Select Committee on Delegated Powers and Deregulation Thirtieth Report



Supplementary Memorandum by the Department of the Environment, Transport and the Regions


1. In its 20th Report, Session 1999-2000, the Committee reported on the delegated powers contained in the Transport Bill, including those introduced to the Bill as Government amendments during Grand Committee consideration in the House of Lords.

2. The Government has tabled a small number of amendments consideration at Report stage, some of which contain delegated powers:

(i) Bus lane enforcement (paragraphs 5 to 9)

amendments to clause 143 to enable regulations to be made to extend clause 143 to London and at the same time to repeal the bus lane provisions in the London Local Authorities Acts of 1996 and 2000;

(ii) Railways (paragraphs 10 to 12)

amendments to clause 244 to restrict the amount of financial penalty which may be imposed by the Rail Regulator or Strategic Rail Authority for contraventions of licence conditions etc in line with the Utilities Act 2000;

(iii) Driver training and instruction (paragraphs 13 to 26)

four new clauses and a new Schedule to prescribe driver training courses for different types of motor vehicle and provision, including new fees, in the context for improved supervision and appeal arrangements for Approved Driving Instructors;

(iv) Street works (paragraphs 27 to 36)

two new clauses amending section 74 of the New Roads and Street Works Act 1991 (charge for occupation of the highway where works are unreasonably prolonged), and a new power to charge undertakers for occupation of the highway from the start of works;

(v) London bus service permit appeals (paragraphs 37 to 41)

a new clause to amend section 189 of the Greater London Authority Act 1999 to provide for appeals against the refusal, suspension or revocation by Transport for London of a permit to provide local bus services to be heard by an independent panel appointed by the Lord Chancellor.

3. This Memorandum explains the purpose of the relevant powers contained in those amendments, the reason why the provision is to be dealt with by delegated legislation, and the nature of, and reason for, the procedure selected.

4. Copies of the amendments are attached [not printed].

Bus lane enforcement

5. The amendments to clause 143 will enable the Secretary of State to repeal the existing London legislation relating to moving bus lane offences and will apply clause 143 for London in its place Transport for London (TfL) and the London local authorities would be the enforcement authorities for London under the new regime.

1.1. The amendments provide greater flexibility of powers, as the Secretary of State or the National Assembly for Wales (NAW) are given powers to make regulations specifying the person by whom a penalty charge in respect of a contravention is to be paid.

6. At the Committee stage in the House of Lords, Ministers indicated that they intend, at least initially, to make regulations for areas outside London on the basis of driver liability. The matter will obviously be kept under review.

7. In London the current system operates on the basis of owner liability but as this is specified in the London Local Authorities Act 1996 (as amended) it can only be changed by primary legislation unless that legislation is repealed. The main advantage of the current amendments is that it will enable clause 143 to be applied to London with the flexibility to impose the basis of liability for charges by regulations and subsequently to change that basis also by regulations. It is considered prudent to allow owner liability to continue to apply in London for the foreseeable future but this will be kept under review. It will be necessary to monitor rates of compliance with bus lane requirements, costs of enforcement and the methods of detecting breaches.

8. Regulations made under these powers would be subject to negative resolution procedure.


9. Clause 224 of the Bill amends the enforcement provisions of the Railways Act 1993. It extends the powers of the Strategic Rail Authority and the Rail Regulator to make orders to secure compliance with the requirements of franchise agreements, railway closure conditions and licences, and to impose penalties on operators for breaches.

10. Amendments have been tabled to clause 224(1) and (2) to restrict the amount of a penalty to an amount not exceeding 10 per cent of the turnover of the operator in question. The precise definition of "turnover" is a matter which may require adjustment over time and thus the amendments provide for the Secretary of State to make an order by statutory instrument to provide the means of determining an operator's turnover for this purpose.

11. Any order made under this clause will be subject to affirmative resolution of both Houses of Parliament. The powers given to the Secretary of State are precedented by powers under sections 60 and 95 of the Utilities Act 2000 in respect of maximum penalties that may be imposed on gas and electricity suppliers. The application of affirmative procedure provides for a high level of Parliamentary control in relation to this issue.

Driver training and regulation


12. New clause (Compulsory driver training courses), and paragraphs 2 to 6 of the new Schedule (Driver training and driving instructors: minor and consequential amendments), provide for the Secretary of State to introduce, by regulations, training courses for users of different classes of motor vehicle. This will allow the Secretary of State to introduce training schemes that give effect to policies which raise driving standards and reduce road casualties, as set out in the Government's road safety strategy Tomorrow's roads - safer for everyone.

13. The new clause replaces sections 89(2A) and (5A) and 97(3)(e), (3A) and (3B) of the Road Traffic 1988 Act. These sections enable the Secretary of State to make regulations obliging moped and motorcycle riders to undertake prescribed basic training courses before their provisional licences entitle them to ride on the road or take a test.

14. The key differences between the new and the old provisions are that the new provisions allow for the introduction of training courses for users of all motor vehicles, not simply motorcycle and moped riders, and for different purposes as well as providing greater clarity about the nature of the enabling powers, such as provision to include an appeals system for trainers.

15. As is currently the case with courses for moped and motorcycle riders, the training obligation will be discharged when the trainer is satisfied that the trainee has achieved the appropriate standard of competence. Regulations will specify matters such as course content, approval of training bodies for organising courses and certification of individual instructors.

16. Depending on the type of motor vehicle, it is considered sensible to introduce a training requirement at different stages in the learning process. The new clause will enable the Secretary of State to require a person to undertake training:

  • before he would be allowed to take a driving test or a particular part of a test (almost all tests being conducted as 2-part tests, theoretical and practical);
  • before he could use a provisional licence, or automatic provisional entitlement, to drive on the road (so that the Department would be able to introduce a basic training requirement for drivers of all types of vehicle);
  • before he could be granted a full licence for a class of vehicle following the passing of a test for a different class of vehicle, (unlike the current position where, for example, a person passing a motor car test could be granted a full licence to ride a moped without having had any experience or training in riding one);
  • before he could drive motor vehicles of a particular class in particular circumstances (so that the Department could, for example, require a person who had passed a test to drive a large goods vehicle to be supervised while driving a loaded vehicle until such time as he had received training in the driving of loaded vehicles).

17. Introducing driver training schemes by regulation allows the Secretary of State to bring forward individual schemes for different types of motor vehicle as they are developed, and flexibility to adjust the content of training schemes in the light of experience and research evidence. The clause allows different schemes to be prescribed in different circumstances, and for exemptions to be prescribed from a training requirement.

18. As with the current provision for motorcycle and moped rider training courses, regulations will be subject to negative resolution procedure by virtue of section 195(3) of the 1988 Act. Before making regulations, the Secretary of State will, in line with section 195(2) of the 1988 Act, undertake consultation with representative organisations.


19. New clauses (Register of approved instructors: appeals and Taking effect of decisions about instructors) and paragraphs 7 to 12 of the new Schedule, provide for improvements to the regulation of professional car driving instructors, which is provided for in Part V of the 1988 Act. In particular, provision is made for appeals against decisions of the Registrar of Approved Driving Instructors (ADIs) to be determined by the Transport Tribunal and not the Secretary of State, and for magistrates' courts (Sheriffs in Scotland) to have the power to review the conduct of tests of continued ability and fitness to give instruction and emergency control assessments as well as qualifying examinations.

20. Paragraph 9 of the Schedule amends the regulation-making power in section 132 of the 1988 Act. Paragraph 9(3)(b) provides that (in addition to the current fee for the qualifying examination) fees can be charged for the periodic tests of continued ability and fitness to give instruction which instructors must undergo. Paragraph 9(3)(c) enables the Secretary of State to require a candidate for a test of continued ability and fitness to give instruction to provide him with appropriate particulars.

21. Paragraph 10 of the Schedule extends the existing regulation-making power to enable the Secretary of State to charge a fee to recover his costs for undertaking an emergency control assessment of a disabled instructor.

22. Introducing a power to charge a specific fee for each type of test, so that the user pays for the public sector costs associated with the particular activity, is fairer and better meets the principles of better regulation. Currently, where no test fees are charged any costs incurred by the Registrar or Secretary of State are met from other fees paid by ADIs. This means that higher graded ADIs, who take fewer tests of continued ability and fitness to give instruction, are subsidising the remainder.

23. Treating the level of test fees and test particulars as matters to be dealt with by regulation affords the Secretary of State the flexibility to adjust these consequential provisions as circumstances change.

24. As is currently the case, regulations made under these powers would be subject to negative resolution procedure by virtue of section 195(3) of the 1988 Act. Although it is not a requirement of section 195(2) of the 1988 Act, the Secretary of State has established the practice, before making regulations under Part V of the 1988 Act (which provides for the regulation of driving instructors) of undertaking consultation with representative organisations.

25. Driver training issues are not devolved.

Street Works

26. Two new clauses aimed at minimising traffic delays and congestion caused by continued and lengthy street works, primarily by the utility companies. Section 74 of the New Roads and Street Works Act 1991 gives the Secretary of State powers to make regulations which enable highway authorities to charge for overstaying in the maintainable highway. Ministers announced in April 2000 that section 74 would be implemented and draft regulations have since been issued for public consultation.


27. Subsection (1) of this new clause would provide powers for the Secretary of State to introduce regulations that would require utilities to pay a charge to an approved highway authority for occupying the street when carrying out street works, ie "lane rental". The new clause inserts a new section 74A into the 1991 Act. This charge would be payable from the start of works, regardless of whether the works overran.

28. Following the precedent set in the 1991 Act, in particular in relation to section 74, it is intended that the detailed arrangements for charging lane rental should be set out in regulations, which can be comparatively easily modified or replaced later in the light of experience. However, it is intended that the primary power for lane rental charges would only be activated if the power under section 74 for highway authorities to charge undertakers for works that overrun proves insufficient to reduce the disruption caused by street works. It would not be obligatory for a highway authority to operate a scheme, but where they wished to do so it would need to be submitted to the appropriate national authority (the Secretary of State in England and National Assembly in Wales) for approval.

29. The operative parts of the clause set out the matters that would be covered in detail by the Regulations. These are identified in subsections (3) - (11). They are as follows:

  • whether there would be any exemptions from the requirement to pay charges;
  • the basis and/or level of the charge, which would allow variations according to the location of the works, and their extent and timing, and such other factors as the Secretary of State or National Assembly considered relevant;
  • the details of the different type of notices which would be generated by undertakers and highway authorities in order to operate the system;
  • the arrangements for allowing a highway authority to waive or reduce the charges under certain circumstances;
  • the time and manner in which the charges would have to be paid;
  • what use the revenue raised through charges could be put to;
  • whether criminal sanctions would be applied to an undertaker that failed to produce accurate works notices on time; and
  • what the arrangements would be for resolving disputes.

30. The remaining subsections of the new clause do not contain regulation-making powers but provide that the first regulations to be made under the inserted section 74A of the 1991 Act would be subject to the affirmative resolution procedure (as is the case for the first Regulations made under section 74).


31. During the course of preparing the draft regulations to implement section 74 of the 1991 Act it became clear that in any scheme for providing for highway authorities to charge undertakers, the charging authorities would need clear evidence of the date when works began, when the site had been cleared, and when the works had been finished following interim reinstatement or (where there is none) final reinstatement of the road surface. The best way of ensuring this would be to include provision in the regulations for notices to be given by utilities to the highway authority stating the date of actual start of works, works clear and works closed. There are, however, no powers for requiring such notices under the 1991 Act.

32. In addition, although section 74 provides that an undertaker may inform the highway authority that its original estimate of the duration of works is likely to be exceeded, there is no power to require that this be done by way of a notice from the undertaker to the authority, or to prescribe the contents of such a notice.

33. The new clause would, therefore, amend section 74 of the 1991 Act to provide for such notices to be given, and would also provide for their contents to be prescribed in regulations.

Devolution aspects

34. The new clauses would extend to England and Wales, although it is understood that the National Assembly for Wales currently has no plans to make regulations introducing lane rental in the Principality. So far as Scotland is concerned, road works being a devolved matter, it would be for the Scottish Parliament to make separate provision in primary legislation, whether by way of similar amendments to Part IV of the New Roads and Street Works Act 1991, or otherwise.

35. It is proposed that the new clauses would be commenced through Commencement Orders, made separately by the Secretary of State in respect of England and the National Assembly in respect of Wales.

Appeals relating to London bus service permits

36. New clause [London service permits: appeals] would amend section 189 of the Greater London Authority Act 1999 (the 1999 Act) to provide for appeals against the refusal, suspension or revocation by Transport for London of a permit to operate local bus services to be heard by an independent panel appointed by the Lord Chancellor.

37. The need for the new clause arose from a check on the human rights compatibility of the 1999 Act, which exposed a difficulty with section 189 of that Act. Under that section, bus operators may appeal to the Mayor against the refusal, suspension or revocation by Transport for London of a London bus service permit Appeals would be heard by the Mayor. Although the Mayor must appoint a panel of independent people to advise him, he makes the final decision. It is highly questionable whether the Mayor can be considered independent of the appeals body. These provisions might contravene the requirements of Article 6 of the Human Rights Convention (ie, a right to a fair trial). The new clause is intended to ensure that the appeals process is independent of the Mayor and thus compatible with the Human Rights Act.

38. Subsection 3 provides for the Secretary of State to make regulations prescribing the procedure for making appeals. Subsection 5 gives the Secretary of State the power to make regulations providing for the charging of reasonable fees.

39. The regulation making powers are necessary to allow the Secretary of State flexibility to determine the procedure for making appeals and the fees that appellants must pay to make an appeal. Fees are likely to be payable to the Secretary of State who will be responsible for financing the work of the appeals panel.

40. Regulations would be subject to the negative resolution procedure under section 420(7) of the 1999 Act since any regulations will deal with purely administrative matters.

October 2000

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