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LONDON LOCAL AUTHORITIES AND TRANSPORT FOR LONDON (NO. 2) BILL 2
Minutes of Evidence
The London Local Authorities and Transport for London (No. 2) Bill Committee
LONDON LOCAL AUTHORITIES AND TRANSPORT FOR LONDON (NO. 2) BILL
Tuesday 6 November 2012
in Committee Room 17
Mr David Heyes MP (Chair)
Mr Robert Buckland MP
Mrs Mary Glindon MP
Mr Robin Walker MP
Ms Nathalie Lieven QC appeared as Counsel
Mr Alastair Lewis (of Sharpe Pritchard) appeared as agent for the Bill
Mr Martin Low, City Commissioner of Transportation, Westminster City Council
Mr Ben Plowden, Director of Planning, Surface Transport, Transport for London
Mr Gary Blackwell, Head of Contentious Law, Westminster City Council
Ms Felicity Morris, Legal Manager, Transport for London Legal
Mr Chris Smallwood appeared as agent for BugBugs Media Ltd and Reliable Rickshaws Ltd
Mr Martin Ellis appeared as agent for the London Transport Division, Department for Transport
Mr Tony Thompson appeared as agent for the Development Management Division, Planning Directorate
Ordered at 10.13 am: That the Parties be called in.
107.Chair (Mr DAVID HEYES MP): Thank you for your patience in bearing with us. We are now in public session. To start with, the Members of the Committee should introduce themselves. You can see our names: I am David Heyes, and I am the Member of Parliament for Ashton-underLyne.
108.MR WALKER: Robin Walker; I am the Member of Parliament for Worcester.
109.MR BUCKLAND: Robert Buckland; I am the Member of Parliament for South Swindon.
110.MRS GLINDON: Mary Glindon, Member of Parliament for North Tyneside.
111.CHAIR: We have had a discussion about sitting times, and we have agreed that we are aiming to end today’s session no later than 4.30, and we intend to take an hour out for lunch from one until two. I need to make some housekeeping announcements: we are not planning a fire alarm today, as best I know, but there will be loudspeaker instructions that you should follow if that should happen. Neither, I think, are we expecting any divisions in the main Chamber today. If that should happen unexpectedly, then we will suspend the sitting in here to allow the voting to take place. Hopefully you have all turned off your mobile phones before we start. If not, perhaps you would do that now. Hansard are taking a record of proceedings, so I would ask all witnesses and all those making presentations to speak as clearly as possible to help with that. I think, Ms Lieven, you are going to start for us?
112.MS LIEVEN: Please, Sir. As the Committee know, I appear on behalf of the Promoters, TfL and the London Local Authorities. As I understand it, there are two matters for the Committee to consider today. First of all, there is the pedicab clause, clause 17; the Promoters are asking the Committee to withdraw clause 17 from the Bill, or amend the Bill by leaving it out. I understand, and I am sure the Committee are aware of it, that Mr Smallwood wishes to make an application for his costs in respect of that clause. That is the first matter, and I was going to deal with that first, if that was acceptable to the Committee.
113. The other matter the Committee needs to consider is the unopposed clauses; because this is a House of Commons Committee, the unopposed Clauses are considered. There are two clauses to which the relevant Government Departments have made Reports, although certainly in respect of one we think we have met all the concerns. I was going to deal with the unopposed clauses separately, after we have considered clause 17.
114. In respect of clause 17 and Mr Smallwood’s application, I will obviously leave Mr Smallwood to make the application, but I think it would be helpful if I explained a little bit of the background, why it is we are seeking to withdraw clause 17, and the nature of Mr Smallwood’s application. If I can just start with the nature of the application, because that is the matter that the Committee needs to have in mind, an application for costs in this situation is made under the Parliamentary Costs Act 2006, which I think the Committee has before it. There are effectively two limbs to any application for costs. The Committee has to decide that the Preamble of the Bill is not proved-do not worry about that; it does not apply-or amend the Bill so as to protect a Petitioner who opposes it, and the Committee has to report unanimously that the Petitioner who opposes the Bill has been unreasonably or vexatiously exposed to costs in defending his rights with which the Bill proposes to interfere. The Bill has to have been amended to protect a Petitioner’s interests, and you have to unanimously report that effectively the Promoter has acted unreasonably or vexatiously.
115. In terms of clause 17 and why we are seeking to withdraw it, I start by saying, as I expect the Committee are well aware, London Local Authorities Bills and Acts are very common. I suspect it is about one every two years in recent years. They deal with Londonspecific measures-issues that particularly impact on London. The London Local Authority and TfL Bill is the third such Bill, and that is where there is a specific impact not just on London but specifically on Transport for London.
116. Turning from there to clause 17, the purpose of clause 17 was to make it possible to enforce, in respect of traffic offences, against pedicabs. But clause 17 was always reliant upon their being some form of licensing or registration scheme to which the enforcement regime in clause 17 could then attach. It was always only what I would describe as a parasitic provision. It needed first to have the licensing or registration scheme. As the Committee probably know, particularly if they go out in the West End in the evenings, pedicabs are what would be described around the world as bicycle rickshaws, and they have become very common in London, particularly in the West End, over about the last 10 to 12 years. I think they first appeared about 13 years ago. They are very prevalent, particularly around areas in Westminster-around Leicester Square and Charing Cross.
117. Without getting into the pros and cons, it would be fair to say they have been controversial over the years. There are potential safety issues for passengers, drivers and pedestrians. There are issues around highway congestion and pedestrian obstruction, and those issues obviously particularly come into focus late at night in the West End. Over the years there have been various efforts made to regulate or control them, both through the courts and through Parliament. At this stage I should say that it would take a very long time for me to explain the ins and outs of why all those efforts, both legal proceedings and parliamentary proceedings, to regulate or control have not entirely succeeded, or not succeeded at the present time. In terms of the history of clause 17, when the Bill was introduced, which was as long ago as November 2007, it was done on the assumption at that time that there would be a statutory licensing scheme in place. That was what was expected to be the case in November 2007.
118.For reasons that I can explain, but I will not at this moment unless I have to, that statutory licensing scheme did not come forward, because of the process of litigation in a High Court case. By the time the Bill reached the Lords Committee in March 2009-this House’s equivalent in the House of Lords-TfL was supporting the introduction of a voluntary registration scheme, which would have been approved by the Mayor. When I was speaking in exactly the same role before the House of Lords in 2009, what we were proposing was that the clause be amended so that it would work not with a statutory licensing scheme but with a voluntary registration scheme under the Mayor. That was the position in 2009. If such a scheme had been adopted by the pedicab industry, then it would have allowed the clause in the Bill on traffic enforcement-that is what clause 17 is about-to work and be effective.
119. But what happened next was that, after the House of Lords Committee approved the amendment and the clause, and the clause went forward, there were very extensive discussions with representatives of the pedicab industry regarding the voluntary scheme. It became increasingly clear through those discussions, both to representatives of TfL and Westminster City Council, which is the local authority most affected, that a voluntary registration scheme would not work. Again, without going into an enormous amount of detail about that, there were two fundamental reasons why it would not work. One was that insufficient operators were prepared to sign up. A voluntary scheme only works if you bring the majority of the pedicab industry into it, and it became clear that would not happen.
120. The fundamental stumbling block or difference of opinion was as to whether Criminal Records Bureau checks should be carried out as part of the scheme, or not. It was the view of TfL, Westminster and the Metropolitan Police that such checks were fundamental to any voluntary registration scheme, and the representatives of the industry would not accept that. From that point it became clear that a voluntary registration scheme that the Promoters of this Bill and the police could support would simply not get enough buyin from the pedicab industry as to be in any sense effective.
121. The next thing that happened, or about the same time, was that when the Bill was deposited in this House, in March 2011, there were petitions against clause 17 from the pedicab operators, from the RMT, and from the London Taxi Drivers’ Association. I hope the Committee can see from the nature of those Petitioners that effectively the promoters were caught in the middle: the pedicab operators were saying that the provision would not work and was too draconian, and the taxi drivers were saying that there should be no tacit approval of pedicabs at all. We were very much caught in the middle of what I would describe as the pedicab debate.
122. In those circumstances, Westminster and TfL, with obviously the agreement of the other local authorities as joint promoters, reached the conclusion that clause 17 would simply be of no effect, and that it was pointless to fight through an Opposed Bill Committee-in other words to come here not just with Mr Smallwood applying for his costs but with four sets of Petitioners attacking us from every possible angle-for a clause that, in reality, would have given very little benefit, if any, because of the failure to bring forward a voluntary registration scheme. In those circumstances the Promoters took the view that with so little, if any, benefit and in the face of the level of opposition, the best course was to seek to withdraw the clause.
123. Therefore, in March 2012, when the Bill came before this House at second reading, Mr Blackman MP, who was speaking on behalf of the Promoters, told the House that the Promoter intended to withdraw the clause, and at that point it became public. It is in the light of that decision, as I understand it-we will hear from Mr Smallwood in a moment-that Mr Smallwood seeks his costs. That is the history of why we are asking this Committee to allow us to withdraw the clause. I will obviously come back to this later, but I hope that the Committee can see that under those circumstances neither limb of section 10 of the Parliamentary Costs Act is met. We are not asking the Committee to amend the Bill to protect Mr Smallwood or his company’s interests. We are asking the Committee to amend the Bill because we do not think the clause will be effective. Secondly, it is certainly the case that the promoters have not acted unreasonably or vexatiously, so as to expose Mr Smallwood to costs. As I expect the Committee could guess, I could give a great deal more detail on that history, with a lot more dates and a lot more information, but I hope that at least gives a flavour of the history. Mr Lewis, who is the Parliamentary Agent, reminds me it is the London Cab Drivers’ Club who were the Petitioners, not the London Taxi Drivers’ Association.
124.CHAIR: Thank you, Ms Lieven.
125.MS LIEVEN: I think the nature of the interest was the same.
126.CHAIR: Thank you. Does Mr Lewis want to add anything to what you said?
127.MR LEWIS: No.
128.CHAIR: Members of the Committee, are there any questions or points you want to raise? Mr Walker?
129.MR WALKER: You said that the petitions were received from the various organisations in March 2011, and then Bob Blackman spoke in March 2012 and made public the decision to withdraw the clause. Was there any intimation between those two events that the clause would be withdrawn?
130.MS LIEVEN: There were certainly, sir, extensive discussions going on with the pedicab industry between those two dates. What I could not say with any certainty, but I will take instructions on, is whether there was any express notice given to Mr Smallwood between those dates that we were contemplating withdrawing the clause. I suspect that may not be critical, because probably there were not any particular costs run up between those two dates, but I will just check. So far as a very quick set of instructions has told me, I do not know that there was express notice.
131.CHAIR: Mr Buckland?
132.MR BUCKLAND: You said that the decision was being contemplated. When was the final decision to withdraw the clause made? How long before Mr Blackman’s statement in the House of Commons?
133.MS LIEVEN: Can I just have a moment? I have a mediumly detailed chronology, and then I have a very detailed chronology. It was around January 2012, sir.
134.MR BUCKLAND: Around January 2012. Are you able to help us as to why it was that the statement was then made in March? Is it a question of procedure and time available in this House, or is there another explanation for the delay?
135.MS LIEVEN: Sir, you may have picked up from the papers that there was considerable parliamentary delay in achieving a second reading. That is why the second reading only took place in March. I understand that, procedurally, the appropriate place to say that you will withdraw the clause is at second reading.
136.MR BUCKLAND: Thank you.
137.CHAIR: Anything else? We have heard the presentation from Ms Lieven. I think it is for Mr Smallwood now. You have heard what has been said.
138.MR SMALLWOOD: Thank you, Mr Chairman.
139.CHAIR: Can we just ask for your comments only on the issue of the withdrawal of clause 17 at this stage?
140.MR SMALLWOOD: Yes, Mr Chairman. With regard to the withdrawal, I have a case to make. Am I able to go through a case? Sorry, yes-I am content for them to withdraw.
141.CHAIR: Right. That is the first point.
142.MR SMALLWOOD: Sorry, yes.
143.CHAIR: There will be an opportunity for you to make a case, I think, on the costs.
144.MR SMALLWOOD: Thank you. Thank you, yes.
145.CHAIR: But not at this stage.
146.MR SMALLWOOD: No. And if the Committee does decide not to accept the withdrawal, I would like to present my petition.
147.CHAIR: I will take advice. The Committee will go into private session again to deliberate on what we have heard so far. Again, we will do this as expeditiously as possible, with due fairness, so if you could withdraw. Thank you.
Public session adjourned at 10.32 am
Ordered at 10.34 am: That the Parties be called in.
CHAIR: I can announce that the Committee has decided to agree to the request to withdraw clause 17. I think, Mr Smallwood, we need to move on to the issue of your costs now, and this is your opportunity to make your case to the Committee.
148.MR SMALLWOOD: Thank you very much. Thank you, Mr Chairman. Good morning to all the Committee. Firstly to introduce myself, I am Chris Smallwood, and I was one of a group that set up a company called BugBugs, which was the first operator to start in 1998. I am the spokesman for the London Pedicab Operators Association, which represents the interests of the pedicab industry, and am acting as agent for the Petitioners who were opposing the clause-namely BugBugs Media and Reliable Rickshaws. In view of the fact that the Committee has agreed to the withdrawal of clause 17, our case is in support of a claim for costs under Section 10 of the Parliamentary Costs Act, by seeking a unanimous decision, as Ms Lieven has said.
149. I would like to take the Committee very briefly through a brief history of the pedicab industry, a very brief legal background, the political background to this Bill and its predecessor-because this has been up before-and then I will round up. At the end I have a copy for each of the Committee of my roundingup notes, which is just six points. To start with, pedicabs or cycle rickshaws are pedalpowered cycles specifically designed and engineered to carry up to three passengers, and are now seen in cities across Europe, the USA and of course in the Far East. They are an environmentally friendly form of transport, adding vibrancy and colour to the streetscape, and have proved to be very popular with the public, complementing rather than competing with taxis and motor transport services.
150. There are now 600 to 700 pedicabs operating in London, which have made millions of safe journeys over the last 14 years and have been very much part of the London scene. The pedicab industry has also created hundreds of sustainable employment opportunities for pedicab riders, who are generally fit young men and women, transporting passengers on relatively short journeys in busy inner city areas. There are many perfectly respectable companies operating pedicabs to a very high standard, with all the systems and procedures in place that you would expect of fit and proper businesses in the transport industry. These include amongst other things topquality, well maintained pedicabs, insurance cover, rider training, management and public accountability. However, some elements of the industry today have descended into a lowest common denominator and are unwilling or unable to achieve such standards. I do not defend or support that sector of the industry in any way whatsoever.
151. I also fully understand that the impact of pedicabs is principally in Westminster, but they do also operate in other London boroughs. For over a decade we have maintained the view, with which the London authorities and the Government have concurred publicly, that the pedicab industry should be subject to regulation, like all public modes of transport. Regulation creates a level playing field and demands standards of safety and accountability with which the industry must comply in order to, as much as possible, ensure the safety of the public. All efforts to achieve this have been thwarted, and pedicabs have become a political hot potato in London. The licensed taxi industry has fought robust and vociferous campaigns to ban pedicabs, and largely due to this political influence, pedicab regulation has remained in the "too difficult" pile, and simply been passed around between Westminster Council, TfL, the Mayor’s office and the Government.
152. Just a very brief legal background: pedicabs operate as stage carriages in London, under section 4 of the Metropolitan Public Carriage Act, and as such they can legally ply for hire for passengers, i.e. they can be hailed by passengers in the street throughout Greater London. This only applies in Greater London. This is the same section of the Act in which hackney carriages are defined, which is section 4. However, in section 6 of the same Act, hackney carriages must be licensed, whereas all references to licensing for stage carriages in section 6 have been repealed over the years by Parliament. There are no licensing provisions in place for stage carriages. Between 1999 and 2003 there were various court cases that took place in terms of defining pedicabs and their legitimate operation as stage carriages. The significant outcome was at the High Court in 2003, where Mr Justice Pitchford found in favour of the defendant. In his judgment, he said, "I recognise that the consequence of this decision is that the pedicab plying for hire in London is subject to no licensing regime. That may be regarded as an unwelcome consequence. The first respondent"- which was the company I was with, BugBugs-"has submitted to the London Public Carriage Office a draft strategy for pedicab regulation, and it is anticipated that a scheme will be prepared within the next few months." This was in 2003. "I comment only that unless my decision is wrong in law, primary legislation will probably be required [to introduce licensing]."
153. With this decision in place, the licensed taxis no longer had the monopoly on being able to ply for hire. The Licensed Taxi Drivers’ Association, which privately prosecuted the 2003 case, then asked Transport for London to join them in an appeal in the House of Lords, and TfL declined on the basis that the decision was sound. After the High Court decision, with the legal position clear, the pedicab industry started to grow, rapidly, in an unregulated environment, and this was recognised by TfL, who commissioned two comprehensive reports from independent consultants. We work closely with TfL and the consultants, and the broad conclusions of both reports-I have them here if anyone wants any further details-were essentially that pedicabs should be licensed, and pedicab ranks should be introduced, from which pedicabs could stand and ply for hire, and to assist members of the public in locating approved services. In summary, pedicabs plying for hire is a legal activity, and secondly the High Court ruling recommended that primary legislation should be required, but to my knowledge this has never been acted upon. Also in 2005, TfL appointed a Pedicab Officer to work with us to scope out a licensing scheme.
154.In 2005, the previous London Local Authorities and Transport for London Bill included a pedicab clause. This Bill was led by Westminster Council and included a pedicab clause. Under the measures in that clause, all pedicabs would be required to register with Transport for London, and would be treated as motor vehicles for the purposes of civil enforcement, parking, stopping and moving regulations. There were no measures in the Bill requiring insurance, standards and conditions of fitness, training or registration, or indeed anything else that the public would expect of a registration scheme or a licensing scheme. There was no provision for pedicab ranks, meaning that the pedicabs would be at the mercy of the civil enforcement cameras, and pedicabs would not be able to stop and stand and ply for hire at virtually any point on the highway without potentially incurring a penalty charge notice.
155. In response to this, the GLA Transport Committee produced a report, and came up with exactly the same conclusions: that licensing was a priority, and that ranks should be in place from which pedicabs could ply for hire. We petitioned against the clause in 2005 at the Opposed Bill Committee, and the Opposed Bill Committee recognised that the provision of ranks was a significant issue and should be tackled before or in conjunction with any legislation to regulate the industry. The Committee reported, "We recommend that the promoters of the Bill give more thought to the registration and licensing of pedicabs. We believe that registration and licensing of the pedicab industry would be broadly welcomed. However, such legislation would need to resolve the issues raised by the Government and by the industry. The evidence we heard indicated that the clauses in the bill would damage the industry if introduced ahead of any future licensing scheme," and they deleted them accordingly.
156. Shortly after that the hearing, there was an article in the taxi industry press, Cab Trade News, which emphasised why the pedicab industry needed to oppose those clauses. It read, "After several meetings with Westminster Council and the movers of the Bill, we were satisfied that there was a genuine desire to eradicate the illegal and very dubious activities of pedicabs from the streets of London. We were confident that the high cost of fines to operators would make it financially unworkable for them. If this Bill had passed into law, pedicabs would have been banished from London's streets."
157. In summary, the Promoters can have been in no doubt at that time of the outcome of the raw civil enforcement measures and that they would remove the industry essentially by the back door. This was borne out by the fact that the Licensed Taxi Drivers’ Association had the same clauses tabled in the Road Safety Bill, and at that debate in 2005 Dr Stephen Ladyman, the Minister of State at the time, said: "Should pedicabs be licensed and properly managed? Yes, of course, is the answer." In response to the movers, he said, "I suspect that the … briefs were written for them by the taxi associations. Those associations do not want pedicabs to be managed or to be brought within a licensing regime. They want them off the road, because they perceive that pedicabs are taking away some of their money. The honourable Member for Ilford North says that pedicab owners are making profits, but what does he think taxi drivers … are doing?" And he says, "If managed properly within a licensing regime, pedicabs could provide an additional level of diversity" on the streets of London, and "if that is what [people] want to do, why not allow them?"
158. Moving on to the advice given by the Government in the first Bill, licensing, in 2006 TfL did embark on a strategy to license pedicabs as hackney carriages. To achieve this they would take BugBugs, who won the previous High Court case, back to court to overturn that 2003 High Court decision, which had defined pedicabs as stage carriages, in order to redefine them as hackney carriages. TfL would, in tandem with this court action, conduct a public consultation to seek views from other interested parties on this strategy. The TfL lawyer said that he was supremely confident of winning the case and it was very much in our interests to co-operate. Whilst we had a number of reservations about this, on the face of it it seemed to be reasonable, and after so many years of lobbying for licensing we had a responsibility to engage with this strategy. However, over the six months we worked with TfL on the consultation document, it became more and more apparent that if TfL succeeded in redefining pedicabs as hackney carriages, there was in fact little or no intention of actually going ahead with licensing as hackney carriages.
159. If this were correct, then it would have been a fatal blow to the pedicab industry. If they had been redefined as hackney carriages, but then not licensed as hackney carriages, pedicabs plying for hire would have instantly become an illegal activity. We therefore decided to challenge TfL to give proof of their claim that they actually intended to license as hackney carriages. We proposed that TfL set up a pilot hackney carriage licensing scheme, which would initially be voluntary, but would then, if TfL were successful in the courts, dovetail into the hackney carriage legislation, or indeed any other licensing legislation that might come along in the future. This proposal was supported in public statements by the then Undersecretary of State for Transport, and the Government spokesman in the Lords. With these endorsements in place, TfL called us to a meeting, and the terms of this pilot scheme were all but agreed. We were getting somewhere. This was in the middle of 2007.
160. However, TfL after that declined to proceed, and they also declined to have any further discussions on the proposed pilot scheme. In 2009, as counsel for the Promoters said, TfL announced that they were discontinuing their case in the High Court to redefine pedicabs as hackney carriages, and after three years this was a major change of strategy on behalf of the Promoters. We later received the minutes from a TfL meeting discussing pedicabs, and they read as follows: "It has also previously been suggested that it would be possible for TfL to ban pedicabs by obtaining the High Court declaration that they are hackney carriages and then not licensing them as such … However, by seeking a declaration from the High Court … and concluding a consultation on the form of a hackney carriage licensing regime for pedicabs, there was an expectation that TfL would have proceeded to license pedicabs." Therefore, "any decision not to license pedicabs as hackney carriages would have been at high risk of challenge by judicial review."
161. This rather endorsed our earlier fears. We are now confident that rather than risk a judicial review by deciding not to go ahead with licensing, it was politically more expedient to discontinue the case. We made an FOI inquiry, as a matter of interest, asking about the budget set aside for a licensing scheme; we were told there was no budget set aside between 2006 and 2009 for a scheme. I think it would be very odd for a public authority to allocate budget to achieve licensing, scope out a licensing scheme, conduct a public consultation, and prosecute the litigation needed to achieve it, but then have no budget to deliver the actual licensing scheme. Our fears were rather borne out by a press report in 2009, which said, "TfL's Public Carriage Office, which oversees taxis in London, launched the consultation in 2006 but told the London Taxi Drivers' Association and Grant Davis, chairman of the London Cab Drivers Club, that it was to be quietly sidelined."
162. As the defendant in this case, we were very clear from the outset that trying to shoehorn pedicabs into existing motor hackney legislation would be complex and inappropriate. TfL eventually reached the same conclusion. We suggest there are two possible explanations for this: either there was never an intention to actually license us as hackney carriages, or it was simply incompetence on behalf of TfL Legal. This is also a distinct possibility, because although TfL set out on this strategy to license pedicabs as hackney carriages in December 2005, the lawyer involved did not even review the judgment from the 1999 case until 18 months later, in July 2006, when they were well on course for this one. If he had reviewed it from the outset, he would have realised that the basis of TfL’s case had indeed been carefully considered by the district judge in 1999, and dismissed. Whilst that decision would not have been binding on the High Court, it was a fair indication that there might be a hole in TfL’s case and, therefore, in their entire strategy.
163. Moving on to this Bill-I am sorry I am taking rather a long time-in the first draft of this Bill, as counsel said, there was an assumption that pedicabs would have been licensed as hackney carriages. If TfL had genuinely intended to proceed with the licensing of hackney carriages, this clause reflected precisely what almost everyone had been recommending. There would have been a mandatory licensing scheme in place, which would have included provision of the essential pedicab ranks, and therefore the civil enforcement measures for parking and stopping would have been acceptable. During the runup to the deposit of the Bill in Parliament, and with TfL declining to set up their own licensing scheme, Martin Low, the Commissioner for Transportation for Westminster Council, was clearly also circumspect about the TfL strategy regarding hackney carriages. With a pedicab clause on the horizon, Westminster Council now proposed a voluntary scheme, and asked us to design a framework based around our Codes of Practice for operators and Codes of Conduct for riders. Westminster Council also clearly recognised that the provision of pedicab ranks was crucial, whether or not pedicabs were licensed, and were clear with the industry that they now intended to provide ranks.
164. With this understanding in place, we worked for some two years with Westminster Council, by attending meetings, drafting the voluntary scheme, and scoping out the appropriate places for the pedicab ranks. Westminster Council obtained signed approval from the DfT and told us that they would need to consult locally on the traffic orders required to site the ranks, which would take about three months. By the end of 2008, however, Westminster Council had not carried out any such consultation. No attempt was made to draw up a proper plan, structure, documentation or indeed anything one would expect of a City Council when creating, in effect, a quasilicensing scheme. Discussions became vague, and each time we requested clarification about precise detail, responses, if any, were unclear.
165. At the Lords Opposed Bill Committee in March 2009, shortly before the Committee hearing, the pedicab clause was amended, removing the references to licensing as hackney carriages, and replacing it with "registered under approved arrangements by the Mayor", which is essentially a voluntary scheme. I will refer to it as a voluntary scheme, if I may, from now. The Promoter set out their case for introducing the civil enforcement measures, with the primary focus being on this new registration scheme and the provision of the essential ranks.
166. The Counsel for the Promoters, in her response to my evidence, said, "a lot of Mr Smallwood's Petition was about the need for parking bays, and of course provision is being brought forward, as Mr Low told you … Mr Low has already referred to the fact that they can stop on yellow lines and parking bays, and in the majority of cases they are operating in the evenings so the parking bays will be available and yellow lines will be available. There will be additional parking areas provided specifically for pedicabs." On the basis of the ranks, Counsel for the Promoters was able to say that there was now almost complete agreement between the Promoters and the industry. This approach was very persuasive for the benefit of the Lords Committee and the industry alike. With these undertakings made in Parliament on behalf of the Promoters with regard to the provision of ranks, there was now more optimism, we believed, on behalf of all parties that some progress was being made.
167. The Lords Committee made one crucial amendment to subsection 9 of the clause, which was, "The power to make regulations shall be exercisable by statutory instrument." The Committee recognised this as being what is commonly known as a Henry VIII clause, which would allow the promoters to introduce additional regulations with no scrutiny by Parliament. The Committee found this to be unacceptable and amended it accordingly by adding, ‘Subject to annulment pursuant to a resolution of either House of Parliament." It may be that this Lords amendment contributed to the ultimate loss of appetite for this clause on behalf of the Promoters at a later date.
168.After the Committee hearing there was much activity on behalf of the Promoters, requiring our engagement at a number of meetings to finalise the precise terms of the voluntary scheme. By May 2009, which was two months after the Opposed Bill Committee, we were agreed, bar TfL checking on some traffic management details.
169. Six months later, the final version arrived. However, the Promoters had amended various clauses on which we had earlier agreed. The goalposts had been moved yet again, significantly. We set out our concerns to the Promoters, or certainly to Westminster City Council. There was no substantive response to our questions, and after further meetings with Mr Low, and others, throughout 2010 it became very clear that Westminster had become very cold on the voluntary scheme referred to in this clause.
170.In 2011 we were called to a further series of meetings by Westminster Council. We were told that the narrative had now changed again, and as part of the Big Society initiative we were being asked to design another new voluntary scheme, in partnership-crucially-with Westminster Council, the Mayor’s office, TfL, and the police.
171. With more parties involved, we were advised to prepare a Memorandum of Understanding between the parties, setting out the objectives together with the terms and the mechanism of the new voluntary scheme. As with both the different voluntary schemes, these documents are not lightweight, each running to some 10 pages and set out in precise detail, with clauses and subsections, very similar to a piece of legislation, so we did an enormous amount of work on this. Having carried out all this work and prepared a new voluntary scheme framework based on the essential licensing criteria we discussed at length with the promoters for over three years, it is extraordinary that we were then told that the Memorandum of Understanding, and the terms of the scheme for operators and riders, were too comprehensive and involved too many parties. Westminster, we were now told, had received strong legal advice-it was one of the Councillors who told me this-not to sign any substantive agreement, because of the risk of legal challenge.
172. Considering the fact that this new agreement we had drafted was based essentially on pretty much what we had agreed in 2009, and this is what Westminster had asked us to prepare, this made a mockery of several years’ work. Westminster Council then drafted another Pedicab Voluntary Code, which was a woefully inadequate, single piece of paper, setting out some very vague responsibilities with no real meaning. I have a copy here, if the Committee would like to see it. We heard no more from Westminster on this one. In October 2011 we wrote to the Mayor’s office, explaining that we were getting precisely nowhere with Westminster, who were constantly backpedalling, and TfL should now take the lead.
173. For years we had been told that Westminster Council would be preparing traffic orders for the siting of the pedicab ranks, which would require a consultation. A recent FOI inquiry revealed, "I can confirm that no public consultations were undertaken by the City Council on the subject of positioning of ranks between 2008 and 2012." This response casts into real doubt whether there was ever a genuine intention to act on the undertakings made in the Lords and elsewhere regarding the provision of the allimportant ranks. In a further FOI inquiry to Westminster Council, we asked for details of the budget set aside for registering pedicabs under the voluntary scheme we are discussing today between 2008 and 2011, minutes of reports which informed the decision to withdraw this clause, and the cost associated with promoting this clause.
174. The somewhat inadequate response to that was, "Unfortunately, we do not hold the information you requested, as this authority does not license pedicabs or riders." I did not ask anything about riders, so there is an internal review going on about that one. TfL and now Westminster City Council have both therefore been content to allocate budgets, instructing lawyers and parliamentary agents, for their own employees to do extensive work and engage with the industry to deliver mechanisms and schemes either through litigation or legislation, yet no budgets have been allocated to administer any of the resultant schemes. At the very least this evidence suggests that the promoters misled the industry and everyone else into believing there was a genuine intention to deliver the voluntary scheme and to install the ranks.
175. In January of this year we were invited to a meeting with Isabel Dedring, the Deputy Mayor for Transport, TfL, and the police, in response to our earlier suggestions that TfL, as the London licensing authority, should take the lead. The meeting was very informative. It was acknowledged that the differing opinions about the High Court definition of a pedicab, and whether or not they should be licensed, have made it impossible to reach a political consensus. There was sympathy with the fact that we have been stuck in the eye of a neverending political storm. We explained that after so many years it was a very tall order indeed for the London Pedicab Operators Association, or essentially the Petitioners, to singlehandedly resolve the problems evident on the street, and we were very clear that we needed financial and official assistance.
176. We were advised at the meeting to draft another proposal, based on a set of standards, which we did, and we drew up a budget and a mechanism to set up and deliver another quasiregulatory scheme. We are on about scheme number four, now. We attended several further meetings with TfL, and it became evident that there was no real appetite to officially engage with the industry. Both TfL and the Mayor’s office declined to provide any support in terms of funding. However, the police, who were equally as frustrated as everyone else about the lack of regulation and ranks, have continued a positive dialogue.
177. We are now in the advanced stages of setting up a scheme with the police, centred around a clear and agreed set of standards of pedicab operation. The success of this will be entirely reliant upon enforcement of various existing traffic regulations, and on both parties sharing information and intelligence in order to lawfully deal with those unwilling or unable to operate to acceptable standards. We are optimistic about the prospects of success.
178. Moving to the withdrawal of the clause, in March this year the Promoters made the decision to withdraw the pedicab clause. We received the following letter, stating the grounds for doing this: "This decision follows further discussions between the Promoters and representatives of the pedicab industry, in which it has been agreed that the pedicab industry will take steps towards selfregulation. The Promoters have been working with the pedicab industry to achieve selfregulation, and consequently propose to withdraw the provisions contained in the Bill." Self-regulation, as they put it, by definition is without involvement from an outside authority, and has been happening anyway for the past 14 years on behalf of the industry, regardless of this Bill. We can find no agreement to this, so it is difficult to find any meaning in this letter except that it is a clear admission that, in effect, the clause in this Bill has been a total waste of everyone’s time, energy and resources.
179. Everyone knows that in reality selfregulation is wishful thinking, and none more than the Promoters. Otherwise, why have they made so many attempts to litigate and legislate? The second reading of the Bill in the House of Commons, when the Promoters were talking about withdrawing it, brought into sharp focus the views of various MPs on both sides of the House and the fact that the Promoters were seeking to withdraw the Bill. John McDonnell, who chairs the RMT Parliamentary Group, which represents taxi drivers, blocked the Bill for some time, putting very great pressure on the Promoters to withdraw the pedicab clause. John McDonnell said, "After all these years, I would have hoped the Promoters would have learned some lessons about how to legislate properly … The last time this matter was raised in legislation, the Opposed Bill Committee cited the Department for Transport’s concerns about pedicabs, such as the lack of any safety regime, the impossibility of identifying the owners [and the riders] of the pedicabs, issues over insurance and the fitness of the characters who are operating the pedicabs. The provision was thrown out by the Opposed Bill Committee on the basis that it failed to comply with any of the Department for Transport’s recommendations about the form of the licensing regime that should be introduced."
180. Mr Nuttall went on to say, "The organisations concerned-private limited companies, trade bodies and, indeed, trade unions-have been put to expense in having to raise these petitions. I dare say the solicitors and parliamentary agents were not acting for nothing … I therefore assume these people were being paid rather handsomely for their good services. These Bills are by no means a no-cost option."
181.Finally Mr Chope said, "If this Bill had not been objected to and had instead received its second reading on the nod, it would not have been possible for its promoters to reflect upon clause 17 on pedicabs, for example. They have now had the opportunity to reflect on that, and have reached a different conclusion from their original one … That is why I begin my main remarks by referring to the pedicabs issue, which raises an enormous amount of interest in London. I have to admit that I have never travelled in one, but I am conscious of the fact that they are among the most environmentally friendly forms of transport-even more so than electrically propelled motor vehicles, which are also dealt with in the Bill. I note from the evidence that the pedicab industry has produced that most pedicab drivers are self-employed entrepreneurs serving the interests of the people of London … Pedicabs themselves are not subject to any specific regulation, but this Bill, when it was brought forward, contained definitions of pedicabs which were offensive to everybody: offensive to the taxi trade, to the pedicab industry and, probably, to the people of London-if they applied their minds to the matter. I note that it is now proposed that the pedicab industry should engage in self-regulation and that the promoters of the Bill are making specific arrangements with the pedicab industry to encourage that approach. However, is that consistent with what has taken place before?" So clearly MPs contributing to this debate were none too impressed with the conduct of the Promoters, and recognised that putting people in the position where they need to petition is not a nocost option.
182. Turning now to our claim for costs under Section 10, I believe as Counsel for the Promoters has said, the test in (a) is that the Promoters have withdrawn the clause in order to protect the Petitioners who opposed it, and secondly that the Committee has made a unanimous report that a Petitioner who opposes the Bill has been unreasonably or vexatiously exposed to costs in defending the rights with which this Bill interferes. That is, of course, a fairly narrow point. What I would like to do, if I may, is to round up with some points. I do have this as a handout, which I can hand out to the Committee, if I may.
183. Rounding up, the recommendations made in 2005 by the Opposed Bill Committee and the Government were that licensing should be introduced before or in conjunction with any further legislation to regulate the industry. In other words, in the absence of licensing, which would include ranks, civil enforcement measures, particularly for parking and stopping, were unacceptable to Parliament. This was endorsed by the late Lord Dahrendorf in the Lords, when he said, "It is important, I think, that counsel in her presentation makes it clear that one does not introduce a registration or licensing scheme in the name of traffic enforcement."
184. Parliament has been vigilant on this precise tactic used by Westminster Council, with the same pedicab civil enforcement clauses, with no licensing provisions, being repeatedly tabled in London Bills, none of which have been accepted. A legal, popular, environmentally friendly and benign economic activity should be allowed to flourish, albeit in a regulated environment.
185. My second point is that once TfL had made the decision to discontinue the strategy to license pedicabs as hackney carriages, which would have been mandatory and included ranks, the promoter lacked judgment by not withdrawing this clause prior to the Opposed Bill Committee in the Lords. Voluntary regulations are pointless and provide no clarity for anyone. With no sanctions in place for breaches of voluntary regulations, how can the police and the courts carry out their duties? What is required is a statutory regime, which places obligations on the licensee and the authorities, whereas with a voluntary scheme, such as the ones proposed by the promoters, they have no such obligation. For example, pedicab ranks could be installed today and removed tomorrow, and there would be no recourse.
186. My third point is that we further suggest that the proposed licensing of pedicabs as hackney carriages by TfL, and the subsequent undertakings made in the Lords on pedicab ranks and the voluntary schemes on behalf of Westminster Council, were quite simply an elaborate sham, set up to fail. The promoters have studiously avoided getting to the point where a proper agreement can be signed and the appropriate infrastructure put into place.
187.Fourthly, the controversial Henry VIII clause, allowing the Promoters to make regulations by statutory instrument, with no scrutiny by Parliament, we see as being further evidence suggesting that the Promoters were not acting in good faith. Even though the Promoters protested, the Lords Committee completely disagreed, and the clause was duly amended so the statutory instrument would be subject to parliamentary scrutiny.
188. My fifth point is that public authorities have a duty to be fair, honest and impartial. Evidence suggests that the Promoters have not proceeded with this candour, and have been unduly influenced by the powerful taxi industry. This has resulted in the Petitioners being put to enormous amounts of work in trying to achieve what is, in effect, an unwinnable process of attrition. The Licensed Taxi Drivers’ Association have the stated aim to "ban, don’t license" in relation to pedicabs. The Deputy General Secretary of the Association is on the Board of TfL, so there is real influence right at the top of the London licensing authority. The private hire or minicab industry experienced very similar anticompetitive behaviour, which they overcame, and now flourishes in a properly regulated market. The Promoters are powerful public authorities, with huge financial, legal and human resources, and have expended eyewatering amounts of public funds and dedicated significant civic resources to this, including the valuable time of the courts and Parliament, and yet delivered no tangible results or any value for money.
189. On the other hand, the Petitioners and I are not lawyers, we have no legal training, and we have jobs to get on with, with very limited financial resources and hence access to lawyers. Over the life of this clause alone there have been no less than four major strategy changes on behalf of the promoters. We have continued to act in good faith, and dedicated time, energy and resources each time the Promoters have required our engagement in order to deliver their own strategy and policy, only for them to abandon the lot. We have been committed to achieving an outcome that ensures the survival of the industry and satisfies the majority of stakeholders.
190. I would just like, if I may, to come back on one thing that Counsel said, which was that one of the reasons they decided that they would not continue with voluntary arrangements was because of reluctance to have CRBs-Criminal Records Bureau checks. In the first draft of the approved arrangements, which was handed out to everyone in the Lords, there was no mention of it at all. We then agreed at a later date that the owners and operators of pedicab companies would have CRBs. It was then changed again to owners and operators having CRBs, and we agreed that within two years all riders would have CRBs. It ended up being CRBs immediately.
191. Our argument was that CRBs are important, and we have since found out that the police can do a Police National Computer check on the fly anyway, so that was there. It was the expense of the CRBs and the time it would take to get those CRBs. We were saying, "There is so much to get in here on this voluntary scheme, to have CRBs as a showstopper is ridiculous, because every time we are moving forward, we move a step back." I think that was the only thing.
192.We found out the police can do these Police National Computer checks, and the police international computer checks, no problem at all. So we have not been able to move forward on this one. For these reasons, and I will hand out these to the Committee just as an aide memoire, we submit that the promoters have unreasonably and vexatiously exposed the petitioners to costs in defending our rights with which this clause proposed to interfere. Would you like me to move on to costs immediately?
193.CHAIR: I will just say this, Mr Smallwood, at this stage: you are going to give various documents to Members of the Committee.
194.MR SMALLWOOD: Yes, one.
195.CHAIR: I want to make sure that all copies of all the documents you are giving to us go to Ms Lieven as well. I think we may need to make arrangements to get some copies done. Have you got sufficient copies?
196.MR SMALLWOOD: I have got 15. It is essentially my summary.
197.CHAIR: If you hand those over now, we will get them distributed. But in the meantime you can move on to your argument about costs.
198.MR SMALLWOOD: Yes. One can imagine we are a fairly small industry, and we have been working on this now for some 14 years. Every time we have got anywhere close to any sort of agreement, the goalposts have been moved. Our costs are entirely based on time. As I said, we are not lawyers, so we have worked on this ourselves. The costs are based on essentially meetings that we have been required to attend with the promoters, obviously writing petitions and these various agreements that then move on to another agreement and another agreement. Then, of course, Westminster Council became cold on the whole thing, so we were put to effort over three or four years, in fact almost five years, and it has ended up being totally abandoned. The basis for the claim is that in order to defend this clause, we have had to do an enormous amount of work, and of course now the Bill has been amended and the Committee have agreed to withdraw the clause, which is obviously in our favour, because what we are hoping now is that we can move forward with another strategy that might actually work.
199.There is an aggregate claim. The aggregate claim is £19,538; pre-Opposed Bill Committee is £7,800 approximately, and postOpposed Bill Committee is £11,742. It is based entirely on time in attending meetings with the promoters, writing agreements and then writing other agreements, and obviously these petitions. It also includes work in researching and designing frameworks for the terms and conditions of the voluntary arrangements, and obviously appearing at Committee and the Lords, and appearing today. These costs in any event would be subject to taxation by the taxation officer of the House of Commons.
200.As a final word, the Committee might be interested to know that the Department for Transport have now instructed the Law Commission to review the law relating to pedicabs, and we are optimistic that they will take an apolitical view and make some commonsense recommendations, and even perhaps table a Bill to finally resolve this issue countrywide. I would like to thank the Committee very much indeed for your patience in attending and listening to my submissions today, and I would be very pleased to answer any questions that the Committee might have.
201.CHAIR: Thank you, Mr Smallwood. I believe the detailed statement of your costs is available. Is it part of this? Yes. We are just making arrangements to get that copied.
202.MR SMALLWOOD: Thank you very much.
203.CHAIR: We will distribute it round shortly. Before I ask Ms Lieven to respond, of course, there is an opportunity for the Members of the Committee to ask you any questions or seek clarification on what you have said so far.
204.MRS GLINDON: Thank you, Mr Heyes. Going back in time to when you agreed to work with TfL, you mentioned that there was going to be a public consultation during that sixmonth period. Then you said in the period between 2008 and 2012 there was none. So at that earlier period, as part of that six months’ work, was there an actual public consultation, and was there any feedback from that?
205.MR SMALLWOOD: Yes, there was a public consultation on licensing pedicabs as hackney carriages. I gather the results of that consultation have never actually been published, so they are not public. We have managed to get a copy of it through the courts though, and I have got a copy. The public response to the consultation was perfectly acceptable, barring one or two things. I had a meeting with Mary Dowdye, the Head of the Public Carriage Office at the time. The consultation was on licensing as hackney carriages, so that was the consultation they were having in advance of winning the litigation. But at that point we started becoming very circumspect as to whether TfL actually intended to do it. I have got the responses here, and they were perfectly acceptable. There were one or two extremes, as one might expect in a public consultation, but we were pretty happy. I had a meeting with Mary Dowdye. I have got my email response to her here, basically outlining what we had agreed in principle, and I never heard anything else. I chased it up and I simply got a response saying, "We will look into it and come back to you." So again, it was impossible to engage.
206.Now TfL might say they did not want to engage because we were in litigation. We were resisting that litigation, but I think, as it turns out, for fairly good reason. This is why we challenged TfL to prove that they were actually intending to do it, because it started off as a very benevolent legal action. I had a very good relationship with the Head of the Public Carriage Office and the lawyer. We were told that this action was actually a really good way to do it, they could license as hackney carriages, and that we should engage. But then the doors and windows started to shut rather fast. Whenever I asked any questions of the Public Carriage Office as to how it was going to work, we would get the stern response: "I am answering one of your questions, but the fact that I have not answered the other questions does not mean to say that I agree with them." I have got a copy here. This was well into the litigation. I said, "In the absence of a single undertaking or assurance from TfL about the final format of the licensing scheme under the hackney carriage regime envisaged by TfL, we have been totally justified to use the legal defence to establish whether or not this might be an abuse of process. If TfL had responded to the various requests for clarification, I am confident that with the proper negotiation to agree an acceptable format, neither party would be in the position we find ourselves in today."
207.Due directly to TfL’s serial lack of candour throughout, refusing to hold meetings once we were in litigation, the entire process was frustrated. Whilst the industry was carrying on unfettered, I think the Committee will understand that we had to protect our interests because we realised there was a danger that, if TfL did not license as hackney carriage having done the consultation, the pedicabs would have become illegal overnight. So we were asking these questions, and having had a chat with the Head of the Public Carriage Office who was leading the litigation-it was TfL, so the same department-I said, "If we were convinced that this was a genuine strategy, we would have come to an arrangement with TfL with regard to the court case." But the doors and windows shut totally and we could not get any answers out of TfL. That rather encouraged our fears that this probably was not going to work. As I say, when we got the responses to the public consultation, they were absolutely fine-they were perfectly doable. Even with the results of that consultation, the view was that CRBs were probably not necessary at the time and it needed further discussion.
208.I hope that has answered your question. There was a consultation, but then of course we were in litigation. We never got to the substantive case because we were essentially challenging TfL on whether or not this was actually a genuine strategy, and whether they could even do it in the end.
209.MRS GLINDON: Thank you.
210.CHAIR: Mr Buckland, any questions?
211.MR BUCKLAND: No, thank you.
212.CHAIR: Mr Walker.
213.MR WALKER: You mentioned the scheme that you are working on with the police, and there is some hope that is going to lead to a system of self-regulation. How long has that process been under way and when did that process begin?
214.MR SMALLWOOD: We got counsel opinion on this, whether it would need legal backing, basically, and whether it would work. We have been talking to the police, but it is not really selfregulation, because it relies entirely on the police working with us. We have got a very good relationship with the police and we have had several meetings recently. I have got a copy here of basically how it will work, but the way it will work is we have set up a database. We have had a database written specifically for it, and each bike will have a unique plate and each rider will have a unique badge. We are going to serve that data to the police directly. We have got permission; the Information Commissioner’s Office is fine with that.
215.It works like this: the police are enforcing under what is called the Metropolitan Police Act of 1839, which is obviously an ancient law. In enforcing on that they can arrest and seize a pedicab under the rather Pythonesque charge of "standing on a pedal cycle for longer than is necessary". In the run up to the Olympics this was the primary method of enforcement, and we have supported that. We have discussed this with the police in the past. We said, "You can issue penalty charge notices and all that sort of stuff, but we are certain that if this is challenged then it will fall over, so please do not seize the pedicabs of people you can quite clearly see are doing things properly." In the run up to the Olympics it became more of a policy, and several of the responsible operators’ bikes were taken, and every single case has been dismissed because they were defended and there are very strong defences to this, which we did not want to interfere with.
216.So we have got counsel opinion that this new scheme, done in conjunction with the police, will work. If the rider and bike are fully identified and an offence is committed, the police will not need to seize the pedicab or arrest the rider because they have got a positive identification and they will have it on their computer system, which is the idea. That means that there are no concessions. If they commit an offence, they will still get a penalty charge notice, but it means they will not have the bike seized. There is a carrot and a stick, which is absolutely essential. We cannot provide the carrot and the stick as an industry; it is almost impossible to do. We rely on the authorities, so the carrot from the police’s point of view is that the rider and the pedicab would not be seized if an offence is committed, and the stick is that if they are not on the scheme, they cannot reach the standards that we have set-and we did this on the advice of TfL-so it is centred entirely around enforcement.
217.MR WALKER: At what stage did you start discussing this scheme with the police and agree that this scheme would work?
218.MR SMALLWOOD: We touched on it earlier this year. I had a meeting with the Mayor’s office-I cannot remember the precise date, but it was early this year, January or February, with TfL, Ben Plowden, who is TfL, Lilli Matson and Isabel Dedring.
219.I think everyone has kind of got to their wits’ end. The problem is there still will not be any ranks in place. That remains a problem, but the police recognise this, and I think that they are prepared to proportionately deal with this in that, provided wilful obstruction is not caused, a pedicab will be able to stand and ply for hire. This is far from ideal; ideally it needs a statutory licensing scheme, which would have ranks and then there would not be a problem.
220.This rank business is actually one of the biggest problems, and the fact that there is no statutory licensing, because of course it is a free-for-all. Anyone can set up a pedicab business, which is not acceptable in terms of public safety. A lot of people have gone lowest common denominator and do not bother with training. Why bother with training? Why bother with insurance? Why bother with all these things? This is why we have been saying all along, and it is what the Government said in 2005, "Even if it were light-touch regulation, it still needs regulation; otherwise, there is no sanction in place if you do not do it." As a mode of public transport in London, it is crucial that operators have insurance, the riders are properly trained and there is accountability. From the very start in 1999, we always had £5 million worth of public liability insurance, the riders were properly trained, the bikes maintained, etc. It can be and is being done. There are operators who are operating perfectly safe vehicles. Has that answered your question?
221.MR WALKER: I think so, thank you.
222.MR BUCKLAND: Mr Smallwood, as a Committee we need to be satisfied that you, the petitioner, have been unreasonably or vexatiously exposed to costs in defending the rights with which the Bill proposes to interfere. What do you say is vexatious about the conduct of the authority here?
223.MR SMALLWOOD: There have been no less than four changes of strategy throughout the life of this clause. We have been in the middle of it, so we keep getting called to meetings: "There is now a new strategy; can you go away and write a scheme?" As I think I explained earlier on, these schemes are not one bit of paper. They are 15 pages and they cover riders, pedicabs-
224.MR BUCKLAND: Do you think they have done that purely to cause trouble and annoyance to you in the industry?
225.MR SMALLWOOD: I think there is an element of it. I think it is a political thing. The political influence has been that any attempt to legitimise pedicabs in any way whatsoever is just impossible. I can understand that there is a political position, but we are stuck in the middle of a political position where we have had to act in good faith. We cannot fight public authorities obviously. Public authorities have a will of their own. All we can do is act in good faith and hope that they will also act in good faith. Every time we have got close to anything, the goalposts have been changed: "Oh, we cannot sign that," or "No, we want another provision and another provision."
226.A very good example is that following the Opposed Bill Committee, it was all going swimmingly well. We got the final version six months after we had pretty much agreed it. There was agreement. I sent an email back; we had some concerns. One of the major concerns was not CRBs; it was that an additional clause had been added on to the agreement. It was brand new. I will find it here, Version 5. I then asked a whole series of questions, and I can go through them. Just on the new clause, for example, I said, "This clause is entirely new and appears to give the council in effect an arbitrary and a disproportionate power to revoke, refuse and limit numbers without an appeal process being set out, without time limits and no specified fee. It is important that criteria are entirely objective. This clause therefore requires discussion and agreement."
227.I asked 13 questions regarding things that had been changed. In the previous agreement, we had pretty much agreed it. I said, "We had all agreed under Section 4.4 that CRBs would only be required for operators, management and owner-riders. This is the only practical and necessary condition. CRBs for riders represent over-regulation from the outset." We agreed this; I did not make this up. We agreed at a meeting, firstly, that it would not be riders; it would just be owners and operators. Then it came in for everybody. Then we agreed to put it in for everyone, the whole industry, after a reasonable period of adjustment of two years. It mentioned "payment of a relevant fee". There were no fees set out. It put in a new clause that VOSA were going to approve the pedicabs. VOSA have never said they are going to approve a pedicab, and so I said, "Have they now agreed to do it?" I never received any answers to these questions. This is the problem. So have VOSA now agreed to inspect and issue certification? We had agreed, for example, a lap belt, because that is the recognised thing. Suddenly it needed to be a three-point safety belt.
228.MR BUCKLAND: Are you saying that you think these examples you are giving are as a result of a deliberately obstructive approach, or was it as a result of just negligence and unreasonable behaviour due to a lack of clarity about their own policy? Is it deliberate or is it just incompetence?
229.MR SMALLWOOD: I think it is probably the latter. I have got two very good examples here. The first time we almost reached an agreement I wrote a letter, which I repeated several times, and this is going back to when we were trying to agree before the Opposed Bill Committee. I said, "Are you now able to advise the following: the precise locations of the proposed ranks in Westminster?" We had spent days producing a map, which Westminster Council had translated on to a map. Again, it was probably five days’ work to go out, scope out where they were and all this sort of stuff. We never received an answer to this. "Any idea where the ranks are now going to be?" because this had been discussed at length. "How many pedicabs for each rank? What are the timescales for the signage and the road markings?" That arrived very, very soon after this. "Are you able to give us any assurance that the ranks will remain in place until such time as a formal licensing regime is introduced, and that the ranks will be maintained thereafter with agreement between TfL and the PCO?"
230.We want civil enforcement for moving traffic regulations-no problem. We are quite happy with civil enforcement for any offence that can be enforced that way, but without the pedicab ranks, as I think I discussed earlier on, the Committee in the Commons and the Government agreed that you have got to deal with this parking issue. If there are no ranks, then civil enforcement would kill it. Everybody knows that. Taxi drivers know it. I think it probably is deliberate, but probably because there is such enormous political pressure. I cannot stress how difficult it is. A very senior TfL person made it very clear that there is a real problem because some people agree with the legal definition and some do not. Some people think they should be licensed; some people think they should be banned. I have probably got some of the best taxi drivers in the world. They are fighting their corner, and we know that they fight very hard on that. They have got the unions involved. London being highly political, if anyone makes any move, there is a storm, as there was even when Westminster announced they were thinking of putting some ranks in.
231.We have done all this work and yet it has never gone anywhere, because when it has got near to something, politics has just said, "Oh, we cannot do that." When Westminster announced they were going to do ranks, I think the taxi drivers held quiet a strong demonstration. Having the Chairman of the Association right at the top of TfL is probably why TfL and Westminster are in a very difficult position, because none of the moves they make will work. Whether it is a delaying tactic to wait until some other piece of legislation can come in, I do not know.
232.MR BUCKLAND: At the very least, you would say that the behaviour is unreasonable.
233.MR SMALLWOOD: For sure.
234.CHAIR: Thank you, Mr Smallwood.
235.MR SMALLWOOD: Thank you.
236.CHAIR: Ms Lieven, are you ready to respond to Mr Smallwood’s claim?
237.MS LIEVEN: Yes, sir, I think I am. I have to say, if the Committee has detailed questions about particular emails and so forth, I will need more time, because obviously one of the things that is slightly unusual about this procedure is I do not get any notice of what Mr Smallwood is going to say, and I do not see any of the correspondence. I am at a slight disadvantage there, but I will do my best. As I say, if the Committee has questions on very specific points, I may need to take instructions.
238.I was going to start, sir, by just going through Mr Smallwood’s six points in his note, because that gives some kind of structure to what he is suggesting. First of all, in respect of him referring back to what Lord Dahrendorf said in the Lords, it is important to understand that the House of Lords supported this clause even though at that stage they well knew that there would be no statutory licensing scheme. The House of Lords Opposed Bill Committee was at a point where the declaratory proceedings in the High Court had been withdrawn, and therefore there was no licensing scheme on the table. So the House of Lords supported the clause on the basis that a voluntary registration scheme was in the offing and was likely to come forward. So I am not entirely sure I understand precisely what Mr Smallwood is saying in point one, but there is no inconsistency there between the House of Lords position and what I am telling this Committee now.
239.The heart of Mr Smallwood’s argument, I suspect, lies in point two, which is that we should have made the decision to withdraw the clause back at the stage of the House of Lords Opposed Bill Committee. But, sir, in my submission there lies a complete inconsistency in Mr Smallwood’s position at this point, because he says in terms in the note, and I wrote it down, "Voluntary regulations are pointless and provide no clarity for anyone." That is certainly not what he has been saying for the last two or three years when there have been extensive discussions with the LPOA about trying to have a voluntary scheme. This is a situation where the Mayor, and indeed Westminster, have been trying to bring forward a light-touch form of regulation that works with the industry, so precisely the approach that this Government would support. We have sought to our nth degree to try to work with the industry to bring forward a workable and effective voluntary registration scheme that will secure public safety in all its manifestations and works with the industry.
240.The reality of the situation here is really revealed in what Mr Smallwood said right at the start. I think everybody who has been involved would accept that Mr Smallwood very much represents the responsible end of the pedicab industry, but unfortunately he does not represent the entirety of the pedicab industry. He himself, you will remember from some oral comments that I do not think he reflected in the paper, at the beginning said there is a part of the industry that is seeking the lowest common denominator. That part of the industry has not been prepared to sign up to any acceptable part of a registration scheme, or even now, as we understand it, pure self-regulation. So it is not that Westminster and TfL-I speak of Westminster because they have taken the lead for the London boroughs for obvious reasons-have acted unreasonably or vexatiously; it is that we have tried our utmost to achieve that policy result, but what has ultimately been proved is that it simply is not possible within this sector of the industry. It has not worked. It might be true to say it has taken some time for us to reach that conclusion, but that is not because we have behaved vexatiously and unreasonably. That is because we have tried our utmost to work with the industry to reach a satisfactory result.
241.It is also clear, relevant to point two, from what Mr Smallwood said, that even Mr Smallwood and the LPOA have only been prepared to engage on their own terms. So Mr Smallwood says in his note, "Voluntary regulations are pointless and provide no clarity for anyone." In that case he should have supported wholeheartedly the declaratory judgment proceedings, which could have, if they had been pursued through, brought forward the potential for a statutory licensing scheme. He was not prepared to do that because he thought that it was not going to be done on his terms; in other words, he was not going to be able to dictate the outcome. In my submission there is a real inconsistency there.
242.That then ties in to point three, where he suggests that effectively the process we have undertaken has been a sham, and the promoters have studiously avoided getting to a point where a proper agreement can be signed. Sir, in my submission that is absolutely not the case. To put it mildly, TfL, the Mayor and Westminster would not have devoted a huge number of hours and resources to this issue if they had not genuinely wanted to achieve a form of voluntary regulation that would work. Why on earth would a public body such as TfL have done that to cause vexation and be a sham? We made genuine engagement over a long period of time.
243.Point four, the Henry VIII clause, sir, I suspect is a complete red herring. The points of clause 17, sub-clause 8 and 9, were to allow through statutory instrument merely the endorsement of a scheme that would have been made by primary legislation. So all those clauses do is endorse a statutory licensing scheme for the purposes of the clause. There is no question of some scheme being introduced by the back door without parliamentary approval. I do not think anything turns on point four.
244.On point five, Mr Smallwood says, "Public authorities have a duty to be honest, fair and impartial," and effectively he is making an allegation of bad faith there against the Promoters. Sir, I have already asked why on earth TfL and Westminster would spend all this time in order to be vexatious, but also, sir and Committee, stepping back for a moment, one has to remember, as Mr Smallwood I think himself would accept, there are real issues around pedicabs, around public safety, congestion and management of the highway. This is not a public authority acting unreasonably in trying to regulate something that does not need to be regulated and does not need to have any control. Anybody who goes to the West End late in the evening, particularly on Friday and Saturday nights, can see those real issues arising in front of their eyes. We have not acted in bad faith. We have tried to use public funds to bring forward some kind of satisfactory situation. I will talk about enforcement and the police in a moment, but that we have failed to bring forward a voluntary registration scheme or the pedicabs themselves have failed to bring forward self-regulation does not in any sense mean we acted in bad faith. Ultimately that process has failed because the pedicab industry has not been prepared to commit to a voluntary scheme. That is probably not Mr Smallwood’s fault, but that is why we are where we are.
245.Then on the issue of CRB checks and the role of the police, first of all it is quite clear from what Mr Smallwood said-it does not appear out of the document-that in fact he, and presumably his body, were not prepared to accept CRB checks for riders of the pedicabs, as opposed to owners and occupiers. I hope it is very, very easy for the Committee to see why the view was taken by the police and by TfL that it was extremely important to have CRB checks for the riders, because potentially these riders can disappear off with passengers in the back, and there is no reason, in my submission, why they should not be subject to CRB checks. My instructions are that was a critical element in why ultimately the voluntary registration scheme was not taken forward, and, as I heard it, Mr Smallwood effectively accepted that was a real sticking point even at his responsible end of the industry.
246.It might be worth the Committee just understanding why we understand that is such a sticking point. A large number of these riders are not UK citizens and have come here for relatively short periods, and therefore CRB checks could be a problem for the industry in terms of the model it uses at the moment. That may be why they were very unwilling to accept that, but I hope from a public safety and public interest point of view, it is easy to see why TfL, the Mayor and the police thought that was so important.
247.In terms of the position of the police, sir, this is where it is very difficult, because Mr Smallwood could say to you he has had discussions with the police. The police are not here and are not instructing me. What I can say is that I have both the report and correspondence from the police in the summer, around the time of the Olympics, where they certainly were not saying that they were on the point of agreeing some voluntary, self-regulatory scheme with the pedicab industry. I do not have minutes of more recent meetings, but it certainly is not my instruction from Mr Plowden and Mr Low, who have been intimately involved in all this, that they understand the police to be at that point. Of course, one comes to the same fundamental problem, which is that even if LPOA and Mr Smallwood would agree to such a scheme with the police, there is no reason to believe that a large number of other pedicab operators and drivers would so agree.
248.In terms of where the future goes, I think it is worth saying to the Committee that there has been a very strong drive on enforcement in terms of enforcing what I think is the 1839 Act. Effectively, to put it in modern terminology, it is dangerous driving and obstruction of the highway. The police and Westminster, and I think TfL-but I think it has primarily been the police and Westminster-have had a very strong drive on that issue this year, and there has been a large number of prosecutions, partly driven by the Olympics and the need to try to improve the situation over the summer. That is still continuing, and there is active enforcement in that regard. In terms of longer term, Mr Smallwood is entirely correct. There is a Law Commission consultation that covers not just pedicabs but much wider issues around licensing taxis and other "novelty vehicles" as they are called. The Committee may have seen the strange kind of rolling pubs that now one occasionally sees in the streets of London. Lots of people get on to a kind of platform with a bicycle, and then they all bicycle along with a bar in the middle. That is just one form of novelty vehicle. There is a Law Commission consultation as to where the law might go on this, but I am sure the Committee will know from other Law Commission work that it takes a long time. There is a long time for the report to come out; I think it is due to come out next year. Then the Government has to decide whether or not to bring forward legislation, so that in no way is a short-term fix. So, sir, I hope that covers the main points. The main theme of what I have said is that, far from the promoters of this Bill acting vexatiously or unreasonably, we have bent over backwards to try to achieve a satisfactory outcome.
249.CHAIR: Thank you, Ms Lieven.
250.MS LIEVEN: Now, I can try to answer questions or find people behind me who may know the answers.
251.CHAIR: Any Members of the Committee want to ask questions here? Mr Buckland.
252.MR BUCKLAND: Ms Lieven, the fundamental question: you described clause 17 as a parasitic clause. Why put the cart before the horse, to use perhaps an appropriate analogy?
253.MS LIEVEN: Yes, absolutely, sir. First of all, when the Bill was first lodged, the High Court proceedings were still on foot, and it was hoped that the outcome of those High Court proceedings, by saying that pedicabs were in London hackney carriages, would have created the ability for TfL to use the statutory licensing scheme. So when the Bill started, there is a complete answer to that. Then the High Court proceedings were not proceeded with, and some hard thought was put into whether it was worth still proceeding with clause 17. That was the debate, effectively, before the House of Lords Opposed Bill Committee. What is the point of having clause 17 if you are not going to have a statutory licensing scheme? The answer was, and the House of Lords Committee accepted this, that a voluntary registration scheme, with a very high level of buyin from the industry, could provide an effective basis for the clause 17 powers. It is quite important, particularly in the light of what Mr Smallwood said, to see clause 17 as part of a package. Clause 17 would have allowed the London Local Authorities to enforce traffic offences effectively against pedicabs. But the quid pro quo for that, and I remember Mr Low giving evidence to the House of Lords about that, was that Westminster was going to provide dedicated pedicab parking bays, and also Mr Low explained how pedicabs could park in existing parking bays if they paid, or on single yellow lines at certain times of day. So when we went to the House of Lords, although by the time we got to the Committee we did not have the potential for a statutory licensing scheme any longer, we did believe there was a really good prospect of improving the situation through a voluntary registration scheme plus this package of measures. We could pick over here for hours who said what in what email, and whose fault it was which meeting collapsed. I am sure anybody who is a lawyer knows how productive those kinds of post-mortems are, but the fact is there was then a very long period of discussion around, "Can we get a voluntary registration scheme to work?" The end of that discussion was an acceptance by the Mayor, TfL and Westminster that it was not going to work. I hope that answers your question, sir.
254.MR BUCKLAND: Yes, thank you very much.
255.CHAIR: Mr Walker.
256.MR WALKER: You say at the end of that discussion that there was an acceptance by the Mayor and TfL. When was that acceptance? When was it decided that a voluntary scheme was not going to be on the cards? The account that we have had from Mr Smallwood sets out that towards the end of 2010 Westminster Council lost their appetite for a scheme. Would you accept that?
257.MS LIEVEN: Sir, no; I would not accept it was as early as the end of 2010. My understanding of the chronology, and looking at the correspondence and discussions, is that it was much closer to the middle or end of 2011, when it became increasingly clear, due to issues around the amount of buy-in by the drivers and the operators and issues around CRB checks and potentially other issues, that there simply was not going to be a voluntary scheme that was good enough to make the clause worthwhile. Then you add in to that, sir, if you remember, this range of petitions; we could see we would be here being attacked on every side for both doing too much and not doing enough. It would be fair to say, and I have looked, I cannot pinpoint a specific date, committee report or a letter that says, "That is the moment."
258.MR WALKER: Mr Smallwood in evidence suggested that in October 2011 he wrote to the Mayor and asked TfL to take the lead rather than Westminster City Council. Was there ever any response to that request?
259.MS LIEVEN: Let me check my detailed chronologies. What I do know, sir, is that there was a Pedicab Summit in 2010, where all parties still seemed to be working in roughly the same direction. We have a series of notes and letters through early 2011 from Westminster. Certainly in October 2011 I have comments from the Mayor that appear to still suggest there is potential to work together.
260.CHAIR: Can I make a suggestion, Ms Lieven? I can see that your colleagues are busily trying to get the answer to this question for you. Shall we give them time to do that? I do not know whether Mr Walker has any follow-up questions.
261.MR WALKER: Just one other. You have mentioned the petitions that were received from all the various different directions. Was there any formal response made to those petitions?
262.MS LIEVEN: There certainly will not have been a parliamentary document, because that does not happen. I will just check with Mr Lewis whether letters were written in response to the petitions. No, there would not have been a formal response, sir. Can I just check whether Mr Smallwood has a specific date?
263.MR SMALLWOOD: We had a meeting at the Mayor’s office, I think on 7 February, because I had gone back and said, "Thank you for convening last week’s meeting." So that would have been a meeting on 8 February.
264.MS LIEVEN: 2011?
265.MR SMALLWOOD: 2012. And that was with Ben Plowden, Roger Geffen and Isabel Dedring.
266.CHAIR: I know Mrs Glindon has a question that she wants to put. Can we take that, and then come back to this?
267.MS LIEVEN: Yes, I will ask those behind me to write me a note of what happened after 7 February 2012.
268.CHAIR: That would be helpful.
269.MRS GLINDON: My question is in relation to CRB checks, which seem to be one of the stumbling blocks. I was wondering within private hire or the hackney carriage business, do any of the authorities in London have nonUK drivers for whom it is difficult to get CRB checks?
270.MS LIEVEN: I can have a go at answering that, which is on knowledge based entirely outside this Bill. If you have been in the UK for a certain period of time, then you can be subject to a CRB check anyway, so you will have a UK clearance in any event. Certainly within Europe there is a system for crossboundary CRB checks. It is by no means perfect, but there is such a system. I will just see whether Mr Plowden knows the degree to which TfL as a licensing body carry out international checks. I understand that, for drivers who are not from the UK, first of all there would be a CRB check for the period they had been in the UK, but then international checks are pursued. Of course, if the driver has come from Ethiopia and is here as a refugee, the chances are that the check is not going to throw up anything useful, but there is a system of international checks.
271..MRS GLINDON: Thank you.
272..CHAIR: Are you in a position to answer Mr Walker’s question yet?
273.MS LIEVEN: I am looking to Mr Plowden. He tells me that what was said at that meeting from the TfL’s side was that an invitation was given to the industry, to Mr Smallwood, to say, "Right, you define what a good or appropriate driver is; what are the minimum standards for insurance, for CRB checks and for any other issues that arise?" The ball was firmly put back into the pedicabs’ court. This is the nature of selfregulation. "What standards are you saying are appropriate? Then we, TfL, and you can tell the public what standards they can expect."
274.CHAIR: Are you okay with that?
275.MR WALKER: Fine.
276.MS LIEVEN: I addressed that answer to the wrong person, I am so sorry.
277.CHAIR: That is okay. I am going to draw it to a close at this stage. The Committee needs to go into private session now to consider Mr Smallwood’s claim. So again, I am going to ask the parties and members of the public if they would leave the room. Thank you.
278.MR SMALLWOOD: Mr Chairman, would it be possible for me to respond? I will be very, very brief-extremely brief.
279.CHAIR: Let me be very clear, Mr Smallwood. I am not willing to open up a debate between you and Ms Lieven. I will stop you from doing that. If you have a very brief point to make on a point of fact, then I am willing to hear that and Ms Lieven’s response to it. But I will not allow this to go too far.
280.MR SMALLWOOD: Thank you. It is quite correct. Mr Plowden, I mentioned in my presentation, is quite right. But it was also clear at that meeting that the police would have to be involved if there was any prospect, so it is not really self-regulation because there would be an enforcement centre to it. All I was going to say is that it is not actually selfregulation, and of course with the hackney carriage stuff it was not a matter of being on our terms or not, because it would have been a statutory scheme. It would not have been on our terms at all; it would have been on the terms as set out in the consultations, and that is fine.
281.The other thing I would say, just finally, is that with a voluntary scheme one has to start somewhere. You cannot say that there were not enough people who would do it; there was no survey done on that. You have to start the scheme and have a will on both parties to put the ranks in, which I am sure is the basis on which the House of Lords passed it, because we agreed that the ranks were essential. So you have to start somewhere, and I think the difficulty has been that, every time we have been ready to start, either something has not happened or something has changed. I just wanted to clarify that.
282.CHAIR: Ms Lieven, do you want to respond to that?
283.MS LIEVEN: No, sir; I do not think I need to respond to that.
284.CHAIR: In that case, can I ask the members of the public to leave? Thank you.
Public session adjourned at 12.09 pm
Ordered at 12.17 pm: That the Parties be called in.
285.CHAIR: Can I thank you for the presentations you have made, and for the way you did it? I need to announce that the Committee was not persuaded that the petitioners have been exposed to unreasonable or vexatious costs by the promoters of the Bill. That is our decision. Thank you. We will move on now to the unopposed clauses and the Government’s Report. Mr Smallwood, you are welcome to stay if you wish.
286.MR SMALLWOOD: I will have a break actually, if I may.
287.CHAIR: It is entirely up to you.
288.MR SMALLWOOD: Our proceedings are finished presumably, are they?
289.CHAIR: That part of the proceedings is at an end now, yes. If you wish to leave, that is fine. If you wish to stay, that is equally okay.
290.MR SMALLWOOD: Thank you very much indeed for listening.
291.MS LIEVEN: Sir, what I was planning to do was to go through the two sets of clauses where there are Government Reports, starting with clauses 4 and 5, attaching streetlamps and signs to buildings, and then moving on to clauses 6 and 7, damage to highways in consequence of adjacent works.
292.CHAIR: That is fine.
293.MS LIEVEN: We will deal with each set separately.
294.CHAIR: That is exactly how I was going to suggest we should proceed, Ms Lieven. Thank you.
295.MS LIEVEN:, I am not going to read through clauses 4 and 5 because it is very tedious and extremely legalistic. What they do in practice is bring the rest of London more into line with the City of London. In the City of London these powers effectively already exist because it removes the requirement to obtain the consent of the owner of a building before a streetlamp or a traffic sign is attached to it. The raison d’être of these clauses is to reduce street clutter by being able to move things off the pavement or the highway and stick them on to buildings. The position is that in the City of London consent is not required of the owner, whereas absent this clause in the rest of London consent is required. That is the basic reason for the clause. I understand the original supporter of it, or person who proposed it, was English Heritage, who saw real benefits in terms of the London streetscape.
296.What the clause undoubtedly does is require compensation for any damage to be payable to the owner, so the Committee does not need to worry about compensation flowing, either in terms of physically damaging the building or in the very unlikely situation where there was a diminution in value of the building. The clause provides that, unlike in the City of London, at least 56 days’ notice needs to be given to the owner, and there are specific provisions about the form of that notice. We have gone further than that, because the Department raised concerns about the impact of this clause, and what we have done is enter into a draft Code of Practice that will control the way the powers of the clause are used. One of the particular concerns from the Department was to ensure that there was greater specificity around the 56 days. The Code now says that the 56day notice should preferably give an exact date for the carrying out of the works, or a very short range of dates, and there are some slight getout clauses there in case of unforeseen events or matters like that. But effectively we have tied it right down through this Code. The Code also says that the dimensions of the sign have to be set out, and so on.
297.There are two things for the Committee to be aware of: the powers in the clause would not apply to statutory undertakers’ operational land, so there is no concern there. They also would not apply to listed buildings, where there would need to be listed buildings consent. I think that deals with most of the points raised by the Department.
298.There is one other freestanding concern. The Department was concerned about the costs to the Ministry of Justice of establishing a system for running the determination procedure on the level of compensation in what is now known as the Upper Tribunal (Lands Chamber). I think it would be not wholly unfair to say that the Department for Transport were extremely concerned that the cost should not rest with them.
299.There are a number of points; I think we have pretty much reached agreement on this. First of all there is an absolute commitment from the Promoters that, whatever cost is ultimately agreed with the Ministry of Justice, it will be born by the Promoters and not by the Department for Transport. This issue was raised extremely late in the day by the Government, so we were very concerned about the level of costs that the MoJ was suggesting, because our view is, and we have talked to the City of London about this, the probability is that there will be virtually no, if any, claims. If there are claims, the amount of compensation sought will be so low that nobody in their right minds would take it through the court system to the Upper Tribunal. So we actually think the number of cases will be somewhere between minuscule and nonexistent. In any event, we are close to agreement with the MoJ as to the precise figures, and there is no doubt whatsoever that agreement will be reached, so we hope that issue has now been dealt with. I think that gives the background to the clause. I do have Mr Low here, if the Committee wants evidence in support of the clause, but it may be that in respect of this clause it is really not necessary. The advantages of it are perfectly clear, and the issues raised by the Department I think are ones that I can deal with, so I am in the Committee’s hands as to whether Mr Low is called to give evidence. We will call him to give evidence on the next clause certainly.
300.CHAIR: I think we need to give Mr Ellis a chance to set out the Secretary of State’s views on clauses 4 and 5 for us.
301.MR ELLIS: Thank you.
302.CHAIR: You are welcome, Mr Ellis.
303.MR ELLIS: In relation to the report that we submitted, as Ms Lieven eloquently put out, we very much welcome clauses 4 to 5 as they would provide authorities with more discretion in how they could place signs and other equipment, which would improve the design and appearance of the streetscape. It is actually consistent with the Department’s guidelines on many of the streets. Previous amendments to the Bill to provide adequate notice are also welcomed. The reason that we submitted the report when we were fairly close to agreeing the draft Code of Practice was that at the time we had not seen the amended draft Code of Practice, so we could not be clear in providing the sign-off to that clause. I am pleased to say that we have agreed the principle, and we are now just amending the minor details of that draft Code of Practice. I do not think there is anything further for the Committee to consider on that point. In relation to costs, as rightly stated, we were concerned at the Ministry of Justice’s statement that said that usually, under normal circumstances, the sponsoring Department would cover any setup costs for an appeals process. We do not consider that the Department for Transport or indeed any Government Department is the sponsoring Department, because under devolution transport is the responsibility of the Mayor, and it is for the promoters to fully meet the costs, which I am pleased to hear that they have agreed. In relation to both the points that we raised in the report, we think we are now in a position where we can come to an agreement with the Promoters, so we do not believe there is anything further for the Committee to consider at this point.
304.CHAIR: Ms Lieven, do you have any questions?
305.MS LIEVEN: No.
306.CHAIR: Any Members of the Committee want to ask questions here through me?
307.MR BUCKLAND: No, thank you.
308.CHAIR: Thanks, Ms Lieven; you can move on to the next section.
309.MS LIEVEN: Thank you.
310.CHAIR: Just as an aside, we had a lunch target of one o’clock. If there is a prospect, without hurrying you along in any way, of us achieving a conclusion, I would be willing to drift beyond one o’clock slightly if that was helpful to you.
311.MS LIEVEN: The clock is behind me, so I am happily completely unconscious of time, but we may well manage to complete the business by then, or just after, sir.
312.Sir, clauses 6 and 7 concern damages to highway in consequence of adjacent works. This is where there is a report from DCLG, and I think Mr Thompson is here. I will do the same thing again, sir-briefly explain the clause and our outline response. I think Mr Low probably should give evidence on this clause.
313.CHAIR: Can we get Mr Low into position?
314.MS LIEVEN: Yes, if Mr Low goes into the middle. I will just give a brief explanation of the realities of the problem this is to address, and then I will hand over to Mr Low. It is important to understand that these clauses do two different things. The main part of the clauses allow the authorities to acquire money upfront in respect of damage that they reasonably consider may be caused to the highway by developers. So effectively it allows a local authority to get a deposit for reasonably anticipated damage to the highway, if there are reasonable grounds to believe that there would be damage to the highway. Clause 6.6 stands on its own, and allows the highway authority to recover the cost of damage to the carriageway of the highway, because slightly bizarrely, under the Highway Act, a local authority can currently under statutory provisions recover the cost of damage to the footway, but cannot recover the cost of damage to the highway. That seems a bizarre anomaly, and we are seeking to overcome that. So there are two separate issues. I think it would be fair to say that DCLG’s primary concern is on the former rather than the latter, but it is maybe for Mr Thompson to say that.
315.There is a provision in Clause 7 for appeals to the magistrates for persons aggrieved by the imposition of the condition or building regulation consent, so it is not the case that local authorities can simply use this as a moneymaking exercise and act unreasonably. There is an appeal to the magistrates. I think it is probably important to emphasise that there were two mechanisms envisaged for how this would work. One is through planning conditions, so a condition could be imposed on the planning consent that, at the point of implementing the consent, the deposit of X sum should be paid. It is important for the Committee to understand there is no question of seeking deposits off people who get planning consent and then do not implement them, or the local authority sitting on this money for years while a developer decides whether to implement or not. It is also envisaged that this might be done, depending on the particular circumstances, through building regulations permission. The Committee may be aware that there are certain forms of development that do not require express planning consent, so in particular permitted development rights, of which one example is extensions to domestic houses, but sometimes statutory undertaker works are also included. That is why we have also envisaged not just doing it through conditions on express planning consent, but also through building regulations.
316.Before Mr Thompson does, can I raise one particular issue about building regulations? In the DCLG Report, they have raised a concern that a building inspector can be a private individual, and therefore a concern that there should not be any ability for private, as it were, building inspectors to impose the requirement for such a deposit. That was absolutely never the Promoter’s intention. The clause speaks about the borough council imposing the obligation. We think that means the borough council, but we are quite happy to accept an amendment that says "an appropriate officer of the borough council", so that it is clear that there is no way it could be undertaken by a private individual. That is a bit of the legal background.
317.Mr Low, can I just ask you to explain the kinds of situations where you-oh, sorry, I should explain who you are. You are quite right. I am so sorry.
318.CHAIR: I was wondering.
319.MS LIEVEN: Yes. I have got a note. Mr Low, is your name Martin Low?
320.MR LOW: It is.
321.MS LIEVEN: And are you the City Commissioner of Transportation for Westminster City Council?
322.MR LOW: I am.
323.MS LIEVEN: And how long have you held that position?
324.MR LOW: 11 years.
325.MS LIEVEN: And do you have a qualification in highways?
326.MR LOW: I am a chartered surveyor.
327.MS LIEVEN: I am very grateful. And did you give evidence before the House of Lords Committee?
328.MR LOW: Yes, I have done, yes.
329.MS LIEVEN: So can you just explain briefly to the Committee the kinds of problems that you feel this clause would be useful to overcome?
330.MR LOW: The Committee might have seen the picture in the Evening Standard just over 18 months ago of a skip that had actually fallen into the road as a consequence of building works, where the highway had actually been damaged by building works. There are lots of basementtype conversions done in Westminster, and the companies that do the works will not really think about doing the works for anything under half a million pounds in value. But in those extreme cases, when the highway collapses, we are then faced with the problem of having to get that highway restored. We have had incidences in the past and Bell Street more recently, where a developer went into liquidation and the taxpayer has had to pick up the cost of reinstating the footway at a cost of £20,000 for a frontage that was about 35 metres in length and 3.5 metres wide. What we usually find is that we establish a very good working relationship with the developer and contractor, and we have pre-site survey meetings with them. What we are envisaging, if Parliament grants these powers, is to have that regular dialogue with the developer and to ask for an appropriate deposit when it is necessary to do so. A lot depends on the nature of the development. There needs to be a proper assessment made of whether there is likely to be significant damage to the footway, but we do find on many of the developments in the City of Westminster that there is damage to the footway and the carriageway.
331.MS LIEVEN: Just one question, Mr Low. You dealt with the situation where the developer goes bankrupt and therefore there is no way the council can recover the money. But even in situations where the developer has not gone bankrupt and therefore would still be good for the money, is there an advantage to the council in not having to sue through the court to recover the money?
332.MR LOW: Yes, it is much more effective. It means there is no debate about whether or not the works need to be done. We can get on and do the works promptly and make sure that the highway is kept in a safe and usable condition. So there is a big advantage in having these changes introduced. The travelling public will see less delay and disruption, so they will benefit as well. Neighbouring businesses will obviously clearly benefit, because if you have a situation as we faced in Bell Street, where we were trying to resolve the problem, the public and other neighbouring businesses were suffering whilst that debate went on about whether or not we could recover the costs.
333.MS LIEVEN: Those are all my questions to Mr Low, sir.
334.CHAIR: Thank you. Do any Members of the Committee want to ask Mr Low any other questions?
335.MR WALKER: Mr Low, is there any precedent for this type of approach in terms of the use of deposits in councils elsewhere in the country or in other countries?
336.MR LOW: We do have highway deposits made, but we are able to do that only when scaffolding, skip or hoarding licences are being issued. So it is a condition of the licence that we can actually require a deposit in those circumstances, but there are many developments that do not require a licence because the scaffolding or the hoarding is not resting on the highway. But the works themselves cause damage to the highway. That is why it is so important to get this change in legislation.
337.MR BUCKLAND: Is it appropriate, though, to use the building regulation consent procedure for a matter that is not strictly speaking within the ambit of building regulations?
338.MR LOW: I think what is important is the right trigger mechanism to make sure that there is that discussion with the council as highway authority, and that an appropriate provision can be made if it is appropriate to require a deposit. A lot depends on the nature of the works being done to the property as to whether or not a deposit is required at all. That is why we think this change is necessary, because the trigger of the building control means that we know straight away that work is going to take place. If we do not have that trigger mechanism, it is more difficult to predict. You certainly would not want to tie it to planning consent, because that can last three years and it may never be implemented. Tying it into the building control aspects when works start and notice of starting works is required seems to be a very good and effective trigger. What we do not want to do is take money quickly. We want the money taken at the appropriate stage because we do not want to frustrate development.
339.MR BUCKLAND: So that I understand this right, you are trying to cover a position where the building works do not touch and concern the highway, but potentially there could be some form of damage to the highway.
340.MR LOW: Yes, through the delivery of the materials, or a heavy crane that is used to lift air-conditioning equipment into the development. There are lots of instances where the works are being done off the highway but require some works or activity on the highway.
341.MR BUCKLAND: You could apply that to lots of activities, could you not?
342.MR LOW: You could, but that is why you have to have a sensible discussion with the parties involved. This trigger then means that we get that discussion at the right stage.
343.CHAIR: Could I ask about this trigger mechanism, as you have described it? Maybe my question is for Ms Lieven. Is the trigger mechanism specified anywhere within the Bill, or is that something you intend to do through discretion once this becomes an Act?
344.MS LIEVEN: Sir, the trigger mechanism is in terms of timing. If the requirement for the deposit was attached to a condition for planning consent, the condition would say something like, "28 days before it is intended to implement the planning permission, notice shall be given to the local planning authority, and X deposit shall be paid." That kind of notice procedure is quite normal. For example, where I could immediately envisage it is listed building consent, because you have to tell the planning authority you are going to implement the listed building consent, and then if there are particular sensitivities the listed building inspector will go round and check the building. So it would mirror that. In terms of the timing trigger, it would be for the developer to decide when they want to implement, and then give notice to the local planning authority. In terms of the criteria that would be applied, so the trigger for whether Westminster would want a deposit at all, that is not dealt with in the Bill; that would have to be a matter of general public law principles. It would obviously have to be rationally connected to what the clause was dealing with. If challenged, Westminster would have to be able to say, "We have reasonable grounds to believe that there could be damage to the highway here for these reasons, and therefore we are going to ask for a deposit of X thousand pounds, and that is calculated on the following basis." If Westminster could not do that, then it would obviously be open to be challenged in the Magistrates’ Court.
345.MR LOW: It is no different from the situation that exists now, where we can require a highway deposit if a hoarding or scaffolding is placed on the highway. Really it is an extension of something we are able to do at the moment.
346.CHAIR: What I am hearing, and correct me if I am wrong, is that the Bill gives power to apply these charges in every case, if you chose to do that, but it is not your intention to do that.
347.MR LOW: No.
348.CHAIR: You would do it in a more moderate, considered way against criteria.
349.MR LOW: On the basis of the probability of any damage.
350.MS LIEVEN: That is quite normal, sir, in public law: that a power is given, but then there are books written about the ways such powers have to be constrained. In practice the key protection here is that the power has to be exercised, one, rationally, and two, for the purpose of the statute-what the statute is getting at.
351.CHAIR: Any more questions? No? Right, Ms Lieven, you can move on.
352.MS LIEVEN: I suspect this might be the moment for Mr Thompson.
353.CHAIR: Indeed, yes. Let us hear from Mr Thompson.
354.MR THOMPSON: Good afternoon. My name is Tony Thompson. I lead on Development Management Policy within the Planning Directorate at DCLG. I am a chartered town planner and chartered surveyor with over 25 years’ experience. If it would be helpful, I could just make a short statement about the Government’s position.
355.CHAIR: That would be helpful, thank you.
356.MR THOMPSON: The Government’s number one priority is to get the economy growing. It is essential to provide the conditions that support local economic growth, and remove barriers that prevent local businesses creating jobs and getting Britain building again. Clauses 6 and 7 will not support these objectives. Although the impact is on all forms of development, these provisions are also contrary to the 2010 Spending Review commitment to reduce the total regulatory burden on home builders over the spending period. They run counter to the housing strategy for England, which seeks to support a thriving and active stable housing market. Currently under the powers of the Highways Act 1980, a highway authority may recover the cost of damage to any footway adjacent to the development. Clause 6.6, now I believe clause 6.8, would extend that to cover damage to the highway. Section 1.3.3 of the Highways Act gives the highway authority the power to make good any damage caused by works on land adjoining the street, and recover expenses reasonably incurred in doing so. We have no objection to the principle of a developer who damages the highway during construction being required to meet the costs of repair for damage they have caused. However, Ministers are very concerned by clause 6. This provides that the highway authority may require, in the form of a deposit before development commences, a sum to cover potential damage to the highway that may or may not occur during the construction process. Even if the money is eventually returned to the developer, such payments could add significantly to the upfront costs of a proposed scheme, could impact significantly on development viability, and in turn restrict local growth and development opportunities.
357.It is not clear what the scale of costs would be or what mechanism would be used to ensure that monies would only be spent on repairing damages caused by the development. What is clear, however, and we have heard further evidence this morning, is that this provision could apply to most development sites in London. Indeed, it is probably fair to say it would apply to all development sites in London. The costs will include not just damage caused by construction works, but also damage caused by any activity associated with or arising as a result of the relevant works. Furthermore, we believe that this process could delay the development process because of the need for negotiation between the highway authority, the local planning authority and the applicant about the scale of deposit required. We have not seen evidence on the impact of the proposal, and consequently unless Ministers are satisfied that the burdens on the development industry will not be increased, they are opposed to this proposal as it is currently drafted.
358.A secondary objection is that we do not think that the mechanism for securing such payment, either through planning conditions or building regulations, is workable. Incidental damage that might occur to the highway during the implementation of planning permission will only be material to the determination of the planning application where it is relevant to the planning merits of the development. So it cannot readily be argued that securing a bond to finance any potential repairs is necessary in planning terms. As such, therefore, it is not something that can be legitimately covered as a matter of course in planning conditions, although it may be legitimate in particular circumstances. Likewise, damage to a highway is not an issue pertinent to building works that are subject to building control. The Government does not consider that conditions attached to building regulations should be used in this way. Such a proposal would be inconsistent with the Building Act and regulations.
359.I wonder if I could just pick up the point in relation to building regulations in a bit more detail. In our view, damage to a highway is not an issue pertinent to building works that are subject to building control. There are two principal reasons why it would not be appropriate to use conditions attached to building regulations. Firstly, the building regulations as set out in the Building Act and associated regulations are concerned with work to buildings, in this case, most likely the erection or extension of a building. The impact of building works on the surrounding area is irrelevant for the purposes of building control, as are any works on the development site not involving buildings, such as landscaping or the setting out of an access road on the site. The imposition of a condition requiring the deposit to cover potential damage to the adjacent highway during construction is not something that could be required to ensure compliance, therefore, with building regulations, which is the foundation of the building control system.
360.Secondly, even if it was deemed appropriate to use building controls to impose conditions, it is very difficult to conceive how these conditions could be imposed with the current arrangements for building control processes. There are essentially three main ways applicants can engage with the building control process. They can choose to use a private sector approved inspector to approve plans, although as we have heard the intention is that this particular form of building control would not be covered. Secondly, they can ask the local planning authority to approve plans. Thirdly, and for dwellings only, they can serve a building notice that they intend to start works within two days. We consider it is entirely inappropriate, and it would appear the promoters do also, for a private sector body to levy a charge on a developer as a condition of building control. Clearly the building notice period would be insufficient to be able to conduct the necessary discussions to determine the scale of upfront payment required to meet any potential damage to the highway. Thus we could not achieve the imposition of such conditions in a fair and consistent way without a fundamental reworking of the building regulations process in ways which might restrict or delay the scope of the building regulations consent. In short, we believe there are fundamental concerns regarding using the building regulations process to achieve this provision.
361.CHAIR: Thank you, Mr Thompson. There is an opportunity for Ms Lieven and Members of the Committee to address questions to Mr Thompson through the Chair, if you wish to do that. Ms Lieven, do you wish to do that?
362.MS LIEVEN: Sir, I do not think I have any questions for Mr Thompson, no. I have a few points in response I would seek to make, but I do not have any questions.
363..CHAIR: Let us hear your points in response, and then I will ask Committee Members if they wish to ask questions.
364.MS LIEVEN: Sir, fundamentally, I would suggest it is difficult to see why making a developer pay for damage that he has caused to effectively an item owned by the public, by the local authority-that is, the highway-is in itself contrary to a desire for economic growth. I would suggest, with great respect to Mr Thompson, that the position is slightly inconsistent, because it is quite clear, if one reads the report as a whole and from what Mr Thompson said, that DCLG do not object to the principle of requiring the developer to pay. A main part of the objection is that it should not be a blanket requirement. Mr Low has made it entirely clear, and it follows necessarily from public law principles, it would not be a blanket requirement.
365.Another concern raised by Mr Thompson was that the money might be spent on other things, but that would be just plainly unlawful in public law terms. The money would have to be spent on what it had been gathered for, and if it was not spent for that purpose, it would have to be returned.
366.In terms of how the clause would operate in practice, and the planning condition test, Mr Thompson said DCLG do not think that it would be necessary for planning permission, but that is necessarily a question of the local authority judging it on a casebycase basis. So if on a particular case-the large underground extension in Belgravia-there is good reason to believe there could be damage to the highway, then a requirement that the developer make an upfront deposit could plainly be necessary for the granting of planning permission. So the necessary test simply depends on the facts of the particular case. In my submission, the fundamental objection from DCLG is wholly answered, because if Westminster, as an example, have reason to believe that this particular development is likely to damage the highway, then a deposit is plainly reasonable and would plainly meet any planning test.
367.In terms of Mr Thompson’s final part about the building regulations, it is very much the intention of the clause that attaching this to building regulation consent would be the fallback position, and would only arise in cases where planning permission had not been required. It is obvious, for the reasons that Mr Thompson has gone through, that the planning consent route is much more likely to be the efficacious route-the simpler route.
368.We have dealt with Mr Thompson’s first concern about private sector approved inspectors. It was never our intention that they would be able to require deposits to be paid. In our submission, it is relatively unlikely that the deposit will be required in the case of somebody doing selfservice of a building notice, which is necessarily going to be your smaller household development.
369.Finally on that part of the clause, sir, if the Committee are concerned about the building regulation part of this, clause 6.3(b), the Promoters are far more concerned to retain the principle of being able to attach the deposit to the planning consent in what will necessarily be the larger developments. If the Committee feel it is appropriate to amend the clause to take out clause 6.3(b), then the promoters would be content with that situation.
370.CHAIR: Mr Thompson, you have heard what has been said. Perhaps you would care to respond, but maybe I could just add something to seek your views on. Mr Low has spoken with great authority about the situation in Westminster. How typical is Westminster? Does the situation there generally apply right across London? If you could address Ms Lieven’s point as well, I would be grateful.
371.MR THOMPSON: On that first issue, clearly basement development is typically confined to the central area, so on that specific point I would say that is probably not widespread across the whole of Greater London. I think the important point here is that in the particular circumstances of that case it is possible already, through Section 133, to ensure that those costs are recovered. I appreciate there are instances where the developer may go bust, but those are limited. The issue here is that this proposal would effectively cover all types of development within Greater London, and potentially apply to all of them. The principal concern is not just that it is blanket but that it requires an upfront payment. In other words, this is a cost to a development that is at that moment speculative; in other words, it may well be the case that there is no damage caused. Nonetheless, that money will need to be paid by the developer at the point that they start the development. Clearly, development viability being what it is, that additional deposit, which, as I say, may or may not be required, could well have an impact in relation to the development going ahead. Now, as I say, I think there are already mechanisms to ensure that the necessary costs are recovered. Just to be clear, the Government does not oppose clause 6, subsection 6, which would extend the power to recover costs not just from the footway but also to the highway as well. We believe that is the appropriate way to address these instances, and effectively this proposition opens up the legal possibility-and I appreciate that it may well be Westminster’s intention to act reasonably-that in each and every circumstance in Greater London such a requirement could be made upfront in relation to development. That is the point of principal concern in relation to the Government.
372. I shall pick up the issue about money being spent wisely or unwisely. It seems to us that where you have a deposit, if you like, it is possible for the council to determine precisely what the impact is. We think that the onus of proof should be on the council to demonstrate that the development has caused that particular impact, not the other way around. Those are the main points I wanted to make.
373.CHAIR: Thank you, Mr Thompson. Do any colleagues wish to ask questions? Mr Buckland? No? Okay, fine. Perhaps you could share that with us, Ms Lieven?
374.MS LIEVEN: I am so sorry. I only half heard what Mr Thompson was saying. I understand he is not objecting to clause 6.8, which is the extension of Section 133 from the footway to the highway. That is a freestanding point.
375.CHAIR: I did say that, if there was a prospect of achieving a conclusion, we would run this a little beyond one o’clock. I am rather in your hands, Ms Lieven. How long do you think you might need to take us through the remaining unopposed clauses?
376.MS LIEVEN: Five minutes, sir.
377.CHAIR: Shall we stay with it? Are you content with that? Right, carry on.
378.MS LIEVEN: I should have said, sir-not responding to Mr Thompson but because I was not clear-if you do decide to amend clause 6 to take out the reference to imposing a condition on building regulations, you need to take out clause 7 as well, because that relates specifically to the clause 6.3(b) power.
379.MR THOMPSON: Just for the point of clarification, in addition to the objection to the principle, we also maintain our objection in relation to the planning condition aspect as well as the building regulations. I just wanted to make that clear.
380.MS LIEVEN: So then much more quickly, the unopposed clauses. Part 3, builders’ skips, clauses 815. What these clauses do is decriminalise existing offences under the Highways Act in relation to builders’ skips, and they make them subject to what we all know as the civil traffic regulation, penalty charge notice regime. So they take them out of the police criminalisation provisions and allow the highway authority to serve a penalty charge notice on the owner. It follows from that that the owner can make representations to the council if they think that the notice was wrongly served. Matters covered include depositing a skip without permission, not properly lighting it or marking with the owner’s name, not removing it as soon as practicable after it had been filled and not complying with any conditions of the permission. The clauses also allow the highway authority to immobilise a skip where a penalty charge notice has been served. DCLG asked how a skip would be immobilised, and there is a little photograph somewhere showing the immobilising of a skip. We understand that the Government does not oppose those clauses, and there are no petitions against them.
381.Clause 16 deals with gated roads. That is where the local authority has placed a barrier on the road for traffic management purposes. This is not about private gated estates, which is what immediately comes to mind. It is about places where there is a barrier to stop anything other than, say, fire engines going through, or a barrier for traffic management purposes at particular times. Clause 16 makes it an offence to open, close, or otherwise operate or interfere with such barriers. If somebody damages them, then that is criminal damage and that is fine; it is an offence at the moment. But if somebody simply comes along and opens them at the wrong time or interferes with them, at the moment that is not an offence, and so you can see that there is a traffic management benefit in making sure that such interference is an offence. That is Clause 16; again, it is not reported against and there are no petitions against it.
382.Then clauses 18 to 22 relate to charging points for electric vehicles, which give the specific powers to provide electric charging points in the highway and to grant permission to other people to do so as well There are notice requirements, consultation requirements and consent of railway undertakers requirements if it is anywhere near a railway. It is, I think, just important to note, because the Committee may have seen electric charging points already on the highway, certainly in Westminster and in Camden-I do not know about other authorities-that existing charging points are at parking bays for electric vehicles only. At the moment they can only be provided in that specific instance, where the owner of the electric vehicle pays a charge for the use of the bay. So what the clauses do is allow the local authority to provide electricity separately from the parking regime, so they are quite an important part of encouraging electric vehicles in London. Again, there are no petitions against that and no report.
383.There is a tidyingup provision in clause 23, which is no more than a tidying up provision and does not change the substantive law.
384.CHAIR: That was good. Thank you, Ms Lieven. Any questions? No, okay. Right, we will go back into private session. We will discuss all the clauses except, of course, for 17. So if you could leave us, I would be grateful. Thank you.
Public session adjourned at 1.05 pm
Ordered at 1.21 pm: That the Parties be called in.
385.CHAIR: I can now announce the Committee’s decision on the Bill, which I will only be able to achieve as long as the battery on this PC holds out. The Committee’s decision on the Bill is, part one, to agree to the three clauses with the agent’s proposed amendments. On part two, clause 4 and 5, to agree with the agent’s proposed amendments. On clause 6, the decision is to delete the clause from the Bill except for section 6.8, which would become the new clause 6. Clause 7 is to be deleted.
386.MS LIEVEN: Thank you, sir.
387.CHAIR: There is more to come. On part three, all clauses are agreed to with the agent’s proposed amendments. On part four, clause 17 of course is deleted, but clause 16 is agreed to with the agent’s proposed amendments. Part five is agreed to with the agent’s proposed amendments. Lastly, part six is agreed to with the agent’s proposed amendments. I think we deal with the preamble, do we?
388.MS LIEVEN: We have to prove the preamble, sir. I have a form of words. May we do Mr Blackwell from Westminster first, on behalf of the local authorities? Is your name Gary Blackwell?
389.MR BLACKWELL: It is.
390.MS LIEVEN: Are you the Head of Contentious Law at Westminster City Council?
391.MR BLACKWELL: I am, yes.
392.MS LIEVEN: Have you read the preamble to the Bill as amended?
393.MR BLACKWELL: Yes, I have.
394.MS LIEVEN: Is it true?
395.MR BLACKWELL: It is.
396.MS LIEVEN: Thank you. Is your name Felicity Morris?
397.MS MORRIS: It is.
398.MS LIEVEN: Are you the Legal Manager at Transport for London?
399.MS MORRIS: I am.
400.MS LIEVEN: Have you read the preamble to the Bill as amended?
401.MS MORRIS: I have.
402.MS LIEVEN: And is it true?
403.MS MORRIS: It is.
404.MS LIEVEN: I think that is what we need to do, sir.
405.CHAIR: Thank you. Well that concludes the work of the Committee. We will now adjourn.
Committee adjourned at 1.24 pm