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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