Local Transport Bill [ Lords ]

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Clause 23

Practice and procedure of approvals boards for England
Stephen Hammond: I beg to move amendment No. 65, in clause 23, page 21, line 9, leave out from ‘The’ to end of line 10 and insert ‘regulations of the board shall include—’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 66, in clause 23, page 21, line 20, leave out from ‘which’ to ‘any’ in line 21.
No. 70, in clause 23, page 21, line 41, leave out subsections (7) and (8).
Stephen Hammond: The origin of amendment No. 65 is my concern that the Secretary of State is being given powers to interfere in the affairs of the approvals board that are neither appropriate nor required. The Minister has said several times that she believes that the approvals board should be impartial, and has discussed the fact that it should consist of one traffic commissioner and two appropriately qualified and independent persons selected from a panel. That independence should not be compromised by unnecessary interference by the Secretary of State.
Clause 23 introduces further sections to the 2000 Act, one of which will empower the Secretary of State to make rules governing practice and procedure to be followed by the approvals board. It also empowers her to make rules
“generally for the carrying into effect of the powers and duties of any such board.”
Such rules might include the procedure for making applications to the board and for the acknowledgement of such applications, the procedure for notifying the relevant parties that an application has been lodged, and the time scales within which such parties might make representations to the board.
The Secretary of State may also prescribe the deadline for the board to reach its decision. However, if the board consists of people who are seen to be qualified and experienced, it should not require such instructions from the Secretary of State. The senior traffic commissioner appoints the traffic commissioner to chair the board and the role of the chair is to guide the board through matters of procedure. He or she would not and should not need the Secretary of State to assume that role and interfere with the board.
Furthermore, the phraseology used implies not only that this is general guidance, but that there is the possibility that it might be specific. If the Secretary of State was seen to tell the board what to do and when to do it, that would reflect badly on the perceived independence of the board, particularly in individual cases. The board should define its own procedures, and the independence of board should mean that the Secretary of State is not required to do so. Subsections (2) and (3) are necessary for the efficient running of the approvals board, but I contest whether it is the role of the Secretary of State to make such measures.
Amendment No. 70 also deals with the independence of the approvals board and with ensuring that it is not impacted by interference from the Secretary of State. Subsections (7) and (8) go even further and state not only that the Secretary of State can get involved in the procedural matters of the approvals, but that they can issue guidance
“concerning the carrying out by a board of its functions under this Part in relation to quality contracts schemes.”
Of course, the board must have regard to such guidance, but there is the possibility that a wholly inappropriate intervention or interference could come from the Secretary of State. That seems to defeat any object of having an independent board.
I will be listening carefully to what the Minister says about the independence of the approvals board and the reassurances she can give on whether there will be interference from the Secretary of State in general and particular cases.
Ms Winterton: That is quite a helpful explanation of where the hon. Gentleman is going with the amendments. We were slightly puzzled because they seemed to be designed to eliminate the Secretary of State’s role in regulating or guiding the approvals board, which would make it entirely self-regulatory. There do not seem to be other amendments that specifically would give the approvals board a power to make regulations. All references to regulations in this part of the Bill are to regulations made by the Secretary of State by statutory instrument. We also retain the power for the Secretary of State to make procedural rules.
There are, no doubt, precedents for self-regulation, which is generally for judicial bodies. However, that is not appropriate for a body of this nature. The board will be chaired not by a judge, but by a traffic commissioner, who will have been appointed for a somewhat different set of skills from those of a judge.
The board will not be a permanent body of persons; different traffic commissioners will chair different boards and may select different board members from the panel appointed by the Secretary of State to support them. To get consistency of practice, we will depend on the Secretary of State setting out the rules and regulations that apply to the approvals board, and the Bill provides for that.
Amendment No. 65 would remove the flexibility in clause 23. Its purpose seems to be to ensure that provisions that might be included in procedural rules under proposed new section 126B(2) are included. Provisions in clause 23 will enable the Secretary of State to make rules on the practice and procedure to be followed by the approvals board and on the general exercise of the powers and duties of the board.
The legislation highlights four procedural matters that may be included. That is not an exhaustive list and it does not exclude rules being made about other, related matters should they prove necessary, nor will it be obligatory to make rules on the specified matters if, in the light of consultation, we conclude that they are unnecessary.
In short, the provision in the clause gives a strong indication of how we might wish to use the rule-making power, but there is a degree of flexibility, which would not be the case if amendment No. 65 were accepted.
Graham Stringer: I am listening carefully to my right hon. Friend. Would she care to expand on that so that I understand better precisely what she means by “consistency of approach”? Does that refer to the administration and procedures in a tribunal or to the issues before it?
Ms Winterton: Issues of the type that will be covered are set out in proposed new section 126B(2), which mentions
“provision about applications for approval to such a board...provision for an acknowledgement of the receipt of any such application to be issued by such person, and within such time as may be prescribed in the rules...the procedure to be followed in notifying persons consulted under section 125(3) that an application for approval has been received”
“provision as to the time within which any such person may make representations to the board about the application”.
In a sense, it is about the administration of the applications, but we feel that it is important to address some issues that were raised on the timing of the approvals boards and how long they might go on. It is important for the Secretary of State to be able to issue guidance and regulations, rather than leaving it to the board, as I explained.
5.58 pm
Sitting suspended for a Division in the House.
6.14 pm
On resuming—
Ms Winterton: I was about to finish, but I will let the right hon. Member for East Yorkshire intervene.
Mr. Knight: I am grateful. Can the Minister envisage circumstances in which the appeals board might want to award costs? Might that be one of the powers given it? I can only see the power being used in exceptional cases, but would she give the board that power?
Ms Winterton: I do not think that would be an appropriate mechanism for the approvals board. The idea of the approvals board is to have the ability to go through the processes I stated. It would not seem appropriate in that situation for there to be cost implications. That would occur in more of a legal situation.
Stephen Hammond: I appreciate that the Minister wants a consistent approach and I accept that she wants to set the parameters in which procedure may be followed. It could have been done by self-regulation, but I understand the consistency of approach argument.
Although the Minister has broadly addressed my concerns in amendments Nos. 65 and 66, what worries me is what she said on amendment No. 70, which we are also discussing. If one reads the Bill, the current wording—
“concerning the carrying out by a board of its functions under this Part in relation to quality contracts schemes”—
implies that it would allow the Secretary of State to interfere in individual cases. That is what the wording currently implies. The Minister said that she would do something more on the procedures through the guidance, but I look to her to write into the guidance that there is no way that the Secretary of State can interfere in individual cases. I will be looking for that in the guidance, and ensuring that it is there.
I leave the Minister with that thought—if the provision is not in the guidance, I will seek to bring it back on Report. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Norman Baker: I beg to move amendment No. 157, in clause 23, page 21, line 11, leave out ‘approval’ and insert ‘consideration’.
The Chairman: With this it will be convenient to discuss the following: amendment No. 158, in clause 23, page 21, line 16, leave out ‘approval’ and insert ‘consideration’.
Amendment No. 159, in clause 23, page 21, line 22, leave out ‘approval’ and insert ‘consideration’.
Amendment No. 160, in clause 23, page 21, line 24, leave out ‘reach its decision’ and insert ‘publish its recommendations’.
Amendment No. 161, in clause 23, page 21, line 25, leave out ‘approval’ and insert ‘consideration’.
Amendment No. 162, in clause 23, page 21, line 26, leave out ‘reach its decision’ and insert ‘publish its recommendations’.
Amendment No. 163, in clause 23, page 21, line 27, leave out ‘approval’ and insert ‘consideration’.
Amendment No. 164, in clause 23, page 21, line 29, leave out ‘reached its decision’ and insert ‘published its recommendations’.
Amendment No. 165, in clause 23, page 21, line 31, leave out ‘reach its decision’ and insert ‘publish its recommendations’.
Amendment No. 166, in clause 23, page 21, line 33, leave out ‘reach its decision’ and insert ‘publish its recommendations’.
Amendment No. 167, in clause 23, page 21, line 40, leave out ‘approval’ and insert ‘consideration’.
Amendment No. 168, in clause 23, page 22, leave out lines 1 and 2 and insert
‘“application for consideration” means an application under section 125A for consideration of a quality contracts scheme;’.
Amendment No. 170, in clause 25, page 23, line 26, leave out ‘applications for approval’ and insert ‘quality contract scheme’.
Amendment No. 171, in clause 25, page 23, line 30, leave out from second ‘the’ to end of line 31 and insert ‘authority proposing to make the scheme’.
Amendment No. 173, in clause 25, page 24, line 14, leave out ‘, or to the approvals board for England,’.
Amendment No. 174, in clause 25, page 24, line 20, leave out paragraph (b).
Amendment No. 175, in clause 25, page 24, line 26, leave out paragraph (e).
Amendment No. 176, in clause 25, page 24, line 36, leave out subsection (4).
Amendment No. 177, in clause 25, page 24, line 41, leave out paragraph ‘or (e)’.
Amendment No. 178, in clause 26, page 25, line 1, leave out subsection (2) and insert—
‘(2) For subsection (1) substitute—
“(1) Once the appropriate national authority considers the scheme, the authority or authorities who proposed it may make it, with or without modifications, at any time not later than 6 months after the date on which the recommendations of the approvals board are published.”’.
Amendment No. 179, in clause 26, page 25, line 11, leave out ‘approvals board for England’ and insert ‘authority proposing to make the scheme’.
Amendment No. 180, in clause 30, page 28, line 28, leave out ‘approval’ and insert ‘consulting’.
Amendment No. 181, in clause 30, page 28, line 29, leave out ‘section 126’ and insert ‘section 125A’.
Amendment No. 182, in clause 30, page 28, line 32, leave out ‘approval’ and insert ‘consulting’.
Amendment No. 183, in clause 31, page 28, leave out line 45 and insert ‘Section 125A (consideration of proposed scheme)’.
Amendment No. 184, in clause 32, page 31, line 20, leave out ‘approval’ and insert ‘consulting’.
Amendment No. 185, in clause 33, page 31, line 31, leave out from second ‘the’ to ‘applied’ in line 33, and insert
‘authority proposing the continuation of the scheme’.
Amendment No. 186, in clause 34, page 32, line 13, leave out paragraph (a) and insert—
‘(a) for paragraph (a) substitute—
“(a) requires the consideration of the scheme by the consulting authority which published recommendations on the scheme in accordance with section 125A, and”.’.
Amendment No. 187, in clause 35, page 33, line 19, leave out paragraph (c).
Amendment No. 188, in clause 36, page 33, line 24, at end insert—
‘(2A) In subsection (1)(b) for “approval” substitute “consideration”’.
Amendment No. 189, in clause 36, page 33, line 27, at end insert—
‘(aa) in paragraph (e) for “approval” substitute “consideration”’.
New clause 5—Approval of proposed scheme
‘(1) The Transport Act 2000 is amended as follows.
(2) Omit section 126 (approval of proposed scheme).
(3) After section 125 insert—
“125A Consideration of proposed scheme
(1) If, having complied with section 125, the authority or authorities wish to proceed with the proposed scheme, they must apply to the appropriate consulting authority for its consideration.
(2) In this Part “the appropriate consulting authority” means—
(a) where the area to which the scheme relates is in England, an approvals board for England; and
(b) where the area to which the scheme relates is in Wales, the Welsh Ministers.
(3) The application must include—
(a) the authority’s or the authorities’ reasons for wishing to make the scheme; and
(b) such other information as the appropriate consulting authority may reasonably require.
(4) The appropriate consulting authority shall give its opinion on the proposed scheme within 28 days of the later of—
(a) the application for its opinion; and
(b) the receipt of any further information requested under subsection (3)(b).
(5) The appropriate consulting authority may recommend modifications to the proposed scheme.
(6) Following receipt of the appropriate consulting authority’s opinion, the authority or authorities must take that opinion into account and may then proceed to—
(a) make the proposed scheme;
(b) discontinue the proposed scheme; or
(c) make the proposed scheme with modifications.
(7) If the authority or authorities propose to make the scheme with modifications, they must first consult such of the persons they consulted under section 125(3) as would in their opinion be affected by those modifications.”’.
Norman Baker: The debate is mainly about new clause 5, with the other amendments largely being consequential upon it, as are amendment No. 194, to which I referred on our debate on clause 19, and amendment No. 172 on clause 25, which only makes sense if read in conjunction with this string—otherwise it looks as though I am disempowering local authorities. It makes sense with this group of amendments. I give notice that, when we come to clause 25, I will not move amendment No. 172, because I am dealing with it here as part of this string—in my own mind at least. I also give notice that I would like to have a vote on new clause 5 in due course, which I assume will be at the end of the Bill.
I will briefly rehearse the reasons for tabling the amendments and new clause, before going on to what new clause 5 will do. The Minister and the Committee will know my concerns about the accountability of the traffic commissioners and the role that they have been given in the Bill. We still do not know how they are to be properly appointed or who they are to be—the guidance has not yet been produced. There is a question in my mind as to whether a body with that level of accountability should single-handedly make decisions about whether quality contracts schemes should go ahead. On balance, we need to try to enhance local democracy and accountability, rather than stymie it, as I fear the present Bill does. The Minister and I want to reach the same destination, but I am concerned that the system she is adopting is less democratic and, as I shall explain, too onerous to achieve the ends she wants.
My second issue of concern is that the approvals board is being asked to undertake functions for which it is not properly qualified. I mentioned in earlier amendments, last week, that I am not convinced that the traffic commissioners have sufficient experience of the day-to-day bus matters that passengers expect—whether buses are overladen and so on—which is their traditional role. The hon. Member for Manchester, Blackley raised an important point about double-hattedness in an intervention earlier.
I expressed concerns about what relevant experience might be applicable in the two experts whom the Minister wishes to put on the approvals board. I ask her to envisage, as we always should, what a hostile Minister could do with his or her powers if such a person came into office and could manipulate the system. The system that the Minister is creating will leave local elected bodies open to an unwelcome pincer movement from centralisation by the Secretary of State on one hand and an unsympathetic approvals board on the other. I do not think that is her intention, but the Bill in its present form creates that possibility.
There is also a related issue of whether it is appropriate in any circumstances for the approvals board to thwart what might be the democratic views of the elected ETA, ITA or whatever it will be called. We have discussed that, so I shall not rehearse the argument, but a parallel arose in my mind with the situation when the Governor-General of Australia sacked the elected Australian Prime Minister in the 1970s.
Ms Winterton: Is that a parallel?
Norman Baker: It is, because there was an elected body that answered to the public at large and was mostly in line with the public, as a local council or an ITA would be, and an unelected person who nevertheless had authority over that body and exercised theoretical powers that were entirely inappropriate. That is the parallel.
The Minister has constructed a rather Heath Robinson approach of hurdles and safeguards, for reasons that we know very well—to provide legal protection to local councils, ensure that they can carry through their intentions in terms of quality contracts and minimise the risk of successful legal action. However, her proposals are flawed in this respect: bus companies that are threatened with a significant loss of revenue but have plenty of money to use at present will not hesitate to use every possible avenue to protect their position. It does not matter how many safeguards the Minister includes; they will still take that approach if they can.
Furthermore, for the bus companies it need not be a matter of winning but of holding up progress, using every legal opportunity to thwart the introduction of quality contracts and making more money in the period before the quality contract is finally approved by judicial review or other process. I appreciate the Minister’s intention of limiting that period, as she mentioned, but nevertheless I think that will be the intention of some bus companies—not all by any means, but one or two. Whatever she does, she will not achieve the end that she seeks.
Conversely, new clause 5 would not weaken the position. It would maintain the best of what the Minister is proposing in the legislation while enhancing local democracy, which many people in this room want to enhance through the introduction of better arrangements, particularly for quality contracts. The ITA will pass on to the approvals board its deliberations, which the approvals board will then have the right to thwart if it chooses. I appreciate that it might not do so, of course; it might act within the narrow confines that the Minister seeks to set. It might be entirely harmonious with the ITA, but nevertheless it can thwart the ITA if it chooses. It can interpret the public interest in a way that the elected representatives for that area do not. It may have a different view of the public interest, and it is therefore a challenge to the democratic local body. It might not take account of issues that are not written in, such as the environment and so on.
I suggest that the approvals board should be set up and that the expertise that the Minister wants to pull in should be enjoined and used productively. She spoke of the approvals board engaging in discussions with the ITA—that is right; it should be a harmonious exchange of views—but under her proposals, if a local authority proposes a scheme that the approvals board rejects either wholly or in part, the ITA might feel that it must exercise its powers of appeal and move to the next stage. That is written into the Bill in clause 22, I believe.
Under my suggestion, the approvals board would be an important statutory consultee. It would deliberate on the same basis as the Minister seeks to do, and would return its thoughts to the ITA, which would have the final decision. The parallel that I made on Second Reading, which the hon. Member for Sheffield, Attercliffe made again today, is with the Environment Agency. The Environment Agency is an important statutory consultee on planning matters. It makes recommendations to planning authorities and regional flood committees. They do not have to adhere to the recommendations; they almost always do, but if members of those authorities identify an overriding public interest issue, which they feel that as elected people they must pursue, because that is what they were elected on or for whatever reason, they have the right to override the Environment Agency—perhaps not in total, but in a particular respect that they regard as important. That option of overriding in one particular respect is not available under the Minister’s scheme; her option is an appeal to the Transport Tribunal.
Any ITA seeking to exercise the power would have to think very carefully indeed. It would have to think about the legal risk arising from not adhering to the approvals board, and the financial consequences that might flow from that. It would have to consider whether the Transport Tribunal, which would still exist under the proposed system, will take the view that the ITA has been irresponsible in not following the approvals board advice. It would have to take into account whether there would be a problem further down the line if the matter went to the courts. As an elected local body, however, it would still have the right to say that its judgment was different to the approvals board, which had in this case got it wrong. Its members could say, “We must have the right as elected local people to take the decision, whatever the risks.” They would bear the risks if they got it wrong, but it is better that they get it right, than that they do not and can be effectively controlled, if it comes to it, by the decision of the approvals board. That is the suggestion that I am putting to the Minister.
The amendment would retain the expertise that the Minister wants for the approvals board. It would make the approvals board important in terms of the advice it gives to ITAs or councils when undertaking quality contracts; it would retain the Transport Tribunal option, which is the independent appeals process that the Minister rightly said has to exist; and it ultimately would retain the High Court and judicial review process, should somebody wish to go down that road. It would also remove one of the hurdles that I fear will make quality contracts unattractive to local authorities, which neither the Minister nor I want. It would legitimise the process by having the decision taken at a democratic level by an elected body, rather than by an unelected approvals board. With all due modesty, I suggest that my proposal is the best of both worlds and I hope that she will give it serious consideration.
The Minister recognises that there are rules for local authorities, for example on road charging, which we shall no doubt come to later in the Bill. The onus on local authorities with regard to road charging is rather less than what they can do with quality contracts. They have more freedom to act on road charging, and it might be argued that it is rather odd to tie them down on quality contracts, while allowing flexibility on road charging. Personally, I would allow flexibility on both. That is a particular view, but there is inconsistency on that issue in the Bill.
The Minister said earlier that the approvals board will be able to make modifications and she used that as a justification for her scheme. Under my proposal, the ability of the approvals board to make modifications would be enhanced because it would report back to the elected body, which might say that its suggestion was sensible and would take it on board right away. As the Bill stands, the approvals board may feel reluctant to impose its will on local authorities because it is not elected. If it could refer back to the ITA or the local authority with one or two suggestions, it might feel easier about making modifications and improvements to the scheme, and the ITA might feel easier about accepting them.
6.30 pm
I hope that I have made the case for my alternative suggestions. I am not being difficult, but the Minister will recognise that keen voices on the Labour Benches are questioning this part of the Bill and the approvals procedure. I am keen to find a solution that maintains the integrity of what she wants, but provides extra democratic legitimacy, and, with respect, new clause 5 would achieve both those ends. I hope that she will consider it sympathetically, if not today, on Report when she could, if she does not want my new clause, introduce a similar provision.
Graham Stringer: I will try not to repeat any of the arguments made this morning, and will be as brief as possible because time is moving on.
My first point concerns the role of traffic commissioners on what would be an advisory body under the amendment, and an appeals body under the Bill. When the Select Committee considered the role of traffic commissioners in this area, it listened carefully to the senior traffic commissioner and the traffic commissioner for the north-west of England who appeared before the Committee. They were primarily concerned with the burden on the senior traffic commissioner and said that it should be spread on the basis of time and local knowledge. That was the reason for the recommendation, and in that context it was a good one because it would improve existing provision.
Having thought about the matter and read more as the debate has continued, it seems that the logic, from the point of view of the Minister and of the hon. Member for Lewes in the amendment, is that the traffic commissioners look increasingly odd in the role. Their normal job is to adjudicate on whether a registered bus service complies with its registration or whether the operators are doing something that they should not be doing. They have in effect a quasi-judicial role, and putting them in the position of transport experts and allowing them to decide whether a scheme is in the public interest is stretching the definition. The hon. Gentleman would say that that is making them wear two hats—and some barristers would say that it is forcing them to sit on two stools—but in simple language they may experience a conflict of interest. My conclusion is that whatever the scheme, they are probably not the right people to be there. That is the specific point I wished to make.
The general point made by the hon. Gentleman has weight, as I said this morning. If we want to ensure that the people making decisions on what will improve public transport are elected local people, and give the electorate the opportunity to say what they want and to say in elections which schemes they want, there are three, not two, alternatives. There is the alternative of no appeals body, with the local authority’s integrated transport authority getting it right or not getting it right, with aggressive pressure from the bus companies operating as a force to ensure proper compliance with both procedure and the law. There are the alternatives of narrowing the appeals body down to dealing just with procedure, and the proposals of the hon. Member for Lewes.
I hope that my right hon. Friend the Minister will listen carefully to the arguments on those three points, and consider introducing proposals on Report to enhance the role of elected councillors by leaving the initial decision on whether to go for the scheme and the final decision on what scheme to choose up to them. That is pretty fundamental politics. In looking at the details, and not just the role of the traffic commissioner, I have thought carefully about the membership of the committee and what it really means. Who are the experts? Are they professors of transport? If one goes to any conference on transport matters, there is not one view from the experts. Professors of transport vary in their views as we vary in our views round this room. The most free-market professor of transport is from Oxford and he would say, as would the hon. Member for Wimbledon, “This is a load of nonsense. Leave it up to the market completely.” Professors from University college London and Edinburgh would say, “This does not go far enough. There must be more regulation and restriction.” The same is true of traffic planners and others, so how will the experts be chosen?
When it comes to looking at what is in the public interest, the professor from Oxford would say, “None of this is in the public interest. Leave it to the market.” Other professors will say X or Y. My point is simply that it is impossible to find a professor who does not have a value-laden background that he will bring to the party.
Mr. Knight: But surely, in the scenario that the hon. Gentleman is painting, the free market professor, who wants nothing to do with this system, would refuse to serve. In practice, only those who believe in the integrity of the process will allow their names to be put forward.
Graham Stringer: That may or may not be true. If it is, it makes the point that we will not find an expert from outside, but only somebody who agrees with the values in the scheme. On looking at the detail of the proposal in that way, one can see that it argues that elected members should take that responsibility. The same thing is driving this Government as drove the previous Government. There are lots of failures in local government and possibly even more in central Government. Governments, under whichever political party, have the drive that says, “If we have the right experts or the right quangos, they will advise us correctly and we will not make the mistakes that are usually made in central Government and local government.”
Having looked at how quangos operate, I must say that they come and they go. The Learning and Skills Council has been and gone. It was introduced to replace central Government and local authorities in funding further education, but now it has gone. I think that the same applies here and that argues very strongly that we should find a way through. I appeal to my right hon. Friend the Minister to find a way through that will give primacy to local democracy, whichever of the three paths we go down. We could go down some variation on one of those or down a fourth way, if she can think of one. That would make a lot of hon. Members of all parties happy, including some from the Conservative party who have a genuine belief in local democracy.
Ms Winterton: As my hon. Friend the Member for Manchester, Blackley and the hon. Member for Lewes have said, the amendments relate to the discussion that we had earlier. I assure the Committee that I have listened very carefully to the points that have been made on this issue. I hope that there is recognition that in the Bill we are trying to create greater flexibility for local authorities to introduce quality contracts if they wish. The Secretary of State can be removed from the quasi-judicial role occupied at the moment, which means that there is very little ability for the Department to give advice, if required, on the issues about quality contracts. There is a real risk of judicial review, and the hon. Member for Lewes set that out very clearly. It is therefore incumbent on us to try to find a way of protecting local authorities from the possibility of judicial review, to give them certainty to go forward with schemes if they wish to do so.
Ian Stewart: Am I hearing right? Does that mean that there is further scope for discussions with local authorities and transport authorities on some of these issues?
Ms Winterton: I have outlined the principles. In Committee, we have been able to say that there is agreement on the various issues that I have just talked about. However, I will come back to the point that I believe that the process that we have outlined in the Bill is the right one to give the greatest legal certainty to local authorities and the greatest protection about judicial review. I hope that what I have been able to do today, particularly outlining some of the narrow areas that we expect to be covered, is helpful.
I will just make one further comment before I conclude because, as I said, I do not particularly want to rehearse all the arguments that we had earlier. The proposition by the hon. Member for Lewes—[ Interruption. ] I might have got that one wrong; he has gone all red. His proposal was for the approvals board. My observation—and I think that he touched on this issue himself—is that if the members of the approvals board decided that they were going to say, in the way that he set out, “This scheme is totally wrong, we do not agree with it and it should not even be considered”, and the local authority decided to go ahead with the scheme, the problem for the local authority would almost be enhanced in terms of judicial review. That is one of the difficulties with the scheme that the hon. Gentleman outlined.
I have, of course, listened very carefully to a lot of the points that have been made today and I would not in any sense wish to indicate that I would not take them away and consider them; that is the point of the Committee stage. The discussions that we have had today have emphasised to me the fact that we need to have that certainty. These are not easy issues; it is not easy to find a way to give local authorities that kind of legal certainty and protection, which is important. That is why I ask the hon. Gentleman to withdraw his amendment.
Norman Baker: The new clause is the issue in which I am interested and I have already indicated that I wish to push it to a vote at the appropriate stage in proceedings. I am sorry to say that nothing the Minister has said has dissuaded me from that course. This is quite an important matter; in fact, it goes to the heart of how the Bill works. Without rehearsing all the arguments, let me just pick up on one or two of the points that the Minister has made.
6.45 pm
The Minister says that she wants to build in legal certainty for local authorities. First, there is no legal certainty. As other hon. Members and I have said, the bus companies may choose to take legal action in any event. The Minister may minimise the risk of a successful legal action, but I do not think that she will minimise the risk of legal action and she certainly will not build in legal certainty, to use her words.
Ms Winterton: I am sure that the hon. Gentleman will accept that obtaining leave to go to judicial review is much more difficult if a process has been followed in terms of an appeal, particularly a tribunal.
Norman Baker: Yes, I accept that, and the process that I suggest in new clause 5 would build in near enough the same certainty that the Minister has provided. It would keep the Transport Tribunal. It would keep the tribunal to which she referred as an independent body to consider decisions, and it would allow an approvals board to provide expert advice to the relevant transport authority. She is trading off what she regards as greater legal certainty against a loss of democratic accountability, and the loss of a workable, attractive scheme for something much less desirable. I am tempted to say that the provision could have been an amendment tabled by the hon. Member for Wimbledon, but it would be rather unkind to characterise it in those terms, although it certainly makes quality contracts less workable.
I made the point myself—the Minister reiterated it—that if, under my scheme, a local authority were to ignore entirely the advice of the approvals board, it would be very foolish. It would be sensible to take advice from the approvals board. It is true that the authority leaves itself more open to judicial review if it refuses to accept the advice of the approvals board, but ultimately that is its choice. Its members are elected. They must make that calculation. They must weigh up what is important and less important for them. They must weigh up the risk to the taxpayer. They should take that decision; it should not be forced on them by an unelected approvals board. The Minister also made the point that she wants to remove the Secretary of State from quasi-judicial decisions. So do I, and nothing in new clause 5 would counteract that. I support the point about removing the Secretary of State from the process. It is not counteracted by new clause 5.
The hon. Member for Manchester, Blackley set out three alternatives, but we did not hear the Minister talk about looking at those again on Report, although both he and I asked her to do so. The most we got was an assurance that she would take the points away and consider them. I do not think that that constitutes looking at the issue again on Report. I do not wish to over-egg her comments. If she did mean that she will look at the issue again on Report, that is very welcome. If she did not quite mean that, that is less welcome.
There is a fourth alternative, which is an amendment that I tabled for consideration later in Committee. It would remove the Transport Tribunal, which is one way of removing another hurdle. If I am honest, it is a far inferior amendment, because it would take away the tribunal process, but it would limit the number of hurdles. I prefer new clause 5 to the removal of the Transport Tribunal, but that is a fourth alternative, which we will come to in due course.
With respect, I conclude that the Minister needs to think again, because salient arguments have been made by a number of hon. Members, not least from her own party, about the problems with the present arrangements regarding democratic accountability. The new clause 5 alternative offers her a way forward. I hope that she will take it away and look at it again seriously, and return on Report with a provision that meets some of the points that hon. Members have made. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Further consideration adjourned.—[Mr. Watts.]
Adjourned accordingly at eleven minutes to Seven o’clock till Tuesday 6 May at half-past Ten o’clock.
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