Supplementary Memorandum by the Department
of the Environment, Transport and the Regions
1. In its 20th Report, Session 1999-2000, the Committee
reported on the delegated powers contained in the Transport Bill,
including those introduced to the Bill as Government amendments
during Grand Committee consideration in the House of Lords.
2. The Government has tabled a small number of amendments
consideration at Report stage, some of which contain delegated
(i) Bus lane enforcement (paragraphs 5 to 9)
amendments to clause 143 to enable regulations to
be made to extend clause 143 to London and at the same time to
repeal the bus lane provisions in the London Local Authorities
Acts of 1996 and 2000;
(ii) Railways (paragraphs 10 to 12)
amendments to clause 244 to restrict the amount of
financial penalty which may be imposed by the Rail Regulator or
Strategic Rail Authority for contraventions of licence conditions
etc in line with the Utilities Act 2000;
(iii) Driver training and instruction (paragraphs 13 to 26)
four new clauses and a new Schedule to prescribe
driver training courses for different types of motor vehicle and
provision, including new fees, in the context for improved supervision
and appeal arrangements for Approved Driving Instructors;
(iv) Street works (paragraphs 27 to 36)
two new clauses amending section 74 of the New Roads
and Street Works Act 1991 (charge for occupation of the highway
where works are unreasonably prolonged), and a new power to charge
undertakers for occupation of the highway from the start of works;
(v) London bus service permit appeals (paragraphs 37 to 41)
a new clause to amend section 189 of the Greater
London Authority Act 1999 to provide for appeals against the refusal,
suspension or revocation by Transport for London of a permit to
provide local bus services to be heard by an independent panel
appointed by the Lord Chancellor.
3. This Memorandum explains the purpose of the relevant
powers contained in those amendments, the reason why the provision
is to be dealt with by delegated legislation, and the nature of,
and reason for, the procedure selected.
4. Copies of the amendments are attached [not
Bus lane enforcement
5. The amendments to clause 143 will enable the Secretary
of State to repeal the existing London legislation relating to
moving bus lane offences and will apply clause 143 for London
in its place Transport for London (TfL) and the London local authorities
would be the enforcement authorities for London under the new
1.1. The amendments provide greater flexibility of
powers, as the Secretary of State or the National Assembly for
Wales (NAW) are given powers to make regulations specifying the
person by whom a penalty charge in respect of a contravention
is to be paid.
6. At the Committee stage in the House of Lords,
Ministers indicated that they intend, at least initially, to make
regulations for areas outside London on the basis of driver
liability. The matter will obviously be kept under review.
7. In London the current system operates on the basis
of owner liability but as this is specified in the London
Local Authorities Act 1996 (as amended) it can only be changed
by primary legislation unless that legislation is repealed. The
main advantage of the current amendments is that it will enable
clause 143 to be applied to London with the flexibility to impose
the basis of liability for charges by regulations and subsequently
to change that basis also by regulations. It is considered prudent
to allow owner liability to continue to apply in London for the
foreseeable future but this will be kept under review. It will
be necessary to monitor rates of compliance with bus lane requirements,
costs of enforcement and the methods of detecting breaches.
8. Regulations made under these powers would be subject
to negative resolution procedure.
9. Clause 224 of the Bill amends the enforcement
provisions of the Railways Act 1993. It extends the powers of
the Strategic Rail Authority and the Rail Regulator to make orders
to secure compliance with the requirements of franchise agreements,
railway closure conditions and licences, and to impose penalties
on operators for breaches.
10. Amendments have been tabled to clause 224(1)
and (2) to restrict the amount of a penalty to an amount not exceeding
10 per cent of the turnover of the operator in question. The precise
definition of "turnover" is a matter which may require
adjustment over time and thus the amendments provide for the Secretary
of State to make an order by statutory instrument to provide the
means of determining an operator's turnover for this purpose.
11. Any order made under this clause will be subject
to affirmative resolution of both Houses of Parliament. The powers
given to the Secretary of State are precedented by powers under
sections 60 and 95 of the Utilities Act 2000 in respect of maximum
penalties that may be imposed on gas and electricity suppliers.
The application of affirmative procedure provides for a high level
of Parliamentary control in relation to this issue.
Driver training and regulation
DRIVER TRAINING COURSES
12. New clause (Compulsory driver training courses),
and paragraphs 2 to 6 of the new Schedule (Driver training
and driving instructors: minor and consequential amendments),
provide for the Secretary of State to introduce, by regulations,
training courses for users of different classes of motor vehicle.
This will allow the Secretary of State to introduce training schemes
that give effect to policies which raise driving standards and
reduce road casualties, as set out in the Government's road safety
strategy Tomorrow's roads - safer for everyone.
13. The new clause
replaces sections 89(2A) and (5A) and 97(3)(e), (3A) and (3B)
of the Road Traffic 1988 Act. These sections enable the Secretary
of State to make regulations obliging moped and motorcycle riders
to undertake prescribed basic training courses before their provisional
licences entitle them to ride on the road or take a test.
14. The key differences
between the new and the old provisions are that the new provisions
allow for the introduction of training courses for users of all
motor vehicles, not simply motorcycle and moped riders, and for
different purposes as well as providing greater clarity about
the nature of the enabling powers, such as provision to include
an appeals system for trainers.
15. As is currently
the case with courses for moped and motorcycle riders, the training
obligation will be discharged when the trainer is satisfied that
the trainee has achieved the appropriate standard of competence.
Regulations will specify matters such as course content, approval
of training bodies for organising courses and certification of
16. Depending on
the type of motor vehicle, it is considered sensible to introduce
a training requirement at different stages in the learning process.
The new clause will enable the Secretary of State to require a
person to undertake training:
- before he would be allowed to take a driving
test or a particular part of a test (almost all tests being conducted
as 2-part tests, theoretical and practical);
- before he could use a provisional licence, or
automatic provisional entitlement, to drive on the road (so that
the Department would be able to introduce a basic training requirement
for drivers of all types of vehicle);
- before he could be granted a full licence for
a class of vehicle following the passing of a test for a different
class of vehicle, (unlike the current position where, for example,
a person passing a motor car test could be granted a full licence
to ride a moped without having had any experience or training
in riding one);
- before he could drive motor vehicles of a particular
class in particular circumstances (so that the Department could,
for example, require a person who had passed a test to drive a
large goods vehicle to be supervised while driving a loaded vehicle
until such time as he had received training in the driving of
driver training schemes by regulation allows the Secretary of
State to bring forward individual schemes for different types
of motor vehicle as they are developed, and flexibility to adjust
the content of training schemes in the light of experience and
research evidence. The clause allows different schemes to be prescribed
in different circumstances, and for exemptions to be prescribed
from a training requirement.
18. As with the
current provision for motorcycle and moped rider training courses,
regulations will be subject to negative resolution procedure by
virtue of section 195(3) of the 1988 Act. Before making regulations,
the Secretary of State will, in line with section 195(2) of the
1988 Act, undertake consultation with representative organisations.
DRIVING INSTRUCTORS: APPEALS AND RELATED MATTERS
19. New clauses (Register of approved instructors:
appeals and Taking effect of decisions about instructors)
and paragraphs 7 to 12 of the new Schedule, provide for improvements
to the regulation of professional car driving instructors, which
is provided for in Part V of the 1988 Act. In particular, provision
is made for appeals against decisions of the Registrar of Approved
Driving Instructors (ADIs) to be determined by the Transport Tribunal
and not the Secretary of State, and for magistrates' courts (Sheriffs
in Scotland) to have the power to review the conduct of tests
of continued ability and fitness to give instruction and emergency
control assessments as well as qualifying examinations.
20. Paragraph 9
of the Schedule amends the regulation-making power in section
132 of the 1988 Act. Paragraph 9(3)(b) provides that (in addition
to the current fee for the qualifying examination) fees can be
charged for the periodic tests of continued ability and fitness
to give instruction which instructors must undergo. Paragraph
9(3)(c) enables the Secretary of State to require a candidate
for a test of continued ability and fitness to give instruction
to provide him with appropriate particulars.
21. Paragraph 10
of the Schedule extends the existing regulation-making power to
enable the Secretary of State to charge a fee to recover his costs
for undertaking an emergency control assessment of a disabled
a power to charge a specific fee for each type of test, so that
the user pays for the public sector costs associated with the
particular activity, is fairer and better meets the principles
of better regulation. Currently, where no test fees are charged
any costs incurred by the Registrar or Secretary of State are
met from other fees paid by ADIs. This means that higher graded
ADIs, who take fewer tests of continued ability and fitness to
give instruction, are subsidising the remainder.
23. Treating the level of test fees and test particulars
as matters to be dealt with by regulation affords the Secretary
of State the flexibility to adjust these consequential provisions
as circumstances change.
24. As is currently
the case, regulations made under these powers would be subject
to negative resolution procedure by virtue of section 195(3) of
the 1988 Act. Although it is not a requirement of section 195(2)
of the 1988 Act, the Secretary of State has established the practice,
before making regulations under Part V of the 1988 Act (which
provides for the regulation of driving instructors) of undertaking
consultation with representative organisations.
25. Driver training
issues are not devolved.
26. Two new clauses aimed at minimising traffic delays
and congestion caused by continued and lengthy street works, primarily
by the utility companies. Section 74 of the New Roads and Street
Works Act 1991 gives the Secretary of State powers to make regulations
which enable highway authorities to charge for overstaying in
the maintainable highway. Ministers announced in April 2000 that
section 74 would be implemented and draft regulations have since
been issued for public consultation.
NEW CLAUSE - CHARGE DETERMINED BY REFERENCE TO DURATION
OF WORKS ("LANE RENTAL")
27. Subsection (1) of this new clause would provide
powers for the Secretary of State to introduce regulations that
would require utilities to pay a charge to an approved highway
authority for occupying the street when carrying out street works,
ie "lane rental". The new clause inserts a new section
74A into the 1991 Act. This charge would be payable from the start
of works, regardless of whether the works overran.
28. Following the precedent set in the 1991 Act,
in particular in relation to section 74, it is intended that the
detailed arrangements for charging lane rental should be set out
in regulations, which can be comparatively easily modified or
replaced later in the light of experience. However, it is intended
that the primary power for lane rental charges would only be activated
if the power under section 74 for highway authorities to charge
undertakers for works that overrun proves insufficient to reduce
the disruption caused by street works. It would not be obligatory
for a highway authority to operate a scheme, but where they wished
to do so it would need to be submitted to the appropriate national
authority (the Secretary of State in England and National Assembly
in Wales) for approval.
29. The operative parts of the clause set out the
matters that would be covered in detail by the Regulations. These
are identified in subsections (3) - (11). They are as follows:
- whether there would be any exemptions from the
requirement to pay charges;
- the basis and/or level of the charge, which would
allow variations according to the location of the works, and their
extent and timing, and such other factors as the Secretary of
State or National Assembly considered relevant;
- the details of the different type of notices
which would be generated by undertakers and highway authorities
in order to operate the system;
- the arrangements for allowing a highway authority
to waive or reduce the charges under certain circumstances;
- the time and manner in which the charges would
have to be paid;
- what use the revenue raised through charges could
be put to;
- whether criminal sanctions would be applied to
an undertaker that failed to produce accurate works notices on
- what the arrangements would be for resolving
30. The remaining subsections of the new clause do
not contain regulation-making powers but provide that the first
regulations to be made under the inserted section 74A of the 1991
Act would be subject to the affirmative resolution procedure (as
is the case for the first Regulations made under section 74).
NEW CLAUSE - CHARGES WHERE WORKS UNREASONABLY PROLONGED
31. During the course of preparing the draft regulations
to implement section 74 of the 1991 Act it became clear that in
any scheme for providing for highway authorities to charge undertakers,
the charging authorities would need clear evidence of the date
when works began, when the site had been cleared, and when the
works had been finished following interim reinstatement or (where
there is none) final reinstatement of the road surface. The best
way of ensuring this would be to include provision in the regulations
for notices to be given by utilities to the highway authority
stating the date of actual start of works, works clear
and works closed. There are, however, no powers for requiring
such notices under the 1991 Act.
32. In addition, although section 74 provides that
an undertaker may inform the highway authority that its original
estimate of the duration of works is likely to be exceeded, there
is no power to require that this be done by way of a notice from
the undertaker to the authority, or to prescribe the contents
of such a notice.
33. The new clause would, therefore, amend section
74 of the 1991 Act to provide for such notices to be given, and
would also provide for their contents to be prescribed in regulations.
34. The new clauses would extend to England and Wales,
although it is understood that the National Assembly for Wales
currently has no plans to make regulations introducing lane rental
in the Principality. So far as Scotland is concerned, road works
being a devolved matter, it would be for the Scottish Parliament
to make separate provision in primary legislation, whether by
way of similar amendments to Part IV of the New Roads and Street
Works Act 1991, or otherwise.
35. It is proposed that the new clauses would be
commenced through Commencement Orders, made separately by the
Secretary of State in respect of England and the National Assembly
in respect of Wales.
Appeals relating to London bus service permits
36. New clause [London service permits: appeals]
would amend section 189 of the Greater London Authority Act 1999
(the 1999 Act) to provide for appeals against the refusal, suspension
or revocation by Transport for London of a permit to operate local
bus services to be heard by an independent panel appointed by
the Lord Chancellor.
37. The need for the new clause arose from a check
on the human rights compatibility of the 1999 Act, which exposed
a difficulty with section 189 of that Act. Under that section,
bus operators may appeal to the Mayor against the refusal, suspension
or revocation by Transport for London of a London bus service
permit Appeals would be heard by the Mayor. Although the Mayor
must appoint a panel of independent people to advise him, he makes
the final decision. It is highly questionable whether the Mayor
can be considered independent of the appeals body. These provisions
might contravene the requirements of Article 6 of the Human Rights
Convention (ie, a right to a fair trial). The new clause is intended
to ensure that the appeals process is independent of the Mayor
and thus compatible with the Human Rights Act.
38. Subsection 3 provides for the Secretary of State
to make regulations prescribing the procedure for making appeals.
Subsection 5 gives the Secretary of State the power to make regulations
providing for the charging of reasonable fees.
39. The regulation making powers are necessary to
allow the Secretary of State flexibility to determine the procedure
for making appeals and the fees that appellants must pay to make
an appeal. Fees are likely to be payable to the Secretary of State
who will be responsible for financing the work of the appeals
40. Regulations would be subject to the negative
resolution procedure under section 420(7) of the 1999 Act
since any regulations will deal with purely administrative matters.