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Lord Davies of Oldham moved Amendment No. 60:


""fixed penalty notice" means a notice offering a person the opportunity of discharging any liability to conviction for an offence by payment of a penalty;"

On Question, amendment agreed to.

Lord Evans of Temple Guiting moved Amendment No. 61:

The noble Lord said: My Lords, the amendment is a simple one, designed to make clear that the power for the national authority to make permit regulations or to make orders approving, varying or revoking permit schemes can make different provisions for different areas.

We believe that it must be sensible to have that flexibility. To take just one example, it may be, after considering the recommendations of the working group which we set up to consider permit schemes, that the Government deem it sensible to put different arrangements in place covering permit schemes in urban as against rural areas, perhaps to reflect the greater disruption that occurs in those areas. The amendment allows us to do that. I beg to move.

Lord Rotherwick: My Lords, can the Minister clarify the definition of "different areas"? Will that mean urban versus rural, or from city to city or borough to borough? Furthermore, will that enable the implementation of permit schemes, and the action taken if the work is carried out without a permit, to vary from area to area? What steps will be taken to ensure that all those who may be affected by differences in different areas are aware of those differences? How will the notices of differences be published—electronically, or how else?

Lord Evans of Temple Guiting: My Lords, a few moments ago, I said that after considering the recommendations of the working group that we set up to consider permit schemes, the Government deem it sensible, for example, to put different arrangements in place covering permit schemes in urban as opposed to rural areas. The answer to the noble Lord's questions is that we must wait for the working group to come up with its proposals. We shall go out to consultation, and the department will ensure that the noble Lord is
 
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involved in those consultations, so that he can get satisfaction on the points that he raised. I hope that that reassures him.

On Question, amendment agreed to.

Schedule 1 [Increase in maximum fines for certain summary offences under the 1991 Act]:

Lord Davies of Oldham moved Amendment No. 62:

The noble Lord said: My Lords, Schedule 1 increases the level of fines for a number of offences under the New Roads and Street Works Act 1991. Amendment No. 62 corrects the description of an offence under Section 54(4) so that it refers to a failure to meet all of the duties under that section, not just the giving of advance notice.

The new clause amends Sections 54 and 55 of the 1991 Act. It provides that the advance notice that must be given under Section 54 should contain the date when the works are intended to start and such other information as may be prescribed. If an undertaker does not submit before this start date a notice required under Section 55, it must supply the authority with a further notice. This will contain such information as may be prescribed—for example, whether it still intends to go ahead with the works and, if so, when.

If the works referred to in an advance notice do not start within a prescribed period after the original start date, then the undertaker would have to start the process of giving advance notice all over again. That will deter undertakers from giving random dates for the expected start date. An undertaker is also required to give a notice under Section 55 giving the exact start date of works. If the works do not start within a prescribed time of that date, the Section 55 notice becomes invalid and the works cannot go ahead until a further Section 55 notice has been issued.

The new clause requires that where a notice becomes invalid, the undertaker must provide a further notice to the authority with certain information about the works. Again, that is likely to be whether it still intends to go ahead with the works and, if so, when. If the undertaker fails to provide that further notice under Section 55, it commits a criminal offence and can face a level 4 fine of £2,500. It will also have to provide the information to the relevant transport authority, when the works affect a level crossing or tramway.

Amendment No. 67 is consequential on Amendment No. 74 and adds the new offence to the list of offences under the 1991 Act in Schedule 2 to the Bill, which can be made subject to fixed penalty notices. I beg to move.

Lord Rotherwick: My Lords, I thank the Minister for his explanation of the amendment. We welcome the idea as a whole, but we have one question. Should not the local authorities also have a duty to inform others of any planned works that they might have to cancel, in case that then influences their plans for trying to get works done in the road? If they do not do
 
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that, should they have to pay a fine? How do they intend to notify people of their intention to cancel works?

Lord Davies of Oldham: My Lords, I cannot give a categorical response to that question, although the noble Lord makes an entirely reasonable point. We are concerned to create fairness among the participants in the scheme. I shall consider the matter further and write to the noble Lord.

On Question, amendment agreed to.

Clause 40 [Fixed penalty offences]:

Lord Berkeley moved Amendment No. 63:


"(3A) The Secretary of State may by order modify that Schedule so as to designate any offence listed in that Schedule involving a failure in respect of a notice as an offence for which different fixed penalties are to be prescribed in accordance with paragraph 4 of Schedule 4B, according to the seriousness of the failure in question."

The noble Lord said: My Lords, in moving Amendment No. 63, I shall speak also to Amendment No. 64. The amendments are designed to discover whether my noble friend agrees that there needs to be some means to ensure that the fixed penalties are proportionate to the offences committed and take into account the level of congestion and disruption caused and, therefore, the seriousness of the offence.

We heard in Grand Committee that the working groups had considered a penalty of £750. Noble Lords may say that that is not very much. However, given the fact that there may be 5 million notices every year, as there are under the current scheme, and will probably be a lot more, if the utilities start off by getting 90 per cent of them right and 10 per cent wrong, they might end up paying something like £375 million. In the end, that money would come out of the customer's pocket.

Serious offences clearly deserve serious levels of penalty. However, spelling variations in street names, leaving one cone around or making a mistake with a sign on a side road, which clearly has minimal effect on traffic, are failures that could have a much lower penalty rate. The amendments would add a requirement that there should be a sliding scale relating to the level of congestion or disruption caused—that is, the seriousness of the offence. I beg to move.

Lord Rotherwick: My Lords, the amendments would ensure that the fixed penalties awarded are proportionate to the offence committed and take into account the level of congestion and disruption caused—and, thereby, the seriousness of the offence. We would perhaps agree that there could be different levels of failure. However, failure is failure, regardless of degree.

Furthermore, I foresee difficulties in how the decision could be made with regard to different levels of failure. Failure can be relative and subject to different interpretations, depending on the individual making the judgment. As decisions will be made by
 
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individuals, that may open up a call for appeals and result in an endless bureaucracy of utility companies appealing over the level of failure that has occurred.

I question how the levels of congestion will be measured. There can be a small traffic jam or a big traffic jam, but how does one measure the difference between traffic jams? To what will they be compared? Congestion levels may vary throughout the day, so something may cause a high level of disruption at rush hour but not be a problem for the rest of the day. The amendment is a difficult one to judge.


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