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Lord Higgins: My Lords, I am most grateful to the Minister, who is always more lucid when she departs from her brief. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Rail vehicles: application of accessibility regulations]:

Baroness Hollis of Heigham moved Amendment No. 6:


(4A) The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on and after 1st January 2020 every rail vehicle is a regulated rail vehicle, but this does not affect the powers conferred by subsection (5) or section 47(1) or 67(2)."
( ) In that section,"

The noble Baroness said: My Lords, these amendments have been divided into two sets on a major concern, not so much for the Government but for noble Lords on the Opposition Benches. I do not believe that I need to discuss in any great detail two of the government amendments, unless your Lordships wish me to. I have a speech of 15 or 20 pages, but I do not propose to repeat what I believe is agreed by all sides—first, that there should be a cut-off point for rail vehicles of 2020 and, secondly, that there should be annual reports on the workings of the procedure. I take it that that is common ground between us.

As far as I can judge, having been a spectator at previous debates, we have built agreement around those two items. The area on which there was disagreement was whether the Government's case that they will need power to make exemptions beyond 2020 is legitimate. If your Lordships agree, I shall concentrate on that area alone, but I shall try to answer wider questions if they arise. But it seems silly to repeat arguments that noble Lords have already discussed, far more expeditiously, with my noble friend Lord Davies of Oldham at previous stages.

Lord Higgins: My Lords, the group is very much wider than the Minister suggests, since it includes the proposals for affirmative resolution and annual reports. It is an unfortunate grouping, but that is how the Government grouped it.

Baroness Hollis of Heigham: My Lords, again I shall depart from my brief. I had thought that there was consent around the notion of the annual report, which is why I assumed that that was accepted. I was assuming, too, that we all accepted that there should be a terminal date of 2020 for rail vehicles.
 
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Perhaps I should enlarge on the process that we are suggesting before 2020. First, there will be a set of framework regulations for the period before 2020 which would lay out what exemptions before 2020 needed to come to your Lordships' House under the affirmative procedure and what could be handled under the negative procedure. We have given assurances that those draft regulations setting out the framework would be affirmative. I am very happy to circulate those in advance, so that we can consider the provisions, whether on issues of cost or time or whatever.

What I judged to be the main concern, however, was whether 2020 should be absolute as a line that we draw and therefore whether exemptions should be tolerated or permitted beyond that time. If the noble Lord would like me to expand any further on the period before 2020, I am happy to do so. We have set up by agreement a two-step process, which will I hope satisfy your Lordships. The core of our disagreement is found in the question, "Why do the Government believe that we need a power to make exemptions beyond 2020?". That is the core issue to address today.

There are four questions that noble Lords may wish to put to me, and I shall try to answer. First, why are any exemptions needed at all? Some of the ground will be familiar but, if we do not have exemptions, vehicles used on systems such as the London and Glasgow undergrounds are unlikely ever to be able to meet the full requirements of the accessibility regulations by virtue of their infrastructure—for example, the tunnels and so on. There is general agreement that in the case of Glasgow, it would be impossible for the vehicles to meet the requirements of the regulations in relation to wheelchair accommodation.

Similarly, with regard to the London Underground, the size of the tunnels on the Victoria Line restricts the use of vehicles. In turn, that means that if the vehicles used on that line were to be fitted with RVAR-compliant handrails in the doorway area, they would pose a serious head-strike hazard to many passengers. We are trying to balance one requirement against the other. So the first point is why the exemptions are needed at all. There will be some situations, such as with the London and Glasgow undergrounds, in which we judge that the vehicles can never be fully compliant. It is necessary to provide exemptions for those systems, in the event that they remain legally operational beyond 2020.

The second question is, "Why not list those exemptions?". I believe that was proposed at an earlier stage. Exemptions may be listed in primary legislation—why should we not do that? Well, we would not want to exempt the rail vehicles used on such systems from all the requirements of the rail vehicle accessibility regulations. While the Glasgow underground may not be able to meet all of the requirements for wheelchair access, there is no reason why it should be exempt from all of the other requirements, for example, on colour and tonal contrast. On London Underground, while on vehicles used on certain lines, such as the Victoria Line, there may be difficulty in meeting the regulations in full, there will be other lines, such as the District Line, where the vehicles could be made fully compliant. We could not accept a
 
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broad exemption in the Bill, for the reasons that I have outlined. We must be much more discriminating than that to ensure that disabled people enjoy the fullest possible rights.

Lord Oakeshott of Seagrove Bay: My Lords, I am grateful to the noble Baroness for giving way. We discussed this issue at considerable length with officials and with her noble friend Lord Davies. I am pleased to hear that the lines are the Glasgow underground and possibly one line of the London Underground. Is it possible to list an exemption and say from which elements they are exempt? I understand her point that we would not want a blanket exemption, but why not focus that now? We are talking about 15 years ahead. Would that not meet our point?

Baroness Hollis of Heigham: My Lords, I genuinely do not know. Others here have expertise on transport that I do not have. For example, with some of the proposed lines for London, I do not know whether the infrastructure proposed will in the future permit the sort of regulations, and the degree of exemptions, that we may wish to see. I cannot foresee that; I do not know. I am talking here largely about infrastructure issues where it would not be reasonable to seek to impose things that would effectively close those lines down. Given that none of us can foresee what the underground systems may look like by 2020, I certainly do not know the infrastructure constraints that may operate.

That is one explanation that was given to me about why it is better to do what your Lordships wish by exempting, in detail if need be, rather than having it in the Bill and having to qualify in regulations which parts continue to be included under the accessibility regulations and which do not. That must be a more clumsy way of doing it than the way proposed by the Government. It has the same effect; but the solution offered by the noble Lords, Lord Oakeshott and Lord Higgins, seems to be clumsier, and were it to be pursued it could be manipulated to the disadvantage of disabled people.

Exemption orders could be used to impose conditions on the operator to assist disabled people by negating some of the problems arising from non-compliance. For example, vehicles fitted with a flexible table, which at its lowest point is non-compliant with the RVAR, are exempted only on the condition that a member of staff is available to adjust the table. Blanket exemptions in the primary legislation would prevent the imposition of such conditions and would lessen the quality of services for disabled people. We cannot predict what will happen with future designs for wheelchairs, or what other systems may fall foul of those regulatory requirements. We have tried to future-proof as much as we can, but it is not possible.

Again, I look to my noble friends Lady Wilkins and Lady Masham. It is not inconceivable that wheelchairs will continue to develop. I hope that they will—for the very few months that I was in a wheelchair, I could never manage stairs or kerbs, because I could not get the tilt right without falling over. It may well be that wheelchair
 
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designs will become much more effective in dealing with that hazard. That may in turn have physical space constraints that we have not anticipated, and if necessary we would like to be able to revisit that. Take for example the proposed ULTra system for Cardiff Bay. The vehicles used on that system would be subject to the RVAR, but as each vehicle can carry only four people it would require a number of exemptions to enable it to operate. We cannot foresee where we may be four years, or even 15 years, down the line.

6.15 p.m.

It is not only for systems that I would regret trying to scrap the exemption power. Experience of working with the RVAR since 1998 has shown that because of the rapid and ongoing advance in rail vehicle technology it is not possible to produce regulations at any time that will cater for all future developments in vehicles. I was given an example of where we may grant an exemption for two years to allow a new system using LED displays to be used to demarcate the floor between the vestibule and the passenger saloon. A two-year exemption period would provide sufficient time for it to be tested and for appropriate research to be carried out. If the first question that I am seeking to address is, do we need them at all? The answer is yes, for the Glasgow and London undergrounds, and for all I know maybe for Crossrail, and maybe for Cardiff ULTra.

Secondly, why can we not list them in the Bill? Because we need to be much more discriminating, specific and detailed. We get the same effect, but with greater coverage for disabled people by doing it through the exemption procedure. Thirdly, why not simply change the regulations, rather than doing it through exemptions? Does that give greater control over the process? No, because if you have regulations they must apply across the board.

The two big issues with rail transport accessibility are wheelchair access and public information services. Some 90 per cent of trains will be compliant with wheelchair regulations; public information services are harder. What blind or visually impaired people may wish for is not always what those people with hearing difficulties may need. Therefore, you must have a multiplicity of systems. We are proposing, as part of the regulations, that there be visual displays in carriages showing where you are. They must be 35 millimetres in height. It is conceivable that some way down the line an operator might wish to do what Virgin has done with its planes and put those screens on the back of seats so that you are much closer to them and you are better able to read them. We would not know whether that represented an improvement in service until after the experiment, the consultation and the feedback had taken place. It might not be regarded as an improvement to the service. If we were to operate through regulations, all vehicle services would come within the remit of regulations, whereas we would be seeking through exemptions to tie it only to the experimental vehicles. That is my third argument.
 
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Finally, there is a fear, which was forcefully expressed by the noble Lord, Lord Addington, that without this proposal 2020 would not be 2020, and the rail operators would drive a coach and horses through the legislation—to use an old phrase—or take disabled people for a ride—to use a more contemporary phrase—and as a result disabled people would continue to find that 2020 is not a real date, but that companies are forever edging us beyond that to suit their commercial convenience. That is the fourth argument that was put in Committee and on Report. I put it to noble Lords that, given what I have said, up until 2020 any exemptions would come within the framework of either affirmative or negative regulations according to the import of those regulations. After 2020, the government amendment proposes that any exemptions would come by affirmative regulations; any and every request for exemption would come by affirmative regulations.

Which railway manufacturing company—most of which as I understand it are either financed or owned by banks—would take the risk of an investment of maybe hundreds and hundreds of thousands of pounds on guaranteeing that they would get parliamentary support under the affirmative resolution procedure? It would be commercially daft to do that. We have already had cases where banks have insisted that companies withdraw some of their manufacturing components and retool and respecify at high cost, to be absolutely sure that they meet the accessibility regulations. No company will take a lottery on an investment of half a million pounds or more on whether this House or the other House agrees that they may have an exemption a month or two before they are due to come into service. It is mind-boggling to think that they would. It defies everything that we know about how commercial considerations work. That would not be a lottery; it would be Russian roulette. No one would play that with that kind of money. We are proposing here that for any exemptions up to 2020, there would be a two-stage framework of draft regulations, framework regulations, which will determine which come under negative and which come under affirmative resolution. I hope that your Lordships will be content with that.

The Government will need a degree of flexibility for those situations after 2020 dealing with infrastructure. I am talking about being able to specify detailed problems that might not yet have been foreseen, and on which it is reasonable and possible to encourage experimentation, without allowing that to go across the whole system before we know whether it offers a useful improvement in service to disabled people. It is a modest degree of exemptions; we do not expect many of them. The Disability Rights Commission has welcomed the Government's approach.

The consultation and the affirmative regulation procedure were built into the Government's approach. Future Houses of Commons or Lords will not thank your Lordships if in 2019 or 2020 they have a situation in which emergency primary legislation is needed to avoid the possibility of a rail line being taken out of service because of a last minute failure to comply on a modest matter that could be handled by exemption. That would be batty. None of your Lordships would want to see that situation.
 
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We have to give that modest degree of headspace. I believe that, with the assurances that I have given about affirmative regulations and the like, there can be no exploitation of the situation. This is recognition that we cannot safeguard against future contingencies that we cannot foresee. I hope that, with that, noble Lords will accept the Government's amendments and not seek to move their own.


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