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Lord Berkeley: My Lords, is the noble Lord going speak to Amendment No. 26?

Lord Bradshaw: My Lords, I beg your pardon. I did not realise that it had been called.

We have come across a somewhat anomalous situation in the regulations. As I understand it, it was the Government's intention under the Transport Act 2000 to

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make sure that a vehicle which did not have an operator's licence could impounded by the Vehicle Inspectorate. As a result of a case which has recently been held by the Transport Tribunal, it appears that a company which hires out vehicles has no obligation to make sure that the person to whom it has hired them does indeed have the operator's licence. It can therefore claim back the vehicle from the impounder. That has the effect of circumnavigating the Government's legislation. Bearing in mind that the vehicles to which any value is attached are usually the ones which are hired out, it could mean that as many as 80 or 90 per cent of vehicles on hire may not have an operator licence. I am not saying that they do not, because most of them do, but the ones that do not can then be claimed back by the holder of the master lease, because he can say that he has no duty to ensure that there is an operator's licence.

Lord Berkeley: My Lords, I support the amendments. I will not make a long speech about them. Amendment No. 25 has been discussed in your Lordships' House many times. It really is time that this matter was resolved, because the traffic commissioners have a unique role to play, if they are allowed to play it. It is ridiculous that if there is legislation which allows vehicles to be impounded for doing something wrong, one can get round that by leasing them rather than owning them. That makes a mockery of the law. I fully support the amendments.

6 p.m.

Lord McIntosh of Haringey: My Lords, we have had the opportunity to discuss this issue between Committee and Report. There did seem to be a conflict of evidence—perhaps I should put it that way—so I shall therefore read word for word the speaking note that I have been given.

Local authorities and planning authorities have a statutory right to object to goods operator licence applications. They are sent details of all applications in their area. They can object to a proposed operating centre on the environmental factors that result from the use of the land or the general suitability of the centre in terms of its size, parking arrangements and ingress/egress on to the public highway. They also have a right of appeal to the Transport Tribunal against a traffic commissioner's decision. The traffic commissioners would like local authorities to take a more proactive role in the licensing process.

Traffic commissioners' powers are limited, when deciding on licence applications, to considering the operating centre itself, any private road leading to a nearby public road and the point of ingress and egress on to the public highway. If objections are received that are based on factors outside this scope, for example traffic problems on the wider road network, then the traffic commissioner is unable to consider them. So far, the noble Lord, Lord Bradshaw, and I are in agreement.

Although the traffic commissioners cannot consider the wider road network, the local authorities themselves have wide powers under the Road Traffic Regulation Act 1984 to regulate traffic by means of

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traffic regulation orders. These can be used to prohibit, restrict or regulate the use of goods vehicles. In exercising these powers it is for the local authority to consider the needs of local residents, emergency services, local businesses and those who work in or visit the area. They can use these powers to balance the supply and demand for road space in the light of local needs and circumstances.

Local authorities can, and should, also use their planning powers to stop the opening of a new operating centre if the road network cannot take it. It is right that these powers should rest with local authorities rather than with traffic commissioners. Traffic commissioners are unlikely to have enough detailed knowledge of road traffic conditions to make decisions on the suitability of additional vehicles on the local road network. Pressure on the local road network can be caused by many other factors than an operating centre, and local authorities have the local knowledge to allow them to take these factors into account. We therefore see no reason to extend the traffic commissioners' powers in this way. I have details of the traffic commissioners' Annual Report for 2001–02 which I shall happily send to the noble Lord, Lord Bradshaw.

Regarding Amendment No. 26, the owner of the vehicle detained by the Vehicle and Operator Services Agency can apply to a traffic commissioner for the return of the vehicle on the grounds that he or she did not know that the vehicle was being operated illegally. It is the matter of when a leasing company is to be taken to "know" that is at the heart of the matter. I have looked into the two cases which were mentioned, where impounded vehicles were apparently handed back to the leasing company owners. I am sorry to say that they were not straightforward.

One case involved three separate hearings. A leasing company leased a vehicle to an operator on the basis of a statement from that operator that he would operate the vehicle in accordance with the law. They made a number of efforts to find out if the operator held a licence. The matter had not been solved when the vehicle was impounded. At the first hearing a traffic commissioner refused the application for the return of the vehicle. The Transport Tribunal on appeal sent the case back for re-hearing. Another traffic commissioner then decided, in the light of the tribunal's guidance, and after reviewing the evidence, that the owners did not know that the vehicle was being operated illegally, and directed that the vehicle should be returned. However, she noted that the company had since become aware that licences could readily be checked on the department's electronic database of operators—the existence of the database is now widely known throughout the industry.

On the basis of the guidance given by the tribunal in this case, it seems fairly clear that turning a blind eye or not persisting in making normal inquiries will amount to knowledge for the purposes of the current legislation, and the vehicles of a hiring company that was to turn a blind eye would therefore be at risk. Furthermore, although it is ultimately a matter for the

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courts to decide, it does seem now that the existence of the database is becoming more widely known, and any company failing to make that one simple inquiry would have much explaining to do.

Perhaps I do not need to describe the second case, but I think that the conclusion is clear. The hiring and leasing industry has been very diligent in informing customers about operator licensing requirements and in carrying out voluntary checks of licences. If one hires a car, the hiring company invariably requires to see one's driving licence, though it has no obligation to do so. Since it is now well known that it is possible for the hiring company to check on the database, there is no reason why self-regulation, as we have at present, should not work. Therefore, the amendment should not be pressed.

Lord Bradshaw: My Lords, I thank the Minister for that reply. However, I find that his reply to Amendment No. 25 is not valid. When planning permission is given for an operating centre, it is not necessary to specify the type of vehicle that will use it. Someone applies for planning permission for vehicles to use an operating centre, but it is often not apparent the sort of vehicles that will use it. Specifying whether one will get a 17-tonne fixed-wheel vehicle or a 32, 38 or 44-tonne artic is unnecessary.

The imposition by local authorities of traffic orders is lengthy and extremely difficult, and their enforcement by the police is almost non-existent. It must come almost at the bottom of the list of priorities for any police force. However, the traffic commissioners are available and know about local traffic conditions—that is why they are there. They certainly know a lot that local authority employers do not; for example, they know about the records of people who apply, what they have done before, who their managers are, and all sorts of relevant matters.

I will withdraw the amendment but I shall ask the Minister, before Third Reading, to explain why the very simple addition to traffic commissioners' responsibilities cannot be made. I have a feeling that it is more to do with the obduracy of certain officials in the department than with whether it can be done. Occasionally, we on these Benches say something sensible.

I accept what the Minister said about Amendment No. 26 if we now assume that the existence of the database is widely known among leasing companies. The ability to make a check is therefore available to anyone, and anyone who fails to make it deserves to have his vehicle impounded. I hope that the Transport Tribunal, if no one else, reads what the Minister and I have said in Hansard, and that in future the vehicles will not be returned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Clause 108 [Highways: snow and ice]:

Lord Berkeley moved Amendment No. 27:

    Page 48, leave out lines 35 to 37 and insert—

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""(1A) In particular, a highway authority is under a duty to ensure, so far as is reasonably practicable, that—
(a) safe passage along a highway is not endangered by snow and ice; and
(b) where the highway is in the vicinity of a railway, otherwise than where the railways crosses the highway on the same level, they take steps to constrain vehicles which use that section of highway from being able to depart from it so as to cause a hazard to the safe operation of the railway.
For the purposes of this subsection, 'railway' means a railway within the meaning given by section 119A (12).""

The noble Lord said: My Lords, the amendment is a second attempt. I suggest that it is an elegant way of extending the snow-plough clause, which, after all, was I believe responsible for changing the name of the Bill from the railways safety Bill to the Railways and Transport Safety Bill. I am sure that my noble friend will correct me if I am wrong.

The amendment is nothing to do with snow ploughs. It revisits why the railways should have to pay to keep cars on the road rather than on the railway. We debated that in Grand Committee, when the noble Baroness, Lady Scott, said that it was not fair that local authorities that were short of money should have to protect their roads that were next to railways to prevent cars and lorries from jumping on the railway lines. That argument is to do with ability to pay. Given the railways' financial situation, it could equally well be applied to them.

At the moment, we have a nice cosy arrangement of sharing the cost, set out in the lovely document, Managing the accidental obstruction of the railway by road vehicles. That cost is not insignificant at about 60 million in total. It seems unfair that the railways should have to pay half of that. One could argue that, leaving aside level crossings, if road vehicles land on the railways that is the fault of the road vehicles and the highways on which they run. It is up to the highways and the authorities, be they local authorities, the Highways Agency or anyone in between, to take steps to prevent such occurrences. That is why I tabled the amendment as an addition to the snow-plough clause. I beg to move.

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