Localism Bill

Lord Jenkin of Roding Excerpts

Monday 10th October 2011 Lords Chamber

[Lord Jenkin of Roding]

My Lords, perhaps I may add to what my noble friend said. In fact, I introduced the London Local Authorities Bill which originally included a clause to provide for the licensing of pedicabs. It went through a long process of petitions that were heard. In the end, the promoter of the Bill, which at that stage was the City of London, decided that it was wiser to drop the pedicabs provision in order to get the Bill through. However, it was perfectly clear that the proposal aroused a lot of opposition. There is quite a lot of financial interest in this pedicabs business. I am talking primarily of London—I do not know about the situation outside London—but it is possible for those employed to drive pedicabs to make quite a lot of money if they are prepared to work hard, late into the night and in the small hours of the morning. The amendment is obviously not without some merit because there are members of the public who will use pedicabs in preference to hanging around for buses or going down to the Tube.

Therefore, I hope my noble friend can say something on this. There is a problem that needs to be dealt with, but perhaps not so much by amending this Bill but through a local authority private Bill. The issue should eventually be picked up by the Government and some form of regulation should be imposed.

[Lord Berkeley]

My Lords, as a cyclist in London, I have come to know the London Pedicabs Operators Association quite well. Yes, pedicabs irritate taxi drivers—and they irritate me because they are wider than my bicycle and I cannot always get past them. However, taxis, cars and white vans irritate people. At some stage, we all have to live together and hope that it all works well for the benefit of the community and for people who want to go somewhere late at night. Of course, tourists love pedicabs.

However, I agree with the noble Baroness that there is something wrong with the current situation. The noble Lord, Lord Jenkin, mentioned the private Bill debated here in, I think, 2009. My understanding is that there was a voluntary registration scheme that the pedicab association was prepared to sign, given that Westminster City Council apparently made specific undertakings in Committee to provide pedicab ranks around Westminster. That has not happened and the whole idea seems to have evaporated.

Perhaps I may move on to early this year, when a new plan came from the mayor’s office, Transport for London, the Metropolitan Police, Westminster City Council and the London Pedicabs Operators Association. They were asked to draw up a framework mechanism, documentation and software to satisfy the requirements of a formal licensing scheme that would include a partnership agreement, and to write a code of conduct—which is important—and a memorandum of understanding between those parties. However, again, nothing seems to have happened on this.

The pedicab association says that many of the issues listed in the noble Baroness’s amendment would in fact be in some of the agreements that it was setting out to achieve. The one thing that it says would be very difficult—and I agree—is to have, as suggested in the amendment, a separate agreement for each borough in and outside London. Most pedicabs operate in Westminster but I live in Camden during the week and they certainly move into Camden. Therefore, I believe that any such registration has to be London-wide and I am not sure why Transport for London is not picking this up and running with it, so to speak.

There is an issue here but I believe that licensing by TfL on a reasonable basis would work well. I know that taxi drivers do not like pedicabs because they see them taking away business, but we are not really here to preserve the monopoly of taxis in taking people around London. There is also the TfL cycle hire scheme, which seems to be doing quite well.

I believe that some of the issues that the noble Baroness lists in her amendment should be in some kind of agreement, but someone has to take that forward and I think that it should be TfL with everyone else’s agreement. However, every time there seems to be a step forward, something stops it. Perhaps, as the noble Baroness has suggested, people do not want a registration system because that would legalise pedicabs.

I think that pedicabs are here to stay. They are good fun. If they are registered, there will be some control over them, and I hope that that will get rid of those who do not comply with the regulations and that it will allow a good service to be properly enforced, with vehicles that have back red lights and front white lights, which are important. The noble Baroness makes a very good point with this amendment but it is probably not the right way to go forward at this stage.

[Lord Kennedy of Southwark]

My Lords, first, I think I should make it clear to the House that my father was a licensed London taxi driver and that both my brothers are licensed London taxi drivers. In fact, one or two noble Lords have mentioned to me that they have been picked up by them and taken home after a busy day in your Lordships’ House.

[Lord Jenkin of Roding]

If the noble Lord would give way, I have suddenly realised that my eldest grandson was for a time a pedicab driver and I should have declared that.

[Lord Kennedy of Southwark]

As far as it goes, I support the amendment moved by the noble Baroness, Lady Gardner of Parkes. Pedicabs, and the way in which they operate, can be a nuisance, and it is only by licensing them that we can get some control over them. It would therefore be good if local authorities could establish local by-laws for the licensing of pedicabs in their area. If people are going to travel in them, we should make sure that they are roadworthy, that there is proper insurance cover for passengers, that there are rules about where they can stand when waiting for business, that the people peddling them comply with traffic legislation and that, where breaches occur, there is provision to get them off the road.

I accept that at present they seem to operate only in central London, so Westminster council faces the biggest problem. However, like my noble friend Lord Berkeley, I would have preferred to see London-wide licensing of pedicabs. They will no doubt move elsewhere, with Camden, Islington, Kensington and Chelsea, Southwark and Lambeth all likely to have them in parts of their boroughs. By-laws that differ from borough to borough just risk confusion and it would be better to have a London-wide option. However, as I said, the Opposition support the thrust of the amendment and I hope that the Government can indicate what they will do to deal with this problem.

--- Later in debate ---

[Lord Reay]

My Lords, I have put my name to my noble friend's amendment. Litter thrown from motor cars is a scourge of the countryside. It is a regular practice for people to discard litter from moving vehicles—in particular, drink containers and food wrappings. I am sure that to try to reduce the incidence of that habit is a goal worth pursuing. It is surely one test of how well a country is governed how tidy it is. I remember, when I visited Libya in the last years of Gaddafi's regime, how staggered and disgusted I was to see the quantity of litter to be found on the road between the airport and the centre of Tripoli. It was knee-deep in plastic. Of course, that was under a dictatorship, where regulating such things should be easier.

I also understand that the present situation here, where responsibility must be pinned on the person who has thrown the litter, is unsatisfactory. It is difficult enough to trace a car from which litter has been thrown. To then require the prosecuting authority to identify the culprits in the car is surely asking too much. It seems to me quite reasonable to hold the registered keeper of the vehicle responsible. As my noble friend explained, that is the idea behind the amendment. Whether such a change in the law would be successful in reducing the amount of litter thrown, we would have to see. I can certainly imagine that it would have a deterrent effect, with vehicle keepers not wanting to be exposed to legal penalties as a result of the actions of other people, whether members of their family or not, and therefore to some extent themselves acting as policemen.

Unfortunately, the amendment, for a reason which I do not entirely understand, does not propose creating a new national offence. As I understand it, the Bill was thought to be an unsuitable vehicle, although the amendment in another place proposed exactly that. This amendment would simply enable local authorities to adopt by-laws along the lines my noble friend described. As he said, there are grounds for believing that many local authorities might be interested in doing that. On that basis, I recommend the amendment to the House. I very much hope that the Minister will indicate that the Government now intend to do something about this problem.

[Lord Jenkin of Roding]

My Lords, I have huge sympathy with my noble friend’s amendment. Before he left the Chamber, my noble friend Lord Newton, who is taking part in the Welfare Reform Bill Committee, said that he was sorry not to be able to add his voice because he feels very strongly about this.

For nearly 30 years I lived in rural Essex within reach of my former constituency, and one of the disadvantages of the road we lived in was that it was perennially the subject of littering. There was a corner at the bottom of the hill with a bit of spare ground on the left-hand side and my children very quickly christened it “Mattress Corner”. It had become a place where people could dump their unwanted mattresses, which then had to be cleared up by the local authority. It was not only that. We lived a mile and a half outside the village where there was a fish and chip shop. We discovered that we were almost exactly the distance away that it took people to eat a bag of chips. I found myself as the riparian householder having to go out at fairly regular intervals with a plastic sack and one of those nice machines with which you can pick up things and pop them in the sack, simply to clear up the litter on both sides of the road that had been deposited by passing vehicles. Even if you saw a car with litter being thrown out of the window as it went past, there was nothing you could do. You did not know who the driver was or who had thrown it out. There was no point in taking down the number because nobody would do anything about it. You had to prove who it was. So I have every sympathy with this.

My noble friend Lord Marlesford said that it is not enough just to talk; you have to do. I have previously declared an interest as the joint president of London Councils and I am happy to say that London Councils is engaged at the moment in tackling this problem in London. It does this on behalf of the London boroughs and I think it is now ahead of the game. The London Local Authorities Act 2007 contains a provision to decriminalise the dumping of litter from cars and to impose a liability for penalty charges on the keeper of the vehicle. That is slightly different from the proposal put forward in my noble friend’s amendment but it is clear that we all have the same objectives in mind. A London Local Authorities Bill is currently awaiting its final stages in the other place. It will make a small drafting correction to that provision which will allow it to come into force.

Other steps are necessary. Discussions have taken place and progress is being made with the Ministry of Justice in relation to the making of regulations which will enable London borough councils to enforce their penalty charges under the civil regime in the courts. Officials are also co-operating on the necessary alterations to the Civil Procedure Rules and London borough councils understand that these changes and regulations will be made very shortly. I hope my noble friend on the Front Bench will be able to confirm that the provisions will be implemented very soon and the system can start to work in London. That is doing and not just talking. I believe London will show that this solution is perfectly feasible and can be addressed by local authorities. Other authorities may wish to copy what London Councils is doing and it will not be the first time that has happened. I support my noble friend’s amendment.

[Lord Beecham]

My Lords, I am very taken with the image of the noble Lord, Lord Jenkin, patrolling the highways and byways of rural Essex as a sort of unpaid litter warden. It is a charming thought and I am sure he did a very good job, but he should not have to. That is the message of the amendment tabled by the noble Lord, Lord Marlesford, and I congratulate him on bringing this matter to the attention of the House and hope that the Government will be able to respond. As the noble Lord said, the matter was debated in another place on an amendment moved by the Member for Gateshead, Ian Mearns, with whom I was discussing this on the train from Newcastle this morning. He received what seemed to be a sympathetic response from the Minister, Andrew Stunell, who said:

“We will certainly look carefully at the matters that have been raised”.—[Official Report, Commons, 18/5/11; col. 441.]

Time has passed so I hope that the consideration has taken place. I think it is preferable to have this in national legislation rather than leave it to by-laws. There seems to be no reason why this amendment should not be proceeded with on this Bill or at least a clear indication given that it will have some priority in other legislation. But this is really too good an opportunity to miss and I hope that the Minister in replying, even if he cannot say today that the amendment will be accepted, will indicate that by Third Reading there will be a clear position and the Government will feel able to adopt it.

Of course, as the noble Lord pointed out, this is essentially a matter of enforcement. There is little point in having regulations without the capacity to enforce them. But, as the Essex police have found out in another context, enforcing measures concerning the driving of vehicles is not necessarily straightforward. This would certainly obviate the kind of difficulties that have arisen in another case and one would hope that the Government would see the logic of that and accept the thrust of the noble Lord’s amendment, and see to it one way or another that the objective which most of your Lordships share is carried into being.

--- Later in debate ---

[Lord Jenkin of Roding]

My Lords, I raised this issue at Second Reading, as did a number of other noble Lords. I would like to join my noble friend Lord Tope in expressing gratitude to my noble friend Lord Attlee for the immense amount of work that he and his officials have done to produce this substantial body of amendments, which to my mind now make this provision acceptable. I particularly welcome his efforts to produce what probably would be called a “Keeling schedule”, showing what these clauses will look like in toto if the amendments are passed. It is rather difficult otherwise to fit them into the Bill. However, that was an immensely helpful document which I hope my noble friend’s other colleagues on the Front Bench might be persuaded to imitate from time to time. For those of us who have to grapple with these things ourselves, it can be much more helpful to know what the whole thing is going to look like, rather than just looking at a whole series of amendments. This is a very helpful precedent which I hope will be followed in the future.

I have only one question to my noble friend. It is a point that I have made on previous occasions, and it concerns retrospective operation. My noble friend has assured me that nothing in these amendments will make the powers retrospective so that a penalty may be imposed on a local authority for something that has already happened. I would be most grateful if he could give us an assurance on this when he winds up the debate.

I understand that this cannot apply to fines that have already been imposed on the Government, but you could have a directive which imposed obligations on a local authority where that local authority was previously in breach and subsequently a fine was imposed on central Government. I would welcome an assurance that under no circumstances could that fine refer to anything that has happened before the date of the process introduced by these amendments. Nothing could be done before these amendments have taken effect—they must not be retrospective or retroactive. I take encouragement from my noble friend saying that one of his principles is that there will be no surprises. That, to my mind, is immensely valuable. If he could say that that rules out any retroactive effect of these amendments, that would be very helpful indeed.

I thank my noble friend for his enormous efforts. He explained to me that he had to get the assent of every other government department in Whitehall. He is a magician to have achieved that. One understands the difficulties that he has faced and I thank him very much.

[Lord Berkeley]

My Lords, I join the noble Lords, Lord Tope and Lord Jenkin, in congratulating the Minister. I raised one or two issues in relation to this matter in Committee and I think that the noble Earl has done a fantastic job in a short space of time to come up with a process that few can fault, if one is going to have fines at all, and they do arise. I warmly congratulate him and join others in hoping that this happens more often with other legislation that comes before your Lordships’ House.

Before I speak to my own amendments, I would like to follow up on a point that the noble Lord, Lord Jenkin, made about the retrospective nature. There will be a time when these clauses come into effect, but there is also a time when the European process moves forward from infraction proceedings and reasoned opinions to the court summons and finally the court decision. That can take several years. The UK Government have a good record in complying with EU regulations. I am involved in railway issues, and in the first railway package there are 13 member states with infraction proceedings against them. We are not one of them, except for a new one relating to the Channel Tunnel. On the whole, we have quite a good record, but quite often the cause of the eventual fine could be something that was created several years beforehand. The local authority may not have been able to do something, or something may have gone wrong and it is grinding on with the Government refusing to give way, and three or four years later it gets to the European Court. I hope that the Minister will look at the retrospective nature of this not only from the UK side but also from the European side as to where the so-called potential offence has been committed and when.

My amendment was of course a probing one. I am very grateful to the Minister for his answer, which he gave before I had the chance to speak to it. That enables me to ask another question to clarify things. The Minister said that the provision would apply to a private company carrying out or performing “public functions”. I assume that “public functions” in this respect means operating rail or inland waterway infrastructure, although that could be carried out by a private company. I am not convinced that the Rail Regulator has powers to enforce fines on Network Rail—I do not think that there is a regulator for inland waterways yet—when something contravenes European regulations. I am sure that there will be an answer to this but perhaps when he responds the Minister could agree to look at this matter further so that there is some clarity within Network Rail and eventually the British Waterways charity about the circumstances under which they might be liable for a fine. I conclude by congratulating Minister very strongly on a really good piece of legislation.

[Lord Beecham]

I join other noble Lords in warmly congratulating the noble Earl on the manner in which this matter has now been put back on track. The noble Lord, Lord Tope, said that most of us would not have wished to have started from here, but where we are ending owes very much to the thoroughness, attention to detail and decisiveness of the noble Earl—qualities in which he emulates his distinguished grandfather. It is some 49 years since I had the pleasure of meeting the noble Earl’s grandfather and he made a significant impression on me, young as I was at that time. The noble Earl is doing so again today, not merely on me but on all Members of your Lordships' House.

[Lord Jenkin of Roding]

My noble friend's grandfather lived in my constituency.

[Lord Beecham]

He was none the worse for that. I do not think that his wife, who used to drive him around, would have been guilty of depositing fish and chip papers anywhere near the noble Lord’s house.

The position that we have reached is one that the Local Government Association has worked very hard with the Minister and colleagues from all sides of the House to achieve. In particular, the outcomes around the designation and the opportunity to correct a situation that perhaps led to a fine—the provision of an effective appeals system—have all been significant. I am encouraged that the statement of policy that has been produced by the Local Government Group is one that I understand the Government are minded to adopt. Perhaps when he replies the noble Earl will indicate how far their consideration of the document has gone and whether there are likely to be any issues of significance that might not accord with the proposals that have been made. I understand that effectively an agreed position has been reached around four main areas: working in partnership; that there should be no surprises; that there should be a fair and proportionate process; and that consideration should be given to the ability to pay.

One of the crucial issues first voiced in the debate to the Committee by the LGA was the lack of an opportunity for local government to be involved in the legislation from which proceedings ultimately might flow in terms of infringement of European law. It is welcome that the Government have now indicated that local government will be identified specifically as a key sector for consultation when the Government enter into negotiations on EU legislation that could ultimately lead to fines coming down to local authorities. That is an extremely important extension of the consultative role that should ensure that the legislation is right in the first place, which would be a distinct improvement on the position hitherto.

The Minister has made it clear that there will be no surprises in future. No local authority will be taken by surprise because of the designation process, which is a reasonable one in which Parliament will be involved. Equally, the process will be broadly based in terms of those involved in deciding a number of matters—for example, whether the UK Government themselves have contributed to the infraction. I take it that that will also apply to any infraction that might have been contributed to by the devolved Administrations where their activities impinged on European legislation. I assume that that is taken care of in the arrangements that the Government have come to with the devolved Administrations.

My final point is crucially important. The panel will determine these matters and the Minister will consider the authority's ability to pay a fine and provide for possible alternatives in the event that the ability to pay is not present. It is conceivable that a small district council might find it impossible to pay a significant fine in respect of some infraction of environmental legislation within its competence. It is extremely welcome that the Government have acknowledged that that is a risk and that they will not be seeking to extort from such an authority a contribution to a financial penalty that would seriously impede the activities of that local authority.

Thanks very largely to the Minister, we have reached a satisfactory position on this. It has been a good example of the way in which local government and the Government can work together and in which Ministers can listen to proceedings in your Lordships' House, take back concerns and proposals and work with them. I hope that the noble Earl will feel able, metaphorically at least, to bite one or two of his ministerial colleagues in the hope that this becomes a habit across government and not confined to the noble Earl.