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National Assembly for Wales (Legislative Competence) (Transport) Order 2010

Volume 718: debated on Tuesday 30 March 2010

Motion to Approve

Moved By

To move that the draft order laid before the House on 4 March be approved.

Relevant Document: 12th Report from the Joint Committee on Statutory Instruments.

My Lords, the order was approved by the National Assembly on 2 March and in committee in the other place this morning. The LCO was announced by the then First Minister, Rhodri Morgan, last July as part of the Welsh Assembly Government’s third legislative programme. It does two things. First, it devolves legislative competence to the Assembly on concessionary travel. Secondly, it broadens the Assembly’s existing competence in relation to learner transport.

The concessionary travel scheme in Wales provides free travel on local bus services for the disabled, their companions and those aged over 60. A rail pilot scheme is also in operation on certain rail lines. The LCO inserts a matter into field 10—the highways and transport field—of Schedule 5 to the Government of Wales Act 2006, to allow the Assembly to legislate about concessionary travel on bus services in Wales and rail services provided under a franchise agreement to which the Welsh Ministers are a party. Those are currently services operated in Wales under the Arriva Trains Wales franchise. Under current arrangements, Welsh local authorities negotiate directly with bus operators the amount of reimbursement due as a result of the scheme. The amounts are then paid by the Welsh Assembly Government, who believe that that arrangement does not build in sufficient incentives to control costs.

Competence, which this order provides, would allow the Assembly to legislate to exercise more rigorous control over the scheme, thereby safeguarding its longer-term viability. It could, for example, allow the Assembly Government to administer the scheme directly; enable the Welsh Ministers to negotiate reimbursement directly with operators; or allow the amending of all or part of the legislative framework for the scheme as a whole, including the process for appeals.

Perhaps it would help if I clarified what was meant by “learner” transport. We mean students, chiefly those in school, but the concept relates to further education as well, so we are talking about support for those in education. The LCO would allow the Assembly to legislate in relation to the kinds of vehicles used by local authorities to provide learner transport and the safety and security features they should have. For example, local authorities could be required to use only vehicles that had certain characteristics, such as being single-deck vehicles fitted with seatbelts and closed circuit television.

There is cross-party support for this proposal in the Assembly following consultation on, and scrutiny of, the Learner Travel (Wales) Measure 2008. The proposal supports Welsh Ministers’ policy objective to reduce car use to and from school by improving the security, comfort, convenience and safety of school buses, and hence their attractiveness to learners. The Assembly already has competence over most aspects of learner travel, subject to a number of general or floating exceptions in Part 2 of Schedule 5. These include an exception relating to the regulation of the use and construction of motor vehicles on roads and the conditions under which they may be used, and an exception for transport security. Both those exceptions constrain the Assembly’s ability to legislate in respect of the equipment in vehicles used for learner transport and the security of those travelling in such vehicles.

The LCO removes some of the restrictions, but only in relation to vehicles used specifically for learner transport. In other words, some of the restrictions placed on the Assembly’s existing competence are eased by redefining the boundaries of the exception. It is important to be clear, however, that the LCO does not devolve competence in relation to the technical standards of vehicles. Those apply throughout Great Britain and will continue to be determined by the UK Government, often within the framework of European law.

Pre-legislative scrutiny of the LCO was carried out by the Constitution Committee of this House, the Welsh Affairs Committee in the other place and a committee of the Assembly. The Constitution Committee concluded that the LCO did not raise any issues of constitutional principle. As this is the last LCO from the Assembly Government’s current legislative programme to be subject to pre-legislative scrutiny, on behalf of the Government I thank the committee for the scrutiny that it has carried out in relation to this and the other LCOs considered recently. The committee has played an invaluable role in the process of devolving legislative competence to the Assembly. The Welsh Affairs Committee recommended that the Explanatory Memorandum be amended to specify how the use of the term “bus services” in the LCO related to its use in other transport legislation. Paragraph 7.10 of the memorandum has been amended to make it clear that the term is compatible with that used in the Transport Act 2000. It potentially encompasses all bus services in Wales and is widely drafted to enable the Assembly to differentiate between services, or to specify in legislation particular services such as community transport or long-distance coach services.

I hope that the House will agree that it is appropriate that these powers in respect of concessionary travel and learner transport are devolved to the National Assembly to allow the Assembly Government to implement their policies.

My Lords, that was another excellent explanatory speech from the noble Lord. I am glad that it is the last of these LCOs; they seem to have gone on and on, but we have had good times as well, and I am sure that it is all in a good cause.

This draft LCO makes provision to confer legislative competence on the Welsh Assembly in the field of transport by inserting matters relating to school transport and concessionary bus and rail travel. There has been considerable pressure in south Wales for improvements to safety standards in school buses since the unfortunate death over seven years ago of Stuart Cunningham-Jones in the Vale of Glamorgan. Safety standards on school buses should be the highest possible and, if legislation comes forward which achieves that, it will certainly be welcomed by all. Indeed, this cannot be said to be a Wales-only issue and it would be even more welcome if the Government had considered pursuing the issues addressed by this LCO on an England and Wales level. There will be some impact on the providers of school transport and, although no consultation has taken place before this LCO, extensive consultation will clearly have to take place with transport providers before any measure is produced pursuant to the competence transferred.

So far as the question of concessionary transport is concerned, the Explanatory Memorandum indicates that the competence is sought to enable the Assembly to legislate to exercise more rigorous control of the scheme—for example, by allowing the Assembly Government to negotiate directly for the reimbursement of operating costs with operators, and to administer the scheme directly rather than through local authorities. The memorandum points out that the current mechanism of reimbursing operators via local authorities fails to build in sufficient incentives to control costs, since local authorities are reimbursed by the Assembly Government for the full cost concerned. Clearly that must be a significant problem if the Assembly Government seek legislative competence to address it. Can the Minister give any indication as to the extent to which the Assembly Government consider that local authorities are not sufficiently controlling costs?

It is unfortunate that the Assembly Government seem to consider that the only solution to the problem is to centralise control over it. Paragraph 7.8 also points out that there is a potential conflict of interest in that, under the current range of executive powers, Welsh Ministers may negotiate reimbursement directly with local bus operators acting as the agents of local authorities, but are themselves the appeal authority in cases of dispute. What is envisaged to replace this procedure? Will there be, for example, a separate appeals panel, independent of Welsh Ministers?

The memorandum also indicates that the competence of the Assembly will be limited in relation to concessionary travel by restricting competence over rail travel to Welsh services provided under a franchise agreement to which the Welsh Ministers are a party—to all intents and purposes, Arriva Trains Wales.

Can the Minister indicate whether there is any possibility of extending the scheme to non-franchise companies in Wales—Virgin Trains, First Great Western and CrossCountry? If concessionary travel is confined to Arriva Trains, is there not a possibility that those services will be heavily overused?

Finally, perhaps I may gently complain that there are omissions in certain parts of the Explanatory Memorandum. Paragraphs 7.4 and 7.8 are incomplete. That is a little regrettable, given that those paragraphs are important.

I support the order and await the Minister’s response.

My Lords, from these Benches we welcome the order also. We welcome the increase in the power of the devolved Welsh Assembly. We perhaps regret that such a power was not there at the beginning, but at least we are slowly getting these new powers.

The two main items relate to concessionary travel and learner buses. I declare an interest as someone who benefits from concessionary travel, as perhaps most of us in the Chamber do. Concessionary travel has been a tremendous success. Wales led with concessionary travel for the elderly and then for the disabled. It has kept routes open that otherwise would have been closed. It has provided new opportunities for people who were perhaps confined to their localities and could not afford to travel. It has filled those empty buses. I know that in my own area of Llandudno we have a 10-minute service along the north Wales coast—something that we never had before. It would be catastrophic if, because of cuts in funding—whether savage or not—the amount available for the Welsh Assembly to maintain the concessionary travel system were to be reduced.

One thing that the Assembly will have to do in consultation with this Government in Westminster is to tackle the question of cross-border travel. You can travel to the Welsh border—it is no longer at Offa’s Dyke, but it might as well be—and thereafter you are on a different system in an English county. We have to think, “How on earth can we get a UK-wide concessionary scheme for those in Scotland, Wales and England who benefit only from their own national schemes?”. We must look at that in Cardiff and here also.

Many matters are still to be resolved regarding the learner transport problem. The noble Lord, Lord Glentoran, has already mentioned the safety of vehicles. One Scottish border company on 24 December last year had its licence to carry children to school withdrawn because of serious defects seen in vehicles used as school buses. Are we certain that the inspection of school buses is sufficiently thorough? It has only recently been suggested to me that sometimes a lorry, a bus or even a car is taken with fresh tyres to an inspection. When it has gone through, those tyres are replaced with the previous tyres that were slightly defective. Do we need more spot checks, not only in Wales but elsewhere on not only these but all buses?

I wrote to the Minister a few weeks ago asking for the figures on school buses which have been forced off the road because they were defective. The answer I received was that there is no special category for school buses—but there should be. School buses carry people who are totally vulnerable and not adults who can keep an eye on them. We need a special category for school buses.

In order to compete, certain companies might also be using buses that are not the most up to date but have seen the wear and tear of many years. Should double-decker buses be used for school transport? Should pupils be urged to sit three to a double seat? That happens. Why are safety belts compulsory only for those over 14 years of age and not for those who are three years and older, as the British Safety Council urges? Should there be not only the driver but someone else on a school bus, especially if the use of double-decker buses is to continue? When there is a distraction or something else that needs attending to, the driver will be distracted from his duties.

I support the order and apologise for any unforeseen noise that might have emanated from my mobile telephone.

My Lords, it may surprise you that an English Bishop from an English diocese rises to intervene in this debate. However, we represent in an indirect way our colleagues from the Welsh dioceses, and I know from prior consultation that they are grateful that these orders are before the House and wish them to be given a fair wind.

My second reason for intervening is a general principle. Devolution is a process, not a single act. We do not need to be too apologetic about any profusion of such LCOs—they are indicative of a process which continues in relation to how the Welsh Assembly Act evolves in practice. The process that we are undertaking today is welcome.

I am personally grateful for these orders because, thirdly, I declare an interest. I retire next year, and we have acquired a property in Haverfordwest in Pembrokeshire. Thereby I anticipate being a beneficiary—so the interest needs to be declared—particularly in relation to this order. Perhaps I may hark back to the previous debate. I anticipate also that I might want to get involved in some of those community activities that will now have a much more local accountability. For that I am grateful. It has often been said that Pembrokeshire is “Little England beyond Wales”. I am glad that as a result of these orders, it will be a little less England and a bit more Wales.

Before the Minister responds, perhaps I may point out to him the context in which this LCO is being made. Yesterday, the National Assembly for Wales produced its transport policy. One of its main aspects relates to climate change and sustainability. I should point out that sections in the document address, “Transport across Wales”, “The north-south corridor”—including air travel—and the east-west corridors. Wales has a very poor transport infrastructure; sometimes I refer to it as a third-world infrastructure. The document includes “Smarter Choices guidance” to,

“increase more healthy and sustainable travel”;

measures to:

“Strengthen the role of transport planning … Introduce Welsh Transport Entitlement Card for bus and rail services (by 2014)”;

and so on. This LCO is very important in that context.

With regard to climate change, I was approached by the former chief executive of the Environment Agency, the noble Baroness, Lady Young, who said that we should ban north/south air travel between Cardiff and Anglesey. I asked her whether she realised that 50 aircraft from Heathrow went over my house each day at 10,000 to 16,000 feet, crossed and dissected by aircraft from Leeds, Newcastle and Edinburgh going to the Mediterranean. I asked her whether, in this context, she thought that a single plane carrying 35 passengers from Cardiff to Anglesey would make much difference. Therefore, I am sure that the Minister would welcome this document because we have a long way to go on sustainable transport in Wales.

My Lords, I am grateful to all noble Lords who have participated in this brief debate. I begin with an apology on behalf of the Government. As the noble Lord, Lord Glentoran, accurately identified, we made an error in the Explanatory Memorandum. Due to a printing mistake, a sentence was accidentally omitted from the version of the memorandum first laid before Parliament. When officials became aware of this, the correct version was tabled, but I apologise that that sad event occurred.

The noble Lord, Lord Glentoran, began by saying that he was glad that this was the last of the Welsh LCOs in this Parliament. It certainly is, although, as the noble Lord would anticipate me saying, normal service will be resumed after the interruption of the general election. However, I think that he had his response from the right reverend Prelate, who said what is undoubtedly the case. Devolution was certainly sparked by that significant act of devolution, but it is a process and these LCOs represent the process. Therefore, I think that the noble Lord, Lord Glentoran, will have to contain his enthusiasm for when the next order is before us in what I am sure will be the not-too-distant future. He will appreciate that the Welsh Assembly and Welsh Ministers can readily identify areas in which enhanced competence will enable them to serve the people of Wales more effectively. Therefore, we expect that the process defined by the right reverend Prelate will assuredly continue.

The noble Lord, Lord Glentoran, raised several specific issues. It is true that there are anxieties about the concessionary scheme and its costs throughout the United Kingdom but the Assembly feels that the people of Wales will be better served if the Assembly Government can play their part in negotiations. It means that the Assembly will be able to amend the mechanism for reimbursing bus operators as policy developments. There are no issues with the administration of the scheme but there is always an issue relating to costs. The Assembly Government are seeking—and the noble Lord, Lord Roberts, enjoined them to do exactly this—to enhance the value of and protect the scheme because it is extremely valuable to the people of Wales. However, of course there are costs associated with it, and the Assembly Government are seeking to ensure that they are in a position to work with local authorities and bus operators to agree the reimbursement mechanism. That, I think, is a development which the noble Lord, Lord Glentoran, who is ever concerned about costs, should welcome.

We have no doubt that all aspects of the concessionary scheme raise challenging issues. The noble Lord, Lord Roberts, referred to the cross-border problem. When a concessionary scheme, rightly, is subject to individual decisions in Scotland, Wales and England, those countries will be bound to reach different decisions and there will always be the problem of the cross-border relationship. The answer given by the noble Lord, Lord Roberts, if I heard him correctly, was that there should be a UK scheme. However, there are also virtues in the more obvious country-by-country approach, because England, Scotland and Wales can have their own clear objectives.

This order is predominantly about buses. It relates to Wales in the restricted area that I identified but, with the exception of long-distance coach travel and rail, which I mentioned when introducing the order, it is predominantly about buses, which overwhelmingly are a local concept. Therefore, it is right, first, that local authorities should be concerned with concessionary travel and, secondly, that England, Wales and Scotland should, if they wish, have different schemes to meet the different priorities that they identify.

With regard to rail, the noble Lord, Lord Glentoran, asked why concessionary travel is limited only to Arriva. Welsh Ministers are able to grant concessionary travel only in relation to the franchise services to which they are directly a party, and of course the other rail services are not a direct party. Therefore, with this enhanced competence they are restricted to the one franchise to which they are directly a party. That is the nature of that problem.

I thank the noble Lord for giving way. For clarification, is that because the remaining railway companies are all cross-border and operate on a much larger scale? If so, is it not possible to put some sort of an organisation together ?

My Lords, the noble Lord is right but I emphasise that it is certainly an aspiration of both the Government and the Welsh Assembly Government to see a mutually recognised travel scheme—an issue that was raised by the noble Lord, Lord Roberts. Regular discussions take place between the Department for Transport and the devolved Administrations on this issue but it is pretty complicated, and of course rail is even more difficult because of the nature of the franchises. However, I am saying not that the Welsh Assembly Government are not fully cogniscent of the issues that both noble Lords have identified but that they are seeking competence in the area where they can play a more significant part, and I think that that should be welcomed.

The noble Lord, Lord Roberts, was very concerned about the safety of the buses provided for learners. I declare an interest in that I once enjoyed filling the role of president of RoSPA and am still a vice-president. Consequently, I always tackle safety issues with the greatest of interest and concern, and therefore inevitably I have a great deal of sympathy with the noble Lords, Lord Roberts and Lord Glentoran, when they raise these issues in the context of Wales. School buses are not a devolved matter. Questions of safety and the provision of safety, particularly seat belts—the noble Lord mentioned three children sitting on two seats, which does not sound particularly safe to me—all come within the remit of the UK Government. Vehicles are inspected by the Vehicle and Operator Services Agency and of course the MOT requirement applies across the whole country and is not at all a devolved matter. However, the noble Lord is right that we pay extra attention to the safety of school transport.

This LCO will enable the Assembly, if it wishes, to restrict the use of double-decker buses if it is decided that they involve safety factors because of the possible lower levels of supervision when two decks are involved. In addition, if the Assembly did decide that three children on two seats was dangerous enough to increase the number of accidents and injuries, the Assembly could take that power. We are giving the Assembly exactly the competence to address itself to the issue that the noble Lord has raised. With regard to seatbelts, that power already exists with regard to school buses and therefore there is no need for devolution in those terms. On the safety issues, I am with the noble Lords in expressing their concern and anxiety. This order gives the competence to the most appropriate authority for dealing with this in Wales; namely, the Welsh Assembly. Consequently we can anticipate that the kind of anxieties that noble Lords have expressed today about safety will be taken up by Members of the Assembly.

The noble Lord, Lord Glentoran, raised the issue of appeals. Currently the Welsh Ministers have power to regulate the process once an application has been made to them under Section 156(4)(c) of the Transport Act 2000. The basic mechanism that precedes a consideration of appeal is set out in the Transport Act 2000 and the Welsh Ministers have no competence to change these. In view of what the noble Lord has said about the question of appeals, it may be that that could be the burden of an early LCO to address itself to this competence as well. At the present time they do not have that competence in view of our national legislation with regard to appeals.

I am grateful to the noble Lord, Lord Livsey, for his contribution to the debate. Air transport did not figure too extensively in my brief but I hear exactly what he says. At times one can feel that Wales is such a small part of the total transport system of the UK that anything that is regulated on a United Kingdom basis—I am pretty sure he understands why air traffic control is—can raise particular difficulties for local services in Wales. He mentioned the Cardiff to Anglesey air route. The Government have no proposals—nor has the National Assembly for Wales put forward any proposals—for the division of air traffic control. The noble Lord will have to see that as a UK-wide issue. As he probably knows, it is a bit wider than just the UK when it comes to the very complex issues of air traffic control. I beg to move.

Motion agreed.