Clause
21
Approval
of proposed
scheme
Stephen
Hammond:
I beg to move amendment No. 58, in
clause 21, page 19, line 36, leave
out from ‘England’ to end of line 39 and insert
‘and Wales, an approvals board for
England and
Wales.’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 59, in clause 22, page 20, line 3, after
‘England’, insert ‘and
Wales’.
No. 60,
in
clause 22, page 20, line 4, leave
out ‘for
England’.
No.
63, in
clause 23, page 21, line 3, after
‘England’, insert
‘Wales’.
No.
64, in
clause 23, page 21, line 6, leave
out ‘for
England’.
No.
67, in
clause 23, page 21, line 21, leave
out ‘for
England’.
No.
68, in
clause 23, page 21, line 23, leave
out ‘for
England’.
No.
69, in
clause 23, page 21, line 26, leave
out ‘for
England’.
No.
71, in
clause 24, page 22, line 13, after
‘England’, insert ‘and
Wales’.
No. 72,
in
clause 24, page 22, line 16, leave
out ‘for
England’.
No.
77, in
clause 25, page 23, line 26, after
‘England’, insert ‘and
Wales’.
No. 78,
in
clause 25, page 23, line 28, after
‘England’, insert ‘or
Wales’.
No. 79,
in
clause 25, page 23, line 30, leave
out ‘for
England’.
No.
198, in
clause 25, page 24, line 14, leave
out ‘for
England’.
No.
199, in
clause 25, page 24, line 21, leave
out ‘for
England’.
No.
200, in
clause 25, page 24, line 26, leave
out ‘for
England’.
No.
201, in
clause 25, page 24, line 37, leave
out ‘for
England’.
No.
202, in
clause 26, page 25, line 5, after
‘England’, insert ‘and
Wales’.
No.
203, in
clause 26, page 25, line 9, after
‘England’, insert ‘and
Wales’.
No.
204, in
clause 26, page 25, line 11, leave
out ‘for
England’.
No.
220, in
clause 33, page 31, line 29, after
‘England’, insert ‘and
Wales’.
No.
221, in
clause 33, page 31, line 31, leave
out ‘for
England’.
Stephen
Hammond:
The good news is that although
there are 13 amendments in the group, 12 are consequential, so I shall
not delay the Committee for long. Today and previously, we have had
extensive discussions about the approvals board. I expected much
discussion to take place when we debated clauses 21 and 22, but a lot
of it happened this morning.
If
the Minister regards the board as so important, why does it apply to
England only? Why will quality contracts in England be passed on to an
approvals board when those in Wales will be examined by Welsh
Ministers? Is it entirely because of the status of devolved
legislation, or is there some other explanation? The Minister and the
Government have reassured us that the process of appeal through an
approvals board will limit judicial review, so it has the chance to
become an effective and independent body. It will be well suited to
decide the suitability of quality contracts, and I am not sure that the
Committee would wish to deny such a body to Wales, unless there was
good reason to do
so.
Ms
Winterton:
I certainly take on board what the hon.
Gentleman has said about this being a probing amendment. It would
extend the approvals board model to Wales and take away the existing
role of Welsh Ministers. The Government consulted the Welsh Assembly
Government on how the provisions will apply in Wales, and the Bill is
consistent with their preferences, which is to say that the existing
approval role will be retained by Welsh Ministers for schemes in Wales,
and there will not be a move to independent
approval.
In both
cases, the approval process will be at arm’s length from the
local authority or authorities that will approve schemes—that is
a key feature of both models. However, in England, the Government see
the value of having an approval process at arm’s length from the
Secretary of State. As we have discussed, under the current
arrangements, the Secretary of State has a quasi-judicial approval role
at the end of the local authority process of scheme development. That
makes it more difficult for Ministers or officials to engage with local
authorities as they develop proposals for quality contracts schemes. We
believe that we will work together more effectively if the Secretary of
State is removed from the quasi-judicial approval
process.
Obviously,
Welsh Ministers take a different view, and many comments have been made
on the reasons for that. There are those who have said that in Wales
there is perhaps not quite the extensive demand for quality contracts
schemes as there has been in England. However, it is important that it
is up to the Welsh Assembly Government to ask for the process to be
different if they so wish. With that explanation, I hope that the hon.
Gentleman will not press the amendment to a
Division.
Stephen
Hammond:
I am completely satisfied with that explanation.
The Minister has obviously consulted Welsh Ministers and this is what
they prefer, so far be it from me to interfere with their wishes. I beg
to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
21 ordered to stand part of the
Bill.
Clause
22
Approvals
boards for
England
5.15
pm
Norman
Baker:
I beg to move amendment No. 156, in clause 22, page
20, line 9, at end insert
‘, one of whom shall be a
representative of users of local
transport.’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 62, in clause 22, page 20, line 33, at end
insert—
‘( ) The Secretary
of State shall at all times keep a panel of persons who may be
appointed under subsection
2(b).
( ) The panel shall
consist of at least 15
persons.
( ) Membership of the
panel shall be open to any person who is considered to have relevant
experience of the bus industry, passenger user groups or local
transport governance.
( ) The
persons who are to be appointed under subsection 2(b) are those that
the Secretary of State considers most appropriate in all the
circumstances of the particular
case.’.
Norman
Baker:
We are back on the accountability or otherwise of
the approvals board, and I make no apology for raising the concept of
accountability yet again. The Government propose to set up a very
powerful triumvirate, which in my view will be able to thwart the views
of elected local councillors and the ITA. Incidentally, that situation
will be remedied in a helpful manner if new clause 5, which we shall
discuss shortly, is accepted, but as the Bill is currently set out,
what I have described will be possible. In those circumstances, we
should consider the membership of the approvals board more
closely.
I support the
concept of experts being able to examine some of the proposals to see
whether they are robust and make sense, and to give advice. There seems
to be nothing whatever wrong with that; in fact, it seems a sensible
idea. The idea is that there should be a traffic commissioner, an
expert in transport economics and an expert in transport planning. That
seems to be a sensible mix of people who should be asked to offer
views. However, it is not a complete mix of the people who should be
asked to offer views. Noticeably missing from that list is anyone who
might actually travel on a bus. There is no guarantee that transport
economists or transport planners will travel on buses, but someone from
Passenger Focus or another passenger group, whom I am suggesting should
be incorporated into the membership of the approvals board, certainly
would travel on a
bus.
I accept that it
is a worst-case scenario, but let me explain the danger we face. An ITA
of elected people carefully considers and consults and comes up with
proposals, which then go before the approvals board, whose members may
be unaware, even if they should not be, of the particular local
circumstances. They may not have travelled on a bus for quite some time
and they might be unsympathetic to what the local authority or the ITA
is trying to do. In those circumstances, having someone on the
approvals board who has experience of riding a bus would be quite a
good idea. If the Minister says that is not quite the right idea and a
better way of doing it is A, B and C, that is fine, but the concept of
expanding the approvals board to have wider expertise is clearly
right.
Graham
Stringer:
It is unusual in British administrative law to
put people whose role is normally quasi-judicial into positions of
policy making. When the Select Committee considered those matters, we
thought that it was inappropriate for a traffic commissioner to be part
of the process, if indeed the process will exist. On that basis, will
the hon. Gentleman reconsider his remarks or address that
issue?
Norman
Baker:
I suppose that I am addressing the issue of the
approvals board as I wish to see it, which is as a statutory consultee,
as would be the case with the Environment Agency. That is the role that
I would like the approvals board to have. If the approvals board
carries on with its present powers, the hon. Gentleman makes quite a
good case for looking again at the membership and whether the traffic
commissioner would be double-hatted in that
regard.
I shall
comment briefly on the Conservative amendment No. 62. No doubt the hon.
Member for Wimbledon will address it himself, but I have some sympathy
with the point that he is trying to make. He seems to be addressing the
same point as me, but by different means. The fact that we have come
from different directions to the same conclusion should weigh heavily
with the
Minister.
Stephen
Hammond:
I am pleased that we have reached the same
conclusion. The hon. Member for Manchester, Blackley made a very good
point. Should someone with a policy-making role have a quasi-judicial
role? Would that person be capable of separating those two roles when
asked to do so? That is a decent issue that must be addressed, because
it is a concern. My amendment is similar and I have a great deal of
sympathy with the hon. Member for Lewes. At present, paragraph 2 of
proposed new clause 126A of the Transport Act 2000 states that in
addition to the traffic commissioner, there should be two other members
sitting on the approvals board, and that they will be selected from a
panel appointed by the Secretary of State. Clause 22 contains no
further detail about the panel, which seems a significant omission. The
four further paragraphs proposed by the amendment are designed to put
some detail on who would be on the panel and how it would be
selected.
A panel
needs a number of people from which it can select, so a panel of 15
people would provide an appropriate number from whom an approvals board
can be selected. That number should ensure that there are always two
members with the requisite regional familiarity, wherever the quality
contracts scheme is being proposed. The panel needs to be large enough
to ensure availability in all sorts of cases.
The panel
should also have relevant experience, which is why I have sympathy with
what the hon. Member for Lewes was saying. The Secretary of State will
presumably be able to judge what is relevant, but it should entail
experience of the bus industry, passenger groups or local transport
governance. The Bill would be substantially enhanced if it required the
panel to include such people, as that relevant experience is extremely
important. When appointing the two members of the panel to the
approvals board, the Secretary of State should look at the
qualifications and experience that render them most suitable, in much
the same way as the senior traffic commissioner appoints the most
appropriate traffic commissioner—we went through that argument
last week. The Secretary of State ought to be looking to appoint the
most appropriate persons from the pool available.
Taken together, the paragraphs
should ensure that those charged with deciding whether a quality
contract should occur are appropriately qualified to make that
decision. They should be aware of passengers, the local bus industry
and what might happen to the local
authority. They should be able to judge in an impartial manner a
consultation document produced by the local authority and make a
judgment on the representations. The amendment is inspired by the fact
that although the Bill goes into some detail about the traffic
commissioner on the approvals board, and how they might be appointed,
there is a noticeable absence about how the other two members will be
appointed. This is an extremely important part of the legislation and
it would be wrong to leave it vague and imprecise. I hope that the
Minister will accept that there is a gap in the legislation that needs
filling.
Ms
Winterton:
As has been said, the Bill provides that an
approvals board for England will consist of a traffic
commissioner—the chair—and
“... two persons drawn from a
panel of persons appointed by the Secretary of State for the purposes
of this
section.”
Amendment No.
156 would provide that one of the members of the panel should always be
a representative of bus passengers. A lot of this goes back to our
discussion earlier today about defining the remit of the approvals
board.
There are two
key issues when determining who should be on the approvals board for
the role that we envisage. First, the board should have appropriate
expertise and, secondly, the decision-making process should be fair,
open and impartial. The board will be chaired by an independent traffic
commissioner. We proposed in the draft Bill that it should be the
senior traffic commissioner, but following the recommendation from the
Transport Committee we changed it so that an approvals board would
normally be chaired by the commissioner with the most appropriate
knowledge of the area in question.
We also
proposed that the traffic commissioner would be supported by two
experts, most likely in transport planning and transport economics. We
believe that the combination of the three would ensure that the board
would be well equipped to do the job required of it and that it would
be, and be seen to be,
impartial.
I
believe that the views of passengers are important and we expect local
authorities to take proper account of them, both in developing their
general transport policies and in drawing up detailed proposals for a
quality contracts scheme. I am not convinced, however, that there would
be a role for a passenger representative on the approvals board itself.
That is because the board’s job would be to consider a local
authority’s application to make a scheme and to reach a decision
on the approval of it. In reaching that decision, the board would need
to consider whether the authority had observed due process, to ensure
that the consultation exercise had been carried out properly and that
proper account had been taken of the views of consultees. Within that
process I would of course include passengers.
The board
would also need to reach a judgment as to whether the scheme as
proposed by the authority would indeed satisfy the public interest
criteria prescribed in the legislation. That would be likely to require
analysis of the case put forward by the authority and we believe that
to do that well, the traffic commissioner should be supported by
appropriate experts. I am not convinced that a passenger representative
would necessarily have the appropriate expertise to assist the board in
the particular job that we have defined for it.
The case put
forward by the authority is obviously likely to contain a detailed
economic analysis, hence the need for an economist. The proposals are
also likely to contain projections as to potential passenger growth and
forward transport planning. That could and probably would be for a
period of up to 10 years, which is why we think a transport planner
would be an appropriate member. We do not, however, expect the experts
on the board to undertake a separate, almost rival analysis to the
local authority’s, rather their role would be to confirm that
the authority’s overall analysis was credible and based on
sensible assumptions. The job we want the approvals board to do is very
detailed and
specific.
Ian
Stewart:
I wish to express a small
amount of concern about the presumption that members of user groups may
not have the skills to sit on such a board. I have to tell the Minister
that the Friends of Irlam station, the Friends of Eccles
station—known as Freccles—and the transport users group
in Swinton and Pendlebury include people who are eminent in their
fields, whether that be health, economics or transport. That should be
considered before assuming that people on transport user groups or from
the community do not have the skills to sit on such a
board.
Ms
Winterton:
I hope I can reassure my hon. Friend, because
that point brings us to the panel of experts that the Secretary of
State would appoint for people to be drawn from. It may well be that
somebody involved in passenger user groups would also have the other
areas of expertise that my hon. Friend has talked about. However, that
goes back to the question of the approvals board having a specific
task.
5.30
pm
It
might be difficult for local passenger representatives, who may have
been involved in consultation on the scheme—we hope that would
be the case—to fulfil the objective and impartial role that we
want the approvals board to have. We have made it clear, as I said,
that we want the scheme to be credible, and we do not necessarily want
someone who might have been consulted on the original proposals as
drawn up by the local authority. Indeed, to take that view might in a
sense change the work of the approvals board, almost widening it beyond
what we want to see. That is why, in response to the Transport
Committee, we made provision for a traffic commissioner other than the
commissioner for the local traffic area to chair the board, as the
local commissioner might consider that his ability to act and to be
impartial was
impaired.
I hope that
the hon. Member for Lewes understands why we cannot accept the
amendment. As I said, I hope that the Committee accepts that it is not
because we do not value the views of the passengers. We certainly want
them to contribute to consultations on the drawing up of the scheme,
but not in the position that the hon. Gentleman outlined.
I ask the
Committee to reject amendment No. 62, which seeks a panel of 15
members. It is not appropriate to include that level of detail in
primary legislation in case we need to change it. It could be difficult
to predict how many applications to make schemes will be received. We
might need to change the size of the panel, depending on its work load,
and including it in primary legislation
would restrict our ability to do so. However, I assure the Committee
that we will be consulting on the detailed implementation of these
matters later in the year, including on the draft guidance and the
drafts of any necessary secondary
legislation. With that explanation, I hope
that the hon. Member for Lewes will withdraw the
amendment.
Norman
Baker:
One of the TEG notes that we received with the
Committee briefing states
that
“No draft
guidance has yet been prepared regarding the way in which an approvals
board would operate.”
I
assume that is still the case. I look to the Minister to confirm that
it is so.
Ms
Winterton:
What the Committee has before it is the draft
guidance put out in December to coincide with debates in the other
place. It includes a section on quality contracts schemes, and it
refers to some of the role of the approvals board. However, as I said
earlier, we will be able to specify other matters in more detail, such
as when the board might start considering
appeals.
Norman
Baker:
I raised that point in response because it is
important. The Minister puts a lot of stress and weight on what the
approvals board will do. As we continue in Committee, it seems that
more and more will rest on its shoulders.
The success or otherwise of
what the Government want to do will be determined by how the approvals
board is asked to work and works. If the Minister is right, the board
will clearly provide a bulwark and a way to facilitate and reinforce
transport authorities. If those of us who have concerns are right, it
will act as a blockage; it will be an unhelpful part of the process.
Either way, when we are putting so much stress on the approvals board,
it is difficult not having the draft guidance. It is disappointing
because the Bill has been through the other place and it is now most of
its way through the
Commons.
The Minister
did not deal with a point that I made in my opening remarks, which was
that not only would none of the persons on the approvals board be
elected—we have been around that subject already—but none
of them might even have relevant bus experience or use a bus. I am sure
that it was not her intention, but a transport planner could be someone
who sits and designs the trunk road network. Someone specialising in
transport economics could be a person who carries out a cost-benefit
analysis of the rail network. There is no guarantee that the persons
appointed will have the necessary knowledge of, or sympathy with, what
the ITA is trying to
do.
I am sure that the
Minister intends to appoint people with relevant expertise and who
would facilitate the passage of the legislation, but let us suppose
that a future Government, perhaps of a different complexion, were
unsympathetic to the idea of quality contracts and wanted to thwart
them or see them wither on the vine. I do not want to give them ideas,
but it would be easy to put people on the approvals board who would not
facilitate what local authorities wanted, but who received different
guidance from the Secretary of
State.
Ms
Winterton:
I am sure that the hon. Gentleman has not
forgotten, but I assume that he is talking about the horrific
possibility of a Conservative Government.
In that context, it would not matter who was on the panel because it has
already been indicated that they would abolish the quality contracts
anyway.
Norman
Baker:
A Conservative Government may have second thoughts
and seek to kill the measure slowly. I do not want to be unpleasant to
the Conservatives but, as a matter of principle, it is a sound approach
to legislation to assume that the worst can happen whether it is
thought that the worst is a Conservative Government or a Labour
Government—indeed, some may even think it would be a Liberal
Democrat Government, but how they could reach such a conclusion, I do
not know. However, we must always base the premise on ensuring that
processes cannot be manipulated by the Government of the day to thwart
the idea set out in the Bill when it was first designed. I want to
establish that point of
principle.
Stephen
Hammond:
One thing that we can be sure about is that we
shall not have to consider the possibility of a Liberal Democrat
Government.
Given that
the approvals board is so important, the lack of guidance or of a
definition of that guidance in the Bill is a glaring omission, and it
will be a considerable weakness unless we do something about it in
Committee. I hope that the hon. Gentleman agrees with me about that
issue.
Norman
Baker:
Possibly I agree with the hon. Gentleman more than
he thinks. We certainly agree on that point. It would be helpful if the
Minister could publish more detailed draft guidance before we discuss
the Bill on Report. I do not know whether that is possible, but it
would be certainly be useful for the House to have
it.
In response to the
arguments advanced by the hon. Member for Wimbledon, the Minister said
that local authorities will take account of passenger views. They will
indeed do that, but there is no guarantee that the approvals board
will. However, the local authorities would have the final say under my
amendment and that would cover the point adequately. It would not be
covered if we left the final decision to the approvals
board.
We ought to
pick up the points made by the hon. Member Freccles about user group
skills. He is right that members of Passenger Focus and other user
groups have considerable skills and that we should not undermine them
or regard them as a second tier. If the Minister is insistent on going
down the road of appointing people herself, I hope that she will take
into account the sensible points that have been made and ensure that we
have a mixture of people with experience of user groups. If she is not
able to accept the amendment, I hope that she will be sympathetic to
the idea that one of the three people will at least have user group
experience, passenger experience or bus experience and thus know what
they are talking
about.
Ms
Winterton:
I just want to put it briefly on the record
that obviously approvals boards could call other witnesses if they
considered that not enough particular expertise was available to them.
I assure the Committee that we want people who are expert in both
transport
economics and transport planning. It is difficult to prejudge every
member of the panel, but of course we want them to have some expertise
in the area. There is no Government desire to appoint people who do not
know one end of a bus from another—that would be
ridiculous.
The whole point of what the
Government are trying to do is to make it easier for authorities to
introduce quality contracts schemes. We would gain nothing by
appointing people who are inherently hostile to them. The process is to
ensure that authorities that want to go down that route will find it
easier to do so. The proposals in the Bill, and the possibility of
appeal to a Transport Tribunal, would give an authority the possibility
of making an appeal if it felt that it had been unfairly dealt with, or
that its points had not been taken into
account.
Norman
Baker:
I am not entirely satisfied but, without delaying
matters, I will leave it there and beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn.
Stephen
Hammond:
I beg to move amendment No. 61, in
clause 22, page 20, line 31, leave
out subsection
(8).
Clause
22 inserts a new section into the Transport Act 2000. We are going
through the composition of the approvals board and, clearly, it is
vital to ensure that the right people are on it. Subsection (2) states
that a traffic commissioner will sit on the board and subsection (3)
states that the commissioner will chair it. Subsections (4) to (7)
state that the senior traffic commissioner will be charged with
appointing the commissioner as chair of the approvals board and other
such duties. All of that is fine and I have no issue with it.
This is a probing amendment,
but I want to understand why subsection (8) is necessary. It states
that if the senior commissioner is unable to appoint a traffic
commissioner to chair the approvals board, the Secretary of State will
appoint one. Given that those duties cannot be arduous, I would be
interested to hear from the Minister in what circumstances she
envisages such a measure would be necessary. Why would the Secretary of
State be involved only in that particular duty and not in others? When
we talked about the roles and duties of the senior traffic
commissioner, there was no discussion about the Secretary of State
being involved if and when required.
The whole
thing is slightly tautologous. The senior traffic commissioner is
required to consult the Secretary of State in all that he or she does.
Furthermore, the Secretary of State is able to give guidance to the
senior traffic commissioner, and the commissioner is required to have
regard to that guidance. The Secretary of State will be involved in
that work, so subsection (8) seems completely unnecessary. Will the
Minister give us some explanation and examples of why she regards it as
necessary?
Ms
Winterton:
The amendment would mean
that, in the absence of the senior traffic commissioner, the Secretary
of State would no longer be able to determine the most appropriate
traffic commissioner to chair an approvals board. The Bill provides for
the senior traffic commissioner to decide which traffic commissioner
should
chair each board, and that would normally be the one with the most local
knowledge of the area in question. As we have just discussed, it also
provides for the commissioner to be joined by two other members drawn
from a panel appointed by the Secretary of
State.
As
I said earlier, the draft Bill proposed that the approvals board would
normally be chaired by the senior traffic commissioner. Having
considered responses to the consultation, particularly from the
Transport Committee, it is now proposed that the board is chaired by
the traffic commissioner who has the most appropriate local knowledge,
with flexibility for another traffic commissioner to chair it if, for
any reason, the local traffic commissioner is unable to do
so.
5.45
pm
The
intention is that the two independent experts who sit alongside the
traffic commissioner should have expertise in transport economics and
transport planning to provide the right balance. The Bill will remove
the Secretary of State’s role in approving applications for a
quality contracts scheme, as we said earlier, but the amendment would
remove the provision allowing the Secretary of State to nominate a
traffic commissioner to head a particular board, which is purely a
backstop provision. It exists to cover eventualities, such as the
senior traffic commissioner being absent or incapacitated. If that
happens, the Secretary of State rather than the senior traffic
commissioner will be able to appoint a traffic commissioner.
If the provision were not
included, there might be long delays in setting up a board while we
waited for the senior traffic commissioner to stop being incapacitated.
I cannot support the amendment. I hope that I have shed some light on
why the provision exists and why we do not want it taken
out.
Stephen
Hammond:
I have listened carefully to the
Minister.,
Ms
Winterton:
It is very
complicated.
Stephen
Hammond:
I am not entirely sure that it is, for a number
of reasons. However, although I give notice that we may return to the
matter on Report, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Ms
Winterton:
I beg to move amendment No. 2, in
clause 22, page 20, line 38, leave
out subsection
(2).
Clause
22 contains provisions concerning approvals boards for quality
contracts schemes in England. In particular, it sets out the membership
of approvals board, which will include, as we have said, a traffic
commissioner and two persons drawn from a panel of experts appointed by
the Secretary of State. The clause will also amend the Tribunals and
Inquiries Act 1992 so that approvals boards fall under the general
supervision of the Council on Tribunals. However, under the tribunal
reform process being undertaken by the Ministry of Justice, the Council
on Tribunals has ceased to exist. As a result, the provision in clause
22 relating to the Council on Tribunals is redundant, and the amendment
will remove it from the Bill. This is a tidying-up
amendment.
Amendment
agreed
to.
Clause 22,
as amended,
ordered to stand part of the
Bill.
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