Local Transport Bill [Lords]

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Clause 3

The senior traffic commissioner
Stephen Hammond: I beg to move amendment No. 26, in clause 3, page 5, line 33, at end insert—
‘(g) the Public Transport Users’ Committee and such organisations representative of passengers as the senior traffic commissioner sees fit;’.
The Chairman: With this it will be convenient to discuss amendment No. 147, in clause 3, page 5, line 33, at end insert—
‘(g) organisations appearing to the authority to be representative of users of local transport;’.
Stephen Hammond: There is a final point on clause 2 that I had hoped that we would reach, but perhaps I will be able to weave it in later on.
Amendment No. 26 returns to the subject of proper consultation. The clause deals with the remit of the new statutory traffic commissioner and particularly with his powers to give guidance or directions. Subsection (4) of proposed new section 4C to the 1981 Act provides that the senior traffic commissioner must consult the Secretary of State, Scottish and Welsh Ministers, other traffic commissioners, local government and other operators, when issuing guidance. All of that is right. The requirement to consult local government was introduced in a Government amendment tabled on Report in another place, and from what we have heard this morning, we clearly welcome that. However, there is one obvious group of people missing from the list of consultees—the passengers. The Bill could establish a statutory body to represent passengers and the solution is before our eyes. Assisting the statutory new senior traffic commissioner would surely be one of the tasks for the new passenger watchdog so it should be one of the consultees.
Quite often it is argued that the Government will be consulting far and wide before any guidance is issued, and that there is no need to decide precisely on the face of the Bill who must be consulted. I understand the logic of that argument although in almost all cases I disagree with it, but in this case the Government have seen fit to write into the Bill a relatively lengthy list of required consultees. If the Government have decided to prescribe exactly who must be consulted yet there is no mention of passengers, that is a glaring oversight, despite the fact that we will soon have a passenger representative body.
I hope that the Minister will see that in this argument I am trying to be even more helpful than usual. If, as she said earlier, it is the intention of the Bill to improve bus patronage and the lot of passengers and there is an extensive list of consultees, surely passengers should be on that list. I look forward to the Minister either providing reassurance or, I hope, accepting our sensible amendment.
Ian Stewart: As the Committee heard in my opening remarks on the programme motion, I am strongly in favour of passengers being consulted about matters that are so important to them. It is good that across the country, as in my own constituency of Eccles, groups have formed with a particular interest in transport matters. In my constituency there are active transport users groups in the Swinton, Eccles and Irlam areas. They are my main source of information outside the House of Commons and they help me as a local politician better to understand the issues that affect my constituents. I am thus fully in favour of anything that furthers the consultative process to take into consideration the concerns, interests and views of such transport users groups. I welcome the amendment and any other amendments that will enhance the Bill in relation to proper consultation with passengers and users groups.
Norman Baker: I welcome that contribution from the hon. Gentleman. The Minister was telling us how fond she is of consultation. Here is an opportunity for her to live up to that immediately on the amendment we are discussing. It is interesting that the hon. Member for Wimbledon and I have come up with two amendments, entirely without collusion, which point in exactly the same direction, identifying the same omission from the Bill. [Interruption.] We do not always get on very well, but the fact that we have both alighted on what is a glaring omission tends to suggest that perhaps there is a case that ought to be taken forward. The hon. Member for Eccles has also hinted at the need to consult passenger groups, for which I am grateful.
The Minister will say, perhaps, that we would make exhaustive lists of consultees. That is the normal defence that the Government bring forward when we try to include particular people whom we think ought to be consulted, but in reality she is hoist by her own petard because she has already made an exhaustive list in the clause. If she had stopped at paragraphs (a), (b) and (c)—Scottish and Welsh Ministers—one might understand it, but she has actually gone further by adding traffic commissioners and transport operators and, under pressure from the Lords, paragraph (e) relating to local government. That still omits passengers. Had the Minister not specified bus operators and local government one might have thought that there was a case for not including bus passengers, but as she has included those groups it seems difficult to justify the omission of passengers at this stage. It would be better to mention no one rather than to have a skewed list.
Can we rely on the statutory consultees always to represent the views of passengers? No, we cannot. The interests of bus operators are predominantly about making money and it does not necessarily follow that a good service to the public makes them the most money. Does it follow that local government or integrated transport authorities will want to help passengers? One would hope so, but perhaps with budget constraints that would not necessarily be the case. In fact, those bodies are not at the sharp end. They sit in committee rooms making decisions, as we are today, without travelling on buses and understanding the problems at the sharp end. Can we rely on traffic commissioners or Ministers? No, we cannot.
There is a need for bus passengers themselves to be represented in some shape or form. I am afraid that they are not represented, and that is an omission. I hope that the Minister will be honest enough to accept that point and adopt one of the two amendments or table one of her own formulation on Report.
Ms Winterton: The amendments would require the senior traffic commissioner to consult representatives of passenger bodies before giving directions and guidance to other traffic commissioners, but the provisions in clause 3 on the powers of the senior commissioner to give guidance and directions already include a requirement whereby he or she can consult such other persons—for example, passenger bodies—as he or she sees fit before giving such directions and guidance.
Norman Baker: Will the Minister give way?
Ms Winterton: May I continue? “Such other persons” could include bodies that represent passengers, as appropriate. The proposed amendments seem to require the senior commissioner to consult with such groups in every case. We believe that would impose an unacceptable burden.
Stephen Hammond: Will the Minister give way?
Ms Winterton: I would like to continue for a bit.
Stephen Hammond: My intervention is on that particular point.
Ms Winterton: I give way.
Stephen Hammond: I have not made such a restriction. My amendment refers to
“the Public Transport Users’ Committee and such organisations representative of passengers as the senior traffic commissioner sees fit”.
The senior traffic commissioner could actually see fit not to consult such people. The amendment would not do what the Minister says it would do.
Ms Winterton: We certainly believe that the amendment would impose an unacceptable burden. Furthermore, we do not believe that such consultation would be appropriate in every case, particularly on direction and guidance that affect only the goods vehicle industry.
I have listened to the points that have been made. My hon. Friend the Member for Eccles referred to the fact that there are active groups in our constituencies—we all know that—and in parts of the Bill we are trying to reinforce them with the bus passenger champion. My hon. Friend made an important point about what we know happens in our own constituencies.
I accept that there may be value in including representatives of passenger groups in the list of named bodies. In particular, it could provide further useful clarification of the general purpose of consultation under the clause, and require the senior traffic commissioner to consider things on a case-by-case basis. The important thing is which organisations it might be appropriate to consult. I want to look at that flexibility.
At present, I am not sure whether the wording of either amendment is quite right. However, I am prepared to consider whether we might be able to table an amendment along similar lines, perhaps on Report, which takes on board the points that have been made today. I hope that, for a change, that commitment will be enough to persuade hon. Members not to press the amendment.
Stephen Hammond: It is not “for a change”, because we did not receive such a commitment on other amendments. If the Minister is offering that commitment, I certainly shall not press the amendment.
I am delighted to hear that the Minister thinks there may be some merit in the principle, if not the exact wording, of the proposal and I accept that she may want to draft it more tightly in terms of who the senior traffic commissioner sees fit on a case-by-case basis. Her commitment to bring the principle back on Report is very welcome and with that reassurance, Mr Taylor, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12.45 pm
Ms Winterton: I beg to move amendment No. 1, in clause 3, page 5, leave out lines 39 to 43 and insert—
‘4D Guidance to senior traffic commissioner by Secretary of State
(1) The Secretary of State may give the senior traffic commissioner guidance as to the exercise of any of the senior traffic commissioner’s functions.
(2) The senior traffic commissioner must have regard to any guidance given under subsection (1) above.”.’.
The Chairman: With this it will be convenient to discuss amendment No. 27, in clause 3, page 5, line 39, leave out subsections (6) and (7).
Ms Winterton: This is the first Government amendment. At the moment, the main function of the senior traffic commissioner is to promote consistency among fellow commissioners on the exercise of their statutory functions. However, as I said earlier, the post carries no statutory powers and consistency can be achieved only when there is agreement and consensus with the other commissioners. The clause therefore contains provisions that will put the post of senior traffic commissioner on a statutory footing.
Having statutory powers will mean that the senior traffic commissioner can ensure at all times that there is proper consistency among the traffic commissioners when they exercise their many statutory functions over the eight traffic areas. For example, it will enable the senior traffic commissioner to decide where traffic commissioners should work and what they should do, and also to issue directions and guidance to them on the exercise of their functions.
The power to issue directions extends only to administrative matters such as how applications for licences should be handled and the publishing of information, but it will not include, for example, a power to direct one of the commissioners to make a particular decision about an individual licence application or disciplinary case. That will obviously remain a quasi-judicial matter solely for that commissioner.
As I will emphasise when I respond to the amendment tabled by the hon. Member for Wimbledon, the independence of the commissioners is fully extended under the clause by enabling the Secretary of State to issue guidance only to the statutory senior commissioner, replacing the existing power to issue general directions to individual commissioners. That might include guidance on what statistical data should be collected on the volume of work undertaken in every traffic area by traffic commissioners each year to enable performance to be properly assessed and any necessary improvements made.
Under that provision, however, only guidance issued on the senior traffic commissioner’s power to issue guidance and directions to the other traffic commissioners will be statutory guidance, carrying with it an obligation for the senior traffic commissioner to have regard to such guidance. That will not preclude the Secretary of State issuing guidance on other matters, but such non-statutory guidance will not have the same status.
The Government did not intend to differentiate in that way and the amendment will rectify the situation to allow the Secretary of State to issue to the senior traffic commissioner statutory guidance on the exercise of any of his functions. I hope that that clarifies the purpose of the amendment and that the Committee will support it.
Stephen Hammond: One is quite surprised to see this new amendment and I am grateful for the Minister’s clarification, because this might equally well have been effected by deleting the words “under this section” from proposed new section 4C(6). Therefore, the reason why there is a need to introduce a new provision is slightly lost on me. All that the Minister described could equally have been achieved by deleting those three words. None the less, there is a question mark over the proposed new section.
The Minister says she will respond to my amendment, which suggests leaving out subsections (5) and (6). Under the Bill’s original wording, the guidance could relate to the senior traffic commissioner’s functions under proposed new section 4C as amended. The Government amendment will extend that guidance; they think that it now covers all the traffic commissioner’s functions. However there is an argument as to whether that was already in there anyway.
Either way, I am not sure that those subsections are really necessary. As we have been discussing, and as the Minister explained a moment ago, subsection (4) gives the senior traffic commissioner an obligation to consult certain people before issuing guidance to traffic commissioners. Within that list—indeed, at the very top of it—is the Secretary of State.
As the Bill stands, under subsection (6), the Secretary of State is given power to issue guidance to the senior traffic commissioner, but before the traffic commissioner can issue any guidance he has to consult the Secretary of State. There is an element of circular duplication here. What is the point of saying that the Secretary of State may offer guidance if the senior traffic commissioner must consult before any guidance is given? That was already in the Bill, so I am not sure that proposed new subsection (1) is really necessary. Further, I am not sure that those subsections are necessary because the provision is already there.
We are not yet delving into the wider relationship between the senior traffic commissioner and the Secretary of State and how much influence—if we accept the Minister’s arguments on independence—the latter should have over the former. If the post of senior traffic commissioner is to be truly independent and effective, what guidance might the Secretary of State be giving the senior traffic commissioner that might impact on his independence? That is probably a question for the debate on clause stand part, if we get that far. It seems that proposed new subsection (1) is not really necessary, because it is already dealt with.
Mr. Knight: The Minister’s comments were very reassuring and I am grateful to her for what she said. However, if she does not mind me putting it this way, what she said exceeded her actions, which gives me cause for concern. May I explain what I mean by that?
The clause refers, on page 4 of the Bill, to “guidance” or “general directions” being given, but if we look ahead to clause 4 we see that there is a power to remove a traffic commissioner for misbehaving or being
“unable... or unwilling to perform the functions of traffic commissioner to a standard which the Secretary of State considers satisfactory”.
I can well see a scenario where a Secretary of State would regard a traffic commissioner as having misbehaved if he ignored the guidance.
Norman Baker: Under those circumstances, perhaps the Secretary of State would wish that that person was on a fixed-term contract.
Mr. Knight: I am sure that you would not want me to go there, Mr. Taylor, as we have waved that one off, at least for today.
It seems, therefore, that the pledge given to the Committee by the Minister, which is that the guidance will not include the power to direct a traffic commissioner to make a particular decision in a particular case is something that, much like amendment 1, we should have in the Bill. If we are having in the Bill a declaration that the Secretary of State may give guidance and a declaration that the senior traffic commissioner “must have regard” to the guidance given, we should have a statement that such guidance shall not include any direction to a traffic commissioner of how to respond in a particular case or circumstance.
I hope the Minister is willing to reflect on that and perhaps will agree to add the necessary provision on Report. The Bill seems to have the first two conditions—that guidance shall be issued and guidance must be followed—but it does not include a statement that the guidance will not include a direction on a particular case. That leaves us in an unsatisfactory situation.
When a Bill leaves this place and passes into law, if there is a dispute about precisely what we intended, the courts have a habit of looking not at Hansard, but at the words in the statute. They then adjudicate accordingly.
Although the Minister’s pledge to the Committee is welcome because the relevant measure is not in the Bill, decisions might be taken by a court that run contrary to the assurance she has given us. Although I have confidence in her to adhere to the pledges that she gives the House—whether on the Floor of the House or in Committee—what about a successor Minister? What if a future Transport Minister tried to interfere in a particular case? I offer a scenario in which that might happen—if the Scottish Parliament were under the control of a party other than the controlling party in this place. Let us imagine that that Scottish Parliament decided to pursue a transport policy at complete variance to the transport policy of the Secretary of State. It might then be tempting for a Transport Minister to issue guidance to try to bring Scotland back into line, because the Minister’s pledge to us today is not in the Bill.
Under amendment No. 1, if we are to have proposed new subsections (1) and (2), we are reasonably entitled to ask the Minister to give us a subsection (3), which would put her pledge in the Bill.
Ian Stewart: I am perplexed by the contrary argument that the right hon. Gentleman has just made. In Bill Committees such as this, I invariably find myself arguing that point from the opposite angle: we all know that it is quite legal to use Hansard in legal cases and doing so shows what was in the Government’s mind at the time. I do not accept the line that he is taking.
Mr. Knight: I am obliged to the hon. Gentleman for giving way. As I understand it, where the courts take a particular view about the wording of an Act, they do not look at Hansard. They can look at it if they feel that the wording is ambiguous, but a court may not decide that a certain point is ambiguous. It may say that an Act is silent on the pledge that a Minister gave, and because the Minister did not put the pledge in the Bill the Act is therefore silent and the guidance unfettered.
Ian Stewart: Again, I think that that is a contrary argument because it places the issue the wrong way round. It is clear from those Members who are from the legal profession and who have served on various Bill Committees on which I have also served that when there is doubt, it is appropriate for the judges to look at Hansard. No brief or silk worth their salt would let something like that go without raising the matter on behalf of their client. Therefore, I do not accept the right hon. Gentleman’s rationale.
Ms Winterton: Perhaps I can provide some useful clarification. The right hon. Member for East Yorkshire raised the issue of guidance and general directions in relation to the point that I was making. His point is about whether the senior traffic commissioner, rather than the Secretary of State, will be able to issue general directions to other traffic commissioners. At the moment, the Secretary of State can issue general directions—that means general directions, not directions about individual cases. However, under the Bill, the power for the Secretary of State to issue general directions will be taken away and replaced with a provision allowing them to issue guidance on general principles—for example, about improving bus punctuality.
The Bill gives the senior traffic commissioner the power to give general directions because at the moment there has to be consensus and agreement with the other traffic commissioners. The Bill gives greater independence to the traffic commissioners because the general directions of the Secretary of State are removed and replaced with guidance. The senior traffic commissioner can then give directions to other traffic commissioners about how, for example, the general guidance on bus punctuality might be achieved. The purpose of the amendment is to clarify the position, because the Bill as it stands means that, in a sense, the Secretary of State could issue statutory—
It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.
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Prepared 23 April 2008