Lord Davies of Oldham
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Infrastructure Bill [HL]
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Lord Davies of Oldham
Lord Davies of Oldham (Lab)
My Lords, Amendment 32 is designed to probe two issues: the motivation behind the move to a strategic highways company and the extent to which the Minister will be able to affect its day-to-day operations. We are concerned about the cost implications of putting the Highways Agency at arm’s length because doing so could result in significantly increased managerial pay. In fact, there have been comments by informed individuals to suggest that that is certainly one of the attractions of the proposal. It will free the company from the constraints of Civil Service pay. We are also concerned about the issue of additional VAT payments. At present, considerable sums are returned on the basis of the role played by the Highways Agency, but as a company, of course, it will not receive such concessions and will have to meet its VAT obligations in full. We are concerned about fines because we are not at all sure about how any fines would be levied, and on whom. We are concerned about poor value cyclical investments, and we are concerned about the reduced flexibility of the Government in the area of spending in the future.
We recognise that the point of this attempt at improving the infrastructure basis of the Department for Transport as far as roads are concerned is about guaranteeing that certain sums will be spent in the future so that infrastructure projects which clearly need a long time-line of assured expense will have that guarantee. However, we also need some assurance from the Minister that the absolutely critical issue of ensuring that the necessary flexibility, either when situations change or the perspective of Ministers alters, is available. According to the transparency page on the Highways Agency website, at present the top five jobholders all make significantly more than £100,000 a year. One would have thought that in the context of pay in the public service and the other advantages of being in the public sector—the oft-quoted security of pensions, although that is becoming less advantageous as time goes by; job security, although by heavens one cannot talk to many civil servants and get the impression that they feel they enjoy job security—people on salaries of over £100,000 could be expected to discharge a significant area of responsibility. Let us consider whether the pay at the top of the strategic highways company will be boosted by any additional income streams. The Government have quite clearly indicated that these proposals have nothing to do with a long-term perspective on road pricing; we had that discussion at the end of our sitting last week. However, if there are no additional income streams, the taxpayer will be paying those potentially increased wages of the staff.
The impact assessment lists pay and remuneration under the heading “Institutional constraints under central controls”. I want to know what central controls those are, or yet again is a model being followed that we know all too well, in fair weather and in foul, of creating a non-governmental body and seeing its salaries inflate so that they match the private sector, which can always be relied upon to have a significant differential between the top few and the very many who do a great deal of the work and are responsible to them? Is that what we are going to see again prior to privatisation? I beg to move.
Lord Berkeley (Lab)
My Lords, I support my noble friends on this amendment. It may well be that in her reply the Minister will refer to more than one of the five documents that she referred to in last week’s Committee sitting and kindly e-mailed to us the next day. I have now read them but they do not tell me a lot about the questions that we were asking. I hope that before we get to Report we will have the detail—I think that the Minister suggested that more would be forthcoming—of the relationship between a strategy, if there is to be one, a licence for this company, directions and guidance, articles, duties, governance and things such as that. However, in the case of this amendment, who is going to decide how much the staff of the new company are paid unless it is the Secretary of State?
As my noble friend said, it is beginning to look as though the only reason for making this change is so that the staff can be paid more than they are at the moment. It may be that the people who proposed this looked longingly at the remuneration and bonuses received by the senior staff at Network Rail in recent years without seeing that that is changing quite dramatically to a lower figure. Of course, once Network Rail is fully owned by the state, it may change even further. It would be interesting to hear how we are going to know who is in charge of remuneration, management, financial arrangements and staffing if it is not the Secretary of State. Therefore, I think that this is a very good amendment and I fully support it.
Lord Davies of Oldham
My Lords, the Minister has produced the best reply possible while giving little hard information which the Committee really needs. She made one point that I am pleased to see on the record, as long as she stays consistent with it—that there is no change to the VAT arrangements for the new company. We on this side of the Committee are still struggling to see where the significant gains from the new company are coming from. We are meant to top up towards £2.6 billion in due course from these arrangements. I and several of my noble friends have difficulty in reaching such figures, but I guess that the Minister is seeking to counteract what has been expressed as a general hope and intent outside the House with what can be said in Committee and inside the House, on which the Government can be questioned much more closely. I have listened very carefully to the Minister’s comments. Of course I shall withdraw the amendment, because it was meant only to probe. It did not probe very far, so we may feel that we have to table an amendment at a later stage. I beg leave to withdraw the amendment.
Lord 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 Judd
Perhaps the Minister could clarify one point. I thought that the noble Lord, Lord Jenkin, gave a marvellous example of imaginative thinking by people who were given a task and who realised that fulfilment of that task was related to the public perception of what the organisation was about, and so the title should have conveyed the spirit of what it was about. However, I am not quite clear whether the Minister said that it would depend on secondary legislation or whether the power already exists. That point should be clarified. If it does depend on secondary legislation, it would be a pity not to have a wider concept at this stage. I should like to think that everyone working on the Bill is saying, “Here’s a great opportunity to open up the imagination about the responsibility of all concerned”.
Lord Davies of Oldham
My Lords, I assumed that the Minister was indicating that of course there would need to be legislative change if the title of the Passengers’ Council were changed. I am reluctant to get too much involved in proposals at this stage because we have a fair legislative trail ahead of us. We have this stage of the Bill as well as two later stages to consider the matter. The Bill will then go to the Commons, which I think will be pretty articulate about the unsatisfactory nature of the present name and will propose changes. As I understand it, the Minister was saying that it is quite possible that the council will recognise the necessity for change, particularly if it is endorsed in the Commons, and that there would still need to be legislative change, but that it would be secondary legislation when we could all pile in again. I do not think that we need worry too much about the degree of definitiveness that we need to arrive at at this point, although there have been some very useful suggestions from those who have spoken to the amendments.
Baroness Kramer
So many of your Lordships have been really helpful on this point. I clearly have not been very clear. Passengers’ Council is the legal name. If the legal name were to be changed, that would require a change in secondary legislation under the Transport Act 2008, so that is entirely possible. However, the Passengers’ Council already uses a trading name that is different from its legal name; it uses the name Passenger Focus, just as English Heritage has a different legal name—I fear that I do not know what it is—but clearly its trading name is English Heritage. A body such as the Passengers’ Council can adopt one or more trading names. I suggest that we leave it to the Passengers’ Council to decide whether it uses “Road User Focus” or another name as its trading name for this role. If your Lordships have suggestions for a change to the legal name or for a particular trading name, I will gladly pass them over and make sure that they get to the right ears at the Passengers’ Council. I am sorry if I am confusing matters.
Lord Judd
My Lords, I warmly support what my noble friend has said. I should say at the outset of our deliberations that I am sorry that I was not able to be here for the first meeting. I should also underline that I am a strong supporter of the CPRE and that I am involved in the capacity of honorary officer in a number of environmental agencies, not least those dealing with our national parks. All of that is relevant.
We should go back to the mainstream of the argument that we had on the previous amendment. The roads should serve the community. We are a closely knit island with a lot of complex interests to reconcile. Direct impacts and consequences can arise from a new piece of legislation which may quickly become unintended consequences. It is therefore terribly important to get right, at the beginning of a Bill, the approach and ground rules for any strategy that is to be established. An example is the realm of public health. We keep saying that we want more people to take up cycling and walking. It is perfectly clear to me that the role of any regulation in this sphere should be to ensure that not only are those objectives reconcilable with other policies in the public realm, but that they can be furthered.
But then there are all the people who do not use the roads because they are intimidated by and frightened of them. Their interests also need to be looked at very carefully. There are communities which have to contend with increased noise on roads arising from more feed-ins and feed-outs from strategic routes. We need to have some imagination and clarity of thinking right at this early stage about the wider social purposes which the regulator should be looking at in the fulfilment of the Government’s policy. At the moment, looking at the responsibilities of Government and quite apart from their aspirations as expressed for, as I have just said, public health, there is a conflict. We keep narrowing the scope down to, in effect, passengers and drivers, when the much wider community is involved. It is therefore sensible to make this clear at the outset in the tasks set out for regulation.
Lord Davies of Oldham
My Lords, we have major doubts about whether the Passengers’ Council will provide an adequate forum for the public response, so we want to take the opportunity in this new legislation of not just renaming the body, but of widening its perspective. I have tabled two amendments which seek to ensure that the interests of cyclists and pedestrians would form part of the perspective of the strategic highways company, and that the needs of local communities are taken fully on board. Major road schemes clearly have an impact on all communities. However, both of my amendments can more than safely be withdrawn because they are overwhelmed by the more extensive and detailed series of amendments which have been put down by my noble friend Lord Berkeley, and typically my noble friend Lord Judd has backed the winning side. I will certainly not move my amendments when we come to them, and I have a great deal of sympathy with what my noble friend Lord Berkeley has said.
Lord Jenkin of Roding
My Lords, I listened to the noble Lord, Lord Berkeley, with great interest, and I have been pondering for a few minutes whether in fact he is right. My mind goes back, if I am allowed to reminisce, to when the then Government were planning the motorway network. At one stage this involved taking the M11 motorway from London up towards Cambridge and then to join the A14, and it went slap bang through the middle of my constituency, Wanstead and Woodford. Initially my constituents were pretty horrified by this, as indeed was I. This urban area was proposed to have, in effect, a four-lane dual carriageway going from Hackney Wick towards Epping Forest.
The Minister of Transport at the time was my noble friend—as he now is—Lord Fowler, and his junior Minister was my right honourable friend Kenneth Clarke. I persuaded the Minister that they should come and spend a morning with me in Wanstead, which was the part of my constituency that would be most dramatically affected. They came to the perfectly wise conclusion that that part of the road should go underground. It would involve a cut-and-cover operation, which eventually happened.
Once that announcement had been made, though, overwhelmingly my constituents said, “Well then, get on with it”. They did not want constant delay. However, and this is the point that I want to make to the noble Lord, Lord Judd, it was held up for nearly eight years by a series of demonstrations supported by precisely the environmental bodies that he mentioned, and others. Some of them were quite clearly anarchists. They rechristened the area of Wanstead Green “Wanstonia” and declared independence, and all that sort of nonsense. The courts became bogged down with a series of cases to try to get them out, which held up the process for years to the increasing fury of my constituents, virtually none of whom took part in those demonstrations. The demonstrators were all from outside and were the kind of people who live for demonstrating. That is what makes them tick; it is their new religion. I can tell the Committee that that caused enormous irritation in the area. Now, of course, if anyone drives up to Cambridge by that route they go through the cut-and-cover and it is entirely sensible, and people say, “But why couldn’t it be done before?”.
I question whether it is possible that the monitor should regard, as it were, the CPRE and bodies like that as within its remit. It is monitoring the transport system. It is for the planning system to determine whether or not the environmental consequences are acceptable. I do not believe that the monitor should have anything to do with it. There are already enough obstacles. We are debating in another Bill the question of judicial review, because that can also be a great obstacle to getting a transport system properly up and running because of local nimbys and so on. When one is dealing with road and rail—look at what is already happening with HS2—there are enough obstacles in the way already. What we should be arguing about here, in an infrastructure Bill, is ensuring that what we want to produce actually happens without undue delay.
I hope that we shall never see anything again remotely like what happened in my constituency and indeed in other areas around the country, as plenty of former Members of Parliament will be able to testify. That has been one of the biggest obstacles to getting a modern road and rail network, and it does not seem to me that the monitor can have anything to do with that at all.
Lord Jenkin of Roding
I do not want to prolong this, but is that not the function of the planning system rather than of a body that is monitoring the strategic highways company and the railways? There is a separate planning system, which is going through Parliament at the moment with regards to HS2 and which has nothing whatever to do with the Office of Rail Regulation. It is a planning system and I think that these two things should be kept entirely separate.
Lord Davies of Oldham
My Lords, I, too, have memories of motorways. The M25 went around the north of the constituency that I represented, in Enfield. The only tunnel constructed on the M25 was there, in order to protect the interests of my constituents. Subsequently there was an additional tunnel in order to protect a great deal of Epping Forest, which I also greatly supported. However, our negotiations and discussions were nothing to do with planning authorities; we had to deal with the Department of Transport and the excessive, terrifying costs of what is involved in tunnelling. That is why the M25 is a circular route 125 miles long but has only one tunnel, which is constructed as far as the immediate neighbourhood’s interests are concerned. It was nothing to do with planning; the Department of Transport had to answer.
Lord Berkeley
My Lords, I do not want to prolong this discussion for much longer, but some of us, in setting out a role for the Passengers’ Council, are trying to ensure that it produces the right data and looks at alternative options before the company goes ahead and develops new roads. With regard to the planning system, I do not believe that the Passengers’ Council should have a role at all, but I believe that it has a role in producing the data to justify—or not—what gets done and to look at alternatives.
Lord Whitty
My Lords, I shall speak also to Amendment 58 in this group.
The first amendment is to make clear that the ORR, or whatever we end up calling it, will be a regulator as well as simply a monitor. I said earlier that we needed something equivalent to the ORR, which monitors the rail network, to be applied to the road system. There are areas of a strategic road system that need to be regulated. They include safety records—I declare my interest as chair of the Road Safety Foundation. They also include environmental performance in relation to all sorts of things such as carbon emissions, air pollution, water runoff and so on. Someone needs to be regulating specifically the strategic network, which is seen increasingly as a system. It has hitherto been subject to either general regulation or specific regulation by the Department for Transport.
It is important that the new body, as it extends its role into roads, is seen to have as powerful a leverage in that area as the ORR does in rail, to achieve the excellent levels of safety that we have achieved in the railway system in recent years and to ensure that the strategic network continues to make substantial improvements in the safety record on the highways network. If the Government maintain their line that the monitor is not a regulator, then it is not just a question of symmetry between the different modes but a question of the effectiveness of the Government’s role in relation to the strategic transportation system within England. The ORR-plus needs to be given that clear role.
As to my second amendment, I suspect that I shall get from the Minister the same answer that I received in relation to the Passengers’ Council’s funding. It is important, though, to recognise that this situation is unusual. In energy, water and telecoms the money comes from the regulated industry. In her response on the issue of funding for the Passengers’ Council-plus, the Minister said that it would come from the Government. I assume that I am going to get the same answer in relation to the regulator/monitor.
It is important for the Government to recognise that this is unusual, and someone sitting in the Treasury probably realises that. On reflection, I still think that this should probably be a matter for the user organisation, the watchdog, if such a provision were to be written into the legislation. Some future Chancellor, of whatever party, may ask: “Why are we, the taxpayer, paying for this in relation to transport, when in all the other regulated sectors it is the industry that pays for it?”. In the great scheme of things, the Treasury, wearing another hat, regards all this as taxation because it is a mandated levy on the industry, but in terms of the impact on the general expenditure of the Government it is in a different category. It would therefore be useful not only to have on the record the Minister saying that that is how this body will be funded but, for added certainty, to put something like that in the Bill. I beg to move.
Lord Davies of Oldham
My Lords, I have amendments grouped with those of my noble friend Lord Whitty, and I agree with a great deal of what he has just said.
Amendment 54 is my chief amendment and is designed to ensure that the monitor focuses not simply on the financial cost of the strategic highways company’s activities—that is, the bill to the taxpayer for the SHC—but on its wider non-monetisation impacts such as landscape, biodiversity and social distribution. We need breadth to the monitor’s analysis of the performance of the company. The text is based on guidance in the Treasury Green Book on appraisal, so I am merely suggesting that where the Treasury thinks that the proper appraisal of an activity should include these features, I want them to be included when considering the SHC.
The other amendment in the group is a minor one about removing all exemptions in documents. We do not see why these powers should be restricted in the documents that are made available, but that is a relatively minor aspect. Amendment 54, however, is of considerable import.
Lord Berkeley
My Lords, I have tabled two amendments in this group, but I shall speak to the whole group because all the amendments consider the role of the monitor—the Office of Rail Regulation or whatever it may be. I get the feeling that Ministers are rejecting any comment that might enable the SHC, or the government policy that surrounds it, to climb out of its roads silo. There is probably a rail silo because that is the way the railways work. There is also clearly a road silo, so what these and several previous amendments are trying to achieve is the ability to look at cross-modal choice and to consider the issue of sustainability, which seems to be forgotten about for much of the time. The ORR would have the opportunity and the capability to look at the alternatives and it would be able to consider the costs, which of course it is meant to be monitoring.
Monitoring something is not quite the same as pushing for greater efficiencies, a point I made when speaking to a series of amendments that we considered last Thursday. What the ORR has achieved with Network Rail is a reduction in its costs by 60%. If the new construction and maintenance costs of the highways were to be reduced by 60% in a period of 10 years, either we would have quite a few more roads that were in better condition or the Treasury would be very happy—or both. It is an opportunity that will be missed unless the regulator is given more powers. That is the point of Amendment 57. The compromise would be that the ORR would report to the Secretary of State within three years with ideas on how it might do its job properly.
There are several other issues. My noble friend Lord Whitty mentioned safety. During a Question for Oral Answer earlier today a noble Lord talked about road safety and the issue of HGVs. Safety on the roads may have got better, but it is still disastrous compared with safety rates on the railways. It is not just about people being run over; it covers a multitude of different issues for which I believe the ORR could come up with some new ideas. I have separated out two amendments related to level crossings so that they will be considered later, though I am not sure when. However, level crossings are a major safety issue for the railways. There is really no reason that I can see for not putting all these together under one safety rule—based, in my book, on the Health and Safety at Work etc. Act. I know that that was being debated in the Deregulation Bill yesterday and some rather distressing issues were brought to the fore.
Safety is one thing but pollution is another. Recently we were told that the pollution measurements in Oxford Street are three times the EU limits. There would not be any harm if the ORR were able to look at that as well.
Finally, on funding, the Office of Rail Regulation is funded by the industry: 50% by Network Rail and 50% by the train operators. I cannot see why the ORR’s monitoring of road activities should not be funded partly by the company running the infrastructure and partly by the users. That would be a good balance. There is absolutely no reason why that should not happen except, I suppose, that Ministers would be frightened of the road lobby. However, there would be a consistency between road and rail, and there is an opportunity here for at least getting the funding for the ORR on a consistent basis between the two.
Lord Davies of Oldham
Lord Davies of Oldham
My Lords, we come to a very serious part of the Bill. I doubt whether there is any Minister who does not quail at the thought that the Delegated Powers and Regulatory Reform Committee might offer a smidgen of criticism of a Bill that the Minister is setting out to defend. I see a no more trenchant onslaught of the Bill than the second report of the Delegated Powers and Regulatory Reform Committee. I suppose that as soon as we all saw the report, we ought to have anticipated that there would be government amendments compliant with the requirements of the main recommendations in the report, but we were not certain. That is why we have tabled Amendments 61A and 61B, which are committee recommendations.
The committee expressed itself in very forthright terms indeed. It was quite explicit about the Henry VIII powers in the Bill, and its certain condemnation that that attempt should be successful. There is no need for me to read out the full report. Its indictment is clear enough. It says in its crucial paragraph 4:
“We draw these powers, and the deficiencies in the explanations for them, to the attention of the House. We recommend that, unless the reason for their inclusion and their intended purpose can be fully explained to the satisfaction of the House, the words ‘otherwise modify’ and ‘(whenever passed or made)’ should be omitted from clauses 13(5), 14(2) and 28(2); and that, if the words ‘otherwise modify’ are retained in clause 14 or 28, the same words should be inserted in clause 29(2)(c) so that regulations made under that clause in reliance on them will require the affirmative procedure”.
The committee seeks excision of certain parts of these clauses. In other respects, it is determined that it should be affirmative procedure. That is what my amendment seeks to achieve. I beg to move.
Baroness Kramer
My Lords, most of these amendments concern the comments made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. I do not think there is any disagreement on the points that have been raised. The amendments tabled by the noble Lord, Lord Davies and Lord McKenzie, address comments made by the committee by providing that the references to modifying legislation should be removed, leaving the powers in Clauses 13, 14 and 28 as powers to amend, repeal and revoke legislation.
The Government prefer to take a slightly different tack, retaining the power to modify, but adjusting Clause 29 so as to ensure any modification of the application of an act is subject to the same affirmative resolution procedure as applies to the amendment of an Act. As the Select Committee report noted:
“Non-textual modifications of primary legislation are capable of making changes which are no less significant than textual amendments”.
We prefer our approach, simply because it can be preferable, in some circumstances, to modify the application of an Act so as to cover additional circumstances, rather than by making textual amendments. As the power will be subject to the affirmative procedure, Parliament will have the opportunity to scrutinise any use made of the power, which will include consideration of whether a non-textual amendment approach would be inappropriate in the particular circumstances.
The government amendments also address the point raised by the committee regarding future legislation. It provides that repeals, amendments and modifications of primary legislation under these powers can be made only in respect of Acts passed before the end of a Session. I am sure that is much the same as the intention behind the amendment laid by the noble Lords, Lord Davies and Lord McKenzie, which remove the words “whenever passed or made” from the relevant clauses.
Amendment 97, the final amendment in the group, addresses a different point. It adjusts the extent of a provision so as to ensure that not only do Clauses 13 and 14 extend to the whole of the UK, but Clause 15, which defines some of the terms used in Clauses 13 and 14, also does so. It was always our intention that the definitions in Clause 15 should apply to Clauses 13 and 14 in all jurisdictions. This technical amendment makes that slight correction.
I hope noble Lords agree that the government amendments are an appropriate response and will agree to withdraw their similar amendments accordingly.
Lord Davies of Oldham
My Lords, the Government have made a shot at giving a response, but I do not need to point out to the Committee the difference between compliance with what the Delegated Powers and Regulatory Reform Committee suggested and a dependence on affirmative procedure in crucial parts of the legislation. We all know the limitations on affirmative procedure. Of course it is an important dimension that gives a chance for effective reassessment, but it is not the same as getting the statute right. I am not going to press the amendment in Committee, but I am by no means sure that my colleagues in the other place will feel so inhibited. The Government will therefore have to work quite hard to establish the fact that they are not taking advantage of the situation in a way that is to the detriment of parliamentary scrutiny of the legislation we are considering. For the moment, and with some reluctance, I beg leave to withdraw the amendment.
Lord Berkeley
My Lords, I also support my noble friend’s amendment. The situation is a classic case of restrictive practices or protectionism—whatever we would like to call it. I thought that this Government were against restrictive practices and protectionism—after all, they have several deregulation Bills—but, as ever, it seems that the Home Office is exempt.
During my Question on HGVs today, the Minister mentioned in reply the work being done in London between VOSA and the police to stop lorries that might be thought to be contravening some regulation or other. In fact, I was invited to witness one of these events a few weeks ago. They do it every day in different parts of London, and it works well; the number of vehicles that are stopped and the number of charges that the Minister told the House about are very impressive. However, there is one thing that has not happened. I said to the Metropolitan Police people and VOSA, “You’re doing all these things, but do you have one common database so that you can work out how to catch these people and do something with them?”. Very politely, the answer was, “Well, no we don’t, because the Met doesn’t allow it”.
The issue of whether the Met is above the law is a debate that we can have on a different day, but it is the same issue as the restrictive practice of saying, “Don’t set foot on my patch, otherwise—although I will not shoot you—I shall make sure that there is trouble”. Surely we should all be working on the same databases and sharing things. VOSA has made major progress here and it is about time that the Met caught up. If an amendment comes back on Report, either from the Minister or from my noble friend, it would be nice to think that a Home Office Minister could be here to answer on this issue and make a proposal.
Lord Davies of Oldham
My Lords, like the noble Lord, Lord Jenkin, I have heard my noble friend Lord Faulkner wax lyrical persuasively on this issue, and I have heard the noble Lord, Lord Bradshaw talk about it on many occasions. It is clear that the case stands—and stands mightily proud. We have had this argument long enough for a Government to see sense on this. All that I can say to the Minister at this moment of decision is that I shall be showing the utmost loyalty and commitment to my noble friend. The Minister has a noble friend on her side arguing the same case. I advise her to follow my example.
Baroness Kramer
I point out to noble Lords and the noble Lord, Lord Davies of Oldham, that this issue appears to have been on the table for some 15 years. How interesting it is that the Government for most of those 15 years did absolutely nothing to resolve the issue. The noble Lord may wish to hesitate slightly in being critical.
Lord Davies of Oldham
I was not being critical at all. I was being anticipatorily hopeful.
Baroness Kramer
I say to the noble Lord, Lord Faulkner, that we have a great deal of sympathy with the issues that he has brought forward. The question is whether, from an entirely practical perspective, we are able to resolve all the various policy implications and clearances in time for inclusion in the Bill—not least by working out whether we need legislative consent from the Scottish Government; obviously, there is that additional layer of complication over the BTP and devolution issues. That would all need to be resolved.
Given that situation, we have particular concern that the BTP has all the necessary powers needed to take enforcement activity at level crossings. I can say that we will give this issue careful consideration and will review the current arrangement to consider how best to address this anomaly, including whether amendments are required to the various Acts and sections that the noble Lord, Lord Faulkner, described. As I say, at this point, it is not clear that we can resolve all this in time for inclusion in the Bill, which is my primary concern. I therefore ask the noble Lord to withdraw his amendment, but we will consider it and see what is possible within the timeframe that we have to work with.
Baroness Parminter (LD)
I support the Minister looking closely at the amendment from my noble friend Lord Bradshaw for two reasons: first, because of the point he made that we need roads of good quality, whether you are the user of a car, a cyclist or some other person travelling on the road. We are facing far less revenue coming in to the Treasury to pay for them and need to find other sources of funding. That seems to be a reasonable proposal.
Secondly, I follow on from the comments of the noble Lord, Lord Berkeley, about cyclists. I speak as someone whose husband suffered a serious cycling accident two years ago—the police do not know whether it was because he went into a pothole or was hit by a car and then hit a pothole, but potholes were clearly involved in that accident, and he still has no recollection of what happened. There is an increasing number of good reasons to encourage children on to bicycles. I speak as someone who cycles my youngest to school when I can. It is madness for us to want children to be encouraged to go out to cycle for the health benefits that that gives them if, by the time they are adults and cycling to work, the roads are in such poor condition that it is not safe for them to go on them.
We need safe and well funded roads, which means that the Government are going to have to be creative in how we find that money. I think that the amendment offers an opportunity for further discussion and debate.
Lord Davies of Oldham
My Lords, my noble friend Lord Bradshaw is nothing if not creative in his response to transport problems. I guess that this is a creation a little too far for the Minister, but we shall see from her response. I understand my noble friend’s arguments and agree with some of them very strongly. We do not have a real measurement of the impact on our roads of heavy vehicles. The most amazing thing that any road user has to come to terms with is looking at the carriageways which heavy trucks have been traversing and then at the other two which are used by cars. You are looking at what is virtually trench warfare. The impressions in the surface reflect the enormous impact of goods vehicles, so whether they pay enough is a challenging financial issue. I am sure that the Minister will be able to explain just how great that challenge is.
On the question of potholes, I do not deny that there are potholes on all our roads. They are a serious issue on our main trunk road networks because vehicles can become involved in desperately bad accidents either through hitting them or by seeking to evade them at the last moment. However, I venture to suggest that most of the problems of potholes are not on the strategic road network; they are on the local road network. That is where we have such a massive problem, which is partly a product of our perhaps not employing the best possible techniques when building them and partly because we have had some very severe weather in recent winters. We all know the havoc that that has wrought on our roads. However, that does not alter the facts. I know that the Government talk of extra sums being made available, but they look pretty thin on the ground for local authorities when it comes to the challenges they face.
I have considerable sympathy with the amendment of the noble Lord, Lord Bradshaw, not least because he sees yet another opportunity to articulate clearly an important dimension of our transport anxieties. I am just grateful that it is the Minister who has the task of allaying them.
Lord Berkeley
My Lords, I bow to the expertise of previous speakers because I am no great expert in species. The previous three speeches have demonstrated that it will be quite a challenge to decide what is in and what is out. The issue seems to be very subjective and no one is fighting tonight, but I expect that the experts will fight in the future.
I have two examples—and I do not know whether they are in or out; perhaps the noble Baroness can help me. I have a quote from the Western Morning News last week, under the headline:
“UK ladybirds are being eaten by their invading cannibal cousins”.
Ladybirds are now cannibals that are eating either the five-spot or two-spot ones—I could go on—and invade at the speed of 200 kilometres a year. Even though they came in 20 years ago, I do not know whether they have reached Cornwall yet. Maybe the noble Lord, Lord Teverson, will know. Are they included? Have they been here before? Where would it be?
My other example is from three or four years ago when a friend of mine discovered that the Duchy of Cornwall was introducing Japanese oysters into the Helford River in Cornwall—we seem to have been in Cornwall a lot, but I cannot help that—without doing an environmental study or getting permission. Oysters were put in the cages, which all looked very nice, and some people liked them and some did not. However, after a year they all died, which may have served right those who introduced them, but it killed every other oyster in the river—the native oysters. I do not know whether those Japanese oysters would come within the context of this part of the Bill. Those that came from Japan certainly killed all the local ones, and it was of some comfort when my friend took the duchy to court. Its defence was that it believed that, for all practical purposes, it was above the law. I do not know whether that was why the court found against the duchy because the matter is still sub judice. That is an example of someone bringing in a species and perhaps not following it through to see if it was the right one to bring in.
That is why I tabled my Amendment 71. When I was researching it, I thought, “What is a species?”. I looked it up on some web dictionaries, and the best definition seems to be the wording that I have put in the amendment. Does it cover things in the air, be they birds, insects or whatever? Does it cover animals, birds or whatever that walk on the ground? Does it cover things in the water? That is a pretty important place from which we should start. It would be very good if someone could give a definitive answer so that we knew what the context was and where we might go from here.
Lord Davies of Oldham
My Lords, I have a great deal of sympathy with the main outline of the speech of the noble Baroness, Lady Parminter. I was a little less keen on the pasty that was identified as being available in Cornwall. I recall my brother-in-law, who is an expert on birds, arriving in Cornwall in the early 1990s and seeing a chough, which I did not see. He was certainly well versed in the significance of choughs to the Cornish position.
The purpose of the amendment that I have tabled is to get some sharpness of definition in the crucial area that we are concerned with. We all know that the issue of invasive species is of great significance. It is one of the causes of the loss of biodiversity and much of the world, and we have seen indications in this country of the extent to which that occurs. The annual cost of invasive non-native species to the economy is put at £1.3 billion, so we are not talking peanuts here.
I shall mention my own experience of this. I heard someone—I think it was the noble Lord, Lord Teverson—suggest that we could not mention Japanese knotweed. I am going to mention Japanese knotweed quite often. My acquaintance with the problem of Japanese knotweed was to see a person lose the value of their house, in an ordinary suburban area with absolutely no suggestion of any threat at all except of Japanese knotweed. The plant effectively reduced the price of their house from £350,000 to £50,000 in value. They simply had to get out of that house as they did not think that they could afford the costs of controlling the knotweed.
That was my introduction to local difficulties, but when I was in the department I became acutely aware, and I am sure that the Minister is well versed in this, that whenever a group of people come together to discuss Japanese knotweed, the railway industry is going to be there in force, as indeed it was on every occasion when we discussed it, simply because of the sheer cost to the railway system in this country of keeping the wretched plant at bay.
We are not talking about trivial issues as far as the nation is concerned when it comes to certain aspects of non-native species in this country. For agriculture alone, the cost in England and Wales seems to be getting on for £1 billion. That is an awful lot of money being spent in seeking to control a plant. In the European Union, the annual cost of non-native species is €12 billion. We were gratified to hear at the Defra briefing this morning of the extent to which there was international movement and action on this, and that the European community was playing its full role in this. There were one or two interesting exceptions that we heard about, which raised an eyebrow or two; many of us thought that the Danish scarcely merited the kind of exemptions that we in this country could hardly get for particular products and local parts of the economy; nevertheless, the Danes had obviously put up a good case.
However, I want to emphasise that we have to get this right. I know when I say those words that it is not possible to get it right, because it is a continual battle against change, some of it produced by climate change, which accelerates the difficulties.
We support the clause. The reason we want to probe the Minister is obvious enough; the noble Baroness, Lady Parminter, did the task for me. Red kites were reintroduced at Woburn, not far from where I live. The first arrival of a red kite on a tree, resting and then taking off in all its glory is something that I treasure. Of course I applaud the reintroduction of certain species, but I heard what the noble Lord, Lord Cameron, said about his anxiety about beavers. That shows the differences there can be between different parts of the community. People I have been talking to thought that beavers might help to restrict floods because they build dams to do so, whereas the noble Lord, Lord Cameron, thought that beaver dams might accelerate the problems. There you are, you pays your money and you takes your choice on that.
Before the Olympic Games, an absolute fortune was spent on clearing the site of my dear friend knotweed. The site had to be cleared of a lot of other very noxious things indeed. One of the great expenses of the Olympic Games was getting the site clear, but Japanese knotweed featured in that and cost £70 million to remove.
We must not underestimate the challenges which such species present. My amendment is tabled in order to get, and I am certain that the Minister will oblige the Committee by giving, a clearer definition of what the noble Baroness, Lady Parminter, asked for in the first place.
Baroness Kramer
My Lords, the noble Lord, Lord Davies, is absolutely right: £1.8 billion is the estimate of the cost, a lot of it falling on agriculture but a significant amount on transport, of invasive non-native species.
It is important to understand that this measure is one part of a much broader range of measures. It is particularly focused on tackling prevention, and then early detection and rapid response, so that we do not always find ourselves, as we have with the grey squirrel, for example, in a position where an invasive species has so taken hold that we are now able to consider only control. I think that every one of your Lordships would regard that as an important strategy.
The questions raised by the amendments centre on definitions. On the sensible advice of the Law Commission, the definition of non-native used in this part of the Bill is consistent with that already used in Section 14 of the Wildlife and Countryside Act 1981. Part of that is a list, and part of it is a broader definition. It is drafted to regulate the release of formerly native species. It is clearly not a list that matches what we are intending to do with control orders, because control orders give us the ability to go in to make sure that a species may be eradicated—that eradication is possible. There are also other lists, as noble Lords who came to this morning’s meeting will know, because the European Union will be creating a core list some time in 2015 and regional lists will follow. So we have a whole range of lists. The important element in all of this for the purpose of the control orders will be a code of practice that will overlay the lists. That should be available in draft form to your Lordships by Report.
The list in Schedule 9 referred to by my noble friends Lady Parminter and Lord Teverson contains species that we would not attempt to eradicate, with rhododendron ponticum being a good example. There are species on the list that we would attempt to eradicate, such as the monk parakeet, but a lot of the work under control orders would focus on species which have not yet arrived here and therefore are not on any list at all. The code of practice will provide the relevant mechanism for working out a complex situation where a number of lists are developed for a whole range of purposes.
Lord Davies of Oldham
“( ) The Secretary of State must publish an annual assessment of species control operations.”
Lord Davies of Oldham
My Lords, I have quite a lot to say about this next amendment so I shall speed up as I respect the fact that time is moving on. The clause centres round the sustainability of new species control agreements and orders. The Government’s capacity to take an intelligence-led approach to prevent non-native species becoming established in the UK has been significantly reduced. We valued the presentation at Defra this morning and the work that the department has done, but the cuts that have been sustained in some of the scientific establishments concern us, particularly the ecological science services at Kew. One should not underestimate the difficulties that flow from the reduction of that activity.
The Government have failed to implement the ballast water convention in spite of evidence that non-native invasive species transported in ballast water tanks pose a significant biosecurity risk. There is enough evidence for us to take these issues very seriously, and I hope that the Minister will indicate that there is a possible change in the Government’s perspective on their actions. The Woodland Trust has also raised concerns regarding the ability of environmental authorities financially to support species control agreements and orders. Many of the environmental budgets are already stretched but eradication control of invasive species is vital and needs to be adequately prioritised and supported. That is the burden of the opening statement made by the noble Baroness, Lady Parminter.
The Government need to face up to the fact that the cost to agriculture and fishing is growing. Climate change is probably a key reason why the number of invasive non-native species arriving in the UK is increasing. The Government must reassess the work of the GB Non-native Species Secretariat in the light of this evidence. After all, the House of Commons Environmental Audit Committee report made it clear that for an eradication campaign to be successful and cost effective it needs to be timely and informed by good evidence and sufficient funds to sustain it until complete eradication is achieved. None of us underestimates the challenge represented by that comment by the Environmental Audit Committee. The Government need to engage with the EU’s work in revising the plant and animal health regulatory frameworks to ensure that the result is a unified approach to biosecurity threats between these regulatory frameworks and the invasive species framework. Some of us were reassured this morning about the degree of co-operation within the European Union. It is obviously a germane time for us to take the fullest possible advantage of good will among the nations of Europe.
Prevention is definitely cheaper than eradication, and it is in the best interest of the environmental authorities to have annual assessments to put in place goals and objectives that would, in turn, allow them to plan their capacity to carry out species control operations. It is also extremely important that we continue to monitor the development of these species control orders and to analyse effectively their ability to hit their targets.
The Bill does not allude to the monitoring of this new scheme and how we can track its progress and achievements. We need that. Not all of us—certainly not many of our colleagues—will have the same kind of opportunities vouchsafed to those of us who went to Defra this morning. We need to ensure the wider public is well informed about progress. An annual assessment would look at which species have been identified, which would be subject to species control orders, how many have been carried out, the success of the scheme, and an evaluation of the scientific evidence surrounding invasive species, animal welfare and so on.
There is clearly a great deal to be done. The amendment seeks to identify the fact that the Government are not doing enough at the present time. I beg to move.
Baroness Kramer
My Lords, I need to be rapid in my response, so let me simply say we think an annual assessment of species control orders is too frequent, as we estimate there is only one control order a year. However, we agree that an assessment of how these provisions are working is required. The code of practice will make clear that this assessment should form part of the five-yearly review of the GB invasive non-native species strategy.
We do not accept Amendment 67, which states that there should be a requirement on the Secretary of State to ensure that the environmental authorities,
“have the necessary capacity to carry out species control operations”,
because, at the rate of one order a year, it is entirely feasible for this to be met from existing resources. The environmental authorities are already resourced with this kind of activity in mind.
We do not support Amendment 68, which would remove the requirement for agreements made in relation to a dwelling to be made only by the Secretary of State or Welsh Ministers. We believe that this is an appropriate additional safeguard for the more intrusive use of powers under this regime.
I hope that that reassures the noble Lord, Lord Davies, and that he will withdraw his amendment.
Lord Davies of Oldham
My Lords, that reassurance is noted. I beg leave to withdraw the amendment.
Baroness Kramer
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.