London Local Authorities and Transport for London (No. 2) Bill [HL]

Lord Jenkin of Roding Excerpts

Monday 28th March 2011 Lords Chamber

Moved by

[Lord Jenkin of Roding]

1: The Preamble, page 1, leave out lines 8 to 10

[Lord Jenkin of Roding]

My Lords, I beg to move Amendment 1 standing in my name and with it I hope we can discuss Amendment 2 and Amendment 3.

I ought to begin by declaring my interest. I am a joint president of London Councils along with my noble friend Lady Hamwee and the noble Lord, Lord Graham of Edmonton. London Councils is the representative body for the London borough councils, one of which, Westminster City Council, formally promotes this Private Bill jointly with Transport for London.

I am glad that at long last I can move the Third Reading of this Bill. It has been a very long wait. The Second Reading was on 20 February 2008. It is more than two years since the Select Committee completed its consideration of the Bill in March 2009. Before I can move to the contents of the Bill I ought just to explain why there has been this almost unparalleled delay with this Private Bill.

The Select Committee sat between 9 and 11 March and heard the petitions and representatives of the pedicab trade—I will deal with that later—and also the London Cycling Campaign. The committee decided that amendments should be made to the Bill and produced its special report which was published on 23 April 2009. At this point I express my warm thanks to the members of the committee, chaired by the noble Lord, Lord Faulkner of Worcester, whom I am glad to see in his place, and whose members included the late Lord Dahrendorf—that, too, gives one an indication of the passage of time. I thank them most warmly for their work.

After the committee reported, a new threat emerged to the Bill. A group of bodies representing the sporting interests voiced concerned about what are now Clauses 16 and 17. These would enable London authorities to recover the costs of cleaning streets and imposing traffic regulation measures at sporting and other events. The promoters became convinced that the sports bodies had very strong support among your Lordships and recognised that there was potentially a serious threat not just to Clauses 16 and 17 but to the whole Bill. Not surprisingly, therefore, they embarked on a process of negotiation with the sports bodies.

That process proved to be very long indeed. Without going into detail, I think that it is enough to say that agreement in principle was eventually reached about a year ago, last spring. However, soon after that the election was upon us, so the Bill had to wait until it could be revived in the new Session. Then, although the promoters believed that they had reached agreement with the sports bodies, a new point of dispute arose and conclusion of that was not finally agreed until the beginning of this year.

The Bill deals with seven distinct subjects. Because the Second Reading of the Bill was entirely formal and there was no debate on the Floor of the House, I think it right to take a few minutes of your Lordships’ time to describe briefly the main points in the Bill. As originally drafted, Clauses 4 and 5 would have enabled London authorities to attach street lamps and signs to buildings without requiring the consent of the owner or occupier of the building. The provisions were intended to bring the rest of London in line with the City of London Corporation, which already enjoys these powers. The intention is to avoid cluttering up the streets with more and more street furniture. However, in response to points made by the then Minister, Rosie Winterton MP, in her report to Parliament on human rights, the promoters put forward amendments to the Bill. Subsections (3) to (7) of Clause 4 now require the authorities to serve notice on the owner of the building in question and to take any representations into account. Subsection (12) requires the authorities to come forward with a statutory code of practice about the exercise of the powers. The provisions relating to compensation have also been amended in favour of the property owner.

If there are any lingering concerns about the precise terms of the code, I suggest that they may properly be dealt with in another place. That leads me to make the point that, although the Bill has taken over three years in this House, it still has to go through the other place. The promoters have taken leading counsel’s opinion on the compatibility of Part 2 with the European Convention on Human Rights, and she is satisfied that it is now compliant.

Clauses 6 and 7 deal with damage to the highways. I mention them briefly because they have been uncontroversial. They will enable the London authorities to recover the costs of repairs to the carriageway where damage is caused by construction traffic. They will also enable them to require a deposit in advance of the construction works commencing.

The main purpose of Part 3 is to decriminalise offences relating to builders’ skips. One might express some surprise that builders’ skips have to be dealt with on the Floor of the House, but the sort of offences that I am talking about are putting them out without a licence or not properly lighting or protecting them. Clause 9 enables a highway authority to require information about who the owner of the skip is in order to determine on whom penalty charge notices should be served. Clause 10 provides that the owner of the builders’ skip will be liable to pay any such charge arising from a contravention. Representations may of course be made against the imposition and appeals may be made to an adjudicator, very much as with the existing parking regime.

Part 3 also alters the powers of the highway authority to place conditions on giving permission for placing a skip on the highway and will enable the authority to insist that the skip has, as an integral part, lights or a guard or system of guarding. That would enable the highway authority to fix an immobilisation device to a skip in cases where it has also served a penalty charge notice.

I understand that there may be some concerns about Clause 9(5), which provides for a defence of knowingly giving false information about the identity of the owner of a skip. There has to be some way of enforcing Clause 9, which enables the authorities to obtain from the skip company the name and address of the person on whom they can serve a penalty charge notice. If not, the authorities will end up in a position where the whole of Part 3 will be unenforceable. It would soon become clear if a skip company had given false details knowingly, but I would hope that the threat of appearing in court would deter them from doing that.

I turn now to Clauses 16 and 17, which deal with the recovery of exceptional traffic management and waste clearance costs. These are the clauses that provoke the objections of the sports bodies to the Bill. Your Lordships will see that amendments have been tabled to remove both clauses from the Bill. The quid pro quo—not a surrender to the sports authorities—for that is that a memorandum of understanding has been signed with the Premier League and the Football League. I will explain that in a moment. The clauses as they stand would allow councils and Transport for London, as traffic authorities, to reclaim expenditure incurred in implementing traffic management measures, and allow the borough councils to recover expenditure incurred in complying with their duty to keep land and highways clear of litter, where the expenditure is reasonably incurred as the result of a sporting or other event.

The Department for Culture, Media and Sport expressed some objection at an early stage to what are now Clauses 16 and 17. Its objection was relayed to the Select Committee. Although there were no petitions against the provisions from the sporting parties, after the Select Committee had reported, significant opposition was expressed by them, including the Premier League and the Football League. Therefore, there were negotiations, which resulted in the memorandum of understanding being signed between the promoters and the Premier League and the Football League. The effect of that will be that London clubs that have a certain minimum average attendance will be required to enter into negotiations with the authorities, with the aim of reaching an agreement whereby the costs of the authorities would be recoverable as though Clauses 16 and 17 had been enacted. There are specified target dates for the completion of the agreements. No doubt, if agreements are not reached the promoters will have to consider coming back to this in future legislation to protect their interests.

Clause 18 deals with interference with barriers. It makes it an offence to open, close or otherwise interfere with a barrier erected to prevent the passage of vehicles, or any class of vehicle, into, out of or along a highway without lawful excuse. There has been no objection to that. Indeed, it is a very sensible measure.

Turning now to pedicabs, I cannot say the same for Clause 19. Those of your Lordships who have been in the West End recently will be familiar with what a pedicab is. The Bill, in Clause 19(8), defines them as cycles,

“constructed or adapted … to seat one or more passengers; and … for the purpose of being made available with a driver in the course of a business for the purpose of carrying passengers”.

That is a pedicab. The clause is solely about traffic management. It is not about the safety of the pedicabs themselves or the fitness or suitability of the riders. The clause would enable councils and Transport for London to identify the owner of a pedicab and to serve a penalty charge notice on the owner when a parking or moving traffic offence is committed. The clause goes on to say that it would operate only when either the councils or Transport for London have arrangements in place for a voluntary registration scheme for pedicab owners, or if a separate statutory licensing scheme had been enacted. Because such a scheme would undoubtedly require the pedicabs to display some sort of plate that could be used to identify the owner, that would inevitably follow. However, the clause does not, of itself, set up a statutory licensing or registration scheme.

There was an attempt some years ago, under the previous Bill, to set up such a scheme, but it was rejected by the Select Committee in another place on that occasion. A company that rejoices in the name of Bugbugs petitioned against the clause and appeared before the Select Committee. It owns pedicabs, which are hired out to riders for use in the West End. The Lords Select Committee did not accept the company’s arguments and the promoters are expecting opposition to the provisions in another place, not just from the pedicab operators but from the taxi trade.

Part 5 enables London local authorities to provide and operate charging apparatus for electrically powered motor vehicles on highways and to permit third parties to do this. It sets out the procedures for this provision as well as creating an offence of the unlawful use of charging points. The number of electric vehicles has increased rapidly since the Bill was introduced. It is well known that the Government are very much in favour of encouraging their use and, indeed, the Mayor of London has made it a priority. There has been no opposition except from the Society of London Theatre, which was understandably concerned about points being placed directly outside theatres.

In conclusion, I hope that what I have said will persuade your Lordships to give this Bill a Third Reading and agree to the amendments that I propose. I beg to move.

--- Later in debate ---

[Earl Attlee]

My Lords, it is more than two years since Parliament last considered this private Bill, so it is the first time that it has been considered by the coalition Government. I am grateful to my noble friend Lord Jenkin of Roding for his explanation of the Bill. I should point out to the House that my noble friend is leading on the Bill—not me. The noble Lords, Lord Rosser and Lord Faulkner of Worcester, have made some points about procedure. I want to make it clear that it is not a matter for me but a matter for the Procedure Committee of your Lordships’ House, as I am sure all noble Lords would agree. However, this is not the first time that the London local authorities and Transport for London have promoted a private Bill together. The Bill would confer a variety of powers on its promoters to improve streetscape and the local public realm. My noble friend has explained how that will work with the Bill so well that it is unnecessary for me to repeat his work there.

The Bill's provisions would also enable the promoters to enforce sanctions against anybody giving traffic unauthorised access to gated roads and enforce moving traffic and parking contraventions against pedicab owners and operators where the owner or operator has entered into a voluntary registration scheme. Again, my noble friend has given a comprehensive explanation. The Bill would also put in place a comprehensive system to allow the installation and use of charging points for electric vehicles on the highway in locations across the capital.

I acknowledge the amendments that my noble friend Lord Jenkin has proposed and explained so well. Although I very much doubt that we will be voting on the Bill this evening, I should like on behalf of the Government to comment on a few points of note for the record. The Bill creates various new civil and criminal offences in relation to improper conduct when depositing a builder's skip on the highway; the unlawful opening of a gated road to unauthorised traffic; the improper use of a charging point for electric vehicles; and moving traffic and parking contraventions by pedicabs.

The Government are committed not to create new offences unless it is truly necessary to do so. My noble friend Lady Kramer made some pertinent points about that. As such, I should state now that before the Bill reaches its Committee stage in the other place, the promoters will need to have submitted to the Ministry of Justice their assessment of the impact of creating these offences. This will allow the Government to come to an informed view on whether their creation is appropriate. Other clauses have the potential to impose burdens on business, particularly the construction industry. I am referring to the clauses relating to the placement of skips on the highway and to recovering the cost of remedial work on the highway from a developer after a development has taken place.

The Government's position on increasing the burden on business is very clear and we will be considering whether, in our view, the Bill would create an unacceptable burden on business in order to make our views known before the Bill reaches Committee stage in the other place. The Government have already notified the promoters of some clauses which we feel could be improved or altered by some minor amendments, particularly with regard to the affixing of street furniture to buildings, where we would like the owner of the building which is to have street furniture affixed served a notice stating the exact date on which the work will begin and the terms of usage of electric vehicle charging points installed and operated using the powers conferred by the Bill.

We will be seeking to reach agreement on amendments with the promoters before Committee stage in the other place as it is then that the Bill can next be substantially amended. Aside from the specific points I have raised this evening, the Government are content that the Bill passes to the other place, where it can be further scrutinised to ensure that the points I have raised—most notably in relation to the creation of new offences and the imposition of new burdens on business—can be addressed to the Government’s full satisfaction. I conclude by thanking my noble friend for putting forward the Bill.

[Lord Jenkin of Roding]

My Lords, I am extremely grateful to all noble Lords who have taken part in this debate, and for the important comments that have been made. I was amused by my noble friend Lord St John of Fawsley, who congratulated me on my persistence. I have to say that that is wholly undeserved. I did not move Second Reading. The people who can be congratulated are the promoters, the London boroughs and Transport for London. I shall take his kind words about that and simply comment that at a very early stage in my career, someone said to me, exactly as my noble friend has said, “Patrick, if you want to achieve anything, keep pegging away”. In my life I have tried to follow that nostrum. However, I am grateful to my noble friend.

I turn to my noble friend Lady Kramer. I have a lot of sympathy with her on her suggestion that much of this ought not to come to the Floor of the House in a Private Bill in this form. All I can say to her, in some comfort, is that before 1992 a great many more Private Bills came on to the Floor of the House. However, in that year the Transport and Works Act was passed and all the railway Bills, all the major road Bills and all the rest of it have now disappeared, and what is left are the occasional local authority measures, such as we have here and we had earlier in the previous Parliament from Manchester and others; and, of course, occasionally the universities need to have legislation to amend their statutes. However, I am sure that my noble friend on the Front Bench will have heard her plea for something on more general powers.

I have to say in relation to London—and I have lived in London almost the whole of my working life—that it has conditions and circumstances that are very different from any other city in the country, and I am not surprised that both the City of London and the London local authorities have felt the need from time to time to introduce legislation to deal with the problems which they face. My noble friend also welcomed the negotiated agreement—I will come to the remarks of the noble Lords, Lord Faulkner and Lord Rosser, in a moment. All I can say at this stage is that I was grateful for my noble friend Lady Kramer’s support on that.

As for the deal done with the Football League and the Premier League, I understand the indignation that noble Lords may have felt that this was done outwith the consideration of the Select Committee. As the noble Lord, Lord Faulkner, said, the Select Committee examined the authorities from Hammersmith and Fulham. It heard the evidence and felt that the promoters had made a good case for their clauses, and here we are with an agreement having been reached outside the committee. Whether or not it was a smoke-filled room, I do not know; but, nevertheless, it was reached without the full scrutiny that it would have had if it had gone before the Select Committee. I have some sympathy with that point. I asked a number of questions myself about whether there was any reason why the sporting authorities were not aware of what was in the Bill. It is their job to make sure that they do. They are very wealthy organisations; they spend billions of pounds, as one noble Lord said, on buying footballers and so on. I do not see why they could not have done this before, but the fact remains that they did not. They did not put up a petition. The committee therefore could not hear the petition and reach a conclusion on it.

So what have we got? As I explained in my opening speech, after very prolonged discussions a memorandum of understanding has been reached. In each case the club that falls within the definition, which has a reasonably substantial attendance at its events, has to enter into agreement with the local authority to cover the costs that would have been covered by these two clauses. If someone says to me, “An agreement to agree is not worth the paper that it is written on”, I would have to say that I was brought up in my legal studies entirely to accept that. However, there rests behind this the fact—and the sporting authorities are in no doubt about this at all—that if they do not reach agreements of the sort envisaged in this memorandum of understanding within a clear time limit which is spelt out here, then future legislation will be brought forward to reinstate these clauses.

[Lord Faulkner of Worcester]

Does the noble Lord agree that it would have been courteous to this House if the detail of that memorandum of understanding had been made available to your Lordships before we had this debate today? Can he at least give an assurance that it will be published and will be considered in proper detail when the Bill reaches another place so that it can at last be given proper scrutiny?

[Lord Jenkin of Roding]

I have much sympathy with that. I do not think an agreement of this kind could be disclosed to Parliament without the agreement of both parties. I will draw the attention of the promoters to what the noble Lord has said and see whether they can secure the agreement of the sporting bodies that this should be made public before the Bill goes to a Select Committee in another place.

[Lord Rosser]

Can the noble Lord tell the House how long ago this memorandum of understanding was signed?

[Lord Jenkin of Roding]

It was reached in the early part of this year. The original agreement had been left before the election. As often happens when negotiations are dragged out over a long period, new objections were made, and it was not until the beginning of this year that finally there was an agreement. Part of the agreement was that the clauses be removed and replaced by that memorandum of understanding. Nobody is in any doubt that if the sporting clubs do not negotiate agreements with the local authorities in good faith, the promoters will bring back the clauses in some form. Having heard the noble Lord, Lord Faulkner, they should be in no doubt that a Committee would take a fairly clear view on the merits of those clauses.

The noble Lord, Lord Rosser, is entitled to his complaints. This has been a very long drawn out matter. One can argue about whether the promoters ought to have given in to the clubs. They clearly thought that the whole Bill might eventually fall on this basis, not just what were then Clauses 26 and 27. They will read in Hansard the criticisms that have been made, and I hope that the lesson will be learnt and this will not happen in this form again. I feel particularly sorry for the Select Committee which spent a good deal of time on this Bill only to find that its decisions had been subverted by this memorandum of understanding. I think I have gone on long enough, unless there are any points that I have missed out.

Amendment 1 agreed.

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Moved by

[Lord Jenkin of Roding]

2: Clause 16, Leave out Clause 16

--- Later in debate ---

Moved by

[Lord Jenkin of Roding]

3: Clause 17, Leave out Clause 17