My Lords, I have previously discussed the rationale behind a number of government amendments which will further define the duties of the monitor. Amendment 41, which I have already described but will move shortly, if I understand it correctly, makes it clear that if the company fails to comply with its statutory directions or have regard to guidance, the monitor may issue fines. We have covered Amendment 43, which will give the monitor a duty to drive performance in a number of areas.
Amendments 38 and 39 propose an alternative to the Government’s definition of the monitor’s function. However, as I have mentioned, the Government’s amendments to the Bill already describe what the monitor should have regard to when monitoring the strategic highways company. With those in place, the distinction between “monitoring” and “ensuring” should become academic.
The noble Lord, Lord Berkeley, has also proposed that we remove subsection (5), which prevents the ORR requiring the company to provide it with information that it would not be compelled to produce during civil proceedings. Our legislation already grants the Office of Rail Regulation strong legal powers to require the strategic highways company to disclose data. However, I reassure noble Lords that this does not mean that the monitor has carte blanche to access every file held by the company. For example, the company should not be obliged to disclose particularly sensitive documents—for example, legal advice. This is a perfectly reasonable proposition.
In assessing the performance and efficiency of the company, there is little information that the company would not be compelled to disclose during civil proceedings that would help inform the monitor’s analysis. In addition, pitching this at the level of civil proceedings has a precedent. The provisions in subsection (5) mirror those in Section 58 of the Railways Act 1993.
As for the amendment of the noble Lord, Lord Berkeley, to the government amendment, I agree that the company must comply with its health and safety obligations and have due regard to maximising efficiency. It is also important that the monitor has the power to sanction the company if its performance and efficiency have been insufficient, as the Government’s amendments have set out. However, as we have already discussed, I do not believe that it follows from this that the monitor needs further powers to issue sanctions for health and safety. The Health and Safety Executive is responsible for policing this area and every company has an obligation to comply with the Health and Safety at Work etc. Act 1974, regardless of what our monitor is empowered to do. As there is already an effective and respected body in this area, I feel that it should be left to continue with its good work.
Turning to the second addition, once more I agree that maximising efficiency on the design, construction and operation of the highways is important. When we discussed Amendment 43, we made it clear that the monitor has critical responsibilities in assessing the key themes of performance and efficiency; and it will need to use its powers of sanction accordingly. The Government’s amendments ensure that these issues are given appropriate regard. The monitor will have the power to sanction the company if it is satisfied that the commitments of the road investment strategy, which will include commitments on construction and on efficiency, have been contravened.
This leaves the issue of design, which is currently the remit of existing planning authorities. Planning authorities operate effectively and judiciously all across the country. They currently have the responsibility for approving the design of any highways and are well placed to consider local issues. This system works well, and I believe that matters of design should remain in their capable hands. They need not be duplicated by the monitor.
Finally, I turn to the first amendment in this group. This proposes that the Office of Rail Regulation be renamed the Office of Rail and Road Regulation. As your Lordships may be aware, following discussions in
Committee we have announced that we plan to change the legal name of the watchdog from the Passengers’ Council to Transport Focus. I can understand why the noble Lord proposes this change for the monitor. This case, however, is less straightforward.
There is the issue of the proposed name. While it may appear that we are indeed talking about an office dealing with road and rail issues, I urge caution around “regulation”. The monitor will not be a regulator of roads, at least in the market-setting sense in which the ORR currently regulates the railways. It will not control the direct costs on individual motorists for using the network, as it does on the rail side, because for the vast majority of roads such costs do not exist. In fact, the tools available within a hypothetical office of rail and road regulation would be very different, depending on which side of the road or rail fence it was acting.
We have discussed this question with the ORR itself. It is very alert to the new challenges of its role, and to the value of handling road and rail policy in one organisation. It does not, however, think that a name change is appropriate at this time.
Unlike Passenger Focus, the ORR has to manage a relationship with its levy payers in the rail sector and has a formal role in making sure the rail market functions well. Given that this is a substantially different role to roads, it would rather carry out the road work under a strong free-standing brand—the strategic road network monitor—while retaining its current statutory name for its existing work. This will ensure that any confusion is avoided and that, in the eyes of the public, roads monitoring is clearly differentiated from rail regulation. This will make it clear that neither road nor rail users risk having their interests eclipsed by the other.
There is also a practical issue with the noble Lord’s approach to renaming the Office of Rail Regulation. Considering the varied legislation in which the name “the Office of Rail Regulation” appears, the proposed amendment would not be in itself sufficient to make the change. There would also need to be significant tidying up. That is why we are renaming Passenger Focus, through secondary legislation, in which these implications can be worked through. If we were changing the name of the ORR, we would want to follow the same approach.
The amendment that I propose is an important safeguard in ensuring appropriate monitoring of the strategic highways company, and I hope that your Lordships will support it. Conversely, I believe there is a strong argument against each of the amendments of the noble Lord, Lord Berkeley, and ask that he withdraw this one.