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Lord Berkeley moved Amendment No. 277U:


Page 85, line 17, after ("passengers") insert ("and freight")

The noble Lord said: As we debated earlier, the amendment is concerned with the franchising director failing to give effect to instructions or guidance from the authority if he believes that it may have an adverse effect on passenger train services outside Greater London.

The franchising director will be busy because he also has a duty to promote rail freight. It would be unreasonable if implementing the guidelines had an adverse effect on rail freight as well as on rail passengers. The amendment would confine the adverse effect to outside Greater London. On reflection, there should be separate provision applying to outside and within Greater London. Freight must come into Greater London bringing concreting aggregates. If that were prevented because an extra passenger train had been instructed by the authority, all the aggregate would come in by road, which would be undesirable.

The drafting of the amendment may not be correct, but I urge my noble friend the Minister to consider whether there should be a reference to freight in this part of the Bill. I beg to move.

11.30 p.m.

Lord Whitty: My noble friend is quite right to raise the issue of freight, although I hope he will understand that we cannot accept his amendment. At present, the statutory responsibilities of the franchising director are concerned with the provision of passenger rail services and do not extend to freight. While it is true that the objectives, instructions and guidance issued by my right honourable friend the Deputy Prime Minister to the franchising director require him to take account of the effect on freight services of his other functions, it would not be appropriate to widen the franchising director's statutory responsibilities by way of the amendment. It would be a rather indirect and bizarre way to do it.We will have the opportunity to address this point in due course when we consider the legislation which my right honourable friend the Deputy Prime Minister intends to present which will formally establish the strategic rail authority, whose responsibilities will include rail freight. In the meantime, I should be grateful if my noble friend could withdraw his amendment.

Lord Berkeley: I am grateful to my noble friend for that explanation. I shall read it carefully and consider it. However, in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Brabazon of Tara moved Amendment No. 278:


Page 85, line 18, after ("London") insert ("and he can demonstrate that the benefit for railway passengers travelling inside or through Greater London is less than such adverse effect")

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 279. These are two probing amendments which may in part have been answered already by what the Minister said in re-drafting his Bill, and also in reply to the noble Baroness, Lady Hamwee, on an earlier amendment.

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As drafted, the Bill obliges the franchising director to ignore the GLA where there is any adverse effect outside London. I wonder whether the Government really mean that. These amendments would allow for the GLA requirement to go ahead where there is an overall net benefit to Londoners. Therefore, I hope that the Minister can explain what appears to me to be an inconsistency in the Bill. It also puts the onus of proof on the franchising director and strengthens the position of the GLA. I beg to move.

Lord Whitty: These two amendments would place an express duty on the franchising director to demonstrate why he should not, in certain circumstances, implement the mayor's guidance in respect of rail services. Amendment No. 278 would place an express duty on the franchising director to demonstrate that implementing the mayor's guidance would have an adverse impact outside London greater than the benefit to passengers travelling within or through London.

Clause 161(6) already requires the franchising director to notify the mayor if he decides not to implement guidance and to give his reasons. It would be open to the mayor to seek a judicial review of the decision if he thinks it unlawful, but we think it much more likely that instead of rejecting the mayor's guidance out of hand, the franchising director will want to work with the mayor and with TfL to work out how the guidance can be framed so that it reflects the mayor's requirements within the constraints imposed by the Bill. The duty of co-operation is imposed on the franchising director and on TfL by Clause 137.

Moreover, the franchising director's decisions on whether implementing the guidance will have an adverse impact outside London will inevitably involve making judgments, or, if so trivial, dismissing it as de minimis. The amendments would remove that flexibility. We do not believe that it would be helpful to either the franchising director or the mayor to be so rigidly prescriptive on how the franchising director should advise the mayor on how his or her requirements can best be catered for.

Amendment No. 279 would place an express duty on the franchising director to demonstrate that the benefits for railway passengers travelling inside or through Greater London and implementing the mayor's guidance do not justify increased budget payments to train operators from the franchising director's budgets.

I fear that the amendment may be based on a misunderstanding of the purpose of Clause 161(5)(c). The purpose of that provision is to give effect to the commitment in the White Paper that it is to be the mayor and not the franchising director who meets any net costs incurred by train operating companies as a result of the implementation by the franchising director of the mayor's guidance. Again, the franchising director will no doubt advise the mayor as to the most cost-effective

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way in which his or her requirements can be made. I hope with that explanation that the noble Lord will withdraw his amendment.

Lord Brabazon of Tara: I am grateful to the noble Lord for his response. I shall read carefully what has been said. I suspect that he meets the points that I made in my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Whitty moved Amendment No. 278A:


Page 85, line 19, leave out ("implementing the guidance will")

On Question, amendment agreed to.

[Amendments Nos. 278B and 279 not moved.]

Lord Whitty moved Amendments Nos. 279UA, 279VA and 279WA:


Page 85, line 22, after ("any") insert ("instructions or")
Page 85, line 25, after ("which") insert ("instructions or")
Page 85, line 26, leave out ("5(1)") and insert ("5(1)(a)")

On Question, amendments agreed to.

Clause 161, as amended, agreed to.

Lord Whitty moved Amendment No. 279XA:


After Clause 161, insert the following new clause--

FRANCHISING DIRECTOR TO CONSULT MAYOR AS TO FARES, SERVICES ETC

(" .--(1) The Franchising Director shall from time to time consult the Mayor as to--
(a) the general level and structure of the fares to be charged for the carriage of passengers by railway on services to which this section applies; and
(b) the general level of the provision to be made for such services.
(2) The services to which this section applies are services to, from or within Greater London--
(a) which are, or are to be, provided under franchise agreements; or
(b) whose provision the Franchising Director is under a duty to secure, by virtue of section 30, 37 or 38 of the Railways Act 1993 (which relate to the failure to secure a subsequent franchise agreement and the proposed discontinuance of services).")

On Question, amendment agreed to.

Clauses 162 and 163 agreed to.

Lord Whitty moved Amendment No. 279YA:


After Clause 163, insert the following new clause--

TRANSPORT FOR LONDON: CONTRACTS REQUIRING PASSENGER LICENCES

(" .--(1) Transport for London may not by virtue of any provision of this Act or any other enactment enter into or carry out any agreement with respect to the provision or retention, or financing, of public passenger transport services if the agreement--
(a) is one which involves the holding of a passenger licence; and
(b) is not an excepted agreement.
(2) An agreement "involves the holding of a passenger licence" for the purposes of this section if it involves the doing by any person, whether or not a party to the agreement, of anything which, by virtue of section 6 of the Railways Act 1993 (prohibition on unauthorised operators of railway assets), that person may not do without the authorisation of a passenger licence.

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(3) An agreement is an "excepted agreement" for the purposes of this section if it is--
(a) an agreement with the Franchising Director; or
(b) an agreement under section (Provision of extra passenger transport services and facilities) above, other than one falling within subsection (4) below.
(4) An agreement falls within this subsection if, in pursuance of the agreement, Transport for London or a subsidiary of Transport for London is to enter into a further agreement which involves the holding of a passenger licence.
(5) Expressions used in this section and in Part I of the Railways Act 1993 have the same meaning in this section as in that Part.")

On Question, amendment agreed to.

Clause 164 agreed to.


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