Infrastructure Bill [HL]

Lord Berkeley Excerpts

Tuesday 14th October 2014 Grand Committee

Moved by

[Lord Berkeley]

96: After Clause 28, insert the following new Clause—
“Part 4ALevel crossingsLevel crossing bill
Within 12 months of the day on which this Act is passed, Her Majesty’s Government shall introduce into Parliament a bill to give effect to the recommendations of the Law Commission and the Scottish Law Commission on level crossings (Cm 8711), and which is substantially based on the draft Level Crossings Bill prepared by the Law Commission and the Scottish Law Commission.”

[Lord Berkeley (Lab)]

My Lords, I will also speak to Amendment 100. These amendments are nothing to do with fracking. They take us back to infrastructure of the road and rail sort. This amendment came about because, quite conveniently, the Law Commissions did a study on the legal situation of level crossings. I believe they took about seven years to do that, so they must have done it extremely thoroughly. They produced an excellent report about this time last year which made a number of recommendations and, very helpfully, included a draft Bill to implement them.

The purpose of it all was because, as we will see, some of this legislation goes back to the first railway. Some 150 years or so ago, there were of course no internal combustion engines and if there were level crossings they were probably to take horses and carts across. It is very different now when in some places, as noble Lords will know, the pressure on level crossings for access is pretty extreme whether it is from the railways or the roads, and particularly in urban areas. When the railways want to run more trains, they find that they cannot because people complain too much that the gates are shut too often and vice versa. Obviously, the solution is to build a bridge or tunnel but that does not really go down very well in urban areas either.

This report by the Law Commissions really deserves some detailed consideration. I tabled these amendments in July and the Government had not responded so I was tempted to try to get a response by tabling the Law Commissions’ draft, which was about 50 pages long. The noble Baroness was quite pleased when I withdrew from that. However, it has resulted—we can debate whether it is a result or a coincidence—in the noble Baroness kindly sending to me and colleagues the government response to this report, and putting a copy in the Library. It is an excellent response, so my purpose in moving this amendment now is to see whether we can press the Government a bit more for a timetable and to discuss one or two of the issues on which I think they might not agree with the Law Commissions.

One issue which covers the whole thing is whether level crossings should be subject to the Health and Safety at Work etc. Act, as most similar activities are. It may come up on Report when we start talking about the strategic road company, which the Minister kindly gave some of us a briefing on yesterday, and the comparison of safety relationships between road and rail. But on level crossings, the Government have moved a good way in accepting many of the recommendations to make the thing simpler. I do not know how many of the Committee have managed to read these 28 pages overnight but perhaps I could mention a couple of issues. If your Lordships have not, it does not really matter.

For me, if the Government went ahead with their recommendations it would be 90% good and I hope that they will. They are quite right to query again how much this should apply to heritage railways, especially when there are volunteers. That needs taking with a bit of a pinch of salt because dealing with a level crossing on a 100 miles per hour railway is not the same as dealing with one on a 25 miles per hour railway, so they have done well to question that. I mentioned the Health and Safety at Work etc. Act; we could go through that again.

It is a good idea to get rid of all this old legislation. I am told that there are 800 Acts applying to level crossings. Network Rail has to deal with all these things and if we started talking about how much all these changes might cost, I get the impression from Network Rail that a lot of money would be saved—especially on lawyers, which is always a good thing. On whether the Office of Rail Regulation should introduce codes of practice, I think that it should but it is not really the end of the world if it does not. But on the regulations, I worry about what happens when it comes to consultation between road users, planners, highways authorities and rail people, and whether the Government have got it quite right as to who has the last word on how discussions will take place as to who gets priority. That needs a lot more consultation but it is still in the report. As I said, the legislation goes back to 1839. I shall not read out all the different bits of legislation because it will take too long but this certainly needs further work.

The closures need to be made simpler. Network Rail has told me that it costs a great deal of money, time and effort to get closures. Some people will debate whether Network Rail should be allowed to make closures, but when you look at the railway safety statistics, level crossing accidents come very high up the list of causes of accidents—leaving suicides aside, which are slightly different. As we try to make our railways more efficient, run faster and more frequently, we need to look at protecting the public by making some of these closures. I hope that the Minister will accept that they can go ahead. I am not going to go through any more, particularly the Scottish ones. We can possibly leave those to the Scottish Parliament if we get some devolution, which is another issue.

In her covering letter, which is very helpful, the Minister said:

“I have … asked officials to develop, as a matter of urgency and no later than the end of 2014, an action plan which will outline where we believe further work is required and how this will be taken forward”.

That is very good and I welcome it, but there are always two sides to these things. Perhaps the Minister can answer either tonight or in a letter how many of these changes actually need legislation—primary legislation, secondary legislation or none at all? The Law Commissions proposed one great big Bill but it does not have to be done that way. I worry after the next election. Which Government would want to bring in a level crossing Bill in their first session? They would not because they would have other priorities.

Therefore a timetable would be good, showing what could and could not be done. We could then start a process of discussion about some of the issues in this government response, which would be very helpful. It really is important. It will save Network Rail a great deal of money and it will help avoid some of the disputes that take place between road and rail users and their operators. Everyone must agree that we should get rid of legislation going back to 1830-something. Now is the time to do it. With that quick introduction, I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I support the noble Lord, Lord Berkeley, and in particular his request for the Minister to consider a timetable. I will not pretend that I have the knowledge of the railways that he has, but I have worked with the Law Commission on a number of its proposals and Bills. It is punctilious about avoiding political controversy and exceptionally thorough in its consultation; as the noble Lord pointed out it has been involved in this in the seven years of consultation. It therefore does an exceptionally valuable job in updating, tidying up and spring cleaning our legislation.

There is, however, a danger attached to that, which is that the Law Commission regards legislation proposals that it has brought forward that have not been implemented within a certain period as needing to go back for further consultation because it needs to make sure that the public mood and the facts have not moved on. I support the noble Lord, Lord Berkeley, in this because I hope my noble friend will realise that if this matter is left on the shelf, the Law Commission will say that it is no longer fit for purpose and will need to start consultation all over again to see what has happened in the intervening period since the last consultation was carried out.

I support what the noble Lord is suggesting and I hope that my noble friend will be able to act as Dyno-Rod for departmental inertia to make sure that it is brought forward quickly to avoid having to go round the whole course again.

--- Later in debate ---

[The Minister of State, Department for Transport (Baroness Kramer) (LD)]

My Lords, I am very grateful to the noble Lord, Lord Berkeley, for raising this issue. I know that he speaks also for the noble Lord, Lord Bradshaw, who has had to leave. I welcome the opportunity to discuss this matter. It is an area in which the Committee rightly takes a very keen interest.

As we all know, the UK has the best level crossing safety record in Europe. We want to ensure that it is maintained and, of course, to see that it is improved. We are absolutely not complacent about level crossing safety. The noble Lord, Lord Davies, rightly pointed out that, as we run more trains and operate many of our lines at full capacity, the issue becomes more acute. He mentioned that the relevant cost fell on Network Rail. I can understand why people say that other road users should pay for the provision we are discussing. I do not want to fight over who is going to pay. When it comes to taking a decision on a closure, we need to move forward in an accelerated fashion. Therefore, I will accept a little injustice in order to make sure that we are really efficient when we need to be. I do not think that is what is inhibiting the system although I take the point that the noble Lord makes.

This amendment is about the law surrounding level crossings. At present, the legislative framework surrounding the management and operation of level crossings is, frankly, antiquated and complex. I have been passed a note informing me that 10,000 Acts apply to level crossings. I did not even know that we had 10,000 Acts. That is the most extraordinary figure and it says it all. Indeed, that complexity is the reason why we, or, rather, the Government of the day, requested the Law Commission and the Scottish Law Commission to undertake a review in 2007. The review was initiated in 2008. I take this opportunity to place on record my thanks to the Law Commissions for the tremendous amount of hard work which has gone into developing their report, and recommendations which were published in September 2013. The examination of 10,000 Acts is demanding work.

The Committee will appreciate that this is a highly complex area which touches on a wide range of issues including railways, highways, health and safety, planning, land and criminal law. The Law Commissions’ 86 recommendations represent the culmination of five years of investigation. Following legal and policy analysis, the Department for Transport has published its response. I apologise that noble Lords have not had a little more time to read it. I suspect that the noble Lord, Lord Berkeley, was always going to be the most dedicated reader and I congratulate him on going through it. The response indicates which of those 86 recommendations we intend to accept, reject or implement in a modified format.

We accept the case for reform which the Law Commissions have presented and have accepted the majority of their recommendations. However, in some key areas—for example, closures and the application of the Health and Safety at Work etc. Act, as the noble Lord, Lord Berkeley, mentioned—the Department for Transport’s response indicates that we believe we need additional policy and legal consideration. This arises very much as a result of talking to the industry. The Committee will understand that some level crossings are site specific and that that creates additional complexity. However, we believe that we have to pursue these issues because in some cases there may be alternative proposals that work rather better.

On closures, the department needs to be convinced that the process recommended by the Law Commissions would shorten timescales and cut costs, which it is meant to do. We need convincing that that is what it would do. Stakeholders from both road and rail have voiced concerns about the possible implications and have pointed out to us areas where there is lack of clarity. We need to explore those further.

I very much understand that this is a probing amendment but I am told by those who understand procedure that it is a real oddity to put in a piece of legislation a clause which would legally commit a future Government to introduce a complete Bill. Although I know that is not the purpose of the amendment, technically there is an issue there. I should also draw the Committee’s attention to the fact that the Law Commissions’ recommendations contain significant devolution elements which we must and will discuss further and reach agreement on with the Scottish and Welsh Governments before implementation could proceed. As I said, we are also aware of stakeholder concerns about some of the recommendations. They must be addressed because this is highly practical, operational stuff and we have to get it right.

We want to move quickly, but we recognise that there is work to be done, and we are trying not to set ourselves an artificial deadline. However, I am very concerned that this does not get kicked into the long grass—as, I suspect, are all of your Lordships who have spoken.

We have said that we will come forward with an action plan. We will produce it by the end of 2014. It will be an outline of where we think further work is required and how it can be taken forward as a priority. I point out that that action plan will address some of the specific issues raised. The noble Lord, Lord Berkeley, asked whether most of this requires legislation. Unfortunately, it does, but we will look for those areas where we do not need legislation, because that will give us a little flexibility. There are also additional complications that flow from our need to get the Law Commission to consider whether it can simplify some of its recommendations. The action plan will cover that issue as well.

I hope that the noble Lord, Lord Berkeley can agree that this is the best way forward; I hope that he will feel comfortable to withdraw his amendment, because it seems to me that we are all pretty much on the same page on this important issue.

[Lord Berkeley]

I am very grateful to the Minister for a comprehensive reply. It was a probing amendment, and one would not want the text to commit a future Government. She has outlined many of the challenges. I am sorry that I got the number of Bills wrong by a factor of about 12, which is pretty bad. If we can have a timetable, with all these issues addressed and listed, including issues relating to Scotland, Wales, the EU and whatever, that would be extremely helpful. If the noble Baroness can get the agreement of Network Rail and, we hope, all the train operators and everyone else, that is a major step forward. I again thank the Minister and the Law Commission, because it has got the issue on the agenda. Let us hope that we can see it driven to a conclusion in less than the seven years that it has taken to produce its report. On that note, I beg leave to withdraw the amendment.

Amendment 96 withdrawn.

--- Later in debate ---

If the House is going to put any credence on the statement in paragraph 3.4 of the Government’s response to the Public Accounts Committee, from which I quoted earlier, we need answers to these questions. I look forward to my noble friend’s reply. I beg to move.

[Lord Berkeley]

My Lords, I support this amendment. When I read it I thought that it was a breath of fresh air, which, from my small experience of some of these regulatory bodies, is very necessary and probably should have come earlier. The noble Lord, Lord Jenkin of Roding, talked about the importance of competition, which we discussed under the Energy Bill. An awful lot of the regulators, which he rightfully lists, under Section 7, are by definition monopolies, because that is the way they are.

I certainly believe that monopolies are generally inefficient because they are not subject to competition. One role of the regulators should be to make them more efficient and make sure that they reduce their costs as much possible and increase their efficiency. On the rail side, the Office of Rail Regulation has a duty to look at Network Rail’s costs and to make a decision on whether it is efficient. If it is not, the ORR has a duty to reduce its requirement and to reduce its costs while not affecting the efficiency of the operation. As I said in a recent speech in your Lordships’ House, the ORR has already reduced Network Rail’s costs by about 40% in 10 years. It is rightly intent to continue that trend with another 20% or 25%.

That is designed to make sure that the company is efficient and that, therefore, the customers, who largely are the train operators, get the services at the least cost and look after the interests of the customers. The other thing that the regulator has to do is make sure that the company is properly financed so that it can deliver on its objectives.