Davies of Oldham, will vouch for the fact that I have raised this matter, as has the noble Lord opposite, on countless occasions. I have lost count of the excuses, all of which include the words “next year”. The latest one was the promise around three or four years ago of a quinquennial review. Although it is due, nothing has happened. This is a clear example of confusion and antipathy between two government departments: the Department for Transport, which owns, as it were, the British Transport Police, and the Home Office, which owns the rest of the police force, except in London.
The fact is that this absurd barrier between the areas where the police can and cannot go is not understood and leads to confusion. Almost every night at Reading station I see the constables of the BT police standing by the windows, and on a number of occasions I have seen fights and things happening in their view but they are not able to intervene. To the public, that is absolute nonsense.
I plead with the Minister this time to take the matter away and come back with a satisfactory solution. This is the result of jealousy over jurisdiction in the police service; I cannot think why. I remember going out with a Thames Valley police patrol one day—I was on the police authority for 13 years. We went out of the Thames Valley into Warwickshire, and they told me that they could not actually make an arrest until we had turned round and come back again. This situation is stupid, it is Victorian and it is not in keeping with modern society.
The reason why I believe this matter belongs in the Infrastructure Bill is that, when the public use railway premises, they expect the police to look after the bus stops, the car parks and the cycle racks. Some of those facilities are in private ownership and some in public ownership, but the journey that the person makes is door-to-door. At present it is being expostulated by the Department for Transport that it is doing a great deal for those journeys, but many people who use public transport but feel unsafe when doing so would be much reassured if they knew that the bus stops around railway stations and other facilities were patrolled by officers who were competent to deal with whatever happened to arise. I strongly support the amendment.
Lord Jenkin of Roding
My Lords, I have to say that this is the first time that I have heard the argument advanced by the noble Lord, Lord Faulkner of Worcester, and my noble friend Lord Bradshaw. My noble friend Lord Bradshaw told us that he has done this many times before; I have obviously been doing other things at those times. I have listened to both noble Lords with care, and I have to say to the Minister that I think they have made an incontrovertible case. I will listen with very great interest when she replies, but she will require some extremely powerful, cogent and convincing arguments if she does not respond in the way that the noble Lord, Lord Faulkner, has suggested and take this away, perhaps coming back on Report with an amendment that meets what seem to me to be totally absurd anomalies.
Lord Berkeley
My Lords, I also support my noble friend’s amendment. The situation is a classic case of restrictive practices or protectionism—whatever we would like to call it. I thought that this Government were against restrictive practices and protectionism—after all, they have several deregulation Bills—but, as ever, it seems that the Home Office is exempt.
During my Question on HGVs today, the Minister mentioned in reply the work being done in London between VOSA and the police to stop lorries that might be thought to be contravening some regulation or other. In fact, I was invited to witness one of these events a few weeks ago. They do it every day in different parts of London, and it works well; the number of vehicles that are stopped and the number of charges that the Minister told the House about are very impressive. However, there is one thing that has not happened. I said to the Metropolitan Police people and VOSA, “You’re doing all these things, but do you have one common database so that you can work out how to catch these people and do something with them?”. Very politely, the answer was, “Well, no we don’t, because the Met doesn’t allow it”.
The issue of whether the Met is above the law is a debate that we can have on a different day, but it is the same issue as the restrictive practice of saying, “Don’t set foot on my patch, otherwise—although I will not shoot you—I shall make sure that there is trouble”. Surely we should all be working on the same databases and sharing things. VOSA has made major progress here and it is about time that the Met caught up. If an amendment comes back on Report, either from the Minister or from my noble friend, it would be nice to think that a Home Office Minister could be here to answer on this issue and make a proposal.
Lord Davies of Oldham
My Lords, like the noble Lord, Lord Jenkin, I have heard my noble friend Lord Faulkner wax lyrical persuasively on this issue, and I have heard the noble Lord, Lord Bradshaw talk about it on many occasions. It is clear that the case stands—and stands mightily proud. We have had this argument long enough for a Government to see sense on this. All that I can say to the Minister at this moment of decision is that I shall be showing the utmost loyalty and commitment to my noble friend. The Minister has a noble friend on her side arguing the same case. I advise her to follow my example.
Baroness Kramer
I point out to noble Lords and the noble Lord, Lord Davies of Oldham, that this issue appears to have been on the table for some 15 years. How interesting it is that the Government for most of those 15 years did absolutely nothing to resolve the issue. The noble Lord may wish to hesitate slightly in being critical.
Lord Davies of Oldham
I was not being critical at all. I was being anticipatorily hopeful.
Baroness Kramer
I say to the noble Lord, Lord Faulkner, that we have a great deal of sympathy with the issues that he has brought forward. The question is whether, from an entirely practical perspective, we are able to resolve all the various policy implications and clearances in time for inclusion in the Bill—not least by working out whether we need legislative consent from the Scottish Government; obviously, there is that additional layer of complication over the BTP and devolution issues. That would all need to be resolved.
Given that situation, we have particular concern that the BTP has all the necessary powers needed to take enforcement activity at level crossings. I can say that we will give this issue careful consideration and will review the current arrangement to consider how best to address this anomaly, including whether amendments are required to the various Acts and sections that the noble Lord, Lord Faulkner, described. As I say, at this point, it is not clear that we can resolve all this in time for inclusion in the Bill, which is my primary concern. I therefore ask the noble Lord to withdraw his amendment, but we will consider it and see what is possible within the timeframe that we have to work with.
Lord Faulkner of Worcester
My Lords, I am grateful to the Minister, and I shall come to what she said in a moment. First, however, I thank colleagues in all parts of the Committee of three different political parties who have supported this amendment. The noble Lord, Lord Bradshaw, and I entered the House at the same time 15 years ago, and we have indeed been consistent campaigners for the BTP during that whole time. The noble Lord will recall that when we started, there was a suggestion, particularly from some forces in London, that the BTP no longer needed to exist as an independent force. There was a mayor who, as I recall, was quite keen on absorbing the BTP within the Metropolitan force and for the BTP’s regional activities to go to county forces. We saw off that very misguided approach through argument and through the good practice of the force whose work and reputation has grown steadily over the past decade. It is now recognised as one of the finest forces in the entire country.
I am grateful for the Minister’s sympathy for this approach. The idea that this has to be held up because of some fear over what might happen in the Scottish independence referendum is a little depressing. I shall read very carefully what the Minister has said. I cannot say that I will not bring it back on Report because, with so much support in this Committee, it will be interesting to see whether the House as a whole takes the view that this is the moment when these anomalies—everybody accepts that they are anomalies—should be corrected. I am grateful for the support from my noble friend on the Front Bench because that will also be of great significance.
The force’s reputation is recognised. The Minister accepts that these anomalies have to be put right. I am willing to withdraw the amendment today, but I think we should come back to it for further debate on Report. I beg leave to withdraw the amendment.
Lord Bradshaw
“Review of the road network
(1) Within six months of the passing of this Act, the Secretary of State must commission a body to review the funding and condition of the road network (“the review body”).
(2) The Secretary of State must instruct the review body to consider the following four matters—
(a) whether the heaviest users of the road network, in terms of wear and tear on the roads, congestion and pollution, should contribute a higher proportion than at present of the funding of the road network; and, if so, how;(b) whether the methodology for calculating the axle weights of vehicles, as used in calculating rates of vehicle taxation, should be changed;(c) whether organisations which undertake street works, including statutory undertakers, make an appropriate financial contribution to the remaking of the road surface on completion of the street works, and any necessary remedial work if that remaking is sub-standard; and if not, how the organisations could make an appropriate financial contribution; and(d) whether the part of the road network not under the control of the Highways Agency is in a satisfactory condition; and, if it is not, how it should be brought up to a satisfactory condition.(3) The review body shall report to the Secretary of State and to Parliament within 18 months of the passing of this Act.”
Lord Bradshaw
This is the last of the road amendments but it is not the least. There are great problems with our roads and the way that they are run. The amendment simply asks the Government to agree that within six months of the Bill being enacted, the Secretary of State commissions,
“a body to review the funding and condition of the road network”.
This body should consider four things, including,
“whether the heaviest users of the road network, in terms of wear and tear on the roads, congestion and pollution, should contribute a higher proportion than at present of the funding of the road network”.
We keep talking about the railway because that is in our minds at the moment, but people who travel at peak times have to pay higher fares than those who travel at off-peak times. The train operators who use congested parts of the network pay more, and it is time that a more rational way of paying for the road network was developed.
I am also asking that the methodology for calculating the axle weights of vehicles, used in calculating the rates of vehicle taxation should be changed, or re-examined, which might be better. The present methodology is based on experiments that took place in 1958 in America by the American state highways authorities. These experiments consisted of running a properly laden lorry, with a distributed load at 35 mph over perfectly level surfaces, and measuring the deterioration of those surfaces. The authorities came to the conclusion that it was reasonable to use the fourth-power function and the standard axle as a means of calculating load damage. Lorries do not go at 35 mph, they do not have perfectly distributed loads and the road network is not in perfect condition, as it was in 1958 when the Americans conducted the experiments. I suggest that it is perhaps time that we revisited this whole area and looked at the real position, not the theoretical position in the laboratory conditions in which experiments were conducted in America.
My third concern is whether the arrangements for the utilities, which dig up our roads to lay their pipes and cables, include them making an adequate financial contribution to the remaking of the road surface on completion of such street works. Is the remedial work of a suitable standard, and if not, how could those organisations make an appropriate financial contribution? I know that noble Lords will see, as I do, that outside their own homes the entire road is pockmarked by holes which have been dug by the cable companies, water companies, gas companies and so on. Most of the work is not properly finished and often the edges are not adequately sealed, allowing water to get in and break up the road surface, which is the primary cause of potholes. However, it is no good spending money on just filling up those potholes, the problem has to be attacked at its root cause.
My last issue is the question of the other part of the highways network that is not covered by this legislation. It is not in a satisfactory condition. The structural condition of the road is usually pretty terrible, and what is more, it is declining more and more rapidly.
Those are not issues that I expect the present Government to tackle, but they should be working on drawing up the terms of reference of a review that would look into how to address them. I have referred previously to why this is now urgent. The revenue from fuel tax will decline as cars and lorries become more efficient, which means that the Government will face a mountain of expenditure with a declining source of revenue. Moreover, very fuel-efficient cars are not eligible to pay much road tax. I have noticed since I acquired such a car that I am putting around a third of what I had been into the pot for the upkeep of our roads. That is a serious strategic problem and, while I am not expecting any answers, I am expecting some sympathy and a form of commitment that these issues will be taken in hand. I beg to move.
Lord Berkeley
My Lords, these are interesting amendments which, as the noble Lord, Lord Bradshaw, has said, cover a wide range of issues. It is definitely time to revisit the issue of damaged roads. Road vehicles are getting heavier and their tyre pressures are higher, but that may be balanced by improved suspension systems, making this a complicated calculation. Of course, higher speed incurs more damage to vehicles of all types. It is reasonable that vehicle excise duty, in the absence of any sort of road user charge, should reflect the different types of damage caused to roads as well as congestion and pollution. We need also to take into account something else which has come to the fore in the past few years. Worsening road surfaces are having a serious effect on cyclists. If the Government want more people to take up cycling, it must be safe for them to do so. A large pothole can cause a cyclist to fall off their bike and hurt themselves, and at night the potholes cannot be seen because they are so deep. It is a serious issue and now would be a very good time to address it.
On proposed new paragraphs (2)(c) and (d) in Amendment 64, we are where we are with the undertakers. I suspect that that is one reason why we do not do more with our roads. Constructing trams in cities is so expensive because the private sector undertakers take anybody to the cleaners if they want to build anything. I do not see an easy solution, except that they need to be kept up to the mark and ensure not only that the quality of the reinstatement is good but that the time it takes is kept short. Some emergency potholes and road works are there for weeks.
On new paragraph (d), damage to the roads in the past couple of winters probably reflects the same cause and effect as damage to the rail network: the weather has been very bad. The motorways mostly stayed open, as did the existing high-speed rail link because they have been designed and built in the past 50 years to cope with the current forecast weather conditions and using more modern drainage systems—slopes on cuttings and so on—which are appropriate. Most of the other roads and the classic railway system has suffered from being built 100 or 150 years ago. It is time to look at all that again, and it would be interesting to see the results. I hope that the Minister will look on the amendment with favour.
Baroness Parminter (LD)
I support the Minister looking closely at the amendment from my noble friend Lord Bradshaw for two reasons: first, because of the point he made that we need roads of good quality, whether you are the user of a car, a cyclist or some other person travelling on the road. We are facing far less revenue coming in to the Treasury to pay for them and need to find other sources of funding. That seems to be a reasonable proposal.
Secondly, I follow on from the comments of the noble Lord, Lord Berkeley, about cyclists. I speak as someone whose husband suffered a serious cycling accident two years ago—the police do not know whether it was because he went into a pothole or was hit by a car and then hit a pothole, but potholes were clearly involved in that accident, and he still has no recollection of what happened. There is an increasing number of good reasons to encourage children on to bicycles. I speak as someone who cycles my youngest to school when I can. It is madness for us to want children to be encouraged to go out to cycle for the health benefits that that gives them if, by the time they are adults and cycling to work, the roads are in such poor condition that it is not safe for them to go on them.
We need safe and well funded roads, which means that the Government are going to have to be creative in how we find that money. I think that the amendment offers an opportunity for further discussion and debate.
Lord Davies of Oldham
My Lords, my noble friend Lord Bradshaw is nothing if not creative in his response to transport problems. I guess that this is a creation a little too far for the Minister, but we shall see from her response. I understand my noble friend’s arguments and agree with some of them very strongly. We do not have a real measurement of the impact on our roads of heavy vehicles. The most amazing thing that any road user has to come to terms with is looking at the carriageways which heavy trucks have been traversing and then at the other two which are used by cars. You are looking at what is virtually trench warfare. The impressions in the surface reflect the enormous impact of goods vehicles, so whether they pay enough is a challenging financial issue. I am sure that the Minister will be able to explain just how great that challenge is.
On the question of potholes, I do not deny that there are potholes on all our roads. They are a serious issue on our main trunk road networks because vehicles can become involved in desperately bad accidents either through hitting them or by seeking to evade them at the last moment. However, I venture to suggest that most of the problems of potholes are not on the strategic road network; they are on the local road network. That is where we have such a massive problem, which is partly a product of our perhaps not employing the best possible techniques when building them and partly because we have had some very severe weather in recent winters. We all know the havoc that that has wrought on our roads. However, that does not alter the facts. I know that the Government talk of extra sums being made available, but they look pretty thin on the ground for local authorities when it comes to the challenges they face.
I have considerable sympathy with the amendment of the noble Lord, Lord Bradshaw, not least because he sees yet another opportunity to articulate clearly an important dimension of our transport anxieties. I am just grateful that it is the Minister who has the task of allaying them.
Baroness Kramer
My Lords, the noble Lord, Lord Davies of Oldham, is quite right: this amendment is a creative step too far for the Government, although we very much appreciate that these are serious and important issues which have to be looked at, and that the appraisal methods that we use actually matter. I am always happy when my noble friend Lord Bradshaw talks to officials who specialise in this area, because that is an exchange among equals who have an understanding of the detail in a way that I cannot personally pretend to.
As I have said before, the Government are not minded to introduce road pricing. As far as I know, we are not looking at any kind of revision of the way in which the VED is levied on vehicles at this point in time, which would be the presumed outcome of the kind of study that is being recommended in these amendments.
There are also amendments that address the funding of local road maintenance. I suggest that they are not really appropriate to this Bill, although they may be matters of significance and ought to continue to be part of the general discussion that the Government undertake and the kind of work that the department always stays abreast of. Recognising that the Bill has a very different focus, I would ask my noble friend to consider withdrawing his amendment but to continue to engage with the department so as to ensure that we are using the best and most sensible methodologies in the work we do.
Lord Bradshaw
I drafted the amendment rather carefully so that it does not commit this Government to doing anything other than choosing a panel of people to look at some problems. If past experience is anything to go by, by the time the panel is assembled and comes to some reasonable conclusions, we are talking about the legislation of the Government not in 2015 but probably in 2020, because that is the speed at which things are done. I plead with the Minister to look very carefully at what I have said. I am not asking the Government to commit themselves to road pricing or to raising VED; I know that this is probably not the time in the parliamentary season to make such suggestions. However, these four problems are major ones. I did not even get on to the problem of the question of appraisal; as the Minister knows, it is absolutely barmy, but I thought that that was a step too far. In the light of what she has said, I shall withdraw my amendment, but the problems will not withdraw themselves; they will steadily get worse. I beg leave to withdraw the amendment.
Baroness Parminter
Baroness Parminter
My Lords, after the destruction of habitats, the introduction of invasive non-native species is perhaps the most urgent threat to biodiversity. There are more than 3,000 non-native species in Britain today. Some are very familiar, such as the grey squirrel or the Himalayan balsam that clogs up our riverbanks. Others are less obvious, such as the signal crayfish or harlequin ladybirds, but their impacts can be just as serious.
The economic impact of invasive species on the UK has been estimated at £1.8 billion every year, which includes £1 billion to the agriculture and horticulture sectors and more than £200 million to the construction, development and infrastructure sectors. More personally, invasive non-native species impact on our sense of place—what makes our corners of Britain distinctive and precious. That is why it is important for the Government to act. I warmly welcome the principles behind Clause 16, which would introduce new powers to compel landowners to take action on invasive non-native species or permit others to enter their land and carry out those operations. However, I have introduced Amendments 64A and 65A to explore two apparent weaknesses in the drafting of the clause.
The Bill defines a species as non-native if it is listed in Part 1 or 2 of Schedule 9 of the Wildlife and Countryside Act 1981, or if,
“it is not ordinarily resident in, or a regular visitor to, Great Britain in a wild state”.
Both of these definitions seem to me to be rather problematic. Defining something as non-native if it is not ordinarily resident in Britain could end up rendering species that have gone extinct as non-native, just because they are not currently resident. As it is drafted, new paragraph 2(3)(b) of Schedule 9A effectively sets the status quo of British biodiversity in law—a one-way system for biodiversity loss, as once an animal ceases to appear in the wild, it ceases to be native.
Of course, this definition applies in the case of species-control powers, so I accept that it will be up to the environmental agencies when to use those powers. However, it would seem perverse to create a legal definition of “non-native” that could apply to species that return to our shores after becoming extinct, or that we wish to reintroduce. I am concerned that this definition could create a precedent or perhaps interfere with important future reintroduction programmes. Reintroductions help to enrich biodiversity in the UK, contribute to international conservation and improve people’s enjoyment of nature. Species that were once indigenous to the UK that have been reintroduced include capercaillie and short-haired bumblebees.
The second problem with the definition in the Bill is that it would define animals and plants listed in Part 1 or 2 of Schedule 9 of the Wildlife and Countryside Act 1981 as “non-native”. Why would that apparently define several species that are currently resident as non-native? The schedule was last revised in 2010. Part 1 lists:
“Animals which are established in the wild”,
and currently includes 67 non-native species that are considered invasive, such as the grey squirrel. However, it also includes nine species or birds that are indigenous, two of which became extinct in Britain but have been reintroduced: the capercaillie, which I mentioned previously, and white-tailed eagles. Birds such as the barn owl, the chough, the corncrake, the goshawk and the red kite were added in 2010. Amendment 64A would exclude indigenous species from the lists in Schedule 9, so species such as the white-tailed eagle would not be wrongly defined as non-native. Amendment 65A would simply add the words,
“and has never been indigenous to”,
to the definition of “non-native species”. Ecologically, “indigenous” refers to the presence of a species in a region as a result of natural processes, without human intervention. My amendment would therefore exclude from the definition of “non-native” animals that were once naturally resident in the UK and have at some point gone extinct.
Clause 16 seems to define as “non-native” several species that are in fact indigenous to the UK. There is an important principle at stake here: that species that have gone extinct, often because of human actions, should not subsequently be considered non-native. My amendments are intended to help to improve the definition of “non-native”, and equally would help the Government to commit to enhance the UK’s biodiversity, as they have promised to do on numerous occasions. I beg to move.
Lord Teverson
My Lords, I very much support my noble friend’s amendment, to which I have added my name. I was looking through Schedule 9 to the Wildlife and Countryside Act to see what sort of things were in it. There is everything from budgerigars to Egyptian geese, night herons and parakeets, so there is quite a bit there. The thing that struck me about the importance of this issue is that if we look at Cornwall not as a nation—which of course it is—but as a sovereign nation, its national bird, which features on its coat of arms with a fisherman and a miner, is of course a chough. It is widely known in Britain as the Cornish chough. Regrettably, it disappeared from Cornwall in 1947, but I am pleased to say that it reintroduced itself from Ireland in 2001 and since then has been fairly active in reproduction and has succeeded in west Cornwall. If we went back and passed this legislation in 2000 and looked upon Cornwall as an ecological area, we would now see the chough as an alien species, despite the fact that it is our national bird. I use that as a broad illustration of the issue. Having said that, it is an important issue. I absolutely support this part of the Bill and see this as a very important area.
We really should not mention Japanese knotweed, although that is in Schedule 9. If we are not allowed to talk about Japanese knotweed I could call it Polygonum cuspidatum.
This is an important area, but clearly animals and plants that have been part of the British habitat over a long period are native species and can return. We all know of important reintroduction programmes that have taken place. We should welcome them rather than outlaw them.
Lord Cameron of Dillington
My Lords, I, too, strongly support this section of the Bill. It was very encouraging this morning at the session that some of us attended at Defra to hear that the UK is ahead of the game vis-à-vis Europe in terms of trying to control and monitor invasive species. The more that we can do it, and the quicker that we can do it, the better. However, I am not certain about Amendment 65A; I am not sure that past claims to being native mean that they would not necessarily be invasive now. I agree about certain species—red kites are one, and perhaps the bustard will be another—but let us take a species that has been in the news recently: beavers. Actually, in spite of the newspapers saying that beavers have recently been discovered in the wild in the south-west, they have been running around in the south-west for some years now, as far as I am aware. They say that it is the first time they have around for 800 years but we do not quite know what effect they will have. Their habit of damming streams and blocking rivers—bear in mind that there have been floods recently in the south-west—might be a problem. I feel that that situation would need to be looked at.
Turning to my native Scotland, there is a suggestion that we might introduce wolves there. I have an interest to declare here: my ancestor Sir Ewen Cameron of Lochiel, who was known as the great Sir Ewen, apart from spending all his life in the latter half of the 1600s killing Englishmen, for which he got knighted by the English king as one tends to do—do not ask me why—also killed the last wolf in Scotland. I have always been led to believe that he swung it round his head and wrapped it around a tree, but that may be a detail too far.
The situation has changed dramatically for wolves in terms of both population density and livestock density in Scotland. So I do not think that you can put a provision like this in the Bill. Every species has to be judged according to its particular habits and interests in relation to the countryside today.
Lord Teverson
If I may interrupt the noble Lord, in Cornwall recently—last year, in fact—a company with which I have familial connections produced grey squirrel pasties, which were extremely successful, and there were no demonstrations whatever outside the shop.
Lord Cameron of Dillington
I am sure that the appetites of the Corns are something to be praised in this respect. My point is that I hope that this principle will not be too rigorously followed when dealing with invasive alien species in future.
Lord Berkeley
My Lords, I bow to the expertise of previous speakers because I am no great expert in species. The previous three speeches have demonstrated that it will be quite a challenge to decide what is in and what is out. The issue seems to be very subjective and no one is fighting tonight, but I expect that the experts will fight in the future.
I have two examples—and I do not know whether they are in or out; perhaps the noble Baroness can help me. I have a quote from the Western Morning News last week, under the headline:
“UK ladybirds are being eaten by their invading cannibal cousins”.
Ladybirds are now cannibals that are eating either the five-spot or two-spot ones—I could go on—and invade at the speed of 200 kilometres a year. Even though they came in 20 years ago, I do not know whether they have reached Cornwall yet. Maybe the noble Lord, Lord Teverson, will know. Are they included? Have they been here before? Where would it be?
My other example is from three or four years ago when a friend of mine discovered that the Duchy of Cornwall was introducing Japanese oysters into the Helford River in Cornwall—we seem to have been in Cornwall a lot, but I cannot help that—without doing an environmental study or getting permission. Oysters were put in the cages, which all looked very nice, and some people liked them and some did not. However, after a year they all died, which may have served right those who introduced them, but it killed every other oyster in the river—the native oysters. I do not know whether those Japanese oysters would come within the context of this part of the Bill. Those that came from Japan certainly killed all the local ones, and it was of some comfort when my friend took the duchy to court. Its defence was that it believed that, for all practical purposes, it was above the law. I do not know whether that was why the court found against the duchy because the matter is still sub judice. That is an example of someone bringing in a species and perhaps not following it through to see if it was the right one to bring in.
That is why I tabled my Amendment 71. When I was researching it, I thought, “What is a species?”. I looked it up on some web dictionaries, and the best definition seems to be the wording that I have put in the amendment. Does it cover things in the air, be they birds, insects or whatever? Does it cover animals, birds or whatever that walk on the ground? Does it cover things in the water? That is a pretty important place from which we should start. It would be very good if someone could give a definitive answer so that we knew what the context was and where we might go from here.
Lord Davies of Oldham
My Lords, I have a great deal of sympathy with the main outline of the speech of the noble Baroness, Lady Parminter. I was a little less keen on the pasty that was identified as being available in Cornwall. I recall my brother-in-law, who is an expert on birds, arriving in Cornwall in the early 1990s and seeing a chough, which I did not see. He was certainly well versed in the significance of choughs to the Cornish position.
The purpose of the amendment that I have tabled is to get some sharpness of definition in the crucial area that we are concerned with. We all know that the issue of invasive species is of great significance. It is one of the causes of the loss of biodiversity and much of the world, and we have seen indications in this country of the extent to which that occurs. The annual cost of invasive non-native species to the economy is put at £1.3 billion, so we are not talking peanuts here.
I shall mention my own experience of this. I heard someone—I think it was the noble Lord, Lord Teverson—suggest that we could not mention Japanese knotweed. I am going to mention Japanese knotweed quite often. My acquaintance with the problem of Japanese knotweed was to see a person lose the value of their house, in an ordinary suburban area with absolutely no suggestion of any threat at all except of Japanese knotweed. The plant effectively reduced the price of their house from £350,000 to £50,000 in value. They simply had to get out of that house as they did not think that they could afford the costs of controlling the knotweed.
That was my introduction to local difficulties, but when I was in the department I became acutely aware, and I am sure that the Minister is well versed in this, that whenever a group of people come together to discuss Japanese knotweed, the railway industry is going to be there in force, as indeed it was on every occasion when we discussed it, simply because of the sheer cost to the railway system in this country of keeping the wretched plant at bay.
We are not talking about trivial issues as far as the nation is concerned when it comes to certain aspects of non-native species in this country. For agriculture alone, the cost in England and Wales seems to be getting on for £1 billion. That is an awful lot of money being spent in seeking to control a plant. In the European Union, the annual cost of non-native species is €12 billion. We were gratified to hear at the Defra briefing this morning of the extent to which there was international movement and action on this, and that the European community was playing its full role in this. There were one or two interesting exceptions that we heard about, which raised an eyebrow or two; many of us thought that the Danish scarcely merited the kind of exemptions that we in this country could hardly get for particular products and local parts of the economy; nevertheless, the Danes had obviously put up a good case.
However, I want to emphasise that we have to get this right. I know when I say those words that it is not possible to get it right, because it is a continual battle against change, some of it produced by climate change, which accelerates the difficulties.
We support the clause. The reason we want to probe the Minister is obvious enough; the noble Baroness, Lady Parminter, did the task for me. Red kites were reintroduced at Woburn, not far from where I live. The first arrival of a red kite on a tree, resting and then taking off in all its glory is something that I treasure. Of course I applaud the reintroduction of certain species, but I heard what the noble Lord, Lord Cameron, said about his anxiety about beavers. That shows the differences there can be between different parts of the community. People I have been talking to thought that beavers might help to restrict floods because they build dams to do so, whereas the noble Lord, Lord Cameron, thought that beaver dams might accelerate the problems. There you are, you pays your money and you takes your choice on that.
Before the Olympic Games, an absolute fortune was spent on clearing the site of my dear friend knotweed. The site had to be cleared of a lot of other very noxious things indeed. One of the great expenses of the Olympic Games was getting the site clear, but Japanese knotweed featured in that and cost £70 million to remove.
We must not underestimate the challenges which such species present. My amendment is tabled in order to get, and I am certain that the Minister will oblige the Committee by giving, a clearer definition of what the noble Baroness, Lady Parminter, asked for in the first place.
Baroness Kramer
My Lords, the noble Lord, Lord Davies, is absolutely right: £1.8 billion is the estimate of the cost, a lot of it falling on agriculture but a significant amount on transport, of invasive non-native species.
It is important to understand that this measure is one part of a much broader range of measures. It is particularly focused on tackling prevention, and then early detection and rapid response, so that we do not always find ourselves, as we have with the grey squirrel, for example, in a position where an invasive species has so taken hold that we are now able to consider only control. I think that every one of your Lordships would regard that as an important strategy.
The questions raised by the amendments centre on definitions. On the sensible advice of the Law Commission, the definition of non-native used in this part of the Bill is consistent with that already used in Section 14 of the Wildlife and Countryside Act 1981. Part of that is a list, and part of it is a broader definition. It is drafted to regulate the release of formerly native species. It is clearly not a list that matches what we are intending to do with control orders, because control orders give us the ability to go in to make sure that a species may be eradicated—that eradication is possible. There are also other lists, as noble Lords who came to this morning’s meeting will know, because the European Union will be creating a core list some time in 2015 and regional lists will follow. So we have a whole range of lists. The important element in all of this for the purpose of the control orders will be a code of practice that will overlay the lists. That should be available in draft form to your Lordships by Report.
The list in Schedule 9 referred to by my noble friends Lady Parminter and Lord Teverson contains species that we would not attempt to eradicate, with rhododendron ponticum being a good example. There are species on the list that we would attempt to eradicate, such as the monk parakeet, but a lot of the work under control orders would focus on species which have not yet arrived here and therefore are not on any list at all. The code of practice will provide the relevant mechanism for working out a complex situation where a number of lists are developed for a whole range of purposes.
Baroness Parminter
I thank the Minister for those comments. It is encouraging that the comments from around the Committee show just how supportive we are for the initiative that the Government are taking.
The definition of non-native invasive species is key not just to what the Government are rightly trying to achieve here but to the impact that it could have on future reintroduction programmes. I hear the Minister when she says that we should not be opening almost a blanket pass for what are now extinct but were once indigenous species. Given that this, for me, causes some problems, I would certainly want some reassurances before we get to Report about the processes for assessing reintroductions. Clearly, we need to give species as much support as possible to meet our biodiversity targets. There are plenty of people who will argue against reintroduction and I would not want that definition to give those people any succour. If this definition is to stand, there must be a very clear process with which we feel comfortable for the assessment of reintroduction so that biodiversity can be put at the heart of that process. On the basis that the Minister has said that there will be a code of practice for us to scrutinise before Report, I am more than happy to withdraw the amendment.
Lord Davies of Oldham
“( ) The Secretary of State must publish an annual assessment of species control operations.”
Lord Davies of Oldham
My Lords, I have quite a lot to say about this next amendment so I shall speed up as I respect the fact that time is moving on. The clause centres round the sustainability of new species control agreements and orders. The Government’s capacity to take an intelligence-led approach to prevent non-native species becoming established in the UK has been significantly reduced. We valued the presentation at Defra this morning and the work that the department has done, but the cuts that have been sustained in some of the scientific establishments concern us, particularly the ecological science services at Kew. One should not underestimate the difficulties that flow from the reduction of that activity.
The Government have failed to implement the ballast water convention in spite of evidence that non-native invasive species transported in ballast water tanks pose a significant biosecurity risk. There is enough evidence for us to take these issues very seriously, and I hope that the Minister will indicate that there is a possible change in the Government’s perspective on their actions. The Woodland Trust has also raised concerns regarding the ability of environmental authorities financially to support species control agreements and orders. Many of the environmental budgets are already stretched but eradication control of invasive species is vital and needs to be adequately prioritised and supported. That is the burden of the opening statement made by the noble Baroness, Lady Parminter.
The Government need to face up to the fact that the cost to agriculture and fishing is growing. Climate change is probably a key reason why the number of invasive non-native species arriving in the UK is increasing. The Government must reassess the work of the GB Non-native Species Secretariat in the light of this evidence. After all, the House of Commons Environmental Audit Committee report made it clear that for an eradication campaign to be successful and cost effective it needs to be timely and informed by good evidence and sufficient funds to sustain it until complete eradication is achieved. None of us underestimates the challenge represented by that comment by the Environmental Audit Committee. The Government need to engage with the EU’s work in revising the plant and animal health regulatory frameworks to ensure that the result is a unified approach to biosecurity threats between these regulatory frameworks and the invasive species framework. Some of us were reassured this morning about the degree of co-operation within the European Union. It is obviously a germane time for us to take the fullest possible advantage of good will among the nations of Europe.
Prevention is definitely cheaper than eradication, and it is in the best interest of the environmental authorities to have annual assessments to put in place goals and objectives that would, in turn, allow them to plan their capacity to carry out species control operations. It is also extremely important that we continue to monitor the development of these species control orders and to analyse effectively their ability to hit their targets.
The Bill does not allude to the monitoring of this new scheme and how we can track its progress and achievements. We need that. Not all of us—certainly not many of our colleagues—will have the same kind of opportunities vouchsafed to those of us who went to Defra this morning. We need to ensure the wider public is well informed about progress. An annual assessment would look at which species have been identified, which would be subject to species control orders, how many have been carried out, the success of the scheme, and an evaluation of the scientific evidence surrounding invasive species, animal welfare and so on.
There is clearly a great deal to be done. The amendment seeks to identify the fact that the Government are not doing enough at the present time. I beg to move.
Baroness Kramer
My Lords, I need to be rapid in my response, so let me simply say we think an annual assessment of species control orders is too frequent, as we estimate there is only one control order a year. However, we agree that an assessment of how these provisions are working is required. The code of practice will make clear that this assessment should form part of the five-yearly review of the GB invasive non-native species strategy.
We do not accept Amendment 67, which states that there should be a requirement on the Secretary of State to ensure that the environmental authorities,
“have the necessary capacity to carry out species control operations”,
because, at the rate of one order a year, it is entirely feasible for this to be met from existing resources. The environmental authorities are already resourced with this kind of activity in mind.
We do not support Amendment 68, which would remove the requirement for agreements made in relation to a dwelling to be made only by the Secretary of State or Welsh Ministers. We believe that this is an appropriate additional safeguard for the more intrusive use of powers under this regime.
I hope that that reassures the noble Lord, Lord Davies, and that he will withdraw his amendment.
Lord Davies of Oldham
My Lords, that reassurance is noted. I beg leave to withdraw the amendment.
Baroness Kramer
“(2) Unless it is made under paragraph 9(2)(c) (emergency), a species control order—
(a) may not require an owner of premises to carry out species control operations, or provide for an environmental authority to carry out species control operations, before the end of the period in which an appeal may be made (see paragraph 15), and(b) must provide that if an appeal is made within that period, the owner need not carry out the operations, or the environmental authority shall not carry out the operations, before the appeal is finally determined.”
Baroness Kramer
My Lords, Amendment 69 clarifies that there is no requirement on an owner, or provision for an environmental authority, to carry out any operations contained in a species control order until the 28-day period for making an appeal has expired. It also clarifies that, where an appeal has been made within the 28-day period, the owner need not carry out the species control operations and the environmental authority will not do so until the appeal has been determined.
The amendment merely clarifies our original intention in the Bill. Without it, the order could potentially require an owner or allow an environmental authority to carry out the operations contained in a species control order before the period for making an appeal has expired, or before the appeal is determined by the First-tier Tribunal. However, the amendment does not apply to emergency species control orders made under paragraph 9(2)(c) of this Schedule. Where a species control order is made because it is urgently necessary, the environmental authority may carry out the operations immediately. However, the First-tier Tribunal has the power to suspend the order should an appeal be made by any owner.
Amendment 70 ensures that the environmental authority must notify all owners of the premises that it is aware of, and not just the owner specified in the order, that a species control order has been made. It is necessary because any owner of the premises has a right of appeal against a species control order within 28 days of notice being given that the order has been made. However, as currently drafted, there is no requirement on an environmental authority to notify all owners That could potentially lead to another owner of the premises being unaware that a species control order had been made and thus being unable to exercise their right of appeal. This amendment merely clarifies our original intent.
Lord Davies of Oldham
My Lords, it is fairly rare for the Government to produce amendments unless they have been prompted to do so by a critical opposition. On this occasion, we were not the critical opposition. I am happy to accept the amendment.
Baroness Kramer
“(a) all owners of the premises of whom the environmental authority is aware,”