A

BILL
[AS AMENDED IN COMMITTEE]

EXPLANATORY MEMORANDUM

This Bill provides Transport for London ("TfL") with further powers in circumstances where TfL has made (and the Secretary of State has confirmed) a toll order pursuant to the New Roads and Street Works Act 1991 ("TfL toll orders"). These powers will enable TfL to make provision for the enforcement and operation of TfL toll orders similar to the provision which may be made for the enforcement and operation of TfL road user charging schemes under Schedule 23 to the Greater London Authority Act 1999 ("the 1999 Act").

Preliminary

Clause 1 deals with citation and commencement, and Clause 2 with definitions of certain expressions used in the Bill.Clause 3 provides for any functions conferred or imposed on the Greater London Authority ("the Authority") to be exercisable by the Mayor of London ("the Mayor") on behalf of the Authority.

Supplemental Toll Provisions Orders

Clause 4 provides that where TfL has made a TfL toll order, TfL may make a further order (to be known as a supplemental toll provisions order) making provision for, or in connection with, the tolls charged under the TfL toll order ("SUTPO"). Subsection (2) enables a SUTPO to be made by TfL before, as well as after, the TfL toll order to which it relates has been confirmed by the Secretary of State under the New Roads and Street Works Act 1991 ("the 1991 Act").

Clause 5 provides how a SUTPO may be made. A SUTPO can be in any form determined by the Authority. A SUTPO must be submitted to the Authority for confirmation who may confirm it with or without modification. The Authority may require TfL to publish proposals for a SUTPO, to consult other persons before making the SUTPO, to modify the SUTPO in consequence of objections made to it and to publish it after it has been made. The Authority may also require TfL to place and maintain traffic signs in connection with the SUTPO. Subsection (4) provides that a SUTPO cannot be confirmed by the Authority until the TfL toll order to which it relates has been confirmed by the Secretary of State. However, the Authority may notify the Secretary of State under clause 8 of its intention to confirm the SUTPO before the TfL toll order has been confirmed by the Secretary of State.

Clause 6 and the Schedule provide that the matters for which provision may be made by a SUTPO include those set out in the Schedule.

The matters set out in paragraphs 1, 4 to 9 and 11 to 15 of the Schedule are similar to the matters which may be included in a TfL road user charging scheme made under Schedule 23 to the 1999 Act by virtue of paragraphs 10, 11A, 12, 26, 28 and 30 of that Schedule to that Act or regulations made under those provisions. The power to make provision for the matters set out in paragraphs 1 and 2 would replace the powers in section 14 of the 1991 Act.

Paragraph 10 of the Schedule gives power to make summary offences under a SUTPO which would be punishable with a specified maximum fine not exceeding level 2 on the standard scale. A proposed provision in a SUTPO creating an offence under this power is subject to the Secretary of State's approval under clause 14.

Clause 6(2) enables a SUTPO to provide that the tolls and penalty charges are to be paid by the registered keeper of a motor vehicle or, in prescribed circumstances, by persons to be prescribed in the SUTPO, rather than the driver of the vehicle as is provided for by the 1991 Act. This is necessary to enable a TfL toll order to be enforced in the same way as a TfL road user charging scheme under the 1999 Act.

Clause 6(3) and (4) provide that a SUTPO may, in addition to or instead of setting out provisions in the SUTPO in full, apply (with or without modification) provisions contained in Schedule 23 to the 1999 Act, regulations made under it or any TfL road user charging scheme, as those provisions may have effect from time to time.

Clause 8 contains safeguards to ensure that the provisions of a SUTPO are reasonable. Before confirming a SUTPO, the Authority must send a copy of the SUTPO to the Secretary of State and notify him of its intention to confirm it. The Secretary of State may within 42 days from the time of the notification (or, if later, fourteen days from the time that he confirms the TfL toll order) give notice that, in his view, a provision in the SUTPO relating to the imposition and payment of penalty charges could not have been included in a TfL road user charging scheme or a provision in the SUTPO relating to the notification, adjudication and enforcement of penalty charges, the examination of vehicles, the determination of disputes and appeals or evidence is not substantially the same as a provision for the time being having effect for the purposes of a TfL road user charging scheme. If such a notice is given the provision cannot come into force unless and until the Secretary of State makes an order by statutory instrument confirming the provision, which order is subject to negative Parliamentary procedure. In those circumstances, the Authority may modify the provision to make it conform with the road user charging regime or, alternatively, confirm the SUTPO with the omission of the provision.

In addition, under subsection (7), the Secretary of State may within the same period object to any other provision in the SUTPO which confers a power on TfL or which creates an offence. If the Secretary of State objects to such a provision it cannot come into force unless and until the objection is withdrawn. In those circumstances, the Authority may modify the provision in question so as to make it acceptable to the Secretary of State or, alternatively, confirm the order with the omission of the provision.

However, the Secretary of State may not object under subsection (7) to a provision in a SUTPO if it is substantially the same as a provision for the time being having effect for the purposes of a TfL road user charging scheme.

Clause 9 provides that a SUTPO, unless varied or revoked, shall remain in force for as long as tolls are chargeable under the TfL toll order to which it relates or, after the tolls cease to be chargeable, for as long as may be required to collect or enforce them.

Clause 10 provides that a SUTPO may be varied or revoked subject to the same procedures which apply to the making of a SUTPO under clause 5.

Clause 11 provides that TfL may install and maintain any equipment or construct and maintain buildings or other structures used or to be used in connection with the operation or enforcement of a TfL toll order or a SUTPO. TfL can also authorise the installation, construction and maintenance of such equipment, buildings or other structures.

However TfL shall not install, construct, place or maintain any equipment, buildings or other structures or traffic signs on a highway without obtaining the previous consent of the highway authority. Such consent cannot be unreasonably withheld but maybe given subject to any reasonable conditions.

Clause 12 makes provision for the approval and use of equipment used in connection with a TfL toll order or a SUTPO which is similar to provision made by paragraph 29 of Schedule 23 to the 1999 Act relating to TfL road user charging schemes. The Authority may direct that specified descriptions of equipment cannot be used unless they are of a type authorised by the Authority or must be used in accordance with the directions. In addition, the Secretary of State may notify the Authority that any particular description of equipment is incompatible with relevant national standards, or that the Authority's directions as to use of the equipment is incompatible with regulations made under section 176(2)(b) of the Transport Act 2000, and that the incompatibility is detrimental to the interests of persons resident in England outside Greater London. Where such notice is given by the Secretary of State, the equipment may not be used in connection with the TfL toll order or SUTPO except with the authorisation of the Secretary of State which may be given subject to conditions.

Exclusions and restrictions

Clause 13 makes provision restricting the vehicles in respect of which the enforcement powers in a SUTPO may be exercised. The provision is similar to that made by paragraph 31 of Schedule 23 to the 1999 Act in relation to TfL road user charging schemes, as amended by the Transport for London Act 2008.

Subsection (1) provides that a SUTPO may only authorise or require the examination of a motor vehicle if it is on a road or public off-street parking place (as defined in subsection (10)) within Greater London. This would include vehicles which are parked in off-street council or other public car parks but not in private driveways. Under subsection (2) TfL cannot enter a public off-street parking place to exercise powers to examine or enter vehicles without the consent of the operator which cannot be unreasonably withheld but maybe given subject to any reasonable conditions including conditions requiring TfL to indemnify the operator in respect of any loss of revenue, damage or other liability sustained as a result of the exercise of the power. Subsection (7) provides that a SUTPO may provide that consent shall be deemed to have been given where an operator fails within 14 days of the service of a notice requesting his consent to give notice to TfL of his consent or his refusal to give it.

Clause 14 restricts the power under paragraph 10 of the Schedule to create new offences in a SUTPO. This restriction is similar to that made by section 5 of the Transport for London Act 2008 in relation to the power under that Act to create offences in TfL road user charging schemes. Subsection (1) provides that a SUTPO cannot make failure to pay a toll or penalty charge a criminal offence nor any contravention or failure to comply with a requirement of a SUTPO for which a penalty charge is imposed by the SUTPO. Subsection (2) provides that a provision in a SUTPO creating an offence cannot take effect unless and until it is approved by the Secretary of State.

Clause 15 restricts the power under paragraphs 11 and 12 of the Schedule for a SUTPO to confer power on a person to enter a motor vehicle or seize anything in the motor vehicle. It provides that a SUTPO may only confer such a power on a person authorised in writing by TfL who is either a constable or in the presence of a constable when the power is exercised. This restriction is similar to that applying in relation to TfL road user charging schemes under the Road User Charging (Charges and Penalty Charges) (London) Regulations 2001.

Offences

Clauses 16 and 17 create summary offences relating to tolls under TfL toll orders or penalty charges under SUTPOs which are similar to those created by paragraphs 25, 26 and 27 of Schedule 23 to the 1999 Act in relation to TfL road user charging schemes.

Under clause 16 interference with any equipment, or with the functioning of any equipment, used for a TfL toll order, the obscuring of a registration plate of a motor vehicle or using a false document with intent to avoid payment of, or being identified as having failed to pay, a toll chargeable under a TfL toll order or a penalty charge under a SUTPO is punishable by a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding six months or both. The removal of a penalty charge notice from a motor vehicle by a person other than the registered keeper without the authority of the registered keeper is punishable with a fine not exceeding level 2 on the standard scale.

Under Clause 17 the intentional obstruction of a person exercising any powers conferred on him by a provision made by a SUTPO to enter a motor vehicle where he has reasonable grounds for suspecting that any equipment required to be carried in or fitted to the motor vehicle while it is on a road which is subject to the charging of tolls has been interfered with, or there is in the motor vehicle a false document which has been made or used, with intent to avoid payment of, or being identified as having failed to pay, a toll under a TfL toll order is punishable by a fine not exceeding level 5 on the standard scale or imprisonment for a term not exceeding six months or both.

Supplementary and Miscellaneous

Clause 18 enables the Authority or TfL to incur expenditure in or in connection with the establishment or operation of a TfL toll order or SUTPO or to enter into arrangements with any body or person in respect of the operation or enforcement of a TfL toll order or SUTPO or relating to the installation or operation of any equipment used for that purpose. This would include arrangements with a concessionaire with whom TfL has entered into a contract to design, construct, finance and operate the tolled road in question. Subsection (2) provides that arrangements with such a body or person may provide for any functions of TfL relating to the operation or enforcement of the TfL toll order or SUTPO, except functions relating to setting the rates of penalty charges, to be exercisable instead by the body or person with whom the arrangements are made. Subsection (3) provides that income arising under a SUTPO shall be payable to TfL and that any surplus may be applied for such purposes as TfL thinks fit.

Clause 19 enables the Authority to issue guidance to TfL in relation to the discharge of TfL's functions under a SUTPO and requires TfL to have regard to any such guidance. This provision is similar to that made by paragraph 34 of Schedule 23 to the 1999 Act in relation to TfL road user charging schemes.

Clause 20 permits a Minister of the Crown, Government department, local authority or statutory body to disclose information to TfL or to a person with whom arrangements have been made by TfL under clause 18(1)(b) for the performance or proposed performance of any of its functions relating to a TfL toll order or a SUTPO. Such information may only be used by TfL (or the person with whom arrangements have been made under clause 18(1)(b)) for or in connection with the performance or proposed performance of those functions. This provision is similar to that made by paragraph 34A of Schedule 23 to the 1999 Act in relation to TfL road user charging schemes and would enable TfL or a concessionaire to obtain particulars of the registered keeper of a motor vehicle for the purpose of collecting tolls or penalty charges. However, clause 20 does not apply in relation to information held by Her Majesty's Revenue and Customs.

Clause 21 makes provisions relating to the application of the provisions of the Bill to the Crown which is similar to that made by paragraphs 35 and 36 of Schedule 23 to the 1999 Act in relation to TfL road user charging schemes.

Clause 22 amends Part 5 of the London Local Authorities and Transport for London Act 2008 which makes provision for the enforcement of "penalty charges" as defined in the Act where three or more penalty charges are unpaid. Clause 22 amends the definition of "penalty charges" in Part 5 to include penalty charges imposed under a SUTPO so that non-payment of such penalty charges may be aggregated with the non-payment of other charges for the purposes of the enforcement powers under the London Local Authorities and Transport for London Act 2008.

EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of Transport for London the provisions of the Transport for London (Supplemental Toll Provisions) Bill are compatible with the Convention rights.