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.
Finally,
amendment No. 70 would remove the Secretary of State’s power to
issue guidance to the approvals board. That is intended to ensure
consistency of approach
between the variously constituted boards. The Department will consult on
the guidance—it will not be imposed unilaterally—but
placing the entire decision-making process in the hands of an as yet
untried board would be an extremely great risk. It is not how we
envisage the relationship between the Secretary of State and the
approvals board. The measure is about not the Secretary of State
dictating on individual cases, but setting general rules and guidance
if necessary.
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”
and
“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)
‘(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—
(4)
“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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