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Viscount Astor: My Lords, the Minister said that the guidance would be subject to parliamentary scrutiny. Will it be subject to an affirmative order?

Lord Evans of Temple Guiting: My Lords, I am advised that it will not be subject to an affirmative order.

Viscount Astor: My Lords, then I am not sure how we are going to scrutinise it—perhaps that is an issue that we may consider. It is another issue in the Bill on which the Government have said, "Don't worry, we'll put the details in the guidance", yet we have to take on trust what the guidance is going to say. However, as the noble Lord, Lord Evans, has told me that the details will be in guidance and has given me assurances, I take him entirely at face value. I am sure that they will be there. But it would be helpful between now and Third Reading if the Minister could write to me and explain how we are going to scrutinise that guidance.

The Minister has been helpful in his reply, but he made one statement which I believe will come back to haunt him during later stages. He said that the Government were not being prescriptive in the Bill. Under a later amendment I shall demonstrate to your Lordships' House how they have been over-prescriptive. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Borrie moved Amendment No. 13:

The noble Lord said: My Lords, in moving the amendment, I shall speak to the amendments grouped with it, which stand in the name of my noble friend Lord Berkeley, the noble Earl, Lord Erroll, and myself.

I know that the Government recognise that alongside the need expressed very clearly in the Bill to reduce congestion and disruption of traffic on our roads, there is also a need from time to time to dig up our roads in order to maintain essential services. Clearly, a collapse in the supply of gas, water, electricity or telecoms is at the very least inconvenient and at its worst catastrophic to the general public and commercial enterprises alike. Therefore, roads must be dug up to deal with those requirements. It would be of value if that need were set out in Clause 17 and were traffic authorities were required not to discriminate between their own roadworks and those carried out by the utilities. As I understand it, local authorities are responsible for about half the roadworks that are regularly carried out.
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I was pleased in Grand Committee to hear my noble friend Lord Evans of Temple Guiting say that the Government sought to ensure that all works—whoever was responsible for doing them—would be better co-ordinated in future and based on an objective assessment, without discrimination as to who was performing them. But it is difficult to be convinced of that without explicit confirmation in the Bill that traffic authorities will not discriminate.

Of course, I see the absurdity of treating local authorities and utilities completely alike. It would be absurd if local authorities charged themselves for permits or fined themselves for offences under the Bill. But why cannot the same general terms and conditions—indeed, detailed terms and conditions—apply to whoever is carrying out the roadworks? For example, if night-time working is required of utility works at certain times of the year, such as Oxford Street in December, why should local authorities not be similarly constrained?

There has been some suggestion that local authorities will incur bad points rather than fines for committing offences as a way of measuring compliance. Why could the same not be done for utilities? At the very least, utilities should incur fines only for failure to reach, say, 90 per cent of a compliance target, with the target being raised in subsequent years in order to raise the compliance levels from year to year. This would be a positive incentive towards compliance, which would be less punitive in its immediate effect and which would certainly discriminate less between local authorities and utilities doing roadworks. I beg to move.

Lord Berkeley: My Lords, I rise to support the three amendments in this group in my name and the names of my noble friend Lord Borrie and the noble Earl, Lord Erroll. I shall not delay the House long because my noble friend has articulated the importance of a level playing field between the utilities and local authorities very well. It is very important that local authorities are seen to be playing the same game with the same targets as the utilities. A time may come when some kind of permit scheme is necessary because as a noble Lord—I cannot remember who—said in Committee, the part of the local authority that deals with the permits is likely to be different from the part that deals with road surfacing.

I suspect that in the longer term it may be a good thing to treat everybody exactly the same. Otherwise, as my noble friend said, the incentives for local authorities will not be the same as the incentives for the utilities. Something like 50 per cent of delays are caused by surfacing and other local authority works and the other 50 per cent are caused by the utilities. I think it is important that this is addressed. I hope that my noble friend will have something to say about it. I gather that there have been some interesting meetings between Ministers and the utilities on this matter. I think it is important that the Government come up with some assurance that everybody will be treated equally.

The Earl of Erroll: My Lords, I added my name to this set of amendments in the names of the noble
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Lords, Lord Borrie and Lord Berkeley, because they seem eminently sensible. People may have good intentions about working together but unless it is specified, it probably will not happen. I am not convinced that bureaucrats always obey the spirit, rather than the letter, of what is written down. We need something of the letter. If we do not unify the system and bring it together, I can see that there will be two sets of regulations with cracks between them and they will not work together properly.

There is a big issue about why local authorities should charge themselves or fine themselves. The concept of one part of government paying another part of government for services is quite common, so I do not see it as much of a problem. It is called transfer charging or transfer pricing. One transfers charge from one part of government to another. I do not see a problem with it.

The idea of fining a utility does not seem to be particularly sensible. Utilities have to exist and utility companies have to provide utilities. The fine is basically a hidden tax as it will be passed on to consumers or the utility will go bust. One cannot allow water or electricity companies to go bust so there is no point in fining them. The suggested system of points, which I can see could be built into the comprehensive performance assessments of local authorities or other assessments, would be very sensible. I do think that it is sensible to have one unified approach to highway authorities, local authorities and utilities, which may have been privatised but which are carrying out a public service.

Lord Monson: My Lords, although I have some sympathy with this amendment I have a slight quarrel with its scope. Nobody can deny that gas, electricity and water supplies are essential services, but can the same always be said of telecommunications? A few years ago, I was seriously concerned by the road outside my house constantly being dug up in order to install cable television to some, not all, of the neighbouring houses. Can anybody seriously claim that cable television is an essential service? I think not.

Viscount Astor: My Lords, I very much support the principle behind these amendments. It is important that utilities and local authorities are treated on the same basis. We know that they are equally responsible for roadworks in our streets and they should be treated as equally as possible.

Lord Evans of Temple Guiting: My Lords, utility companies already have a statutory right to carry out their own works in order to install or maintain their apparatus. In Committee, we made it clear—but clearly not clear enough—that the duty placed on highway authorities in Part 2 of the Bill will not change this. My noble friend Lord Borrie makes the very specific suggestion that equal conditions should be applied to highway authorities' own works and to utilities' works. Where permit schemes operate, the regulation-making powers in the Bill would enable the same conditions to be applied to all works. The network management duty will require the effective management of utility works
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and authorities' own works. That would be based on an objective assessment and decisions taken on the basis of the best overall outcome without discrimination.

The statutory network management duty guidance will make clear to authorities the importance of parity in their dealings with all works and I must underline "all works". Authorities must, and will, have regard to this in meeting their duties. In drawing up the secondary legislation and guidance underpinning permit schemes, we will ensure that highway authorities take proper account of the disruption that may be caused by their own works. We will ensure that they do not discriminate unfairly against utility works.

I hope that on the basis of the very direct reassurance that I have given noble Lords these amendments will be withdrawn.

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