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Clause 41
Duty of street authority to
co-ordinate works
Mr. Chope: I beg to move amendment No. 48, in
page 19, line 28, leave out 'the execution of works in the street or'.
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Mr. Chope: 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.
Mr. McNulty: 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.
Mr. Chope: 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.
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Mr. McNulty: 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.
Mr. Chope: 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
timing of street works
Brian White: 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''.'.
The Chairman: With this it will be convenient to discuss amendment No. 204, in
page 20, line 18, at beginning insert 'solely'.
Brian White: 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.
Mr. David Wilshire (Spelthorne) (Con): 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.''
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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: 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.
Mr. McNulty: 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.
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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: 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.
Mr. McNulty: 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.
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