One of the principles of the entire roads reform programme is to give the company operational freedom to achieve its objectives. Amendment 15 runs entirely counter to that, and could lock out potential benefits by forcing the company to focus on an important but narrow aspect of road safety; namely, road infrastructure safety ratings. That is a restraint on effective management for the purposes of safety, not a support to it. Both those issues—the constraints that this would impose and the fact that a significant number of these issues are simply not under the control of the SHC—seem to argue for the withdrawal of the amendment and for the use of the belt and braces which we have already agreed will be in place. There is no need to seek a legal requirement to appraise different types of intervention on the basis that some of the amendments propose, because they are already in the Bill. The company will continue to use the department’s transport appraisal guidance, which ensures that interventions are considered on a consistent and proportionate basis.

I come now to the duties of the monitor. In Committee, and just now, your Lordships were persuasive about the need to help improve road safety and the environment. As noble Lords know, we have said that we will move an amendment on that, and your Lordships have been able to see the much stronger and detailed language now in the guidance and direction. Therefore, this amendment should be seen as not only requiring the Secretary of State to have regard to safety and the environment when setting or varying the strategy, but also indirectly generating objectives on those areas that the company would be bound to pursue—thus subject to the independent scrutiny of the watchdog and the monitor.

In Committee, your Lordships made it very clear that consultation over and above the work carried out by the company through the route strategies and the engagement that the Government will carry out as they set or vary the strategy is needed. To provide reassurance that we will engage with the public and shareholders, we are happy to include this requirement in the Bill as well. Government Amendments 28 to 31, if accepted, would add this requirement and some of the necessary consequential changes.

New powers for the monitor contained in other amendments, which we will discuss later—I believe reference was made to Amendment 48 in a later group—would place the ORR in a different role in relation to the new company. In our original drafts of the Bill it was an advisory body; it is now able to act in the manner of an independent regulator. A regulator has formal duties, which it must work within when carrying out its activities. The ORR’s role on the roads demands the same approach. The ORR itself has asked for a set of duties to be included in the Bill, so it has a firm basis from which to act.

3 Nov 2014 : Column 1467

5.45 pm

The duties in Amendment 43 are designed to ensure that the monitor is always mindful of the need to encourage better performance and greater efficiency. I must stress that performance covers all aspects of the company’s performance. It includes everything from the company’s ability to meet its environmental obligations to its effectiveness in ensuring network safety, as set out in the statutory directions and guidance and in the road investment strategy. The two themes of performance and efficiency will enhance the effectiveness of the company.

However, they must not be pursued without reference to wider goals. For that reason, we have included six factors that must be regarded when considering how to drive performance and efficiency. These are: the interests of users of the highways; their safety; the effect on the economy; the effect on the environment; the long-term health of the network; and the principles of better regulation—namely, to regulate only where action is needed and in a way that is transparent, accountable, proportionate and consistent. This will ensure that the views and actions of the monitor remain balanced, and continue to reflect the need for our roads to work as part of a wider society.

I move to Amendments 44 to 47. I thank the noble Lord, Lord Berkeley, for his amendments, which will change our proposed Amendment 43. I believe we are very much in agreement about what we want the monitor to achieve and the only difference between us is over a mechanism for achieving this. I agree wholeheartedly on the importance of considering the safety of those who work on the network. This is an important priority for the new company, and rightly so. However, it is also covered by existing health and safety laws, which the noble Lord refers to in his own amendment, and which the company will be required to comply with. We do not think it is appropriate for the monitor to take over the responsibilities of the experts at the Health and Safety Executive in this area. We are also reassured that the monitor, in going about its work, will need to take full account of the company’s statutory responsibilities, including on health and safety.

Similarly, the noble Lord suggests that the regulator should be responsible for regulatory activities that maximise efficiencies in the design, construction and operation of our strategic roads. Our amendments already ensure that the monitor is under a duty to consider the performance and efficiency of the strategic highways company. The words of subsection (3) are intended to cover the better regulation agenda, and to match those used in the Civil Aviation Act 2012. Given that we believe the points raised by the amendments are actually covered elsewhere—using a slightly different approach but with the same goals in mind—I ask that we retain the existing wording, which gives us consistency with other legislation.

The noble Lord and I part company, however, over Amendment 45, which suggests removing the monitor’s duty to focus its attention on the cases where action is needed. This appears to us common sense, and we want the monitor to have confidence that it can act in this way.

3 Nov 2014 : Column 1468

Given all the issues that I have raised and the agreement we have that additional duties will go into the Bill, giving us both belt and braces, particularly around safety, environment and co-operation, I very much hope that the Government’s amendments will be accepted and that your Lordships will feel comfortable not pressing the other amendments in the group.

Lord Whitty: My Lords, I shall not reply on the wider issues of the role of the monitor, in which debate on this group has become engaged. I will concentrate simply on the issue of road safety. The Minister, who I thought in her response to the previous group was moving in my direction, has greatly disappointed me in her reply to this one. That belies the good work that her department is doing and has done for many years on road safety and the opportunity that the new company would have to improve it.

I am also sorry that I am falling out with the noble Lord, Lord Jenkin, on the issue of liability. The point I am making is that in certain aspects of road safety—design of roads, traffic management, use of telemetrics and speed controls, information and signing—there is a vital role to be played by the highways authorities, in particular one with the resources, level of responsibility and intensity of traffic which the strategic highways company will have.

Lord Jenkin of Roding: I do not disagree with a single word of what the noble Lord has just said about what should be the responsibilities of the strategic highways company. My fear earlier was that he was extending it to matters which are really the responsibility of other bodies.

Lord Whitty: My Lords, in all areas of safety and liability, there may be contributions by many factors. Frequently there is contribution to negligence by people in other areas. That may apply to drivers as well, but there are some firm responsibilities on those who are responsible for the design, management and control of the roads. That area of improvement in road safety has been the least developed until relatively recently. The improvements which have been made have been made largely as a result of general improvements to the roads rather than by a focus on road safety improvements, except on a few issues.

As I said, the creation of the company gives us the opportunity of a step change in delivery of road safety on our strategic network. That means giving as clear a signal as possible that this is indeed, to use the Minister’s words earlier, a high duty on the new company. That needs to be expressed unambiguously in the Bill. The words “have due regard to” safety are neither belt nor braces. It is not an objective of the company; nor is it embedding and inculcating that through everything that the company does. If we want to do that, we need to write safety large in the responsibility of the company. If the Minister goes back to her previous remarks about looking at higher duties to be written into the Bill, leaving aside all the other amendments in the group, her adoption of my Amendment 15 would achieve just that. As she has made it clear that she is not prepared to accept it, to try to ensure that road safety is a major function of the new organisation, I need to test the opinion of the House.

3 Nov 2014 : Column 1469

5.53 pm

Division on Amendment 15

Contents 165; Not-Contents 235.

Amendment 15 disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bhattacharyya, L.

Billingham, B.

Blackstone, B.

Boateng, L.

Borrie, L.

Bradley, L.

Bragg, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Belmont, L.

Cashman, L.

Chandos, V.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Cunningham of Felling, L.

Davies of Oldham, L.

Desai, L.

Donaghy, B.

Drake, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Giddens, L.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Haworth, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones, L.

Jones of Moulsecoomb, B.

Jones of Whitchurch, B.

Jordan, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kestenbaum, L.

King of Bow, B.

Kingsmill, B.

Kinnock, L.

Kinnock of Holyhead, B.

Laming, L.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

Lennie, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan, L.

Morgan of Drefelin, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Noon, L.

Nye, B.

O'Neill of Clackmannan, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Peston, L.

Pitkeathley, B.

Plant of Highfield, L.

Prescott, L.

Prosser, B.

Quin, B.

Rea, L.

Rebuck, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rogan, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

3 Nov 2014 : Column 1470

Sherlock, B.

Simon, V.

Skidelsky, L.

Smith of Basildon, B. [Teller]

Soley, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Truscott, L.

Tunnicliffe, L.

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warwick of Undercliffe, B.

West of Spithead, L.

Whitaker, B.

Whitty, L.

Wigley, L.

Williams of Elvel, L.

Winston, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Anelay of St Johns, B.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Bradshaw, L.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Buscombe, B.

Byford, B.

Caithness, E.

Cameron of Dillington, L.

Carrington of Fulham, L.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Chisholm of Owlpen, B.

Clement-Jones, L.

Colwyn, L.

Cooper of Windrush, L.

Cope of Berkeley, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Crickhowell, L.

Dear, L.

Deben, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Edmiston, L.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Fearn, L.

Feldman of Elstree, L.

Fink, L.

Finkelstein, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glendonbrook, L.

Goddard of Stockport, L.

Gold, L.

Goodlad, L.

Grade of Yarmouth, L.

Greenway, L.

Grender, B.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Hannay of Chiswick, L.

Harding of Winscombe, B.

Harris of Peckham, L.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hodgson of Abinger, B.

Holmes of Richmond, L.

Hooper, B.

Horam, L.

Howard of Lympne, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Janvrin, L.

Jay of Ewelme, L.

Jenkin of Roding, L.

Jolly, B.

3 Nov 2014 : Column 1471

Jones of Cheltenham, L.

Jopling, L.

Kerr of Kinlochard, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Luce, L.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Manzoor, B.

Marland, L.

Mawhinney, L.

Mawson, L.

Mobarik, B.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Nash, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Noakes, B.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

O'Neill of Bengarve, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Pinnock, B.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Razzall, L.

Redesdale, L.

Rennard, L.

Ribeiro, L.

Ridley, V.

Roberts of Llandudno, L.

Rowe-Beddoe, L.

St John of Bletso, L.

Sassoon, L.

Scriven, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Shields, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stirrup, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Suri, L.

Suttie, B.

Taylor of Goss Moor, L.

Taylor of Holbeach, L. [Teller]

Thomas of Gresford, L.

Thomas of Winchester, B.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verjee, L.

Verma, B.

Wakeham, L.

Wallace of Saltaire, L.

Walmsley, B.

Warnock, B.

Wasserman, L.

Watson of Richmond, L.

Wei, L.

Wheatcroft, B.

Williams of Crosby, B.

Williams of Trafford, B.

Willis of Knaresborough, L.

Wrigglesworth, L.

Younger of Leckie, V.

6.07 pm

Amendment 16

Moved by Lord Whitty

16: Clause 2, page 2, line 25, at end insert—

“( ) Before establishing a strategic highways company, the Secretary of State must consult all highways authorities in the area specified under subsection (1)(a) responsible for roads in that area other than the roads specified under subsection (1)(b), and this consultation must cover—

3 Nov 2014 : Column 1472

(a) the structure of the new organisation,

(b) the appointment of at least one non-executive director representing those authorities to the board of the new company, and

(c) any other matter which the Secretary of State deems relevant.”

Lord Whitty: My Lords, Amendment 16 is about the relationship between the new company and the other highways authorities—essentially the local authorities. It is clear that for the effective operation of the new strategic highways company there will need to be close co-operation with those authorities. I should declare an interest, again non-pecuniary, as a vice-president of the LGA, which supports this amendment. Highways authorities feel that they have not been effectively consulted hitherto. Although they do not oppose the Government’s proposal in the Bill, they consider that Ministers should discuss with them how the company will operate as there will need to be co-operation between the strategic highways company and highways authorities on traffic management and new road schemes. The structure of the new organisation needs to be broadly agreed. There also needs to be some representation on the board of the new structure of those authorities that manage and oversee the other roads in England.

The amendment provides for consultation on the structure of the new company and the appointment of a local authority non-executive director on the board. That would be the minimum that we would need to see for a good and effective co-operative arrangement between the new company and the other highways and traffic authorities. I hope that the Government will accept the amendment. I beg to move.

Lord Davies of Oldham: My Lords, I should like to speak briefly in support of this amendment, to which I have lent my name. The Government list the “major challenges” facing the strategic road network: stop-start funding, underinvestment, inefficiencies and growing pressure from congestion. If these challenges are so severe, why are more than 90% of our people fairly happy with the condition of the strategic road network and only 30% happy with the condition of local roads?

On the evidence that the DfT is citing to justify its obsession with strategic roads, figure 1 in the summary of reform states that spending on major projects fell sharply in the 1990s and has remained low since, while overall traffic has risen. The figure completely ignores the previous Labour Government’s investment in local roads and tackling traffic in our towns and cities. That is where congestion is obviously most frequently experienced. We spent more than £4.5 billion annually on local roads between 2005 and 2010. That was cut by one-third for 2011-12 by the present coalition Administration. If the DfT wants to talk only about strategic roads, we suggest that it compares the spending on strategic roads with the amount of traffic on them.

Ministers continue to stress that their reforms will deliver a world-class roads network, but throughout the extensive documents that they have published there remains scant mention of the major challenges for local roads, which face a pothole epidemic. Any Member of Parliament will tell you that the transport problem

3 Nov 2014 : Column 1473

in his area is bound to be represented by potholes in roads. The potholes do not just cause damage to vehicles but affect the pace at which they can travel.

The Government claim that they will deliver more reliable journeys, reduced congestion and less delay and disruption. However, they cannot be listening to local government, which is warning that the new two-tier road system threatens to speed up vehicles travelling significant distances but will lead to greater delays on local roads. I have no doubt that the Minister will say that the department has committed unprecedented funding for local road maintenance—£9.8 billion over the next Parliament and £975 million a year to councils. However, both those figures represent a real decline and more than one-third of the money will be topsliced for the Challenge Fund dreamt up by the department, which means that local authorities spend time and, of course, scarce money on bidding rather than actually fixing the roads.

There is no point in building a world-class strategic road network if 98% of local roads that people use every day are clogged with congestion or are falling apart. That is why this amendment seeks to ensure that the Bill gets the strategic and local road networks working better together and makes a real and tangible difference to tackling congestion. That is why we want to see local representation on the strategic highways company board, which will ensure that the company delivers and complies with its obligations. Local authorities must be actively involved in the creation of the strategic road network.

This issue is of the greatest importance. I understand entirely, of course, why the Bill concentrates on the strategic network but it must not ignore the needs of local road networks. They have to be recognised in the Bill as partners in ensuring that journeys are carried out in the most effective way.

6.15 pm

Lord Jenkin of Roding: My Lords, I have a feeling that the noble Lords who have spoken have not taken account of what is in the draft licence document. Paragraph 5.11, which is headed “Cooperation”, states that,

“the Licence holder must cooperate with other persons or organisations in order to … Take account of local needs, priorities and plans in planning for the operation, maintenance and long-term development of the network”.

Sub-paragraph (d) states:

“Provide reasonable support to local authorities in their planning and the management of their own networks”.

This raises the question of what should be in the Bill and what can be left to the guidance and direction in the licence document. My feeling is that if the final licence document contains those provisions, that should go a very long way to satisfy the objectives which the two noble Lords opposite have put before the House. No doubt my noble friend on the Front Bench will confirm that that is the Government’s view.

Baroness Kramer: My Lords, I am delighted that the noble Lord, Lord Davies, appreciates that we are pouring unprecedented amounts of money into the local road network and that a significant amount of it

3 Nov 2014 : Column 1474

is allocated on a competitive basis, as it were, to make sure that the projects which yield the most improvements get priority. I thank my noble friend Lord Jenkin for making the case so clearly as that enables me to shorten my remarks.

The noble Lords, Lord Whitty and Lord Davies, have proposed amendments—the amendments also stand in the name of the noble Lord, Lord McKenzie—which suggest that local highways authorities are involved with setting up the strategic highways company, that these bodies are consulted when setting the road investment strategy, and that the strategy accounts for potential impacts on local and other networks. I fully accept that these are well intentioned amendments but I contend that they are not needed.

Let me be clear: we want the company to work closely with other highway and traffic authorities to achieve the objectives determined by the Secretary of State. Without close co-operation, both the company and the local highways authorities would not be able to deliver their network management duty as set out in the Traffic Management Act 2004. However, it is important to recognise that the company will not be responsible for the management of local authority roads, and local authorities would be furious if it attempted to do so.

We consulted publicly in October 2013 on the proposals to create the new company and the future governance arrangements, taking into account the views of local highway authorities in our response. That response, published on 30 April this year, formed the foundation of the proposed legislation. It is hard to see what value an additional consultation would bring.

With regard to board representation, we are creating a limited company with a fully functioning board to guide and hold the company’s executive to account. Therefore, involving local authorities in the detailed running of the company would undermine that effective management and oversight of the company and the strengthened arrangements that we intend to put in place.

Our analysis of investment proposals for the strategy will necessarily account for overall transport impacts due to the close links between the strategic road network and other networks, including local highways. Requiring the strategy to include a detailed analysis of the impact on the condition or overall funding arrangements for local roads, or other networks, is unnecessary. Much of this work is already required, while some of the more detailed implications would be a burden and risk causing confusion by making central government take action on issues which are within the purview of local government to deal with. We are very conscious of devolution issues in this regard. Requiring us to consider the condition of the strategic road network as part of setting the strategy is unnecessary because we have considered the state of the network. We reached the decision to invest more money in maintenance and renewals at the last spending round

I turn to the issue of consultation. Given that we have tabled a set of amendments which require consultation to take place as part of setting and varying the strategy, and combined with the requirements on co-operation and the fact that the company would be

3 Nov 2014 : Column 1475

fully engaged with local highways authorities, there is no need to specify that the company must consult them. It is already embedded.

I hope I have been clear. I have reflected on the amendments about the involvement of local highways authorities in the running of the company and the road investment strategy. I believe that the objectives of the amendments are achieved already within the Bill and the accompanying documents. I hope very much that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.

Lord Whitty: My Lords, I think, whatever the realities and wherever they are reflected, they are not reflected in the Bill. The local authorities themselves have drawn this to our attention and no doubt to the Government’s attention, which is why they are supporting most of these amendments. The reality is that most journeys on the strategic network start and finish on the local network. Any new schemes, any maintenance, any accidents, any new traffic management systems on the strategic network have an impact on the local network.

For those reasons, very good co-operation is needed. I am glad that there is a reference, to which the noble Lord, Lord Jenkin, referred, in the draft licence. I am glad that the Minister recognises the need for such co-operation. I would, of course, be more impressed by its being in the licence, if the licence was reflected in the main part of the Bill, and therefore had some at least indirect legislative recognition. The key issue here is co-operation and understanding between the new company and the local highways authorities.

In other pieces of legislation a duty to co-operate has appeared in the Bill, not in any subordinate legislation or subordinate documents. I think there is a strong case for that to be included here. On the structure of the company, I understand the Government’s reluctance to specify who should be on the board, but if the board of the new company does not include somebody who understands the role of local highways authorities, whether or not that is prescribed in the legislation—

Baroness Kramer: My Lords, I will not be able to speak again on this amendment. I may not have been very clear but when I talked about the issues I would bring back to put as duties, co-operation was one of the three, along with environment and road safety.

Lord Whitty: My Lords, I appreciate that aspect of it. I hope, therefore, that what the noble Baroness comes forward with at a later stage meets the general requirement of co-operation. I was commenting also on the structure of the company, and I understand the reluctance to specify that in the Bill, but some engagement between the governance of the new company and local highways authorities is needed, and that objective was reflected in this amendment.

I sincerely hope that the Government’s amendment on co-operation does the job to the satisfaction of the local highways authorities and that the reality is that the relationship between the new company and the local highways authorities is better than the relationship of the Highways Agency has sometimes been and indeed better than what the department’s relationship

3 Nov 2014 : Column 1476

with local authorities has sometimes been, despite the amount of money, to which both Front Benches have referred, which is now going to local highway schemes.

I will withdraw this amendment at this stage and look forward to the Government’s proposition later. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Clause 3: Road Investment Strategy

Amendment 18 not moved.

Amendment 19

Moved by Baroness Kramer

19: Clause 3, page 3, line 12, at end insert—

“(4A) In setting or varying a Road Investment Strategy, the Secretary of State must have regard, in particular, to the effect of the Strategy on—

(a) the environment, and

(b) the safety of users of highways.”

Amendment 19 agreed.

Amendments 20 to 23 not moved.

Schedule 2: Road Investment Strategy: Procedure

Amendment 24 not moved.

Amendment 25

Moved by Lord Berkeley

25: Schedule 2, page 71, line 19, at end insert—

“Formation of route strategies: consultation and co-operation

1AA (1) The strategic highways company shall produce route strategies for all highways under its control (“specified highways”) and shall ensure such strategies remain up to date.

(2) In deciding how to divide up specified highways into route strategies, the strategic highways company shall have due regard to local government boundaries and travel to work areas.

(3) Route strategies shall consider—

(a) other transport modes, including railways and port facilities, that are served by specified highways or run parallel to them;

(b) the interaction between specified highways and other highways;

(c) opportunities to secure the expeditious movement of people and freight;

(d) opportunities to reduce environmental impacts.

(4) The strategic highways company must—

(a) carry out such consultation, and arrange for such publicity, as the strategic highways company thinks appropriate in relation to a route strategy;

(b) consult such persons, and such descriptions of persons, as may be prescribed;

(c) have regard to the responses to the consultation and publicity in deciding whether to proceed with a route strategy.

(5) In setting or varying a roads investment strategy, the Secretary of State shall have due regard to route strategies.

(6) The Secretary of State may make regulations about route strategies.”

3 Nov 2014 : Column 1477

Lord Berkeley: I speak briefly on this amendment. We are in Schedule 2, Part 1 now. It suggests that there need to be route strategies before the Secretary of State can really put forward investment strategies. We have discussed this before—in route strategies it seeks to ensure full consultation. The Minister has been very forthright in her commitment to consultation, which of course I welcome very much. It is, however, another way of saying how important it is, when one is considering route strategies, to look at all different modes, including not only the local government travel to work areas, how to move people around and ensure consultation.

The proposal is a very useful precursor to an investment strategy, and I hope it will give the impression outside, as it is designed to, that transport, surface transport, road, rail and other means of transport are being looked at in the round rather than just having an investment strategy in which we are investing in roads willy-nilly. I beg to move.

Baroness Kramer: My Lords, I will speak briefly to the amendment. We recognise that what the noble Lord is seeking to do is to remove some ambiguity, but we are not comfortable with his amendment because we think it would prevent the company from adapting the route strategy process to meet changing needs and circumstances. That would make it somewhat undesirable. We recognise what is driving this. It seems that it is being driven by a desire for greater clarity, so I am happy to commit to him to include a requirement in the final version of the statutory directions and guidance along the lines that the company will agree the process with the Secretary of State and publish it. That should provide the combination we are seeking, both of clarity and of flexibility. I hope that on that basis the noble Lord will feel able to withdraw the amendment.

Lord Berkeley: I am grateful to the Minister for that short reply. I shall read it with interest, but it sounds good. On that basis, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendments 26 and 27 not moved.

Amendments 28 to 31

Moved by Baroness Kramer

28: Schedule 2, page 72, line 11, at end insert—

“(1A) The Secretary of State may only publish proposals under sub-paragraph (1) if satisfied that appropriate consultation has taken place.”

29: Schedule 2, page 72, line 21, at end insert—

“(1A) The Secretary of State may only publish proposals under sub-paragraph (1)(b) if satisfied that appropriate consultation has taken place.”

30: Schedule 2, page 72, line 28, leave out “Subject to sub-paragraph (3),”

31: Schedule 2, page 72, line 31, leave out sub-paragraph (3)

Amendments 28 to 31 agreed.

3 Nov 2014 : Column 1478

Clause 5: Fines

Amendment 32

Moved by Baroness Kramer

32: Clause 5, leave out Clause 5

Baroness Kramer: My Lords, in Committee my noble friend Lord Bradshaw raised the question of the power to fine the new company. As originally proposed, this power would have belonged to the Secretary of State. Under our proposed removal of Clause 5 and its replacement following Clause 9—I draw the attention of the noble Lord, Lord Whitty, to that, because I know there can be confusion—which will be covered by Amendment 41, this power will be transferred to the independent monitor.

We have consistently stressed the importance of independent accountability to the strength of the new model for managing highways. The creation of the watchdog and monitor creates a powerful team that can scrutinise performance of the company and can represent the interests both of its users and of wider taxpayers. I am not aware of any country in the world which operates an equivalent model of accountability. This will give England’s road users a powerful voice.

On reflection, however, I can also see the value of going further. We have designed a system that ensures that the Secretary of State is well advised when planning the future of the network and judging the quality of its current management. By introducing this amendment, we will also give the roads monitor the power to directly influence the behaviour of the company, in the manner of a true regulator. The monitor will be given two statutory powers under this system. It will have the power to issue an improvement notice, which will require the company to take specific action to correct a failure in its performance. It will also have the power to issue fines, should matters become particularly serious. This matches the regime in rail, and will make the new highways company accountable in the same way as Network Rail is at present.

6.30 pm

It will not be a blunt tool. The ORR has assured me that such powers are used sensitively, not to mechanically punish bad performance but to drive more effective action by encouraging change. A range of non-statutory incentives and measures will exist short of formal improvement notices and fines, and these formal instructions will be available once the softer measures are exhausted. However, it will mean that the company will not be able to ignore the recommendations of the monitor and will never be able to let poor performance or inefficiency become ingrained. In issuing fines, it is important that any fines levied are proportionate and do not represent a risk to the delivery of the road investment strategy. Guidance from the Secretary of State and the Treasury, set out in Amendment 48, will ensure this.

As part of this new arrangement, it is necessary for the Secretary of State to be able to issue wider guidance on how the monitor carries out its responsibilities. The Secretary of State and the Treasury, acting jointly, will

3 Nov 2014 : Column 1479

also be required to issue guidance to the monitor on the application of powers to fine. In the short term, this will help the new regulator to bed in and adapt to its unique remit. Over time, it will allow the Government to clarify how policy is developing and to ensure that key elements are properly represented. However, I stress that this is not a power for the Secretary of State to overrule the monitor, just as it is not in other sectors, and it cannot be used in such a way. These measures will allow the monitor to act in the manner of an independent regulator, will result in clearer, stronger accountability, and will lead to better outcomes across the network.

Lord Berkeley: My Lords, I will speak to one or two of the other amendments in the group, and hope that the Minister will be able to respond under the slightly odd arrangement we have.

In Clause 8, on my Amendment 33A, the Government have moved a long way in changing the name and activities of the Rail Passengers Council. The point of the amendment is to emphasise the need for them to consider not just the users of the network, but also those who do not currently use it or who cross over the network. In other words, they must look at the people who are not using it, at the potential for modal shift and at reducing the need for travel. They must look at the thing in the round before they come up with their excellent data, which I am sure they will do on the roads as they currently do for railways and, of course, buses.

Moving quickly, I raised a question about Amendment 48 in a previous grouping—I got it wrong—and the Secretary of State giving the Office of the Rail Regulator guidance as to the circumstances in which payments were defined. I hear what the Minister said. My question is whether that is the same guidance and instruction that the ORR currently has with the railways. If not, why not?

Lord Davies of Oldham: My Lords, I speak to Amendment 33, which asks the watchdog to look after the interests of cyclists and pedestrians. As we know, and as the department has recognised, a strategic road network can often be a barrier for pedestrians and cyclists. That means that there are many potential users of the network who may wish to use it to cycle to work but currently cannot.

The legislation would not allow Passenger Focus to consider their views. The chief executive, Anthony Smith, has been quoted as making clear his view that, given the legislation, Passenger Focus could focus only on actual users of the strategic network along with, perhaps, a second tier of fleet managers marshalling its use. While he quite understood the concerns around the remit, any change must be a matter for government and the legislative process. This is therefore our chance to effect that change, against a background in which the Government continue to respond to the increasing pressure for the use of cycles by saying that they are very much in favour of such growth.

Of course, the greatest deterrent to cycle use in our towns and cities and on connecting roads of any significance is danger. Because we do not set out to

3 Nov 2014 : Column 1480

protect cyclists adequately, our present figures are dreadful in comparison to many other European countries. In the UK, 2% of journeys are made by bike, compared with 10% in Austria, 19% in Denmark and 27% in the Netherlands. Some 22% of all journeys in the UK are of less than a mile, but a fifth of these are in a car. Some people are, of course, obliged to use a car for a journey of less than a mile. However, the great deterrent to using the far more efficient and effective cycle is that people consider cycling to be dangerous.

The Government promised to support cycling but, of course, Cycling England, the pressure group for cyclists, was shut down; the body which co-ordinated policy and action on cycling, which had a £60 million annual budget, was shut down; and the Government also abandoned the cycling towns and cities initiative which we, as the previous Administration, had initiated—and it was delivering results. The proportion of people cycling at least once a month in England dropped from 15.3% to 14.7% in the year to October 2013. No one is going to say that that is a dramatic drop, but it is movement in the wrong direction when there are calls on all sides, to which the Government subscribe, for cycling to be encouraged. There was a decline in all regions in the United Kingdom.

I am therefore seeking with this amendment for the Government, who alone can take the legislative initiative on this—that is quite clear—to give a voice to cyclists and pedestrians, and to ensure that we make some progress on the aim of improving the use of cycling, and even walking over short distances. In order to achieve that, certainly with cycling, we must overcome the anxiety of the public that cycling on so many of our roads is just not safe enough.

Baroness Kramer: My Lords, I begin by addressing Amendment 49, which relates back to my original amendments on changing the powers to fine. As I said earlier, the ability to provide overarching governance is a necessary part of a regime in which the ORR is undertaking independent enforcement activity. This is especially true on fines. We want fines to be independent and fair, but we also want to make certain that they do not jeopardise the ability of the company to deliver what it has promised under the RIS. In future, it may also be helpful to have a mechanism to clarify the rules around fines. In the Railways Act these are subject to very detailed instructions, and without the subsection that this amendment removes there would be no way to do this if it were judged necessary.

I now turn to the watchdog. I am aware that the House recognises the value of that role. I am keen that we keep sight of what is important about the creation of the watchdog: the establishment of an organisation that will represent the interests of road users, whose voice must be listened to by those in government. That is something that will make the roads operator publicly accountable in a way that it never has been seen before.

I would like to make a distinction between what the new system of road governance achieves overall, and what role the watchdog plays within that system. Overall, we agree wholeheartedly that the impacts on communities around the network, and on those who

3 Nov 2014 : Column 1481

walk and cycle in the vicinity, are very important. Environmental enhancements and measures to improve conditions for walkers and cyclists will be important parts of the road investment strategy when it comes into force. I will be discussing a number of issues around cycling in a later group, where a number of cycling-related investments are clustered. That may well answer some of the questions that have been raised at this point.

We expect that the policing of this will belong to the monitor and not to the watchdog. The ORR has monitored Network Rail’s environmental improvements for many years and has the necessary expertise to do the job well. By contrast, looking at the watchdog, Passenger Focus is an organisation focused firmly on gathering, understanding and promoting the views of transport users. It is not an expert in examining environmental impacts or issues, and while it is expanding its remit it does not plan to do so at the expense of its widely praised focus on users’ interests. The purpose of this organisation, whether now or in its new guise as Transport Focus, should be to put forward the views of the people who use the network. Anything else would dilute its ability to do the job well.

I should stress that users include both walkers and cyclists, as Amendment 52 ensures that the definition of “users of highways” includes cyclists and pedestrians, although I must make it clear it is not limited to them. Those who might use the network but do not feel able to are already being heard through the work that Passenger Focus is doing to engage with walking and cycling groups and find out what they feel to be the main barriers to using the network. I can assure your Lordships that this will remain an important part of Transport Focus’s remit. The same is true of potential freight users and potential motorists. All users, of every kind, will contribute to the route strategies that determine the priorities for future investment plans.

I am pleased that we are creating an organisation dedicated to listening to road users’ views, but I would be less happy creating an organisation that tells road users what their views should be. Transport Focus must be free to say what users actually think, and not what we might like them to, otherwise it will not have any credibility with the travelling public. That means we must catch the other issues that your Lordships have raised—including modal shift and environmental impact—elsewhere in the governance system. We have already discussed the new environmental duties on the monitor, and I hope our road investment strategy will do even more.

The proposal to widen the scope of voluntary agreements between the watchdog and local highways authorities is an interesting one. In practice, I believe that the existing wording, “protecting and promoting” the interests of users, is already broad enough to cover anything that a local authority might want the watchdog to do, and more clearly matches their remit as specified in subsection (1).

I therefore hope that your Lordships will feel able to support the government amendments and not to press the others.

Amendment 32 agreed.

3 Nov 2014 : Column 1482

Clause 8: Watchdog

Amendments 33 to 35 not moved.

Consideration on Report adjourned until not before 8.30 pm.

Child Abuse Inquiry

Statement

6.44 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): My Lords, with the leave of the House, I should like to make a Statement made by my right honourable friend Theresa May, the Home Secretary, in another place, earlier today.

“Mr Speaker, I should like to make a Statement on the independent panel inquiry into child abuse, which has been established to consider whether institutions in England and Wales have taken seriously their duty of care to protect children from sexual abuse.

The House will remember that in July, I made a Statement in which I announced my intention to establish the panel inquiry. I did so because of the growing evidence of organised child sexual abuse, conducted over many years, and serious allegations about the failure of some of our most important institutions to protect children from this disgusting crime. I established a panel of inquiry because it is the best way of making sure that we have an inquiry which is conducted by a team of experts with empathy and sensitivity to the feelings of the survivors of child abuse. The fact that it is a panel consisting of several people means that within it is able to cover more expertise than one person could offer. And importantly, the public can have extra confidence in the integrity of its work, because no one individual can take important decisions or come to judgments alone.

The members of the panel—Sharon Evans, Ivor Frank, Dame Moira Gibb, Barbara Hearn, Professor Jenny Pearce, Dru Sharpling, Professor Terence Stephenson and Graham Wilmer—are in place, and they are supported by Ben Emmerson QC, who is counsel to the inquiry, and Professor Alexis Jay, who is the panel’s expert adviser. The panel therefore consists of members with a broad range of experience and skills. They have backgrounds in social care, academia, law enforcement, healthcare, the media and the voluntary sector, and some have experienced sexual abuse themselves as children. I believe that the panel can command the confidence of the public and, most importantly, of the survivors of child abuse.

The House will know, however, that on Friday, the panel’s chairman, Fiona Woolf, announced her intention to resign. She did so because, as she wrote in her letter to me,

‘it has become clear that the inquiry’,

if she continued to chair it,

‘would not have the widespread victim support it so desperately deserves and needs’.

Fiona Woolf’s resignation of course follows the resignation of the panel’s first chairman, the noble and learned Baroness, Lady Butler-Sloss. Both women had strong credentials to chair the inquiry. The noble and learned

3 Nov 2014 : Column 1483

Baroness, Lady Butler-Sloss, was the first female Lord Justice of Appeal, she was the President of the Family Division of the High Court, and she chaired the Cleveland child abuse inquiry. Fiona Woolf is a leading lawyer and a former president of the Law Society. But for different—and to this end, understandable—reasons, both the noble and learned Baroness, Lady Butler-Sloss, and Fiona Woolf concluded that they did not command the confidence of survivors.

Almost four months after I announced my intention to establish a panel inquiry, it is obviously very disappointing that that we do not yet have a panel chairman in place, and for that I want to tell survivors that I am sorry. To put it bluntly, it will not be straightforward to find a chairman who has both the expertise to do this hugely important work and has had no contact at all with an institution or an individual about whom people have concerns. I still believe, however, that it is possible to find somebody who is suitably qualified and can win the confidence of survivors, so I want to turn now to what I plan to do to recruit a new chairman.

I will hold meetings with representatives of the survivors of child abuse, starting next week. I have already had a number of discussions with the Members of Parliament who have campaigned for an inquiry into child abuse—the honourable Members for Birmingham Yardley, Brighton Pavilion, East Worthing and Shoreham, Richmond Park, Rochdale, Wells, and West Bromwich East—and I will continue to have discussions with them. I will also discuss the appointment of the new panel chairman with the shadow Home Secretary and the right honourable Member for Leicester East. I have already agreed with him that the nominated panel chairman will attend a pre-confirmation hearing before the Home Affairs Select Committee.

In the mean time, the panel will go about its important work. So I can tell the House that the panel will hold its first meeting on Wednesday 12 November, and will meet every Wednesday thereafter until Christmas. The panel will organise other meetings that will discuss the different themes and issues covered by the inquiry, and attendance for these meetings—for both panel members and expert witnesses—will be set accordingly. In addition, the panel secretariat is planning two regional events that will be held before Christmas and another four that will be held early in the new year. These regional events will provide an early opportunity for survivors to give their views about how the panel should go about its work.

One matter that I know has been raised by some campaigners is whether the inquiry should become a statutory inquiry. The inquiry as it is constituted at present, like the inquiries into Hillsborough and the murder of Daniel Morgan, is on a non-statutory inquiry basis. I have already said that the panel will have access to all government papers, reviews and reports that it requests and, subject to the constraints imposed by any criminal investigations, it will be free to call witnesses from any organisation that it deems appropriate. But, as I said to the House in July, I want to make it clear that, if the panel chairman deems it necessary, the Government are prepared to convert it into a full statutory inquiry, in line with the Inquiries Act.

3 Nov 2014 : Column 1484

Another matter that has been raised is the terms of reference for the inquiry. Some say that the terms are too broad, while others say the terms are too narrow. I do not propose to narrow the terms of reference because to do so would risk missing out, in a fairly arbitrary manner, some important institutions. Likewise, I do not propose to extend the terms of reference to include Northern Ireland, Scotland or the Crown dependencies. I will, however, discuss with the new panel chairman how we can make sure that the Hart inquiry in Northern Ireland and the Oldham inquiry in Jersey feed into the panel to make sure that no information, and no institutions or individuals with a case to answer, can fall through the cracks.

I can also tell the House that the Government are considering ways of trying to make the experience of giving evidence less traumatic for survivors. The panel will therefore take evidence not just in public and private meetings but also remotely, with witnesses able to speak to panel members from their homes. The secretariat to the inquiry is also in discussions with officials in the Department of Health and other organisations to make sure that counselling and support are available to survivors before and after they provide evidence to the inquiry. To make sure there is an open channel of communication between survivors, the panel and the Government, I will establish a survivor liaison group, which will meet on a regular basis as long as the inquiry continues.

I know that some Members of the House have suggested that the Government should publish today the Wanless report about the Home Office Permanent Secretary’s investigation into the so-called Dickens dossier. I can tell the House that the Wanless report will be published next week. This is because it is about a separate but related matter to the work of the panel inquiry, and I want members of the public and the media to have time to scrutinise both this Statement and the Wanless review properly.

In the midst of debate about names, structures and legal powers, we must always keep in mind the survivors of child abuse themselves. Let us remember the events that prompted me to announce this historic inquiry into child abuse in the first place. There was systematic abuse of vulnerable young girls in Derby, Rochdale, Oxford, and other towns and cities across the country; examples of celebrities abusing minors and getting away with it, apparently because of their fame; and evidence that some of the most important institutions in the country, from the BBC to the NHS, failed in their duty of care towards children. Since I made my Statement in July, the evidence has only mounted. We have seen the Alexis Jay report into abuse in Rotherham and the report by the honourable Member for Stockport, which was commissioned by Tony Lloyd, the police and crime commissioner for Greater Manchester. Both reports exposed serious failings among the police, social services, schools and other institutions, and the obvious conclusion is that, if only we had learned from these appalling cases earlier, we could have ensured that there were fewer victims of abuse today. I believe the whole House will agree with me that we owe it to the victims in all these cases to work together, to let the

3 Nov 2014 : Column 1485

panel inquiry do its job as quickly as possible, and to start to learn the lessons of the many cases where, undoubtedly, too many things went horribly wrong.

I want to end my Statement by issuing a direct message to the many survivors of child abuse and their representatives. I know that you have experienced terrible things. I know that we cannot imagine what that must be like. I know, perhaps because of the identity of your abusers or the way you were treated when you needed help, that many of you have lost trust in the authorities. I know that some of you have questioned the legitimacy of this process, and you are disappointed that the panel has no chairman. I understand that. I am listening—and to you, I say this. I am as determined as you are to get to the truth. That is why I set up this inquiry. We have a once-in-a-generation opportunity to do something that is hugely important. Together we can expose what has gone wrong in the past, and we can prevent it going wrong in the future. We can make sure that people who thought they were beyond the reach of the law face justice. We can do everything possible to save vulnerable young people from the appalling abuse that you endured. Let us come together to make this process work and finally deliver justice for what you, and too many others, have suffered”.

6.55 pm

Baroness Smith of Basildon (Lab): My Lords, I thank the Minister for repeating the Home Secretary’s Statement. We called for an overarching inquiry and we are obviously bitterly disappointed at the delays and problems. But the position of the person to chair the inquiry is, of course, of the utmost importance. It is not just a question of integrity and ability; whoever chairs this inquiry must have the confidence of the victims and those from whom they must take evidence. We are grateful for and welcome the fact that the Home Secretary has apologised and for her recognition that she now needs to do more and be proactive in ensuring that confidence by committing to meet survivors of abuse.

I shall ask a couple of questions on that matter. Can the Minister confirm that, when the Home Secretary meets survivors of abuse, it will not be just a meeting but she will undertake to consult those survivors on the terms of reference of the inquiry and the issues that the inquiry and the panel should focus on? Given that this is now considered, rightly, to be necessary, can he tell us why it was not deemed essential before that the Home Secretary consulted survivors in this way? Can he tell us when the new chair of the panel will be in place? When panel meetings take place in the mean time, who will chair those meetings? I notice that, of the people whom the Home Secretary has consulted, a number of Members of the other place who have raised these issues are listed, but no Members of your Lordships’ House. I hope that the Home Secretary will be able to speak to Members of your Lordships’ House who have some experience in these issues and will be happy to be of assistance.

I welcome the announcement that the Wanless review will be published next week. Many survivors of abuse were too scared to report the abuse and, when they

3 Nov 2014 : Column 1486

did, they were let down and betrayed by authorities. Such horrendous crimes must be properly investigated and action taken against perpetrators. But children are being abused now. Last week in your Lordships’ House, I raised why it had taken more than two years to question an individual with evidence of online child abuse. Can the Minister assure your Lordships’ House that, at the same time as we are rightly investigating historical child abuse, we will ensure that mistakes do not get repeated and that those who are suffering abuse today are protected—that we do not let down today’s children? It should be a priority to investigate child abuse, whether online or otherwise, that is happening today in the UK.

6.58 pm

Lord Bates: I thank the noble Baroness, first, for her welcome of the approach that is being proposed. The added layers of consulting the shadow Home Secretary and the consultation that will take place in a kind of pre-confirmation hearing with the Home Affairs Select Committee will go some way to allaying concerns about the process. There was always a difficult balance for the Home Secretary in establishing the inquiry, but it was not her intention that she was going to undertake the inquiry. Therefore, it is for the panel members to decide on the direction of inquiries and the direction in which they set up their meetings. It was the panel that sent out the invitations for the meetings for survivors’ groups, which began last Friday and which will continue, so panel members can continue their work—and it is absolutely essential that they do so.

The noble Baroness mentioned a very sensible point—the wealth of expertise in your Lordships’ House. Of course, the Home Secretary or certainly myself will be available to meet, and will try to seek meetings with, all those people with relevant expertise to ensure that that knowledge and expertise is fed into the process that we have. The Wanless report is in the Home Office at present. As we know from the comments made, the process is twofold. The Home Secretary has questions to ask to ensure that the questions in the terms of reference have been answered. We also want to separate the two issues so that people get an opportunity to look at those very serious allegations and a response to them by Peter Wanless next week.

The noble Baroness referred to an investigation that was carried out by CEOP under Project Spade. They referred themselves to the Independent Police Complaints Commission. Of course, that was before CEOP had become part of the National Crime Agency. I urge the noble Baroness to think about the fact that there is now an ongoing inquiry called Operation Notarise which has had much more success.

We are lifting stones all over the place and discovering the scale of something that we never could have imagined was going on in our society. That goes to the heart of what we are talking about. It is tough and it is harsh, but we have got to go through it, not only for the victims in the past but to protect children in the future.

7.01 pm

Baroness Walmsley (LD): I thank the Minister for repeating the Statement. I very much welcome the elements in it that refer to how the victims will be

3 Nov 2014 : Column 1487

treated in the future. There will be liaison with them; their support will be sought; and measures will be put in place to ensure that the experience of giving evidence to the inquiry will cause them as little pain as possible, though inevitably it will cause them some pain.

As well as hearing from the victims, there are many thousands of well meaning, good people who have never done any wrong, working in the organisations that deal with children all over the country. I hope that the inquiry panel will listen to some of those people. In my experience, if you want to know what is going wrong in an organisation, you can do little better than talk to the staff. Of course, there are people who have things to hide; but the vast majority of people who work with children do so because they care about children and want the best for them.

On the appointment of the new chairman, I hope that the Government will look north of Watford before they look abroad—Newcastle rather than New Zealand, Carlisle before Canada. Many reputable members of the judiciary would be very well qualified to do this job. Although we can learn lessons from abroad, I do not think that it is necessary to find someone from abroad to chair this. Will the Minister confirm that the terms of reference will allow the committee to look at the experience in other countries and see whether there are lessons to be learnt that might be applicable to our situation in the UK, to help to protect children better than we have in the past?

Finally, I ask the Minister about the status of the inquiry. It has been said by the Government, several times and very clearly, that if the chairman feels the inquiry should be made a statutory inquiry under the Inquiries Act 2005, that will happen. I am most concerned that, if that happens, the inquiry will be able to call in evidence and files from whoever it feels will benefit the inquiry and can compel those people, under threat of legal action—in other words, put them in contempt of court if they fail to co-operate with the organisation. Will my noble friend ensure that that happens?

Lord Bates: I appreciate that question from my noble friend. That comes to one of the reasons the inquiry was set up on a non-statutory footing at the start. Because one is dealing with really sensitive cases and a lot of young people who are very damaged, one wants to give them maximum freedom to approach the inquiry rather than be in a courtroom setting, which has its own set of intimidations—although, necessarily, legal advice is there. This inquiry was meant to be accessible to people. We are not anticipating that the inquiry will change to a statutory footing under the Inquiries Act, but that option remains open. The Home Secretary has of course made it clear that, to assist the speed of the review, it is very important that we do not reinvent the wheel and that we draw upon the vast literature and evidence already there in a way that can inform the decisions quickly, whether that be from this country or other countries.

Baroness Howarth of Breckland (CB): My Lords, of course we all welcome the inquiry. However, I was very relieved when the Minister said that we are not going to look just at historic abuse; we will be worrying

3 Nov 2014 : Column 1488

about what is happening to children in the here and now. We could wait to learn lessons, but we already have numerous inquiries that stretch back, which have lessons that we know about. We know that co-operation between different statutory agencies will make a difference. Has the Minister read the report from the All-Party Parliamentary Group on Children on co-operation with the police and the way that children have talked about the need for co-operation between agencies in looking at the police? I am sure that he has looked at it. I hope that we are not going to wait until the report comes through, given that we already know about some of the lessons. Has the Minister considered that the pressures on social workers, police and health workers are so great that they are likely to make mistakes? I spent time today with the representative of the independent reviewing officers, who are supposed to look at the plans for children to ensure that they are being protected. They say that the patchiness across the country is so great that some areas are still dangerous for children.

Will the Minister assure me that, while we are spending time and a great deal of money on historical abuse—which I welcome, because I know the victims and know how much it means to them—he will be sure to think about children here and now and the stresses on services that put them in danger today?

Lord Bates: I certainly can give that assurance. The terms of reference are from a 44-year period, which runs from 1970 to the present day, so some of those lessons will be there. I was familiar with the all-party group’s report, which noble Lords debated under the Serious Crime Bill. We are introducing a number of amendments under the Serious Crime Bill that do not talk just about the future. They are saying simply that we have the evidence but there are gaps that need to be tackled so that we can act. These are very important issues. Once the Government see an issue highlighted, they want to act as soon as possible to protect those in need.

Lord Borrie (Lab): I will resist the temptation that there must be, not only to myself but to many in the Chamber, to criticise the Home Office and Ministers for the pretty pass we find ourselves in. On the basis of what the Minister said when repeating the Statement made in the other place, I look to the future. The key point seems to be to have a timetable that one will have some faith in, unlike that of the Chilcot inquiry. I was concerned when, during the course of the Statement, the Minister said that although the first few meetings of the panel might be without a chairman, it will have a chairman, and will meet every Wednesday from next Wednesday. I can imagine that in many cases that is perfectly reasonable, especially when one engages people who are busy on other matters. It may be that the timetable of once a week arises in part because of the commitments of the existing panel members, who will continue to be panel members. I wonder whether there should be some flexibility, at least so that the panel, preferably with the new chairman in place, can amend that and if possible arrange for further meetings so as to bring the inquiry to some sort of conclusion. We have had some reassurance from the Minister about

3 Nov 2014 : Column 1489

the beginning of the inquiry, even without the chairman, but there has been no reassurance about how long it will take. Perhaps in all honesty the Government cannot give that and will not be able to give that. At least there should be some flexibility so that the panel could determine a lengthier time.

As to the appointment of the chairman, there are plenty of choices, as has been discussed today and in the media. I shall not go into that. I may not have trusted the Government on the first appointments, but surely we must trust the Government now, having had so many difficulties, to make a good choice.

Lord Bates: I shall clarify the position: in the terms of reference of the inquiry, the aim, approach and methodology of the panel is to solicit opinions, views and evidence from organisations and individuals involved in this, so at this stage it is simply going out to solicit that information. As in some inquiries or a Select Committee inquiry in our own House, we might find that the frequency of meetings will increase once that evidence has been collated and needs to be assessed.

I shall add one more thing which I hope is useful. It is the intention, and it was the intention when Fiona Woolf was the chairman, that there should be an interim report in March. It is still the intention that there should be an interim statement, perhaps on methodology, by then and that information will not be built up for one final release, but will be released as a clear segment of work is completed with recommendations so that it can be debated, discussed and acted upon.

Lord Finkelstein (Con): I thank my noble friend for the excellent Statement and wish him good fortune in choosing a new chairman because I fear that good fortune will be required. Given the terms of reference of the inquiry, to find someone who has had no connection with state or non-state actors over a period of 50 years will be very difficult to crown with success. This is a very important inquiry and clearly the matters that it will discuss are vast. It took the Saville inquiry more than a decade to inquire into the events of a single afternoon. Would it not be more sensible to divide the inquiry, and therefore to divide the number of chairmen, into a series dealing with different areas rather than to look for somebody, who may be impossible to find, to deal with the entire area of child abuse over 50 years?

Lord Bates: My noble friend makes an excellent point. Sometimes in the debate we have had it has been said that we need somebody who knows everything about everyone to head the inquiry. The person who is to chair the inquiry has a specific responsibility to manage the body of expertise which is already on the panel and to direct it in an efficient manner to complete the work in accordance with the terms of reference. We are looking for a different skill set in the chairman than in the members of the panel. Therefore I think it might be possible to find somebody who is able to satisfy the survivors and give them confidence in the process.

3 Nov 2014 : Column 1490

Lord McConnell of Glenscorrodale (Lab): My Lords, I hope the Minister and your Lordships’ House will accept my apology for missing the first two paragraphs of the Statement. I want to ask a question on the very important issue of Scotland. Given that a number of these allegations pre-date devolution and that a number of the institutions referred to cover the whole of the United Kingdom, not just England and Wales, including, for example, the BBC, there is dismay in Scotland among the historic survivors of child abuse that this inquiry will not cover Scotland. Therefore, I ask the Minister, as I asked his predecessors, why is this inquiry not including Scotland? Has the Home Secretary discussed this issue with the Justice Secretary in the Scottish Cabinet? If the new First Minister in Scotland, Nicola Sturgeon, who is expected to be in post before the end of this month, were to agree to include Scotland in the inquiry, would the Government be willing to reconsider this position?

Lord Bates: The inquiry is being set up now, and now it is a devolved matter in Scotland and Northern Ireland. Northern Ireland is undertaking its own inquiry under Sir Anthony Hart into some matters which happened there. Scotland is free to undertake that process. Of course, as part of this process which we are now embarking upon, we remain open to approaches and suggestions from wherever they come, including from the Scottish Parliament and the Scottish First Minister.

CEPOL Regulation: United Kingdom Opt-in

Motion to Agree

7.15 pm

Moved by Baroness Prashar

That this House agrees the recommendation of the European Union Committee that Her Majesty’s Government should exercise their right, in accordance with the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, to take part in the adoption and application of the proposal for a Regulation of the European Parliament and of the Council establishing a European Union agency for law enforcement training (CEPOL), repealing and replacing the Council Decision 2005/681/JHA (document 12013/14) (3rd Report, HL Paper 52).

Baroness Prashar (CB): My Lords, I move the Motion standing in my name on the Order Paper as chairman of the European Union Committee sub-committee on Home Affairs, Health and Education which prepared the report on the UK opt-in to the draft CEPOL regulation to which this Motion relates.

As your Lordships know, when the House considers reports of the European Union Committee, it is normally on a Motion that the House takes note of the report. In this case, the Motion invites the House to agree to the committee’s recommendation. The reason is that this report deals with a draft measure falling within

3 Nov 2014 : Column 1491

the area of justice and home affairs which will apply to the United Kingdom only if the Government exercise their right under a protocol to the EU treaties to participate in its negotiation, adoption and implementation: in other words, to opt in to it. They have to do this within three months of the proposal being presented to the Council, which means before 24 November. The committee believes that the Government should opt in now, and the Motion invites the House to endorse that view. The Government have undertaken that time will be found to debate opt-in reports well before the expiry of the three-month period. I am therefore grateful that they have made time available for this report early enough for them to be able to take the views of the House into account.

CEPOL is the European police college. It brings together senior police officers from across the EU and aims to encourage cross-border co-operation in the fight against crime and the maintenance of public security and law and order through training and exchange programmes and the sharing of research and best practice. Until September this year, it was located at Bramshill in Hampshire; in September, it moved to Budapest.

Despite its important role, CEPOL is less well known than Europol, which is a much larger EU agency for co-operation in law enforcement and whose aim is to achieve a more secure Europe by supporting member states in their fight against serious organised crime and terrorism. CEPOL and Europol are separate bodies set up under different Council decisions. In March 2013, the Commission put forward a new regulation for Europol, one of whose objects was to merge CEPOL with Europol. That regulation, too, was subject to the United Kingdom opt-in. Some of your Lordships were present on 1 July 2013 when the committee’s report on that regulation was debated. Those who spoke shared the committee’s doubts about the desirability of such a merger. The Government too had concerns, and so did the director of Europol. The director of CEPOL also opposed the merger, and it was rejected by the European Parliament. Finally, in March this year, the Council decided against the merger. The provision relating to CEPOL was therefore deleted from the Europol regulation.

The Commission has now brought forward a separate regulation dealing only with CEPOL, and it is this separate regulation which we are considering tonight. It is the Government’s practice in their Explanatory Memoranda dealing with measures subject to the UK opt-in to give no indication of whether they are inclined to opt in. Instead, they say simply that they consider such measures on a case-by-case basis. That is what they said last year in relation to Europol. Two months after the debate they said that they would not opt in to the Europol regulation—and by then it was, in any case, too late for them to do so.

In the case of CEPOL regulation we have at present no indication from the Government of what their intentions are, unless the Minister can tell us when he responds. There are, in the Committee’s view, very good reasons why the Government should opt in now to the CEPOL regulation. Cross-border co-operation in the fight against crime and the maintenance of

3 Nov 2014 : Column 1492

public security and law and order have never been more important. Senior UK officers have much to learn from their colleagues in other member states—and perhaps even more to contribute.

The Government have concerns about the Commission’s proposals to widen CEPOL’s remit: these are listed in paragraphs 16 to 18 of the report. We have some sympathy with some of these concerns, but the committee is of the view that the Government should opt in now, as this will give the message that the Government intend to continue to support and be part of CEPOL. It will also give the Government a formal place at the negotiating table when attempts are made to amend the Commission’s draft. In other words, the Government would be better placed to make their views and concerns known in the course of negotiations if they have opted in.

Opting in to CEPOL regulation is important, but opting in to the Europol regulation is critical. Europol is a vital weapon for co-ordinating the European fight against serious organised crime, drug trafficking, money laundering, cybercrime and terrorism. Yet, as I said, the Government declined to opt in to the Europol regulation during the three-month window, preferring to say that they would wait until after the regulation was adopted and consider again whether to opt in. In the case of both CEPOL and Europol, if the Government do not ultimately opt in to the relevant regulations, the consequences will be serious. We explain the reasons in paragraphs 20 to 23 of our report and these reasons have been accepted by the Government.

Not opting in would thus initially result in the UK remaining bound by the decision giving CEPOL its existing powers while other member states will be bound by a regulation with a different constitution and wider powers. This would mean that the other member states would have the power to decide that the measures setting up these agencies will cease to apply to this country. There is every likelihood that they will do so. The United Kingdom would, in effect, be expelled from both agencies.

Two years ago, Rob Wainwright, the highly regarded British director of Europol, told my committee that if the UK stopped participating in Europol:

“It would increase the risk of serious crimes, therefore, going undetected or not prevented in the UK”,

and that, as the UK is a common destination for drug and people trafficking,

“any diminution of the UK’s capability to deal with those problems would clearly increase public safety risk”.

The consequences if the UK were to leave Europol would, in his words, be “pretty disastrous”.

I seek three assurances from the Minister. First, that the Government will opt in to the CEPOL regulation; secondly, that they will do so within the three-month period, before 24 November; and, thirdly, that they will opt in to the Europol regulation as soon as possible after it is adopted, and, in any case, before it comes into force.

I also take this opportunity to put another matter before your Lordships. Four weeks from today is 1 December, the fifth anniversary of the entry into force of the Lisbon treaty, and the day on which the Government’s decision to opt out of all justice and

3 Nov 2014 : Column 1493

home affairs measures takes effect. It is also the day on which the Government would like to opt back in to 35 of those measures. This, I need hardly remind your Lordships, is a matter of great importance, and the Government have undertaken that this House will debate it well in advance. On 27 September the Commission published the final list of those 35 measures, annexed to a draft decision which will enter into force on 30 November and extend the application of those measures by a week.

We should have received, by 16 October at the latest, the Government’s memorandum explaining the meaning and purpose of this proposal and their attitude to it. Had we done so, we would have considered it at our meeting on 22 October. We were unable to look at it then, or on 29 October. We received the memorandum less than three hours ago, so there is little prospect of our scrutinising the draft decision on 5 November, which is our last meeting before the Recess. We are frequently told how seriously Ministers take their scrutiny obligations. Therefore, I should be glad to have the Minister’s explanation of why, in a matter of such great importance and urgency, the Government have, despite repeated reminders, failed in their duty to the committee and to this House. I beg to move.

7.25 pm

Lord Patten (Con): My Lords, I am something of a neophyte in debates on Europe at any level, let alone among the swamps, pitfalls and complexities of regulations such as these, which the noble Baroness understands so well. So anyone such as me, coming brand, spanking new to such issues, is bound to look first at the matters we are considering at a general level. It is good to stand back sometimes, to ask questions such as whether, in its present European police college role, CEPOL can be judged to be a success in its task of developing the talents of our UK senior police officers and their ability to co-operate well with our European partners.

I have not stumbled on much evidence or evaluation so far that would help answer the key question: if CEPOL did not exist, would we seek to invent it now? Yet via these regulations, which I have flirted with—the detail is, indeed, challenging in parts—we are being asked to be party to the invention of a much expanded operation; no longer just in relation, as now, to senior police in the UK and in Europe, but leaping into a new world, as the Commission proposed on 16 July this year, with, to quote from the leaden language,

“learning activities for law enforcement officials of all ranks, as well as customs officers and other authorities”.

Apart from anything else, these “other authorities” are ill defined. The open invitation to mission creep and incremental extension of activity and powers in border matters is obvious, and all at a time when cross-border issues and immigration changes are of much concern, as we read and heard today, to my right honourable friend the Prime Minister. My other right honourable friend the Chancellor of the Exchequer insisted this morning on the BBC that David Cameron and the Conservative Party always put the national interest first.

3 Nov 2014 : Column 1494

Needless to say, I agree with that, to reassure the Minister. But is it in the UK interest to opt in to a proposal from the Commission for a brand-new law enforcement training scheme—LETS, as it is known—which is already deeply embedded in Article 3 of the draft CEPOL regulations? It strikes at the very core of the UK’s present right to decide how senior police officer training should be delivered and introduces the idea of training at all levels of police and for all those at our customs and immigration controls. The phrase, “other authorities” is, as far as I can see, absolutely wide open to embrace our different security services, for which there seems to be no clear carve-out in the regulations. If there is not, that would be a very serious matter indeed.

Any opt-in will, I believe, automatically apply to Gibraltar, which is all too often under siege from Spanish customs officers and their other border officials, which is a European scandal of the first order: the Spanish should be ashamed of themselves. So, in strongly supporting the Prime Minister and the Chancellor, it is clear to me that if we opt in now, we will get full-bore LETS by the back door. That is something that I sense the Home Office would not wish to see. I seek some reassurance from the Minister on that, as well as on the fact that these new regulations would leave the proposed new body, with its inbuilt mission creep capabilities, absolutely free of any scrutiny by national Parliaments such as ours—scrutiny that I think is highly desirable.

I strongly believe in practical co-operation across borders in law enforcement. I want to reassure the noble Baroness that I would be daft not to do so. I strongly support that, but collaboration should not be extended to clash head-on with subsidiarity—the subsidiarity that presently, and quite rightly, allows the UK to decide how the training of police, customs and other border enforcers should be delivered. We should not therefore exercise our right to opt in on these issues until they are sorted out.

7.30 pm

Lord Judd (Lab): My Lords, first, I thank—I am sure not only on my behalf but on behalf of other members of the committee—our chair for having led us through the discussions that produced this report. We have been fortunate in this committee in the calibre of our chairs. When the noble Lord, Lord Hannay, completed his service, there was too big a pair of shoes for anyone to fill. All that I can say is that he can rest assured that the shoes are very fully filled, but of course with a different emphasis. We all appreciate in the committee the extraordinary skills and chairmanship that our present chair exercises. There is a real feeling that we all belong and matter in the committee, and that is something very special.

I start with what the noble Baroness referred to in terms of late information. This is not the first time that this has occurred. We have had reassurances from the Government Front Bench that things would be put right and that in the Home Office this kind of behaviour would stop. There really is no point in having Select Committees unless Governments make it the highest priority to ensure that those Select Committees have

3 Nov 2014 : Column 1495

all the information that they need to conduct their scrutiny appropriately. It is to make a mockery of the system to have information arriving late or too late to be properly considered. I am very glad that the noble Baroness emphasised this point. It is exasperating.

I belong to those who realise that the first reality of existence is that we live in a totally interdependent world. Very few significant issues that face us and our children can be resolved in the context of national policy alone. This is sometimes brought home more dramatically than at other times. It is true, of course, in strategic and defence terms. We are discovering in the anxiety about Ebola that it is certainly true of health. Here, we are seeing how important it is in the context of Home Office affairs.

The noble Lord, Lord Patten, said that he believed in cross-border co-operation. I am very glad to hear him say that; it is reassuring. As he said himself, it would be mad to take any other position. However, what I ask him to consider is that this cannot be just a matter of the interrelationships of institutions. The police are an institution working with other police forces. Essential to the success of operations of this kind is a culture of, to use the Government’s phrase, “We are all in this together”. We will be as strong only as our weakest link, and we have to think about this together. We must instinctively see the international dimension of what we are involved in and want to be working alongside people whom we increasingly know personally, professionally and the rest. It would be wantonly irresponsible to forgo the chance of strengthening that. The culture of mutual dependency for success is terribly important.

To substantiate that argument, it is interesting to listen to witnesses because, increasingly, those whom we charge with responsibility in this sphere are saying how important these institutions are to them. Certainly, on Europol, the evidence was extraordinary. The professionals to whom we listened were saying, one after the other—perhaps I will not use the colloquial term I was going to use; but perhaps I can say—that we really would have lost our marbles if we had pulled out of Europol because it was so indispensable for the reasons that I have been trying to outline.

We cannot separate this issue from our whole attitude towards the European Union. If we are to succeed in the EU, see the things that we regard as important being strengthened, and change successfully the things that we regard as having been overtaken in time, irrelevant or less significant than they originally were, surely this depends on our being seen to be committed, second to nobody, to the success of the mutual operation. That is how one influences people. If, all the time, one is stamping one’s foot on the margins and saying, “We won’t do this and can’t accept that”, one does not, in the end, have any influence at all.

Noble Lords will know that for most of my life I have been involved in international work. It would be completely to misrepresent what I encounter across not only Europe but the world, but people are beginning to be rather exasperated with Britain. They say, “Do you belong to the world and Europe, or don’t you? If you don’t, well, float off into the Atlantic and do things on your own”. However, how will we look in

3 Nov 2014 : Column 1496

respect of the security of the British people if we take that sort of course? It matters that we are engaged and using our influence as strongly as possible. As the noble Baroness argued very well, on this issue, if we are going to shape the institution in the way we would like to see it shaped, and the rest, it is terribly important to be in before we have to react and accept what has been negotiated by others. Therefore, the urgency of what we are trying to achieve is tremendously important.

I was rather sad when CEPOL moved from this country because I thought, “This is an example of cutting off one’s nose to spite one’s face because if it is here in this country, we will, in a host of ways, have maximum influence on how it operates”. We took the course that we took and it went away. Let us not reinforce the mistake we made then. Let us be second to nobody in getting in there early, at a time when we can influence, and demonstrate that we want this thing to be not only effective but effective in the right way.

7.38 pm

Lord Sharkey (LD): My Lords, CEPOL is a good thing and our membership of it benefits the United Kingdom. Your Lordships’ EU Select Committee believes that to be the case for the reasons set out so clearly by our chair, the noble Baroness, Lady Prashar. The Government believe this also. It would be a bad thing if the UK were to cease to be a member of CEPOL. It would be completely absurd for the UK to be the only member state not to be part of CEPOL. As things stand, that is precisely what will happen if we do not opt into the new CEPOL regulation.

I know that the Government have some reservations about the current draft of this new regulation, and so does the committee. I think we share the view that the proposed regulation goes beyond the scope of the existing regulation in ways that are not desirable. In particular, the Government are rightly concerned that the new, broader mandate would extend CEPOL’s training function to police officers of all ranks, to Customs officers and to other, unspecified, agencies dealing with cross-border issues. There are other concerns as well, to do with the contribution to CEPOL’s work programmes and the establishing of a CEPOL scientific committee. However, these concerns are not ship-sinkers. They are eminently resolvable by the usual processes of negotiation. There is no reason to believe that the Government would find it unusually difficult to have their concerns addressed, nor to believe that, in the unlikely event that these concerns were not addressed, that would merit leaving CEPOL.

The fact is that there is, as there has always been, a very strong case for UK membership of CEPOL. The details of the draft regulation, amended though we would like them to be, do not change that position. I think the Government will accept, as the committee’s report suggests, that we will opt in to this new regulation at some stage. The question we are really debating is the not unfamiliar one of whether we should opt in now or after adoption and before entry into force. It does seem rather perverse to deny ourselves a position at the formal negotiating table when it is certain that we will opt in to a final regulation anyway. What is the benefit to the UK of doing that? What are the dangers to the UK in the new draft that cannot be negotiated

3 Nov 2014 : Column 1497

away? What are the dangers that outweigh exclusion from CEPOL? If the Minister disagrees with opting in to the proposed regulation now, perhaps he can say why it is better to be outside formal negotiation if we will opt in later, as we surely must.

As the noble Baroness, Lady Prashar, has already mentioned, the committee’s report also notes that the Government have chosen not to opt in to the proposed new Europol regulation. The Government have excluded themselves from formal negotiations over the text and we see no benefit in this. Of course, if we eventually failed to opt in we would almost certainly find ourselves excluded from Europol, which is surely an entirely unthinkable outcome. The deadline for opting in to the proposed CEPOL regulation is in 21 days’ time, on November 24. The UK should, and would, benefit from being at the negotiating table while the text is being finalised. Since it is unthinkable, I hope, that we will not opt in eventually, that is where we should be now: at the negotiating table.

Of course, I accept that the whole topic of opting in—or not—to JHA measures has not been a simple one for the Government. The Government have, on occasion, been very slow in providing the House and its committees with the information necessary for proper scrutiny. In fact, they seem to have got into the habit of providing information very late and, sometimes, on the day of a debate. The noble Baroness, Lady Prashar, has already noted the latest example of this. I believe the Government provided, three hours ago, the explanatory memoranda—due on October 16—of the two draft Council decisions to do with the block opt-out and rejoins which need to be adopted before the end of this month. Will the Minister say why there has been such a delay?

All in all, the Government’s handling of the Protocol 36 block opt-outs and rejoins has generated very much more heat than light. However, I hope the Government will not allow their past, and perhaps present, difficulties in this area to colour their attitude to the Motion before us. In particular, I hope that the controversy over the European arrest warrant among some Tory Back-Bench MPs will have no influence on the Government’s decision on the CEPOL or Europol opt-ins. I wholeheartedly agree with the Home Secretary that the European arrest warrant is a vital and necessary law enforcement tool, but so is our participation in Europol and so is our participation in CEPOL. I urge the Government to accept today’s Motion. More than that, I urge the Government to opt in to the proposed CEPOL regulation without delay.

7.44 pm

Lord Hannay of Chiswick (CB): My Lords, since I am no longer a member of the EU Select Committee—nor chair of its sub-committee on home affairs—which published the excellent report on the draft CEPOL regulation which we are debating this evening, I can give unstinting praise for the crispness and clarity of that report, which bears witness to the effective chairmanship of my noble friend Lady Prashar, who has just introduced it. I can do so without being thought to be purely self-serving. I support its analysis

3 Nov 2014 : Column 1498

of the Commission’s draft regulation and its conclusion that the United Kingdom should opt in to its further negotiation before the three-month deadline expires on 24 November. I very much hope that the Government will reach the same conclusion and that the Minister will say so when he responds to the debate.

The complexities of the opt-in, opt-out system are mind-boggling, but before we take the easy way out of blaming that on Brussels, I suggest we recognise that these complexities are totally and entirely of our own making. No other member state faces the same complexities to the same extent when negotiating justice and home affairs legislation. No other member state has a substantial proportion of its own supporters in Parliament who will denounce any decision to opt in, even when the Government consider it in the national interest to do so, as a surrender to Brussels and an abdication of national sovereignty. “Oh what a tangled web we weave” could well be our motto when discussing these matters.

As to the CEPOL draft regulation itself, there are, I see, some points with which the Government are not entirely happy and which they seek to change in negotiations now taking place. That is quite normal and it would be unusual indeed if the Government were ready to agree to every word of every Commission draft. In fact, our track record on shaping justice and home affairs legislation has been good, ever since qualified majority voting was introduced in 2009. We support CEPOL: we welcomed its establishment in Budapest, so we surely need to get stuck in to these negotiations as a full participant and without delay. I was slightly baffled by the noble Lord, Lord Patten, who spoke about CEPOL in terms which led me to suppose that, in the brief time since I chaired the sub-committee, it had metamorphosed into one of those dragons which the shining knights of Euroscepticism ride out every day to slay. I was a bit puzzled by references to mission creep in a training organisation which has no executive authority and by the reference to subsidiarity which we, presumably, decided was fulfilled many years ago when we established CEPOL in Bramshill.

Perhaps the Minister will simply confirm that it is entirely a matter for Britain’s police forces to decide whether or not their officers and others in law enforcement agencies go to CEPOL. You cannot be ordered to send your officers to CEPOL: you decide whether they go. Some of those concerns were, therefore, a little wide of the mark. I say that because the binary choice of not joining the new CEPOL, with its new regulation, seems to me a totally disproportionate response to a few relatively minor and detailed blemishes in a draft which has not yet been negotiated. Can we seriously believe that Britain’s national interest would be served by standing outside CEPOL at a time when the international dimension of crime, whether you are talking about drugs, human trafficking, cybercrime, terrorism or many other forms of crime, is on the increase and the need for closer international co-operation is unchallenged? Therefore, the need for officers who understand how other people in the 28-member European Union are operating their procedures is very important. Do we want to deprive our law enforcement officers of the chance to build up their skills and to build up the

3 Nov 2014 : Column 1499

networks that they will achieve by attending CEPOL courses? That would seem to be, frankly, aberrant.

However, the other part of the binary choice—the idea that we might perhaps rejoin the old CEPOL, as the Government intend to do under their package of 35 justice and home affairs measures, while not participating in the new CEPOL regulation—is, as the report says, hardly likely to be sustainable any more than it will be for Europol or Eurojust. If these judgments are correct, we should stop pretending that the binary choices really exist. Let us face it: we need to be in CEPOL.

Later this month, we shall have the opportunity to debate and to vote on the justice and home affairs measures that the Government believe to be in the national interest to rejoin after triggering the block opt-out. I will support the Government in that debate and will vote for that package. When I listen to the views of the Government’s own supporters who will oppose that course of action and to those of UKIP, which are identical to those of many of the Government’s supporters, I sometimes feel slight despair. They say that their position is a principled one. It is perhaps more accurately described as an ideological one. I suggest that we need to avoid these polarisations. We used to pride ourselves on our pragmatism and our preference for practical solutions. What on earth has become of that pragmatism when we see the mountain of evidence given to your Lordships’ House by lawyers, prosecutors, senior police officers and indeed by the Home Secretary herself about the value of those 35 measures to our own internal security?

That is a debate for another day. Today, I hope that we will hear that the Government intend to opt in to the CEPOL regulation before 24 November.

7.52 pm

Baroness Smith of Basildon (Lab): My Lords, yet again we are grateful to the European Union Committee for its service to your Lordships’ House and for, again, providing an informative and helpful report so that we can fully debate these European issues. I thank the noble Baroness, Lady Prashar, for the helpful way in which she introduced the debate and the report. In the report we have a comprehensive assessment of the issues involved in the current opt-in proposals. Although there is a very specific issue here, I think that other noble Lords will agree that there is a sense of déjà vu about this debate.

The Government’s approach to EU criminal justice and home affairs matters has been—I use the term with some generosity—clumsy. It has more to do with narrow internal party-political fractures than it does with tackling crime, particularly serious organised crime, which does not know any borders: people being trafficked into slavery and prostitution, drug trafficking, kidnapping, abduction, cybercrime, fraud and money laundering. All of those are crimes that cannot be resolved or be dealt with by one country alone. With the political equivalent of the hokey-cokey that we have had in various debates, we have never been able to get a straight answer from the Government on how many of the measures that they have chosen to opt out of permanently have any value or even any application to

3 Nov 2014 : Column 1500

the UK. I am always willing to receive an answer on this, and I shall be grateful if the noble Lord is able to enlighten me today. I have asked a number of Ministers over the past couple of years and am still seeking an answer. If he cannot answer me today, perhaps he can do so when we debate the opt back in again measures, to which the noble Lord, Lord Hannay, referred. It would be very helpful in informing that debate and would certainly be much appreciated after about a dozen times of asking.

The Minister will recall that it was the noble Lord, Lord Hannay, in the previous opt-out debate on Europol who advised that we could not discuss these issues in a vacuum. We had to set them in the context of the Government’s announcement to opt out of all policing and criminal justice measures and then seek to opt back in again to some of them. While we are still waiting for those final proposals to be debated, it is clear that the Government, if not all of their MPs, now recognise the value of the European arrest warrant in seeking justice for victims and ensuring that criminals face justice.

However, the importance of these issues means that each and every one must be considered on its merits and on its contributions to public security and safety. The implications from today’s debate in terms of training, education, science and research are extremely important. These reports are valuable because the rhetoric—the internal party-political issues—are stripped away and we are left with facts and reasoned debate. I know that when we discuss Europe the political climate can make it difficult to have the kind of evidence-based debate that we need, but if we are to do justice to the issues and to provide justice for victims of cross-border crime, then we have to have that kind of evidence-based debate.

The noble Lord, Lord Hannay, referred to the UKIP Members of the House. I look at where they normally sit and, again, see empty Benches. We all understand that the issues of most importance to UKIP are immigration and the EU. I have taken part in a number of these debates in your Lordships’ House but yet again, when there is an opportunity for a debate, to challenge the Government or indeed to challenge the committee report, it is disappointing but not surprising that not one Member of UKIP is present. I can think of just one debate, when we discussed the European arrest warrant, to which UKIP made a contribution, so they are hardly the shining lights of Euroscepticism referred to by the noble Lord, Lord Hannay.

The matter before us today is central to European-wide co-operation on the issues that strike at the heart of our community. A Government’s first duty to their citizens is to ensure that they are safe and secure. Today, it is absolutely impossible to do that within narrow national confines. Even the noble Lord, Lord Patten, recognised that. Our police and law enforcement bodies have to co-operate and work together, and that has to be reflected in their education and training and in the skills that are needed. They must co-operate and share science and research. The old-fashioned “Dixon of Dock Green” approach cannot be relied on to tackle complex international crime.

3 Nov 2014 : Column 1501

The report refers to our previous debate on the proposed merger of Europol and CEPOL, when doubts were expressed across your Lordships’ House about the implications of such a move. In the end, as the noble Baroness said, the provisions of the proposed regulations relating to CEPOL were removed. In that debate, issues relating to training were discussed and it was emphasised that the quality of, and priority given to, training have to be guaranteed—that was one of the concerns about a complete merger with Europol. We also raised the value of having an EU training centre here in the UK with CEPOL at Bramshill. Unfortunately, that is no longer the case, as the Government’s restructuring of police institutions and the selling off of Bramshill means that the centre has relocated to Budapest.

At that time, even though the Government had to make a decision within just a few days of that debate, the then Minister was not able to tell your Lordships’ House what the Government’s position was going to be. Today’s debate has a slightly longer timescale in that the Government have, as the noble Lord, Lord Sharkey, said, 21 days in which to make a decision—that is, before 24 November. I hope that that scheduling will not in any way be influenced by any events taking place on 20 November with the by-election in Rochester and Strood.

In recommending that the Government should opt in, the report recognises the problems with Protocol 21 in that, when established in 2005, CEPOL was a third pillar measure which required unanimity and was not subject to a UK opt-in. However, as was explained very helpfully, new measures are subject to the opt-in, and that creates a curious anomaly, as if the UK does not opt in it remains bound by the 2005 decision but not by the new regulation that would apply only to member states that had opted in.

All these issues raise serious matters that we need to be clear have been fully understood and considered by the Government. Therefore, I have four questions for the Minister and I should be grateful if he could give clear answers to them. I understand that the Government have concerns about the current draft and that they can choose to opt in at a later date—that is, after 24 November but before the measure comes into force. However, as has already been mentioned, can he confirm that, if that is the case, it would mean that the UK was excluded from any negotiations or discussions or from having any influence on what the final draft would say? By choosing not to opt in now, we lose the opportunity to influence or have any impact on the final content. I believe that means—but I would like some clarity from the Minister—that if we fail to opt in, CEPOL in effect will become inoperable, like a twin-track or two-speed organisation. What are the implications for training, for science and research and for sharing that research and training across the EU, and the implications for the training and detection of serious cross-border crime?

Can the Minister assist your Lordships’ House in this debate by telling us what the Government’s position is going to be? We know that the Government have concerns, but can he explain how he best seeks to address these? Deciding not to opt in now but seeking

3 Nov 2014 : Column 1502

to opt in later, having had no influence on the final content, seems to suggest we get the worst of all worlds.

This has been a very helpful debate. Again, I am grateful for these reports. I keep them all. As we have more debates on this issue, even if our UKIP Members are unable to take part in them, I think those of us who do find these reports extremely useful in giving an explanation and an opportunity to fully debate them. I hope that the Minister can give some substantive answers.

8.01 pm

The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con): I join your Lordships in paying tribute to the noble Baroness, Lady Prashar, for introducing this debate, for the way in which she introduced it and for the excellent report prepared by the committee, and I pay tribute to the members of that committee. This is part of the process that we agreed, that your Lordships’ House would have a say on these measures, when they come forward, and that there should be a report. We have a report, which is very clear in its recommendations, and I will turn to those in my remarks. It was also agreed that your Lordships should have an opportunity to debate, which is what is happening now. Of course, all that should happen before Her Majesty’s Government have actually reached a decision on whether to opt in at this stage. No decision has been made, so the comments that would be made in your Lordships’ House are pertinent, relevant and will be taken very seriously into consideration.

Before I turn to some of the specific points that have been raised, part of the system for considering these matters involves a formal government response to the report and requires the Government to update the House on their position. So while not losing track of the questions that have been raised from around the House, I will just put these remarks on the record.

I am grateful to the noble Baroness, Lady Prashar, and her committee for calling this debate and I am pleased that we have had such a wide-ranging discussion. The Government have not yet decided whether to opt in to this measure at this stage. The arguments are finely balanced. We recognise the work of CEPOL and its current mission to bring together senior police officers from across Europe to encourage cross-border co-operation in the fight against crime. However, we also need to retain national control over the training of our law enforcement agencies, and there are elements of the draft measures that cause us some concerns. We therefore need to decide whether it would be better to opt in at this stage and use our vote in the negotiations to try to improve the proposal or to stay out for now and reconsider our position once the final text is agreed. Both options are open to us at this stage. I should say, of course, that they are open to us at this stage because the previous Government negotiated the justice and home affairs opt-out, so we are simply exercising an opt-out that they provided for us.

I want to be clear that we support CEPOL as it currently operates. CEPOL courses help the UK and UK law enforcement officers to build contacts across Europe, as has been mentioned by a number of noble Lords, and to exchange best practice in fighting crime.

3 Nov 2014 : Column 1503

The training also provides personal development, strengthens partnerships and develops networks and co-operation, as well as providing the opportunity to share experiences. However, we are worried that some aspects of the new proposals would go beyond that and allow CEPOL and the wider EU to dictate aspects of our police training programmes. That is a very different thing.

The professionalism and training of the police and other law enforcement agencies should be led and developed by those organisations themselves, at a national or local level, and not by the EU. We believe that the focus of an EU-wide law enforcement training strategy should be to encourage member states to collaborate on matters that are mutually beneficial but to avoid telling us how to train our police. Provisions within the existing CEPOL Council decision are more than adequate to encourage member states to work together where appropriate. I am pleased that the committee chaired by the noble Baroness, Lady Prashar, sympathises with our concerns, including her proposals for a national unit and scientific committee. The commission’s proposals give CEPOL a much broader role than it currently has in law enforcement training, significantly expanding the EU’s responsibilities.

The Government believe that it should be for member states to define and determine which law enforcement officers may benefit from CEPOL’s activities. We are not at present convinced of the need for the law enforcement training scheme—known as LETS—and are concerned about the reference to this regulation in the text, which would make LETS legally binding on member states—this addresses the point that the noble Lord, Lord Sharkey, made about outlining the nature of our concerns. I know that several member states agree with us that all references to LETS within the regulation should be removed for this very reason.

Therefore, the question is whether we should opt in and use the vote—we would then have to help negotiate the proposals that concern us—or whether we should stay out for now, still participate in the negotiations, although without a vote, and consider applying to opt in post-adoption. Of course, the proposal is subject to qualified majority voting and co-decision with the European Parliament, so if we did opt in, we could still be outvoted and would then be bound by the outcome even if we did not get the changes that we were seeking.

A decision to stay out at this stage would not necessarily exclude us from CEPOL for ever. We would remain involved in the negotiations and would have another chance to take part once the measure had been adopted. That would give us the advantage of knowing exactly what the regulation would require of us before we signed up to it—which was precisely the point that was negotiated by the previous Government when they included that opt-out provision in the JHA. However, the disadvantage of having no vote in the negotiations is one which we are very mindful of, which is the point that the noble Baroness, Lady Smith, raised in her remarks. Even if we were not to opt in, I can assure the House that the UK’s voice will still be heard and listened to in the negotiations. Those negotiations are ongoing; we have officials attending

3 Nov 2014 : Column 1504

Council working groups on the text as we speak, as they have been doing during this week and last week. That is very clear from Europol, a measure to which the committee of the noble Baroness, Lady Prashar, rightly attaches great importance. There we did not opt in pre-adoption but have secured some quite significant improvements to the text on Europol’s power to request investigation and to the duty of member states to supply it with information. So there are arguments either way. The Government have not yet decided at this stage which option they will propose.

The noble Baroness’s committee has argued that it is inevitable that we must adopt the regulation at some stage. In its view, it would be unworkable for the UK to be bound by the current Council decision, while other member states would be working with the provisions of the new regulation. The committee feels that this would in turn be likely to trigger the procedure under Article 4(a) of Protocol 21 of the Treaty of the Functioning of the European Union, resulting in the UK’s ejection from CEPOL. This regulation would repeal the existing 2005 CEPOL Council decision, to which the noble Lord, Lord Hannay, referred, for those member states participating in the regulation. In accordance with the opt-in procedure under Protocol 21, if the UK does not opt in to the proposal, and if it is subsequently adopted by the rest of the EU, the UK will remain bound by the underlying CEPOL Council decision, as the repeal aspect of the regulation would not apply to the UK.

The UK would be working with CEPOL according to the old Council decision while all other member states work according to the new regulation. Practically speaking, which was the point made by the noble Lord, Lord Hannay, this may not be impossible, especially if the new regulation does not significantly alter the focus of CEPOL. However, if the Commission considers—

Lord Hannay of Chiswick: I am sorry to interrupt the Minister, but I wanted to get in before he sat down. I did not suggest that it might not be impossible: I suggested that it might not be possible, which is the exact opposite.

Will the Minister also answer a question that disturbs me? This is not the first time that Home Office Ministers have taken refuge in not declaring their hand at the time of the debate in this House: it is about the third time, in fact. This demonstrates very clearly the ingenuity that Ministers and civil servants are able to put into turning into a meaningless matter the undertakings given by the noble Baroness, Lady Ashton, and by Mr Lidington from another place. The Government manage miraculously to remain poised on the horns of their dilemma until a couple of days after this House has expressed an opinion and then equally miraculously the light shines down from heaven and the Government take a decision, and they are not subject to any scrutiny in this House whatever.

Before he finishes, will the Minister undertake that when the light has shone down from above and the Government have reached a decision, he will come and tell the House what the Government have decided so that we can consider that? This is not a good way of

3 Nov 2014 : Column 1505

dealing with these matters and the previous examples show just how badly the Lidington/Ashton undertakings are being implemented.

Lord Bates: I hear what the noble Lord says, but the advantage of having a debate at the present time is that the committee’s report and your Lordships’ contributions inform the Government’s position. That is beneficial, rather than coming to the House after a decision has been taken by Her Majesty's Government.

I also accept the noble Lord’s point about what is possible and what is impossible. I readily acknowledge that. It is not for us to decide whether it is possible or impossible: it is for the Commission and the other member states to determine whether they are willing to tolerate that or whether they wish to eject us from the process. That is further down the route.

Lord Sharkey: I am sorry, but I am not quite clear about whether the Government will bring back the issue to this House once they have made a decision on whether to opt in or not.

Lord Bates: The decisions that are made on these matters are ordinarily communicated by Written Ministerial Statement. If, through the usual channels, the business managers and the committee, there is scope for something more than that, of course we stand willing to comply with what the House requires and to show it due respect. But that is the normal course through which information is communicated on decisions of this nature.

However, if the Commission considers that UK non-participation makes CEPOL inoperable, it could seek to have us ejected from CEPOL, from the 2005 decision. The provisions in Article 4a(2) of the protocol clearly set this out. Clearly, this depends on a number of questions that are currently hypothetical: whether we opt in before 24 November; whether, if we do not opt in then, we do so post-adoption; and whether, if we do not, the Commission tries to trigger the ejection mechanism. But if things got that far, it would be important to note that the protocol sets what seems to be a very high threshold for ejection. It requires the measure to be “inoperable”, not merely inconvenient or difficult to operate, and it must be inoperable for the other member states, not just for the UK. These are tough tests for the Commission to meet. However, that is an argument to be had if and when we get to that stage. We are a long way from there at the moment.

With reference to the draft Europol regulation, as the committee is aware, we decided not to opt in at the outset, but committed to opting in post-adoption if certain conditions are met. I must stress that, at this stage, no decision to opt in has been made and no such decision will be made until negotiations are complete and the regulation is adopted. At that point, the full process for considering a post-adoption opt-in will be followed, which, as the committee is aware, can take several months. However, as mentioned above, and without pre-judging the final outcome, I can say that I am pleased with the current progress of the negotiations.

I realise that time is running out. I will deal with some of the matters raised and if I cannot deal with

3 Nov 2014 : Column 1506

them all, I will of course respond in writing to the noble Baroness in the first instance and copy that letter to all other noble Lords who have contributed to the debate. Some specific points were raised by the noble Lord, Lord Sharkey, and my noble friend Lord Patten. My noble friend brings immense expertise to this having, in another place and in another guise, been a particularly fine Policing Minister in the Home Office. The particular issue of concern is the proposal for CEPOL to assess the impact of existing law enforcement training policies and initiatives and to promote the mutual recognition of law enforcement training in member states and related existing European quality standards.

We have a particular problem with this because, from the time between Bramshill closing and the CEPOL negotiations, we now have an excellent College of Policing, which is doing tremendous work among police forces in this country. To keep it in context—noble Lords asked about this—the attendance at CEPOL courses was typically around 100 officers per year at Bramshill. That has now gone. We are talking about the College of Policing, but also recognise that in Bramshill we have an asset, and there were associated running costs. That is going to front-line law enforcement in this country.

Other issues that were raised related to the timeliness of communications. The noble Baroness, Lady Prashar, and the noble Lord, Lord Judd, raised this in very serious terms. I will take it away and reflect on it. It is not always within our hands as to when we get documents and how to pass them on. However, I should like to sit down with the committee to understand how we can improve our performance, between officials at the Home Office, Ministers, and the committees, to ensure that committees are able to do their job of scrutiny in a proper way. I accept the reprimand, apologise and promise to look at that more closely.

Some Members, including the noble Lord, Lord Judd, referred to the Lisbon justice and home affairs opt-out. As I have said, that is an opt-out of the previous Government’s making. We are simply exercising our right to do it. It does not seem necessarily a bad thing that if you have a piece of regulation before you and you are not entirely happy with it, then you can undertake the genuine, sincere and vigorous negotiations happening at the present, and reserve judgment on whether you choose to opt into the final draft until you have seen the final text.

The noble Lord, Lord Patten, also referred to the fact that we need to work much better at cross-border co-operation in policing and serious crime. We recognise that that is a very important area. That is why we have taken the approach that we have towards Europol and the arrest warrant. We recognise, as the noble Baroness, Lady Smith, said in her remarks, that ensuring the safety and security of the people in this country is the first priority of every Government. We should do that, but we can do so not necessarily by signing up to everything, but by being discerning because we have been given the opportunity to do that.

I covered interdependence. We accept that we need to co-operate and that is an ongoing thing. I very much accept that we are in this together and that, as

3 Nov 2014 : Column 1507

the noble Lord, Lord Judd, said, we need to co-operate. However, we can have meaningful input into the negotiations ongoing in Brussels with our position as it is. I do not think it is an ideological position. It is one that looks at different issues and treats them in different ways, raising legitimate concerns about CEPOL while recognising its very good work, taking a slightly different approach with Europol, and a different approach to the European arrest warrant. That is a balanced and broad approach. However, I assure your Lordships that we will take into account and re-read all the contributions made in the debate. Again, I thank the committee for the work it has prepared, which we can draw upon.

Baroness Prashar: My Lords, I thank all Members of the House for their contribution to the debate and for their positive comments about the report and the work of the EU Select Committee, for which I am very grateful. I have listened very carefully to the Minister and welcome the fact that he is willing to discuss the timetable to ensure that there is better engagement with the committees on timing. I also listened carefully to what the Minister said about the pros and cons of opting in now or later and the process. I must say that I find that unsatisfactory. I am disappointed that we have not had a clear answer on the Government’s intention. I urge the Minister to think about that, because the committee weighed the pros and cons and recommended that it would be wiser to opt into the regulation now rather than later.

Having said that, what is clear from the tone of the debate is that there is disappointment about the process, but we also have to take account of the context within which opt-ins are being discussed. The noble Lord, Lord Judd, talked about the culture and the importance of working together. It is important also to register the broader point within which the debate about opt-ins is taking place.

I thank the Minister for his response and I beg to move.

The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con): Is the noble Baroness withdrawing the Motion?

Baroness Prashar: No.

Motion agreed.

8.23 pm

Sitting suspended.

Infrastructure Bill [HL]

Report (1st Day) (Continued)

8.30 pm

Clause 9: Monitor

Amendment 36

Moved by Lord Berkeley

36: Clause 9, page 6, line 18, at end insert—

“( ) The Office of Rail Regulation is renamed as the Office of Rail and Road Regulation.”

3 Nov 2014 : Column 1508

Lord Berkeley (Lab): My Lords, in this grouping I have five small amendments, Amendments 36 to 40. They really suggest that perhaps the Office of Rail Regulation needs renaming, whether as the Office of Rail and Road Regulation, the Office of Road and Rail Regulation, the Office of Surface Transport or something like that. Given that the Government and Passenger Focus have agreed to change that organisation’s name, I wondered whether the Minister had any proposals to make this change.

Amendment 39 tries to link in with the licence and other things about which we were talking. Probably the most important amendment in this group of five is Amendment 40. Can the Minister explain why Clause 9(5) is there? Basically, the strategic roads authority would not have to provide any documentation to the monitor or office of road regulation if it was confidential. It could not be compelled to produce such information.

I do not believe that that is the case for the Office of Rail Regulation or Network Rail. Network Rail should provide every bit of information that is required. I know from discussions in Germany with the German rail regulator that the German railway, Deutsche Bahn, succeeds in preventing the regulator from investigating some sections too thoroughly because it was not given the information. It is a bad precedent. Would the Minister consider whether this paragraph is necessary or could be changed?

The final two amendments in this grouping are Amendments 41 and 42. Perhaps I should speak to Amendment 42 and the Minister could answer. She should then speak to Amendment 41, which is a very good amendment that I welcome. It concerns compliance and fines, and I am sure that the Minister will talk about fines. Look at new subsection (1)(a) and (1)(b) on a road investment strategy and directions and guidance, proposed in government Amendment 41; it would be rather good to have in addition two paragraphs (c) and (d) that referred to compliance with safety and efficiency requirements. It seems to me that that would tie up the role of the ORR and make sure that it had to investigate all these issues such as safety and efficiencies and, if necessary, levy fines or impose any other penalties that it felt should be imposed. I beg to move.

The Minister of State, Department for Transport (Baroness Kramer) (LD): My Lords, I have previously discussed the rationale behind a number of government amendments which will further define the duties of the monitor. Amendment 41, which I have already described but will move shortly, if I understand it correctly, makes it clear that if the company fails to comply with its statutory directions or have regard to guidance, the monitor may issue fines. We have covered Amendment 43, which will give the monitor a duty to drive performance in a number of areas.

Amendments 38 and 39 propose an alternative to the Government’s definition of the monitor’s function. However, as I have mentioned, the Government’s amendments to the Bill already describe what the monitor should have regard to when monitoring the strategic highways company. With those in place, the distinction between “monitoring” and “ensuring” should become academic.

3 Nov 2014 : Column 1509

The noble Lord, Lord Berkeley, has also proposed that we remove subsection (5), which prevents the ORR requiring the company to provide it with information that it would not be compelled to produce during civil proceedings. Our legislation already grants the Office of Rail Regulation strong legal powers to require the strategic highways company to disclose data. However, I reassure noble Lords that this does not mean that the monitor has carte blanche to access every file held by the company. For example, the company should not be obliged to disclose particularly sensitive documents—for example, legal advice. This is a perfectly reasonable proposition.

In assessing the performance and efficiency of the company, there is little information that the company would not be compelled to disclose during civil proceedings that would help inform the monitor’s analysis. In addition, pitching this at the level of civil proceedings has a precedent. The provisions in subsection (5) mirror those in Section 58 of the Railways Act 1993.

As for the amendment of the noble Lord, Lord Berkeley, to the government amendment, I agree that the company must comply with its health and safety obligations and have due regard to maximising efficiency. It is also important that the monitor has the power to sanction the company if its performance and efficiency have been insufficient, as the Government’s amendments have set out. However, as we have already discussed, I do not believe that it follows from this that the monitor needs further powers to issue sanctions for health and safety. The Health and Safety Executive is responsible for policing this area and every company has an obligation to comply with the Health and Safety at Work etc. Act 1974, regardless of what our monitor is empowered to do. As there is already an effective and respected body in this area, I feel that it should be left to continue with its good work.

Turning to the second addition, once more I agree that maximising efficiency on the design, construction and operation of the highways is important. When we discussed Amendment 43, we made it clear that the monitor has critical responsibilities in assessing the key themes of performance and efficiency; and it will need to use its powers of sanction accordingly. The Government’s amendments ensure that these issues are given appropriate regard. The monitor will have the power to sanction the company if it is satisfied that the commitments of the road investment strategy, which will include commitments on construction and on efficiency, have been contravened.

This leaves the issue of design, which is currently the remit of existing planning authorities. Planning authorities operate effectively and judiciously all across the country. They currently have the responsibility for approving the design of any highways and are well placed to consider local issues. This system works well, and I believe that matters of design should remain in their capable hands. They need not be duplicated by the monitor.

Finally, I turn to the first amendment in this group. This proposes that the Office of Rail Regulation be renamed the Office of Rail and Road Regulation. As your Lordships may be aware, following discussions in

3 Nov 2014 : Column 1510

Committee we have announced that we plan to change the legal name of the watchdog from the Passengers’ Council to Transport Focus. I can understand why the noble Lord proposes this change for the monitor. This case, however, is less straightforward.

There is the issue of the proposed name. While it may appear that we are indeed talking about an office dealing with road and rail issues, I urge caution around “regulation”. The monitor will not be a regulator of roads, at least in the market-setting sense in which the ORR currently regulates the railways. It will not control the direct costs on individual motorists for using the network, as it does on the rail side, because for the vast majority of roads such costs do not exist. In fact, the tools available within a hypothetical office of rail and road regulation would be very different, depending on which side of the road or rail fence it was acting.

We have discussed this question with the ORR itself. It is very alert to the new challenges of its role, and to the value of handling road and rail policy in one organisation. It does not, however, think that a name change is appropriate at this time.

Unlike Passenger Focus, the ORR has to manage a relationship with its levy payers in the rail sector and has a formal role in making sure the rail market functions well. Given that this is a substantially different role to roads, it would rather carry out the road work under a strong free-standing brand—the strategic road network monitor—while retaining its current statutory name for its existing work. This will ensure that any confusion is avoided and that, in the eyes of the public, roads monitoring is clearly differentiated from rail regulation. This will make it clear that neither road nor rail users risk having their interests eclipsed by the other.

There is also a practical issue with the noble Lord’s approach to renaming the Office of Rail Regulation. Considering the varied legislation in which the name “the Office of Rail Regulation” appears, the proposed amendment would not be in itself sufficient to make the change. There would also need to be significant tidying up. That is why we are renaming Passenger Focus, through secondary legislation, in which these implications can be worked through. If we were changing the name of the ORR, we would want to follow the same approach.

The amendment that I propose is an important safeguard in ensuring appropriate monitoring of the strategic highways company, and I hope that your Lordships will support it. Conversely, I believe there is a strong argument against each of the amendments of the noble Lord, Lord Berkeley, and ask that he withdraw this one.

Lord Berkeley: I am grateful to the noble Baroness for her full answers to those questions. I shall not push the ORR issue again. It is not something that has to be top of the priorities, but I am grateful to her for her explanations, and I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Amendments 37 to 40 not moved.

3 Nov 2014 : Column 1511

Amendment 41

Moved by Baroness Kramer

41: After Clause 9, insert the following new Clause—

“Monitor: compliance and fines

(1) If the Office of Rail Regulation is satisfied that a strategic highways company has contravened or is contravening—

(a) section 3(5) (compliance with the Road Investment Strategy), or

(b) section 4(3) (compliance with directions and regard to guidance),

the Office may take one or more of the steps mentioned in subsection (2).

(2) The Office may—

(a) give notice to the company as to the contravention and the steps the company must take in order to remedy it;

(b) require the company to pay a fine to the Secretary of State.”

Amendment 42 (to Amendment 41) not moved.

Amendment 41 agreed.

Amendment 43

Moved by Baroness Kramer

43: After Clause 9, insert the following new Clause—

“Monitor: general duties

(1) The Office of Rail Regulation must exercise its functions under sections 9and (Monitor: compliance and fines) in the way that it considers most likely to promote—

(a) the performance, and

(b) the efficiency,

of the strategic highways company.

(2) The Office must also, in exercising those functions, have regard to—

(a) the interests of users of highways,

(b) the safety of users of highways,

(c) the economic impact of the way in which the strategic highways company achieves its objectives,

(d) the environmental impact of the way in which the strategic highways company achieves its objectives,

(e) the long-term maintenance and management of highways, and

(f) the principles in subsection (3).

(3) The principles are that—

(a) regulatory activities should be carried out in a way which is transparent, accountable, proportionate and consistent, and

(b) regulatory activities should be targeted only at cases in which action is needed.”

Amendments 44 to 47 (to Amendment 43) not moved.

Amendment 43 agreed.

Amendment 48

Moved by Baroness Kramer

48: After Clause 9, insert the following new Clause—

“Monitor: guidance

3 Nov 2014 : Column 1512

(1) The Secretary of State may from time to time give the Office of Rail Regulation guidance as to the manner in which it is to carry out its activities under section 9.

(2) The Secretary of State and the Treasury, acting jointly, must give the Office guidance as to the circumstances in which the payment of a fine under section (Monitor: compliance and fines) should be required.

(3) The Office must have regard to guidance given to it under this section.

(4) Guidance under this section must be published by the Secretary of State in such manner as he or she considers appropriate.”

Amendment 49 (to Amendment 48) not moved.

Amendment 48 agreed.

Clause 13: Transfer of additional functions

Amendments 50 and 51 not moved.

8.45 pm

Clause 15: Interpretation of Part 1

Amendment 52

Moved by Baroness Kramer

52: Clause 15, page 10, line 6, at end insert—

““users of highways” includes cyclists and pedestrians.”

Baroness Kramer: Your Lordships have previously asked if cyclists and walkers are included in the definition of road users of the strategic road network and other highways. The answer remains emphatically yes, and I have moved an amendment to make this absolutely clear for the provisions of the Bill where we use the phrase “users of highways”. I should also point out that this definition—I have double-checked this with the lawyers—absolutely does not exclude any other users who may not be mentioned.

Lord Berkeley: The House should congratulate the Minister on the amendment. We have discussed it so often. We have been told on many previous occasions that Governments do not like lists; you can understand that. I shall not table an amendment saying, “Please add Segways and horses” or anything else. I take what the Minister says: this covers everything.

In that vein of thanks, the two other amendments in this group are to do with cycling and walking strategy. Some noble Lords have already spoken on cycling and walking. It may seem odd that on strategic highway routes there is not much cycling and walking. I suggest that there should be. It is important that, as part of the strategies that the strategic highway company will have to look at, it should have a separate cycling and walking investment strategy.

In this House we have debated cycling on many occasions. The pressure is on from many areas, not just from the cycling and walking organisations but also from those who believe that they are pretty healthy forms of transport, to get the Government to commit to a long-term strategy with some long-term funding. So far, Ministers have not been able to make any

3 Nov 2014 : Column 1513

commitment to funding, but the recommendations from the All-Party Parliamentary Cycling Group’s report last year suggested that £10 per head of population per year—which is about half the figure in many continental countries, such as Belgium, Holland and Denmark—could be allocated on a long-term basis to improving cycling facilities, infrastructure and other things,

I know that Ministers have in the past said that this is a local problem and that it should therefore be funded locally. The problem is that local funding does not usually stretch to such things. Many people believe that, combined with a draft strategy, something like what is in Amendment 55 and the proposed new schedule in Amendment 96 should be done for the benefit of health, and for cyclists and walkers, and to reduce road congestion, pollution and the other things that we talked about earlier.

I look forward to the Minister’s response, and take into account that this is only the small tip of an iceberg. As my noble friend Lord Davies of Oldham said, most journeys take place on local roads. Still, it is a start, and if it could happen on the trunk road network, I suspect that the other roads would soon follow.

Lord Teverson (LD): My Lords, I, too, very much welcome the Minister’s amendment. It offers clarity and shows that the Government are quite clear that cyclists and walkers are important on the highway network. I admit that I could not resist backing the amendment of the noble Lord, Lord Berkeley, because, although I am not an absolutely regular cyclist, I get my bike out quite frequently in Cornwall, which is not the easiest of terrain to cycle.

I was in continental Europe over the weekend, and it was astounding to see how important cycling can be in terms of an alternative transport means and strategy. If it is one that is generally safe, and one that is accepted among families, then it becomes a normal way of getting to school, of getting to work and moving around. Indeed, I remember doing it as a child back in the 1950s and 1960s. I always used to cycle to school, save the bus fare and spend it elsewhere. That was my disposable income for the week.

Given the excellent work that, in particular, my right honourable friend Norman Baker has done in the other place in the past, and the Local Sustainable Transport Fund, this is something that we need to build on. That is why I was very pleased to support this amendment. It would be good to move to a proper formal government strategy in this area. It is also all part of our commitment to reduce carbon emissions in the transport sector, and a very important way of doing that. Having said that, I also understand the argument that—hopefully—as we devolve more fiscal powers to cities and non-metropolitan areas as well, this should be a major part of their focus of work, too.

It would be a sign that the Government is looking at this area and has some strategy that they see as a framework. It would also give a signal that the Government think that this is important, and would get them ahead of the curve on this important change that is gradually happening. It would be so much

3 Nov 2014 : Column 1514

better for all of us: for emissions, for physical exercise and for congestion. It would have big pluses for all those points of view. That is why I am pleased that the Minister has proposed the amendment that she has, but I hope that the Government can consider this and take it forward in some way or another.

Baroness Kramer: I thank noble Lords for that brief but very interesting debate. I suspect that everyone in this House recognises the importance of cycling. I will use the opportunity to name some of the coalition Government’s successes in this area. Government spending on cycling overall since 2010 has more than doubled compared to the previous four years: £374 million has been committed between 2011 and 2015. Cycling spend is currently around £5 per person each year across England, and over £10 per person in London and our eight cycling ambition cities across England: Birmingham, Bristol, Cambridge, Leeds, Manchester, Newcastle, Norwich and Oxford. Since that £10 is an important marker number, I draw attention to it.