Traffic Management Bill

Public Bill Committee, 3 February 2004.

Standing Committee A

Clause 39 - Increase in penalties forsummary offences under 1991 act

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 38, in

page 18, line 10, leave out subsection (1).

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following amendments:

No. 39, in

page 18, line 14, leave out subsection (2).

No. 40, in

page 18, line 19, leave out 'level 4' and insert 'level 3'.

No. 41, in

page 18, line 21, leave out 'level 5' and insert 'level 4'.

No. 42, in

page 18, line 22, leave out subsection (4).

No. 43, in

page 18, line 30, leave out 'level 4' and insert 'level 3'.

No. 44, in

page 18, line 31, leave out 'level 5' and insert 'level 4'.

David Wilshire (Conservative, Spelthorne)

On a point of order, Miss Begg. It is slightly unfortunate that Mr. Beard is not in the Chair because, having removed my beard, I was subject to abuse all of yesterday. If anyone wants to be rude, could they get it over with now?

Anne Begg (Labour, Aberdeen South)

That is not a point of order, and it is certainly not a matter for the Chair. I would not dream of making any comment about the hon. Member's lack of hair.

We are moving on to part 4. I had a marathon journey back to Aberdeen after I left the Committee last. It took me 20 hours, but that is another matter. This is traffic management and nothing to do with hair or a bit of snow.

Christopher Chope (Conservative, Christchurch)

I begin by confirming my view that my hon. Friend the Member for Spelthorne (Mr. Wilshire) is as handsome as ever.

The amendments are concerned with penalties and they respond to putting the cart before the horse. We know that the Government are keen on penalising as many people as possible, so it is worth putting the penalties in context. There is a lot of difference between a penalty on level 4 and one on level 3. Currently, the maximum fine on level 3 is £1,000. The proposals to change it to level 4 with a £2,500 maximum fine, or level 5 with a £5,000 maximum, are significant in anybody's language.

In adducing arguments to support the change, the Government have used the specious justification of inflation. Fines are already covered by inflation because from time to time the maximum fine at particular levels is increased by statutory instrument. That is why we no longer have legislation framed with a maximum fine of £1,000, but a maximum fine on level 3. Inflation is a specious justification for the substantial increase in penalties.

The second argument that the Government advance is that under the New Roads and Street Works Act 1991, little use has been made of the penalty regime, and that the maximum penalties should be increased.

David Wilshire (Conservative, Spelthorne)

I am interested in the point that my hon. Friend makes about the use of existing provisions. Has he been able to establish how much use has been made of them?

Christopher Chope (Conservative, Christchurch)

I tabled a parliamentary question to the Minister and it seems that there is no direct evidence, which is surprising. Before the Government recommend that the maximum fine for an offence should be raised fivefold, which is what some of the proposals envisage, one might imagine that they would do their homework. The best information that they have is provided by the Local Government Association, which shows that little use has been made of the penalties.

David Wilshire (Conservative, Spelthorne)

If my hon. Friend is suggesting that there is no evidence that fines at the existing rates have been used, how is it possible to know that the existing amounts would not be adequate? If the provision is not being used, what is the point of increasing levels of fines?

Christopher Chope (Conservative, Christchurch)

My hon. Friend anticipates my argument, and I hope that the Minister addresses it in responding to the debate.

Sometimes there is evidence that the magistrates, in those few cases where there have been prosecutions, express their view that penalties are inadequate by imposing fines up to—if not at—the maximum level. In this instance, there is no evidence that the fines imposed have been anywhere near the existing maxima, showing that the view of the magistrates is that the existing levels are more than adequate.

The rationale behind the provisions is a proposal to introduce a fixed penalty notice regime. The fixed penalties will be related to the maximum fine that can be imposed by a court. If the existing level of fines continues and fixed penalty notices are introduced, those notices might be set only at the level of about £300. That is pretty small beer as far as many local authorities are concerned. It does not seem small beer to me, but that is the view of local authorities. Those authorities might think it much better if they were able to issue a fixed penalty notice and obtain largesse in excess of £1,000 or £2,000. I suspect that that is the hidden justification, which is why the Government's arguments in relation to the proposal to increase the maximum penalties are so weak.

I challenge the Minister to cite any instance in which a magistrates court has said to an offending

company or organisation when imposing a penalty, ''We take such a grave view of these matters that we will impose the maximum penalty allowed, and we wish that the Houses of Parliament had given us power to levy an even higher penalty.'' I suspect that that has not happened. We know that there are examples where similar things have happened in relation to charges of killing people while under the influence of drink or dangerous drugs.

The Parliamentary Under-Secretary of State for Transport (Mr. David Jamieson) indicated assent.

Christopher Chope (Conservative, Christchurch)

The Minister is acknowledging that. He would accept that that was important and potent evidence when considering whether maximum penalties for such offences should be increased by the House of Commons. I challenge the Government to adduce similar evidence, if it exists, in relation to the maximum penalties imposed by magistrates courts for offences under the 1991 Act.

What does the regulatory impact assessment say about the matter? The RIA, as it relates to this part of the Bill, is voluminous in the extreme, but vacuous as well. There is no clear evidence in the assessment that benefits will flow from the provisions that will outweigh the burdens, and there is a certain amount of speculation related to the issue of deterrence. The best sort of deterrent is surely the knowledge that one is going to be prosecuted. Local authorities, which have the power to prosecute, are choosing not to prosecute at the moment.

A further relevant issue is that normally, if one of these offences is committed, a mass of them will be committed. It has always been possible for magistrates courts to add up the offences and impose a swingeing fine. There is no evidence to suggest that if someone gets on the wrong side of the law with regard to the offences in question, they will not be penalised to an extent that is reasonable, fair and just. By increasing the maximum, the Government are going too far. I challenge the Minister to give a reasonable justification for what is proposed.

Amendment No. 39 would leave out subsection (2), which would substitute level 4 or level 5 for level 3—level 3 is what is in place at the moment. Will the Minister explain the rationale behind raising some of the penalties to level 4 and others to level 5? I remind the Committee that level 4 is a maximum of £2,500 and level 5 a maximum of £5,000, which is five times the maximum for level 3. Amendments Nos. 40 to 44 seek justification for proposed increases from level 3 to level 4 and level 4 to level 5 in subsections (3) and (5). Similar arguments apply.

When we come on to the next group of amendments, we will discuss whether the case has been made for lane rental. The impact of the penalties could well mean that there was a tax on a stealth tax. [Interruption.] I know that the Under-Secretary of State for Transport, the hon. Member for Harrow, East (Mr. McNulty), has been waiting for me to utter the words ''stealth tax'' for the first time. I shall be uttering them quite a lot in the context of this part of

the Bill. There is massive evidence to show that the proposals for lane rental will amount to a stealth tax.

David Wilshire (Conservative, Spelthorne)

Does my hon. Friend agree that even increasing the fines is a stealth tax? If magistrates impose only 60 per cent. of the maximum for level 3, and go on imposing 60 per cent. of the maximum for levels 4 and 5, they will be taxing people more and putting more money into the Revenue.

Christopher Chope (Conservative, Christchurch)

Yes. My hon. Friend is right. At the moment, prosecutions are brought only when they are reasonable and magistrates can adjudicate, but under this part of the Bill there is a proposal to introduce fixed penalty notices, the yield from which will be able to go direct to local authorities, if the Treasury agrees with the proposals. That would be a specific stealth tax, and a new and additional burden on utility companies and those who are doing their best to improve the infrastructure of our country—for example, by extending broadband and telecommunications services to those who do not already enjoy the benefits that they bring. A host of organisations are intent on improving the quality of the infrastructure in run-down inner-city areas. Under the proposals, they will suffer an additional burden because of the penalty regime. I hope that the Minister will think again about the matter, that he will seriously consider the purpose of increasing the maxima in the way that is suggested, and that he will admit that the justification given for increasing the levels from level 3 to levels 4 or 5 is specious and indefensible.

David Wilshire (Conservative, Spelthorne)

My hon. Friend has raised a number of questions.

Tony McNulty (Labour, Harrow East)

Not that many, really.

David Wilshire (Conservative, Spelthorne)

There will be a number of questions by the time I have finished because I have another load that need to be answered by the Minister. I want to ask him to produce some information to justify resisting the amendments, which I presume he will resist.

Let us start with the question of what is happening at the moment as far as the offences are concerned. How many prosecutions have been undertaken under existing legislation? Also, how many people or businesses have been prosecuted? Let us pluck a figure from the air. If 1,000 prosecutions have been undertaken and that means 1,000 different people, there may be justification for doing something. If the figure is 1,000 prosecutions and only six companies or people have been the cause, one could ask a separate group of questions.

The first thing we need to know is the current situation, because it is from the answer to that that we will find the only possible justification for an increase, except as a means of raising revenue. If the Minister cannot produce evidence of what is happening at the moment, one cannot avoid the conclusion that this is another stealth tax, being slipped in through the courts in the hope that nobody notices.

Christopher Chope (Conservative, Christchurch)

What would my hon. Friend say if he were told that there have been fewer than 200 prosecutions in 10 years under part 3 of the 1991

Act, with an average fine of £400? Would he think that supported our argument, or that of the Government?

David Wilshire (Conservative, Spelthorne)

I sincerely hope that those figures are wrong, because if they are right, they torpedo the Minister's case. For heaven's sake, if we are looking at only 20 prosecutions a year, what on earth are we doing? If it is only that sort of number, the argument about traffic management collapses, because either there is insufficient enforcement—the Minister might like to claim that—or there is nothing to enforce. If there is nothing to enforce, why are we wasting Parliament's time, if not so that the Government can attempt, by means of a stealth tax, to get more money into their coffers in the hope that the public will not notice?

The other thing that the Minister needs to tell us about the current situation—my hon. Friend touched on this when he stated that the magistrates are not imposing the maximum penalty—is the level of fine. We need to know that, as well as the number of prosecutions there have been and the number of people or firms who have been prosecuted. Perhaps the Minister will tell us that magistrates tend to impose a fine of 50 per cent. of £1,000, though it sounded more like 40 per cent. from the figures produced by my hon. Friend the Member for Christchurch (Mr. Chope).

Andrew Miller (Labour, Ellesmere Port and Neston)

I recommend to the hon. Gentleman that he reads the guidelines set out by the Lord Chancellor. He will find that the basis on which magistrates impose fines is a matter of guidance, so the arbitrary figures that he is inventing are totally irrelevant to his case.

David Wilshire (Conservative, Spelthorne)

No, they are not. I will most certainly accept the hon. Gentleman's advice. No doubt he will lend me his copy of the guidelines and point to the important parts. [Interruption.] I could ask my barrister son for help, perhaps.

Whether the level of the fine arises from the whim of the magistrates on a Tuesday morning or the Lord Chancellor's guidelines does not matter. It appears at the moment, from what my hon. Friend the Member for Christchurch said, that the level is 40 per cent. of the maximum. That is where the hon. Member for Ellesmere Port and Neston (Mr. Miller) torpedoes his own attempt to stop my train of thought. If the guidelines say that 40 to 50 per cent. of the maximum is the norm, it will have occurred to someone in the Treasury that yanking up the maximum to £5,000, and making 40 to 50 per cent. the guideline for that new maximum, would, lo and behold, produce five times as much money, as a stealth tax, from following the Lord Chancellor's guidelines. That does not really get us very far. If that is how the guidelines work, the higher the maximum, the greater the income, the bigger the stealth tax, and the more money taken out of society to be wasted by the Government. Those are the questions that the Minister has to answer about the existing situation.

Why are the increases necessary? I can only speculate as to what the Minister will say, but I suspect I will not be far short. He will say that the provision is necessary to stop offences. If the figures he produces are similar to 200 cases in 10 years, however,

it will do a fat lot of good in terms of traffic management. I assume that it is appropriate to discuss the details of the offences under schedule 1, or else the two issues will be rolled together, so I will stay away from some of the absurdities that I think lurk within schedule 1 until we get to it.

The general principle of introducing higher penalties can be sensibly justified in a way that the public will accept only if a demonstrable problem is created by people doing the things listed in schedule 1 and causing unnecessary and unjustifiable obstructions to traffic. The Minister must show that that is so. Unless he can shoot down the figure of 200 in 10 years, I shall take some persuading. If he cannot show a link between higher penalties and a reduction in the number of offences, he has only one argument—that this is a stealth tax to increase income. If there is no problem of traffic management, what is the justification of fines five times higher than at present?

Andrew Miller (Labour, Ellesmere Port and Neston)

Does the hon. Gentleman not accept that, whatever the offence, the larger the penalty, the greater the deterrent effect?

David Wilshire (Conservative, Spelthorne)

Of course I accept that, but given all problems on our roads, if there are only 20 people a year to deter, deterring 20 offences over the United Kingdom will achieve nothing except the raising of more money for the Treasury, and for the Government to waste, under another stealth tax. I agree that if there were 20,000 offences a year and people were putting two fingers up to the small fine that they were getting and saying to themselves, ''I am only going to be fined £400, and I shall save £600 by ignoring the regulations'', people would be quids in, and there would be thousands of offences because it would be cheaper to act in that way. However, if my hon. Friend the Member for Christchurch is right and the figure is 20 a year, that is nonsense.

Christopher Chope (Conservative, Christchurch)

If I am right that there are only 20 offences a year, then since schedule 1 contains 22 offences, each offence is on average being prosecuted slightly less than once each year. Does that not make even more of a mockery of this matter?

David Wilshire (Conservative, Spelthorne)

That is right. I am beginning to convince myself, if not the Committee, that the figure of 200 is about right. An Opposition contributor to a Committee such as this who bandies about a figure of 200 sets himself up as a hostage to fortune. If I had offered an absurdly low figure, the Minister could not have contained himself. He would have been on his feet by now saying that I was talking rubbish: he will say it anyway in due course. I am handing him a hostage to fortune. I am basing my argument on the figure being about 200. The fact that he stays in his seat convinces me that it might even be less than 200 and he is too embarrassed to leap up and give us the real figures.

My hon. Friend is right. If we seek to change the law because of a couple of hundred offences over 10 years—20 a year—there cannot be any other explanation than a stealth tax.

Tony McNulty (Labour, Harrow East)

It is a pleasure to be under your stewardship again, Miss Begg. I apologise on behalf of the Under-Secretary of State for Transport, my hon. Friend the Member for Plymouth, Devonport (Mr. Jamieson), and myself for your horrendous train journey. I would like to say that my hon. Friend is the Minister responsible for aviation, but he is not, and one of the two of us is. I will say no more.

I also welcome, although I am sure that it defies parliamentary protocol, the younger brother of the hon. Member for Spelthorne and ask him to give our regards to the hon. Gentleman, who I am sure is back in Spelthorne celebrating, with his constituents, the share of £9.6 million that Spelthorne was awarded yesterday under the liveability fund.

David Wilshire (Conservative, Spelthorne)

Will the Minister accept that, whether I am me or my brother, I am here under false pretences, because the real Member of Parliament for Staines is Ali G.

Tony McNulty (Labour, Harrow East)

I suppose the response to that is ''Let's big it up for Ali'', but I shall not go down that route.

None the less, whether it is the hon. Member for Spelthorne or his brother who is here this morning, we have been given, to our great pleasure, his usual circularity of an argument that would be hilarious if it were not so tedious. The only point of substance here is whether the levels of fine—the maximums—should be increased. On the one hand, Spelthorne and Christchurch—it sounds like a dodgy firm of solicitors—said that that should be resisted because it is all a stealth tax. I will return to that point momentarily. On the other hand, are local authorities, utilities and other interested parties, including the Department for Transport, who sat down in a working group and agreed that the levels should be increased in the manner proposed in the clause. Against us, we have the perverse libertarian wing of the Conservative party that apparently thinks that being fined for breaking the law is a stealth tax. I do not understand that at all. Raised against them, apparently posing as turkeys voting for Christmas, are the very utilities that they purport, in their libertarian gusto, to defend.

David Wilshire (Conservative, Spelthorne)

Is the Minister asking us to accept the argument that if outside bodies—some elected, but most not—full of officials and bureaucrats decide that something is a good idea, Parliament should not even consider it but just rubber stamp it?

Tony McNulty (Labour, Harrow East)

No. I am asking the hon. Gentleman to take cognisance of the people whom he purports to defend—the utilities—who, by their own lights, have been part of the working group. They fully adhere not only to the increases in the maximum levels in the clause but to the split between what should be increased to level 4 and what to level 5. The people most directly involved—the local authorities and the utilities—stand full square behind the clause.

David Wilshire (Conservative, Spelthorne)

Is the Minister asking us to believe that a group of people have beaten a path to his door saying, ''Please fine us more next year, because we think that it is a good idea''?

Tony McNulty (Labour, Harrow East)

We have gone from circularity to fatuity. That is not the point at all. The utilities do not want to pay a pretty penny in fines. Local authorities and central Government do not want to collect any money off them. The fine regime is set principally to deter and to encourage good practice, although it palpably has not done that in the 12 years since the last Act. As I have said before, my hon. Friends and I would be happy if local authorities never accrued a single penny of fines. That would mean street works being done in the manner that they should be done, efficiently and with minimal disruption. That, simply, is the point.

Where do we disagree? We disagree on the level of fines. It is not for me to leap up and defend the Government's position on the points that the hon. Member for Spelthorne makes. He thinks that he has alighted on a key point by saying that he has been told that there have been only 200 prosecutions in the last 10 years. Is that true? If he cared to read the regulatory impact assessment, he would see that it clearly says that there have been about 200 prosecutions in the last 10 years. If he goes on to read materials and evidence from the Local Government Association, among others, he will see that it says that the key reason why there have been so few prosecutions is that it costs more to prosecute under the fine regime than it does to collect the fine.

I stand full square behind the point about there being only 200 prosecutions, but I say that therein lies the problem. I do not reach the perverse conclusion that because there have been only 200 over 10 years, I should make pretty little jokes about 22 offences and only 20 prosecutions, which is not even one per offence. That is more fatuity. That is a reason why there should be a review of the system, and the utilities agree.

Christopher Chope (Conservative, Christchurch)

Will the Minister explain why the Government have not collected any statistics relating to prosecutions under this important piece of legislation? Will he confirm a point that the regulatory impact assessment is far from clear about? It says:

''Figures produced by the Local Government Association suggest that there have been fewer than 200 prosecutions''.

The figures may even suggest that there have been fewer than 150 or 100. We do not have the details.

Tony McNulty (Labour, Harrow East)

If the regulatory impact assessment says 200, it means that there have been about 200. It is for the local authorities to carry out prosecutions and for the courts to deal with them. It is appropriate that we stand behind that figure. If we had research departments crawling over everything that local authorities and other agencies did, the hon. Gentleman would be on his feet saying, ''This is exactly the sort of Government bureaucracy that we need to get rid of'', and that we should not put up with it anymore.

Let me turn to some other points that we need to scotch, as they might give us a flavour of today's events. We are told that increasing the maximums of a fine regime is all about Government largesse and that prosecuting and fining people for transgressing the law

is in some way a stealth tax. That is precisely the perverse libertarianism that I just do not understand. If people transgress the law, they should be punished according to whatever the law of the land is at the time. Part 4 purports simply to draw together many things in the legislative framework of the principal Act of 1991 and put them in the context, first, of an effective fine regime, fully agreed to and signed up to by the utilities, that will act as a deterrent, and, secondly, of a statutory requirement on local authorities to pursue their network management duty. Those two elements are palpably absent from the current regime under the 1991 Act.

David Wilshire (Conservative, Spelthorne)

I take the Minister back to his comment that people who break the law should be prosecuted. Can we take that as condemnation of those authorities that have decided not to conduct more than 200 prosecutions in 10 years because they are too expensive? Will he issue instructions that authorities keep to his dictum that they should take action if they find offences?

Tony McNulty (Labour, Harrow East)

No. Instead of doing something as specious as that, I would rather look at the principal Acts if I have the opportunity—happily for me I do, at exactly this moment—and, if there is a problem that can be resolved in a new Bill, correct it and lead towards a regime under which the law, principally in a new road and street works Act or whatever it will be called, is enforceable in proper terms.

We are told that inflation has eaten away at the fine levels and that somehow—it is not adequately explained—they have been increased to take account of that. At the Home Office's behest, under Conservative and Labour Governments, level 3, 4 and 5 fines have not increased since 1991, so the hon. Gentleman's point that fines have somehow kept pace with inflation is wrong—not simply misguided but absolutely, palpably wrong.

Christopher Chope (Conservative, Christchurch)

Will the Minister accept that the Home Office has the power through delegated legislation to increase the maximum penalty for each level of fine? The fact that it has not done so since 1991 is surely an indication that it regards the existing levels as adequate.

Tony McNulty (Labour, Harrow East)

The point of the hon. Member for Spelthorne was that inflation somehow made the fine levels keep pace with the cost of living. That is an error. They have not changed since 1991. The level 3 fine was £1,000 in 1991 and, until we do what we are about to do here today, it is still £1,000. The hon. Gentleman simply got it wrong; it would be nice if he admitted it.

Brian White (Labour, North East Milton Keynes)

Does my hon. Friend the Minister recognise that the very regulations that the hon. Member for Christchurch asks us to use are those that Conservatives keep complaining are red tape?

Tony McNulty (Labour, Harrow East)

Exactly so. It we were to accept the comments of the hon. Members for Spelthorne and for Christchurch, we would have a rather convoluted view that says shame on local authorities for not prosecuting and accruing more of this supposed stealth tax during the past 10 years but shame on the

Government for improving its levels. It would be complimentary, and rather generous, to say that they are all over the place.

The hon. Member for Spelthorne also asked why some fines are moved to level 4 and others to level 5. The working party of local government, utilities and the Department for Transport agreed broadly that fines at level 4 will relate to noticing offences—that is, to a utility not telling a local authority that it is starting work in a street. The offences under level 5 are generally more serious, such as not carrying out works in a safe way, perhaps by not lighting works at night. There is a clear distinction between noticing offences and more serious ones, as outlined in the schedule.

The hon. Gentleman went on to suggest that, because things had not changed and because there has been such a low level of prosecution, there is a problem. It is clear that the only thing that unites everyone from all sides with any interest in the Bill is that there is a problem and it is growing. The number of utilities that have been able to work on our roads for good and benign reasons such as broadband, cable TV and so on has mushroomed since 1981, and we need a deterrence regime in place, agreed with local authorities and utilities, to deter those who might carry out street works inefficiently. Utilities, local government and those most directly involved have signed up to the increases in maximums, so there is no merit in the hon. Gentleman's fatuous, libertarian, stealth tax argument, and if that is the only club in his bag, he is on thin ground.

Christopher Chope (Conservative, Christchurch)

Will the Minister cut the rhetoric and answer a simple question? What does he expect the level of prosecutions to be as a result of the changes proposed in the Bill?

Tony McNulty (Labour, Harrow East)

The hon. Gentleman should have listened to what I have been saying. I said clearly that, not least because of the broad agreement with the parties most interested in the regime we are setting and the further agreement that we hope to reach on consulting fully on the regulations, I would not be disappointed if the level of prosecutions remained roughly as it has been for the past 10 years. That would be a measure of success. The hon. Member for Spelthorne is trying to put in our minds the notion of an explosion of prosecutions to provide another few bob for the Treasury through the back door. Nothing could be further from the case. I hope and pray that the level of prosecutions will remain low, because that would mean that companies were being efficient in dealing with necessary works on our roads. I also hope that, as and when they need to, local authorities will feel confident enough to prosecute, knowing that a regime exists under which, for a change, the cost of prosecution would be far outweighed by what they would accrue from fines. I would be more than happy to come back in a year and say that all the indications are that, at the very most, there are no more than the 15 or 20 annual prosecutions that occur now, but that much more has changed in the efficiency of street works.

Everyone agrees, especially local government and the utilities most directly involved—though not the Conservative Front Bench—that the current fines are no longer appropriate for a deterrence regime, and I hope that anyone with a semblance of commitment to a more efficient regime will see that the clause is more than appropriate. The utilities certainly do, and I urge the hon. Member for Christchurch to withdraw his amendment.

Christopher Chope (Conservative, Christchurch)

I am not convinced by the Minister's bluster. One of his justifications was that local authorities do not prosecute at the moment not because offences are not being committed and there is no desire to deter offences, but because it costs more to prosecute under the existing fine regime than can be accrued from fines. The penalties in this part of the Bill go to the courts, but the cost of prosecution falls on the local authorities, so it is absurd for the Minister to suggest that the cost for local authorities will be less if they prosecute people for offences for which the maximum penalty is greater than at the moment. They will have the same prosecution costs, which may even increase slightly because the maximum fine on a company that is prosecuted will be greater than under the existing regime. How can the Minister justify his assertion that the cost to local authorities of prosecuting will be less under the new regime than under the old one if the issue of fixed penalty notices, which we will discuss later, is excluded?

Page 15 of the regulatory impact assessment says that

''the increased costs which higher maximum fines will impose on undertakers and others are avoidable if they comply with the law.''

I agree with that, but it continues:

''Increased fines should not increase the cost to street authorities of enforcing compliance.''

Why will it not increase the cost of enforcing compliance if, as has been implied, a large number of offences are not being prosecuted?

The Minister's argument is unsatisfactory, and he has not answered the point about inflation. If he thinks that inflation has increased fivefold since 1991, which is the import of his proposals to increase the maximum penalties from level 3 to level 5, and therefore from £1,000 to £5,000, I find it incredible. He has not answered the point that if the Home Office wishes to increase the maximum fines imposable under any different level, it can do so. The fines have been £1,000, £2,500 and £5,000 since 1991 but, for all we know, within a few weeks or months they might be doubled. In doing that, the Government would be admitting to a higher level of inflation than they are prepared to accept, particularly if we consider a pensioner's income, but we will not go into that.

I cannot speak for my hon. Friends, but I am not convinced by the Minister's argument. We may well be arguing about very little; there might not be any prosecutions in the future because there have been so few in the past. However, the proposal has the potential to impose a substantial new stealth tax

upon the utilities, and that would be to everybody's detriment.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 51, in

page 18, line 22, leave out 'and 74A(11)'.

Anne Begg (Labour, Aberdeen South)

With this it will be convenient to discuss the following:

New clause 9—Repeal of section 74A of New Road and Street Works Act 1991—

'.Section 74A of the 1991 Act is hereby repealed.'.

Amendment No. 52, in

schedule 12, page 86, line 28, at end insert—

'New Road and Street Works Act 1991 (c.22)Section 74A'.

Christopher Chope (Conservative, Christchurch)

Amendment No. 51 would delete the increase in penalties from level 3 to level 4 in section 74A(11) of the New Road and Street Works Act 1991. New clause 9, which would repeal section 74A of the 1991 Act, and amendment No. 52, which would insert the section in the list of repeals in schedule 12 to the Bill, form the main part of the group of amendments.

The Government incorporated section 74A in the 1991 Act through the Transport Act 2000. Under section 74A, the regime of lane rental was introduced. It has been introduced only experimentally, but the regime has had an adverse effect on the utilities and their customers with substantial additional costs and the continued inefficient execution of street works. That is the main finding of the Halcrow report, which was commissioned by the Government.

Amendment No. 42 and particularly new clause 9 would delete the provisions for lane rental from the Bill, on the basis that the results of the experiment that has been undertaken show that the benefits that the Government think might flow from lane rental do not flow from it. Under the section 74 regime of the 1991 Act, if a road is occupied for longer than is reasonable to carry out necessary works, penalties are imposed. I do not believe that anybody has any quarrel with that regime, because it incorporates an incentive for statutory undertakers and others to carry out road works efficiently and on time. However, instead of that, section 74A introduces a regime whereby people must pay for occupation of the highway, irrespective of whether it is necessary or not. That can happen from day one; in some experimental cases, it has been after three days. There is no dispute that that is an additional charge and, I believe, a severe new stealth tax.

The yield from the tax could be as much as £1 billion a year, which is serious money in anybody's language. It is even greater than the yield from the proposed higher education charges incorporated in the Higher Education Bill that is going through the House at present. The sum of £1 billion is about the same amount of money that Thames Water yesterday announced it would invest over the next five years in addressing the problem of crumbling mains in London, and about the same as that which the Chancellor of the Exchequer takes out of pension funds every year through his pension tax. Only now are people realising the gravity of that stealth tax.

The £1 billion to be taken from the utilities will not be taken from shareholders but from customers, because the regulator has made it clear that he would regard the penalties under the section 74A lane rental regime as unavoidable penalties incurred by the statutory undertakers through no fault of their own, as a direct consequence of having to undertake the work in the first place. In contrast, under section 74, where there is fault on the part of the utilities, they could avoid the charges if they were more efficient. This is a serious issue and, in terms of costs and burdens on the people, it is the biggest in the Bill.

Most fair-minded people must surely accept that occupation of a highway for a reasonable time to carry out work is unavoidable. If we were starting afresh with a new town, it might be possible to use trenchless technology, which is available in quite a lot of countries overseas, but the idea that we should start using trenchless technology to repair the crumbling sewers of London or to deal with the national gas crisis is surely beyond what reasonable men would consider possible.

That is why I am concerned about the proposal to continue the use of lane rental and, as we will see later in the Bill, to expand it into new areas.

The debate gives the Minister a chance to expand on the rather sullen statement included in the written ministerial statement on 20 November, which was slipped out on the morning of the last sitting immediately before prorogation prior to the Queen's Speech and this new Session. You will recall, Miss Begg, that the statement reached the Library at 9.30 am on 20 November and related to the Halcrow report on the experiment that it had been monitoring for lane rental projects in Camden and Middlesbrough, and in London under the auspices of Transport for London. The Minister's statement did not include any reference to his own views on the report. It simply said:

''Regulations under section 74A of the New Road and Street Works Act 1991 allow highway authorities to charge utility companies a daily rate, commonly known as 'lane rental', whenever the latter carry out works in the street. The powers have not, as yet, been activated nationally, but are being tested in pilot schemes in the London Borough of Camden and in Middlesbrough.

The Department for Transport appointed consultants, Halcrow, to monitor the effectiveness of the powers in reducing disruption on the highway.''

That is the essence of the study: if the measures succeed in reducing disruption on the highway, people

will not have much quarrel with it. The Minister went on:

''Halcrow have now produced their first annual report, covering the period March 2002 to February 2003.''—[Official Report, 20 November 2003; Vol. 413, c. WS42.]

That raises a question. The report covers a period up to February 2003, but it did not reach the House of Commons until 20 November 2003. I can only speculate that it did not see the light of day earlier because Government business managers would never have approved the inclusion in the Bill of proposals to extend lane rental if they had known that it was the manifest failure that the report shows it to be. The Minister and his team succeeded in not having to declare that to their colleagues, because the report was not published until 20 November. The study examined whether the lane rental system reduced journey times in Camden or delays in bus journeys in Middlesbrough and found that it did not have the results that people thought it might.

First, it is worth putting into context the amounts being charged under the lane rental system—up to £750 a day in London, £650 a day in Camden, £500 a day in the north-east of England and up to £200 on other routes. The study set out the objectives, one of which is found in Executive Summary ES3.1. It says:

''Halcrow has been asked to monitor the effects of lane rental on disruption levels from street works, and specifically . . .

The extent and duration of street works within each Borough under lane rental . . .

The effect of lane rental on the undertakers' policies and programmes . . .

Additional costs incurred by the undertakers as a result of lane rental including increases from alterations to work programmes''.

Particularly relevant for today's debate is the position of the regulators. That is well summarised in paragraph ES4.2.

As part of its monitoring of the effects of lane rental on the utilities' work programmes, Halcrow held discussions with the Department and the utility regulators Ofwat, Ofgem and Oftel. The regulators indicated that, as a general rule, they would allow the utilities to recover those costs that they can demonstrate as not having been incurred as a result of their inefficiencies. Whereas costs arising from overruns under section 74 of the 1991 Act could be ascribed to inefficiency, lane rental charges are incurred whether the street works are carried out effectively or otherwise. That is why they are a stealth tax.

It is said that the situation for British Telecom is slightly different, because it does not have the power to raise its charges even when faced with unavoidable increases in costs; its costs are capped irrespective, and it is not allowed to pass on the costs arising from lane rental to its customers. The position for BT and Kingston-upon-Hull's four mobile phone operators under the regime laid down by European Union directives is arguably even more parlous than that of the other utilities. It is a serious matter, because charges are passed straight on to customers by all the utilities except British Telecom. BT, however, has to absorb the costs at the expense of other projects.

I referred to the price that has to be paid for each set of works, and it is worth reminding ourselves of how the monthly incidence of such works. In Camden, the report shows that anything between 476 and 673 sets of works are started every month, and that more than half of them are in respect of water. Each month, those works cover anything between 2,907 and 3,192 days, with an average duration of between five and six days. The cost to the water sector in Camden in February 2003, even without having to pay charges for the first three days of works that lasted no longer than that, was more than £46,600.

We are talking about major new burdens for the utilities. Page 12 of the report, on responses to lane rental, showed that it was thought that the utilities might be expected to undertake their works in phases of short duration in order to reduce the likelihood of charges, particularly in Camden, where works of three days or less are not charged. Did that happen? No, it did not. Tables were produced showing little if any change in the phasing of works during the lane rental period, indicating that the utilities had not changed their working practices on street works undertaken in short phases.

Hugh Bayley (Labour, City of York)

I am most interested in the hon. Gentleman's argument. He talks about the burden placed on public utilities, but does he not recognise that a huge burden will be placed on other businesses if they cannot use the roads efficiently as a result of delays caused by such works? One reason why the utilities have not changed their working practice and completed their works more quickly is because the cost of doing them more quickly would be greater than the charge. The charges may be too low and not, as the hon. Gentleman suggests, too high.

Christopher Chope (Conservative, Christchurch)

I am grateful to the hon. Gentleman for his intervention, because he is probably in line with the prejudices of those who set up the experiment in the first place. I do not know whether he has read the report, but if he has he will have seen that the supposition that he has articulated was not realised in practice. The findings of the consultants show that, contrary to what had been expected, the scope for the utilities to carry out their works more efficiently under section 74A compared with under section 74 was zero. In some cases, there may have been less of an incentive to carry out the works more efficiently than under the existing section 74 regime.

I share the hon. Gentleman's desire to ensure that the occupation of the highway by utilities of all sorts, including the highways authorities' road maintenance departments, is kept to a minimum for all the reasons that he articulates. That burden is the purpose that lies behind section 74, so that penalties flow directly from unreasonably lengthy occupations of the highway.

Hugh Bayley (Labour, City of York)

I am grateful to the hon. Gentleman for having a genuine debate. However, do we not face a public policy problem in that the beneficiaries of digging a hole in the road are few? The beneficiaries are only the public utilities. However, many people bear the cost. They bear a small cost as each of them has their journey delayed by five or 10 minutes, or even

15 or 20 minutes if there is a serious hold up. If I may use an analogy, it is rather like reforming the common agricultural policy. The number of those who benefit—the farmers—are few but they benefit enormously. The number of people who pay the cost—the average householder who pays about £30 or £40 extra a week in food costs—are many. Do we not have a similar situation here? If the hon. Gentleman does not—

Anne Begg (Labour, Aberdeen South)

Order. The hon. Gentleman is making an intervention rather than a speech.

Christopher Chope (Conservative, Christchurch)

Thank you, Miss Begg. I look forward to hearing the hon. Member for City of York (Hugh Bayley) making his own speech.

The hon. Gentleman is on to an important issue. Under the section 74 regime, where avoidable delay is incurred by the utilities in digging up the road, the costs are borne by businesses, individual householders and motorists who are inconvenienced. The penalty regime that operates under section 74 enables those penalties to be paid to the street works authority as revenue. If that is a local authority, the money will go in to the general coffers from which residents in that area can benefit.

I have no quarrel with section 74 and I am sure that the hon. Gentleman will not either. However, under section 74A the situation is completely different, because the study shows that the work by the utilities has not sped up. They already carry out the work as efficiently as they can because of the pressure of section 74. They have to pay for the mere occupation of the highway for whatever reason. The costs of the occupation of the highway, which could run up to £1 billion a year, will fall on Tom, Dick and Harry, to use the expression that we were using so effectively last week, because of the attitudes of the regulators.

Ironically, in a complete reversal of what the hon. Gentleman has been saying, under section 74A—the section that I hope to remove from the Bill—the burden falls on everybody. The burden of the tax will fall on all the customers of the utilities, ranging from the person who resents the level of water rates or water meter charges to the person who wants to have work carried out on their gas system.

I can illustrate that point. I do not know whether the hon. Gentleman saw the business news on page 42 of The Times of 2 February, but Thames Water has announced that it will pour £1 billion into replacing more than 1,000 miles of crumbling Victorian water mains in central London in the next five years. It says that that is a top priority because in the inner London boroughs, including Islington, Camden, Tower Hamlets, Westminster, Hammersmith and Fulham, and Kensington and Chelsea, there is an urgent need to address the problem of leaking water mains. One third of the water mains network in the capital is more than 150 years old, and more than half is over 100 years old. The regulator controls water charges, and Mr. Sexton, the managing director of Thames Water, is quoted in the report as urging Ministers to consider that the shareholders of his company—now owned by RWE, a German utility giant—should not

have to fund the cost but that the taxpayer should contribute.

Under section 74A, there is no alternative but for the highway to be occupied by the water company to enable the work to be done by its contractors, and for a cost to be imposed on that water company and its contractors of a maximum of £750 per day of occupation of the highway. The hon. Member for City of York said that he thought that that should be increased. However, increasing the cost of occupation of the highway will be an additional burden on Thames Water. It will mean either that it will do less in terms of improving the water infrastructure and addressing the problem of crumbling mains or that it will have to spread the work over a longer period for the same money. What we are considering would prevent that sort of investment by Thames Water being taxed with an additional stealth tax under section 74A. I appreciate the hon. Gentleman's interest, because the matter is critical.

There is a great deal of prejudice against utility companies—whenever they dig up the road it is thought to be unnecessary. However, if we are to improve the infrastructure of our towns and cities, the roads have to be dug up.

Hugh Bayley (Labour, City of York)

The hon. Gentleman talks about the cost that falls on the utility companies for occupation of the road. That is a real cost. However, he ignores entirely the cost that falls on the public—Tom, Dick and Harry, to use his phrase—if roads are not free to traffic and their journeys are delayed or, if they are cyclists, made more dangerous by such works. Why does he ignore that cost, which falls on the whole of the public?

Christopher Chope (Conservative, Christchurch)

I am not avoiding that cost, although it is probable that fewer people use the roads in their locality than will benefit from improvements in the infrastructure—sewerage that works, mains electricity that does not fail and gas that does not leak and cause explosions and danger to life. The fundamental issue is whether it is necessary to dig up the road in the first place. If it is, then it is important that that digging is properly co-ordinated, that there is proper consultation about when it will take place and that it is done as swiftly and efficiently as possible.

There is no conflict between what the hon. Gentleman says and what I say. Under the section 74 regime, penalties apply when there is a failure on the part of the utility or its contractor to carry out the work efficiently. Under section 74A, the utility cannot avoid the charge even when the work that is being carried out is essential. That is the issue. The money from that stealth tax will go into the pot of local authorities. It is seen as additional income for local authorities, but at what price? This is basically an additional churning in our economy and additional regulation, bringing disproportionate burdens to bear on particular categories of business and incurring an enormous abortive administrative cost. That all comes out in the report, which I believe the Minister would have preferred us not to see but which is in the pubic arena.

I do not want to take too long, but it is worth reminding the Committee about the effects of what happened in Camden. Some people thought that, because the streets in Camden were separated into premium streets and non-premium streets, the utilities would tend to concentrate their work on the non-premium streets and work even more efficiently on the premium streets where the lane rental charges were higher. Although that was expected, paragraph ES8 states:

''In Camden there has been a decrease in numbers of works in the first period of lane rental over section 74 but the number of phases increases in the second period. In Middlesbrough there appears to have been an overall increase in the number of phases of works in three of the four sections under lane rental. The conclusion is that there has been little change in activity on premium streets compared with section 74.''

Again, what one might have thought would be the consequence turned out not to be established in practice. That is why it was important to have the experiment, which is due to conclude at the end of March. It shows that the conclusions were different from the suppositions made in advance. In the light of the first annual report on the monitoring of lane rental projects, I challenge the Minister to justify retaining the lane rental regime, let alone extending it to other local authority areas and to other modes of activity, as the clause proposes.

Finally, the study's conclusions contain several recommendations. As I said, I expected the Minister to say what he thought about the report's recommendations when he presented it to the House of Commons some eight and a half months after the study period, but he did not. I would be interested to hear whether he has any comment to make about them today.

The most important conclusion is that lane rental is less effective than section 74, and is certainly no more beneficial. Paragraph 5.6.1 on page 53 states:

''The lane rental schemes as they are currently formulated do not identify inefficiencies on the part of the utilities in their occupation of the highway. The Regulators—with the exception of Oftel who are bound by European Directives—have agreed that charges levied under the lane rental schemes can be passed on to the customers of the utilities.''

Surely the case is made for developing section 74, which was introduced into regulations that took effect in, I believe, 2001, and which remains relatively untried. Why cannot we develop section 74 with its sophisticated system of checks and balances and incentives for efficiency, rather than introducing section 74A, which is a thinly disguised stealth tax that could end up burdening all customers of all the utilities with a cost each year of up to £1 billion?

Tony McNulty (Labour, Harrow East)

I congratulate the hon. Member for Christchurch on getting such a debate at this late stage, not least because the clause says nothing about the principle behind section 74A. It merely refers to increasing some of the fines. To get a debate by seeking to repeal section 74A is clever. Indeed, it has been a useful debate. However, I need to make a couple of points.

The charge that I did not want the report to be seen by anyone is also clever—it would have been terribly sophisticated, even for me, to try to ensure that no one

ever saw it by putting it in the Library. After all, no one ever looks there for such publications.

Let us be clear: it is an interim report, compiled only halfway through a two-year pilot scheme. It is not, as could be construed from what the hon. Gentleman said, the definitive report in all its glory. As he suggested, the pilots finish in April, and Halcrow will publish the complete report in the summer. The hon. Gentleman suggests that one year is exactly the same as another in Camden or Middlesbrough—or anywhere else, for that matter—and that that lack of change will be reflected in the report. However, to suggest, as did he did, that we need answers, and we need them now, only eight and a half months after the study, is slightly misleading. The end of the study is a month or so away yet. The report will be published for the whole period.

The hon. Gentleman was right to say that amendment No. 51 followed from the previous group of amendments on the increased level of fines. We have been there; we had that debate on the previous clause.

New clause 9 and amendment No. 52 between them would repeal the lane rental powers of section 74A of the 1991 Act. The hon. Gentleman was right to say that we are almost at the conclusion of the pilots in Middlesbrough and Camden, which have been undertaken under the section 74A powers. They are due to end on 1 April, and Halcrow will report on the full impact of the full two-year pilots in the summer.

One point that vexes some is why we need lane rental powers and permit schemes. Utilities and others are naturally keen to know how lane rental, if it is to be extended, will fit in with the operation of the permit schemes and the parallel powers to charge undertakers whose work overruns. I agree that it is impossible to reach a decision on the future of lane rentals in isolation, given that we will be asking the working party, yet to be set up and on which utilities and local authorities will be represented, to consider how permit schemes should operate and to examine the relationship between the different powers. We will consider the working party's findings and those of the full and final Halcrow report when deciding the future of lane rental.

The notion that the cost will be billions of pounds is not rooted in the regulatory impact assessment, or anywhere else; it is a figure plucked out of the sky by the hon. Member for Christchurch—perhaps with the help of others. I know of no other explanation.

Christopher Chope (Conservative, Christchurch)

If £1 billion is wrong, what is the Minister's estimate of the potential cost to the utilities and their customers of lane rental?

Tony McNulty (Labour, Harrow East)

Given that we are not imposing a national scheme, and that section 74A may or may not be rolled out, depending on the full import of the Halcrow report and how it relates to permit schemes and overcharging, I have no idea at this stage what the cost would be. It will not help the Committee if I pluck a figure out of the sky to scare people because it fits in nicely with some perverse libertarian view on stealth

tax, not least because—unless my memory fails me—in the 2001 general election campaign, the Conservative party line was to be in favour of what is proposed. One would not know that from what we have heard thus far, but time moves on. Perhaps the Conservatives have had an interim report on whether they should now be in favour, and have decided that this far into the Parliament they should not be. One feels that it is too much to ask for consistency, even from the hon. Member for Christchurch.

Christopher Chope (Conservative, Christchurch)

Is the hon. Gentleman referring to the statement made by Lord Peyton of Yeovil in which my noble friend, a distinguished former Minister of Transport, argued in favour of lane rental in principle? I am sure that, like everybody else, he would be interested to see the outcome in practice. The burden of my argument is that, in practice, lane rental is proving to be expensive and counter-productive.

Tony McNulty (Labour, Harrow East)

In practice based on what—the evidence accrued from one year of a two-year pilot? I am not referring to Lord Peyton. I think that I am referring—I shall double-check—to the less-than-noble, in the strictest parliamentary sense and no other, hon. Member for North Essex (Mr. Jenkin). I believe that he was a spokesman of some sort during the Opposition's glorious ''victory'' in 2001.

Of course, we should consider lane rental in the context of the other powers. We have committed ourselves to a working party not simply to take account of how charging for overstay and permits and lane rental will fit together, but to take full cognizance of the final report from Halcrow. As the hon. Gentleman says, it is important to pilot such things. In that context, we will determine whether we should proceed with the powers in section 74A. That will be done clearly and, as I have said in relation to other items in the Bill, in the context of wider discussions, consultation and a full exposition of the options with the local authorities and utilities that will be on the working group and continuing to look into these matters. They will be the people charged with ensuring that such things are executed efficiently, and it will be for them to determine, once we have set the legislative framework, how to proceed or whether to proceed at all.

I am happy for the hon. Gentleman in that he has introduced the new clause, but it is not appropriate at this stage. We need to look further at whether 74A powers are appropriate or otherwise, and we shall do that in full co-operation with the relevant parties. In that context, I consider that the amendments are otiose to say the least, so I urge the hon. Gentleman—I am sure that he will not—to withdraw them.

Christopher Chope (Conservative, Christchurch)

That is rather a disappointing response.

Tony McNulty (Labour, Harrow East)

Good.

Christopher Chope (Conservative, Christchurch)

The Minister did not explain why the interim report, as he calls it, of Halcrow was not placed in the Library until 20 November. However, he went on to say that the full report, based on evidence up until the completion of the project next month, will be available in the summer—perhaps that should be in

inverted commas. If the full report can be ready by the summer of 2004, can he enlighten us as to how it will be made available to the House of Commons, when it is likely to be presented and what opportunity there will be to discuss its conclusions?

As the Minister knows, the Transport Committee is concerned about section 74A. It has recommended that the Department for Transport should not seek to extend the pilot allowing local authorities to charge utilities a daily rate from the start of work, regardless of whether they overrun. Has the Minister any specific proposals for the involvement of the Select Committee in the conclusions that flow from the Halcrow report? A host of regulations can be introduced under part 4. He keeps saying that the matter will be dealt with quietly between the Government, the Department, the utilities and the local authorities. What role is there for Parliament and for the Transport Committee under its distinguished and knowledgeable Chairman, the hon. Member for Crewe and Nantwich (Mrs. Dunwoody)? Can the Minister give any guarantees, and indicate his thinking in relation to the role of the Select Committee in the further scrutiny of the contentious issue of lane rental charges, if my amendment is not accepted?

This is a significant issue and if I have not been able to impress anything else on the Committee this morning, I hope that it has understood that we are talking about hundreds of millions of pounds of additional burden on industry. The Minister denies that it is up to £1 billion, but that figure is based on an extrapolation of the level of charges already being made in Camden and Middlesbrough, the effect of which will be multiplied by the increase in activity throughout the country that will take place in the coming years.

That will bear on the gas mains replacement programme; the Minister has not stressed that it is an additional burden on individual utilities. The Select Committee drew attention to the programme and said that the programme should have taken greater account of the potential for disruption to the highway. In the end, however, the programme is driven by the need for safety and also by the need to ensure the coherent replacement of existing mains, rather than just to minimise traffic congestion, therefore taking into account other factors. It is clear that under the lane rental system there will be an additional on-cost on the gas mains replacement programme that will have to be paid for by gas customers.

The Minister left us in an unsatisfactory position because he said that the experiment is still continuing. It will end within a month, but he has not given us the latest information; he does not assert that the conclusions of the latter part of the survey are any different from those of the first year of operation. If they were any different, he would have been quick to stress the interim findings. He is unable to be precise about when the Halcrow report will finally be produced, and most seriously of all, he cannot give us an undertaking that its conclusions will be complied with. I suspect that there is a big conflict between the local authorities, pressurising the Minister and his colleagues for additional sources of income on one hand, and a more convenient source of income from

people who dig holes in the road. That is why the proposal is a stealth tax.

As the hon. Member for City of York said, there is a great deal of prejudice against those who dig holes in the road, without much understanding that they have to do so to ensure that our infrastructure works. As a result of that prejudice, they are an ideal target for imposing additional taxes, which have to be passed on to their customers indirectly. It means that the Government can wring their hands and say, ''It's nothing to do with us, guv. Isn't it awful?'', when the cost of the average utility bill will have to increase by what some estimate to be £4 a week.

As a direct result of the proposal, each householder will have to pay an extra £4 a week for the utilities that they use, and, again, the Government will be able to say that it is nothing to do with them. But that is exactly what a good stealth tax is: it is the reverse of traceable, which the Government think is so important in the food chain. That is why people have realised only now, five years later, that the fact that their pensions are worth a lot less than they had expected is due to Chancellor's consistent stealth taxes.

I predict that, unless the Minister gives a specific undertaking, the Government will be unable to resist the pressure to accede to bidding by local authorities to impose the stealth tax in question on the utilities, irrespective of the conclusions of the Halcrow report. I predict that what we are discussing will come to pass, that we shall face the £1 billion a year stealth tax—otherwise known as lane rental—and that our economy will lose competitiveness as a result, leaving the customers and users of our utilities worse off.

Greg Knight (Conservative, East Yorkshire)

The McNulty tax.

Christopher Chope (Conservative, Christchurch)

My right hon. Friend is right—there is a certain ring to the ''McNulty tax''.

As the Minister said, the main part of this debate concerns new clause 9, which I intend to press to a Division, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Greg Knight (Conservative, East Yorkshire)

I rise to ask a general question that relates to road works in the widest sense. If the Minister cannot respond immediately, I should grateful for a reply before the Committee finishes its deliberations. I have always been curious about my question, but I am not sure what the answer is, not having worked for a utility company or been an engineer. Is it the case that in all new developments the utility services are not now placed under the carriageway? If not, why not? If so, when was that requirement introduced, and is it mandatory in all developments? Does the Minister share my view that if that requirement is not mandatory, it should be? It is surely cheaper and far less disruptive for the utility companies to do maintenance work by digging up someone's front garden than by digging up the carriageway of a road. In addition, if those working for the utilities do not have vehicles above them,

damage is less likely to be caused. My question is a genuine question. I do not seek to make any party political point; I just wondered what the position was.

Tony McNulty (Labour, Harrow East)

That is an entirely fair point. As Minister with responsibility for planning last year and as Under-Secretary of State for Transport this year, I confess that the answer is not deep in the bowels of my head—if that is not overly mixing metaphors. I undertake to write to the right hon. Gentleman before the Committee has finished its proceedings to let him know the answer.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 4.

Schedule 1 - Increase in maximum fines for

David Wilshire (Conservative, Spelthorne)

As I run my eye down this list, and I remind the Committee that I am not a lawyer and do not have all the relevant offences or sections of particular Acts in my mind, it seems to me that on occasion someone who is not so cluttered up with the minutiae can see things that the lawyer does not. I would like the Minister to comment on a couple of matters in the schedule. I am sure that my colleagues and others will raise other issues.

Let us put aside the argument about how great the fines should be and run our eyes down to line 15 of page 57, which refers to section 65(6) and relates to penalties for:

''Interference with safety measures taken by undertaker''.

As a layman, I can see the sense in saying that some action ought to be taken if somebody interferes with safety measures. There are other instances such as that in the schedule. If the Minister were to give me the full details, I would say that if we were going to have such offences and levels of fines they should perhaps refer to such instances. However, I find a couple of the provisions mysterious. Line 10 of page 57 refers to section 57(4) and:

''Failure to give notice in accordance with s.57 (notice of emergency works)''.

I can conceive of a situation where the emergency comes to mind rather than the requirements of section

57(4). If we are dealing with a gas leak, I think that I would rather have someone do something about the escaping gas than have bureaucrats worry about who they should give notice, on what form, and where they have to deliver it.

It seems unreasonable to say that one should decide not to worry about the leaking gas until one has done the paperwork or else receive a level 4 fine of £2,500. One should be congratulated for doing things in the right order. The concept of saying that someone has failed to give notice of emergency works per se and ought to be punished by that sort of a fine is unreasonable, particularly as the Minister said as a general statement of policy that all offences should be prosecuted. Even under extenuating circumstances, the Minister's dictum is that all offences should be prosecuted. I think that is what he said; he would perhaps like to modify his views. It seems quite absurd that people who put safety first without doing the paperwork will find themselves in that sort of a situation.

I find it even more extraordinary that line 12 refers to section 60(3):

''Failure to comply with duty under s.60(1) (general duty of undertakers to co-operate)''.

What on earth is a general duty to co-operate? Who knows what general duties are? What is co-operation? If somebody, somewhere, wants to raise another stealth tax and decides that they will take action under the terms of a general duty to co-operate, the fine is £5,000 for not co-operating. That is absurd. Some of the offences that seem reasonable to me and get a level 4 fine could be quite serious.

Greg Knight (Conservative, East Yorkshire)

My hon. Friend is a Whip. I would have thought that he would have fully appreciated the general duty to co-operate.

David Wilshire (Conservative, Spelthorne)

Is my right hon. Friend inviting me to fine him £5,000 for being a little late this morning? My colleagues in the Whips Office would be delighted if I came back bearing that amount of money in the course of a morning's activities.

To pick on an issue such as a general duty to co-operate for the highest level of fine—£5,000—is to get our priorities dreadfully mixed up. There are safety issues, works issues, and issues relating to interfering with other people's equipment, none of which necessarily attracts that size of fine. Can the Minister justify including those offences in the schedule at all, let alone the level of fine to which he wants us to agree?

Christopher Chope (Conservative, Christchurch)

Will the Minister explain what he believes to be the appropriate role for a street works authority? Bodies such as disability pressure groups have made representations asking why the requirements to ensure that the street works are safe are not also incumbent on the street works authority when it is responsible for the works. That concerns the Royal National Institute of the Blind, in particular, and I would be grateful if the Minister would take the opportunity presented by this short debate to explain the Government's thinking on safety and on blind people in particular when they are confronted by street works that have been carried out by the street works authority or the street works authority contractor, and

which are unsafe, not properly guarded and in other ways in breach of the offences under the schedule. Those offences should apply to the authority or contractor, except that they do not.

Tony McNulty (Labour, Harrow East)

There is nothing new in the schedule, which is simply a list of offences listed in the 1991 Act, which was passed by a Conservative Government who thought that it was entirely appropriate at the time, and the relative increases in the levels of fine that each offence will accrue. A simple reading of the original Act will show how irrelevant—the most polite word possible—contributions to this debate have been. How could anyone disagree with section 65(6)—

''Interference with safety measures taken by undertaker''—

which the hon. Member for Spelthorne picked up on? How can anyone disagree that that should be the larger charge? The principal Act states that an offence is committed:

''If a person without lawful authority or excuse . . . takes down, alters or removes any fence, barrier, traffic sign or light erected or placed in pursuance of subsection (1) or (2) above, or . . . extinguishes a light so placed''

obviously for safety reasons. How can anyone object to that? It is easy to pull a phrase from the schedule without referring to the original Act and have light, if not terribly witty, fun with it. Ultimately, however, the fun is at the expense of the Government of the party of the hon. Member for Spelthorne and at the offences that they determined were appropriate in 1991. We agree with that list of offences, and are not changing them for the purposes of the schedule. We are merely changing the levels of fine for the reasons that I gave earlier, and we are changing no more than that.

Christopher Chope (Conservative, Christchurch)

Will the Minister give way?

Tony McNulty (Labour, Harrow East)

I will, but if the intervention is as useful as the last couple of minutes were, it will not be much good.

Christopher Chope (Conservative, Christchurch)

I am disappointed that the Minister thinks it useless to refer to the very genuine concerns of the RNIB about the need for a level playing field when protecting street works and preventing danger to blind and partially sighted pedestrians. Surely the provision should apply to all authorities. The Minister's last point was to ridicule the concerns that my hon. Friend the Member for Spelthorne rightly expressed. There is all the difference in the world between the contents of this schedule and the schedule to the 1991 Act, taking into account the fixed penalty regime that is to follow. Under the 1991 Act, the maximum penalties were not automatic, but they were subject to the discretion of the magistrates. If the lighting around a structure on the highway was removed by vandals, the person responsible for the lighting could be prosecuted under the 1991 Act, but if he could show that despite his best endeavours the lighting had been removed by vandals, probably no penalty would be imposed—indeed, he might not even be prosecuted. Under the regime that the Minister is linking in with schedule 1—the fixed penalty notice regime—if the lighting around some street works was removed by vandals, it would not be a question of whether a prosecution would be reasonable or what level of fine would be appropriate; the fixed penalty

notice regime would click in, and the local authority would be able to say, ''That is another £500. Let's tick that one off, and put the money in the coffers.'' That is why the substantially increased—

Anne Begg (Labour, Aberdeen South)

Order. I remind the hon. Gentleman that he is making an intervention. If he wants to continue the debate, I am sure that the Minister will allow it.

Christopher Chope (Conservative, Christchurch)

I think that I have given the Minister enough; I hope that he has the necessary material to hand.

Tony McNulty (Labour, Harrow East)

The hon. Gentleman has given me enough for debates on the next couple of clauses.

The fixed penalty regime has nothing to do with the schedule. As I was saying before I was so tediously interrupted, much of what the hon. Member for Spelthorne alluded to, and much of what the hon. Member for Christchurch said, is clear in the principal Act. Section 59(1)(b) and section 60(1)(b) in the principal Act both require the street authority and the undertaker to

''minimise the inconvenience to persons using the street (having regard, in particular, to the needs of people with a disability)''.

I have no argument or quarrel with the Royal National Institute of the Blind or others who serve people with disabilities. Rather, I would argue with the hon. Gentleman for invoking those good works on such a fatuous point. It remains a fatuous point, clearly showing that neither he nor his colleague has read the principal Act. I said last week that the Bill cannot be seen in isolation, whatever we see in our little goldfish bowl. Not only must we consider it in the broader context of other elements such as health and safety legislation, but it must be seen in the context of the principal Act.

Without wanting to be churlish or unduly combative, I have to say that all the comments made by the hon. Members for Spelthorne and for Christchurch were fatuous. If they were intended simply to fill in the time from 11 am to 11.13 am, so that we could move at a more gentle and appropriate pace this afternoon, I shall withdraw the charge of fatuity. However, if the two hon. Gentlemen are being fatuous for the sake of it, I shall not withdraw the remark.

Question proposed, That this schedule be the First schedule to the Bill:—

The Committee divided: Ayes 9, Noes 4.

Standing Committee A

Clause 40 - Fixed penalty offences

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 45, in

page 18, leave out lines 39 to 41.

Nigel Beard (Labour, Bexleyheath and Crayford)

With this it will be convenient to discuss the following amendments:

No. 46, in

page 19, leave out lines 1 to 3.

No. 47, in

page 19, leave out lines 4 and 5.

Christopher Chope (Conservative, Christchurch)

The clause deals with the vexed issue of fixed penalties. Amendment No. 45 would mean that proposed section 95A(2) of the New Roads and Street Works Act 1991 would be left out. The amendment was tabled to probe the Minister on why

''offences by bodies corporate and Scottish partnerships''

will not be subject to the fixed penalty regime.

Amendment No. 46 would remove the power of the Secretary of State to add fixed penalty offences to the schedule, or delete them from it. In that context, will the Minister explain a bit more about his thinking on which offences should be subject to the fixed penalty regime and which should not? I have severe reservations about the fixed penalty regime. On the face of it, the offences chosen as fixed penalty offences are not the critical ones. I have in mind, for example, the failure to comply with a section 66(1) duty

''to carry on and complete certain street works with all reasonably practicable dispatch''.

That offence carries a maximum penalty of level 5. However, it goes to the heart of what the Bill is about: speeding up work and avoiding undue delay. If the Minister feels that the offence is serious, and that the enforcement authorities should take it seriously but will be inhibited from prosecuting because of the fear that they will face substantial costs and will not get any income from the fines, why is the offence not included in the fixed penalty regime? Does he have it in mind to include it at a later stage—in regulation—when we cannot possibly scrutinise the proposal properly?

In addition, why is the failure to comply with duties under section 71—

''prescribed requirements as to materials and workmanship and performance standards for reinstatements''—

not a fixed penalty offence? It is an important and critical issue. Why is it not subject to fixed penalties, even though other matters that we might regard as rather trivial are?

Can the Minister explain the situation in relation to continuing offences? One of the big bugbears of the motoring public, who are subject to fixed penalty notices, is that they get a sticker on their car because it is parked in the wrong place or has overstayed the time allowed, and then a few minutes or hours later they get another sticker on the car because it is parked in the same place. Can we be sure that the fixed penalty regime will not be used iteratively against people for the same wrongdoing? I would be grateful to hear what the Minister can tell us about that.

The debate on this group of amendments gives us an opportunity to probe the Minister about the thinking behind the fixed penalty regime.

Tony McNulty (Labour, Harrow East)

It is a pleasure to be under your tutelage once again, Mr. Beard, but I hope—I mean this in the nicest sense—we will not be under it for too much longer.

The points made by the hon. Member for Christchurch (Mr. Chope) are entirely fair. I hope that I can address them. Amendment No. 45 refers to section 166 of the 1991 Act, which provides that when an offence is committed with the consent or connivance of, or owing to the neglect of, a director, manager, secretary, partner or similar officer of the body corporate or partnership—I mean of the body corporate—the individual as well as the body corporate or partnership is guilty of an offence.

Clause 40 inserts new section 95A(2) in the 1991 Act, which provides that in such cases the offence would not be dealt with by means of fixed penalty notice, but through the courts. It is important to recognise the two-tier approach of the fixed penalty notice and due course through the courts. Amendment No. 45 would allow such offences to be subject to fixed penalty notices after all.

The distinction that the hon. Gentleman seeks to draw out of me is essentially—not entirely—between the noticing offences that are subject to fixed penalties, which we discussed this morning, and the more serious ones that are not.

I am sure that that is not the thrust of the hon. Gentleman's amendment No. 45, but some offences might involve circumstances in which the negligence of an individual contributes to the death of a worker on the site of a works or road works. I am sure that nobody would think that a fixed penalty notice deals with that appropriately.

Greg Knight (Conservative, East Yorkshire)

Subsection (2) refers to

''(offences by bodies corporate)''.

In his introduction, the Minister said, ''bodies corporate or partnerships,'' and then corrected himself, effectively deleting ''partnerships''. Will he clarify the situation by telling the Committee whether partnerships fall within the ambit?

Tony McNulty (Labour, Harrow East)

If I gave the impression of correcting myself, it is because I read the wrong line in my speech, and I came on to partnerships subsequently. Partnership is there only in the same context as in section 166 of the 1991 Act, which refers to

''bodies corporate and Scottish partnerships''.

Not being a lawyer, and certainly not being a Scottish lawyer, although there is nothing wrong with them, I can only assume that that is a reference to the context under Scottish law.

Greg Knight (Conservative, East Yorkshire)

I am grateful to the Minister for that clarification. He is saying that bodies corporate and Scottish partnerships are not subject to fixed penalty offences. One might face a situation in which one particular firm that has committed an offence is a body corporate—a limited company. Mr. Smith and Mr. Jones who trade together then commit the same offence, but they are an unlimited partnership. Why should there be a difference in treatment when one is dealing with a small company, which has very little difference to a partnership?

Tony McNulty (Labour, Harrow East)

I have said once or twice before that I hope to get some inspiration from someone behind me, but I assume that the definition of body corporate is all inclusive. Neither the 1991 Act nor the Bill seeks narrowly to define body corporate as a limited company with liability guaranteed by its public status. I am pretty sure that that is the answer; if it is otherwise, I will get back to the hon. Gentleman. The important point is that a whole series of more serious offences warrant a different penalty to those in the fixed penalty regime.

The hon. Member for Christchurch rightly said that the thrust of the proposal is to hasten not delay the process. The noticing offences are important to the process of carrying out street works efficiently, but the distinction between what should and should not receive a fixed penalty notice is important, not least for the reasons I suggested—admittedly, in the most extreme circumstances. If there were pressing manslaughter or more serious charges, a fixed penalty notice would not cover the offence appropriately. If the hon. Gentleman wants to introduce body corporate matters, a fixed penalty notice may well be inappropriate—admittedly, in extremis. There are serious offences under the Bill and the principal Act that are important enough to be dealt with by the courts rather than a fixed penalty notice. As the hon. Member for Christchurch was suggesting, it would be taking a sledgehammer to crack a nut, or the reverse, if all the offences carried a fixed penalty notice. We might then stray into the realms of inefficiency and greater bureaucracy, which is not the Bill's intention.

Equally, because, as ever, the hon. Gentleman is right but for the wrong reasons, the list of offences in the Bill is not intended to be definitive. It has been arrived at largely as a result of the work done by the working party of utilities and local authorities, which roughly agreed the list of offences and agreed that some would be more suitable to fixed penalty notices and some better dealt with through the courts. However, we will have to resist amendment No. 46, because we want to retain flexibility—this is where the conspiracy theory comes in—to add to the list of offences carrying a fixed penalty notice, and equally, when we have seen how the list works in practice over

time, to remove some offences. Amendment No. 46 would remove the flexibility to modify the list of fixed penalty notices.

I believe that amendment No. 47 is consequential on amendment No. 46 and removes a reference in subsection (4) of new section 95A to orders that add or remove fixed penalty notices being subject to affirmative resolution.

The hon. Gentleman's points are entirely fair, in a probing fashion. However, for some offences in the schedule, it is appropriate to go down the fixed penalty notice route, and for others it is not.

Christopher Chope (Conservative, Christchurch)

Before the Minister sits down, will he deal with the issue of iterative offences, which I raised?

Tony McNulty (Labour, Harrow East)

We do not intend to go down that route. The intention of the fixed penalty notice regime is to have the offence dealt with in summary fashion, so that the company and the street works authority can move on. It is not envisaged that more and more tickets will be put on the offending item, if the offence is continuous, although it is incumbent on people, once they commit an offence, to correct that situation. Therefore, while it sounds all very nice to talk about the poor, put-upon motorist having ticket after ticket put on their vehicle, ticket after ticket goes on because they are continuing to commit the offence. It is easy to suggest, in a populist way, that that is terrible, but if the offence continues to be committed, it is appropriate, in the case of motoring offences, that subsequent notices are given. It is not envisaged—I am sorry that I missed this point—that we should adopt that iterative process in the different circumstances of the fixed penalty notice regime and street works.

I am told that partnerships are joint and severally liable, so each individual is liable. If that makes sense to the right hon. Member for East Yorkshire (Mr. Knight), he can say ''Thank you'', and we can move on. However, I think that a fuller answer is required, and I shall make sure that he gets it.

John Redwood (Conservative, Wokingham)

I have listened carefully to the Minister, but I have not quite understood how he has dealt with the real points made by my hon. Friend the Member for Christchurch.

Amendment No. 45 was designed to find out why bodies corporate and partnerships should be treated differently under the schedule, and I take that schedule to mean schedule 4A, which is mentioned in subsection (1). I do not believe that that relates to serious offences such as those to do with manslaughter or death. Of course such offences would be handled differently, as they would be if the offences were committed by individuals. The Bill would not allow a fixed penalty notice to be imposed on someone who had driven dangerously and killed somebody, so I did not understand that part of the Minister's reply. The question remains a fair one: why are the offences in that schedule to be treated differently if they are committed by

''bodies corporate and Scottish partnerships''?

My right hon. Friend the Member for East Yorkshire put the point well when he said that there may be little apparent difference, other than a legal one, between a

small body corporate and a typical English partnership, yet it is proposed that they be treated differently. So, I am inclined to vote for amendment No. 45, if my hon. Friend the Member for Christchurch gets permission to and wishes to press it, unless we have a better explanation.

I am also not satisfied with the Minister's response to amendment No. 46. It is much better that Parliament should control what goes into and out of the schedules, as we are seeking to do. It is beholden on the Government to come forward with a definitive list today. The Bill is, after all, building on legislation from 1991, so there has been plenty of operating experience on the issues. Should the legislation, in due course, turn out to be faulty, because of having too many or too few provisions in the schedule, the normal process should be observed to add or remove them. I am not very happy with the proposal in the Bill. So, if my hon. Friend wishes to and has leave to press his amendments to a vote, it would be a good idea for the Committee to support them in default of a more convincing reason from the ministerial Benches as to why the Minister should have the substantial power to play around with the legislation after Parliament has approved it.

Greg Knight (Conservative, East Yorkshire)

I am grateful to the Minister for his reply, but it did not answer my question. I am aware that where partners commit an offence in the name of the partnership, they are jointly and severally liable. What I was asking is, why are they being treated differently, if, as it appears, they are being? In other words, why are the partners likely to get the benefit of a fixed penalty offence and yet, if they decide to incorporate themselves into a company, they will lose the ability to be ticketed in that way?

Christopher Chope (Conservative, Christchurch)

I was hoping that the Minister would respond to the points made by my two right hon. Friends. It is obvious that he has not yet persuaded the Committee on the subject. While my right hon. Friends have been speaking, the Minister has been bombarded with material.

Tony McNulty (Labour, Harrow East)

Just one flimsy piece of paper.

Christopher Chope (Conservative, Christchurch)

I think that the Minister is criticising his officials, which is not very sporting of a Minister, in saying that he has had only one flimsy bit of paper. Whatever is on that paper, I hope that the Minister will share it with the Committee. If that does not persuade us, I would seek your leave, Mr. Beard, to put both amendments Nos. 45 and 46 to the vote.

Tony McNulty (Labour, Harrow East)

I am sorely provoked to get up, not least because the one thing that I was not doing in any shape or form was criticising my officials, and, since I take that point seriously, I ask the hon. Gentleman to withdraw the claim. I do not do that in any shape or form. My criticism is of the hon. Gentleman. Receiving simply one piece of paper does not represent a bombardment.

I agree with the right hon. Member for East Yorkshire, and this is not a criticism of my officials either, but more my attempt to understand the more

arcane definitions of business law, that the reference in the Bill to

''bodies corporate and Scottish partnerships''

is a function of the different legal bases. Scottish partnerships means something clear in a Scottish dimension, and body corporate means something else in the English and Welsh dimension. I am not sure whether body corporate is a generic term that covers all forms of business organisation, so that what the right hon. Gentleman suggests does not prevail, or whether it means narrowly, as the right hon. Gentleman said, public companies. I will endeavour to find that out.

I do not believe that it is appropriate to have no fixed penalty regime, as has been alluded to if not suggested. Nor do I feel that all the offences in the schedule should be part of that regime. In that sense I am disappointed with myself that I have not managed to persuade the whole Committee of my arguments, even if I rather hope that I have at least a goodly part of the Committee with me, and that the hon. Member for Christchurch speaks not for the Committee in the body corporate sense, but for part of it only.

A fixed penalty offences regime is important, because it will speed up the process. Secondly, it is inappropriate to have the body corporate responsible for what are important, but principally noticing offences. None the less, those should not be swept up with section 166, and there should be a distinction between those that are covered by fixed penalty notice, and those that are not. The provision more or less, although not entirely, reflects the gradations to which we changed the levels of offences in the earlier clause. Lastly, Parliament will control any future list of fixed penalty notice offences, as the order adding or subtracting offences from the list would be affirmative and would be debated in Parliament. Where a strategic, broad, overarching legislative framework is put on the face of statute, and there are any number of subsequent statutory instruments, regulations, guidance and everything else, it is important that caveats and processes are put in place to allow Parliament further scrutiny some way down the line, long after the Bill has become an Act. This is not a post-1997 phenomenon, as the 1991 Act clearly shows.

I am told that the 1991 Act does not change the ordinary law of England and Wales in respect of partnerships, bodies corporate or sole traders, and nor does the Bill. I am not pretending that I have a full grasp of corporate law, but again I am not sure that that is entirely what the right hon. Member for East Yorkshire was after, so I shall write to him and the Committee, as fully as I can, to explain the difference and distinction, and quite what is and is not covered by the phrase ''body corporate''.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8

Christopher Chope (Conservative, Christchurch)

Perhaps this is a convenient moment to raise with the Minister some questions about this fixed penalty notice regime. Will he tell us to whom the penalty will be paid, and in what manner? What will the levels of the penalty and the discounted rate be? What use will the street authority be permitted to make of the money collected in penalties? What are the arrangements for undertakers to contest and appeal against the fixed penalty notices?

I understand that the Government are considering the possibility of authorities retaining some or all of the fine income to offset the cost of operating a fixed penalty notice scheme. Is the Minister able to say whether that has received the authority of the Treasury, and if so, what will the terms of the scheme be? We need assurances that the fixed penalty scheme is not going to be a revenue-raising regime akin to what many people think of the safety camera regime.

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

If the hon. Member for Christchurch were to press the clause stand part debate to a Division, I would support him. My reason is that I dislike intensely fixed penalty notices in such cases. When I was involved in business, I was struck by the fact that one often found one was making commercial judgments when dealing with the law. One weighed up the cost of going to law and the cost of settling, and nine times out of 10, irrespective of the merits of the case, one simply settled because it was the cheapest and fastest way out.

The same thing happens with fixed penalties. One looks at what might happen if one chose to go to law

and fight one's case. One may get a criminal record; one may well lose. There might be a 50:50 chance, or even a 40:60 one, of that happening. At the end of the day, one weighs up going through that process against paying a fixed, known amount of money, which has the merit of being a known cost that can be got out of the way, leaving nothing on the criminal record.

In an area such as this, there is an intense temptation for those in a position to issue fixed penalties to do so because it is much easier. We heard this morning how few prosecutions there have been, possibly because of the difficulty of securing a conviction, and because of the efficacy of the fine regime. If a situation arises where all one has to do is write a fixed notice and slap that on the offender, as it were, there will clearly be the possibility to give such notices in the case of many more offences, and I have severe doubts as to whether people in such cases are necessarily guilty of the crime of which they have been charged. I have great concern that that process may lead—unintentionally I am sure—to the fixed penalty regime becoming a revenue-raising mechanism. It is for that reason that I voted aye during the votes on the amendments, and I shall vote no on the clause.

Christopher Chope (Conservative, Christchurch)

I am grateful to the hon. Gentleman, and I look forward to his support in the vote.

Tony McNulty (Labour, Harrow East)

As is clear from the regulatory impact assessment and other matters, details of the fixed penalty notice regime, appeals, fine rates, methods of payment and so on will be made by regulations. A working group of Department for Transport utilities and authorities will consider the matter and make recommendations to Ministers in due course, as I explained in relation to the earlier document that gave us a little road map for proposed regulations, schedules and so on.

We need to prepare the regulations, and work will start as soon as possible, but we want to proceed in a context of agreement, as with other aspects of the Bill. I have some sympathy with all the remarks of the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso), except his conclusion. Within his contribution lies the very reason we want to distinguish between—for want of a better phrase; they are still important—lower offences that will attract the fixed penalty notice regime and more serious offences. That is right and proper. The regulations, which are still to come, will, as the clause states, allow certain offences to be the subject of fixed penalties rather than automatic criminal prosecution. Of course, discussions still need to be carried out with other Departments on where all the moneys will eventually accrue, but I envisage at least an element going to the cost of administration of the fixed penalty regime, although I will probably be berated by another Department for saying so.

I do not accept for one moment that because the fixed penalty is an encumbrance for some people in business—it is self-inflicted if they commit an offence—that all of a sudden every single fixed penalty notice regime that ever existed, from safety cameras all the way through to parking and

incorporating what is contained in the Bill, is somehow a revenue-raising scam. That is not the case for these matters, for speed cameras or for most fixed penalty notices. It is said, albeit very politely—such comments are always couched in phrases such as ''Some may suggest'' or ''There are those who think that''—that speed cameras are merely for raising revenue, but the other side of the equation is not presented. Again, in this case as in others, we are not setting up offences or reinforcing those in the 1991 Act with the hope and prayer that people will commit offences. We would far rather the law was not transgressed and that no fixed penalty notices were issued.

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I agree with the Minister on speed cameras. One virtue of the speed camera is that it provides incontrovertible proof that the offence took place. Consequently, it is extremely unlikely that there will be a miscarriage of justice. However, as I understand it, it is possible with the sort of offences in the Bill that there may be a much more subjective judgment as to whether an offence has taken place—there is far less proof. Therefore, leaving revenue raising completely to one side, my question is whether justice will actually be served, in that people may simply take the pragmatic approach of paying rather than seeking to clear themselves, because it is so much cheaper.

Tony McNulty (Labour, Harrow East)

I accept that, but, in a way, it is a matter for the individuals themselves. I would hope that as a result of our earlier actions in updating the levels of fines, that will not happen when going through the court process, and at least when we are considering them in the context of the regulations.

We must understand that the offences are not simply one-off occasions. I cannot remember the exact figure, but I believe that there are some 1.1 million incursions into our roads and streets every year. In each individual case, people may think, ''I can't be bothered, I might as well just pay the fine'', but if that happens on a recurring basis, the cumulative fixed penalty notices and fines or levies will mount up. The measure is not about putting impediments in front of people but about encouraging good practice and the efficient use of our streets. As I said, most of the offences in this category will be more on the noticing, co-ordination and liaison side, rather than for the far more serious transgressions that will be taken through the courts.

We think that this is the appropriate way to take things forward. There is a series of offences involving due notice given for various things. It will be fairly clear that the operator, for want of a better word, has or has not given due notice as required under the noticing offences. It is not as though one needs a digital camera or CCTV set up over every single incursion into the street to know whether the offences listed in the relevant schedule have been breached. Again, that reinforces why we want to keep very distinct those that are under fixed penalty notice and those that are left to the court. That is why the distinction, which we have discussed, is there. I ask the

hon. Member for Caithness, Sutherland and Easter Ross not to forge an unholy alliance with the official Opposition, but, in true Liberal Democrat tradition—

Greg Knight (Conservative, East Yorkshire)

To make a Lib-Lab pact?

Tony McNulty (Labour, Harrow East)

No. The right hon. Gentleman should wait. The hon. Member for Caithness, Sutherland and Easter Ross should either sit on his hands in true Liberal Democrat tradition, or vote with the Government. There are options.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.

Schedule 2 - Schedule 4A to the New Roads and

Christopher Chope (Conservative, Christchurch)

I ask the Minister for clarification. One distinction between schedules 1 and 2 is that in schedule 1 there are offences with a maximum fine at level five, whereas the first three offences specified in schedule 2 carry a maximum fine at only level four. Can the Minister confirm that the other three offences in schedule 2 at the top of page 59 also carry a maximum penalty at level four rather than level five?

Tony McNulty (Labour, Harrow East)

As far as I am aware and unless I hear otherwise, they do. During our debate this morning I said that, broadly, those offences that now attract level four fines are the noticing type of offences, as can be seen from much of schedule 2, but those that attract level five fines are more serious and require more than simply just noticing. The first three offences covered by the schedule, as the hon. Gentleman rightly said, concern advance notice of certain works, notice of starting date and notice of emergency works. The subsequent offences involve offences under sections 70(6), 74(7B) and 74A(11) of the 1991 Act and are subject to level four penalties, which maintains the split between important but less serious offences—less serious only in terms of the fine maximums they attract—and the others. All the offences in schedule 2 will attract level four fines, as the hon. Member for Christchurch suggested. I am glad that he allowed me to make that point. I commend the schedule to the Committee.

Question put, That this schedule be the Second schedule to the Bill:—

The Committee divided: Ayes 8, Noes 5.

Schedule 3 - Schedule 4B to the New Roads and

Greg Knight (Conservative, East Yorkshire)

I seek information from the Minister on the schedule. Paragraphs 4(2) and 5(1) refer to the penalty period and to

''the day on which the notice is given.''

When the Minister draws up the regulations or the guidelines, will he clarify what the words ''notice is given'' mean? Do they mean the date when the notice is issued or the date when the notice is received, or deemed to have been received, by the person alleged to have committed an offence? I hope that it means the latter if the notice is not served personally, because if the notice is issued on, say, Maundy Thursday, the person to whom it is addressed may not receive it until well over a week later because of the Easter holiday.

That takes me to paragraph 6, which refers to a person being served with a fixed penalty notice. What in the regulations or guidance will the Minister say is service? When I had my law practice, we operated under the strict rule that if we were acting on behalf of a plaintiff and were instructed to serve a writ on a defendant, we had to serve the writ. That meant the solicitor or his articled clerk going out, usually at teatime, to the defendant's address and knocking on his door. If his wife answered the door, the solicitor had to ask to see the defendant and, as soon as he saw him, physically touch him with the document. What the defendant then did with the document did not matter: he could throw it away, throw it at the person who had served it or put it under the windscreen wiper of his car. He had been served. The solicitor had touched him with the document and had therefore given him the opportunity to respond to it.

Does service mean that in the schedule? I am becoming increasingly concerned that these days a growing number of bodies seem to think that, if a document is put in a post box with a postage stamp affixed to it, that is service and it is deemed to be operative from the next day. For the last three weeks, I have sent post to my constituents in House of Commons envelopes with a first-class stamp, and they have not received it the following day. In some

cases, the post has taken three days to arrive. I cannot see how, when one is alleging that someone has committed an offence, one can simply put the fixed penalty ticket in a letter box and assume that the person receives it the following day: it may take two or three days to arrive. Proof of service should be a requirement of the person issuing the ticket.

One cannot even rely on Departments if one is seeking to serve something through the post. A few years back, I needed to have a motor vehicle document altered, so I posted it to the DVLA in Nottingham, to the address in the phone book. Having heard nothing for five weeks, I telephoned and was told, ''We've left that office. We now occupy new premises.'' I said, ''Surely you've got your post on divert.'' I should have thought that a Department of government would at least have done that, but it had not bothered to do so. The document was lost, and I had to make a declaration. I do not want to hear the Minister say that partnerships and those doing this sort of work should make sure that they read their post every day, because Departments do not do it and do not even notify the public when they change their address.

Christopher Chope (Conservative, Christchurch)

I also want to take the opportunity to ask the Minister a few questions about the schedule. First, paragraph 6(5) says:

''In proceedings for the offence a certificate which—

(a) purports to be signed by or on behalf of the person having responsibility for the financial affairs of the street authority''.

Will the Minister explain why it does not have to be signed by that person? That seems a very odd state of affairs. Will he also comment on the suggestion that an authority that imposes a notice, which it subsequently withdraws, should be liable for compensation for the costs and inconvenience incurred as a result of the false issue of the notice? Will he comment on paragraph 8 that refers to the Secretary of State being able,

''with the consent of the Treasury'',

to make regulations about the fixed penalties? Will he explain why it is necessary for the Treasury to be party to that?

Will he provide some idea of the circumstances in which he expects fixed penalty notices not to be given? Will he also provide an idea of the periods within which it is reasonable for those notices to be given and to be paid? Paragraph 4(2) states a ''period of 29 days'', which is a pretty tight procedure for a large organisation to pay the penalty notice. If the notice is contested, the 29 days continue to run, which would inhibit the statutory undertaker from querying the fairness of its issue.

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I ask one question of the Minister, which relates to paragraph 7 and the power to withdraw notices. It gives the street authority the power to withdraw notices if it thinks that it

''ought not to have been given''.

Paragraph 7(3) states:

''The street authority shall consider any representations made by or on behalf of the recipient of a fixed penalty notice and decide in all circumstances whether to withdraw the notice.''

Will there be any form of independent adjudication, which I understand to be the case in most fixed penalty notice regimes?

John Redwood (Conservative, Wokingham)

I share the worries of my right hon. Friend the Member for East Yorkshire and others who think that we would benefit from greater clarity. I would add to the worries that my right hon. Friend expressed the possibility that a company or an individual may have moved address between the time that the authority first researched the alleged infringement and the delivery of the ticket for the offence. Forwarding arrangements do not always work well. Would it be regarded as good service to have delivered the fixed penalty notice to the old address of the individual or company when they may have been genuinely unaware of the alleged offence and they did not get the document forwarded through the post?

We also need to know what happens in the event of an individual receiving a ticket and not paying it within the specified time. How much grace will they be given, given the vagaries of the postal system and the difficulty of sometimes getting the requisite amount of money back? What action will the Government take if they feel that the delay by the person in receipt of the ticket has been unreasonable? We need to understand that in the modern world the post can go astray, people may have moved address, there may be difficulties in due service and that there may not have been a delay by the person in receipt of the ticket; it may have been the delay or non-arrival of the fixed penalty notice.

The London authorities have found many such cases with the congestion charge, in which there is an accumulating penalty on those who do not pay. It seems unfair if the individual is unaware that they infringed the congestion charge zone and they have not received the ticket at the address at which they normally reside in a timely way that enables them to respond and pay. We should learn from those experiences of difficulty in compliance, rather than non-compliance, which seem to be emerging in many of the fixed penalty regimes, and we should try to do rather better with this one. We want payments due to be paid in a timely way, but we also want the person targeted for the penalty payment to know in good time and to have the proper amount of time to respond or appeal if they think that the penalty is unreasonable. I am not sure that that is embedded in the schedule. It may need a little work to reach that happy state. I would have thought that the Minister would want that as much I do.

Tony McNulty (Labour, Harrow East)

I am grateful to all hon. Members for their contributions. They raise fair points that, ironically or otherwise, reinforce what I was saying earlier about there needing to be a hierarchy between the less serious—if I can put it in those terms—offences and the more serious offences. We must bear it in mind that we are talking about six offences under new schedule 4A to the 1991 Act that are all about active works that are taking place at the time. Let me remind the Committee that we are talking about advance notice of certain works; notice of starting

dates, emergency works and completion of reinstatement; the

''charge for occupation of the highway where works unreasonably delayed'';

and the

''charge determined by reference to duration of works''.

We are talking about those six offences to begin with, and no more.

On the point about adjudication and the subsequent appeal, in the first instance, I would request that the working party look at that matter. Those directly involved at both ends—in implementing the process and in other respects—will make recommendations to us, which will be reflected in regulations. The details of the regime, appeals, fine rates and methods of payment will all be reflected in the regulations, through the working party.

Greg Knight (Conservative, East Yorkshire)

Is it one option to include someone who represents business—the small business man likely to be affected—on the working party?

Tony McNulty (Labour, Harrow East)

We may consider that, although I would rather stick with the working party that exists. I will explore matters and get back to the right hon. Gentleman and his colleagues. If there is a way of enabling Committee members to peruse the report from the working party and subsequent regulations prior to the formal parliamentary process, I am more than happy to explore it, because I would value that.

We need to ensure that we include an array of people who reflect the utilities industry—if that is the word—at its broadest. As my hon. Friend the Member for Milton Keynes, North-East (Brian White) said some time ago—it feels like months ago—there are very small entrepreneur outfits that are ploughing on with broadband and the high IT end of street works. We need to ensure that that is reflected, and I will try to do so.

I would value the input of the Committee at the appropriate stage during the deliberations. That is entirely right and will make for a more informed debate when we discuss the regulations. It would be more than appropriate, given the rather Christmas-tree nature of the Bill when it comes to regulations and so on.

The rules of service are as in section 97 of the 1991 Act. I know that it is not terribly helpful to go back to that section, but if we look behind it, it is clear what the rules of service are. The right hon. Member for East Yorkshire made a point about which date should prevail—when the notice is sent, or when it is received. It is the latter: when the notice is received.

In the broader context, were it not for advances in technology, some of the points made would have merit. Given that we are talking about live works and that the transgressions are principally about noticing, it would be extremely rare for a utility company—small or large—to move office for the duration of whatever street work is required. In the broader sense, I take the point about the vagaries of the postal system.

John Mann (Labour, Bassetlaw)

May I ask a small question of clarification? Will any of the sanctions

apply to a local authority that, for example, fails to give due notice?

Tony McNulty (Labour, Harrow East)

It will not, in terms of the fixed penalty notice, because they will not be serving fixed penalty notices on themselves. We have entertained that debate at other times. Throughout the Bill, the same duties are being afforded to local authorities to comply with as are afforded to utilities and other contractors who engage in street works, but through different routes. We will not have a stage at which one part of the local authority will impose a fixed penalty notice on another.

John Redwood (Conservative, Wokingham)

I can give the Minister a personal example of the mistakes that happen. My house in London is close to a small office building in the adjacent street. The office put in for a planning application, which was granted, for major refurbishment works. The local authority mistook the address and put mine on all the documentation. I received all the bills and notices for the contractor, which I could have done without. I am pleased to say that I managed to duly serve them on the contractor, but had it been during the long summer break, when I am away, the documents would have sat there for a long time with no action taken. I do not know whether I would have been in more trouble or the company, but I hope that it would have been the company.

Tony McNulty (Labour, Harrow East)

I take that point. Mistakes will invariably be made. That will be a matter for the adjudication process that the working group comes up with. Where it is so clear and stark that there has been an error in that regard, with the wrong company served or whatever, it is appropriate that that is duly recognised.

The hon. Member for Christchurch mentioned the phrase ''purports to be signed''. I am told that it is standard legalistic phraseology and means that documents can be signed by an authorised person on behalf of the local authorities. Clearly, the London borough of Westminster does not sign documents itself, but needs an authorised person to sign on its behalf. I am told that ''purported to'' means that and simply that. Like a lot of little buzz words that, to me, do not resemble English, let alone anything else, there is a logic to that in the legalistic world haunted by, among others, the right hon. Member for East Yorkshire.

All the points made are important and I understand them. I am not trying to underplay the notion of mistakes, but given that we are talking about six offences that are principally noticing offences for live works, rather than something that is being chased up three or four years later, that the schedule as laid out is reasonable, and makes reasonable amendments to the 1991 Act. I commend the schedule to the Committee.

Question put, That this schedule be the Third schedule to the Bill:—

The Committee divided: Ayes 8, Noes 5.

Clause 41 - Duty of street authority to

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 48, in

page 19, line 28, leave out 'the execution of works in the street or'.

Christopher Chope (Conservative, Christchurch)

This is a probing amendment, which is intended to ascertain from the Minister why there is an exception that excludes the execution of works in the street. That does not seem very sensible, but I am sure that there must be a proper explanation for it, and I ask the Minister to share it with the Committee.

Tony McNulty (Labour, Harrow East)

The amendment would change the clause, because of what appears to be a defect, by removing the exemption of the execution of works from the definition of ''relevant activities''. However, I am assured that there is no need to do that. The clause extends the scope of section 59 of the 1991 Act to include ''relevant activities'', which would cover the placement of skips and other such activities that do not qualify as works. In defining the term, it exempts the execution of works in the street as well as use by traffic.

Hon. Members will be glad to know that the only reason that works are exempted here is that they are already covered in section 59(1) of the 1991 Act. I can understand how the provision looked like a flaw or a defect, but the matter is already covered by section 59(1), which refers to

''general duty of street authority to co-ordinate works''.

Although I understand where the hon. Gentleman is coming from—it is certainly how I would have read the clause at first—I ask him to withdraw the amendment.

Christopher Chope (Conservative, Christchurch)

I am grateful to the Minister for that explanation. Will he explain why section 59(1) covers only works carried out by bodies other than the street authority or its contractors? If that is so, my amendment would create more of a level playing field so that the provision would apply to works carried out by those other than contractors or by the street authority.

Tony McNulty (Labour, Harrow East)

As I was saying to my hon. Friend the Member for Bassetlaw (John Mann) earlier, there is a level playing field. It does not appear in every clause but, through the statutory duty or otherwise, it is covered. In this case section 59(1) covers co-ordination of utilities and local authority works. If one looks further on in the clause, it also covers the co-ordination of other street authorities where working on a street for which one authority is responsible affects streets for which other authorities are responsible.

Christopher Chope (Conservative, Christchurch)

In the light of the Minister's helpful explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42 - Directions relating to

Brian White (Labour, North East Milton Keynes)

I beg to move amendment No. 197, in

page 20, leave out lines 16 to 18 and insert—

' ''(3A) An undertaker shall be taken not to have failed to fulfil any statutory or contractual duty to afford a supply or service if, or to the extent that, his failure is attributable to a direction under this section''.'.

Nigel Beard (Labour, Bexleyheath and Crayford)

With this it will be convenient to discuss amendment No. 204, in

page 20, line 18, at beginning insert 'solely'.

Brian White (Labour, North East Milton Keynes)

I apologise to my hon. Friend the Minister for reading John Grisham at Christmas and being tempted down the route of examining contractual issues. Having had discussions with a number of companies about broadband, one of the things that they pointed out about the Bill is that there is no protection for contractual work to provide and maintain a service. Many of the utility companies, particularly the newer ones, have contracts with customers to supply services on strict delivery time scales with penalties applying, and so on. The concern is where either there are long-term contracts that have already been entered into, or where there are penalties involved, and whether the operator of the scheme will unduly enforce penalties. In other words, I am seeking an understanding from my hon. Friend that the operation of permit schemes, or of various other statutory schemes, will not result in penalties for operating companies arising from circumstances that are outside of their control. If the problem is their fault, that is fine—they have control and can take measures to avoid any problems—but if the problem emerges as a direct result of factors outside the company's control, they might feel that there is an issue that my hon. Friend could address. I will not push the amendment to a vote, but I would seek my hon. Friend's assurances on these points.

David Wilshire (Conservative, Spelthorne)

I shall be brief, Mr. Beard. Amendment No. 204 seeks to insert, in subsection (4) on page 20, the word ''solely'', so that the provision reads that

''an undertaker shall be taken not to have failed to fulfil any statutory duty to afford a supply or service if, or to the extent that, his failure is solely attributable to a direction under this section.''

If one is saying that there is a new power to make directions, and that that has an effect upon an outcome, that is what it should be. It should not be partially that, and partially something else. I would be interested in the Minister's comments.

John Mann (Labour, Bassetlaw)

I have a slight concern, which relates to the intervention that I made on the Minister a few minutes ago, on the interrelationship between the local authority and the private contractor. My experience of the appropriate local authorities—indeed, it is the case with my own local authority in recent weeks—is that they are not necessarily too coherent in their own planning. One of the pressures is the expenditure of end-of-year budgets, which could lead to large amounts of street works being carried out by them in February and March. There is a danger that they may, on occasion, be tempted to overuse their position in being able to direct private operators who are carrying out street works. This danger of arbitrary decision-making by the local authority needs to be considered, especially as there will be no sanctions on the local authority. I would prefer to see the Minister have some sanctioning powers.

With public good will and business efficiency at stake when dealing with the movement of traffic, examples such as the closing of one of the major artery lanes in Worksop town centre as a result of an experiment undertaken by the local authority can have significant knock-on effects, and I would not want to be in a position whereby, having done that, the local authority attempts to use its powers to pressure any of the utilities in any way. I seek assurance from the Minister that those powers would not be there with this or any other clause.

The other example I could cite is much more recent. It is the removal of the road humps in Manton, a long-overdue process. If we were to consider notification of start dates and end dates, change to notification at the last minute, and failure to notify the general public or indeed anybody else of what was going on, it would be a classic case of a local authority trying to balance its available direct labour and sub-contractors to fit in with other priorities and to change what it was doing. That is precisely the problem that seems to have bedevilled private operators, and it may have led to the introduction of the Bill in the first place.

I seek an assurance that having wisely determined, as the example of the road humps illustrates, to execute works on the street, local authorities would not have any powers that could, by default, lead them to be prejudiced in their thinking over other powers that might be available.

Tony McNulty (Labour, Harrow East)

I assure my hon. Friend the Member for Bassetlaw that the key difference between the current positions that he describes and the world as it will be if the Bill prevails and becomes an Act is that a local authority would not act in such a fashion if that impinged on what clause 16 provides about network management duty. At present, local authorities do not need to ensure, although many do, that the execution of their own works is carried out effectively and efficiently in the way outlined by that clause.

I shall disappoint my hon. Friend the Member for Milton Keynes, North-East, but not because I want to berate him for reading John Grisham. I quite enjoy John Grisham, whose work is far better than some of the other lighter-weight literature that one reads over holiday periods, especially from disgraced former Tory peers. It is not for the Bill to determine or change in any way the body of law relating to tort or contract law, so I cannot change the Bill or make changes to contract law to reflect what is in the Bill. It happens the other way round. It is up to those who enter into commercial or private street works contracts to reflect the changes in legislation that the enactment of the Bill will bring about. It is not for the Bill to take account of contractual relationships entered into by utilities or others.

Brian White (Labour, North East Milton Keynes)

The Government wish to extend broadband throughout the country, and a key feature of that is the speed with which companies can respond to their customers. One fear is that a knock-on effect of the clause could be to put a brake on that and hold companies back. It is to prevent that that I have raised the issue with my hon. Friend the Minister.

Tony McNulty (Labour, Harrow East)

I fully understand why the issue was raised. It is important that it is on the record, if only to inform the working group's subsequent discussion on what we want, which is the most effective and speedy implementation of broadband. However, it is not our duty to allude in the Bill to commercial contractual relationships entered into subsequent to the Bill. The Bill prevails, period. Therefore, anyone entering into a subsequent contractual relationship will have to accept the full measure of whatever powers to direct the Bill contains, when it is enacted.

Andrew Miller (Labour, Ellesmere Port and Neston)

I follow the logic of my hon. Friend's position. Will he ensure that the working group examines the circumstances that must prevail in a number of major contracts currently in force? How will established contracts between, for example, other Government Departments and the private sector be treated in the context of the Bill, given the observations of my hon. Friend the Member for Milton Keynes, North-East?

Tony McNulty (Labour, Harrow East)

I agree with that to the extent that my hon. Friend's points are all the more important in respect of the transition period between the Bill becoming law and the regulations taking effect, and the tail end of any contracts that have been entered into. I fully understand the point, and we will ensure that it is considered. As I said earlier, we will try to have the widest possible representation on the working party. Unless I am mistaken, the UK Competitive Telecommunications Association, which represents many of the small telecom utilities, will be on the working group. It can deliberate on precisely these important matters when it offers input to the working group. This is almost a Grishamesque comment: it is not for me or the Bill to reflect or change contract law as part of these proceedings. As appropriate, contract

law and contracts will have to reflect the Bill as another part of the body statute if it is enacted.

It is also important to note that other parts of the Bill make clear the distinction between statutory duties and contractual duties for some utilities. Matters such as duties on undertakers under the Gas Act 1986 and provision for reflecting the importance of statutory duties if a direction can impact on them are covered in the Bill. It reflects the regime already in place in the 1991 Act, so I need to make that distinction between statutory and contractual duties.

Almost the same point applies to amendment No. 204. Proposed new subsection (3A), which is inserted by clause 42, deals with a situation in which it is principally the direction or order that prevents an undertaker from carrying out its statutory duties. That is covered in the Bill, so the amendment is not needed.

The amendment seeks to provide that an undertaker

''shall be taken not to have failed to fulfil any statutory duty to afford a supply or service''

if its failure is solely attributable to a direction. However, proposed new subsection (3A) already says clearly that the undertaker

''shall be taken not to have failed to fulfil any statutory duty . . . to the extent''

that the failure is attributable to the direction. That allows the extent to which the direction was responsible to be taken fully into account as appropriate, in accordance with the circumstances of the case, which I believe deals with the important thrust of the amendment. There may be reasons other than the direction for an undertaker failing to supply a service, but the clause deals with my hon. Friend's point, which is a fair one, in that the extent to which an undertaker is unable to fulfil the statutory duty principally because of the direction is taken into account in clause 42. With all those assurances, I ask my hon. Friend to withdraw the amendment.

Brian White (Labour, North East Milton Keynes)

It was never my intention in introducing the amendment to create more work for contract lawyers by rewriting contract law.

Greg Knight (Conservative, East Yorkshire)

Shame.

Brian White (Labour, North East Milton Keynes)

They have enough as it is.

I welcome the Minister's comments, particularly about the need to keep British industry competitive, and the way that he is using the working group to try to resolve issues that, as he accepts, are valid and need to be handled sensitively in determining the way in which this section operates. I shall reflect on what he has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Christopher Chope (Conservative, Christchurch)

Perhaps the Minister can help me with a point that has been raised by someone who has written to me about clause 42(3), which specifies serious disruption to traffic as the ground on which the local authority may intervene and give directions about the timing of street works. That seems not to take into

account factors such as the convenience of residents living adjacent to the road. The directions could require the work to be carried out not during the working day but at night, but the noise of pneumatic drills would be extremely inconvenient for residents living in the street. It does not usually matter if work is carried out at night on the motorway system, because any houses are further away from the work than they would be elsewhere.

Another point concerns the economic impact of work on businesses. At present, it seems that the provision is tilted only towards the criterion of whether there will be serious disruption to traffic. I should be grateful if the Minister would expand on the reason for that. The clause significantly widens the existing provision, which provides only for the time of day to be specified, not the days.

Another issue is whether local authorities will be able to act unreasonably and make the contractor work on days that are not continuous or on specific days of the week, which might mean that the work force and equipment would have to be removed or laid off on other days. To what extent can the Minister allay these concerns, some of which were also raised by the hon. Member for Milton Keynes, North-East when we discussed his amendment?

Tony McNulty (Labour, Harrow East)

I am slightly perplexed and I am sorry if I am causing confusion where there is none. The main thrust of the clause is precisely to do what, in the first example, the hon. Gentleman was lamenting was not the case at present. As he rightly said, section 56 of the 1991 Act, while able to prescribe time, cannot prescribe day. We are seeking to widen that provision as broadly as possible to include many of the factors he suggested, so that, holidays and weekends can be included, and street works do not take place, for example, close to Chelsea football club or on cup final day at Wembly, when it is finished, to avoid serious disruption.

Greg Knight (Conservative, East Yorkshire)

Does the Minister agree with my interpretation of the measure that day includes night?

Tony McNulty (Labour, Harrow East)

Absolutely. One thing that we are not doing is taking out the one piece of substance in the 1991 Act, which was to control timing during the 24-hour period that we colloquially call a day, but also includes night. We are not setting that power aside and replacing it with the powers in the Bill; we are simply broadening it, but that of itself is not sufficient. Weekends and holidays must be incorporated. Sometimes, the most efficient time to carry out street works is at night if that minimises disruption and, if appropriate, the chance of offending the local populace.

The detailed arrangements of how the directions will unfold will be set out in regulations and there will be consultation.

Christopher Chope (Conservative, Christchurch)

The Minister may have misunderstood the point that I am trying to make. My fears may be groundless, but it seems that the power to direct can be triggered only if the local authority believes that there is likely to be disruption to traffic if it is not triggered. I am asking about the situation when there may not be any threat of disruption to traffic, but there may be

substantial annoyance and inconvenience to local residents or economic loss to local businesses. I want the Minister to spell out why the provision it is confined to the criterion of serious disruption to traffic.

Tony McNulty (Labour, Harrow East)

The provision is confined in part to reflect the starting point of section 46 in the principal Act, and in part because we are discussing legislation that refers to traffic management and its consequences. It must be seen in the context of street works, and they must be seen in the context of the new network management duties. It is entirely proper, and not necessarily resulting from the clause or the Bill, that local authorities give due regard to noise and other factors to which the hon. Gentleman refers.

Principally, the causes of disruption by street works with which we are most concerned are set out in paragraphs (a) and (b). The paragraphs state that the works

(a) ''are likely to cause serious disruption to traffic, and'',—

not or—

(b) ''that the disruption would be avoided or reduced if the works were to continue to be carried out only at certain times or on certain days (or at certain times on certain days)''.

It is entirely appropriate that local authorities can and should take account of all those other factors. Our principal concern is with traffic management, the disruption caused to the flow of traffic and its impact on the overall network management duty.

I am not undermining what the hon. Gentleman says about the other elements and circumstances. However, if work is wholly disruptive on the ground of noise to the point of being not only a nuisance, but worse, it should be picked up by environmental health, health and safety and other authorities.

In our goldfish bowl, it is easy to see the Bill existing in isolation, rather than in the wider context of all the other duties that local authorities undertake. The Bill does not say, ''Do not do it when there are football matches at a football ground, or any other sporting activity at a sporting location.'' Clearly, they cause significant traffic disruption in the first place, which would be reinforced by street works on Fulham broadway when Chelsea is playing at home and—who knows, even rarer—fielding an English player. I assure the hon. Gentleman that the Bill covers many of his suggestions; and what it does not cover is covered elsewhere in legislation.

Importantly, the Bill shifts from simply timing, which is already in the 1991 Act, to days, which allows greater flexibility in direction. It takes account of the wider circumstances that are pervading the local network at that particular time.

Question put and agreed to.

Clause 42 ordered to stand part of the Bill.

Clause 43 - Directions as to placing of apparatus

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 49, in

page 20, line 39, at end insert—

'(ba) no additional cost would be incurred by the undertaker if the apparatus were to be placed in Street B'.

Nigel Beard (Labour, Bexleyheath and Crayford)

With this it will be convenient to discuss the following amendments:

No. 205, in

page 21, line 1, leave out 'may' and insert 'must'.

No. 206, in

page 21, line 9, at beginning insert 'solely'.

No. 207, in

page 21, line 10, leave out 'may' and insert 'must'.

Christopher Chope (Conservative, Christchurch)

The amendment is an attempt to include a provision in the Bill that would help statutory undertakers. It would restrict the power of the traffic authority to direct the placing of apparatus if it adds cost to the undertaking. It is a reasonable amendment. Why should statutory undertakers have to pay a substantial penalty because the highway or street authority thinks that the apparatus should be placed somewhere else? Statutory undertakers do not dig up the road, lay cables or pipes where there is no need for them to do so. They certainly do not wish to lay pipes over longer distances and incur substantial additional costs because the local authority says that they should. The amendment would restrict the local authority's power to give directions when the effect of doing so would add significantly to the statutory undertaker's costs.

John Mann (Labour, Bassetlaw)

I shall oppose the amendment and support the clause by dint of an example. I ask my hon. Friend the Minister to confirm that the example is relevant, or I may have to eat my words.

The example that I cite is that of Wood street in Worksop.

David Wright (Labour, Telford)

Warsaw?

John Mann (Labour, Bassetlaw)

Wood street has been closed for 20 years. It is in a major renovation area that has received significant funding from the Office of the Deputy Prime Minister for neighbourhood renewal, and the local population would like it to be opened. The money is available to open Wood street, much to the local population's delight, but only after the intervention of my good self, because of the problems in the intervening 20 years of the utilities digging holes and putting their apparatus in the middle of what was, is and will be Wood street.

Some of them—for example, BT—were more than helpful in reducing their rather high price to a much lower and more appropriate price to remove their apparatus. The electricity supply companies were more than happy to remove their apparatus, taking it off Wood street and putting it on to adjoining land, so that there will be no further complications when Wood street, which forms a major junction with the A60, is reopened.

However, NTL was less helpful. Indeed, it was reticent to admit that it had apparatus in Wood street. It could not identify exactly where it was, although it

was clear to anyone walking across Wood street where it was—indeed, its initials were imprinted on the apparatus—nor could it give a price for removing the apparatus that it claimed was not there, in spite of the fact that everyone else knew that it was, because the town hall is on the corner of Wood street and uses the NTL facility for its internet access. It is a prima facie case and a good example of a street where the powers exist to enable coherent planning, for which the operator should pay the cost.

I seek my hon. Friend's confirmation of the relevance of my comments to the clause.

Tony McNulty (Labour, Harrow East)

My hon. Friend made some interesting points about Wood street in what one of my colleagues unkindly said was Warsaw, and we do not do Poland. My fellow Under-Secretary, my hon. Friend the Member for Plymouth, Devonport (Mr. Jamieson), asked if he meant Walsall in the west midlands, and my hon. Friend the Member for Telford (David Wright) said Warsaw. I fully appreciate that some people do not say the ''k'' in Worksop.

I am sad to say that everything that my hon. Friend the Member for Bassetlaw said is irrelevant to the clause, which refers specifically to new apparatus. However, his points are pertinent to the Bill and are well made in that regard.

As the hon. Member for Christchurch says, amendment No. 49 qualifies the highway authority's power to direct an undertaker not to carry out work in a certain street unless following an alternative route would not impose any additional cost on the undertaker. In part, I accept the points that the hon. Gentleman is making. It goes without saying that most utility works need to take place in a certain location, especially when they are to maintain existing apparatus. However, when new apparatus is being installed, there may sometimes be several different routes that could be followed, and following one of those routes might cause much more disruption than following another. In such a case, we believe that it would be sensible to allow an authority to direct the undertaker not to follow the most disruptive of those routes.

There is no inherent reason why following an alternative route would impose greater costs on utilities. It would depend on the circumstances of each case. There might be greater costs, but they are not inherent. It must be borne in mind that following the alternative route should cause less disruption and hence mean lower costs for road users, other businesses and perhaps local residents. Against that, I accept that it would not be reasonable to impose significant extra costs on those carrying out the works. Clearly, a proper balance needs to be struck when setting out the detailed arrangements for the powers in guidance and regulations. When consulting authorities and utilities on the matter, we will want to consider costs and the question of how undertakers could appeal or seek adjudication in the case of directions that they perceive to be unjust.

With the introduction of new apparatus, we can see circumstances in which there will be a range of

options. Very often, of course, the location will be almost pre-determined.

John Mann (Labour, Bassetlaw)

The Minister generously said that my case study was irrelevant. Having reread the clause, I think that he is wrong about that. I shall give a separate example. If there were a new housing development that had planning consent to expand, would the powers and the definition of ''likely to cause disruption'' relate to future developments rather than to the existing infrastructure? That is the point that I was trying to make—perhaps rather badly—in relation to Walsall. In other words, is a future or potential use of a piece of land sufficient for the purposes of the criteria? Or could a utility dump its apparatus in what would become, under the local plan, the entrance to a brand new estate?

Tony McNulty (Labour, Harrow East)

I take the point. I think that the answer is that as and when what currently exists underneath Wood street in Walsall becomes an impediment to the introduction of new apparatus, the provisions will apply. We cannot legislate for something that may happen some time down the line in those local circumstances. Given the gateway nature, as my hon. Friend described it, of Wood street, it may be appropriate to lay a central core of new apparatus, and have bits leading off to the new development. If the underlying apparatus is an impediment to that, or if we are talking about the least disruptive or more disruptive route, his point has a bearing. In the broader sense, the points that he made about Wood street are entirely appropriate to the Bill; it is just that talking about the existence of old apparatus underneath the ground is not germane to the clause, which refers specifically to new apparatus.

John Mann (Labour, Bassetlaw)

If the example involved the provision of gas to an area and there were two options available to a local authority, one of which fitted with its local plan and involved routing gas supplies so that they could be expanded to a new estate—I have a specific example in my area in mind—would the clause give the authority the power to instruct the utility to put the gas supply in place A rather than place B solely on the grounds of the potential for future development?

Tony McNulty (Labour, Harrow East)

The authority would certainly be in a far stronger position when it came to indicating that that is what it would like to see prevail. However, the existence of such proposed developments in the local plan—they would therefore come under planning law—might not be enough in itself. The clause is about saying that the least disruptive route for new apparatus—and it may well be because it is in the local plan and is implied new development—will prevail, strengthened by the local plan. However, there could then be a clash between the Bill, when enacted, and planning legislation. The existence in the plan of some potential future development would not of itself be enough, but it may well come into play if it is—as my hon. Friend describes—the least disruptive and most sensible way to put the new apparatus in place.

Greg Knight (Conservative, East Yorkshire)

Is not the hon. Member for Bassetlaw making rather heavy weather of this? I do not think that he has adduced any argument against the amendment proposed by my hon. Friend the Member for Christchurch. His difficulty appears to

be with a company called NTL, which denied that it had property in a particular street. As, under our law, one cannot be convicted of stealing, or causing criminal damage to property that is abandoned, why does the hon. Gentleman not lead a resident's revolt, take over the property owned by NTL, and destroy it?

Tony McNulty (Labour, Harrow East)

That contribution clearly shows the value of having lawyers on our Committees. It is an interesting point, but none the less, what my hon. Friend the Member for Bassetlaw says is important, certainly in local terms. Where the right hon. Member for East Yorkshire is wrong is that it must be the case that a local authority can direct, when a utility insists on taking the most disruptive route for the laying of new apparatus. I am sure that we will reach a position in the regulations where some process is established whereby there can be further discussion on the detail of that, but as we would all agree, in most circumstances there will be a direct route, and it will be clear that there is only that route and no other. However, there will be circumstances where there is a range of options for the laying of apparatus, and it must be appropriate for the local authority to be able to serve direction where the most disruptive avenue is chosen.

As for amendments Nos. 205 and 207, have we not been there? We are talking about ''may'' versus ''must'', and the points that I made earlier remain valid. In terms of the law, if we use ''must'' we will not issue regulations or guidance until everything possible is included in the guidance. ''May'' will give us flexibility to come to some broad agreement on what all sides concur is important. The current ''Code of practice for the co-ordination of street works and works for road purposes'' gives guidance on the existing power for authorities to direct utilities as to when they can carry out works—[Interruption.] I thought I heard the Committee leaving then, until I looked up. We envisage expanding the code to give further guidance on the use of the power to give directions in relation to both the timing and locations of works.

We also expect to issue regulations covering appeal arrangements, as the hon. Member for Caithness, Sutherland and Easter Ross suggested, after consulting authorities and utilities. Having said that, we still feel that it is sensible to retain some flexibility, leading us to have ''may'' rather than ''must''.

We will be bringing forward an amendment in the form of new clause 11, after part 7 of the Bill, which will allow the Secretary of State to issue a code of practice covering the inspection of utilities' street works to make sure that they are carried out properly, and highway authorities will have to take account of that. I wanted to flag that up for the Committee as this is the appropriate point in the Bill to do so, although we will return to the matter when we come to new clause 11.

Christopher Chope (Conservative, Christchurch)

When will that be?

Tony McNulty (Labour, Harrow East)

After we have considered part 7. It is the only Government new clause, and is already tabled.

Christopher Chope (Conservative, Christchurch)

The Minister has misunderstood my question. I was asking when the guidance will be issued, not when will we be debating the new clause.

Tony McNulty (Labour, Harrow East)

The guidance will be issued in due course. We will certainly not issue guidance before we have secured the new clause that is relevant to it. I do apologise. I did seriously think that the hon. Gentleman thought that the new clause was not yet published and was asking when it would be debated. I apologise for that.

Amendment No. 206 would provide that an undertaker should not be taken to have failed to fulfil a statutory duty to supply a service if that failure is solely attributable to a direction relating to the place and apparatus. We discussed that under amendment No. 204. The arguments that were advanced did not give me any reason not to resist the amendment, and the same situation prevails in relation to amendment No. 206. In the light of that serious debate, I ask that the amendment be withdrawn.

Christopher Chope (Conservative, Christchurch)

On that basis, and given that we shall have time to debate new clause 11 in due course, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.

Clause 44 - The Street works register

Brian White (Labour, North East Milton Keynes)

I want briefly to bring a point to the Minister's attention. One of the concerns that a number of utilities have with the register relates to road works and the Highways Agency. My hon. Friend the Member for Bassetlaw made a point about the Highways Agency's own works being included. How will it ensure that its planning ties in with the local authorities' works? Given that the Highways Agency plans cross the country, it must ensure that its schemes tie in with those of a number of authorities. We need to ensure that the central register enables sharing between different authorities so that the utilities can plan taking those authorities into account, and many would argue that there should be an electronic register. The issue of data sharing is key. Will the Minister ensure that these data protection and data sharing issues are addressed?

John Mann (Labour, Bassetlaw)

The clause gives the opportunity to raise a potential weakness in the Bill, which relates to unadopted roads. I seek the Minister's advice on the matter, and perhaps he will send it in writing as there is such a wide array of expertise available on the issue.

Will unadopted roads be covered by the clause? In my constituency there are problems with two sorts of unadopted roads. Some are lined by recently built houses—though some of the disputes in these cases go back 15 years—and I shall come back to those later if I have the opportunity. The other example is perhaps more pertinent. I cite the example of Mill street in Worksop, which is an unadopted road where there is

an ongoing dispute about whether it should be adopted. The highways authority allegedly laid down tarmacadam 20 years ago and there is a dispute about whether that makes it an adopted road, or whether it should be adopted because of that.

I can see a number of complications relating to Mill street tied up in the legislation. It may help to resolve the problem and get the thing adopted and tarmacked, which it should be anyway. How do unadopted roads fit with the clause? On the issue of older unadopted roads, are the Government not missing an opportunity to put responsibility on local authorities under the Bill to adopt roads that have existed for a significant period into which utilities have been placed so that oddities throughout the country, such as Mill street, get the same service as the rest of us?

Christopher Chope (Conservative, Christchurch)

Can the Minister give us some assurance that the amendment to the street works register requirement is not going to cover too much trivial and bureaucratic nonsense? Clause 44, as drafted, could put an obligation on a street authority to put on a register every pile of building material, rubbish or other things deposited on the highway, even though it might be there for a relatively short time. If we start requiring local authorities to do that, we are putting a disproportionate burden on them.

I hope that the Minister can give us some reassurance about the circumstances in which the duties will arise and an assurance that they are not going to cover those deposits that are not on the ground for very long. In some parts of the country rubbish is tipped and it takes a long time to have it cleared away. In the street where I live, in Lambeth, a car has been abandoned for several days and not removed. The idea that Lambeth council, which is a failing or failed council, should be required to put that on a register is as ludicrous as requiring the registration of skips that are there for a short time. I would be grateful for some assurances on that.

Tony McNulty (Labour, Harrow East)

I am perplexed. I am trying to understand what an abandoned car has to do with street works and why it should be on a register.

Christopher Chope (Conservative, Christchurch)

It blocks the highway.

Tony McNulty (Labour, Harrow East)

Trivial bureaucratic nonsense was largely the domain of the last Administration. Nothing that this Government do, in any way, shape or form, is trivial, bureaucratic or nonsense.

The register can be limited by regulation, so rubbish will not, I suspect, be included. If the disruption or its cause is gone, as the hon. Gentleman suggests, by the time it has gone through the bureaucracy of getting registered, that is clearly not the thrust of the Bill at all.

Christopher Chope (Conservative, Christchurch)

Will the Minister give way?

Tony McNulty (Labour, Harrow East)

No, I can't be bothered at the moment, because I have said nothing of any importance. We could come back to the hon. Gentleman a bit later—I do not mean to be flippant.

The point that my hon. Friend the Member for Bassetlaw makes about unadopted road is an entirely fair one. As I read it, we are talking specifically about requiring street authorities to keep a register showing

with respect to each street for which they are responsible such information as may be prescribed. As I understand it, local authorities are not responsible for unadopted road—so his is a fair point that, with his indulgence, I shall have to explore further and get back to him on. It is a point well made. I have heard before of such difficulties. The classic unadopted road is posh people who live up some avenue and do not have anything to do with the council. I am being London-centric in that regard.

Brian White (Labour, North East Milton Keynes)

When my hon. Friend looks at unadopted roads, can he ensure that bodies such as English Partnerships, which has a number of roads around the country that have yet to be adopted, are reminded of its importance?

Tony McNulty (Labour, Harrow East)

At the risk, as Ernie Bevin once said, of opening a Pandora's box and watching a Trojan horse jump out, I will do that. The general point about unadopted roads is an entirely fair one that, if only for my own satisfaction, is worthy of exploration.

The principle of the streets works register is in clause 53 of the principal Bill. In the main, clause 44 simply seeks to broaden that slightly. At present, registers have to contain, among other things, information on utilities' street works being carried out on those roads as well as the authority's own road works. The clause will allow the regulations to require that other information also be kept, notably about skips and scaffolding, which were not covered by the 1991 Act, and the position of apparatus buried beneath the roads.

The clause also clarifies that central registers can be set up to contain information on more than one authority area and that the Secretary of State may require authorities to provide information on their streets to the person operating the central register. I pray in aid and commend to hon. Members, if they get a chance, to look at the London works scheme by Transport for London, which is working with the London boroughs towards a system for its own roads by which it can know exactly what is happening on every road and street in London. That is the absolute aim. At present, the system covers its own network, not necessarily the wider network that might prevail if the relevant part of the Bill gets through. TfL plans to get to the stage at which it can link that information base to its CCTV operation in order to keep the flow of traffic moving and, if it so chooses, to send in some of its officers to unblock blockages in the system that can be clearly seen, or to deal with someone who is overrunning on street works or with some short-term disruptions. The scheme works terribly well, and more and more London boroughs are signing up to work with TfL on it. It is a very good example of a central register that will work well for all concerned.

Again, at the risk of sounding parrot-like, we shall work with local authorities and utilities to see how the central register can be implemented; how, as hon. Members have suggested, we can deploy technology in that regard—it is absolutely at the core of the London works scheme; and how we must factor in the planning of works. In reinforcing and enhancing the elements of the street works register in the principal 1991 Act, this clause will help rather than hinder all who are involved

in street works: utilities, other contractors and local authorities. People will find it worth while to visit Transport for London to discuss in detail the data that is now sitting in its central register.

Christopher Chope (Conservative, Christchurch)

The Minister did not want to deal with rubbish. I did not introduce the concept of rubbish—it is in the Bill. If he wishes to introduce an amendment on Report to exclude rubbish, or other things deposited, from the provisions of clause 44, it will certainly be supported warmly on this side of the Committee, because our concern is that the Bill should not be disproportionate. If we start requiring authorities to record rubbish on the streets, we are putting the cart before the horse. Would not it be better to require them to remove the rubbish first?

Tony McNulty (Labour, Harrow East)

In terms of requirements to remove rubbish, that is not the purpose of the Bill. The hon. Gentleman knows fine well—this will come out in discussion of the regulations—that many contractors will use the street or road as a permanent or at least temporary dump for their building materials or rubbish, for the duration of their work. As such, it is entirely appropriate to include that element as well as skips in the Bill.

I was referring to what I thought the hon. Gentleman was referring to: his suggestion that the authority should not have to register rubbish that will probably be cleared up then and there or by the end of the working day, then come back and say that it is gone, so it does not matter. There are examples throughout London of sites that effectively become a builder's yard for the duration of the contractor's work. That cannot be right or appropriate either for the local authority's maintaining its ability to fulfil its network management duty or for the efficient use of the public street or road.

Generally, street works must be done on positive terms. Contractors must work with everyone else who needs to use the road, rather than simply taking the road as a gift for the duration of their works. That happens rarely, but to the extent that it happens in London, which is principally what I have been talking about, it can be entirely disruptive. As a suggestion for inclusion in the register, it is right and proper, but the black bag that will not be there by the end of the day or the week is not.

Question put and agreed to.

Clause 44 ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Clause 46 - Duties relating to the location

Christopher Chope (Conservative, Christchurch)

The clause amends section 80 of the 1991 Act, but section 80 has never been activated, being regarded apparently as too rigid and burdensome. The clause aims to develop a practical and effective regime that is not too burdensome on

operators. The Government have had more than 10 years in which to cogitate on the provision, so will the Minister share with us some of the ideas that might be proposed in regulations to express that practical and effective regime?

Tony McNulty (Labour, Harrow East)

I shall not rise to the notion that we have somehow had 10 years to deliberate and cogitate on the provision. Of course we have not. The time from 1991 to half of 1997 was not in our gift as the Government of the day; it was in the gift of the hon. Gentleman's party. He is right to say that it has never been activated for fear of placing an excessive burden on the person who finds the apparatus, given that the fact that it was not properly recorded in the first place is not their fault.

Instead, the clause allows, with modification, for regulations to be made that set out the action that someone finding such apparatus needs to take. It also allows the Secretary of State to set up, or appoint someone to set up, a central register of apparatus in the road, whose owners are unknown. If there were an opportunity afforded by the opening of a road or street to identify some of the apparatus underneath, it would be foolish not to do so. Since 1991, there has been an explosion in the number of utilities that can dig up the roads.

I am always astonished at the time and energy such work costs private and public contractors. They consult maps and anticipate undertakings under the road in certain locations because things have not been dealt with or the road has not been breached for so long; but there has been some movement under the road, and apparatus has moved 5, 10 or 15 ft and is well away from the location in which the undertaker believed it to be.

It is right and sensible to set up a practical regulatory regime in consultation with undertakers, authorities and others, that balances the need to ensure that all apparatus under the street is accurately recorded with not placing an unfair burden on the ''innocent'' persons carrying out the work. They are not responsible for what they find under the road, but as and when they find apparatus, it seems logical to mark it and inform whoever keeps the register.

We have already agreed with the utilities that it is a good idea to put the details in the regulations. We will discuss with them and local authorities how that should be done. Rather than starting from the premise that section 80 of the 1991 Act has not been activated and that we therefore do not need it, we believe that it can be suitably modified in full discussion with utilities and local authorities.

We can mark and record undertakings that are found when roads are opened, recording not simply that their existence—I hope that we know what is there—but their location, should they have shifted. In London, given the shifting sands on which this glorious and wonderful city is built, that happens on numerous occasions and not only in parts where there is porous earth.

The provision is not another stick with which to beat the utilities, as the hon. Gentleman seems to suggest. It is the common-sense notion of taking forward a provision that was not activated from the 1991 Act to reach a stage where the location of apparatus is recorded for the benefit of the utilities and all who seek to do street work and for those who are responsible for the maintenance of the main highways. That must make sense and I do not understand the complaint.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.

Clause 47 - Duty to inspect records

Christopher Chope (Conservative, Christchurch)

What requirements are to be laid down in relation to the availability of records? If the records are kept on a computer that can be interrogated at all hours of the day and night, that is one thing, but if the only way to gain access to them is to go down to the local authority when it is open between 9.30 am and 4.30 pm, that is a major restriction and inhibition on an entrepreneurial contractor's ability to take effective action.

We know that issues arising under this part of the Bill will often arise at short notice, at weekends, in the evenings, late at night or in the early hours of the morning. Can the Minister give us some idea of the requirements that will be placed on local authorities to ensure that the records are available to be inspected? That must surely be the fair corollary of the duty to be placed on statutory undertakers to inspect the records.

Tony McNulty (Labour, Harrow East)

That is entirely fair and is the thrust not only of the clause but of the regulations that will stand behind it. We want the duty to fit with the new provision in clause 46, which is intended to make it easier for different undertakers to exchange information on their apparatus in the street and to have full regard for it.

Section 79 of the 1991 Act deals with access to records. Section 73(3) says that an undertaker must keep them available at reasonable hours and free of charge. The clause builds on that. The elements of the Bill will be dealt with in detail in regulations, after full consultation with utilities and local authorities.

Andrew Miller (Labour, Ellesmere Port and Neston)

There are some exceptions in the publicly mapped data. For example, in my area significant parts of the Government's own pipeline network are not held in the public domain, which could cause problems if emergency works are needed. Therefore, some aspects will have to be dealt with outside of an open computer system and covered by security provisions.

Tony McNulty (Labour, Harrow East)

I do not doubt that. I am sure that local authorities and the utilities are fully aware of that matter, which we will need to take full cognisance of when we draft the regulations. It is an entirely fair point. I accept that there will be exceptions to the notion that we should have full and open access to everything under our roads.

Greg Knight (Conservative, East Yorkshire)

In a rather throw-away line the Minister said that the provisions build on the existing position, where the records are available free of charge. Can he clarify the use of the word ''build''? I hope that it does not mean that charges will be introduced in future. The clause refers to making regulations. Does the Minister take the view that access to the records should still be free of charge to those who need to inspect them?

On the point made by the hon. Member for Ellesmere Port and Neston (Mr. Miller), in the light of the Government's stated intention to provide more and more information on the internet, why could this information not be on an intranet, to which those authorised to carry out the work could have access? They would then not have to send an employee to the council offices to start looking through pieces of paper, but could delegate a member of staff in their own office to go on to the intranet and find out the information much more quickly, efficiently and cheaply?

Tony McNulty (Labour, Harrow East)

I take the point about an intranet for the utilities and local government on a nationwide basis. That may be worth exploring, but it is something for the local authorities and the utilities to explore rather than the Bill. I repeat what the right hon. Member for East Yorkshire said about the points made by my hon. Friend the Member for Ellesmere Port and Neston.

Save for updating matters relating to the changes made over the last 12 years, we are not changing what the 1991 Act says about sensitive equipment under our roads. Existing regulations make provision for sensitive equipment, although we may well need to update that because, as I think everyone accepts, there have been considerable changes between 1991 and 2004 to who can access our roads and what has been done under them. The points about having as much access as possible and about retaining the free-of-charge position will be explored in regulations. I hope that we reach the stage at which that can prevail, because the mutual exchange of the records and information must, by definition, benefit both the local authority and the utility about to undertake operations. There may simply be a minor administrative charge to cover the cost of retaining access to those records—as currently prevails under the existing Act, I hasten to add. However, the notion that we are talking about a commercial exchange for which there ought to be a fee should be broadly resisted. Given the mutuality in the process, I think that, when we come to consider the matter in relation to the regulations, what I described will prevail in future as well.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48 - Qualifications of supervisors and operatives

Christopher Chope (Conservative, Christchurch)

To what extent has the clause been the subject of discussion between local authorities and the

utilities? It appears that there is not much reciprocity. All the burden is on the utilities—the statutory undertakers—to identify people who are named and suitably qualified. However, we all know from our experience that often one of the problems when dealing with local authorities is finding somebody at his desk, by his telephone or at his laptop who is prepared to accept responsibility for answering a question. Even if one discovers the identity of that person, it is often quite difficult to get them to phone back. When he makes the regulations, perhaps the Minister will give regard to the need for reciprocity in the exchanges of names and addresses.

Tony McNulty (Labour, Harrow East)

In the wider context of the Bill, that is something that can be considered. However, all the clause does is to build on what section 67 of the principal Act says about the qualifications of supervisors and operatives. Of course there is no reciprocity, because the clause refers to the supervisors and operatives of the undertakers. The hon. Gentleman's point concerns the wider Bill rather than the clause. We think that section 67, which the clause amends, is not as tight as it should be on the qualifications of supervisors and operatives. The hon. Gentleman's comments are entirely inappropriate, but may have some relevance in the wider context.

I do not like the language and I find it terribly unhelpful. We should not talk about reciprocity as though we face a them-against-us situation or a conflict, where everything that the local authority does or seeks to do is an imposition on the utilities, which are constantly trying to break free from the yoke of oppression imposed by local authorities. That is fatuous nonsense that we do not need to discuss now, or indeed in connection with anything in the Bill, which starts from the premise of broad support across all parties and is not partisan. The ideological haze in which the hon. Gentleman sometimes conducts himself is terribly unhelpful.

Question put and agreed to.

Clause 48 ordered to stand part of the Bill.

Clause 49 - Works following substantial road works

Christopher Chope (Conservative, Christchurch)

Perhaps the Minister could give us some information about the clause.

Tony McNulty (Labour, Harrow East)

I am not having this, David.

Mr. Wilshire indicated dissent.

Christopher Chope (Conservative, Christchurch)

I do not know whether the Minister is saying that it is unreasonable for us to ask him questions.

Tony McNulty (Labour, Harrow East)

I am not talking to you.

Nigel Beard (Labour, Bexleyheath and Crayford)

Order.

Christopher Chope (Conservative, Christchurch)

The Minister is obviously not interested in the principle of reciprocity. I was going to try to heal any wounds by talking about a global partnership, but that may not be appropriate either.

The clause allows the street authority to increase a one-year embargo. There is concern about the length of notice given for that embargo, the maximum period of the embargo, the effect that such an embargo could have on ordinary residents and businesses whose circumstances have changed and who want access to utilities that are unavailable, and what will happen then. I understand that the existing embargo is limited to a period of one year, which the Government believe to be too short. If the period is to be longer, the Government should be prepared to tell us. After all, we are discussing important primary legislation.

Tony McNulty (Labour, Harrow East)

All this clause does is modify section 58 of the 1991 Act—the principal Act. We are not suggesting that a year is too long or too short: we are simply saying that in the interests of having as much flexibility as possible, we require the power to set a maximum period in regulation, and that regulations prescribe how disputes between authorities and undertakers over restrictions on work should be settled, which section 58 does not do. In both regards, the clause enhances and consolidates the 1991 Act. Yes, these are important matters, but they can and should be dealt with by regulation to reflect the flexibility and responsiveness between the local authority and the utilities that is greater than the rather rigid ''one year and that's your lot'' of the 1991 Act. In that regard, the clause is eminently reasonable.

Question put and agreed to.

Clause 49 ordered to stand part of the Bill.

Clause 50 ordered to stand part of the Bill.

Schedule 4 - Schedule 3a to the New Roads and

Christopher Chope (Conservative, Christchurch)

I refer to page 62 of the Bill. Why is the copy of the notice that must be given restricted under paragraph 2(4) to the sewer authority rather than to other equivalent authorities?

Paragraph 2(4)(e) states:

''any person who has apparatus in that part of the highway''.

How will it be possible in all circumstances to identify the person who has apparatus in that part of the highway?

Paragraph 2(6) states that

''Section 55 does not apply where, by virtue of a notice under this section, a person is required to notify the street authority of proposed street works.''

Will the Minister explain the thinking behind that? This is quite serious. I know that the Minister is keen to make progress, as I am. However, we are talking about regulations that create criminal offences, and as a conscientious Committee, the least that we can do is to ask a few questions about them. In that context, I ask the Minister to explain why, in paragraph 4(7) of the schedule, a direction

''shall cease to have effect if the works referred to in paragraphs 3(1)(a) to (c) to which it relates are not completed within such period as may be prescribed.''

I did not understand that and wondered whether other hon. Members understood it, so I ask the Minister to enlighten the Committee.

Tony McNulty (Labour, Harrow East)

I ask the hon. Gentleman not to worry about the progress that I am making. We are in control of that, and will make progress as we see fit—whether the hon. Gentleman is with us is a matter for him.

The schedule is important—it discusses restrictions on works following substantial street works and nothing in it is otiose or over the top. The matters to which the hon. Gentleman refers mainly relate to the 1991 Act, and are clearly laid out. If the hon. Gentleman slows down a bit, I am sure that he will follow them clearly. In addition to the persons listed in paragraph 2(4)(a) to (e). Paragraph 4(f) allows the Secretary of State to prescribe any person in that regard. An authority will know which utilities have apparatus in a particular street, as it can inspect the records of any utility active in the area, as we have just discussed.

There are, and always have been, peculiarities in the law governing public sewers, because of the nature of public sewers. Any person who has apparatus in that part of a highway needs to be fully notified—that is a matter of fairness. The direction restricting further works is entirely appropriate, as laid out in the schedule.

As ever, the schedule should to be seen not in isolation—that is playing silly little word games—but in the context of all the prevailing clauses in part 4. It is easy to pull out little words and little paragraphs, but they should be related first to the changes that we have made in part 4 of the Bill, and secondly to the relevant sections of the 1991 Act. I have sought to do that as we have considered the clauses. Everything in the schedule is entirely appropriate, as I am sure that the hon. Gentleman and other members of the Committee will agree.

Question put and agreed to.

Schedule 4 agreed to.

Clauses 51 and 52 ordered to stand part of the Bill.

Clause 53 - Power of street authority to

Christopher Chope (Conservative, Christchurch)

I beg to move amendment No. 203, in

page 26, line 27, after 'may', insert 'reasonably'.

The amendment, as the Minister would expect, is a reasonable one. It would ensure that an action that is not reasonable would not be contemplated. I hope that it commends itself to him.

Brian White (Labour, North East Milton Keynes)

One thing that annoys people about reinstatement is the impact on pedestrians and cyclists, so the addition of the powers is useful. Will the Minister ensure that, as the regulations are drafted, the impact on cyclists and pedestrians is taken into account as much as the impact on traffic?

John Mann (Labour, Bassetlaw)

My concern relates to the position of local authorities, and the danger that they may be tempted to try to pass on some of the costs that they should meet, because the opportunity arises to do so. One of the problems that the clause may face is the success of the Government's economic policy, and the fact that there is a general labour shortage in many areas. It strikes me, therefore, that in trying to get competing jobs done by a local authority and the private sector, the pressure to pass on some costs from the local authority to the private contractor will become all the more appealing. What reassurance can the Minister give that that will not be allowed, and that there will be some ability for a private company to protest and get independent validation if there is any suggestion of a local authority attempting to do so?

Tony McNulty (Labour, Harrow East)

Amendment No. 203 is totally unnecessary. New section 73A (3) already provides for regulations to limit the extent of resurfacing, and authorities will be constrained by regulations as to what they can require of undertakers.

Regarding the point made by my hon. Friend the Member for Bassetlaw, we have agreed that the authorities and utilities should be consulted separately and jointly so that what he suggests does not prevail.

Putting in the ''reasonably'' asked for in amendment No. 203 would add absolutely nothing to this clause. It is already alluded to in section 73A (3) and will be dealt with in substance in regulations.

Christopher Chope (Conservative, Christchurch)

In the light of the Minister's explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended.

On resuming—

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I beg to move amendment No. 191, in

page 27, line 9, at end insert—

'(6A) A resurfacing notice—

(a) shall not have effect for more than three years from the date of its issue; and

(b) shall not cause a contingent liability to be held in the balance-sheet of an undertaker for more than two financial reporting years.'.

The amendment deals with a small but important technical point. Clause 53 will insert three new sections on resurfacing into the New Roads and Street Works Act 1991, and I have no problem with the principles of resurfacing. However, we should consider new section 73D(2)(d), which is contained in clause 54 and deals with regulations relating to new sections 73A to 73C. That prescribes

''circumstances in which an undertaker is entitled to pay a sum to the street authority instead of executing the works''.

In clause 55, subsections (1) and (2) of new section 78A detail the conditions in which an apportionment may be made.

The amendment is designed to address those provisions' effect of creating a contingent liability. When undertakers elect to pay a sum rather than undertake the works—as I suspect many will do—and when that sum or its apportionment will be contingent on other works at a later stage, it is possible that a liability will accrue, which will have to be accounted for in the books of the undertaker. Under the Bill, that situation could go on indefinitely. Considering the helpful briefing that I received from officials, I am sure that the Government's intention is to include at some point a reasonable time limit on notices.

Amendment No. 191 would provide for a three-year limit, so that the liability would drop after three years. The reference to the undertaker's balance sheet coincides with three years, since having two balance sheet dates would take out the contingent liability. As I said, the amendment is small and technical, but it is by no means unimportant. The current provisions could result in a mass of complicated accounting, and a reasonable cut-off point—three years seems reasonable—could clear it up to some extent.

That is a brief explanation of what the amendment is designed to do. I hasten to add that I do not want to press it, but I would be grateful to know the Government's thinking and how they intend to deal with the matter.

Tony McNulty (Labour, Harrow East)

The hon. Gentleman's points are fair, but they would be dealt with more appropriately in regulations. Time scales for authorities to serve utilities with surfacing noticing will be a matter for regulations, on which we shall consult fully with undertakers and authorities on a range of issues. The point about the time scales has been well made, but regulations should create certainty for utilities about any contingent liabilities that the clause might create.

If there were time, I would try to find an accounting novelist to match John Grisham and wax lyrical about how it is not our job in the Bill to impinge on accounting regulations or any other relevant developments, or on what utilities or contractors do on their balance sheets or in their internal and external accounting, but we do not have time, so I shall not. Instead, I shall simply say that we will tackle the hon. Gentleman's fair point about time scales in regulations after consultation with local authorities and utilities. That will capture the hon. Gentleman's fair points about contingent liabilities and time scales. As such, I ask him to withdraw the amendment.

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

I accept that using regulations is a way of dealing with the point, but what sort of time scale do the Government have in mind as being reasonable? Would three years, five years or seven years be reasonable? What is their thinking at this stage?

Tony McNulty (Labour, Harrow East)

At this stage, I would not care to hazard a guess. It may be one year or two years rather than three. The hon. Gentleman's point, which was entirely fair, about carrying the liability around for ever was well made and I assure him that it will be dealt with through consultation and in regulations rather than in the way that he suggested.

John Thurso (Liberal Democrat, Caithness, Sutherland and Easter Ross)

In the light of that explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Christopher Chope (Conservative, Christchurch)

The Minister knows, and it is apparent, that there is a lot of mutual suspicion about the clause and the provisions relating to reinstatement. Some utilities are fearful that they will be required to pick up the bill for the failure of highway authorities to maintain their roads properly. The Minister said that that would be dealt with in regulations. The tension is recognised on page 29 of the regulatory impact assessment, which states, under the heading ''Balance of costs and benefits'', that

''the exact balance of costs and benefits will depend upon the framing of the regulations''

which will bring this new measure into force.

I take this opportunity to ask the Minister whether he sees any scope for a new type of pre-legislative scrutiny. We usually talk of pre-legislative scrutiny in the context of a Select Committee considering a draft Bill for primary legislation. This is not the only example in the Bill because, throughout it, runs a mass of proposals for detailed regulations, many of which will come before us for affirmative resolution. Or, if we pray against them, we may have a chance of a one-and-a-half-hour debate. None of the regulations will be able to be amended and that is not scrutiny as Parliament understands it.

Having regard to the concern that has been expressed by the Chairman of the Select Committee and many other people, I wonder whether the Minister sees any scope for submitting some of the draft regulations, after they have been subject to a great deal of consultation with the interested parties, to the Select Committee for a short period before they are considered by the House of Commons.

David Jamieson (Labour, Plymouth, Devonport)

I am thinking about it.

Christopher Chope (Conservative, Christchurch)

I am pleased that the Under-Secretary is thinking about it because this is not a contentious Standing Committee, as has been apparent from the smooth way in which it has proceeded, but underlying that is much anxiety. At the moment, the utilities and local authorities can have negotiations and areas of dispute could remain. That can be dealt with by Ministers, but I think that it is the wish of the House of Commons to have more scrutiny of the whole area than will be possible if we proceed as it looks as though we will—by trusting everything, and saying that it will all be dealt with and that there will be a regulatory impact assessment and so on.

I do not know whether the Ministers attended the recent seminar on regulatory impact assessments, but I am sure that they have been bombarded with circulars on the subject because the Government are rightly concerned about RIAs. They are not much use if they are not linked with proper parliamentary scrutiny. I see that the hon. Member for Milton Keynes, North-East agrees with me. I would have thought that the

whole subject would lend itself to the sort of scrutiny that I have been discussing. I have not discussed the matter with the Chairman of the Select Committee, but, having regard to her comments and desire to exercise more pre-legislative scrutiny before Second Reading, I am sure that she would be enthusiastic about the prospect of her Committee getting down to some of the detail.

I use the opportunity of our debating a contentious area of the Bill—namely, reinstatements—to ask the Minister about the possibility of that sort of additional scrutiny. If he wants to think about it, or discuss it with his colleagues, I shall understand that he will not be able to reply fully. However, I put it on record as a way forward.

Tony McNulty (Labour, Harrow East)

I have already said that, after full consultation with the local authorities and utilities and once we have the draft regulations, I am more than happy that some scope should be afforded to members of the Committee to explore the regulations in far greater detail. Indeed, once the local government side has been fully consulted, I can foresee even wider consultation, beyond the Committee.

To be entirely fair, in the first instance the Select Committee was considering pre-legislative scrutiny of the entire Bill, not only of the regulations, so I am not sure whether that is an appropriate avenue. I do not know whether the august Chair of that Committee would welcome detailed scrutiny of regulations, similar to the pre-legislative scrutiny of the Bill to which she alluded. However, I shall reflect on the matter. It is certainly right and proper that we engage with the entire Committee, and even, as we did at the start of the Bill, afford time for other hon. Members to go through the draft regulations with departmental officials.

We want to get the regulations right before they go through the affirmative or negative resolution procedure. In the context of what I have already said about sharing draft regulations with the members of the Committee, perhaps affording them the chance to go through the draft regulations with officials before they come before Parliament, I am more than happy for there to be greater scrutiny.

I am not entirely sure whether it needs to go formally through the Select Committee, but I will reflect on it. However, the hon. Gentleman can be assured that I want the greatest consultation and scrutiny on and of the regulations. I want them to be dealt with properly; and when they are put into effect, I want them to be of practical advantage to the utilities and local authorities. That is what we seek from the entire Bill.

Question put and agreed to.

Clause 53 ordered to stand part of the Bill.

Clause 54 - Re-surfacing regulations and guidance

John Mann (Labour, Bassetlaw)

I have one question. Proposed new section 73D(2)(d) provides for the paying of sums of money in lieu of executing works. I wonder whether that will operate like the adoption of roads on new estates, which are usually rather unsatisfactory works.

My area has seen a series of disputes between builders and the highway authority over the works to be completed before the roads are adopted. Both parties seem to be satisfied that there is a sum of money on deposit, but they have not bothered to do anything about getting them adopted—or, in the most extreme case of Scrooby close, not completing them for 15 years. Several dozen other, similar, examples are current.

The rest of the debate is in Hansard.