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Session 2004 - 05
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Standing Committee Debates
Railways Bill

Railways Bill

Standing Committee A

Thursday 13 January 2005


[Mr. David Amess in the Chair]

Railways Bill

Clause 32

References to the ORR

Question proposed [this day], That the clause stand part of the Bill.

2.30 pm

Question again proposed.

The Chairman: I advise the Committee that the Chairman's provisional selection of amendments to the Bill as it stands is on the Table. The Committee will be mindful that it might change during the afternoon, subject to whether we continue our proceedings on Tuesday. I remind the Committee that this morning we were debating the question that clause 32 stand part of the Bill.

Mr. Christopher Chope (Christchurch) (Con): When we adjourned at 11.25 am, it was apparent that the Minister was in dire need of a cigarette break. After a 3-hour cigarette break, I hope that he has come back in better humour. [Interruption.] I accept that he was in good humour almost all morning until he could not wait for those last five minutes.

We were in the middle of an interesting debate about the role of the Office of Rail Regulation and how its independence could be guaranteed. In the context of the clause, we were also considering how we could ensure that there would be no pressure on the Office of Rail Regulation to do the Government's bidding when adjudicating on closures and closure proposals. How can it be said that the Office of Rail Regulation will be wholly independent and will sit between those who want to implement rail closure and those who oppose it, given that, under clause 50, there is a new obligation on the Office of Rail Regulation to provide information and advice to the Secretary of State in connection with respective railway functions. Surely that means that the Secretary of State will get a running commentary from the Office of Rail Regulation on the progress of proposals for closure that are viewed sympathetically by the Secretary of State. The poor punter will be excluded from access to the same information.

How can the Minister assure us that the Office of Rail Regulation will truly be independent and even-handed in carrying out its functions if it has a greater obligation to provide advice and information to the Secretary of State than it has to provide advice and information to the objectors to a proposed rail closure? That is a short point but a pertinent one. It is indicative of the way in which the Government want to
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have control over what is nominally an independent official dealing with rail regulation. That is reflected in clause 50 and under the provisions of clause 32.

Finally, under the auspices of this clause stand part debate, I ask the Minister whether the information that is provided to the Office of Rail Regulation will be available under the Freedom of Information Act 2000 to anybody who wishes to have it. As I understand it, the Office of Rail Regulation will be a public sector body. Since it will be under a statutory duty to acquire as much information as possible about the railways, will it be possible for the public to use the freedom of information regime to get access to information that, we are told, it will not be possible to get access to from Network Rail because of its supposed private sector status?

Mr. Greg Knight (East Yorkshire) (Con): I rise to raise a different point with the Minister. Clause 32(6) refers to the Office of Rail Regulation being provided with

    ''such information as it may require for the purpose of carrying out its functions under this section.''

Should the Bill become law, will the Office of Rail Regulation have any evidence-seeking power? I am concerned about a scenario where it would seek to obtain information and the party in possession of such information might conclude that, by withholding that information, it could influence the decision and get the decision that it wishes. What happens then? Can the Office of Rail Regulation insist that it be given sight of the documents that it feels that it needs to see to enable a proper decision to be made?

The Minister of State, Department for Transport (Mr. Tony McNulty): Welcome back, Mr. Amess, to our deliberations. On the point about freedom of information and the ORR, the hon. Member for Christchurch (Mr. Chope) is entirely right: it is a public body and will have to conform with the freedom of information regime. That means that all is disclosable unless it meets any of the assorted exceptions. Network Rail is not, as I said this morning, subject in that way as it is a private sector company. However, I thought that I made it clear—this touches partly on the point made by the right hon. Member for East Yorkshire (Mr. Knight)—that there is provision within the Bill for all licence holders in the rail system, including Network Rail, fully to disclose information as part of the closure process. I made that point this morning, and that is the position.

We should not confuse two things: the national rail function of ORR as economic and safety regulator in the wider domain—as I said some time ago; probably last week, although it seems longer ago—and its specific functions. I do not want the hon. Member for Christchurch, inadvertently or otherwise, to mislead the Committee, because I thought that the import of what he said was almost that the ORR acts as some sort of appeal body, and is a last court of appeal for objectors. It is not: the ORR has almost an ombudsman-type role in the closure process. It is independent. I am not going to enter into a debate about that, even though at some stage in our
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deliberations, in the context of the Strategic Rail Authority, the hon. Gentleman talked about Government lackies and stooges. I am not going down that road.

The ORR is an independent body, set up to act independently. Its task is to check that the assessments have been carried out properly. By implication, that means that all information has been made available, the criteria for closures guidance have been met, and there has been full and proper consultation in the whole process. In essence, the ORR's role is to ratify the closure notice on the back of all those elements of the process, as laid out in the clauses that we are discussing, having been met. That is a right and proper role for it and I am sure that it will discharge those roles in an independent and objective fashion. It is a public body, as are the rail funding authorities, and, as I have said, is obliged to act in a fair and proper way. As with all public bodies, if people demur from the notion that it has acted in a fair and reasonable way, there is the traditional review route. It is a public body and has operated since 1 January in a freedom of information regime. All parties to any of the closure processes outlined in the various clauses under discussion have to make all information readily available, according to the criteria laid down in the guidance. We are confident that in that regard the ORR's role and references to the ORR will be discharged appropriately. There is an obligation in relation to information.

I am told that in relation to clause 32(6) and the point about the ORR having evidence-seeking powers, the ORR will have to decide whether it can determine that the criteria have been met. If it cannot, because of the lack of information, it is likely that it will issue a non-ratification notice as part of an assessment that will say, ''There are key elements of the criteria and processes laid down in the guidance that have not been met because all the information has not been forthcoming.'' Implicit in the Bill is the notion that all licence holders coming to the ''party'' through any of these processes must make all that information readily available.

There is simply no point, from our perspective, in broadening the assessment criteria spelled out in the guidance to a far wider base than is currently the case and then having organisations holding back information, capriciously or otherwise. There is a backstop in that regard. This is not some kind of formal appeal process. I would liken it far more readily, as I have said, to an ombudsman-type role to ensure that all elements of the due process have been carried out in full. However, there is the scope for non-ratification if that is not the case. In those circumstances, I commend the clause to the Committee.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Column Number: 232

Clause 33

Closure requirements

Mr. Knight: I beg to move amendment No. 64, in page 35, line 40, at end add—

    '(10) The Office of the Rail Regulation shall be under a duty to give full reasons in writing for its decision to issue, vary or revoke a closure ratification notice concurrently with the issuing, variation or revocation of the notice.'.

This is a probing amendment. We would like to hear what the Minister has to say. There has been some debate this morning and this afternoon about the scope and extent of the Freedom of Information Act. Whether that Act applies in any particular circumstances in law, we certainly think that it should apply in spirit, and that is the thinking behind the amendment. We feel that any decisions that are made should be transparent, open and clear and that full reasons for making those decisions should be published. Those reasons should not be shrouded in mystery and there should not be certain aspects where the reasoning behind the decision is obscure or uncertain. The Minister may say that the decisions will be made public in any event, by way of practice, but if that is not the case, we think that it should be.

Mr. McNulty: I am with the right hon. Gentleman in spirit, but not in practice because I do not think that the amendment is necessary. As I have already said, the ORR, as a public body, will be under a duty in relation to the Freedom of Information Act. If Members think it through, they will realise that when the ORR issues a notice, it is unlikely that it will want to do so other than publicly and transparently. Following on from a closure notice or the non-ratification of a closure notice, the ORR will set down how the closure is to be achieved or why, if it is not ratified, it is not to be achieved. Not least against the backdrop of what I have said already about the regulator being dispassionate, objective and independent from Government, I do not want to start to lay down terms and conditions within which it can operate that independence.

2.45 pm

I have faith and confidence—backed up by my knowledge of the FOI regime that the ORR will be under—that the amendment is unnecessary. The ORR already says in its business plan that

    ''In all their work, our staff will provide a service to the rail industry that is thorough, constructive, timely and fair and will always give full reasons for decisions.''

People could argue that that statement reflects the ORR before the Bill becomes an Act, but I can think of no reason why it will not remain central to its mission and business plan. It is in its interest as the independent regulator for the entire industry to seek and implement that transparency. I am with the hon. Gentleman in spirit, but I do not think his amendment is necessary in substance for all the reasons that I have outlined.

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