Local Transport Bill [ Lords ]

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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.
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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