Committee (4th Day)
Relevant documents: 4th Report from the Constitution Committee, 14th Report (Session 2013–14) from the Joint Committee on Human Rights and 5th and 9th Reports from the Delegated Powers Committee.
Clause 35 agreed.
43: After Clause 35, insert the following new Clause—
“Road traffic legislation: use of vehicles in emergency response by NHS
(1) Section 87 of the Road Traffic Regulation Act 1984 (exemptions from speed limits), as substituted by section 19 of the Road Safety Act 2006, is amended in accordance with subsections (2) to (4).
(2) In subsection (1)—
(a) omit “, for ambulance purposes”;(b) after paragraph (a) insert—“(aa) it is being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service”.(3) After subsection (1) insert—
“(1A) In subsection (1)(aa), “an NHS ambulance service” means—
(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services;(b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board.”(4) In subsection (1)(c), after “paragraph (a)” insert “, (aa)”.
(5) If this section comes into force before section 19 of the Road Safety Act 2006, section 87 of the Road Traffic Regulation Act 1984 (as it has effect until section 19 comes into force) is amended as follows.
(6) After subsection (1) insert—
“(1A) Subsection (1) above applies in relation to a vehicle that, although not being used for ambulance purposes, is being used for the purpose of providing a response to an emergency at the request of an NHS ambulance service.
(1B) In subsection (1A), “an NHS ambulance service” means—
(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services; (b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board.”(7) Schedule (Road traffic legislation: use of vehicles in emergency response by NHS) makes further amendments to road traffic legislation in connection with the use of vehicles in the provision of an emergency response by the NHS.”
In moving Amendment 43, I shall speak also to Amendments 44, 45, 46 and 102. The amendments make some small changes to the wording of various pieces of road traffic legislation. The aim is to enable and empower NHS ambulance services to respond to medical services and emergencies quickly and effectively. As far back as 1967, there have been statutory provisions which exempt vehicles from various rules contained in road traffic legislation when they are being used by the emergency services for fire, police and ambulance purposes. These provisions apply so that our vital services can reach an emergency in time whenever there is one. Therefore, the exemptions include matters that a member of the public could reasonably expect to be included, such as exemptions from rules relating to speed limits, traffic lights, road signs and the fitting and use of sirens and flashing lights.
The problem that we are faced with is that modern practice and technology has outgrown the current law which mainly uses the term “ambulance”. NHS ambulance services now use what are known as fast response units, including cars and motorbikes, to help provide quick response to the most critically ill patients where time is of the essence. They are also using larger vehicles to transport equipment to major incidents to ensure that clinicians are properly equipped.
These types of responses provide a vital part of NHS emergency healthcare. The definition of “ambulance” and “ambulance purposes” in a recent case concerning the use of blue lights and sirens was limited to those vehicles whose primary use is to convey the sick and disabled and did not include other vehicles such as motorbikes used by paramedics. These amendments provide certainty to NHS fast response teams that they can rely on exemptions from road traffic legislation to facilitate their speedy arrival in a crisis situation. They extend the stated exemptions to cover vehicles used,
“for the purpose of providing a response to an emergency at the request of an NHS ambulance service”.
This will then cover all fast response units dispatched by the NHS ambulance services. We will have removed an unnecessary, unfair and dangerous legal block in the work of surely one of our most crucial services.
Amendments 44 and 45 to Schedule 8 are simply consequential. Since the introduction of the Deregulation Bill, some of the legislation amended by Schedule 8 has been modified by subordinate legislation made earlier this year, namely the Combined Authorities (Consequential Amendments) Order 2014 and the West Yorkshire Combined Authority Order 2014. I beg to move.
Amendment 43 agreed.
Amendments 44 and 45
44: Schedule 8, page 129, line 15, after first “area” insert “, a combined authority area”
45: Schedule 8, page 131, line 16, at end insert—
“8A (1) The Transport Act 1968 is amended as follows.
(2) In section 9(1)(c)—
(a) in sub-paragraph (i), for “sub-paragraph (ia)” substitute “sub-paragraphs (ia) to (ie)”;(b) after sub-paragraph (ia) insert—“(ib) in relation to the area of the Greater Manchester Combined Authority, the Greater Manchester Passenger Transport Executive;(ic) in relation to the area of the Greater Merseyside Combined Authority, the Merseyside Passenger Transport Executive;(id) in relation to the area of the Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, the South Yorkshire Passenger Transport Executive;(ie) in relation to the area of the Durham, Gateshead, Newcastle upon Tyne, North Tyneside, Northumberland, South Tyneside and Sunderland Combined Authority, the Tyne and Wear Passenger Transport Executive;”.(3) In section 16(2A)—
(a) for “subsection (2)” substitute “subsection (1)”;(b) omit the “and” at the end of paragraph (b);(c) after paragraph (c) insert “; and(d) the words from “including in particular” to the end of the subsection were omitted.”(4) In Schedule 5—
(a) in Part 2, in paragraph 2, after “as the case may be,”, in both places where it occurs, insert “the combined authority area or”;(b) in Part 3, in paragraph 11(a), after “integrated transport area” insert “, a combined authority area”.”
Amendments 44 and 45 agreed.
Schedule 8, as amended, agreed.
46: After Schedule 8, insert the following new Schedule—
“Road traffic legislation: use of vehicles in emergency response by NHS Traffic Management Act 20041 The Traffic Management Act 2004 is amended as follows.
2 In section 85 (prohibition of double parking etc), in subsection (3), for “for fire brigade, ambulance or police purposes” substitute “—
(a) for fire brigade or police purposes, or(b) for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service.“An NHS ambulance service” means—(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services;(b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board.” 3 In section 86 (prohibition of parking at dropped footways etc), in subsection (4), for “for fire brigade, ambulance or police purposes” substitute “—
(a) for fire brigade or police purposes, or(b) for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service. “An NHS ambulance service” means—(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services;(b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board.”Road Vehicles (Construction and Use) Regulations 1986 (S.I. 1986 /1078)4 The Road Vehicles (Construction and Use) Regulations 1986 are amended as follows.
5 In regulation 3(2) (interpretation), in the Table at the appropriate place insert—
“an NHS ambulance service (a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services; (b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services; (c) the Scottish Ambulance Service Board.”
“an NHS ambulance service
(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services; (b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services; (c) the Scottish Ambulance Service Board.”
(2) In paragraph (5)(a), omit “, ambulance”.
(3) After paragraph (5)(a) insert—
“(aza) used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.7 (1) Regulation 82 (restriction on width of loads) is amended as follows.
(2) In paragraph (10)(a), omit “, ambulance”.
(3) After paragraph (10)(a) (but before the “or”) insert—
“(aa) for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.8 (1) Regulation 101 (parking in darkness) is amended as follows.
(2) In paragraph (2)(a), omit “ambulance”.
(3) After paragraph (2)(a) insert—
“(aa) being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service if compliance with those provisions would hinder or be likely to hinder the use of the vehicle for the purpose for which it is being used on that occasion;”.9 (1) Regulation 107 (leaving motor vehicles unattended) is amended as follows.
(2) In paragraph (2)(a), omit “ambulance,”.
(3) After paragraph (2)(a) (but before the “or”) insert—
“(aa) being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.Road Vehicles Lighting Regulations 1989 (S.I. 1989/1796)10 The Road Vehicles Lighting Regulations 1989 are amended as follows.
11 (1) The Table in regulation 3(2) (which sets out the meaning of expressions used in the regulations) is amended as follows.
(2) In column 2, in paragraph (a) of the definition of “emergency vehicle”, omit “, ambulance”.
(3) In that definition, after paragraph (a) insert—
“(aza) a vehicle used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.
“(aza) a vehicle used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.
“An NHS ambulance service (a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services; (b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services; (c) the Scottish Ambulance Service Board.”
“An NHS ambulance service
(2) Omit paragraph (2)(y)(iii).
(3) After paragraph (2)(y) insert—
“(z) reflected light from yellow or orange retro reflective material fitted to the rear of a vehicle—(i) used for ambulance purposes, or(ii) used for the purpose of providing a response to an emergency at the request of an NHS ambulance service.”13 In Part 2 of Schedule 17 (requirements relating to optional side retro reflectors), in the first column of the Table, below “Ambulance” (but in the same row) insert “The provision of a response to an emergency at the request of an NHS ambulance service but only in respect of a vehicle which is owned by the service or held by it under a lease or hire agreement”.
14 (1) Part 2 of Schedule 18 (requirements relating to optional rear retro reflectors) is amended as follows.
(2) The first sentence becomes paragraph 1.
(3) At the end of that paragraph insert “, subject to paragraphs 2 and 3.”
(4) The second sentence becomes paragraph 2.
(5) In that paragraph—
(a) omit “But”;(b) omit paragraph (c).(6) After paragraph 2 insert—
“3 The colour of rear retro reflectors fitted to—
(a) a vehicle used for ambulance purposes, or(b) a vehicle used for the purpose of providing a response to an emergency at the request of an NHS ambulance service,may be red, yellow or orange (or any combination), provided that, in the case mentioned in paragraph (b), the vehicle is owned by the NHS ambulance service or held by it under a lease or hire agreement.”Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (S.I. 1997/2400)15 The Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 are amended as follows.
16 In regulation 3(1) (interpretation), at the appropriate place insert—
““an NHS ambulance service” means—(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services;(b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board;”.17 (1) Regulation 12 (significance of vehicular light signals at Pelican crossings) is amended as follows.
(2) In paragraph (1)(e), omit “, ambulance, national blood service”.
(3) After paragraph (1)(e) insert—
“(eza) when a vehicle is being used for ambulance or national blood service purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service and the observance of the prohibition conveyed by the steady amber or the red signal in accordance with sub-paragraph (c) or (d) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then those sub-paragraphs shall not apply to the vehicle, and the steady amber and the red signal shall each convey the information that the vehicle may proceed beyond the stop line if the driver—(i) accords precedence to any pedestrian who is on that part of the carriageway which lies within the limits of the crossing or on a central reservation which lies between two crossings which do not form part of a system of staggered crossings; and(ii) does not proceed in a manner or at a time likely to endanger any person or any vehicle approaching or waiting at the crossing, or to cause the driver of any such vehicle to change its speed or course in order to avoid an accident;”.18 (1) Regulation 13 (significance of vehicular light signals at Puffin crossings) is amended as follows.
(2) In paragraph (1)(f), omit “, ambulance, national blood service”.
(3) After paragraph (1)(f) insert—
“(fa) when a vehicle is being used for ambulance or national blood service purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service and the observance of the prohibition conveyed by the amber, red or red-with-amber signal in accordance with sub-paragraph (c), (d) or (e) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then those sub-paragraphs shall not apply to the vehicle, and the red signal, red-with-amber and amber signals shall each convey the information that the vehicle may proceed beyond the stop line if the driver—(i) accords precedence to any pedestrian who is on that part of the carriageway which lies within the limits of the crossing or on a central reservation which lies between two crossings which do not form part of a system of staggered crossings; and(ii) does not proceed in a manner or at a time likely to endanger any person or any vehicle approaching or waiting at the crossing, or to cause the driver of any such vehicle to change its speed or course in order to avoid an accident;”.19 (1) Regulation 21 (stopping in controlled areas) is amended as follows.
(2) In paragraph (c), omit “, ambulance”.
(3) After paragraph (c) insert—
“(ca) when the vehicle is being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service; or”. Traffic Signs Regulations and General Directions 2002 (S.I. 2002/3113)20 The Traffic Signs Regulations and General Directions 2002 are amended as follows.
21 In regulation 4 (interpretation), at the appropriate place insert—
““an NHS ambulance service” means—(a) an NHS trust or NHS foundation trust established under the National Health Service Act 2006 which has a function of providing ambulance services; (b) an NHS trust established under the National Health Service (Wales) Act 2006 which has a function of providing ambulance services;(c) the Scottish Ambulance Service Board.”22 (1) Regulation 15 (keep right and kept left signs) is amended as follows.
(2) In paragraph (2)—
(a) omit “ambulance,”;(b) omit “, national blood service”.(3) After paragraph (2) insert—
“(2ZA) On an occasion where a vehicle is being used for ambulance or national blood service purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service and the observance of the requirement specified in paragraph (1) would be likely to hinder the use of that vehicle for one of those purposes then, instead of that requirement, the requirement conveyed by the sign in question shall be that the vehicle shall not proceed beyond that sign in such a manner or at such a time as to be likely to endanger any person.”
23 (1) Regulation 26 (double white lines) is amended as follows.
(2) In paragraph (5)(b), omit “ambulance,”.
(3) After paragraph (5)(b) insert—
“(bza) to a vehicle for the time being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.24 (1) Regulation 27 (zig zag lines) is amended as follows.
(2) In paragraph (3)(c), omit “ambulance,”.
(3) After paragraph (3)(c) insert—
“(ca) when the vehicle is being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”.25 (1) Regulation 36 (light signals) is amended as follows.
(2) In paragraph (1)(b)—
(a) omit “ambulance,”;(b) omit “, national blood service”.(3) After paragraph (1)(b) insert—
“(bza) when a vehicle is being used for ambulance or national blood service purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service and the observance of the prohibition conveyed by the red signal in accordance with sub-paragraph (a) would be likely to hinder the use of that vehicle for the purpose for which it is being used, then sub-paragraph (a) shall not apply to the vehicle, and the red signal shall convey the prohibition that that vehicle shall not proceed beyond the stop line in a manner or at a time likely to endanger any person or to cause the driver of any vehicle proceeding in accordance with the indications of light signals operating in association with the signals displaying the red signal to change its speed or course in order to avoid an accident;”.26 (1) Schedule 19 (bus stop and bus stand clearways and box junctions) is amended as follows.
(2) In paragraph 4 (bus stop and bus stand clearways)—
(a) in paragraph (a), omit “ambulance,”;(b) after paragraph (a) insert—“(aza) a vehicle being used for ambulance purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service;”. (3) In paragraph 9 (box junctions)—
(a) omit “ambulance,”;(b) omit “, national blood service”. (4) After paragraph 9 insert—
“10 When a vehicle is being used for ambulance or national blood service purposes or for the purpose of providing a response to an emergency at the request of an NHS ambulance service and the observance of the prohibition in paragraph 7(1) or 8 would be likely to hinder the use of that vehicle for the purpose for which it is being used, then that prohibition shall not apply to the driver of the vehicle.”
I have a question about this new schedule. As noble Lords, including Ministers, will recognise, it is a fairly lengthy addition to the Bill. I can see entirely the argument for the exemption of emergency vehicles carrying out an essential role, and why they need to be absolved from certain legal constraints in order to carry out their duties. However, I have the anxiety that the Government have provided for all bodies related to the National Health Service and vehicles driven on their behalf, in Wales and Scotland and so on—but what about other vehicles which are driven in emergency circumstances? If, for example, an accident occurs at a football ground and a St John Ambulance immediately springs into action, because one is always present, I have no doubt at all that it would seek the help of the nearest hospital. It could well have a vehicle and be able to expedite the matter more effectively. Would the driver be breaking the law if he or she exceeded the limits in seeking to get a trauma patient to hospital as rapidly as possible in a clear emergency, similar to those to which public vehicles respond?
My Lords, the amendments are designed to ensure that the definitions of “ambulance” and the way in which ambulances are used include the new vehicles that might well be used. I think that I will need to write to the noble Lord to make sure that all his points—I will look in Hansard at what he has said—are covered precisely.
I may have some assistance coming my way. These amendments relate, as at the top of Amendment 46, to emergency response by the NHS. They are to ensure that—because of case law, where there has been a particular problem with paramedic motorbikes—this is about an emergency response by the NHS. The noble Lord raises an interesting point, particularly about people going to emergencies. However, this legislation is to ensure that those who come out in response from the NHS are properly protected.
I notice, reading the amendment rather more carefully thanks to the questions of the noble Lord, Lord Davies, that paragraph 8(3) of the proposed new schedule talks about,
“a response to an emergency at the request of an NHS ambulance service”.
In theory, going along the lines of the noble Lord, Lord Davies, anybody who happened to be around with a suitable vehicle could surely be requested by the NHS ambulance service to get on with it and remove the potential patient from the football ground. The noble Lord has a point, but I think that it is covered by this amendment.
My Lords, I understand that in practice this relates to a call which would be from an NHS ambulance only. My officials have speedily passed me a note on this. One may ask why these amendments do not cover, for instance, all private organisations responding to emergencies. Our priority in this legislation is to allow NHS ambulance services to provide emergency responses. Those private organisations which have arrangements with NHS ambulance services to be dispatched by them to emergencies will be covered. Bringing other types of vehicle purposes within speed exemptions is part of a wider piece of work being carried out by the Department for Transport in relation to its commencement of Section 19 of the Road Safety Act 2006. I am most grateful to the noble Lord and my noble friend for their comments which have given me the opportunity to provide clarity—I hope—on the matter.
The noble Lord has certainly clarified the matter. I only hope that if vehicles are brought into use in this way they will act with due promptness, as did the Minister’s officials in providing an answer to a rather tricky question. I apologise for not giving notice of it. However, we wanted to clarify that regular support services which are not National Health services—St John’s Ambulance is the obvious one that springs to mind—would without doubt be covered by the legislation as the Minister described it.
Amendment 46 agreed.
Clause 36 agreed.
Schedule 9: Regulation of the use of roads and railways
47: Schedule 9, page 132, leave out lines 14 and 15 and insert—
“(1) A permit scheme may be prepared by—
(a) a strategic highways company,(b) a local highway authority in England, or(c) such a company or authority acting together with one or more other such companies or authorities.”
My Lords, in moving Amendment 47, I wish to speak to the other government amendments in this group. Part 2 of Schedule 9 removes the current requirement for the Secretary of State to approve local highway authority permit schemes. A permit scheme allows for better control of works in the street that can cause traffic disruption. That includes works in roads and pavements by utilities and authorities’ own works. The changes would remove only the requirement for the Secretary of State to approve schemes, enabling highway authorities to bring into operation their own schemes to their own timetable by council order.
Government Amendments 47 to 58 to this part are technical in nature and deal with the relationship between the Infrastructure Bill and this Bill. The Infrastructure Bill will create a new strategic highways company and will allow the new arrangements for permit schemes to apply to the strategic highways company as well as local highway authorities. In relation to Part 3 on road humps, this measure essentially removes the Secretary of State’s powers to place road humps on roads he does not control, mainly local authority roads. In practice, this has not been done for some time so this is a tidying-up measure. The powers of Welsh Ministers under this section are retained. However, there are two roads in Wales for which the Secretary of State remains the highway authority, and that is the two Severn crossings. The purpose of Amendments 59 to 61 is to ensure that the changes proposed to Section 90B of the Highways Act 1980 by Schedule 9, Part 3, do not apply to these two roads. I beg to move.
My Lords, this is a long schedule. The Minister will be relieved to hear that we are in broad agreement with it. However, we have some difficulties because some real consequences need to be considered. Our Amendments 61A and 61B would improve the schedule by introducing further transparency into the process of issuing exemption orders. I am concerned about the extent of the Government’s powers to introduce accessibility standards for rail vehicles, established by the Disability Discrimination Act 1995. We, in fact, introduced the first set of rail vehicle accessibility regulations in 1998. In 2005, I and one or two other noble Lords who are present in the Room, contributed to updating that Act by making it unlawful to discriminate against disabled people using public transport or transport facilities. We introduced minimum accessibility standards for all new carriages and light rail, and placed a requirement on rail operators to develop a disabled persons protection policy.
We are obviously proud of our record in government, and are concerned that it should be continued in the amendments to the legislation that this Bill represents. All new stock must be compliant with the regulations, and all vehicles that fall under their scope will have to be compliant by 2020. However, we recognise that some heritage systems use vehicles that can never be compliant in these terms, and they deserve exemption. The Government’s proposals would remove the requirement for exemption orders to be made by statutory instrument, thereby reducing the time it takes to issue an exemption.
We appreciate the principle of reducing the time it takes to issue such an exemption, but we are concerned that the Secretary of State’s power to limit exemptions could be undermined. Our amendments seek to ensure that the Secretary of State retains full freedom to impose conditions on exemption orders, such as on length, rather than just issue blanket exemptions. The Department for Work and Pensions figures show that more than one in five people with a disability has experienced difficulty using transport and, on several occasions at Question Time, disabled Peers have indicated that they still face some transport difficulties, not least when the trains are longer than the platforms at some halts, and the train does not stop where the ramp is provided. In any case, fewer than one-fifth of rail stations have full step-free access via lifts or ramps.
The House of Commons Transport Committee suggested last year that the department involved disability organisations and charities in prioritising stations for improvements in a future “access for all” programme. Ministers dismissed the views of disabled people by saying that that those organisations’ involvement would add little value.
In the context of our amendment, as we live longer, increasing numbers of us will be living with some kind of disability. It is therefore essential to adapt the public transport system and ensure that it fits the needs of disabled people. Amendment 61B requires the Secretary of State to,
“produce a report detailing the nature”,
of any exemptions issued,
“including the conditions or restrictions made as part of that order”,
and to publicise it.
Currently there are no requirements to publish any details when exemptions are issued; only the statutory instrument itself is published. How will this shift from a statutory instrument to an administrative regime make the documents more accessible and the process more open for a wider range of UK citizens? I do not say that they will not be—I am not accusing the Government of causing a deterioration in the position—but I seek some reassurance from the Minister that this has been fully considered in this fairly lengthy amendment to the schedule.
My Lords, first, I thank the noble Lord for his broad agreement on Part 7. I agree that we are dealing with some lengthy paperwork. We have made much progress in making rail vehicles more accessible to disabled people since accessibility standards were introduced in 1998—and rightly so. More than 8,100 rail vehicles now meet modern accessibility requirements, and the law requires all rail vehicles to be accessible by 2020. However, it is occasionally not appropriate, or proportionate, for those access standards to apply fully, so the Secretary of State retains the right to exempt specified vehicles from all, or parts, of them.
Originally, all such exemptions were made by statutory instrument. However, in 2008, the domestic rail vehicle accessibility regime covering mainline trains was replaced by an EU regime, whereby exemptions are issued administratively. As a result of implementation of the EU regime for mainline trains, the number of vehicles which remained within the scope of the domestic regime was reduced to just over one-quarter of those originally covered. These are the vehicles which are still subject to the use of statutory instruments for exemptions. Such vehicles include trams, underground, metro, airport people movers and even brand new vehicles for use on heritage railways. That brings the domestic regime more in line with the European regime, which the majority of vehicles are subject to, and is more proportionate than the current situation whereby, if sought, exemptions for the hundreds of trains serving Gatwick, Stansted and Birmingham airport stations would be subject to an administrative process, while any for the 17 small vehicles shuttling passengers between terminals would remain subject to a process involving statutory instruments.
I highlight to the Committee the fact that the vast majority of responses from stakeholders to the Government’s public consultation were in favour of these proposals. In particular, the Disabled Persons Transport Advisory Committee, the Government’s statutory adviser on the transport needs of disabled people, was involved as the proposals were developed and is strongly in favour of these changes. In this respect I am also pleased to note that the Delegated Powers and Regulatory Reform Committee is now of the view that these proposals have merits and finds the arguments for consistency with the European regime compelling.
The practical effect of this measure will be to shorten the period between when an application is made and the outcome is given, so reducing uncertainty for the rail industry. It will also reduce the resources required within government to handle each application. I emphasise that it will not reduce in any way the strength of argument that any applicant will need to make to justify an exemption; no exemptions will be granted in future that would not have been granted under the existing arrangements. I also assure the Committee that we will continue to consult the Disabled Persons Transport Advisory Committee, and others as necessary, on the merits of each application. The final decision on whether to grant an exemption will remain with Ministers, and the Government will continue to report annually to Parliament on the use of the exemption powers over the last year. This will allow Parliament to call Ministers to account if they feel that the powers have been used excessively or inappropriately.
Given the overwhelming support from stakeholders that this proposal received, we believe that this reform makes sense. Proceeding with this proposal will mean that applicants for exemption receive a decision sooner, so reducing uncertainty for them, and will reduce administrative burdens on government, but without lessening protection for disabled passengers, or reducing transparency on the use of exemption powers. That is why we have concerns about the noble Lord’s first amendment.
Turning to the noble Lord’s second amendment, the Government recognise that members of the public and Parliament will wish to know that the Secretary of State has used his powers to grant exemptions from the rail vehicle accessibility regulations. That is important. However, this amendment is unnecessary as transparency is already provided through two new routes, both of which will continue. First, the Equality Act 2010 already requires the Secretary of State to make an annual report to Parliament on the use of exemption powers. The Secretary of State will continue to report annually to Parliament on those exemption powers. This will enable Parliament to call Ministers to account. Furthermore, the department already publishes on its website details of applications received for exemptions, the outcome of consultation on the merits of each application and the outcome, including the exemption order itself, if granted.
I assure the Committee that the Government’s intention is that openness must continue. Although I understand the position that the noble Lord has taken, it is for those reasons that we feel his amendments are not necessary.
My Lords, before the noble Lord, Lord Davies, decides what to do with this amendment—indeed he does not have much option in Grand Committee—would my noble friend go back to the draftsmen about the proposed new subsection (7) inserted into the Equality Bill by Schedule 9? The Bill provides that,
“such an order is as capable of being amended or revoked as an order made by statutory instrument”.
From my experience on the Joint Committee on Statutory Instruments, I know that a statutory instrument can amend or revoke another one and regularly does, but the way this clause is worded suggests that the statutory instrument itself can be amended. To my mind, only a super-affirmative procedure can be amended in that way. I do not expect my noble friend to answer this now, but if he could get this looked that, I would be extremely grateful.
As ever, the noble Lord, Lord Skelmersdale, is to be congratulated on his eagle eye. We shall see that the Minister gives a satisfactory reply. I listened carefully to the Minister and was grateful for his remarks, which were reassuring. The Delegated Powers and Regulatory Reform Committee’s acceptance of the position was enough for me, so I assure the Committee that when the time comes I will not move my amendment.
Amendment 47 agreed.
Amendments 48 to 61
48: Schedule 9, page 132, leave out lines 20 to 23 and insert—
“(2) The Secretary of State may direct—
(a) a strategic highways company,(b) a local highway authority in England, or(c) such a company or authority acting together with one or more other such companies or authorities,to prepare and give effect to a permit scheme which takes such form as the Secretary of State may direct.”
49: Schedule 9, page 132, leave out lines 29 to 32 and insert—
“33A Implementation of permit schemes of strategic highway companies and local highway authorities in England
(1) This section applies to a permit scheme prepared in accordance with section 33(1) or (2) by—
(a) a strategic highways company,(b) a local highway authority in England, or(c) such a company or authority acting together with one or more other such companies or authorities.”
50: Schedule 9, page 132, line 35, after “authority” insert “or a strategic highways company”
51: Schedule 9, page 133, line 28, at end insert—
“(3A) A strategic highways company may by order vary or revoke a permit scheme to the extent that it has effect, by virtue of an order made by the company under section 33A(2), in the area in respect of which the company is appointed.
(3B) The Secretary of State may direct a strategic highways company to vary or revoke a permit scheme by an order under subsection (3A).
(3C) An order made by a strategic highways company under subsection (3A) may vary or revoke an order made by the company under section 33A(2), or an order previously made by the company under subsection (3A).”
52: Schedule 9, page 134, line 8, at end insert “or strategic highways companies”
53: Schedule 9, page 134, line 24, at end insert—
“(b) at the appropriate place insert—““strategic highways company” means a company for the time being appointed under Part 1 of the Infrastructure Act 2014;”.”
54: Schedule 9, page 134, line 32, after “England” insert “or a strategic highways company”
55: Schedule 9, page 134, line 36, after “authority” insert “or a strategic highways company”
56: Schedule 9, page 134, line 37, at end insert—
“11A In consequence of the amendments made by paragraph 5, in the Infrastructure Act 2014, in Schedule 1, omit paragraph 144.”
57: Schedule 9, page 135, line 11, at end insert—
“( ) After subsection (1) insert—
“(1A) Subsection (1) does not apply in relation to the following parts of Wales—
(a) the part of road to which section 329(5) applies;(b) the part of the M4 Motorway in Wales that comprises “the new toll plaza area” and “the new bridge”, as defined in section 39(1) of the Severn Bridges Act 1992.””
58: Schedule 9, page 135, line 26, leave out “he or they” and insert “he, it or they”
59: Schedule 9, page 136, line 36, after “England” insert “and in relation to the following parts of Wales—
(a) (a) the part of road to which section 329(5) applies;(b) the part of the M4 Motorway in Wales that comprises “the new toll plaza area” and “the new bridge”, as defined in section 39(1) of the Severn Bridges Act 1992”
60: Schedule 9, page 136, line 37, after “Wales” insert “other than the parts mentioned in paragraph (a)(i) and (ii)”
61: Schedule 9, page 137, line 13, at end insert—
“20A In consequence of the amendments made by paragraph 15, in the Infrastructure Act 2014, in Schedule 1, omit paragraph 26.”
Amendments 48 to 61 agreed.
Amendments 61A and 61B not moved.
Schedule 9, as amended, agreed.
Clause 37 agreed.
Schedule 10 agreed.
Clause 38: Civil penalties for parking contraventions: enforcement
61C: Clause 38, page 30, line 21, leave out from “given” to end of line 23 and insert “either—
(a) by a notice fixed to the vehicle;(b) by a notice handed to the person appearing to be in charge of the vehicle at the time; or(c) where the enforcement officer is prevented from serving the notice by either of the methods in paragraph (a) or (b), by post,in respect of a parking contravention on a road in a civil enforcement area in England”
My Lords, in moving this amendment, I will also speak to our other amendments in this group—Amendments 61D, 61E, 61F and 61G. I will address the clause stand part debate in due course.
Most local authorities have adopted civil parking enforcement powers, which mean that they, rather than the police, can issue parking tickets for on-street parking contraventions and in local authority off-street car parks. This means that they have full responsibility for the design, implementation and enforcement of parking policies in their areas. The quid pro quo as the Government apparently see it is that local authorities should use these powers to seek best solutions to balance the sometimes competing needs of different road users, including cyclists, pedestrians, residents, shops and businesses.
Local authorities, as we know, are precluded from using their civil parking enforcement powers to raise revenue. The Government say that they are aware of concerns that some local authorities are being overzealous with parking enforcement, and they have focused on the use of CCTV as having insufficient regard to statutory guidance. It is suggested that enforcement by CCTV is particularly unfair because a motorist might be issued with a ticket as a consequence of a camera. The ticket arrives at their home some time after the event when they have no opportunity to examine the location when the alleged contravention took place. However, the Government’s consultation on local authority parking last year acknowledged the benefit of CCTV in enforcing moving traffic congestion where cars use bus lanes, do not exit box junctions and so forth.
The LGA disputes much of the Government’s analysis. It points out that successful appeals to the adjudicator are low, 80% of councils make no surplus on enforcement and parking surpluses that do arise are reinvested back into transport improvements. Parking controls help to ensure that businesses have access to loading bays, school entrances are kept clear and parking does not obstruct access to shops, businesses and residences.
Notwithstanding that, Clause 38 seeks to ban the use of CCTV for parking enforcement, although the Government have already acknowledged the need for some exemptions to this policy as a result of campaigning by the LGA. They have acknowledged the need to allow its use at bus stops, in bus lanes, outside schools and on red routes. CCTV is quite properly used to enforce parking restrictions where the use of enforcement officers is not practical. Outside schools is a particular case in point because motorists can move their vehicles when a traffic officer approaches. Enforcement in some instances requires constant observation over a period of time or for safety reasons.
As Clause 38 is currently drafted, and subject to the detail of any regulations, it would seem to make it impossible to enforce a penalty where the driver has fled the scene or where an enforcement officer is otherwise prevented from fixing the PCN to the vehicle or handing it to the person in charge of the vehicle; perhaps because of threats of violence. It cannot be the Government’s intention to allow such behaviour to be rewarded. At present of course, an enforcement officer can hand a PCN to a driver or send it by post when prevented from serving it directly. Amendment 61C would therefore allow a PCN to be issued by post where it cannot be issued in the manner currently provided for in Clause 38.
Amendments 61D and 61E would include in the Bill exemptions from the ban, some of which the Government have already conceded should be provided. This applies to contraventions for stopping at bus stops and bus lanes, school entrance markings and red routes on the grounds of safety and the needs of bus services. Amendments 61B, 61F and 61G have been added to our proposals for the same reasons. We propose that all arrangements for safety reasons should be covered as well as no-stopping and no-loading restrictions because these, too, impact on bus service delays.
Amendment 61F seeks to ensure that the provisions of Clause 38 cannot have effect until the proposed implementing regulations have been the subject of a regulatory impact assessment and an equalities impact assessment. As I understand it, no impact assessments have been conducted on these clauses, particularly in respect of the impact on those dependent on public transport or on vulnerable users. Can the Minister tell the Committee why this is? Will the Government now commit to producing such assessments before implementing these provisions?
The purpose of Amendment 61G is to enable those local authorities that wish to use CCTV and automatic number plate recognition in car parks in order to make it easier for users to park and pay later or to better manage space for users. It would make it easier, for example, to have pre-booking arrangements. The Protection of Freedoms Act 2012 provided for such technology in private car parks but not local authority ones. The use of such technology would depend on it being used for better space management or customer convenience. This approach follows the same basis as that on which the congestion charge operates and, so I am told, the new Dartford crossing toll. The Department of Health’s encouragement for NHS trusts to use pay-on-exit systems is in the same vein.
Since tabling these amendments and drafting most of these notes, we have seen a draft of the regulations enabled by this clause. We obviously need some time to look at these—although doubtless the Minister will offer some enlightenment—but on the face of things, it looks as though the prospect of enforcement by post is preserved for on-road contraventions, in limited circumstances when alternatives are prevented. These would appear to be more limited than in Amendment 61C. The regulations would also appear to cover some, if not all, of what is provided by Amendments 61D and 61E, but this is not in the Bill. The draft regulations do not address Amendment 61G.
Can the Minister help me in particular with a specific piece of drafting in those regulations? Regulation 9A(3)(c) looks at the circumstances where service of enforcement by post would be permitted. It refers to,
“where the civil enforcement officer has begun to prepare a penalty charge notice for service in accordance with paragraph (2)”.
“begun to prepare a penalty charge notice”,
mean in this context? Does the officer have to actually get his machine or pencil out of a bag for a written enforcement notice? Does he just have to appear and look at the number plate of the vehicle in contemplation of doing something or does he actually have to press the button on the notice? This might seem frivolous but it is important that these things are clarified otherwise the scope for argument, litigation and adjudication will be endless.
We welcome the Government’s response, so far as it goes, in listening to the concerns and the LGA’s campaign—however, it is not enough. I beg to move.
I believe that these provisions are ill thought through and extremely damaging to local government and local governance. At the same time as the Government are beginning to concede powers—to Greater Manchester, as we read this morning—these provisions are taking away a power which is essential for local government to keep its roads free. Those roads are becoming increasingly congested and increasingly badly maintained.
The law relating to bus operation is that the traffic commissioners who license buses provide that they do not run early or more than five minutes behind schedule. It is extremely difficult for bus operators to keep within the present limits with the present level of enforcement; it would be completely impossible if we got odd people having five minutes to pop in to get the paper and impeding the traffic. That has a large-scale effect. For example, in Oxford, which I know well, the congestion at one stage got so bad that in one of the park and rides they had to put extra buses in and extra drivers. Of course, they got no more revenue, because they were taking the same number of people, who just happened to be sitting in congested areas. I am not talking only about bus lanes; these appear to be covered in the proposed regulations. I am talking about the fact that a large number of buses do not use roads that have bus lanes; the vast majority—I think about 60%—travel along ordinary roads, which are protected in places at least by double yellow lines. I honestly believe that this is not a subject that the Government should be involved in.
There is very little evidence that surpluses are being frittered away or used by councils to subside luxuries. I accept that in Kensington and Chelsea and in Westminster a couple of councils make a profit, but we cannot argue from the particular to the general. A piece of evidence that I have from one local authority shows that actually a very small fraction of people contest their parking fines and a much smaller proportion of them are upheld by the parking adjudicator. Nobody likes getting tickets because they have been watched by CCTV but most people accept that they have done wrong and will have to pay the fine, which is mitigated to 50% if people pay promptly. It is quite impossible to think that the police have resources to do that sort of work; it has to be done by CCTV, and if local authorities can afford to employ parking wardens it is probably at the expense of spending money on something else. I cannot understand why, in this day and age, technology is not brought to bear on problems. This is not spying on people; it is picking up illegal parking that is obstructing the highway for the ordinary person.
The regulations talk about zig-zag lines outside schools. I know what they are like; they go for about 10 yards either side of the entrance. That is not the problem. If you go almost anywhere you will find a line of cars outside schools and, for that matter, outside hospitals, which is very long and creates huge safety problems. Many headmasters ask local authorities to bring the enforcement ban or some sort of TV equipment to control the problem, because many people who park in those places are just selfish or lazy—or perhaps both. I do not believe that we should pander to that sort of thing.
With this clause, we need to go back to the drawing board and take some advice from people who really know what they are talking about, not relying on something conjured up in Whitehall, probably by somebody who really does not understand the problem.
My Lords, I follow my noble friend and, in deference to my other noble friend sitting on the other side of me, I am sure that he did not mean to say that the Royal Borough of Kensington and Chelsea makes a profit from parking because it would, of course, be illegal. I am quite sure that it does not do that. I felt obliged to say that.
Before I speak to the amendment more fully, and with the permission of the Committee, I want to make a small correction to something I said in Grand Committee last Thursday—as I have been requested to do. In col. GC 452 of that Committee’s meeting, I said—or I am reported as saying—that the company, onefinestay, believed that regulation should apply to properties that are the “sole or main residence” of the owner. That is not the company’s policy, and I have agreed to put on record at the first opportunity that the position of onefinestay is that the regulation should apply to all residences, including primary and secondary residences, not simply to one sole or main residence. I have put that on record. I am certain that we will return to this subject at another date and I need say no more about that today.
I return to the thorny issue of parking. For 40 years, until last May, I represented a town centre ward in a London borough. Many, probably most, of the houses and streets in that ward were built before the motor car was invented. Pretty well all the houses there were built at a time when it was inconceivable that the people living in them would be able to afford to own and run a car, let alone two or more, in some cases. One of the consequences is that the basic problem now in what used to be my ward is that there is simply not enough road space to accommodate residents’ own cars, let alone all the other demands on the road space. As a reward for my long service on the council, during my last year there I was given political responsibility for implementing—and, I have to say, changing a little—parking policy. It encouraged me to accept retirement, and I fervently hoped last May that I would never, ever again have to deal with parking issues and parking problems. It follows that I am not entirely grateful to Mr Pickles for ensuring—sounding very much more like Friday night in the pub than anything I would hear on the streets—that I am here talking again about parking policy.
I want to make some fundamental points that I know are not widely perceived. Good parking services in most councils all over the country are there to work on behalf of the local residents and, in most cases, on behalf of motorists, too. I strongly believe that, although I understand only too well why there is a popular impression to the contrary. Having had to deal with the sort of problems that I described, I know from experience that good parking services may not provide the road space necessary to solve the problem but can go a long way to making life more tolerable for residents and manageable for non-residents who need to use those roads and streets.
As has been said—indeed, I began by saying it—local authorities are not allowed by law to make a profit from parking. With deference to my noble friend Lady Hanham, who is sitting next to me, most local authorities are unable to make the sort of income that Westminster or Kensington and Chelsea are able to make. Nor, indeed, do most councils have the sort of problems that those two authorities have to deal with. Most local authorities, including my former authority, do not make a substantial profit—or income; I shall get myself into trouble—out of parking services by the time they have covered all the expenses that are necessary. Such surplus income as may arise is, and has to be, used for transport-related actions. That is important to understand.
We come now to this clause. I think that the noble Lord, Lord McKenzie, made reference to the Government’s consultation on local authority parking policies which took place at the very end of last year and the early part of this year. I think I am right in saying that eight organisations, as distinct from individuals, responded to that. Six of those eight were totally opposed to the Government’s proposals. The two that were not opposed—the motoring organisations—also did not fully support the Government’s proposals, which makes me even more concerned about why the Government—my Government—are still insisting on going ahead with this measure.
As my noble friend Lord Bradshaw has just said, if anything should be the responsibility of a local authority, it should surely be parking services. The local authority, and those elected to represent the local residents, best know the local circumstances and the local conditions, which vary not just from authority to authority but, frankly, from area to area, even from street to street. It is they who are in a position to determine what should and should not be done in implementing parking policy in a local authority area. Given my 40 years’ experience, I wonder why the Government are so foolish as to want to enter this minefield. For that reason, my noble friend Lord Bradshaw put down the proposal that this clause should not stand part of the Bill—that is, to delete the clause altogether. Frankly, I still think that would be the best thing that could happen. If the Government are minded to go ahead with the clause, I certainly accept that the amendments in the name of the noble Lord, Lord McKenzie, would go some way to mitigate it. Therefore, if that is the case, I would largely support those amendments, but I still believe that it is better to leave this matter to local authorities, whose job it is to deal with it.
The noble Lord, Lord McKenzie, also said that yesterday afternoon we received a copy of the draft regulations from the Minister. I am very grateful for that and am pleased that we received it in time for this meeting, although I am sure that the Minister and noble Lords will understand that I certainly have not had time in the intervening 24 hours to have a detailed look at it or even to consult those who know far more about it than I do. I hope that the Minister will tell me that I am wrong on this because I want to be wrong, but, from my first impression, it looks to me as if the draft regulations would allow CCTV enforcement of a school clearway—the zig-zag lines—but not elsewhere. In other words, you can use a camera to enforce penalties with regard to the 10 yards round a school clearway but not a little further down the street. From my experience as a councillor with a number of primary schools located in streets such as I have described, that is simply ludicrous. Cars park all the way down the road. The residents want to have enforcement to stop cars doing that or to deal with car drivers who park inconsiderately and foolishly all the way down the road. However, if these regulations were enforced, and if I am correct—as I say, I hope that I am not—we are going to be in a position of having to tell those residents who want the local authority to enforce them, “I am sorry, we can enforce them for only 10 yards. We can’t enforce them down the rest of the road”. I am no longer a councillor, thank goodness, but I invite the Minister to explain to some of my former constituents why the regulations can be enforced for 10 yards but not for the rest of the road. That is just one point that occurs to me, which I hope the Minister will tell me I am wrong about. However, I fear that I may not be.
This illustrates the danger in the Government interfering with all this. The local authorities best know how to deal with this issue and most of them do so well. Of course, mistakes are made and silly things happen sometimes; they should not, but they do. However, we now have a very good appeals system that works fairly. Nobody has suggested that there is anything significantly wrong with that. Why do we not leave the situation as it is? For all these reasons and many more, my noble friend Lord Bradshaw and I wish to give the Government the opportunity to think again and not to enter what I assure them is a minefield and an area where they simply will not win, and to leave it to the local authorities which best know their own areas to carry on dealing with the things that they have had to deal with for many years.
My Lords, I have been mentioned a couple of times by my noble friend beside me, and I am very grateful to him for explaining the policies of the Royal Borough of Kensington and Chelsea on the use of parking moneys, and why our roads are so beautifully kept. I remind the Committee at this stage of my co-presidency of London Councils and my former membership of the Royal Borough of Kensington and Chelsea. I apologise to the noble Lord, Lord McKenzie, for the fact that I was rushing down from a Select Committee and was about three minutes late for the start of the debate.
I support what has been said about this being a local authority matter. If anybody who has been involved in local government knows anything about it, there are two things that really irritate residents. The first is planning and the second is parking. How parking is controlled and enforced is totally a matter for local authorities. Noble Lords know as well as I do that Westminster City Council has completely different parking regulations to those in Kensington and Chelsea. They were very difficult to cope with to start with, but everybody has not got used to the fact that you cannot just totally rely on the same things. They have different rules of enforcement, too. Kensington and Chelsea does not employ cameras for parking enforcement, while other councils do. Whose choice is it that that should happen? Why is not that the choice of the borough—how it enforces it? If you do not have cameras, you have to put people on the streets. I came across two today, and one was on a scooter with his little yellow hat on, while one was on his bike with his little yellow hat on. They were running up and down the road. You have to have a bigger army of those to keep up enforcement if you cannot use cameras.
Where is the mischief that has brought about this proposal? Who has been complaining about cameras for parking enforcement? Cameras are used for all sorts of things in our streets, some of them extremely helpful. Some cameras catch criminals and help to protect people who are walking up and down the street. Some provide for the traffic flows. It is very annoying being caught by a camera. I can declare that I was caught by one while sitting at a box junction a little while ago. I did not know that there was a camera there, and I was a bit stuck. I got a traffic fine, and rightly so, because what I was doing was against the law. I was not doing what the law said and hoping that I would get away with it, but I did not. That is because I was breaking the law, and when people go against the law on parking arrangements brought in by local councils, which decide on the parking restrictions, it is up to the local authority to enforce it themselves. That is particularly essential for major cities, where there are really tight areas for parking, as well as in small county towns, which are different to anywhere else.
My former position as a Minister in the DCLG leaves me in no other position than to say that I do not know at all why the department has set off down this road, and it would be a frightfully good thing if it got away from it.
Unlike the noble Lord, Lord Tope, I am not an ex-councillor. I am not sure that it is a misfortune or fortune still to be an elected member of Bradford Metropolitan District Council. My ward has in it two large upper schools and a very large primary school. Because of the topography and the nature of the communities of Bradford, which noble Lords will know is a very large area, many children, however large or small, are brought by parents in cars. The ensuing chaos is something that you cannot believe. Not only is it chaotic and dangerous; it is also detrimental to economic growth in the area. When cars cause obstacles to vehicles passing through a community, it delays important business traffic and people choose not to open businesses in places where they cannot get quickly to their destination. If councils do not have the opportunity to use everything possible to control unsightly, difficult and inconsiderate parking, we will have even more chaos.
I could not agree more with all my colleagues on the Benches in front of me: it really should be a matter for local authorities to determine how this is dealt with, certainly not somebody who thinks that a zig-zag line outside a school is the only place where there is a problem. We even have situations, because of inconsiderate parking, in which emergency vehicles cannot get through at school times. This is therefore a step too far, which the Government should not be considering.
My Lords, I apologise for being a minute late. I thought that we wanted freedom for local authorities—I just do not understand this. If local authorities cannot handle their parking, what on earth are they supposed to handle? I am sorry, but it seems to me to be manifest. The Royal Borough of Kensington and Chelsea is wrong in both its planning and its parking proposals. Westminster is better at both. I live in Westminster, thank goodness—I do not live in it for that reason, but I thank God for the fact that I live there.
I want to have a local councillor to whom I can talk about the planning in my street. I do not want him coming back and saying, “I am frightfully sorry. The Government have decided we shan’t have this”. It is wholly contrary to the Localism Act we have recently passed. I thought that we were going to do more of that. We are going to give a great deal of power to Manchester. I am very much in favour of that; I hope that we do the same for Sheffield and all the great cities of Britain. I want all that. A fat lot of good it is giving them a hand and then suddenly saying, “You can’t have the parking; we’re going to do it differently”.
This is manifestly not to do with government policy. It is contrary to government policy, and if it is contrary to government policy, would it not be better not to have it? Then everyone would understand that government policy is for localisation and not for telling people that they cannot decide how the parking shall work out in Queen Anne’s Gate. I want to be able to say directly to somebody, “This does not work. Can we do it this way?”. I cannot do that to the Minister—unless he would like us all to come and see him, with every planning problem from around the country. That is the only alternative to what is being proposed here.
My Lords, irrespective of the arguments made on my right and behind me, I have a slightly different problem with the clause. The Bill has been touted by the Government as the great deregulation measure of this Parliament. I am all for deregulation, but this ain’t it. It is a regulation measure. Why on earth is it in the Bill in the first place?
My Lords, I first thank the noble Lord, Lord McKenzie, for his amendment, and all who spoke in this debate. I think the word “minefield” was used by one of my noble friends; there may be some more extreme language.
I will explain why Clause 38 is, in the Government’s view, important. New Section 78A to be inserted in the Traffic Management Act 2004 will allow for regulations to be made, the effect of which will prevent local authorities from issuing parking tickets in the post based solely on the evidence of CCTV cameras. Once the regulations are in place, traffic wardens will need either to affix tickets physically to the vehicle, or hand the ticket to the person who appears to be in charge of the vehicle, so that drivers are made aware of an alleged parking contravention at the time. This might be an appropriate time to answer the question of the noble Lord, Lord McKenzie, about what the phrase,
“begun to prepare a ticket”,
means. My understanding is that it is the point at which the traffic warden begins to prepare the ticket in a physical sense. I hope that that is helpful; that is my understanding of the matter.
The Government accept that sole reliance on CCTV evidence in enforcing on-street parking regulations is suitable in certain circumstances, and will therefore set out in secondary legislation four exemptions where CCTV will continue to be used: bus lanes, bus stops, red routes and around schools. My noble friend Lord Tope mentioned this in particular about schools. I can well understand this because I have had direct experience of it in the past 10 days. Noble Lords of a political persuasion may have gone down to Rochester. I was there in a street that had a school, and one of the issues that was raised was parking.
The description in the draft regulations of what constitutes “around schools” follows that used elsewhere in DfT legislation. There is nothing to prevent local authorities using traffic wardens to enforce in other areas. I should, however, like to look into that in a little bit more detail.
I should be grateful if my noble friend would look into it. With deference to my noble friend the former leader of Kensington and Chelsea, most local authorities do not have the income from parking that enables them to employ large numbers—I think she referred to armies—of traffic enforcement officers. It is simply not practical to put civil enforcement officers—I think that they are called parking attendants now—outside every primary school throughout that local authority area where there is a parking problem. I am sorry to say that the Minister confirmed my understanding from a quick read of the regulations, that a camera can be used for 10 yards outside the school but if you go further than 10 yards you have got to employ a human being at consequent cost for enforcement. That simply will not happen in most areas. There is neither the money nor the demand to do it. Frankly, it is ludicrous.
Therefore I thank the Minister for his willingness—even, I suspect, his enthusiasm—to look into this and to have it resolved before we get to the next stage of the Bill. I am not sure that he has already noted that by far the strongest opposition to this clause has come from his own side.
My Lords, I am fast becoming aware of that. I do not want to provoke my noble friends, but since local authorities took on responsibility for parking enforcement the income from parking has gone up significantly. Local authority surpluses from parking income have more than doubled from £223 million to £512 million between 1997 and 2010. There are obviously some local authorities that are increasing surpluses—clearly not the local authorities with which my noble friends have been associated or which they may know. I pass those figures on as a matter of record.
The Government believe that these proposals are necessary as a matter of principle. People should be able to see what they are accused of when they return to their vehicle, so that they have the opportunity to examine the area for themselves. It is not reasonable for drivers to receive a ticket in the post up to two weeks after the incident has taken place.
The Government also believe that some local authorities are ignoring operational guidance and using CCTVs in areas in which they should not do so. The Traffic Penalty Tribunal told the Transport Select Committee that adjudicators have found cases where camera enforcement is used as a matter of routine where the strict requirements for use in the guidance do not appear to be present. By bringing forward this legislation the Government are seeking to ensure that parking practices are fairer for people.
What is the difference between getting a ticket through the post as a result of camera activity two weeks after the event and getting a ticket in the post as a result of camera activity two weeks after the event when you are whizzing up the M40 and there has been a police car on one of the bridges?
The noble Lord, Lord Rooker, used the word “whizzing”. I am not sure that anyone could start placing the ticket on a vehicle going at 80 or 90 miles an hour on the motorway. However, I take his point more seriously than perhaps is suggested by making that instant judgment as to why it would not be possible to adhere to these principles for someone going at 80 or 90 miles an hour on the motorway.
Does this not give my noble friend the opportunity to go back to the department to explain why there is unhappiness? It was said that the reason why you cannot affix the notice is that the car is travelling too fast, but there are other reasons, too. In the part of the country from which we both come, a village school may have real problems with people parking in the wrong places. The ideal answer in that distant place, where it is difficult to have someone on duty all the time, may be to have a camera. The idea that Suffolk Coastal District Council or Mid Suffolk District Council is capable of having people standing outside every village school—and many of them have this problem—is not sensible. Is that not the same sort of issue as dealing with people travelling at 60 or 80 miles per hour? There is no other way of doing it, but we have to do it.
My noble friend is always extremely persuasive. Clearly, the record of these discussions will go back to the department.
In his amendments, the noble Lord seeks to place in the Bill the list of exempted areas where local authorities can continue to use CCTV to issue tickets in the post. The department does not think that it would be expedient to set the exemptions in primary legislation. It is conceivable that exemptions could be increased or reduced in the future, so it might be more desirable to include them in secondary legislation. Everyone will have their own view on what is the right balance for the use of CCTV, whether that is in parking, as your Lordships are debating today, or more widely. The Government have given careful consideration to the list of exemptions and, in particular, have reflected the views of those who responded to the consultation.
The noble Lord, Lord McKenzie, also seeks to introduce a requirement for impact assessments to be carried out for the provisions. As I am sure he will know, the Government have been clear in their determination to reduce the impact of rules and regulations on businesses and policymakers. Indeed, the Government’s Better Regulation Framework Manual, which was published in July 2013, states that impact assessments are required only for measures that regulate or deregulate business or concern the regulation of business. This clause applies only to local authorities that carry out parking enforcement, so we believe that no impact assessment is required.
I think that I might need a little assistance on that, but I will return to it.
The noble Lord also suggested the insertion of a new clause that would prevent the measures in the Bill from affecting off-street parking. However, the measures in the Bill already apply only to on-street parking, so we consider that the noble Lord’s suggested new clause is not necessary.
I should also reply to my noble friend Lord Bradshaw on the issue of traffic flow. Local authorities will still be able to enforce parking. Indeed, the great majority of authorities do this without the use of CCTV. As I said, in those areas where traffic flow is vital, the Government have provided for CCTV to continue.
I promise to write to the noble Lord about equality impact assessments.
My Lords, I thank all noble Lords who have spoken in this debate. I shall first pick up some points that the Minister made. I understand his definition of when someone begins to prepare a parking ticket. I suspect that CCTV evidence will need to be brought to bear on that decision on more than a few occasions.
Let me revert to the noble Lord, Lord Bradshaw, who said that the amendment was damaging to local government and took powers away from local authorities. With respect, that is not what the amendment was doing. What is taking the power away from local authorities is the clause in the Bill. The amendment was seeking to ameliorate the impact of that. In that sense, I guess that it is a middle position between the two extremes of the coalition—those who do not want the clause at all and those who, if it has to be there, want to make it work in a better way. The arguments for not having it there at all are not insignificant.
I am sorry to interrupt. There is a woeful lack of solid evidence to support what the Government are proposing. The Minister, in replying, referred to parking penalty charge notices and all the work given to the adjudicators. In one borough, which I shall not name, 45,771 tickets were issued in a year. Of those, 358 were referred to the parking adjudicator and 65 were upheld. So we are talking about 65—one and a half a week—against the local authority issuing nearly 1,000 a week. It is preposterous that this sort of evidence is used by the Government to make these proposals. I beg the Minister to go away and convene a meeting between the people who support the Bill and those who actually have to work it. Seriously, this will cause chaos to bus services and parking enforcement—and probably a general feeling, once again, that the Government are out of touch with people.
My Lords, I do not at all dispute the adjudication figures. I probably used the same briefing as the noble Lord. We have a common understanding of the data and the Government have more to do in justifying what they are doing here.
The issue around schools is clearly very important. The point has been well made that it is nonsense to say that TV cameras will be able to be used along a very short stretch of road. Our amendment would widen or retain the opportunity to use CCTV in those circumstances. The noble Baroness, Lady Hanham, asked who was complaining about parking charges. I hesitate to say, but she might wish to take a taxi ride in Luton and it will not be long before she gets someone bending her ear about parking charges and enforcement. I suspect that that situation is not unique to where I live.
There is a localism argument in all this, although I know that depending on where people are on a proposition, they either grasp the localism mantra or they do not. We debated something just last week when those who are now on the localist wing were arguing for a very much centralist approach. We have all probably been on one side of that issue or another.
The Minister said that I was trying to introduce a new clause related to off-street parking enforcement; was that the point he was making? The point about Amendment 61G, which was suggested to us by the LGA, related to the opportunity for local authority car parks to have the benefit of the same use of technology as private car parks so that it can be used to improve management of those car parks—to enable people to park and pay afterwards, for example. Those are the sort of arrangements that make more efficient use of car parks—as I said, the Department of Health hospital trusts are encouraging that—which was the purpose of my clause. Perhaps the Minister might reflect on that.
My noble friend Lord Rooker, as ever, made a challenging point, in this case about the difference between somebody getting done for speeding on a motorway and somebody getting a parking ticket when they are stationary. These provisions apply only for stationary vehicles—for obvious reasons which the Minister I think dealt with. If people are motoring at 40, 50 or 60 miles an hour, you need some form of evidence to be able to justify a penalty, and CCTV is the obvious option. I do not think that the Government, to be fair to them, are seeking to change that in these regulations. But where I challenge the Government, and where I would certainly align myself with most of the Benches opposite, is that I do not think the Government have justified the very narrow use of CCTV that would result from this clause. At the very least it should be widened to cover all of those areas focused on safety, for example bus usage and the efficiency of the bus service. What they are doing is very restrictive and, I believe, unacceptable. One way or another, it needs to change.
I do not think the noble Lord has quite withdrawn his amendment yet. Before he does so, I could perhaps help with Amendment 61G—which I certainly support—which refers to the use of an approved device in car parks. As I understand it, the Protection of Freedoms Act 2012 provided for the use of CCTV and automatic number plate recognition in private car parks but did not do so for local authority car parks. If that is the case—I believe that it is, and that is the reason for the amendment—I do not understand the logic for it. Why is it permissible in a privately owned or managed car park but not in a local authority one? I suspect, or would like to believe, that that was simply an omission when the 2012 Act was passed and that this is the opportunity to correct it.
I am grateful to the noble Lord for his support on that particular amendment. I do not believe we can get an answer this afternoon as to why that distinction was made when the provisions were introduced but it is certainly important that we get it. We will obviously need a lot of follow-up on this area of debate, but in the mean time I beg leave to withdraw the amendment.
Amendment 61C withdrawn.
Amendments 61D to 61F not moved.
Clause 38 agreed
Amendment 61G not moved.
61H: After Clause 38, insert the following new Clause—
“Prohibition of parking on verges, central reservations and footways
(1) The Road Traffic Act 1988 is amended as follows.
(2) After section 19 insert—
“19A Parking on a road anywhere other than on the carriageway
(1) A person who parks a vehicle wholly or partly—
(a) on the verge of an urban road,(b) on a footway comprised of an urban road, or(c) on any other part of an urban road other than on the carriageway,is guilty of a civil offence, subject to the provisions of subsection (3).(2) An offence under this section shall be treated as a traffic contravention for the purposes of Part 6 of the Traffic Management Act 2004 and regulations made under it.
(3) Subject to subsection (6), a highway authority may by resolution, or in the case of the Secretary of State by such notice as appears to him to be appropriate, authorise, from a date specified in the resolution or notice, the parking of vehicles on or over a footway or any part of a footway as referred to in subsection (1).
(4) Nothing in this section shall apply to any road within Greater London.
(5) In this section—
“carriageway” and “footway” have the same meanings as in the Highways Act 1980;
“urban road” means a road which—
(a) is a restricted road for the purposes of section 81 of the Road Traffic Regulation Act 1980;(b) is subject to an order under section 84 of that Act imposing a speed limit not exceeding 40 miles per hour which is imposed by or under any local Act; or(c) is subject to a speed limit not exceeding 40 miles per hour which is imposed by or under any local Act;“vehicle” means a mechanically propelled vehicle or a vehicle designed or adapted for towing by, or to be attached to, a mechanically propelled vehicle but does not include a heavy commercial vehicle within the meaning of section 19 of this Act.
(6) The Secretary of State may make regulations as to any exemptions from the prohibition contained in subsection (1).
(3) The Traffic Management Act 2004 is amended as follows.
(4) In Schedule 7, after paragraph 4(2)(g) insert—
“(ga) an offence under section 19A of the Road Traffic Act 1988 (c.52) (parking on a road anywhere other than on the carriageway);”.”
My Lords, I put my name to this amendment, although it is not shown here. Unfortunately, the noble Lord, Lord Low of Dalston, is in another meeting in your Lordships’ House and is unable to be here today. He has asked me to move this amendment, which stands in his name, and I am of course very happy to do so; first, because I have some experience of the issue but secondly because the amendment repeats very closely the wording of the Private Member’s Bill introduced by my honourable friend Martin Horwood in the other place, which is supported by all parties including Plaid Cymru and the Greens. I am very pleased to be able to move it.
On the last amendment, I rehearsed at some length my experience of parking in a London borough and the nature of the ward that I represented in that borough. Coincidentally, the year of my election was the year that Greater London acquired the power to ban pavement parking—for simplicity’s sake in this discussion, I will simply refer to pavement parking, because that is the way it is most easily understood and that is what it is about. As a result, pavement parking has been illegal for some years now throughout Greater London except where a street is specifically exempted from that ban.
I believe, certainly, in my own borough—a number of roads in what used to be my ward had to be so exempted, or nobody would have moved in them—the exemptions are strictly controlled. Nearly all of the rest of the country is not in that fortunate position. Although Exeter and Worcester have bans, the rest do not. It is an inconsistent situation throughout the country. One of the purposes of the amendment and my honourable friend’s Private Member’s Bill is to deal with that inconsistency.
The need for the ban is, I am sure, obvious to all of us here, not just for consistency but because parking on pavements is extremely dangerous to many people: very obviously to people who are blind or partially sighted, to people who have a mobility difficulty whether they are using a wheelchair or not and to people pushing prams and pushchairs. Indeed, I would say that it is dangerous to every pedestrian who is forced into the road. That is the primary reason why we should now take this opportunity to introduce a pavement parking ban on a consistent basis throughout the rest of the country outside London, within which it already exists.
The campaign for a pavement parking ban has the support of 20 organisations: Guide Dogs for the blind, the Local Government Association, the British Parking Association, the Campaign for Better Transport, Age UK, Living Streets, the National Association of Local Councils, Whizz-Kidz, the Royal National Institute of Blind People, Sense, Civic Voice, the Design Council, Keep Britain Tidy, Transport for All, the Thomas Pocklington Trust, the Macular Society, the Glass-House, the National Pensioners Convention, the National Federation of Occupational Pensioners and Deafblind UK. I hope that the Minister’s experience in trying to deal with Clause 38 just now would suggest to him that it might be as well to give in and accept the amendment, or one very like it, now.
The amendment is long overdue. The primary reason is what I have already said: the dangerous nature of parking on pavements for pedestrians; particularly for those I have described, but quite seriously for all pedestrians—although clearly much more so for some than for others. I have a local authority background; indeed, maybe I should declare again my vice-presidency of the Local Government Association. Another reason is the cost of pavement parking. Parking on pavements breaks up the pavements, which are not built or designed to have people parking on them. It adds a considerable cost to local authorities having to repair them. Increasingly, I am sorry to say, budget restraints mean that those pavements do not get repaired, so even walking on the pavement can now be quite difficult and dangerous.
This campaign is supported by the overwhelming majority of local authorities for the reasons I have said and the need to get consistency. Current laws and practice around the country are simply not consistent. We therefore need a new law, long overdue, that, although it is quite a complex issue, makes it clear in simple terms that parking on pavements is not just wrong—it is, or should be, illegal. I beg to move.
My Lords, I feel sorry for the Minister. The previous speaker, having earlier fought hard for localism is now trying to take localism away. I am happy to have this as giving a power, but the idea that the Government should tell every local authority, whether it is suitable or not, that they cannot allow parking on pavements seems to me to be a mistake. There are places where parking on the pavements is a sensible answer—indeed, the only answer. Now, it may be a choice between two evils, but it is a choice that should be made locally. We either have to believe in localism or not. I therefore very much hope that the Minister will accept that we should give this power, but that it should be permissive and should not be national.
My Lords, I do not want to argue with my noble friend about which of us is the greater localist. We have known each other for more than 40 years. I thought that I made clear that it would obviously have to be the case, as it is in London, that where necessary and appropriate, and as decided by the local authority, the pavement concerned could be exempted from that ban. It is clearly not just desirable but essential.
If the amendment were approved, it would simply change the situation now, where parking on pavements is okay unless it has been stopped, to the reverse situation where it is not okay unless the local authority has specifically exempted it. My noble friend used the example in the previous debate of a vehicle travelling at 60 miles an hour down the motorway. Maybe we should not talk about motorways but is he seriously suggesting that local authorities alone should decide which area has a speed restriction and that the situation in the country should be that there are no speed restrictions in place unless the local authority chooses to impose one? That would be anarchy and simply would not work. We are going to have a dialogue if we are not careful.
My Lords, I do not intend to have any dialogue at all, but I would just point out that it is the local authority that decides where a 30 mile an hour limit should be. Many of them overdo it and that is a pity, but I put up with that. It is their right. I am merely saying that I do not think that the clause as drafted would have the most local effect. I would prefer the clause to give powers. I want powers to be given and then people can make up their own minds. That is not what this clause does and I am sure that it could be done in such a way as to satisfy both of us. There is not much point in us having a dialogue, but can we please have a local solution?
I think we may be about to have a dialogue. I used to be a councillor in Cambridge and we spent a lot of time stopping people driving over 30 miles an hour because of Mr Toad characters who wanted to go at 40 miles an hour.
If we go too far down this road we would have to have a little leaflet about every town that we visit about parking on the pavement or not parking on the pavement. In the country as a whole, we need to have some broad rules. If a city does not allow you to park on the pavement, that should be stated very clearly as you enter the city. It is very important to have broad rules in a country, otherwise we begin to be like countries several hundred years ago when every city had different rules. We should have a broad rule and then local authorities should have the power to exempt, but there needs to be some information.
My Lords, I support the amendment tabled by the noble Lord, Lord Low, and already spoken to. I feel nervous about standing between two noble friends. Luckily, I am not right between them, so I feel safe at the end of the Table. Also, it is a pleasure to be speaking to my noble friend the Minister. Two hours ago we were speaking on sport and now we are on parking. We should all bow down in awe at the extent of his knowledge and the range of expertise demonstrated in just one afternoon.
We all know very well that there are three subjects never to be discussed in polite conversation. I would certainly add a fourth, parking, to that. It raises temperatures—sometimes justifiably and sometimes the solution is actually in the hands of the person holding the steering wheel at that particular moment. Looking at the amendment, the situation is clearly set out and has worked not just perfectly but incredibly well in London since 1974. It has not impacted on the economic, social or cultural success of this great city. I would never say that what is good enough in London is good enough everywhere, but it is a very useful case in point to consider.
As a guide dog user, I obviously have a particular interest in this. In many cities and towns that I go to, trying to walk along the pavement is impossible. One steps out to avoid one car then realises that there is a second, third and fourth car and one is walking down the centre of the road while the cars are on the pavement. What a curious world one has entered there. It is almost as if pink flamingos are used as mallets for croquet and we are all diving down rabbit holes when we have reached a change of roles to that extent.
It is not just about visually impaired people, though—it is about the very nature and essence of inclusion. If you have a pushchair or pram, or you are walking with friends or family, if you have toddlers or if you are on a mobility scooter, if you are a pedestrian you should be able to access and enjoy the environment on the pavement. The clue is really in the name, “pavement”; it is not a carriageway. The Americans get it quite well—it is a sidewalk, not a side road or a side car park. That is where we should aim to guarantee everybody free, unimpeded access along the pavements, not just of London but across the entire nation. As we have already heard, there is a very clear local element here. Politics is nothing if it not only listens but acts locally. This amendment offers the right local solution to enable unimpeded access of the pavements up and down this nation.
I turn to the economics of it. Pavements are not designed for cars. Unsurprisingly, they crack and the tarmac sinks and they become not only unsightly but dangerous for pedestrians. Between 2006 and 2010, £1 billion was spent on pavement repairs as a result of parking. That figure does not even cover the costs that we can all only think about of people who have had to bring claims against local authorities for having been injured on pavements that have broken down as a result of people parking on them. Again with reference to the local agenda, that is why it is hardly surprising that 78% of local councillors believe that there should be prevention of pavement parking, as is the case in Greater London.
There is an economic argument and a social argument, as well as a legal argument. It would be good if my noble friend could strongly consider the wording set out in this amendment.
My Lords, this is an important amendment, and we should thank the noble Lord, Lord Tope, for moving it on behalf of the noble Lord, Lord Low. As the noble Lord, Lord Tope, said, we all signed up to the Private Member’s Bill, which has stalled at the other end but is due for a Second Reading in January.
Under the existing legislation, it is illegal to drive on pavements and footpaths, but there is no specific prohibition against pavement parking. The ambiguity in the law means that most local authorities struggle to enforce restrictions, in contrast to London, which has operated a separate system since 1974. I understand that there are also exemptions in place in Exeter and Worcester. As the campaigning charity, Living Streets, said in written evidence to the Transport Select Committee:
“Inconsiderate parking can cause a major barrier to many vulnerable road users. It is clear that the current legislative situation relying on police enforcement isn’t working”.
Of course, there are some areas where parking on the pavement is unavoidable, and there are other legitimate reasons why it might sometimes be necessary—but all too often parking on the pavement obstructs access to pedestrians, forcing them to navigate busy and dangerous roads instead. Some 74% of adults report being forced to walk on the road because the pavement was being obstructed by cars and other vehicles. For some, pavement parking can effectively extinguish their right of way altogether. I refer to elderly people, people with buggies and those with disabilities. For them, cars that block the pavement can be a serious restriction on their freedom of movement.
I know that the measure proposed today has the support of the Guide Dogs UK, Age UK and several other organisations referred to by the noble Lord, Lord Tope. Banks of parked cars can also force cyclists to swerve into dangerous traffic flows, which can be especially dangerous on narrow roads. Pavements are not designed to bear the weight of cars, as the noble Lord, Lord Holmes, just said, let alone heavier goods vehicles; over time, they can become degraded, posing additional challenges for pedestrians and costs for local authorities.
The reality of the problem is not in contention, I suggest. In 2006, the Transport Select Committee said that the then Government,
“must grip the problem of pavement parking once and for all and ensure that it is outlawed throughout the country … rather than relying on the use of individual Traffic Regulation Orders on specific streets and local Acts to impose”,
a fine. Last year, the Transport Select Committee called for reform to end,
“a confusing patchwork approach across the country”,
and for a clarification of the rules for loading and unloading by haulage companies, and action to rectify the long-standing problems over poor signage. It is important that, even as the Government try to move towards allowing more diverse road signs from local authorities, common national standards can be agreed on this issue.
The status quo brings challenges for drivers as well as pedestrians and cyclists. The British Parking Association and the RAC Foundation all support the calls for change. Inappropriately parking vehicles can interfere with traffic flows for other road users, causing jams and congestion, and drivers are often unsure about restrictions—and which, if any, are in place. Given the growth in congestion on many of our roads, these problems are likely to be magnified in the years ahead.
The Government also seem to be in agreement, on the principle at least, that pavement parking is a problem that needs to be addressed. The amendment gives the Minister and the Government ample opportunity to do so. I urge them to take it.
My Lords, I first thank the noble Lord, Lord Tope, for speaking to the amendment; I am most grateful to the noble Lord, Lord Low, for tabling it.
The Government recognise entirely the importance of making the local environment convenient, safe and attractive to walk in, and of keeping footways in good order. I do not think anyone could have failed to be struck by all that my noble friend Lord Holmes of Richmond has said. However, as I think the noble Lord, Lord McKenzie, acknowledged, part of the dilemma is that there are indeed some streets where pavement parking may be inevitable, whether to maintain free passage of traffic, to allow loading and unloading or to allow the setting down of passengers in certain situations. I am afraid that I can think of instances when I have parked on a pavement for an elderly relative to get out safely, which I think was legitimate; it was not in London, either. There are therefore issues with a blanket ban, as the amendment is drafted, that are problematic.
Local authorities already have many powers to ban pavement parking; I have a list of them and they are quite considerable. However, I agree with my noble friend Lord Deben on this occasion. Local authorities are in the best position to decide on local parking restrictions and need to consider all road users when taking such decisions. A national ban of the type proposed would require local authorities to remove all existing restrictions, then to review their urban areas for where footway parking should nevertheless still be permitted, consult the community and erect new signage and markings, which would of course impose a burden on local government.
The amendment also proposes banning footway parking but allowing authorities to permit it where desired by a simple resolution. Circumvention of the traffic regulation order process would take away an important protection for the public. This process requires authorities to undertake consultation and advertise the proposals before councillors take final decisions. The Government’s guidance to local authorities makes clear that, during the appraisal of their parking policies, an authority should consider whether pavement parking is problematic in any part of its area. If it is, and is not covered by an existing traffic regulation order, the authority should consider amending the existing order or making a new one. Indeed, my noble friend Lady Kramer wrote to all English traffic authorities on 27 June this year to remind them of their existing, wide-ranging powers to prevent people from parking on the pavement where it is a problem.
Given the significant issues in managing a change of this scale, and the fact that authorities already have comprehensive powers to ban footway parking, I will ask the noble Lord to withdraw his amendment. However, before that, I want to emphasise that I am not asking the noble Lord to do that because the Government do not understand or accept the concerns that have been expressed. Indeed, the Government consulted the Disabled Persons Transport Advisory Committee on this. Although that body favours having no parking on the footway, it recognised that there would need to be exemptions from the national ban and that issues arise from this.
Although I am sure all noble Lords in the Committee will have every sympathy for what is intended, there are issues, which is why I ask my noble friend to withdraw his amendment.
My Lords, as we are in Grand Committee, the rules ensure that I have no choice but to withdraw my amendment, which I will of course do in a moment. I am grateful to the Minister for expressing sympathy and understanding, but what the 20 organisations and thousands and thousands of other parties—including a majority of councils and councillors—are looking for is not sympathy but action.
I accept entirely that it is complex but I just remind noble Lords that it was introduced in Greater London in 1974—coincidentally, the year in which I first became a councillor for the ward that I have already described, which has a number of streets that have to be exempted from the ban for practical and physical reasons. When a road or pavement is exempted, it is marked accordingly on the pavement and with a prescribed street sign, so that everybody knows that it is exempted and the extent of the exemption. The important point that we are trying to get across here is that in Greater London parking on pavements is illegal unless exempted, and that should be the situation in the rest of the country. People will then know where they stand: it will be illegal unless there is a sign and marking on the pavement that says it has been exempted. The local authority will deal with those exemptions and will have drawn up and published criteria for dealing with them, so it will be publicised in that way.
I do not want to provoke him again by saying this, but I do not think that my noble friend Lord Deben and I are that far apart. All I would say is that we have over 40 years of experience and practice in dealing with these issues in Greater London, which is arguably one of most densely populated urban areas in the country, and it works reasonably well. There is always an issue of enforcement, but there is something there to enforce. So what I and, in particular, the supporters and campaigners on this issue seek from the Government is rather more than sympathy or understanding, or leaving the situation, which is widely recognised as cumbersome and inadequate, as it is. We are looking for them to actually take action and to say to people that parking on pavements is illegal unless it is exempted.
Would the noble Lord not agree that it is pretty clear in the Highway Code that you do not park on the pavement? As I understand this legislation, with the new Highway Code you had better ring up your council to see whether you can park on the pavement.
It is certainly in the Highway Code and is certainly good practice, but it is not illegal outside London. That is the point that we are making. I am sure that we will return to this debate, both on this Bill and when my honourable friend gets the Second Reading of his Private Member’s Bill, but in the mean time I have no choice but to withdraw my amendment.
Amendment 61H withdrawn.
Clause 39 agreed.
Clause 40: Removal of duty to order re-hearing of marine accident investigations
62: Clause 40, page 31, line 15, leave out paragraphs (a) and (b) and insert “in paragraph (a) at the end insert “following a secondary investigation funded by trade unions and other organisations representing families of victims of the accident.””
My Lords, having noticed that my noble friend Lord Prescott is in his place I shall make my speech shorter than it would otherwise have been, since his expertise in respect of this issue both as a Minister and of course in his previous life is far greater than anything that I can contribute. At Second Reading on 7 July, I mentioned that the Joint Committee that I had the privilege of chairing and that looked at the draft Bill a year ago did not take any evidence on the clause relating to marine accident investigations, so there is no comment in the Joint Committee’s report about the issue. I also said on Second Reading at col. 30 that I thought that we should take a look at it more closely as it goes through this House. I said that in relation to two or three other issues as well. We had hundreds of submissions on a Bill that had 65 clauses at that time—this Bill has 91—so we could not do everything in the time allowed. There were one or two issues on which I thought Parliament should spend some time because it had not done so and it is important that the legislation is scrutinised.
I have gone back to look. Although the Joint Committee did not take any evidence on marine accidents, so far as I can check from the full list on the web it did receive three items of written evidence. One was from the UK Chamber of Shipping. I freely admit that, because the Joint Committee did not go into this in detail, this is the first time that I have read what the UK Chamber of Shipping wrote and I have not done lots of research on this. The UK Chamber of Shipping supported the logic of the change proposed. It pointed out that these changes were outlined in Marine Guidance Note 458 issued in 2012 and no concerns had been raised. There were a lot of red tape challenge issues relating to marine matters that I am not going to go into in great detail. The reference for the UK Chamber of Shipping written evidence is DDB0206. It is on the website.
Nautilus International also sent in written evidence, reference DDB0266, relating to what was then Clause 25 in the draft Bill. I am not going to go into great detail about this. Nautilus International is the union for maritime professionals. It certainly raised matters that ought to be considered. I do not think that it was wholly in support of the amendment as it was drafted. It,
“respectfully pointed out that in the case of the loss of the MV “Derbyshire”, that the technological advancement had been such that it was possible to locate the wreck and to ascertain more accurately its true loss and”—
I have no doubt that my noble friend will raise this—
“so as to bring about changes in the rules of construction that subsequently could save unnecessary burden and expenditure upon the industry”.
Therefore it is an important issue for relatives. It also said,
“it would seem pointless in removing this flexibility from the Secretary of State”—
about a second inquiry—
“that could be extremely beneficial in both allaying public anxiety following a marine incident and addressing the concerns of those directly or indirectly involved”.
The third piece of written evidence, reference DDB0294, was from RMT. It made clear that it strongly opposed the proposal in what was Clause 25. I am not going to go into detail about that because I am going to use part of the RMT brief now.
There were those three bits of evidence and it is important to put this on the record. The evidence was provided, the Joint Committee did not seek any further particulars, and we did not go into any detail regarding the Bill. The matter was raised during the passage of the Bill, which I am pleased about. It was raised while the Bill went through the House of Commons. Last week I apologised straightaway because I had been grossly misinformed about an issue we dealt with last week that I said had not been dealt with in the Commons, but it had been. In this case, the issue certainly was dealt with in the Commons. That is quite important. The issue was dealt with at Second Reading on 3 February and then in Committee on 11 March.
I want to make a couple of general points because the answer from the Government on 11 March from the Solicitor-General appeared to hinge on two key arguments. First, that it would remain mandatory to reopen the formal investigation if there are grounds to suspect a miscarriage of justice. Secondly, removing the duty to reopen will,
“facilitate the more efficient administration of reopened formal inquiries without compromising marine safety”.—[Official Report, Commons Deregulation Bill Committee; 11/3/14; col. 306.]
The RMT’s latest briefing turned up on the internet. I am privileged to have seen this amendment, which I thought was worth raising. I have now come to the conclusion that the clause should not remain in the Bill, but if it does it should be amended. The RMT’s point about the miscarriage of justice is that:
“The Secretary of State’s power in the 1995 Act (269(1)(b)) … to re-open an accident investigation if he/she suspects that a miscarriage of justice may have occurred is retained but we remain concerned that this places the bar too high in such instances and will further deter trade unions, NGOs and others from conducting the sort of campaign that led to the re-opening of the MV Derbyshire investigation and eventually secured justice for the families of those who died at sea working on a UK flagged vessel. We are clear that a duty to reopen an investigation in the circumstances set out here is far safer than the power to re-open on the grounds of a miscarriage of justice”.
So it takes issue with the central plank of the Government’s argument that they have got it right in the Bill.
The second point the Minister made related to the administration of marine accident inquiries. The RMT now says, having considered all these issues, that:
“This line of argument is consistent with that made by the Chamber of Shipping in support of abolishing the Duty. The argument goes that removing the Duty is just a bit of ‘tidying’ to bring the Merchant Shipping Act into line with recently revised guidance … on marine accidents and investigations. RMT continues to reject this line of argument for the following reasons, none of which were satisfactorily answered by the Minister … in Committee”.
I am giving the Minister plenty of warning now about the answers we want today.
As the Government acknowledged in Committee in the Commons, the Marine Accident Investigation Branch is not an enforcement or prosecuting body. Its role is restricted to establishing the causes and circumstances of an accident in the aftermath partly to prevent future accidents. The duty to reopen investigations under the 1995 Act therefore remains an important statutory safeguard over the longer term if the initial accident investigation board investigation is found to be lacking.
Secondly, the duty in the 1995 Act is not regulatory goldplating. Paragraph 6 of the Marine Guidance Note 458 states:
“The Regulations … set out requirements for reporting accidents and serious injuries. They do not require the requirements of formal investigations or other public inquiries”.
Therefore, the duty in the 1995 Act is untouched by recent changes through regulations, and needs to be retained in the event of marine accidents involving UK-flagged vessels, particularly in the deep-sea sector.
The third point to which the RMT objected was that, as they said:
“Abolishing the Duty is a threat to seafarer safety. Re-opening an investigation is rare but occasionally necessary and should not be down to the whim of an individual Secretary of State. On the occasions that such an investigation has been opened it has led to significant improvements in safety, ranging from the structural design of vessels to the survivability of serious weather-related incidents at sea”.
I was going to go into the details of what actually happened as a result of some of these investigations, including more than 20 different recommendations being made about the safety and design of vessels, all of which were accepted.
Therefore, this is not a little bit of tidying up. I can understand how it got done with the Red Tape Challenge. I cannot keep criticising it all the while, it is just that I know of one particular incident relating to the Red Tape Challenge which arose from nothing more than the anecdotal views of a couple of environmental health officers on food safety, which all of a sudden became a great cause celebre. Well, it was nothing of the kind. There was no evidence.
There is no formal consultation on this, by the way. That is the other issue. That is noted in the back of the Joint Committee’s report: there is informal consultation and a reference to the Red Tape Challenge, which is a bit suspect. The amendment is the second-best amendment, but certainly covers the point, maintaining a secondary investigation funded by trade unions and other organisations representing families of victims of the accident.
The Government have got to have a much better case than they have made so far in the Commons for dealing with this. It would be much better if it were dealt with in the tranquillity of Grand Committee, in an orderly fashion. I presume that they have had time to think about this. It was raised in the Commons, so it is not a surprise that it is being raised in the Lords. I flagged up at Second Reading that I thought that the House should look at it. I am hoping that the Minister has got some considered views from, I presume, the Department for Transport and others. I beg to move.
First, I congratulate my noble friend Lord Rooker on his usual diligence and research, looking into the details of why the Government want to remove this measure. Indeed, he is right: a lot has come from the inquiries, and I will refer to some of them. I support the deletion of this clause, which would repeal the Merchant Shipping Act 1995. Perhaps I should declare an interest, as I was a seaman for 10 years, a union official, and spent 40 years as a Member of Parliament, 10 of which as a Minister of Transport. I had to order some of these inquiries, and have experience of them, which I will bring to the Committee’s attention.
We are dealing here with the Secretary of State’s power to order a re-hearing of a formal investigation if there is new and important evidence. It is to that judgment that I now address some of my remarks: about how, given that discretion, you may make the wrong decision, and whether it weakens inquiries to simply remove the present duty to order a re-hearing, as the clause would do.
As the former Secretary of State with responsibility for these inquiries and requests for re-hearing, I think that we are all agreed that making judgments about these matters is a duty upon the Secretary of State. The clause would make it discretionary. That is what causes me concern.
I see in the nature of any re-hearing and use of discretionary powers, one is to take into account how long it is since the original inquiry before one is requested to have a re-hearing. The argument is often that it has been too long since the accident, people’s memories are not clear and it is not wise to hold an inquiry under those circumstances. Making a judgment as to the practical value of a re-hearing and what we would gain from it if, indeed, we have one are for the Minister to take account of in his considerations. But, at the end of the day, I should have thought it important, if there is to be a re-hearing, to have some idea of what one wants to find out. Can it be done by discretion? That is why we have inquiries. That is where the judgment comes in—to find out what the facts are. I suggest to noble Lords, and I hope that I will be able to prove, that the only thing a Minister can do at his discretion is to take the advice of his department, which is not always impartial in some circumstances, as I can show. A Minister is therefore highly influenced by the advice he receives from the department.
I should therefore like to present to the Minister and the Committee a couple of experiences that came out of three inquiries. I do not have to go into the detail. Some will already know them, and my noble friend has already mentioned one—the “Derbyshire”, which was a bulk carrier. Another vessel, a fishing trawler, was the “Gaul”, and the third, which most will know about, was the terrible tragedy of the “Marchioness”. When I came into government in 1997, I had to order a re-inquiry into the circumstances of those three incidents.
A long period of time was involved in all those because, after the vessels sank, no vessel was in evidence. It was not known where they were and they were only found later. The “Gaul” went down in 1974 but she was not found until some 18 years later by a TV company that went looking for her. The “Derbyshire” was another case of a vessel that went down and was found many years later, after money was provided from the trade unions and the European Community—to which my noble friend referred. They were pressing hard to get an inquiry as to where the ship was. She sank off Japan, with a loss of 44 lives, most of them from Liverpool, and people wanted to know why. I shall come to the “Marchioness” which was a particular case.
However, in the case of the “Gaul”, which went missing in 1974, she was found in, I think, 1997, with a loss of 36 lives. There had been an inquiry. Inevitably, if the vessel could not be found, one could probably say, to the best of one’s knowledge, “The vessel is not here but she went down in bad weather”. That seemed to be a reasonable conclusion. If there was no further information and no vessel, one had to arrive at that conclusion—and that is what it was. I have to tell noble Lords, as regards the “Gaul”, one has to take account of the relatives. Not much is said in here about the concerns of the relatives. They certainly want to be satisfied that everything has been done about it.
The “Gaul” case is peculiar because British trawlers were used as spy ships in the North Sea, and the Government admitted that to me in Answers to Parliamentary Questions at the time, in the 1970s. The relatives thought that the ship had gone down because she had been torpedoed on a spying mission. It sounds outrageous but that is what they believed. To satisfy that great concern, and knowing that such vessels had been used for spying off the coast of Russia, I ordered the inquiry—more to see if we could get the truth. I could only do that once the ship had been found, as happened many years later. When we investigated, there was no damage from any kind of military action; it was obvious that the ship had been overwhelmed. Anyone who knows about the fishing industry knows that the fish is wound in up the back and side, and if the sea is going the wrong way it fills that type of vessel which goes down very quickly. All the evidence showed that there was insufficient security covering the ship. She had taken a hit by a large wave and gone down. The circumstances of the loss due to the weather were confirmed, as the original inquiry had said in the absence of the ship. But we were trying to satisfy the relatives who wanted to know what happened. That is important in these circumstances.
That was the “Gaul”. I mentioned three ships, and the next was the “Derbyshire”, which sank off the coast of Japan in a typhoon. The first inquiry concluded that there was bad weather but went on to say that it suspected bad seamanship. That caused a great deal of concern among seafarers and their families.
Eighteen years later the ship was discovered after the trade unions went looking for it. Indeed, I had to make a request to Tony Blair who rang Clinton to ask whether we could use the very famous searching mechanisms of Woods Hole. That institution originally found the “Titanic” and it found the “Derbyshire”, which was smashed to bits. It managed to bring the ship together, and there was a remarkable exercise by the investigation branch in Britain to look at what had happened to it.
I do not have time to go into the technical issues but the point is that the re-inquiry then discovered the circumstances. It was not bad seamanship which they were led to believe because a rope hold had been left open and not tied down. Then it found that seamanship was not the problem but a piece of equipment on the ship had led to the loss of the vessel. It was controversial at the time because the shipyards were privatised and they had to give a guarantee that if there was negligence on the ship there would have to be compensation, which the Government would have to pay, not the people who bought the yard.
That is the background that Ministers have to consider when looking at inquiries. The “Derbyshire” case led to changes in the structures of vessels. Two or three of these bulk carriers had gone so it was right to hold the inquiry. The decision of the original inquiry had to be changed and, at the same time, we learnt about the safety of bulk carriers. Those of us in the industry saw an awful lot of bulk carriers, largely off Australia, but we always suspected that there was something wrong with the design.
Then there was the “Marchioness” and the loss of 51 lives. That was a terrible tragedy. In that case the Government did not hold one inquiry, never mind a re-inquiry. I constantly took delegations to Mr Parkinson who was then the Secretary of State. The relatives wanted an inquiry. You might ask why there was not a first inquiry. The Minister decided not to have one. He took the view that there was a court case under way on the “Bowbelle” and if it hit the “Marchioness”, that would lead to a problem. I said at the time of the accident in a letter to the Times that there looked to be negligence on behalf of the department. Why? Those launches had dance decks. When a new deck was put on an old ship the department had to make a decision on stability and safety. In this case the “Bowbelle” came up from behind and the skipper could not see because of all the dancers who were between him on the bridge and the stern.
In the week that the “Marchioness” went down I said that the department had some responsibility for agreeing to the design and the change to the vessel. The Minister had to make a decision about the inquiry. He said that there was nothing to learn from an inquiry. I pointed to a number of inquiries that changed safety procedures in the Thames. If a Minister has discretion in such cases, presumably his department has to be impartial. We discovered that there had been a mistake in the design of the vessel. The legal department told me that we could not have an inquiry because it was too long since the vessel went down. That is the kind of advice you would get from a Minister to another Minister—the memories will not be there. The legal people said to me, “You can’t get the legal power”. I had to go to the Lord Chancellor and get his view and tell my legal department that it was wrong. I ordered that inquiry.
These are the conflicts. A legal department could say, “We might have some responsibility here. We had better not have an inquiry—let’s leave it to the discretion of the Minister”. There were statements from the Minister at the time, and even though there was a duty to carry out an inquiry, he did not do so.
The point of using these ships as examples is that it was left to the discretion of the Minister. There are varying qualities of Minister, including me. One way or another we have to make a judgment. It is not a good idea to give discretion to a Minister who invariably does not come from a background of shipping as I do, which can be measured. Ministers are politicians who come from various backgrounds. He is reliant on experts but should exercise discretion over whether there is anything to be learnt from reopening an inquiry. How do you know that unless you make some inquiries? Do you just make a judgment on something and say, “I have a feeling about this. I’ve read about it in all the papers. They suggest that we should not reopen the inquiry and I won’t”.? You need the facts. How the heck do you get the facts unless they are obtained through investigation and inquiry? Are we actually saying that the Minister can make a decision without knowing the facts? I am not saying that all Ministers necessarily take the advice that is offered. I was given good advice by the department. However, when a decision is left to a Minister’s discretion, he may be overwhelmed by the experts around him whose interest is not to have a further inquiry, as I have shown in the examples I have given.
I had to come to the House of Commons and apologise to relatives and to everybody because we had found that the department was responsible. The only issue that we are considering here is the discretionary power of a Minister to reopen an inquiry. At the end of the day, why are we doing this? I do not know whether the research undertaken by the noble Lord, Lord Rooker, shows how many times inquiries have been reopened. There cannot be many of them, so why are we doing it? If this deregulation measure is about cost—not the Red Tape Challenge that the noble Lord, Lord Rooker, was talking about—we are really saying that the department has to make a judgment in these cases and sometimes it has a vested interest. It also knows that any measures recommended by the inquiries mean that the department has to introduce changes. Of course, it has, but you cannot leave this issue solely to discretion rather than a duty to act. Can the Minister tell us how many times inquiries have been reopened? It cannot have been done many times. I did three in one go. I see the Minister indicating that four such inquiries have been reopened, but over how many years? As I say, I did three in one go, but that is because the Government of the day refused to reopen the relevant inquiry.
When I became Deputy Prime Minister in 1997, I told the relatives that we would hold an inquiry. The essential issue is what we learn about events and safety from relatives and seafarers. What we are being asked to do here is to change a rarely invoked requirement that was placed on government in the Merchant Shipping Acts. Now the decision to act is to be left to the Minister’s discretion despite all the different pressures to which he is subject. Can noble Lords really believe that there was no inquiry into the “Marchioness” case until I ordered one, despite all those people dying in that terrible tragedy? Some 50 or so lives were lost. Therefore, I do not believe that this should be a discretionary power but rather a requirement and a duty.
I hope the Committee will say that we should leave the power as it is and not change it as to do so will diminish safety and deny relatives the right to know what happened to their family members—knowledge which could be gained from such an inquiry. The relatives of those who died on the “Marchioness” were upset because the coroner would not allow them to see the bodies. Why would he not allow them to see the bodies? Why did he refuse to co-operate? It was because the hands and feet had been cut off and he did not want the relatives to see the bodies with no hands or feet. That was the practice on the Thames at that time. Relatives are entitled to know the truth and that can best be delivered by an inquiry.
I have been involved in merchant shipping all my life. I remember getting into a fight over the Merchant Shipping Acts—the old Master and Servant Acts—with the then Labour Government in 1966, so I have lived with them all my life. There are now hundreds of cruise liners with some 1,000 people on each. So millions of people are travelling on these cruise liners and the death rates and incidents and number of people going missing from ships is growing at an alarming rate. A campaign is now going on in Liverpool to trace a nursery steward on a Disney ship, Rebecca Coriam, who was reported missing from the ship. There was no inquiry or investigation. The Government were asked why nothing was being done about this British citizen. However, there was no inquest. She was on a ship that came under the jurisdiction of the Bahamas, but the rules there are pretty slack. By the way, the three “Queens” of our big fleet have gone to the Bahamas for tax reasons where, to my mind, there is very informal safety regulation. The campaign to find Rebecca is being run in Liverpool. I know the Government have refused to do anything about an inquest. Why can we not have an inquest for a British citizen?
In America they have got concerned about it so they produced a piece of legislation in 2010. They are extremely concerned about the increasing number of people going missing and rapes and murders occurring on these ships. Rockefeller has now brought out a Bill that requires every ship under whatever flag to report what happens to any citizen of America to the FBI and the FBI then holds an inquiry. It is required to do it. Over here we look the other way and will not even have an inquest. That is quite wrong. There are thousands of British citizens going on these ships under different flags of different countries with different approaches to the law. If you are talking about regulation—I cannot expect the Minister to answer that; perhaps we could arrange a meeting and talk it through properly.
It is the same Act, by the way, that was used to change some regulation. Here it is—the Government have just passed it. I see they have increased the compensation on ships if you lose your luggage. Should we not be giving more attention to the lives on the ship rather than the ruddy luggage? This is a regulation that has just been passed by this Government. Fine, great—have a look at the inquest procedures and look at what we can do about those. Bill Anderson is leading the campaign, doing a wonderful job, bringing the ropes together. We have no satisfaction on this. We are still on to the Foreign Office and the Government. We need to get an agreement about it.
If British citizens, crew or passengers, go on cruise liners, and they are lost, we should have someone responsible, like the Americans, to report to our authorities and then tell the relatives what happened, to the best of their knowledge. We do not have that at the moment so if we put all these things together, let us look at regulation. You can take it a bit further if you want but what we are choosing to do now by taking this right away is dangerous. It is bad for relatives. It does not tell us anything about the safety. It leaves it to the political judgment—and we are all politicians here. As we found with the “Marchioness”, the advice came from a department that had been guilty of the loss of that vessel, for which I had to apologise, so it was no surprise that it did not want an inquiry. This would make it easier for such departments. I am against the clause and I hope we delete it.
My Lords, those two powerful speeches have made the case that we wish to make from the Front Bench. We also hope to persuade my noble friend Lord Rooker than objecting to the clause itself is in fact a stronger position than his amendment. I hope the speeches have convinced a very significant number of Members of the Committee, perhaps even the Government, to think again, but they have also reduced the length of my speech because all the issues have been more than adequately covered.
I emphasise that the effect of the Government’s legislation would be to downgrade rights that are derived from a duty on the part of the Minister to a mere choice by him, which is the emphatic point that my noble friend Lord Prescott was making. There is an obvious flaw in the Government’s proposals. My noble friend has made his case already but I will show how much we on the Front Bench are concerned about this. It is not clear how the Secretary of State can be expected adequately to assess the existing evidence in order to suspect a miscarriage of justice without investigative help by the very accident investigation branch itself. As my noble friend Lord Prescott has indicated, there are very good reasons why the branch should be reluctant to participate in this. The work will now be undertaken by the branch only if the Secretary of State requests it because he already suspects a miscarriage of justice. That is a long shot in circumstances where he has no or very little evidence before him at that stage. In addition, reinvestigating might unearth difficult truths about the adequacy and focus of previous assessments by officials and the department when making the initial judgment. Any Minister should, of course, be able to process issues without fear or favour, but there is bound to be an inhibition when he is dependent on the department for certain facts.
The justification that Ministers have given for the change is entirely spurious. They have claimed that it is to safeguard the human rights of officers involved in accidents, whose careers could be undermined by an automatic investigation organised by the Minister. It might have that advantage, but it would block off new evidence to support future safety measures and which could tell families what really happened. We know, from the illustrations given today, two things from the “Derbyshire” inquiry. First, the families of those who were lost got to hear what had actually happened 20 years later, as opposed to the original depiction. Secondly, future safety measures were inaugurated by my noble friend in the department as a result of the evidence of why the ship had sunk.
I believe that the clause should be opposed and not stand part of the Bill.
My Lords, under the Merchant Shipping Act 1995, the Secretary of State is obliged to reopen a formal investigation either if new and important evidence that was not available at the time of the original investigation becomes known, or if there appear to be grounds to suspect a miscarriage of justice. For any other circumstances, the Secretary of State has a discretionary power to reopen an investigation. There is no time limitation on the current obligations to reopen a formal investigation. This is surely right and proper where there are grounds to suspect a miscarriage of justice, and the Bill most certainly does not seek to change this duty in any way. However, in other cases, the potential value of reopening a formal investigation in terms of enhancing safety for today’s mariners may—and I emphasise may—diminish with the passage of time after the loss of a ship.
The design of ships and their equipment, industry crewing and operating practices, continually change and develop. By the time that new and important evidence is found, these matters may be very different from those that applied at the time of an accident. That is not to say that one can draw a specific time limit on the usefulness of an inquiry. Each case is likely to be unique and should be considered on its own merits. This would be preferable to the current blanket imposition of a duty that may not always be beneficial for maritime safety, which is rightly our priority. Therefore, Clause 40 is drafted to enable the Secretary of State to take a considered view on the likely benefits of reopening a formal investigation in circumstances where new evidence comes to light. To be clear, a formal investigation, the subject of this clause, is very different from the safety investigations undertaken by the Marine Accident Investigation Branch. The noble Lords, Lord Rooker and Lord Prescott, mentioned that. The Marine Accident Investigation Branch’s sole objective is to determine the causes and circumstances of an accident to prevent a recurrence; it does not seek to apportion blame or liability. I re-emphasise that the clause does not affect these safety investigations, nor situations in which new and important evidence is found from accidents that have been subject only to a safety investigation. Of course, the Marine Accident Investigation Branch acts of its own decision.
In contrast, formal and reopened formal investigations are proceedings which, as well as probing the causes of an accident, can apportion liability and blame, censure ships’ officers, or cancel their certificates of competency. There have been four since 1997: a formal investigation into the loss of the “Marchioness”—the noble Lord, Lord Prescott, spoke very powerfully and with great experience of that tragedy—and reopened formal investigations into the “Derbyshire”, “Gaul” and “Trident”. The three reopened formal investigations all related to accidents that occurred prior to the establishment in 1989 of the Marine Accident Investigation Branch. With most accidents since then being subject to safety rather than formal investigations, increasingly any reopened formal investigation would relate to more historic accidents.
There is no question that some such investigations can be hugely important and beneficial, as the noble Lord, Lord Prescott, said. The “Derbyshire” inquiry came only 20 years after the accident, when sister vessels were still operating. It found the cause of the sinking and made 24 safety recommendations—a point referred to by the noble Lord, Lord Rooker.
Yes, it was the reopening of the inquiry, and it happened 20 or so years after the accident.
I stress that, even if there were no obligation to reopen an inquiry, I would strongly expect one to be called if similar circumstances to the “Derbyshire” applied. Of course, I acknowledge the importance of the reopened investigation into, for instance, the loss of the “Derbyshire” both in terms of providing answers to the bereaved families of those who lost their lives and in contributing to enhanced maritime safety for the benefit of all mariners.
I understand all the concerns expressed by the noble Lord, Lord Rooker, in tabling this amendment and by the noble Lords, Lord Davies of Oldham and Lord Prescott. I assure your Lordships that any decision on whether to reopen a formal investigation would be taken very seriously, taking into account the views of all interested parties, including, of course, trade unions.
During consideration of this clause in the other place, the then Solicitor-General explained the principles of how the Secretary of State would approach the decision. My honourable friend confirmed that each case for reopening would be considered on its individual merits. Such considerations would include, although they would not be limited to, the likelihood of lessons being learnt that would improve the safety of current marine operations and ship design; the likelihood of being able to identify the true cause or causes of marine accidents where these had been particularly uncertain prior to the evidence being found; and the likelihood of uncovering information that would provide a deeper understanding of the causes of other marine accidents. In short, Clause 40 would allow the Secretary of State to consider the individual circumstances of a formal investigation when new and important evidence was found, taking a rounded view of the best ways to improve maritime safety.
The noble Lord, Lord Prescott, in referring to his experience, expressed concern about the impartiality of the department and the question of fault. Now, the Marine Accident Investigation Branch must undertake impartial investigations and assess evidence, and indeed it could well criticise any department at fault.
I think that I may need some advice from behind on that. While I am receiving that, I should mention that the noble Lord, Lord Prescott, referred to what I would describe as “crimes at sea”, which the Government obviously take very seriously.
The Government have promoted guidance on the preservation of evidence at crime scenes with the International Maritime Organization. In our view, these are matters that we must take forward on an international level, with international agreements. I very much understand the points about preservation of evidence and about offering information and understanding to families with loved ones who are in this position.
If I am not given the information now that I hope I might be about to be given, I will be in touch with the noble Lord. However, given all the circumstances, I ask the noble Lord to withdraw his amendment.
I thank the Minister very much for giving a response to the last point—I could not expect him to have all the details, but at least he is aware of the problem. However, I still believe it is the right of every British citizen to have an investigation or an inquest—if, for example, their daughter has died. We should surely be entitled to report back to the people and have our Government involved in an inquest, as the Americans are doing. Our Government say, “It happened on a ship registered in the Bahamas”—but the authorities there have not had an inquest, so we should do it. I do not expect the Minister to give an answer, as it is a highly technical point, but perhaps he could just write to me with information from the department as to why we cannot have an inquest on a citizen who has gone missing, whatever the circumstances. The Americans have acted on it, and the least we could do is offer an inquest in which our own police are involved.
My Lords, I sincerely thank the Minister for his response. This is not an area I have any detailed knowledge of whatever, but I understand that over the years there have been considerable improvements, and heaven forbid there is another big loss. Part of the briefing that I have is about the size of ships. The “Derbyshire” remains the largest UK-registered ship to have been lost at sea—I was unaware of that. It was big, with a gross tonnage of 91,000. As my noble friend said, at the time the bulk carriers accounted for only 7% of the world fleet but for 57% of lost ships, so there was clearly something wrong there that had to be looked at. I find it astonishing that it was found on the sea bed at 4,200 metres. That is an astonishing depth at which to locate and recover a ship.
I will refrain from saying too much about the “Trident”, because with my noble friend here I am trying to cut down my material, but the Minister referred to it. The “Trident” was lost for 35 years. Was there not a sniff at one time that because it had been lost for so long, the cost of reopening the case was considered by some people disproportionate to the potential benefits? Only one recommendation came out of that, while 22 came out of the “Derbyshire”. The Government’s argument—my noble friend raised this because of his detailed knowledge—completely ignores the benefit of emotional closure for the families. The Minister did not refer to that at all, but it is a matter which should be addressed. If there is a sniff about cost here, I would like some further and better particulars before Report. No one is making a cost argument, I am just naturally suspicious and it is a factor that I think has to be considered at the back of our minds.
I am on record as supporting the Bill and am very much in favour of deregulation. The Government do not go far enough sometimes, and the Bill introduces regulation to avoid regulation, so it does bits of both. However, the issue here, unlike other parts of the Bill, is that we know that people have died or have been missing for decades. As a result, we know we have the issue of the families, which should be considered. There are very few cases, as has been said.
Finally, my noble friend is quite right about the discretion of argument. Just looking around the Room, I see former departmental Ministers. I do not know about the noble Lord, Lord Wallace, but there is a difference in the coalition between being Whips and being answerable for other Ministers; I fully accept that. My noble friends Lord Whitty and Lord Prescott and I have been departmental Ministers—I was at a much lower level than my noble friend Lord Prescott—but the issue of discretion is interesting. You are allowed, as a Minister, to choose the colour of your car.
I did not mean to raise that. My driver always chose the car; but I was allowed to choose the colour. When it comes to big issues where there is discretion, the lawyers pile into the offices, because they are always worried sick about setting a precedent. They will admit that you have discretion and say, “Minister, it is your decision. However, our job is to advise you”. You get this pile of stuff about the pros and cons of creating a precedent. You are almost warned that you are not allowed to create precedents; it goes against the grain. Then their advice will be given to you in writing as part of the audit trail for the Permanent Secretary. If your decision leads to public expenditure that they might not agree with, that note will go to the National Audit Office and the chairman of the Public Accounts Committee.
So all the pressure on the Minister is not to do it: do not use your discretion. We are talking about inquiries. Inquiries cost money; we know that. I have been in six different departments and I have watched that happen in each one—except in Northern Ireland, which was slightly different. There is pressure not to use discretion. I am not saying that it is never used, because clearly it was in the case raised by my noble friend, and I have seen it in other cases, such as when I was at the Home Office with David Blunkett.
When it is legal, it is clear cut. You think, “There is no decision to take; it is taken for me”. That is where seniority comes in. When you are considering chief executives, how much discretion do they have? If they do not have a lot of discretion, the pay grade is lower than for those who have discretion. Those who have discretion are, by and large, pressured in a very subtle way not to use it. As I said, it is about the lawyers, the accounting officer’s certificate and the Perm Sec. Discretion is there on paper. Good examples can be given—I freely admit that—where Ministers exercise it, and it is right and proper that they do. I am just saying that my experience across departments was that, by and large, the pressure is not to use your discretion.
In this case, I have come to the conclusion that we should leave this well alone and I hope that in due course, the House or the Government—it would be better if the Government did it—remove the clause or substantially rewrite it. I hope that that is the message that Ministers will take back to the department: that the provision is unsatisfactory. Obviously, we will return to it on Report. I beg leave to withdraw the amendment.
Amendment 62 withdrawn.
Clause 40 agreed.
Clause 41: Repeal of power to make provision for blocking injunctions
Debate on whether Clause 41 should stand part of the Bill.
: My Lords, the noble Lord, Lord Holmes of Richmond, is not in his place at the moment. He enjoined us to pay respect to the wonderful skills of the Minister who is about to respond to his fourth topic of the day. Having moved seamlessly from sport to parking and to marine inquiries, he now has to deal with intellectual property and, in particular, the blocking of ISPs—not an easy topic, as I know that he knows, but one that has to be dealt with as we consider Clause 41.
The clause would remove a power from the Digital Economy Act 2010 to make regulations containing site-blocking provisions. The Act gives courts the power to grant injunctions requiring internet service providers to block access to specified sites to prevent the infringement of copyright. The power was included to enable copyright owners to tackle sites based outside the UK that offer their copyrighted material illegally. Copyright owners are not able to take action against those sites in the UK and find it difficult to pursue them in their home territory. It was therefore considered reasonable to provide the ability to block access via internet service providers.
After the Digital Economy Act came into effect, the Government asked Ofcom to review the efficacy of such site-blocking injunctions, if they were to be made. I will refer to its report later. Copyright owners had begun successfully to utilise the pre-existing provisions in Section 97A of the Copyright, Designs and Patents Act 1988 in the interim, and had applied them to site-blocking injunctions. Since Section 97A of the CDP Act provides remedies for copyright owners, we accept that there is at least a case for the clause to be included in the Bill. However, as I have pre-warned the Minister, this is a complex issue, not least because how we legislate for copyright infringements is central to our creative industries. As this repeal has wider implications, we need to be careful about how we approach this issue.
Copyright is a key part of the creative industries and the digital economy that drives them. They provide an estimated 1.5 million jobs, 10% of the economy and more than £36 billion of gross value added. However, it is wrong to think that intellectual property is the preserve simply of specific creative industries, such as design, film, music and broadcasting. Our USP in this area is the difficult to find juxtaposition between creativity and innovation, and the impact on production and manufacturing. The fact that we have a strong creative industries sector, combined with a strong science and research base and world-beating manufacturing sectors, including automotive, construction, aerospace and pharmaceuticals, means that our economic model—indeed, our whole future prosperity—is very much dependent on IP.
The first problem with the Government’s approach is that, despite several significant changes to our copyright regime in primary and secondary legislation in this Parliament, they have no overarching vision of this sector. Everything in this area is compromised by the split in responsibilities between DCMS and BIS, whether it is the failure of the IPO to speak up for creative industries in a general sense; the mess made by the Government in implementing the Hargreaves recommendations; or the worrying approach to copyright apparently being adopted by government in Europe.
Under the previous Government, the Communications Act 2003 set out a 10-year vision that brought together existing communications regulators for telecoms, television and radio to address the then new concept of convergence. There was another review in 2009, which looked forward a further 10 to 15 years. The previous Government wanted to ensure that legislation kept pace with technology as far as possible. That is a key point of the clause: the opportunities and challenges of technology lie at the heart of the malaise that is attacking the value of online copyright. When in government, we wanted legislation to keep pace with and not to prevent change or innovation, but to provide the certainty and legislative framework in which competition could flourish, new businesses could be established and innovation could be harnessed to put us in first place in the global digital race.
I have some questions for the Minister. If the Government want to delete Sections 17 and 18 of the Digital Economy Act, are they confident that they are putting in place the necessary legislative framework to enable our digital economy to grow, so reliant as it is on online copyright? Where can we find a vision of our future digital economy and the role of online copyright in it? We have been promised a Green Paper and then a White Paper since 2010; indeed, there were rumours and sightings of drafts at one point. At one stage, publication of a White Paper was promised every month for almost an entire year. The interim discussion paper, Connectivity, Content and Consumers, simply cobbled together a few existing initiatives and said that the Government would work with industry to develop a strategy by the end of 2014, which is about now. Will the Minister tell us where we are with the long-term strategy for connectivity, content and consumers? It is important to understand what it is.
The rationale for this deregulatory measure is that a clause in a Bill drafted well before the digital age is being used to protect against modern problems. Would it not have been sensible to have approached this from the other direction: to have used the DEA provisions, which were specifically drafted to achieve the aims outlined in the Bill, as a long-overdue trigger to implement the other measures in the Digital Economy Act that could have benefited our creative industries?
As I argued earlier, the proper protection of IP is critical for many sectors of our economy. It is about incentivising creativity and innovation by allowing an appropriate reward for the risk that inventors, creators, musicians or performers take in generating that IP. Protection of IP is not about protecting obsolete business models, but about protecting new and emerging business models when they suffer copyright theft or other effective criminal activity.
Studies by the film and television industries indicate that more than 10% of UK adults consume infringing content online, and that piracy costs of these industries are more than £535 million per year in the UK alone. We have more evidence from Ofcom, which estimates that in the last three months, 280 million music tracks, 52 million TV programmes, 29 million films, 18 million e-books and 7 million games were illegally downloaded. The industry estimates that over the whole Parliament, the Government’s delay in effectively enforcing online IP will cost it more than £1 billion.
The Government propose to repeal these provisions in the Digital Economy Act, but do not give any real indication of what they will do to protect IP in the future. Clause 41 repeals the power to make provisions for blocking injunctions in Sections 17 and 18 of the Digital Economy Act. However, these sections contain wide powers that are not found in the Copyright, Designs and Patents Act 1988. How could they be? It was drawn up well before the digital age. The sections contain powers to make regulations that could grant courts the power to order internet service providers to block websites that enable illegal downloads or host significant material that is not copyright, or copyright-infringing. Section 18 also specifies that any such regulations would be subject to the super-affirmative procedure, which means that the regulations must be expressly approved by both Houses of Parliament before they can be made. Will the Minister explain why he feels that the clauses in the Copyright, Designs and Patents Act 1988 are sufficient for the digital age and why Parliament is being excluded from this process of blocking websites?
The Minister will probably refer to a report by Ofcom in 2011 when it was asked to review the practicability of the DEA provisions. In that report, Ofcom noted that none of the blocking techniques,
“is 100% effective; each carries different costs and has a different impact on network performance and the risk of over-blocking … all techniques can be circumvented to some degree by users and site owners who are willing to make the additional effort … the location of infringing sites can be changed relatively easily in response to site blocking measures, therefore site blocking can only make a contribution if the process is predictable, low cost and fast to implement … to be successful, any process also needs to acknowledge and seek to address concerns from citizens and legitimate users, for example that site blocking could ultimately have an adverse impact on privacy and freedom of expression”.
These are good points that need to be taken on board. I invite the Minister to respond to them. I hope that he will also recall that Ofcom acknowledged that,
“site blocking could contribute to an overall reduction in online copyright infringement”,
even though it said that Sections 17 and 18 of the 2010 Act were not the full solution. However, I note that in August 2011 the Business Secretary said:
“There are test cases being fought in the courts, so we’re looking at other ways of achieving the same objective, the blocking objective to protect intellectual property in those cases, but in a way that’s legally sound”.
So can the Minister explain why there has been a change of plan here? In 2011 the Government were apparently searching for even better ways to achieve the objective of Sections 17 and 18 of the DEA Act, but in this Bill they say that injunctive relief using existing 25 year-old legislation is the only solution they need. Is this really so? Is it not clear that what this clause exposes is that the Government have failed to come up with a legally sound, effective way of protecting intellectual property, something the industry says that it needs?
The House of Lords Communications Committee was invited by the Joint Committee that scrutinised the draft Bill to comment on Clause 41. In its response, it noted what it described as the Government’s undertaking in 2011 to do,
“more work on what measures can be pursued to tackle online copyright infringement”.
Will the Minister explain precisely what further work the Government have done on this issue? Are they intending to do any more? Is this it? This decision hardly meets the need for the overarching approach to securing the future of our digital economy that we were promised.
Repealing Sections 17 and 18 of the Digital Economy Act is the wrong approach. It might have detrimental consequences in terms of both perception and reality for the digital economy. Perhaps the Government are no longer engaging with the matter. Given the disarray in the Government's approach to the digital economy more generally, we find it difficult to support Clause 41. The contrast between the previous Government, seeking out the future, looking forward and acting in advance of the technology to secure and protect jobs in the valuable digital economy and this Government, waving the banner of deregulation to hide their inability to act, could not be greater.
My Lords, I might agree with a number of points that the noble Lord, Lord Stevenson, made, but I particularly agree that this is a complicated area. The point of this reform is to remove a power from the Digital Economy Act 2010 to make regulations which would allow the court to grant injunctions requiring service providers to block access to specified sites in order to prevent the infringement of copyright. That is the purpose of this reform. There are wider debates about the importance of the creative industries and the Government’s programme to ensure that the creative industries remain part of our economic revival, which is a point that the Government are working on. I want to concentrate on the purpose of this part of the reform.
The Government have no intention of having regulations following the Digital Economy Act because we believe that access can be, and is in practice, blocked through a simpler mechanism via the legislation that the noble Lord mentioned, the Copyright, Designs and Patents Act 1988. The provisions being repealed were inserted because copyright owners were concerned at the time that, although the legislation provided them with a tool to tackle unlawful peer-to-peer file-sharing, it did nothing to help them defend their copyright against sites dedicated to infringement, which were generally operated outside the UK. Copyright owners made a case that the power in Sections 17 and 18 of the Digital Economy Act should be included to enable them to tackle such sites. They were unable to take action against the sites in the UK and found it difficult to pursue them in their home territory. The solution was to provide a mechanism through which copyright owners could apply to the High Court for an injunction requiring internet service providers to block access to identified sites for the internet service providers’ subscribers.
However, as the noble Lord, Lord Stevenson, said, following the Digital Economy Act being enacted, the Government asked Ofcom to carry out a review of the efficacy of such site-blocking injunctions, were they to be made. Ofcom concluded that in practice such injunctions were unlikely to be effective, largely due to the time an application would take. This is stating the obvious: very often people will want to ensure that there is a remedy that is as speedy as possible when time is of the essence. In Ofcom’s view, it would be no improvement on the existing Section 97A provisions under the 1988 Act. On that basis, the Government announced that they had no intention of making such regulations under DEA.
Moreover—this is important because the noble Lord also referred to this—copyright owners began to utilise other provisions in Section 97A of the 1988 Act successfully to apply for site-blocking injunctions. This rendered the regulation-making powers in the DEA unnecessary. Such provisions had not been used before since copyright owners were unsure how the court would interpret them and were worried about potentially being left in a worse position.
I want to emphasise that it is absolutely not the intention of this Government to put at risk the health and growth of the creative economy, an area where this country has a real competitive strength. If I were to take a different view with the noble Lord, I think the record of this Government has been extremely strong during a very exciting time of change in this area which is vital to our economic strength and recovery. However, Section 97A of the 1988 Act is now providing remedies for copyright owners and is doing so in an increasingly efficient and economical way. Economy in seeking redress is important. Copyright owners are content that the provisions work and have now used them to block around 40 sites. That being so, and in light of the doubts about the practical usability of the power in the DEA following Ofcom’s review, we believe there is no need for the DEA power.
The noble Lord accused the Government of having no overarching vision or strategy. The Government are absolutely clear about the critical importance of the creative industries. We have a clear view of the continued development of this industry. Those visions were set out in the connectivity, content and consumers papers which considered a wide variety of factors relevant to the issues. From my dealing with Ministers in the department, I know that this is a sector where there are huge opportunities that we and people running businesses must grasp. That is very much what we seek to encourage.
On the development of the legal framework for protecting intellectual property, the repeal of these provisions does not suggest in any way that the framework for regulation is flawed of IP. Rather, it shows that the existing framework is working. This repeal provides certainty about the framework being used by those concerned. The remaining provisions of the Digital Economy Act are unaffected and should industry-led voluntary work be ineffective, we would return to those remaining provisions.
The noble Lord also asked whether the 1998 Act, which the industry is now using, is sufficient for the digital age. Put simply, the answer is yes. That is precisely why copyright owners are now using that remedy for the rapid streamlined process which gives them what they need. Although I agree with the noble Lord that we need to keep these matters very closely under watch and to make sure that we are ahead of the curve as a country in the development of something so crucial, from what I understand, those copyright who which are concerned about infringements are using existing legislation satisfactorily.
Clause 41 agreed.
Clause 42 agreed.
Clause 43: Household waste: de-criminalisation
62A: Clause 43, leave out Clause 43 and insert the following new Clause—
“Household waste: reduction in statutory penalty
(1) Section 46 of the Environmental Protection Act 1990 (receptacle for household waste) is amended as follows.
(2) In subsection (6), for “3” substitute “1”.”
I rise to move Amendment 62A and will speak more generally to oppose the clause—indeed, the first part of the amendment has exactly that effect, as it would delete the clause.
Earlier this afternoon we had a pretty lively debate demonstrating why parking enforcement is best left to local authorities. It is a pretty fundamental rule among any councillors who have any experience in local government that you do not mess around with refuse collection or waste collection within a year of an election. Any councillor, particularly any councillor who has served for any time, would tell you: never mess with refuse collection within a year of an election, yet here we have a clause in which the Government are seeking fundamentally to interfere with refuse collection within a few months of a general election. My mission this afternoon is to save the Government from themselves, and I hope the Minister will feel able to help me with this.
The first question I have to ask is: why are the Government doing this? Local authorities generally have a pretty good record, not just on refuse collection but particularly on recycling. There is a long way to go but the rate has increased to 43%, I think, which is very near to quadrupling in the past decade. Perhaps there will be an incentive with the landfill tax, but the amount of waste going to landfill has reduced by 70% in the past decade. Yes, more needs to be done but it is not a bad record to start with, so there is no problem there.
There is no evidence as far as I am aware that local authorities, either genuinely or particularly, have been acting disproportionately in the way in which they enforce their collection regimes. If there is evidence of that, I am sure the Minister will give it to us, but I would still need to know that that evidence is so overwhelming and strong that it requires legislation from central government to interfere in this service. If you ask most residents what they pay their council tax for, after their initial rude remarks, the one thing that most residents everywhere say is that they pay their council taxes for their refuse collection. That is one of the few services these days that local authorities have to provide to all residents, so where is the evidence?
The Government consulted on these proposals and I hope the Minister will confirm that most of the responses to the consultation said, in effect, “Leave it alone and do not decriminalise this”, so where is the evidence? Why are the Government taking the frankly rather risky and unnecessary step of interfering in local authorities’ business for waste collection?
The effect of the clause will remove the power of local authorities to prescribe their refuse collections arrangements. It will reduce the fine for an offence from the current £1,000, which is a penalty few wish to incur, to a civil penalty of £60. I return to our earlier discussion about parking, when I said that the penalty imposed was nowhere near the same sort of deterrent. As a former leader of a council that had an extremely good record on recycling I must say straightaway that I strongly prefer incentives to threats. My local authority never had to use those threats. But those threats are necessary as a deterrent.
Why do the Government want to do this? I referred to the proposals on parking as something more suited to Friday night in the pub. I suggest that this, too, properly belongs in a pub on a Friday night—from a Daily Mail reader rather than from anyone who actually has any knowledge of refuse collection services and of the drive to increase recycling rates. It probably belongs in the pub on a Friday night, not in a Bill brought forward by my Government and still less in a Bill brought forward by my Government within months of facing a general election.
This measure is in a Deregulation Bill. It does not deregulate: it removes a system that seems to be working reasonably well—I have not seen the evidence that is not working reasonably well—and substitutes that for a far more difficult and complex situation that nobody is going to understand. It is going to cost local authorities a great deal more to implement and enforce. I simply do not know why the Government want to do this.
If the Government press ahead with this—I hope that we will all be able to persuade them to think again—the Local Government Association believes that if it has to happen the current level of fine of £1,000 should be reduced to a level 1 fine of £200. I would prefer us to leave things as they are. I believe that they are working well and all the evidence suggests that they are working well. Most importantly of all, waste collection arrangements are the business of local authorities and not the business of central government. I beg to move.
My Lords, I tried to get my name attached to the clause stand part debate but somehow I failed; I think I have to start earlier than the day before. I support this very strongly. At the moment, the area that runs the decriminalised system for waste collection is of course Greater London, and it does so under the London Local Authorities Act 2007. It has been doing that spectacularly successfully ever since. It has its own rules, guidelines, enforcement and appeals process.
What happens now? Schedule 11 makes it clear that that Act is going to have to be changed to be in accordance with this new and, as my noble friend Lord Tope said, extremely complicated system of enforcement. Why does anyone need to tamper with London when it is already running a system and could continue to run it as it is without any further interventions? Why would we want to ensure that the fine that the local authorities in London are able to charge at the moment should be reduced under the Secretary of State’s say-so? Why should we interfere in any way at all with the appeals system, which is currently run by local councils and is a fairly quick and straightforward process?
To say that I am baffled by these proposals would be to put it mildly. There is probably no difficulty with a decriminalised system, but the intervention and regulations—in a Deregulation Bill—that are going to support this seem to be way over the top for anything that is rational. The Minister talks about people putting out rubbish in the wrong place, in the wrong container, at the wrong time and on the wrong day, and talks about how local authorities can run that system, but it does not require five steps of enforcement. At the moment, London puts out an enforcement notice for a penalty, and that is it. Here we have written warnings, a waiting period, appeals, notices of intent—all this over possibly one refuse bag put out in the wrong place. That really seems to be excessive in the extreme.
Schedule 11 should be abandoned. London should carry on what it is doing. It has set the tone and indeed set the stage; it has done the work, and it knows what it is doing. If the Secretary of State or the Government insist on the rest of the country having this decriminalised way of doing things then London will have to do that, but I do not think that it should do it under the measures that are in the Bill. I ask the Minister why Schedule 11 should be there at all, why London, which is already running its own system, should be involved, and why there is any question at all that it should have to lower the fine that it is currently able to charge, which is having a reasonable effect. The penalty notices are for £60. These days, people do not think that a £60 penalty is very much; they are paying £80 for parking. I strongly support my noble friend on this issue, and I want to ensure that the consideration of London is that London should be left running its own scheme.
My Lords, if the Committee will indulge me for a moment, I have kind of wandered in off the street on this particular item of business. If the Government wish to simplify and deregulate in this area, the most important thing is that they have to get local authorities to unify their procedures on waste and renewable waste. If you travel around the country, you see that every single local authority has a different policy on renewable waste. That is so bad for the renewable agenda and for recirculation. Some local authorities tell you to put all your renewables in together, such as glass, plastic and tin, and to put your waste into another bin. Others want you to divide your glass, plastic and tin separately, while others will not take glass at all and you have to go to the bottle bank, which is usually full up. If the Government wish to simplify matters, they should have some form of encouragement for local authorities to unify their policies over the whole question of waste, which at the moment is a disgrace.
My Lords, living in one local authority area during the week and in another at the weekend, I am very conscious that standards differ from one local authority to another.
It is a brave Minister, I know, who stands up to the Local Government Association embattled. The Government’s intention in these measures is to reduce the burden of regulation on householders. Representations were made on behalf of householders and, as the noble Lord, Lord Tope, has mentioned, there was also a press campaign which suggested that the threat of large fines and criminal convictions is disproportionate to what is often in the first instance a case of people making mistakes about which bin to put out when and what to put in each. Again, as the noble Lord has just said, that varies from one local authority to another. My family is lucky in that the two local authorities in whose areas we live are relatively permissive about where you put each particular bit of waste.
The noble Lord’s amendment would reduce the fines available to level 1 on the standard scale instead moving to a civil basis. The Government think that it is disproportionate for an individual to be treated like a criminal when they may make a mistake putting their bins out for collection, and it is not right that they risk a higher fine for making this type of mistake than they would, for example, for deliberate shoplifting.
I am conscious that some of my noble friends are concerned that this clause may increase burdens on local authorities. I reassure them that our proposals do not add significant burdens compared to how the current arrangements operate in practice. As always in questions of regulation and deregulation, there is the question of the balance of burdens. The Government’s view is that we should be concerned to reduce the balance of burdens on householders.
I am also aware that some of my noble friends are worried that this clause might have a negative impact on recycling rates. We are committed to meeting our recycling targets and, as the noble Lord, Lord Tope, has remarked, we have made considerable progress in recent years in that direction. The way to do this is to support people as they do the right thing rather than threaten them with criminal sanctions and fines of up to £1,000.
Currently, under Section 46 of the Environmental Protection Act 1990, householders are subject to criminal sanctions and a fine of up to £1,000 if they do not comply with local authority requirements for presenting their waste for collection. In contrast, a shoplifter may be issued with an £90 penalty notice for disorder for their first offence. The Government’s argument is that it is disproportionate for an individual to be treated like a criminal when they make a mistake putting their bins out for collection, and it is not right that they risk a higher fine for making this type of mistake than for shoplifting.
Nevertheless, we recognise that local authorities need some powers to deal with people who spoil the local area by the way they put out their waste, which is why the clause provides for a civil sanctions regime. Under this system, fixed penalties between £60 and £80 will be available if a person has failed to present their household waste as required, and this failure causes a nuisance or is detrimental to the locality. This is what we refer to in shorthand terms as the “harm to local amenity” test, covering such things as putting waste out in a way that causes obstruction to neighbours, unreasonably impedes access to pavements, attracts foxes, rats or other vermin, or is an eyesore.
We expect local authorities to use effective communications to ensure that householders know what they can recycle; for example, by making it easier to know which plastics go in which bin. On the balance of the evidence presented in response to the consultation exercise, which the noble Lord, Lord Tope, raised, I will have to write to him.
I make it clear that we intend to retain the current criminal system applying to commercial waste. The sanctions available to combat more serious offences like fly-tipping are also unaffected by the provisions in the Bill.
The noble Baroness, Lady Hanham, raised Schedule 11, which amends the London Local Authorities Act 2007 and gives London authorities similar powers to issue penalty charges to householders. We are amending the London Local Authorities Act so that civil sanctions and financial penalties will be imposed only if a householder fails the “harm to local amenity” test, and the level of penalties will be the same as under the Environmental Protection Act. In effect, the same provisions will apply throughout England. There will therefore be a degree of standardisation. I hope that this may persuade the noble Lord to withdraw his amendment.
Can the Minister explain something to me? Subsection (1) of new Section 46B of the Environmental Protection Act says:
“The amount of the monetary penalty that a person may be required to pay to a waste collection authority … is … the amount specified by the waste collection authority”.
That would seem to indicate that the waste collection authority had the right to set a charge. It then goes on to say in subsection (2) that:
“The Secretary of State may by regulations make provision in connection with the powers”—
one of those powers being the setting of the penalty. I seek clarity as to whether there will be a power for a local authority to set its penalty charge. New Section 20B of the London Local Authorities Act, in Schedule 11 to the Bill, is quite specific that:
“It is to be the duty of the borough councils to set the levels of penalty charges payable to them”.
That sounds great. If they must do it, they have got to do it. However, under the subsequent subsection (4) of new Section 20B:
“The Secretary of State may by regulations make provision”,
Which is it? Will it be left to local authorities to set their own penalties? I understand that there will be a regime. Or will it be regulations set by the Secretary of State? It does matter.
I thank the noble Baroness. At this point I may be better off writing to her to explain in detail. My note says that the Secretary of State will make the regulations, but I recognise that there is a degree of ambiguity there. We will make sure that we clarify that.
My Lords, I am of course, as always, grateful to my noble friend Lady Hanham. I was going to say “for her support”, but who is supporting who? We are as one on this. I have just said to her that it is good to have her back onside. I always knew what she really thought, because we have known each other for so long. Now, at last, she can say it.
I am grateful to my noble friend the Minister for his response and, indeed, whether he meant to or not, for confirming that we have this clause as the result of a “press campaign”—those were the words that he used—not because there is any evidence that vast numbers of innocent householders are being persecuted and prosecuted for their innocent mistakes. If that has ever happened, it is certainly not the norm. It certainly does not happen to the extent that requires this sort of heavy-handed additional regulation.
Reference has been made to different systems in different areas. In passing, most people only live in one local authority area, and it is not of much concern to most people what happens in other areas because they never experience it—unless they happen to live in two, three or more homes. Having said that, I entirely agree that greater harmonisation and simplification between local authorities in their collection arrangements, particularly for recycling, would be extremely helpful, however many homes one happens to live in. That is a job for the local authorities and the Local Government Association. It is not a job in which central government needs to intervene or is able to usefully add anything to what local authorities can do.
I said in my opening remarks—because I have always believed it very strongly—that I too believe in supporting recycling, not threatening it, and giving incentives for recycling. That was something that my council started to do the day when I became leader of it, as it happens. However, I have also said that you need to be able to back that up with a threat or disincentive. You will hope that it is never needed; if your incentives are working well and properly, that threat will never need to be used, but it needs to be there as a back-up. I am at one with the Government in wishing to incentivise rather than threaten, but not with them on the wish effectively to withdraw any meaningful threat.
The Minister says that he hopes that I will withdraw the amendment. He knows very well that the rules require that I do so. I have no choice but to beg leave to withdraw it, but I feel sure somehow that we will return to the issue of waste collection at a later stage of the Bill.
Amendment 62A withdrawn.
Clause 43 agreed.
Schedule 11 agreed.
Clause 44 agreed.
Schedule 12: Other measures relating to animals, food and the environment
Moved by Lord Whitty
62B: Schedule 12, page 154, line 18, at end insert—
“9 The Secretary of State must lay a report before both Houses of Parliament within 6 months after the passing of this Act on the fulfilment of their obligations under regulation 26 of the Air Quality Standards Regulations 2010 (S.I. 2010/1001).
10 In regulation 26 of the Air Quality Standards Regulations 2010, after paragraph (7) insert—
“(8) Where limit values set out in Schedule 2 and target values set out in Schedule 3 are not met by the date specified in more than one zone, the Secretary of State must draw up and implement a national framework for Low Emissions Zones to ensure compliance with each relevant limit value within the shortest possible time.””
My Lords, I move this amendment on behalf of my noble friend Lord Grantchester, and with his permission.
We come to page 154 of this remarkable and fascinating Bill. Hidden within it is a remarkable backing off, if not a total retreat, by the Government in relation to the important issue of air quality. A relatively, apparently, small deletion from the Environment Act 1995 needs to be seen in a broader context. I brought this wider context to the attention of the House yesterday in Oral Questions—and I should, once again, declare an interest as the vice-president of Environmental Protection UK, although as of now I am very temporarily speaking on behalf of the opposition Front Bench.
Yesterday in my OQ I asked the Government to spell out what they were doing about air pollution, which still causes 29,000 premature deaths. We have failed to meet EU standards in the vast majority of areas; 93% of the designated urban sites are not meeting their criteria, and the WHO has indicated on the N02 front a significant part of our urban area to be in a dangerous state. That includes this city and the second city of Birmingham, as well as places like Nottingham and many other urban areas. The Government’s own forecasts in this area indicate that those areas—London, the West Midlands and west Yorkshire—are unlikely to meet the EU limit values for N02 until, at the earliest, 2030. That is 15 years after the EU deadline. Some 29,000 premature deaths requires the Government to have a bit more urgency about this.
In the Question yesterday, other noble Lords also intervened; the noble Baroness, Lady Parminter, talked about low emission zones and my noble friend Lord Hunt of Chesterton, who has just returned to join us, raised the issue of diesel. No doubt we will come back to that in a moment. The noble Baroness, Lady Northover, replied, accepting the difficulties in one sense, but spelling out a range of the things that the Government are doing and a rather more impressive list of things that the Mayor of London is doing—some of which I accept.
The Minister’s colleague, the noble Baroness, Lady Northover, also denied that the Government were lacking a strategy, but the reality is that the Government abandoned the national strategy on air quality. They tried to draw up a new one in 2013 but the reaction from stakeholders was such that they had to drop it and indeed it would not have met the EU requirements. They have removed the impetus that the previous Government had towards local authorities introducing local low emission zones and the only real initiative that the Government have taken in this area is a failed attempt to get the EU to agree to the postponement of the application of the next stage of EU limit values. I was right to say that there is no strategy.
In paragraphs 7 and 8 of Part 4 in Schedule 12, the Government are removing a requirement on local authorities to make local air quality assessments. Those assessments could have been evidence on which a broader strategy could have been drawn up. The removal of them means that there is no evidence base for a strategy, let alone a strategy at all. It could be argued that local assessments as described in the 1995 Bill are not necessarily the best way of going about this in terms of evidence or that these provisions have been rendered to some extent obsolescent by non-compliance for whatever reason, usually lack of resources, by local authorities. I agree that there needs to be a review of how local authorities are carrying out their duties in this respect. But if that is the argument and if the Government, as they claim, are serious about tackling air quality, they need to put something else in its place. There is no such move from the Government at either local or national level.
If the Committee were to accept the Bill as it stands and the complete deletion of this area, we would be accepting that there is a backing off and a retreat in this area. Our amendment argues not that there should be a deletion but that there should be a provision that would lead to a clearer statement of what is intended and that the Government should, instead of relying on local authority action entirely, create a framework for, for example, the delivery of low emission zones.
The dual purpose of these amendments is, first that we accept the deletion of the 1995 requirement—although, to be honest, it would be better to keep it in than to do nothing—but it should be replaced by a requirement on the Secretary of State within six months of the passage of this Act to come up with a clear strategy on how the Government are tackling air quality. The second part is that if we continue to be in a situation where more than one zone is failing to meet the basic EU standards, there is an obligation on the Secretary of State not just to report but to draw up a national framework for delivery of low emission zones. The majority of the problems—although not all of them—of air quality are entirely related to traffic management and mainly ground traffic, although air traffic also has an effect. Low emission zones are not the only way to deal with this issue but they are an important one.
At the moment, we have abandoned the previous framework for introducing those emission zones. Local authorities do not know where they are on those propositions and the Government are giving no clear guidance or impetus from the centre. This would replace what was simply an information-gathering process with an obligation on the Government to provide that framework for local authorities and report to the House on their overall strategy.
There was a strategy at the end of the previous Labour Government. I accept that it had been disappointing in terms of some of its delivery, but there was a clear strategy. It could have been improved on, but instead we have had effective abandonment of that strategy and this is just another little bit of the Government’s knocking out of the tools that were there to tackle what is a very real problem. I remind the Committee that this problem ends up with 29,000 people dying prematurely. I beg to move.
My Lords, I support the amendment. Air pollution in the UK is pretty serious and getting worse. We now have a better understanding that the larger the city, the more cars there are. In fact, cars travel longer distances in smaller cities. There is increasing awareness about air pollution, particularly in London, and the parties involved realise the seriousness of this. Other cities will have to make their own air quality assessments as they grow, so it is surprising that a Government who wish to make the UK seem like a desirable place to live and set up industry have introduced this measure. We know from experience around the world that incoming businesses and industries take a great interest in the environment but, under the Bill, local authorities will not be compelled to produce these assessments.
There is an equity aspect to this. We see large differences in life expectancy across London. Studies carried out every day in London show very high levels of pollution in areas with poorer housing. Therefore, it seems strange that we should be moving backwards in this respect. Websites show that the best city in Europe in this regard is Zurich and show how bad other cities are in comparison. The Government are taking a retrograde step in this regard. That is why this amendment insists that the Secretary of State takes this issue very seriously.
I regret that the amendment does not refer to noise, because the situation in the UK is pretty bad in that respect. If you drive round Germany, you see notices on the road advising you to drive slowly to reduce noise. The North Circular road is extremely noisy. People accelerate between traffic controls and the residents have to put up with that noise. There is no attempt in this country to tell people about the danger of noise pollution and how they can moderate their behaviour to reduce it. Local authorities are not encouraged to do that. Part 5 of this schedule takes a regressive step in not insisting that local authorities not only designate noise abatement zones but inform people how to reduce noise in these areas. I hope very much that the amendment will be carried.
My Lords, I think there are some limits to how far we would necessarily take this as a general model in this area. The noble Lord will be well aware that all efforts to agree speed limits within the European Union and to deal with the problem of cars going extremely fast are blocked by the Germans, who have a very powerful lobby, not unconnected with BMW and Mercedes Benz, which insists on having cars which are extremely powerful, which we all know also produce more pollutants when they are being driven very fast. They are driven very fast across Germany, rather more quickly than they are allowed to be driven through other countries, so Germany is a mixed example, I think.
This government proposal is not to lower air quality. I recognise in the admirably clear speech of the noble Lord, Lord Whitty, the much wider issues which he is raising about the Government’s overall strategy on air quality. This is a deregulatory measure which simply aims to remove the requirement for a further assessment when an air quality zone has already been agreed. The Government give active support to local authorities when it has been decided that a low emission zone or strategy is the appropriate action. We have so far funded 15 separate low emission zone-related projects or feasibility studies for our local air quality grant scheme. We have also disseminated the results that have come from these studies as good examples for local authorities. Since 1997, over £52 million has been spent to support local authorities in delivering low emission strategies, including feasibility studies with low emission zones and the uptake of clean vehicle technology and programmes to change behaviour.
There is regular feedback from local authorities, and an independent review of local air quality management in 2010 indicated that this requirement for a further assessment, or a second round of assessment, did not add to the understanding of local air quality and actually delayed the production and implementation of local action plans required under the Act. This was confirmed in a consultation with air quality stakeholders in January 2013. I refute the argument that the noble Lord, Lord Whitty, has put forward—that this is an attempt to weaken the local air quality regime. This is very much an attempt to support what local authorities do and to speed up their implementation of such zones when they are agreed. The Government continue to give active support in this regard. I recognise what the noble Lord, Lord Hunt, said about the overall problem of air quality. As I sat listening to him, I recalled that, as a boy, when I first came to a choir school in London, I was here just in time for the last great smog, in 1953 I think it was. Air quality has improved a little since then, and life expectancy has improved with it.
However, this change is a limited one, as are many others in the Bill. It will allow local authorities to prepare and implement air quality action plans more quickly and to avoid duplicating information gathered either in the earlier, detailed assessment stage that is required or in the preparation of the air quality plan. That is the limit of what we are attempting to do here. We remain actively committed to higher air quality throughout Britain. We have supported local emissions zones: I have just been handed a note which remarks on the local emissions zones in Oxford, York, Bradford, Southampton, Birmingham and Hackney. With that reassurance, I hope that the noble Lord will be able to withdraw his amendment.
I thank the Minister for that. As on the previous occasion, I have no option but to withdraw it. However, the basis on which I withdraw it is not quite the same as the Minister’s.
The Minister is right to say that this is a relatively specific requirement, relating to checking what the effect would be of the emission zones, once established. But that is part of the evidence for extending them further. If they were simply replacing it with something more useful, I would not object to the deletion as such. But the reality is that that is just one part of what the Government seem—despite what the Minister has said—to be retreating from. They are not encouraging local authorities in a broad sense, although some local authorities, because of impetus within themselves, are still putting forward local emission zone propositions. I was surprised to hear Birmingham on that list, but I take the Minister’s word for it; some of the others I do know about. Local authorities as a whole do not feel that they are being encouraged to initiate new local emission zones. The Government are not really answering the essential thrust of this: if they are deleting what they regard as pernickety requirements, they should do so in the context of replacing them with a broader approach to encourage initiatives and activity at local and national level to improve our air quality.
That is why our amendment is put in terms of accepting the deletion but replacing it with an obligation on the Secretary of State, not on the local authorities, to come forward with a framework and report to ensure that we know where we are going on this issue. At the moment we do not know and there is serious anxiety that we will not only continue to fail to meet the current EU standards but provide fewer resources and give less priority to air quality measures than was the case five or 10 years ago. That will make matters in the not-very-long run worse, not only in some of the more deprived areas—as my noble friend Lord Hunt said and I thank him for his support—but in substantial areas of our cities.
The Government need to take this significantly more seriously and I hope that they do so. I accept my noble friend’s view that there is also a noise issue often associated with air quality, because the same machinery that is creating the noise is creating the pollution. We need a broad approach to these issues. For the moment, we are not going to get that from the Government. I would like to believe that at some time in the next few months we will see a more coherent air quality strategy. Should there be a change of Government, we certainly intend to ensure that that is one of our main priorities for Defra after the election.
Obviously, I will withdraw the amendment but we hope that the Government will look again at the issue. I beg leave to withdraw the amendment.
Amendment 62B withdrawn.
Schedule 12 agreed.
Committee adjourned at 7.17 pm.