Consideration of Bill, as amended in Committee
It gives me great pleasure to move amendment 1 and to discuss the other amendments in the group. I begin by paying tribute to the promoters, who said earlier today that two of my amendments in a subsequent group will be accepted, and I think that is a perfect answer to all those people who look askance at Members of this House who force debates on issues such as this and table amendments. The promoters have, by their actions, demonstrated the worthwhile nature of that behaviour.
The concerns of my hon. Friends lie in trying to find out more about the proposals before us and ensuring that the same standards of high-quality legislation are applied to private legislation as are applied to normal public legislation. I shall refer to some examples later and I hope that the House will agree that there are examples of legislative provisions that are too woolly or imprecise to deserve to be put on the statute book.
The critics to whom the hon. Gentleman refers have obviously never had the opportunity of being in the Chamber and listening to the amendments that he and his colleagues have tabled. They have clearly demonstrated their worth over many, many years.
I am grateful to the hon. Gentleman. I do not wish to crow, other than to say that it is important that just because a Bill is a private Bill it should not be subject to less scrutiny than a public Bill. As was said on Second Reading, why should a local authority impose a statutory regime in its area different from the national regime?
I am delighted to see the Minister, who will be able to respond to some of the concerns about why a regime for dealing with skips different from the regime that applies elsewhere in the country that has to be introduced private legislation rather than through a public Bill promoted by the Government.
Before I get too distracted from the subject matter of the amendments, I should say that amendments 1 and 2, which can be considered together, are an example of why the Bill is unnecessarily complex. The Bill applies to the whole of London other than the City of London, yet it is proposed that its provisions should be brought in at different times in different areas. If we are to have a regime for skips, for example, in London, surely the changes should apply to the whole of London at the same time rather than piecemeal. Yet clause 3(2) states:
“Different days may be fixed under this section for the purpose of the application of the provisions mentioned in section 1(3) to different areas.”
Likewise, clause 3(3) states:
“Different days may be fixed under this section for the purpose of the application of the provisions mentioned in section 1(3) to an area.”
I understand my hon. Friend’s point. Is it possible that what he mentions is done to enable authorities to trial something, to make sure that the system works efficiently and properly before extending it? If that is true, is it not sensible?
It may be that my hon. Friend, as so often, anticipates the response to come from my hon. Friend the Member for Harrow East (Bob Blackman), who speaks on behalf of the promoters. We shall have to wait and see. On the face of it, the issue is worthy of an explanation. If the legislation is untried and experimental, that should be clearly set out in the Bill.
Might not confusion result from the fact that measures are to be introduced on different days in different parts of London? I might not be as generous in my thinking as my hon. Friend the Member for Shipley (Philip Davies), but could that not be a deliberate ploy to try to confuse people and set up a money-making racket?
It could be, but I am not going to try to follow my hon. Friend by making accusations against the promoters or London authorities by suggesting that the Bill is designed to confuse and ensure that they can get more in penalty income than they might otherwise be able to. Again, the fact that my hon. Friend raises that as an issue demonstrates the climate of suspicion regarding a lot of local authorities in relation to the imposition of penalty charges, which I recall from having read an article are now giving hundreds of millions of pounds in income to London local authorities alone. Many people feel those measures were brought in almost by subterfuge through Bills such as the one we are considering tonight, and now many years later people can see that has resulted in a significant financial burden and quite a lot of injustice. That is why I think it would be better to have simplicity and clarity, which would require that any provisions in this Bill be introduced in all areas of London at the same time on the same day, rather than causing the confusion to which I have referred.
I just wonder whether my hon. Friend’s amendment will achieve what he seeks. Are these parts of the Bill making something clear to people, rather than being a necessary part of the Bill? Even if my hon. Friend’s amendments were accepted, would it not still be possible for these measures to be introduced on different days? I am not entirely sure where it is made clear they would have to be on a specific day. Are these two parts of the Bill just making something clear to people?
My hon. Friend raises another point that I had not thought about, which is that these subsections may be superfluous anyway and it is implicit within the powers being given under clause 3 that an appointed day could be a different day for different parts of London in different circumstances, in which case, in trying to keep legislation simple there would be another argument in favour of accepting my amendments 1 and 2, as in leaving out subsections (2) and (3) of clause 3, they would make the Bill clearer. We will have to wait to hear the response to the debate before assessing whether these amendments are of such significance that we would seek to divide the House on them. Speaking for myself, I think it would be reasonable to await the full explanation before rushing to judgment.
Amendment 3 is significant. It is the first of the amendments addressing part 2 of the Bill, and clause 4 in particular, which deals with the attachment of street lamps and signs to buildings, and changing the regulations relating thereto. At present, the regime is pretty restricted under the highways legislation, but this Bill seeks to give much wider powers to local authorities, enabling them to permit the attachment of street lamps and signs to buildings even when that is not approved or supported by the owners of those buildings. This power is potentially quite significant, because the owner of a building could suddenly find they are required to have a street lamp or sign attached to their building.
We know from earlier stages of the Bill that the Society of London Theatre was very concerned about the impact of the measure on theatreland, and it is to the credit of the promoters that they decided that they would therefore exempt theatres, which is why clause 4(14) specifically states:
“This section and section 5 shall not apply in respect of a theatre.”
In a few moments I will talk about amendment 4, which follows on from that. Amendment 3, however, deals with subsection (13), which states:
“A London authority may not, under section 3, appoint a day for the purposes of this section until a code of practice dealing with the exercise of the powers of the said section 45 and the said section 74 as modified by this section has been published by a joint committee.”
My amendment would ensure that the code of practice must not only be published by a Joint Committee but be approved by the Secretary of State for Transport—an appropriate and proportionate safeguard.
Amendment 3 specifically suggests that the approval of the Secretary of State for Transport should be sought. My limited understanding of these things is that the normal practice is to specify “the Secretary of State” and leave the actual office open. Perhaps my hon. and learned Friend would like to expand on why he has specified the Secretary of State for Transport.
I am not learned in any sense of the term, but this amendment has been selected and I thought that rather than just referring to “the Secretary of State” it would more appropriate if it specified the Secretary of State for Transport. If the Minister wishes to intervene to suggest that it should be the responsibility of a different member of the Government, so be it. The point I am trying to make is that this is a significant issue. It is recognised by the promoters as sufficiently serious in its potential implications as to mean there should be a code of practice to deal with the exercise of the powers. The code should go further, in the sense that it should be approved by the Secretary of State for Transport. It would be unreasonable to expect this code to have to be approved by this House, through a statutory instrument, but it is reasonable to say that there should be a safeguard and that the Government can ensure that the code of practice accords with what is reasonable and proportionate. The Secretary of State for Transport could then be held accountable by this House for approving a code of practice if it did not meet the reasonable conditions we think ought to apply.
My hon. Friend comes at this with far more expertise and knowledge than I do, because whereas I never have been and never will be a Minister, he has been—indeed, he was in the then Department of Transport. Will he therefore outline how he would expect the Secretary of State to take on this responsibility? Would it just be a meaningless rubber-stamping exercise?
Whether it was a meaningless rubber-stamping exercise or something of substance would depend very much on the Minister. Although we would say that the code would be approved by the Secretary of State for Transport, in practice it would be brought before a more junior Minister, who would carry out the approval in the name of the Secretary of State. It is not for me to comment on the assiduous way in which various junior Ministers operate, but I have no doubt that the Under-Secretary of State for Transport, my hon. Friend the Member for Wimbledon (Stephen Hammond), would be extremely assiduous if he was the Minister charged with this responsibility. The paper would be put before him by his officials and he would ask probing questions, perhaps on an iterative basis, whereby it might take a few days or weeks before the matter went through. He would take the responsibility seriously and examine the code, raising any concerns he had and suggesting any modifications that he wanted to have.
My hon. Friend rightly says that I would be entirely assiduous should this onerous burden be placed upon me, as I am with any such instrument; I carefully read these things and scrutinise them. I can tell him that the Government’s view, having examined the amendment, is that there would be no need for the Secretary of State to approve the code of practice; the code could stand by itself.
I am grateful to my hon. Friend for the first part of his remarks and I hope that in due course we can explore further the second part, in which he said that there was no need for the code of practice to be approved and that it could stand by itself. Quite, but would it not be an additional safeguard to ensure that it received the approval of the Government rather than just a Joint Committee, as suggested? I shall leave the matter there and we can perhaps explore it in due course.
Amendment 4 would add a new subsection after clause 4(14) so that clauses 4 and 5 would
“not apply in respect of any building in a conservation area.”
The provisions already exclude any application to listed buildings and, as we have discussed, theatres, but a building in a conservation area has traditionally enjoyed the same protection as a listed building outside a conservation area. The essence of a conservation area is that all the buildings should be considered together in the context of the local environment. One might be concerned that if a lot of street lamps and signs were attached to buildings in a conservation area, that could detract from the character of the area quite significantly. My challenge to the Minister in responding to the debate is that if it is reasonable to exempt listed buildings from clause 4, why has that not also been extended to buildings in conservation areas?
The next amendment in the group comes under the category of bad drafting and an attempt to take extremely wide powers. Amendment 5 would amend clause 5(4)(b), which deals with the serving of notices under clause 4 on people who would be affected by the application of the clause on the attachment of street lamps and signs to buildings. It states:
“If, for the purposes of serving a notice…the name or address of the relevant owner cannot be ascertained after reasonable enquiry, the notice…may be served by…addressing it to him by name or by the description of “owner” of the land (describing it)”.
That is probably similar to a lot of the letters one gets through one’s letterbox addressed to “The Owner” and asking, “Have you thought of selling your house or letting it through some great agents?” It would seem to be perfectly reasonable. Alternatively, one could leave
“it in the hands of a person who is”
on the land as a
“resident or employed on the land or leaving it conspicuously affixed to some building or object on or near the land.”
That is a standard way of serving notices, by affixing them to a property. Giving it to a person who is resident is fine, but what concerns me is how we are to judge whether to give a formal notice to somebody who “appears to be” the resident. That is such a large loophole. Anybody could say, “I saw somebody there, they appeared to be the resident, I served notice on them. I don’t know who they were, I didn’t ask them any questions, but they appeared to be the resident.” That is granting a power that is far too wide—unnecessarily so—and could undermine the whole purpose of the clause, which is intended to ensure the reasonable service of notices and that the owner or resident of affected premises should receive the proper notice. I look forward to hearing from my hon. Friend the Member for Harrow East on how we will judge whether people appear to be resident, and why it is necessary to have this extraordinarily wide power, which allows a notice to be left with somebody who appears to be resident; implicit in that is the idea that they may not be resident.
I totally agree with my hon. Friend; this is a ludicrous state of affairs. Also, the Bill says “appears to be resident”—appears to whom? A person may appear to be resident to someone who is issuing a notice, but there is no regard to whether anybody else would think that the person was resident. Is this a good enough test?
Exactly. My hon. Friend makes a very good point.
Clause 5(5) falls into the “ludicrous and superfluous” category. It says:
“This section shall not be taken to exclude the employment of any method of service not expressly provided for by it”,
but of course the clause is only permissive; subsection (1) says that a notice
“may be served by post.”
What does clause 5(5) add to the statute book, other than completely superfluous wording? I would have thought it a statement of the obvious. Do we really need to include on the statute book lots of statements of the obvious, like this one? Amendment 6 would therefore leave it out.
The hon. Gentleman is making a strong argument for the amendment. If I heard him correctly, he said that he had received an indication that some of his amendments may be accepted by the sponsor. Is this amendment one of those that he anticipates being acceptable to the sponsor?
I hope so, but I have not yet received formal notice about this amendment. The two amendments about which I have received formal notice are in the second group, and I will not go into those now. From the hon. Gentleman’s comments, it seems that he is supportive of the amendment—I am not sure whether he is referring to amendment 5 or 6; perhaps he could indicate that more clearly.
On amendment 6, which would leave out subsection (5), has my hon. Friend had any thoughts about what might be included in those other methods of service? Might they include notices being served by e-mail, or by some other electronic means? If so, does he support that?
I find that a rather testing intervention, because I am rather against the idea of using e-mails to serve notices. From my limited experience of receiving and sending e-mails, I think it is often not clear whether they have reached their destination or got lost in the ether. Quite a lot of mine seem to go into something—I cannot remember what it is called—
I am grateful to my hon. Friend. They go into the spam folder, so they are effectively never received, because they are automatically deleted—or they certainly are on my computer, but I do not want to be drawn into that issue. The promoters may have it in mind that they could serve notices in that way to anybody who appeared to be resident, but I do not know how they would find out how to do that. I look forward to hearing from the sponsor on that point.
One of the reasons why it can be frustrating for people following private legislation is that during the Committee stage of a Bill which is the subject of a petition it is not possible to go into the detail of the drafting, unless a petitioner has expressed concern about it or members of the Bill Committee take an interest and ask the promoters what a particular clause or subsection means. When the Bill comes back to the House on Report, it is often the first chance that we have to examine the wording and why the promoters consider it necessary.
Clause 6 deals with damage to highways as a consequence of adjacent works. It provides that
“The 1980 Act shall apply in Greater London as though for section 133 (damage to footways of streets by excavations) and its heading there were substituted—
Damage to highway by carrying out of works”.
The current wording of clause 6 is:
“If a highway maintainable at the public expense is damaged by or in consequence of any works on land adjacent to the highway, the highway authority for the highway may make good the damage”.
The effect of my amendment 7 would be that the highway authority “shall make good” the damage, because the highway authority has the ultimate responsibility for ensuring the integrity of the highway. I declare an interest as the chairman of the all-party parliamentary group on highways maintenance. We had a meeting today to discuss the fraught issue of highway maintenance, the number of potholes that there are, and the rather varied performance of local authorities up and down the country in addressing the problems caused by deteriorating road surfaces and the creation of potholes.
Most people say that it should be the responsibility of the highway authority to put the road back into good order if that is what has happened. Amendment 7 would make it mandatory for the highway authority to make good the damage, and amendment 8 would enable the highway authority to recover the expenses reasonably incurred by it in so doing.
May we stick to amendment 7 for the time being? I agree with my hon. Friend’s general premise. Motorists get a raw deal in this country, considering the amount of tax that they pay. Might the amendment lead to a perverse situation where the damage may be minor, yet the local authority would be forced to carry out work, which may be considered disproportionate? Might that be an unintended consequence of my hon. Friend’s amendment?
I do not think it would be an intended consequence. I concede that my hon. Friend may have got me on that. Essentially, the question is whether we would describe minor damage as being covered by the amendment, or whether we are talking about significant damage. I drafted my amendment on the basis that we are talking about damage of such significance that it should be made good. We know that an unevenness on the road surface may soon deteriorate when heavy vehicles go over it or when it is subject to water penetration. What might start off as relatively minor damage may, if not addressed in timely fashion, become a significant pothole and a hazard to road users. My hon. Friend makes a good point, but I do not think that it really counters the general thrust of amendment 7, which is to try to ensure that the highway authority takes responsibility for making good any damage caused by works adjacent to the road.
The penultimate amendment in this group is amendment 9, which—
My hon. Friend, rather uncharacteristically, is rushing through his amendments and catching me out as a result. To return to amendment 8, which would insert the word “may”, is he indicating that clause 6, as drafted, would force the highway authority to recover the expenses? Is the purpose of his amendment to allow some flexibility?
Yes. If we were to leave out “may” and insert “shall”, as amendment 7 proposes, but not make amendment 8, obviously the highway authority would be required to make good the damage and be forced to recover the expenses reasonably incurred. I do not think that it would be sensible to oblige a highway authority under the terms of a statute to recover the expenses, which might prove difficult. It would be better to say that it “may” recover the expenses, which is why amendment 8 seeks to insert “may” in front of the word “recover” in the provision. That way, the highway authority would have a responsibility to make good any damage caused to the highway by adjacent works, but it would have discretion over whether or not to seek to recover the resulting expenses. I hope that is clear.
In a sense, that is the other side of the coin my hon. Friend has just used. The answer is that it might not be worth the candle. Why should we force a local authority to try to recover a relatively small sum when the cost of doing so could be disproportionate? That is the best answer I can give to the good point he makes.
Let me turn to amendment 9. This is another example of where the Bill’s drafting is unnecessarily wide. If a highway is damaged as a result of adjacent works, surely the person responsible for paying to repair it should be
“(b) the person carrying out the works; or
(c) the person on whose behalf the works were carried out.”
“(a) the owner of the land in question”
be the subject of the recovery of expenses if he neither carried out the works nor had the works carried out on his behalf? That seems unnecessarily oppressive, because the owner of the land might know nothing whatsoever about the work being carried out or any damage resulting from it. That incorporates a provision of strict liability in circumstances in which I do not think it is reasonable.
That is why I have tabled amendment 9, which would leave out subsection (a) and ensure that the expenses reasonably incurred could be recovered from the person who carried out the works or the person on whose behalf the works were carried out. That might often be the owner. However, if that person was not the owner, he would not and could not be liable. I look forward to hearing from the promoters of the Bill why they think it is reasonable to expect the owner of the land to be liable in the circumstances that I have described.
My hon. Friend makes another good point. I do not know. The explanatory notes define “owner” in relation to part 3, but he is asking about part 2. That is perhaps an omission. There may be more than one owner. As he suggests, they may be a leasehold-owner, a freeholder, or, indeed, a sub-lessee. That is a reasonable point of inquiry. It might also be another reason why leaving out any reference to an owner would be the best way forward for the promoters of the Bill.
Amendment 20 is in the same group, which is headed “Highways and general”—“general” in this case. It relates to part 4, which has only one clause—clause 15, on the subject of gated roads, which says:
“Any person who opens, closes or otherwise operates or interferes with a relevant barrier without lawful excuse shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale…In subsection (1) a ‘relevant barrier’ means any barrier lawfully placed in, or over a highway by or on behalf of a traffic authority in London for the purpose of preventing or restricting the passage of vehicles or any class of vehicles into, out of, or along a highway.”
My amendment 20 would leave out all that. If we are to have specific legislation creating a criminal offence for people who open, close or otherwise interfere with such barriers, it should introduce that offence right across the country rather than in a particular part of it. I have no evidence to suggest that there is a bigger problem relating to gated roads in London than anywhere else.
Furthermore, introducing specific offences litters the statute book of criminal law with rather a lot of unnecessary trivia. In this case, if somebody goes along to a barrier and cuts off the padlock or forces it open in some way, they will be guilty of criminal damage, which is obviously already an offence in criminal law. The provision would potentially criminalise somebody who might open a barrier because it was not locked and then find themselves guilty of an offence.
I agree with my hon. Friend wholeheartedly. Does he agree that there may well be a perfectly good, legitimate reason for somebody to do that if it is to preserve their health and safety or for other emergency purposes, and yet the provision does not give any wide-ranging exemptions for such people?
Absolutely. The clause refers to anyone who
“interferes with a relevant barrier without lawful excuse”,
which raises all sorts of questions regarding how to avoid the build-up of congestion caused by an accident or another incident such as a fire. If somebody says, “We need to open this barrier so that the traffic can flow more freely,” they might—unless they are authorised by the local authority—find themselves guilty of an offence. It seems to be a totally disproportionate response to the problem that the Bill’s promoters say exists.
I have seen no evidence of how many occasions gated roads have been opened, closed or otherwise interfered with by people to the detriment of the local authority. As I said at the outset, if there is a problem surely it would be better dealt with under the Traffic Regulation Act 1984, which relates to all authorities, not just those in London.
Rather earlier than some might have anticipated, I have reached the end of my introduction to the amendments, to which I have tried to speak in a constructive way. This is not an exercise in trying to prevent a Bill from making progress; it is an exercise in trying to ensure that the legislation that we put on the statute book is clear beyond peradventure and of sufficiently high quality to merit inclusion. It is very difficult to put these things right after the event, and on too many occasions in the past local authorities and Transport for London have been given wide powers that were not sufficiently explored beforehand, to the detriment of the general public. That is why, on behalf of road users and residents in London—I declare an interest as the owner of freehold property in London—I propose these amendments. I hope that the Bill’s promoters will address them as constructively as they have agreed to address at least two of the amendments in the next group.
I thank my hon. Friend the Member for Christchurch (Mr Chope) for tabling these various amendments in, I trust, a spirit of exploring the intentions of the Bill’s promoters. I trust that my explanations will be sufficient for him not to press them to a vote. The Bill has been subject to a great deal of scrutiny both in this House and in the other place, so I will confine my remarks to the amendments.
I gleaned from my hon. Friend’s remarks that he tabled amendments 1 and 2 because he wants an explanation, not because he wants to press them to a vote. They relate to the commencement date for the regulations on lamps and signage. The Bill’s promoters across London are very keen for ultimate flexibility as to when the regulations should be introduced. The amendments would constrain London authorities to introduce them all on the same day across London, which would be draconian. The purpose of this part of the Bill is to say that there will be a need for lamps and signage to be restricted, but at different times for different authorities. That does not alter the fact that authorities have to advertise and give notice of their wish to introduce these schemes, but they do not have to introduce them in the same way right across London.
There will be times when signage or lamps are required, possibly on a temporary basis, and therefore one needs to introduce them, and give notice of that, and then take them away again. Those signs might be for emergency roadworks, or a particular purpose such as special events that take place in London. There are regularly demonstrations and road closures for special events, and it would be foolish to have those signs unnecessarily in operation throughout London and the affected areas. I trust that that provides a suitable explanation. It does not change the fact that local authorities must still advertise the reason for lamps and signage, as is wholly appropriate.
Amendment 3 suggests that after the Localism Act 2011, which enables local authorities to take many actions themselves, and after devolving power to London, we suddenly drag power back to the Secretary of State to force the Minister—or someone else—to consider the minutiae of things that go on in London. To me that seems to be overkill, and it does not take place in any other part of the country. The Secretary of State and Ministers have plenty to do without considering the minutiae of a code of practice that London local authorities will come together and agree, cross-party and for the good of all Londoners and London. I trust that my hon. Friend the Member for Christchurch will accept that such things are best kept to a local level, rather than involving the Government. I understand that the Government have not stated that they want to interfere in such a process, and I am sure the Minister will confirm that in due course.
Is not the point that provision is already set out in the Road Traffic Regulation Act 1984 to deal with such issues? That is national legislation but the Bill seeks to modify it for London. My amendment would ensure that there is a proper safeguard for that proposed modification for London through the Secretary of State. My hon. Friend refers to localism, but surely such things should apply equally to all local authorities, not just those that bring forward Bills such as this.
Wearily he climbs. Let me try and clear up this point. I agree with my hon. Friend the Member for Harrow East (Bob Blackman) that it should not be for the Government to consider the minutiae of things, but I suspect that the amendment tabled by my hon. Friend the Member for Christchurch (Mr Chope) is not actually intra vires or workable. This is a Transport for London Bill, and therefore the code of practice would be incumbent on those in control of Transport for London. Transport for London is devolved to London, and such matters would be for it, and the Mayor to consider, not the Secretary of State. I therefore suggest that the amendment is completely unworkable.
I thank the Minister for that helpful intervention. Amendment 4 would mean that local authorities could not put up lamps and signs in a conservation area without consent. The problem is that councils already have the power to do that, although they must obtain the consent of the owner of the building. This is a decluttering measure; the idea behind these provisions is to remove the clutter of road signs and signage that appears all over London, which most of us Londoners recognise as disastrous. The amendment would restrict the ability of local authorities to declutter conservation areas and put up appropriate signs, although that ability is what most people want to see. Finally, the provisions in question, including those on conservation areas, were proposed by English Heritage. I bow to its expertise in wishing to pursue them.
Amendment 5 deals with notices. My hon. Friend the Member for Christchurch made several points about people who appear to be residents or are employed on the land in question. The point is that notices would be served on such people if the local authority had been unable to ascertain the name or address of the owner of the premises. The provision in the Bill retains flexibility and is exactly the same as that in section 53 of the Crossrail Act 2008 and many other pieces of Government legislation. It is entirely consistent with previous legislation, so I strongly resist removing it.
It is clearly incumbent on the local authority to make every effort to establish the name and owner of a building, and it would be sensible for it to do that. However, in London in particular, there is often a freeholder, a leaseholder and maybe a sub-leaseholder, and the ownership and responsibility may be confused. The provision is about giving a notice setting out what is going to be done to the outside of a building. That is not particularly draconian, but it is clearly required. A local authority frequently goes through a set of procedures to make such things happen. It would be draconian to frustrate its ability to provide signage or lamps that are wholly consistent with the general requirements of TfL or London local authorities.
Amendment 6 would remove the provision allowing local authorities to use any other existing general powers to serve notice. Councils have a power to do so under section 233 of the Local Government Act 1972, and that power is enshrined in the Bill. The effect of the amendment would be to remove that capability under the 1972 Act. My hon. Friend the Member for Christchurch may have difficulties with that Act, but this is not the right place to express them.
It just reinforces and restates existing legislation, and I think it is sensible to have the relevant legislation all in one place so that people can understand everything that applies. The subsection is nothing new and does not amend the 1972 Act. That Act has gone through many changes, through London Acts and so on, so it is sensible to retain the subsection.
My hon. Friend says that the subsection just restates the existing law in section 233 of the 1972 Act. That section applies throughout the country, so why is it necessary to reapply an existing provision in a local Act? Why do we need clause 5(5) at all? He says that it is useful to have everything in one piece of legislation, but that provision is already in the 1972 Act. Unless there is something in the subsection that adds to or subtracts from section 233 of that Act, what is the point of having it? How can that be good legislation?
For clarity and continuity it is sensible to restate, not change, the position that already exists. There is nothing new in clause 5(5), but if I were reading the Bill, I would want to know that there was complete clarity about its purpose.
Amendments 7 to 9 deal with cost and repair. There is nothing more frustrating for people than to see a development cause damage to a public highway, and for there then to be a lack of clarity about who will fix it. This is a problem in large parts of London. However, the effect of the amendments will possibly not be what my hon. Friend the Member for Christchurch intends. The local authority has a clear duty to maintain the highway so that it is in a good state of repair. In many parts of London it is not in a good state of repair. Where a developer or someone acting on behalf of an owner has caused damage, it is clear that the first option should be for the developer to repair the damage it has caused. Amendment 7 would remove the obligation on the developer to fix the damage it has caused and put the onus completely on the local authority to obtain the funding from the developer or the owner affected. This is, therefore, an unwanted measure.
Existing national legislation is worded in exactly the same way as the proposed legislation. Amendment 7 would place London local authorities in a worse position than the local authority in, for example, Christchurch. I do not see any reason why London authorities should be placed in a worse position than authorities outside London. The position should be consistent for all three amendments: the first call is for the developer to fix the problem it has caused. If it does not fix it, then the local authority should step in, make good the damage, and charge the people who caused the damage in the first place. In all these cases, this is entirely consistent with national legislation. The obligation to fix it should be on the people who caused the damage.
The explanatory memorandum states that
“Clause 6 would replace section 133 with provisions for London that would enable the highway authority to recover their expenses of remedying such damage to any part of the highway, not just the footway.”
That seems to be what is being changed, rather than the means by which the damages can be recovered. Does my hon. Friend accept that there is a lot of rather superfluous wording, if the purpose is just to be able to extend an existing power from the footway to the whole of the highway?
The key point is who repairs the damage initially, or how the money is recovered. The point is that it should be the developer who causes the damage—frequently, heavy lorries delivering goods to a site cause damage to the highway as well the footway—who repairs it first. If they do not repair it, then the local authority steps in, makes good the damage, serves a notice and recovers the money. Unfortunately, the effect of all three amendments would remove the position of the developer doing any work at all, and put the onus fairly and squarely on the highways authority to make good and then try to recover the costs. That would be terribly frustrating for all concerned.
I am not sure that I entirely agree with that interpretation. All that the amendments tabled by my hon. Friend the Member for Christchurch (Mr Chope) seek to do is move the word “may” from line 30 to line 31. At the moment it states:
“may make good the damage and recover the expenses”.
If amendments 7 and 8 were accepted it would state:
“shall make good the damage and may recover the expenses”.
In both cases, the “may” would apply to the question of the recovering of expenses.
I thank my hon. Friend for that point, but that is completely the wrong way around. The polluter should pay. The developer who has caused the damage should pay. The point is this: whether they repair it themselves to the required standard of the highways authority or whether the highways authority makes good and then charges is a matter for the local authority. That is certainly something that they should be doing. Certainly, they should not expect the council tax payer or general taxpayer to fund the repair of damage caused by a developer, but, if the amendments were passed, the developer would be under no obligation to make good the damage and the local authority might be unable to recover the costs incurred, which would be a retrograde step.
I think we are at cross-purposes. My hon. Friend rightly said that the polluter should pay, but my concern is that if the polluter does not repair the damage to the highway, it might go unrepaired, unless my amendment 7 is carried, as it would require the local authority to repair the damage.
No, it wouldn’t. It says that the local authority “shall” step in and do the work, irrespective. That wording is incorrect and is why I shall resist amendment 7, as well as amendments 8 and 9, which are all consequential amendments.
On amendment 20, London has many gates placed across roads to prevent the flow of traffic through residential communities. The roads are normally accessible by the emergency services—the fire brigade, ambulance service and police—and other appropriate authorities, but sometimes there is a severe problem. At the moment, if someone damages a gate, they can be held liable for criminal damage, but if they merely open the gate for their own convenience—to access the road or bypass a congested road—it defeats the purpose of that gate, which is to prevent large parts of London from being used as rat runs. The promoters therefore seek an enforcement option. If, on being directed by the emergency services, someone opened a gate, clearly they would not be guilty of an offence, but if they opened a gate for their own convenience—or for other people’s convenience, for joyriding or whatever—they would be guilty of an offence, and it would be up to the local authorities to enforce those actions.
I accept completely that there is an issue of interpretation around the reason for opening the gate, and there is always the potential for somebody to receive a penalty for incorrectly opening one, but it is entirely fair and proper to make it clear that people should not open one unless they have authority or good reason to believe that life or limb are in danger.
I am not entirely sure that the matter is as clear-cut as my hon. Friend says. As I understand it, if someone is at a red traffic light, an emergency vehicle wishes to get through and that person moves through the red light to allow it through, they still can be, and in some cases have been, prosecuted for going through a red light. I fear that, under the clause, if somebody for a good, common sense, although perhaps not lawful reason, opened a gate to allow an emergency vehicle to get to the scene of an accident, they could still find themselves prosecuted, which surely cannot be anybody’s intention.
Clearly, this is a matter of interpretation. The purpose of placing barriers across a traffic highway is to prevent the incursion of normal vehicles, but I cannot envisage someone ever being prosecuted for opening a gate that is normally locked in order to give access to an ambulance, the police or the fire brigade. However, the promoters are keen to ensure that people understand that if they interfere with a locked gate that is there for the purpose of preventing traffic from passing through, that will be an offence and they can be prosecuted.
Obviously we want to test out the new provision, because it would create a new criminal offence, so what about the following scenario? What if somebody finds that the gate is open and therefore closes it? Under the provisions we are discussing, they would be liable.
Having made something of a study of such gates in London over the years, I can say that they are almost all locked with padlocks—except where someone has stolen the padlock, in which chase the gate will often flip open and shut. Young people—in general it is young people—have a habit of occasionally using such gates as a form of entertainment. We need to make it clear that such gates are there for a purpose. This issue is a matter of interpretation. We are talking about gates being interfered with—that is, opened to allow the incursion of traffic.
My earlier intervention fell on stony ground, so I will try from a different angle. My hon. Friend thinks that somebody in the scenario that I painted would not be prosecuted, but how about this scenario? What would happen if somebody refused to open the gate for an emergency vehicle in a desperate situation because they feared being prosecuted for contravening the law as it stands? Would that not be a shocking consequence of the proposal we are discussing?
It would be shocking; indeed, it would be shocking if the emergency services did not have the keys to access such a gate when they arrived at the scene, which in my experience they always do. To my knowledge—I will bow to anyone else’s superior knowledge—there has never been a situation where the emergency services required access to such a gate but were prevented because they were not carrying the keys.
I cannot imagine that anyone who was acting under the authority and direction of a member of the relevant services would be prosecuted for that.
In summary, on behalf of the promoters, I hope that I have given sufficient explanation to enable the mover of the amendment to withdraw it, rather than pressing it to a vote.
Thank you, Mr Deputy Speaker. As always, it is a pleasure to follow my hon. Friend the Member for Harrow East (Bob Blackman), who went through the amendments with his usual courtesy and in a good-natured and thoughtful way. I am extremely grateful for some of the explanations he gave. I am not entirely convinced by every one of them, as I will explain, but I am extremely grateful that he put forward the promoters’ case so eloquently on their behalf.
It has already been a long old road for this Bill, as I am sure my hon. Friend would agree. Only yesterday, when my hon. Friend the Member for Christchurch (Mr Chope) and I noticed that it was up for debate this evening, I said, “I seem to recall that I might have spoken on Second Reading.” He said, “I think you did.” I said, “I can’t recall when that was.” He replied, “Oh, it was about March time,” so I went away and looked it up. I found that Second Reading did indeed take place about March time, but March last year—on 6 March 2012, to be precise.
The Bill has changed fairly substantially since it was first introduced in the other place. It has gradually shrunk in size, as clause after clause has been shed, for one reason or another. Members might well be wondering what has happened in the intervening period—
Well, let me help the hon. Gentleman. We are discussing the amendments, and we do not need to hear the history of the Bill prior to the amendments because, in fairness, the hon. Member for Christchurch (Mr Chope) has already set out the subject very well. I know that the hon. Member for Bury North (Mr Nuttall) is desperate to speak only to the amendments.
Thank you, Mr Deputy Speaker. I am indeed. In one sentence, let me say that this is relevant because there was an opposed Committee meeting on 6 November last year that resulted in the Bill shrinking since the last time we discussed it, so we now have a different Bill—
I was just finishing the sentence, Mr Deputy Speaker.
I shall start with amendments 1 and 2. I am surprised that only two of the amendments have been accepted by the promoters. As has already become evident, there are some good arguments for many of the amendments tabled by my hon. Friend the Member for Christchurch. Amendments 1 and 2 deal with the starting dates. They are worth considering because it would make sense, if we are introducing new laws that will apply all across London, to have them start at the same time. I listened carefully to the argument put forward by my hon. Friend the Member for Harrow East about the need for complete flexibility. He also suggested that it would be somewhat draconian to introduce new rules to be applied across London all at the same time. The other side to that argument is that, if the boroughs introduced the new rules on different dates—or even in different years—there could be confusion, to say the least, as to which boroughs had adopted a particular new rule and which had not.
Let us look at the details of clause 3(2) and (3). They imply that different start dates could be set even within the same borough. Subsection (2) states:
“Different days may be fixed under this section for the purposes of the application of the provisions mentioned in section 1(3) to different areas.”
I emphasise the words “to different areas”. The only way in which subsection (3) differs is in its final three words, which are “to an area”. It states:
“Different days may be fixed under this section for the purposes of the application of the provisions mentioned in section 1(3) to an area.”
I appreciate the comment made by my hon. Friend the Member for Harrow East that the signs could be put in place for temporary reasons, or to implement temporary traffic flow measures. Obviously, no one could possibly argue that that kind of sign should not be put up and then taken down again so as to suit the circumstances. However, I see no reason why that could not apply even if amendments 1 and 2 were accepted and those two subsections were left out of the Bill, which would be a sensible step to take.
Amendment 3 would add the words
“and approved by the Secretary of State for Transport”
to the end of clause 4(13). In an intervention, I said that I took issue to a small degree with my hon. Friend the Member for Christchurch. First of all, by limiting the provision to the Secretary of State for Transport, there could be problems in the future if, for example, there were not a Secretary of State for Transport. Personally, I would prefer the description “the Secretary of State”. I heard the Minister say in an intervention that in any event, this matter should be dealt with by the Mayor of London, and there might well be some merit in that.
Whichever road we go down, however, whether it be the Mayor of London or the Secretary of State, the point is that there needs to be some oversight, notwithstanding the arguments made very eloquently by my hon. Friend the Member for Harrow East on behalf of the promoters that this is a matter where localism should apply. In fact, I have some sympathy with that argument. I think there is a lot to be said for localism, but we have to be careful that localism is not taken a bit too far, so that we end up with one rule in one place that does not apply in another place. It understandably then starts to bring the law into disrepute as people become somewhat confused about what the law is.
If this amendment is accepted—we have yet to see the will of the House on it—I have absolutely no doubt that my hon. Friend the Minister will look at the code of conduct very carefully indeed, meticulously looking at its different aspects, and I have no doubt at all that he would make a good job of it. This code of conduct does not have to be a long matter, as we are not imposing a particularly onerous task on the Secretary of State.
Amendment 4 adds a new subsection (14A) to clause 4, stating:
“This section and section 5 shall not apply in respect of any building in a conservation area.”
I think this is a sensible measure.
My hon. Friend the Member for Harrow East described the clause as “a decluttering exercise”, and I agree that there are far too many signs about, which is very confusing. I wholeheartedly support any measures to do with decluttering. I would be even more impressed, therefore, if clause 4 were headed “Removal of street lamps and signs to buildings” rather than “Attachments of street lamps and signs to buildings”, which suggests to me that the aim is not to remove the street lights or signs, but to make provision for them to be added to a building. As far as I can see, that is what the clause is about—the circumstances in which a sign can be added to a building; hence all the rules and regulations about serving a notice before such action is taken. I am not entirely convinced. There might well be some ideas about how to get rid of the superfluous signs that clutter up our streetscapes around London. As I say, however, I would be more impressed if there were some evidence of that on the face of the Bill.
The hon. Gentleman says that he is not convinced by the arguments of his hon. Friend the Member for Harrow East (Bob Blackman), who I think said that many of the decluttering proposals were being supported, indeed perhaps even sponsored, by English Heritage. Is the hon. Gentleman thus not only unconvinced, but confused that English Heritage is putting forward these proposals that are about trying to declutter our streets?
What I cannot understand is why we would need legislation to remove a sign. I understand why legislation is needed to put a sign up, but I am not aware that once a sign is up legislation is required to remove it; someone could just go and take it down. I would be interested to know from others whether I am right. Perhaps after a certain period, a sign acquires some sort of importance. If it is attached to a listed building, it might become part of the listing. However, there is no evidence in the Bill that that is intended. There is merit in saying that special provisions should apply to the effect that clause 4 should not apply to any building in a conservation area.
Amendment 5 deals with a
“notice served under section 4(4), (8) or (11)(a).”
Such notices can be served in a number of ways. I leave aside the irrelevance of the whole clause; we will come to that in a moment. Clause 5(4) states that the notice could be left
“in the hands of a person who is…resident…employed on the land or leaving it conspicuously affixed to some building or object on or near the land”
or with someone who “appears to be resident”.
I have personal experience of doing the job. When I was first employed as a trainee legal executive, part of my role was to go to far-flung parts of Sheffield to serve such notices. I have done the job and know the problems of serving notices and trying to find somewhere suitable to fix them. I can imagine the situations that may arise when some poor council official is faced with being sent out on a rainy Friday morning to some distant part of London to try to serve a notice.
We need to consider the purpose of serving the notice. It is to ensure that a person affected by this legislation knows what is about to happen. The problem with clause 5(4) is that a notice can be given to someone who just “appears to be resident”. They might not be resident; they might be passing through or cleaning the windows. Some owners clean their own windows, while others employ people to do it. The person serving the notice might easily leave it with someone who they genuinely thought lived there, but that person might stuff it in their pocket without thinking twice.
I will not detain the House any further on this matter, but there is clearly scope for the four words in amendment 5 to be taken out of clause 5(4). The clause would be much better without them.
Amendment 6 would remove an even more bizarre subsection:
“This section shall not be taken to exclude the employment of any method of service not expressly provided for by it.”
In other words all the mentions of methods of serving a notice, such as by post, or sending it to an address that has been given or to a limited company, or, as I have just mentioned, of actually going and giving it to a person—an employee, perhaps—or putting it on an object nearby or on to the building, can be left aside and people can do whatever they like. They can just turn up, perhaps, or put it in a hot air balloon and hope it will drift by, and say, “Well, that was the method I thought of. It wasn’t a very good one, but this doesn’t exclude the employment of any method, so I thought of that. A colleague tried to convince me it should be a carrier pigeon, but I thought a balloon would be a good idea.” This is just nonsense.
My hon. Friend the Member for Shipley (Philip Davies) rightly brought up the question of e-mail. Subsection (5) may well be intended to provide for the use of e-mail, in which I case I would say that that is fine and in the modern world there is nothing wrong with serving notices by e-mail. Bearing in mind the long gestation of this Bill, however, I cannot understand why that is not expressly set out in it, if that is what the promoters had in mind.
Amendments 7 and 8 are best dealt with together. The issue in question is slightly confusing because it all revolves around the words “may” and “shall”. As we heard in the exchanges that took place a few moments ago, the interpretation of this clause is everything, really. The whole essence of the amendments of my hon. Friend the Member for Christchurch is simply to make things clear. As the clause is drafted, the authority might make good the damage, but they might not. My hon. Friend’s amendment makes it the case that the highway “shall” be repaired. I appreciate the point made by my hon. Friend the Member for Harrow East about that imposing an obligation on authorities, but I would have thought that they would want to see the highway properly maintained for a number of reasons, first from the point of view of their residents and secondly from the point of view of risk reduction. As we all know, it is a very costly exercise for local authorities not properly to maintain the highway, so I would have thought that they would in any event want to make good any damage caused by a contractor, and I see no problem with replacing “may” with “shall” or with moving the word “may” to before the word “recover” so that they may recover the expenses. It may well be that they will do that in every single case, so in 100% of cases they will have the right to go and recover the expenses from the contractor, but that does no more than the clause as drafted does. It already says that they may make good the damage and recover the expenses, so it implies that they may not. I cannot see why this amendment cannot be accepted.
Amendment 9 is very well thought out. I understand the point that my hon. Friend the Member for Harrow East made on behalf of the promoters, which was that they understandably want to recover the costs they have incurred, but I cannot understand why they should try to recover them from somebody who may have nothing to do with the damage caused. It makes sense to recover the costs from whoever has caused the damage, on the “polluter pays” principle—I entirely agree with that. However, simply saying that they should have the right to recover them from the owner of the land, without any explanation as to how the owner may be identified—without saying whether it is the freeholder, the leaseholder, the sub-lessee or the tenant—creates a lawyer’s paradise, a description I shall use in relation to amendment 20. I can just imagine the length of the litigation that might ensue from this provision were it allowed to remain in the Bill, so I strongly support amendment 9.
Amendment 20, the last in the group, relates to gated roads and clause 15. I was going to inquire what specific problem the clause was intended to remedy, but I am grateful to my hon. Friend the Member for Christchurch for explaining at length what the problem was. The further he went with his explanation, the more obvious the problem became. I understand that it is a serious problem. These gates are clearly there for a reason—to prevent vehicles from using routes as rat runs.
However, my hon. Friend the Member for Harrow East went on to say that this is a matter of interpretation. He said that these gates are normally locked and are almost all locked except where someone has stolen the padlock. In other words, one of these gates could be open only if a criminal offence has taken place. That offence would be either theft of the padlock or criminal damage, if the gate has been prised open and left. By definition, from what was said earlier, it could only be, in these circumstances, that a criminal offence had taken place, given that these gates are normally locked and are almost always locked, except when someone has stolen the padlock.
I therefore entirely support amendment 20, because the clause would affect my constituents if they came to London. They might be familiar with gated roads in my constituency, or in any other constituency where this law would not apply, and they would think it would be perfectly all right to open the gate. They would drive through it quite innocently, without realising that they were committing a criminal offence.
On reflection, would my hon. Friend agree that the biggest problem with the clause is that it criminalises the good samaritan? As the explanatory memorandum points out, it is an offence to drive along a road in breach of a road traffic regulation, so if somebody finds one of these gates open and closes it to prevent other people from committing road traffic offences by driving through that open gap, they will be liable to a criminal penalty under this clause.
My hon. Friend makes a very good point. That is one of the problems with the clause: it will potentially make criminals out of people who seek to do good. That cannot be right. It also prompts the question of what signage would be in place. In the context of the other clauses, we were talking about trying to remove signs, but there now might need to be new signs to warn people that such activity is a criminal offence. I entirely support the amendment and I look forward to hearing from others.
Order. I call Mr Philip Davies, and I am modestly confident that the contribution will be relatively brief as I feel sure that he will wish to get on with the consideration of amendment 10. Nevertheless, I have come back to hear colleagues and I wish to hear from the hon. Gentleman.
Among your many other great qualities, Mr Speaker, you are clearly a mind reader. I was only just thinking to myself that I must be brief so that we could get on to the next group of amendments. I commend you for that.
I find myself in a rather difficult position. I usually agree totally with my hon. Friend the Member for Christchurch (Mr Chope) in his amendments, which are always thoughtfully considered and well argued. He usually manages to persuade me. I am rather torn on this group of amendments, however, as although he has persuaded me on some of them he has not on others. My hon. Friend the Member for Harrow East (Bob Blackman) has done a great job in making the case for the proposers of the Bill and articulating their side of the argument and, in some cases, he has persuaded me.
I am not entirely sure how this might operate, as I am not an expert in the procedures of the House—unlike you, Mr Speaker, and my hon. Friend the Member for Christchurch—but I want to tell my hon. Friend which of his amendments I think are strongest and on which he might, if possible, wish to divide the House. Some of the amendments are stronger than others.
Some of my hon. Friend’s amendments are superficially attractive, as they generally are. He made a good point with amendments 1 and 2, which highlight provisions in the clause that are either bad or unnecessary. However, there is some merit in having some flexibility for the London boroughs in organising how they do business. There might be good reasons for trialling measures or introducing them at different times, and that flexibility should be allowed. The provisions might be superfluous but I do not see from listening to the arguments that they are particularly dangerous.
At the risk of hastening my hon. Friend on, will he specify which he thinks are the best amendments in order of preference? If his remarks are cut short, we will then have heard him putting the best first so that we can consider on which of them we might wish to divide the House.
I am grateful to my hon. Friend and I certainly will do that. To cut to the chase, his strongest amendment is amendment 5, on the issue of serving notices and whether someone is a resident or, as the Bill states, “appears to be” the resident. For me, the situation is completely nonsensical. On what basis does somebody appear to be a resident? One of us might be delivering leaflets in our constituency, as we do, and might have just left the door of a place only for somebody from the local authority come along to serve the notice. Seeing that we are leaving the door, they might serve us with the notice because they presume, quite wrongly, that we are the resident. All sorts of ridiculous scenarios could ensue. Sometimes, such provisions are just for the convenience of the laziness of local officials, so that they can use the justification that as far as they could see somebody appeared to be a resident and they therefore did not have to take any reasonable steps to ensure that that person was a resident. Surely the least any resident affected by these provisions can expect is that the authority concerned makes a proper effort to serve them with the relevant notice. If it was enough for someone to appear to be a resident, the local authority could, for its convenience, idly hand that person the notice, come what may. That is a ludicrous situation that we in this House should not tolerate, so I hope that my hon. Friend will consider pressing amendment 5 to a Division; that would be doing us a great service.
My hon. Friend’s other particularly strong amendment is amendment 20, on gated roads. This is a very important issue. As I mentioned in my intervention on my hon. Friend the Member for Harrow East, there are often well-meaning, well-intentioned provisions in legislation that have totally perverse outcomes. As I said, if a person drives through a red light to allow an emergency vehicle through, they are liable to prosecution for the offence of going through a red light. People might think, “It would be ludicrous if anyone who went through a red light just to allow an emergency vehicle through was prosecuted. Surely that would never happen,” but people have been prosecuted in those very circumstances. It does actually happen.
My hon. Friend the Member for Harrow East says that when someone opens the gates for a good, common-sense reason, they will not be prosecuted. I do not doubt that that is his genuine belief, but we cannot pass legislation on the basis of what we think is likely to happen; we have to look at what the legislation actually states. We cannot allow perversity in the law. What if there is a terrible accident, and someone says, “For goodness’ sake, open that gate! An emergency vehicle is coming along in five minutes, and we need this person to be dealt with as soon as possible,” so a person opens the gate, and then finds themselves with a criminal record because they had done something they were not allowed to do under this legislation? That would be ludicrous, and we would be enshrining that kind of perversity in law.
On the other hand, someone who is encouraged to open a gate because an emergency vehicle is coming in five minutes’ time may say, “No, I’m not opening the gate, because I know the legislation, and I will be committing a criminal offence if I do.” We may end up with that kind of idiotic situation as an unintended consequence of the Bill. I hope that my hon. Friend the Member for Christchurch will try to find a way for amendments 20 and 6 to be put to the vote.
My hon. Friends the Members for Christchurch and for Bury North (Mr Nuttall) were very gung-ho about amendment 9, and I feared that they might seek to put it to a vote. I advise a certain amount of caution, because including a reference to the owner of the land in the legislation is quite sensible. Clause 6 does not say that the highway authority has to go after the owner; it just allows the authority the flexibility to do so, if that is the right person to pursue.
Let me briefly show why that may be a good idea. If the provision mentioned only the person carrying out the works and the person on whose behalf the works were being carried out, the following scenario could arise. Say a landowner’s permission is sought for work to be carried out. Although they are happy for that work to be done, and may well have encouraged it to be done, it may not have been carried out on their behalf, and they may not be the people carrying it out. However, they could quite easily be just as liable as the other people for the damage done, because they gave their consent for the work, although it was inappropriate.
Another scenario may come into play. My hon. Friend the Member for Christchurch may unintentionally create a loophole with his amendment, because a wealthy landowner who does not want to be liable for any damage caused may get someone who has no means whatever to request that work be carried out, and get another person who has no means whatever to do the work. When the damage is done, the local authority has no means of recovering its money because the people who carried out and officially requested the work have nothing. The owner of the land, who actually wanted the work done in the first place, though that may not be evident at the time, gets away scot-free. I therefore fear that my hon. Friend could be creating a loophole, which would be unfortunate. Knowing him as I do, I am sure that would be an unintended consequence of what he is trying to achieve. I urge caution on him in pursuing amendment 9, even though I appreciate that my hon. Friends the Members for Christchurch and for Bury North feel that it is a particularly strong one.
We had a long debate about whether approval should be given by the Secretary of State for Transport. I totally understood the point made by my hon. Friend the Member for Christchurch. Equally, I took the point made by my hon. Friend the Member for Harrow East. There is merit in both cases and I do not think that one is stronger than the other. For that reason I would not want my hon. Friend the Member for Christchurch to pursue amendment 3.
The same applies to amendment 4 about a building in a conservation area. My initial reaction was that that was a sensible amendment tabled by my hon. Friend. However, the point made by my hon. Friend the Member for Harrow East about the view of English Heritage was a strong one. One would think that if any organisation is likely to want to protect conservation areas, it would be English Heritage. If it does not see this as a big issue, I am not entirely sure that I should, although my hon. Friend the Member for Bury North made a good point about decluttering. I did not read the provision as an attempt to declutter; to be honest, I saw it as an attempt to add clutter.
I caution my hon. Friend the Member for Harrow East that what may be useful decluttering to a London resident may not necessarily be helpful to people who are not residents of London, but come down to visit London, as my constituents do. Signage that may be superfluous to a London resident is absolutely not superfluous to people from other parts of the country. The problem with localism for London is that London is a city that relies on lots of people from out of London visiting it. We can take localism too far in London and more thought should be given to people from Shipley, Bury, Dorset and other parts of the country who come and visit, and rely on some of those signs because they do not know the local area.
I have covered amendment 5 so I will not go over that again. My hon. Friend the Member for Christchurch thought amendment 6 was a good one. Advances in modern technology may well increase the need for e-mail and so on. I hope he will not press the amendment.
In the interests of brevity, I will not go through the other amendments that he ran through. I hope I have made it clear that on some it was good to tease out the answers from my hon. Friend the Member for Harrow East, but those amendments are not worth pursuing. Amendments 5 and 20 are welcome and I hope my hon. Friend the Member for Christchurch will find a way to press those to a Division.
I am grateful for the opportunity to follow the hon. Member for Shipley (Philip Davies).
When the hon. Member for Christchurch (Mr Chope) was initially moving his amendments in a self-deprecating fashion, saying that he is sometimes criticised for the role he plays in private Business, I said in an intervention that that is not the view on the Opposition Benches. We value the service he provides, ably assisted by his hon. Friends the Members for Bury North (Mr Nuttall) and for Shipley. I sometimes query whether the length of time taken is necessary, but I do not in any way, shape or form challenge, question or criticise the right to table amendments and make sure that legislation such as this is scrutinised.
Having listened to the arguments from the hon. Member for Christchurch and his hon. Friends and the explanations from the hon. Member for Harrow East (Bob Blackman), I regret to inform the hon. Member for Christchurch that should he press any of the amendments in this group to a vote, Her Majesty’s loyal Opposition will not be joining him in the Lobby.
With your encouragement, Mr Speaker, this has been a very civilised debate and we have covered the ground. As I said, this is the first opportunity we have had to look at much of the detail of the Bill. I am immensely grateful to my hon. Friend the Member for Harrow East (Bob Blackman) for having responded to the points that were made. I have been convinced by many of the arguments, and he produced answers to many of my concerns.
With regard to the two amendments that my hon. Friend the Member for Shipley (Philip Davies) identified as being worthy of further consideration by testing the will of the House, my inclination is not to press amendment 5, because my hon. Friend the Member for Harrow East said that clause 5, to which the amendment relates, is a complete replication of the existing law set out in section 233 of the Local Government Act 1972, in which case to divide the House would probably be to seek its indulgence in a way that I would prefer not to do. I hope that it will be possible in due course to seek the House’s view on amendment 20, which would mean having a Division after we consider the next group of amendments.
Having listened to the debate, it seems to me that the issue of gated roads has national application, rather than being confined to London. If we are to create a completely new offence, as both my hon. Friends the Members for Shipley and for Bury North (Mr Nuttall) have said, we must ensure that the legislation is as plain as a pikestaff so that everybody knows where they stand. As my hon. Friend the Member for Harrow East said, we cannot be in the business of passing laws that are a matter of interpretation.
I think that it would be wrong to create through legislation a new criminal offence that could have the effect of penalising a good Samaritan. As my hon. Friend the Member for Shipley said, it is idiotic that a person who closes a gate after him, when it had been open, could find himself on the wrong side of the criminal law. There is too much control by political correctness. We now have a situation in which firemen are not prepared to go and rescue somebody because that might be against health and safety regulations. We do not want a situation in which a person does not close a gate in their neighbourhood that is normally closed because they fear that to do so might be to commit a criminal offence. For those reasons, and thanking everybody who has contributed to the debate, I seek the leave of the House, at the appropriate moment, to test its opinion on amendment 20.
These amendments relate to part 3 of the Bill, which deals with “Builders’ Skips”. It is important that we have a proper control regime for builders’ skips. It is also important that we are absolutely clear in our own minds about what the impact of the proposed changes to the Bill would be. For example, amendment 10 would add to section 8(1) so that the relevant highway authority could require the relevant person to provide them with the name and address of the owner of the builder’s skip
“where that information is not clearly and indelibly marked under the provisions of section 9”.
Section 9 provides that a skip must be
“clearly and indelibly marked with the owner’s name and with his telephone number or address”.
It seems to me that the best way of resolving this matter is to ensure that the skip must be, as amendment 15 suggests, clearly and indelibly marked with the owner’s name, telephone number and address. If that is done and there is no breach of the provision, it will not be necessary for the highway authority to exercise the power set out in clause 8 because the information that it is seeking to ascertain will already be in its knowledge and the knowledge of anybody else who looks at the skip in question. That would improve the wording of the Bill.
Amendment 11 challenges the current provision, which states:
“A requirement under this section shall specify the period within which it must be complied with, which must be a period no shorter than 3 working days beginning with the date on which the request was made.”
I will take my hon. Friend’s intervention shortly, but I am going to anticipate it in my next comments. Prior to his looking at this because it was drawn to his attention by my amendment, nobody had thought through how reasonable a period of three working days would be in these circumstances. As a result of my tabling amendment 11 to insert 14 working days instead, he and the promoters of the Bill have seen the unreasonableness of the original proposition and the reasonableness of the amendment. He indicated in a letter that I received this morning that he would be willing to accept the amendment.
I am very grateful to my hon. Friend.
Amendments 12 and 13 deal with the level of penalty for any person convicted of an offence under clause 8(6), which says that
“in the case of an offence under paragraph (a)”
the fine should be “not exceeding level 3”. However, under paragraph (a) the penalty would apply to somebody
“on whom a requirement is imposed…if…without reasonable excuse he fails to comply within the period specified”.
That means that he would not be providing the information within 14 working days. That is, I submit, a relatively minor contravention that should merit, if indeed it is prosecuted at all, only a fine not exceeding level 1 on the standard scale. Obviously, if a person responds to the requirement and, in so doing, gives information that he knows is false in a material particular, that is much more serious. The gravity of that could be reflected in a fine not exceeding level 3 rather than a massive one at level 5. I look forward to my hon. Friend explaining why the fine levels in the Bill were chosen.
Amendment 14 relates to the burden of proof and to avoiding the creation of offences of strict liability when strict liability is disproportionate and not appropriate. Clause 9 states that a penalty charge is payable if
“a builder’s skip has been deposited on a highway in accordance with a permission granted under…section 139 but the owner of the skip does not secure that…the skip is properly lighted”.
In other words, it is an offence of strict liability. The amendment would insert
“take any reasonable steps to”
after “not”, because if the owner has taken reasonable steps to secure that the skip is properly lit during the hours of darkness but something happens that causes it not to be properly lit, I do not think it would be reasonable to impose a penalty charge on the skip owner.
Does my hon. Friend have in mind a scenario in which a skip that has been properly lit is vandalised by people who prevent it from being lit? As it stands the owner would still be liable even if he had done everything he could to ensure that the skip was properly lit. Does my hon. Friend think that “taking any reasonable steps” would protect somebody who was doing their best?
That is exactly the scenario I had in mind. The owner might employ security guards to look at the skip regularly, but if the light was stolen or vandalised at some point would it be reasonable to say that the owner should be liable to a penalty charge?
When I spoke to amendment 10, I referred to amendment 15, which would strengthen the Bill because it would make it incumbent on the owner to take reasonable steps to ensure that the skip is clearly and indelibly marked with his name and telephone number and—rather than or—his address. Having a name and telephone number on a skip is not as good as having a name and address on a skip. I do not understand why the Bill’s promoters and drafters did not require both the telephone number and the address of the skip owner to be displayed. I would have thought that that would be much more preferable. That shows that these amendments are designed not to undermine the Bill, but to try to strengthen it where appropriate.
Amendment 16 relates back to clause 9(6)(d). Subsection (6) sets out, for the purposes of the London Local Authorities Act 2007, a number of provisions relating to
“the grounds on which representations may be made against a penalty charge 40 notice arising”,
one of which is paragraph (d), which notes that
“the contravention of the relevant provision in question was due to the act or default of another person and that he took all precautions and exercised all due diligence to avoid the contravention by himself or another person under his control.”
That seems brilliant, but subsection (8) states:
“Where the ground mentioned in subsection (6)(d) is relied on in any representations…the relevant highway authority may disregard the representations unless, before the representations are considered, the person making the representations has served on the relevant highway authority a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.”
That seems oppressive in the extreme. It would be fine to leave in subsection (6)(d) without subsection (8), and that is the purpose of amendment 16, which I hope will be acceptable to my hon. Friend the Member for Harrow East (Bob Blackman).
Does my hon. Friend accept that if amendment 14 is accepted and requires someone to take “any reasonable steps” with regard to a properly lighted skip, we would not need subsection (8)? Amendment 14 is a much neater way of doing what the promoters of the Bill seem to be trying to do with their other provisions.
Exactly. Sometimes the imagination of those who draft private Bills runs away with them and they think of all possible scenarios. Requiring someone who has taken all reasonable precautions to avoid a contravention to set out in writing their information about other people who might have been up to no good, goes too far.
On Second Reading, the hon. Member for Ealing North (Stephen Pound), who I am sorry is not in his place, made a point about the immobilisation of builders’ skips—I think the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) also raised that issue. If a builder’s skip is unlit, not properly guarded, causing a nuisance, filled with rotting rubbish or whatever, is it sensible to immobilise it? That is the challenge I put to the promoters of the Bill with amendments 17 to 19, which would leave out clauses 12 to 14.
If the owners of a skip have offended against provisions in part 3 of the Bill, surely penalty notices and so on will be involved. To immobilise the skip in the meantime, thereby preventing its owner from removing it when it is not lit or causing a nuisance, seems to go slightly in the wrong direction. I am sure I am wrong about that, and when my hon. Friend the Member for Harrow East responds to the debate he will put me right and explain why London would be a better place if all skips were immobilised. The fact that this was a cross-party issue and taken up on Second Reading was not properly addressed in Committee, so I hope it can be addressed in response to my remarks. I look forward to hearing from my hon. Friend in the hope that we can proceed with these amendments in a similar way to the previous ones.
I thank my hon. Friend the Member for Christchurch (Mr Chope) for outlining his various amendments. I will run briefly through the promoters’ view of each. I trust that he will see the logic that they have applied.
The amendments relate to proposals for the decriminalisation of the position on builders’ skips. The power to enforce the rules and if necessary—I emphasise that—immobilise skips when relevant notices are not complied with will instead be put in the hands of the local authority. The authority will have to be convinced that immobilisation is the correct thing to do.
Amendment 10 suggests that information should be provided only if it
“is not clearly and indelibly marked under the provision of section 9”.
I think my hon. Friend has got the wording incorrect, because the requirement set out in the Bill is under section 139 of the Highways Act 1980. The problem, as Members will see if they come to various parts of London and see skips on the roads, is that there may be a name on the side of a skip, but it might not be accurate, because skips are swapped around various companies at various times. The amendment would place a severe burden on skip suppliers to ensure that the details were accurate. On that basis, I do not think it would be sensible to accept it, particularly given the rest of the Bill’s provisions.
The promoters wish to accept amendment 11, and on reflection believe that 14 days should be allowed for compliance. That makes better sense.
Amendment 12 is about the maximum fine for not complying with a request. For clarification, I point out that a level 3 fine is currently £1,000 and a level 1 fine £200. The Government are currently consulting on increasing those levels fourfold, and the Ministry of Justice has raised no objections to the proposal that level 3 be the appropriate fine for the offence set out in clause 8(5)(a). In fact, a level 3 fine is lower than the fine in some equivalent cases. For example, under section 16 of the Local Government (Miscellaneous Provisions) Act 1976, the maximum fine for the equivalent offence is level 5, which is £5,000. The promoters have sought the right level for an offence of this type. If skips are placed on the road in contravention of highways law, appropriate fines are needed for the local authority to remedy the situation. If the owner did not provide relevant details, the local authority would find it difficult to remove the skip, immobilise it or take appropriate penalty action against the supplier. People need to understand that if they deliberately flout the rules, they will get a severe fine.
Amendment 13 is about the offence of knowingly supplying false information in response to a legitimate request from a local authority for the name of the provider and owner of a skip. The Bill currently provides for a level 5 fine, which is £5,000. The amendment would lower the fine to £1,000. A draconian fine is required to prevent people from knowingly misleading the local authority, so that they cannot leave a dangerous skip on the road without the authority being able to identify who had done so.
Amendment 14 lowers the threshold at which a penalty charge notice could be served when a skip owner does not take reasonable steps to comply with the existing requirements. We need to make it clear that the Bill is a decriminalisation measure. At the moment, there are no “reasonable steps” elements in it. The amendment, therefore, would water down the requirements considerably. The general public—motorists, pedestrians and others—have a right to believe that if skips are placed on the public highway, they will be properly positioned, properly lit and will not be dangerous to motorists or pedestrians. The amendment would water down the proposals considerably and unfairly.
The point is that these are criminal offences at the moment. The proposals would put the power relating to the public highway in the hands of local authorities, so that they would take action to prevent people from allowing dangerous structures—skips, in this particular case. There was something similar many years ago with parking control, for example. Parking control used to be enforced by the police. It was then decriminalised and put in the hands of local authorities to enforce. A similar position is proposed in the Bill. Instead of the police having to take action, local authority personnel would take action. That does not make it any less of a requirement. It shifts the requirement from the police, who I think we would all say have a big job to do anyway and should not have to do such work; it should be the job of local authorities. That is the purpose of the Bill, and that is why I describe it as a decriminalisation measure. The police enforce the criminal law; local authorities have a duty to enforce the Highways Act 1980 and other appropriate rules.
A penalty charge notice would be issued initially. If that is paid, that is the end of the matter. If it is not paid, it is then presumably for the local authority—I would take advice on this—to take the matter to the county court or the magistrates court to push a position where liability orders would be obtained, and the enforcement action would follow in a similar vein to that of a parking offence on the public highway. Hopefully none of that would ever arise, because people would realise that if they failed to observe the rules they would face high penalties. We all want the streets to be safe. This is a set of proposals for when people deliberately flout the rules. We need draconian measures to ensure that that position is maintained.
My hon. Friend says that it is perfectly reasonable that somebody who owns a skip should be subject to massive penalty charges if in the course of the night the lighting is stolen or vandalised and ceases to operate through no fault of their own. Can that really be fair?
The current position is that were that to happen and lighting were removed, a criminal offence would have been committed. The police would step in and take appropriate action against either the owner of the skip or the owner of the property at which the skip was based. Clearly, we want skips that are placed on the public highway to be lit properly and placed in a sensible and not a dangerous position. I will come on to that point later. We can water down the criminal law and remove the ability of people simply to claim, “It’s nothing to do with me, guv. What can I do if someone removes the lighting?” That does not change the fact, however, that someone has driven their car into a badly lit skip, causing immense damage. At that point, it will be a matter of ensuring that the wrong is put right, and that, if it is not, a fine is issued. It is as simple as that.
Amendment 15 would require names, addresses and telephone numbers to be marked on skips. That would change the law in London, meaning that skip owners would face much more draconian measures in London than outside it. [Laughter.] My hon. Friends smile and laugh, but when someone acquires a skip in London, they do not necessarily acquire it from a site in London; they might acquire it from a skip owner outside London, who would then have to take it to London. If the amendment were passed, the owner would be burdened with having to mark the address and phone number in a way that did not apply in the rest of the country.
I know plenty of skip-owning firms that come from way outside London to provide skips, as well providing skips in their own areas. The amendment would provide for a regulatory burden in London that did not exist elsewhere, resulting in the potential problem of people inadvertently falling foul of the law. I agree that there might be an argument for amending national legislation in the way that my hon. Friend the Member for Christchurch suggested, but he is a promoter of deregulation, wherever possible, and I do not believe that we want to impose unnecessary regulation on businesses outside London. The amendment is therefore unnecessary and should not be pursued.
Amendment 16 deals with penalty charge notices. If we left out subsection (8), anyone served with a PCN could say, “It’s not me, guv. I’m not responsible.” As far as I am aware, whenever a PCN is issued for an offence on the highways, it is for the person served to substantiate whether someone else was responsible. If we left out the subsection, that person could say, “It’s nothing to do with me”, and then the authorities could not pursue those responsible. For that reason, we would resist the amendment.
Clearly, it would be incumbent on the person served with the PCN to substantiate that the contravention was down to someone else, in the same way as they would make representations against any other PCN. The local authority would then examine those grounds, and if they were relevant and someone else was responsible, the PCN would be withdrawn and issued to the relevant person. That is exactly how local authorities deal with highways offences.
Amendments 17, 18 and 19 deal with potential immobilisation. Clearly, local authorities in London want the power to immobilise a skip if they deem it appropriate, but of course if a skip is in a dangerous position on the highways, the last thing they are going to do is immobilise it; they will want it removed. If, however, it is in a reasonably safe position and a notice to change the lighting has been issued, the local authority could step in, light the skip and immobilise it using the devices on the market that allow that to be done, making it safe for pedestrians and other road users. At the same time, they could pursue the person who has contravened the rules. A local authority would do that only if it was appropriate to do so, which is quite right. Amendments 17, 18 and 19 deal with that issue.
One of the challenges is what is in the skip. Obviously local authorities need the discretion to remove anything that is inappropriate.
If I remember correctly, my hon. Friend the Member for Ealing North (Stephen Pound) pointed out on Second Reading that many people did not realise that skips could be immobilised, given their size and weight. However, the hon. Gentleman has just explained that such devices are available. When it is safe, their use may be appropriate to prevent people from flouting their responsibilities when they place skips on our roads.
I thank the hon. Gentleman for clarifying the issue.
In summary, let me say on behalf of the promoters that we accept amendment 11 and oppose the rest of the amendments in this group. Part 3 of the Bill deals with appropriate action to make London streets safer when people put skips on the public highway, by ensuring appropriate fines and enforcement action when people break or flout the rules. We will accept amendment 11, but I invite my hon. Friend the Member for Christchurch not to press the other amendments.
I seek to fulfil the same role in this debate as I did in the debate on the previous group of amendments, by speaking briefly and highlighting for my hon. Friend the Member for Christchurch (Mr Chope) where I think he is on to a winner and also where he has not necessarily persuaded me of the merits of his case.
I am rather puzzled by the whole debate on amendment 10. My hon. Friend made a good case for saying that we should ask people to supply information about the owner of a builder’s skip only
“where that information is not clearly and indelibly marked under the provisions of section 9,”
as his amendment sets out. If I understood my hon. Friend the Member for Harrow East (Bob Blackman) correctly—I am sure he will correct me if I am wrong, which I may well be—he was saying that because skips change ownership quite often, having just a name, telephone number, address or whatever it might be on the skip would not necessarily be a good enough indicator of the actual owner, because the skip might have changed hands a couple of times since those markings were applied. That might well be true, but the problem is that it flies in the face of clause 9, which states that the owner would have to ensure—I might add that anyone who did not do this would have to pay a fine—that
“the skip is clearly and indelibly marked with the owner’s name and with his telephone number or address”.
The promoters of the Bill cannot have it both ways. They cannot say that such information is required for the purposes of clause 9, but that it would be unfair to require it in clause 8. I would advise my hon. Friend the Member for Harrow East to have another think, because my hon. Friend the Member for Christchurch is simply proposing a modest, common-sense amendment that goes with the flow of the Bill, not against it.
I appreciate that point, but amendment 10, standing in the name of my hon. Friend the Member for Christchurch, simply says that if the information was already clearly marked, it would not have to be requested. To me that seems a sensible and modest amendment, and I certainly agree with it.
I am delighted that amendment 11 has been accepted—we do not need to waste any time on that. I do not intend to delay the House for long by discussing amendments 12 and 13. I do not have a strong opinion on the level of the fine, but I want to make a wider point on legislation generally. If we look at different pieces of legislation “in silo”, we might find individual fines appropriate or inappropriate, but we could end up in the ridiculous situation whereby some serious offences attract small penalties and some minor ones attract severe ones. Instead, we ought to look at the criminal justice system as a whole, to determine the appropriate level for different severities of crime. I wonder whether this particular offence could attract a much more severe penalty than other, more serious, crimes.
I want to concentrate on amendment 14, because I think my hon. Friend the Member for Christchurch is on to a winner there. He proposes that the owner of a skip should pay a penalty charge if they do not
“take any reasonable steps to”
secure that various precautions are taken, rather than simply if they do not secure that they are taken, as the Bill currently proposes. That is just common sense. The owner could have done everything possible to ensure that the skip was “properly lighted”, for example, but someone could come along in the middle of the night when they are fast asleep and vandalise the lighting. The local authority could then impose a fine, even though the skip had been perfectly well lit. I do not see how the owner could have been expected to do more. If amendment 14 is not accepted, however, that person could find themselves in the ludicrous situation of having to pay a penalty. That cannot be right. It flies in the face of common sense.
I appreciate that my hon. Friend the Member for Harrow East is a sensible, moderate chap, and he personally would apply all these rules with the proper discretion and common sense, but we cannot pass legislation that is reliant on people doing that. If we do so, we will end up with perversities in the law. We need to avoid that. It seems perfectly sensible to ask people to take “reasonable steps” to do things. That should be sufficient. We cannot ask them to do things that are, in essence, beyond their control. That is the problem with the Bill as it stands at the moment. I hope that my hon. Friend the Member for Christchurch will find a way to divide the House on amendment 14 if it is not accepted by the promoters, because it represents a common-sense approach.
I see amendment 16 as a natural consequence of amendment 14. As I understand it, if amendment 14 were accepted, the whole issue of clause 9(8) would become redundant. I therefore hope that, if amendment 14 were accepted, amendment 16 would be accepted as well. I hope that my hon. Friend the Member for Christchurch will concentrate his fire on amendment 14, because it is a sensible proposal that would improve the Bill.
My hon. Friend the Member for Harrow East suggested that amendment 14 would water down the Bill, but it would not. In clause 9(6), the promoters of the Bill are trying to deal with the issues that my hon. Friend the Member for Christchurch and I have raised. Paragraph (d) states that people may appeal against a penalty charge if, for example, the contravention
“was due to the act or default of another person and…he took all precautions and exercised all due diligence to avoid the contravention by himself of another person under his control.”
There, the promoters are trying to do exactly what my hon. Friend the Member for Christchurch is seeking to do in amendment 14. Having tried to deal with these anomalies, however, they muddy the waters with clause 9(8), which introduces yet another condition to make it difficult for the owner to achieve what is required. The amendment would not water down the Bill, as my hon. Friend the Member for Harrow East suggests; it would make clear the purpose of the legislation. In my opinion, it clarifies the Bill.
I would hope that the scenario I have given—of somebody who properly lights a skip, goes to bed with it properly lit and finds it vandalised in the middle of the night—would persuade my hon. Friend the Member for Harrow East that the person should not be prosecuted. I hope he would accept that; I am sure he does, because he is a reasonable man. The legislation as it stands would not necessarily prevent that person from being prosecuted; the only thing that would do so is amendment 14, tabled by my hon. Friend the Member for Christchurch. Because my hon. Friend the Member for Harrow East and I agree that such a person should not be prosecuted, I hope that he will follow through the logic of that position and accept amendment 14, which will deliver what both he and I think should be the case.
I am grateful to my hon. Friend for his support of my amendment. Does he accept that exactly what he is asking for is in a sense reflected in clause 9(3)(b)(iv), which provides that
“the skip is removed as soon as practicable after it has been filled”?
It does not say that it should be removed as soon as it has been filled, but as soon as is practicable. That has been accepted by the promoters, but not extended to other provisions.
My hon. Friend makes a very good point. His amendment goes with the flow of the legislation rather than against it, and I think this is a genuine improvement.
On amendment 15, I agree with my hon. Friend the Member for Harrow East. Making the provisions for London much more onerous than in other parts of the country would be unfair. The only thing I will say—and here I hope my hon. Friend will forgive me if I tease him somewhat—is that his point about not providing different rules for London than obtain in other parts of the country is the argument that we have been making in respect of virtually every other part of this particular Bill. He has refused to accept that particular logic with all the other provisions, so it seems to me ironic that he was prepared to pull that argument out of the hat when it suited him, when he has denied it in respect of lots of other amendments on this legislation. I hope he will forgive me for teasing him in that way.
On the final three amendments—amendments 17, 18 and 19—I thought my hon. Friend for Christchurch made a very good point in his usual engaging and amusing way in saying that if a skip is causing a particular problem in a local community, it is surely the wrong solution to immobilise it and keep it there unnecessarily for even longer. I am not entirely sure that my hon. Friend the Member for Harrow East answered that point to my satisfaction, because there is an unerring logic to what my hon. Friend the Member for Christchurch was saying. It may well be that there are occasions when immobilisation is the best solution, although my hon. Friend the Member for Christchurch and I cannot think of them. I am prepared on that basis to give my hon. Friend the Member for Harrow East a rather dubious benefit of the doubt.
I do not want to extend my remarks any further, but I reiterate my hope that if the opportunity allows it, my hon. Friend the Member for Christchurch will seek to press his amendment 14, which is the strongest of his amendments and the one that would improve this legislation without doubt.
If I may, I will start where my hon. Friend the Member for Shipley (Philip Davies) left off, and work in reverse order through this set of amendments, presented so ably a short while ago by my hon. Friend the Member for Christchurch (Mr Chope). I am grateful, as ever, for the clarification of what might be termed the case for the defence, so ably made by my hon. Friend the Member for Harrow East (Bob Blackman).
Starting with amendments 17, 18 and 19, I entirely agree that it is somewhat bizarre that the solution to a problem skip is to immobilise it, but I was persuaded by what my hon. Friend the Member for Harrow East had to say on the matter. To be perfectly honest, I have never seen one of these devices, and I can only imagine what they must look like. I understand that they both immobilise and light up the skip at the same time, which seems an eminently sensible idea for dealing with a problem skip. I have always thought that even empty skips are particularly difficult to move, so I would not think that they needed much help to be immobilised, although I am prepared to accept that that may well be a solution in some cases.
I turn to the other easy one—amendment 11, which has sensibly been accepted by my hon. Friend the Member for Harrow East and the promoters. That demonstrates the sense and worth of the work done by my hon. Friend the Member for Christchurch in going through the Bill in some detail and tabling the amendments. The promoters have accepted that the correct period is 14 rather than three working days.
I turn to the slightly more contentious amendments. I looked at amendment 10 and thought it was merely a clarification. There would be no point in criminalising someone or causing them to commit an offence if the information was patently obvious from looking at the side of the skip, in accordance with clause 9. Apparently, the promoters think otherwise. Personally, I would support amendment 10.
We now move neatly into the debate about decriminalisation. We are not really decriminalising these things, just moving the responsibility for taking action from one authority, the police, to another authority, the local authority. The net result is the same. Anyone reading language such as “commits an offence” would think, “Crikey! They mean a criminal offence.” Apparently, however, the measure represents decriminalisation. I humbly suggest that if clause 8 had read, “A person on whom a requirement is imposed under this section shall be liable to a civil penalty,” that would have been more appropriate if the intention was to decriminalise.
I entirely agree with what my hon. Friend the Member for Shipley said about amendment 14. It is entirely right that when it comes to the liability of someone who has committed a skip offence, to use some shorthand—[Interruption.] Not a skipping offence, but a builder’s skip offence. When it comes to such a person’s liability, the inclusion of the words
“take any reasonable steps to”
is entirely sensible. Although it might look as though one of those specific offences was being committed, there could be a whole host of reasons why a person ought not to be held liable.
The issue of criminalisation is important when considering the question of proof. If the offences are to remain criminal, the burden of proof is “beyond all reasonable doubt”. However, if they are to be dealt with according to a civil burden of proof, “the balance of probabilities” applies—it could be 51:49. There is a whole host of difference between liability in criminal and civil cases. The matter needs to be nailed down. We need to be absolutely clear about whether we are decriminalising this. Is it going to be a criminal offence, or is it going to be a civil offence and is it going to be dealt with under the civil law? That will affect the burden of proof required of those who seek to enforce these requirements.
Let me make it clear that I entirely agree that these are sensible laws to have. I remember a case from some years ago—the 1980s—when I was acting for someone who ran into a skip that was not lit. That does happen, and it is a serious matter. As my hon. Friend the Member for Christchurch said, some of these amendments seek to strengthen the Bill, as, indeed, does amendment 15. I, too, found it somewhat ironic to hear an argument that we have often deployed, which is that the law in London should not be different from the law in the rest of the United Kingdom.
On amendment 15, I think it is sensible to have something other than just a telephone number or the address, because there is a danger that many skip operators will opt to have an address that might be a PO box or the registered office of a limited company which turns out to be a huge office block in London with hundreds of other offices, and which is in fact the office of an accountant or a lawyer, and not the place of work of the skip owner. I therefore think amendment 15 is entirely sensible. Although I appreciate what my hon. Friend the Member for Harrow East said, it may well be an idea for a private Member’s Bill to at some point bring in on a national basis the requirement that all skips should bear the name, address and telephone number, so that if there is a problem, the person who is responsible for putting the skip there can easily be found.
On amendment 16 and the question of effectively making the accused, whether of a criminal offence or a civil liability, guilty unless they prove themselves innocent, I again entirely agree with my hon. Friend the Member for Shipley that if amendment 14 were accepted, to give them a “get out of jail free card”—if one can describe it as that—by saying that if they had taken reasonable steps, they would not be liable, would negate this rather draconian step of saying, “Look, once we’ve served you with this notice, it is your responsibility to come up with some other person who is more guilty than you are.” It seems a very strange way of setting up a legal system, and it seems to me to be entirely alien to all the principles of English law. I can well see that at some future point there may be many a legal case fought over clause 9(8), as people say, “How can it be fair that I have been picked on? I have got nothing to do with this, yet I have been victimised and made to pay this penalty.”
Does my hon. Friend agree that one of the big problems is that local authorities have already demonstrated through the use of decriminalised penalty notices that they can be over-zealous and keen to get the maximum amount of revenue irrespective of the justice of a situation, which is why we hear all these stories of traffic wardens hiding and then creeping up on unsuspecting motorists so that they can get extra penalty points imposed and extra fines for themselves and their local authority?
My hon. Friend makes a good point, as that is one reason why one is slightly sceptical about this sort of clause. Just this day I received a letter from a constituent raising exactly that point about the behaviour of traffic enforcement officers in Bury; it detailed how they have been served with a penalty notice in circumstances where it would have been easy to deal with the matter in another way if more common sense had been applied. That would have avoided having to give a local resident a penalty notice. Such examples make me want to agree with my hon. Friend’s proposition that people will be suspicious that this provision is there to make it easy for the local authority officer to find somebody. It does not matter who they find on this basis; they can give the notice to almost anybody and they will be able to say, “We have done what we can. It is now your problem. If you weren’t responsible, it is now your responsibility to find somebody who was.” I humbly submit that that is clearly not the right way for things to be done. It should be the responsibility of the responsible officer of the local authority to find out who is responsible, rather than expecting a person on whom a notice has been served to identify that other person for the purposes of determining who has committed the offence.
If I were to enter this little competition of saying which amendment I would press, I would opt for amendment 14, as it is entirely reasonable that where someone has taken reasonable steps to avoid committing an offence, they should not be held liable under this part of the Bill. With that, I will wait to hear what others have to say.
In summing up an excellent debate, may I thank my hon. Friend the Members for Bury North (Mr Nuttall), for Shipley (Philip Davies) and for Harrow East (Bob Blackman) for their contributions? If the Minister had contributed, the debate would have been even better, as indeed it would have been had the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) spoken—they demonstrated unusual self-restraint on these important issues, particularly on the issue of “national versus local”.
As my hon. Friend the Member for Shipley said, the promoters of the Bill are now saying that it would be unreasonable potentially to impose on operators from outside London a requirement to put their name, telephone number and address on a skip, given that the legislation that applies outside London requires only the telephone number or the address. Clearly, there is an inconsistency between the approach of the promoters to those of us who argue that we should have national legislation on these issues rather than localised legislation.
Exactly the same point applies in relation to gated roads, which is why it is a pity that we have not heard from the two Front-Bench spokespeople on where they think the balance should be between individual local authorities, or groups of local authorities, legislating in this area and a responsibility for the Government to try to introduce a national regime.
My hon. Friend the Member for Harrow East has gone through each of the amendments seriatim and tried—
I am delighted that the hon. Gentleman is joining in with the debate, albeit from a sedentary position, because he has been referred to already in dispatches, as he might know. We had been hoping to hear from him on immobilisation devices, but he has now put on record his enthusiasm for the word “seriatim”.
Let me take the amendments one by one for the benefit of the hon. Member for Ealing North (Stephen Pound). My hon. Friend the Member for Harrow East said that he did not think that amendment 10 would be appropriate because of the conflict between the national and local legislation. This is an opportunity for London to lead the field so that others can follow. It would be sensible, taking amendments 15 and 10 together, to require that in London skips should have the name, address and telephone number of the owner clearly and indelibly marked on them. I am disappointed that the promoters are not interested in accepting those amendments but I am delighted that amendment 11 is to be accepted.
On amendments 12 and 13, I am grateful to my hon. Friend for drawing to our attention that there is a proposal to increase fourfold the maximum fine levels on the standard scales. I think that would have quite a significant impact on the cost of living of the criminal classes. It would also put into a negative position all those provisions where the maximum fine is level 3—£1,000, which is reasonable—
Three hours having elapsed since the start of proceedings, the business was interrupted (Order, 3 July).
Bill to be further considered on Tuesday 16 July.