Infrastructure Bill [HL]

Baroness Kramer Excerpts

Tuesday 8th July 2014 Grand Committee

[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.

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[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.

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[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.

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[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.

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[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.

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[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.

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[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.

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[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.

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[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.

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[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.

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Moved by

[Baroness Kramer]

61AA: Clause 13, page 9, leave out line 26 and insert “the application of any enactment (but, in the case of an Act, only if the Act was passed before the end of the Session in which this Act is passed).”

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Moved by

[Baroness Kramer]

61C: Clause 14, page 9, leave out line 34 and insert “the application of any enactment (but, in the case of an Act, only if the Act was passed before the end of the Session in which this Act is passed).”

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[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.

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[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.

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[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.

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[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.

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Moved by

[Baroness Kramer]

69: Clause 16, page 13, line 36, at end insert—
“(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.

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Moved by

[Baroness Kramer]

70: Clause 16, page 14, leave out line 12 and insert—
“(a) all owners of the premises of whom the environmental authority is aware,”