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Road Safety Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. In doing so, I ask the noble Lord, Lord Bradshaw, not to move his Amendments Nos. 16A and 17A, but I shall of course seek to reply to any points that he makes. We think that we have now produced a position with regard to the safety of level crossings that should commend itself to the House. The first new clause seeks to improve the safety of level crossings by making clear that a level crossing order can impose obligations on traffic authorities as well as on the level crossing operator and so better provide for road traffic measures to control the behaviour of motorists. The other new clause is a technical amendment which provides for the making of level crossing orders to be delegated to the rail safety regulator rather than be made directly by the Secretary of State, and prospectively validates orders made by the Health and Safety Executive on his behalf. Amendments Nos. 23, 24 and 32 are consequential on those two new clauses. The remaining amendments remove clauses which the Government do not think are necessary and which were not supported in the other place. When the Bill was introduced into this House, much concern was expressed about safety at level crossings. Now that other safety concerns have been tackled, level crossings represent the greatest risk to safety on the railway. In the main, however, the risk arises not from the actions of rail users but from those of pedestrians and motorists who misuse crossings in a reckless way. A number of amendments were tabled by noble Lords to tackle the problem. The Government position was that those amendments were either defectively drafted or that we were not convinced of the need for further primary legislation. We did, however, undertake to think about the issue and I am pleased to report to the House that in the other place an amendment was introduced which seeks to tackle the problem of misbehaving motorists by clarifying that a level crossing order may put obligations on road traffic authorities as well as on the level crossing operator. The amendment was introduced after agreement with Network Rail on the wording. Level crossing orders set out the protective measures to be provided at a level crossing. ““Protective measures”” means the types of signs, barriers, lights and so on needed to ensure the crossing is safe both for road and rail users. The general process has been that, after consultation with the local authority, the level crossing operator applies to the Secretary of State for an order setting out the necessary measures. The proposals are considered by Her Majesty’s Railway Inspectorate and the order made by the inspectorate on behalf of the Secretary of State. The protective measures have traditionally been rail measures but the amendment makes clear that road traffic measures can also be considered. This means that there will need to be discussions between local traffic authorities and the crossing operator, usually Network Rail, on a package of measures. These could include rumble strips to slow traffic on its approach to the crossing, additional signage, cameras and central barriers to stop motorists from attempting to zig-zag around half-barriers. Network Rail has agreed to fund these measures, so there will be no additional call on the resources of local authorities. The Government have looked at the other amendments introduced into this House but are not persuaded of the case for special offences in respect of breaching red lights at railway crossings and bridge strikes. Regarding red lights, there are many instances where a violation can have catastrophic consequences for motorists and pedestrians just as much as where collisions occur on railway crossings. As the roads Minister made clear in the other place, where the violation is blatant and dangerous, the driving can and should be prosecuted as such with a significantly higher penalty, including custody, than that which applies to breach of a red light. If there is real evidence of a problem the Government would be prepared to consider using subordinate powers under Clauses 3 and 4 of the Bill, subject to the agreement of Parliament, to set a higher fixed penalty and higher penalty points tariff for breaches of red lights where they occur at railway crossings. Bridge strikes greatly interest several noble Lords. I believe the current offence of careless and inconsiderate driving, with a maximum fine, subject to parliamentary approval for Clause 22 of this Bill, of £5,000, is sufficient. In extreme cases, where danger is caused to other road users, it may be appropriate to prosecute for dangerous driving with the possible attendant penalties. The possibility of a custodial penalty is a significant elevation of the gravity with which society views an act of irresponsible driving. It is a very tricky path when we start to designate very specific actions in their own right as being as serious as those for which custodial penalties presently exist. I have heard it argued for when people use mobile phone when driving, for example. But how do we balance all these different circumstances? My response is to say that it should remain a matter for those who charge and those who sentence. Sentencing guidelines indicate that use of a mobile phone might be considered an aggravating factor when sentencing for dangerous driving. I think it would be appropriate for the Sentencing Advisory Panel to take a look at the level crossing and bridge strike situations. The Government are willing to make that request and I hope the noble Lord will recognise that that is the basis on which constructive action can be taken, which is the burden of his amendments. The other new clause is not concerned with the content of level crossing orders but is a technical amendment about who has the power to make level crossing orders. With the transfer of the HMRI from the Health & Safety Executive to the Office of Rail Regulation earlier this year, we had intended that the rail inspectorate would continue to make level crossing orders. But doubt was cast on whether the wording of the Railways Act 2005 would allow this. In turn, doubt was cast on whether the delegation to the Health & Safety Executive in 1990 was sufficiently robust. The Railways Act 2005 and the Health & Safety at Work etc Act 1974 (under which the 1990 delegation was made) permit the delegation of administrative functions but not legislative functions. We have concluded that the making of level crossing orders is a legislative function. We are, therefore, seeking to put beyond doubt that the making of level crossing orders can be delegated and to make clear that orders made by the rail inspectorate inspectors when they were in HSE are valid. If approved, the amendment would confirm the legal position as that which absolutely everyone thought it always was, and which has worked well in terms of level crossing safety. Moved, That the House do agree with the Commons in their Amendment Nos. 13 to 15.—(Lord Davies of Oldham.)