Grand Committee Report of 19 May 2003

Official Report of the GrandCommittee on the
  Railways and Transport Safety Bill [H.L.]
  ( First Day)

  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Haskel) in the Chair.]
  The Deputy Chairman of Committees (Lord Haskel): Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
  I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes. Perhaps I may also remind your Lordships that there is no need to touch the microphones. When any noble Lord wants to speak, the engineer sitting in the corner will switch the microphones on and off.
  There is a Division in the House, so we shall adjourn for 10 minutes.
  [The Sitting was suspended for a Division in the House from 3.31 to 3.41 p.m.]
  Title postponed.
  Clause 1 agreed to.
  Clause 2 [Meaning of "railway accident" and "railway incident "]:
  Viscount Astormoved Amendment No. 1:
  Page 2, line 14, at end insert—
  "( ) Regulations under subsection (2) shall not be made until a draft has been laid before both Houses of Parliament and approved by resolution of each House."
  The noble Viscount said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 14 and 44.
  Amendment No. 1 is largely a probing amendment because I realised that Clause 1 is affected by the regulations in Clause 13. I want to ask, first, about
  GC2
  consultation. What is happening and what stage has the process reached? I want also to ask: when will the regulations be made and when will drafts he available?
  It is important that the regulations are made under the affirmative resolution procedure because in the department's paper to the Select Committee on Delegated Powers it states:
  "With the development of new rail innovations, such as Cardiff's proposed 'ULTRA' rail based transport system".
  I have no idea what that system is; whether it is a railway or not a railway. However, it indicates that the definitions will become increasingly difficult.
  The department goes on to state that,
  "it may be appropriate to widen the meaning of 'railway' to include such modes within the investigative remit of RAIB".
  This is therefore an important subject and it would be helpful it the Minister could give us some illumination.
  With regard to the other two amendments in the group, Amendment No, 14 concerns the regulations that the Secretary of State may make about the conduct of investigations by the rail accident investigation branch. These include important provisions regarding the function of the chief inspector, or the branch itself, and would also allow the chief inspector to appoint other people to take part in an investigation. Perhaps the Minister could clarify who such a person could be and when the power will be exercised. Given the importance of these regulations, we feel that they should be approved by both Houses.
  Amendment No. 44 concerns the Secretary of State's right to make regulations with regard to the alcohol limit of non-professionals. No doubt this will arise in debates as we move through the Bill, but it seemed to me to be an important change. I am therefore interested to hear why the Government chose to draft the clause as it stands. I beg to move.
  Lord Bradshaw: I support the request for clarification. We support the requirement that the regulations be subject to affirmative resolution. They have not been drafted and we have had no opportunity to scrutinise them. Furthermore, as we shall say time and again, we are adamant that the rail accident investigation branch is as independent as possible. Its deliberations should not be subject to what the Health and Safety Commission or the British Transport Police may believe, unless there is a clear breach of criminal law, or statute law relating to health and safety. We want officials to have as restricted an opportunity as possible to interfere within the work of the RAIB.
  We will return to that matter many times and will be asking that the new branch has clear and independent powers which are known to Members of the House and the public and that they are not left open to the intervention of other parties, interfering in the work of the branch.
  3.45 p.m.
  Lord Berkeley: I support the principle behind these amendments in connection with what the RAIB will

  GC3
  do and how it will do it. I appreciate that it is early days, but I take into consideration the experience of the Air Accident Investigation Branch, the way in which it appears to operate and how it has dealt with the few serious accidents that have occurred. If the Government are not able to publish the regulations while the Bill is before your Lordships' House, will it be possible to develop a series of protocols setting out the principles under which the RAIB would work? Who will have precedence in examining accidents? Will the Health and Safety Executive and the British Transport Police be involved in any way? Can the branch give early indications that, for example, it believes that criminal investigation may be necessary or not? Will the Minister publish such principles before the next stage of the Bill, or can we meet him to discuss what they might be?
  Lord McIntosh of Haringey: I begin by expressing reverence—some may say extreme reverence—for the wishes of the Delegated Powers and Regulatory Reform Committee. The committee's report on the Bill made two recommendations. The first was that the regulations introducing the HSE rail levy in Clause 104 should be subject to the affirmative resolution procedure on the first occasion on which they are used. The second was that changes to the upper and lower limits on the number of people on the British Transport Police Authority should be subject to the negative resolution procedure. We shall implement those recommendations in government amendments to be made on Report.
  But of course it works both ways. The Delegated Powers and Regulatory Reform Committee has not recommended that the three regulations which are the subjects of Amendments Nos. 1, 14 and 44 should be subject to the affirmative resolution procedure and there are good reasons for that. The regulations for the railway accident investigation branch will set out the working arrangements for the branch in the same way that the working arrangements for the air and marine accident investigation branches are set out in regulations. They explain what type of accidents the AAIB and the MAIB are to investigate and both sets of regulations are made under the negative resolution procedure, as is provided for under this Bill.
  For that reason, and because the Cullen recommendations fundamentally are that we should follow the air and marine accident investigation branches in setting up the rail accident investigation branch, we believe that we should follow the same procedure for parliamentary scrutiny.
  The noble Viscount, Lord Astor, asked about consultation and when we can expect to see the draft and final regulations. The chief inspector of rail accidents designate and the department are already working closely with the industry, the HSE and the police to ensure that the definitions in the regulations will be correct. The draft European safety directive, which will come forward towards the end of the year, will also set down its own definition of accidents and we will have to take account of all of those in setting
  GC4
  out our regulations. We propose to begin consultation after Royal Assent. We also propose that the regulations will be first published in draft and will be available next April, or soon afterwards. In all of those respects, we are following precedent and the wishes of our committee.
  The noble Lord, Lord Bradshaw, asked for an assurance that the RAIB will be fully independent and I can assure him that that will be the fundamental principle behind the regulations.
  Amendment No. 44 is different from Amendments Nos. 1 and 14 because it is unnecessary. Clause 79(4) is already subject to the affirmative resolution procedure. Clause 87(4) explains that regulations under Part 4 of the Bill shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
  On that basis, I hope that the amendment will be withdrawn.
  Viscount Astor: I thank the Minister for that helpful response. I note he said that the Government will bring forward amendments as recommended by the Select Committee. It is always helpful when the Government take on board its recommendations, as they usually do. But I am sure the Minister will agree that on both sides there can be exceptions to the case; and that when looking at the recommendations one considers what should be included or excluded.
  Lord McIntosh of Haringey: That works only one way. We agree to what the Select Committee recommends, but the Opposition do not always do so.
  Viscount Astor: That is the way opposition works. I am grateful for the Minister's explanation of why Amendment No. 44 is not necessary. His comments on the draft regulations and the timetable were helpful. I note that he did not try to explain the proposed,
  "ULTRA rail based transportation system",
  in Cardiff, but no doubt he knows all about it. I shall not test his knowledge on that and I am grateful for his response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 agreed to.
  Clause 3 [Establishment]:
  Viscount Astormoved Amendment No. 2:
  Page 2, line 25, at end insert—
  "( ) The Rail Accident Investigation Branch shall be constituted with regard to regional representation, including consultation with the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly."
  The noble Viscount said: The amendment follows a debate in Committee in another place about consultation with the regions and with regional parliaments. There is concern about what will be the constitution of the rail accident and investigation branch in terms of consultation with the three devolved powers. The issues of transport cross some of the boundaries and we are dealing with safety and risk to human life which is important.

  GC5
  I imagine that the Minister will answer that there will be full consultation, but one might require further safeguards to ensure that that is the case. That is the purpose of Amendment No. 2. I beg to move.
  The Earl of Mar and Kellie: Although I go along with the spirit of the amendment, if the Minister is mindful of agreeing to it, I hope that he will subsequently amendment it so that the Bill does not refer to Scotland as a region. The acceptable phrase would be,
  "national and regional representation".
  Lord McIntosh of Haringey: Two separate issues are involved. The first is the composition of the branch and the second is consultation with the Scottish Executive, the Welsh Assembly government and the Northern Ireland Assembly, when it is restored. On the second, I can give an assurance that there has been and will be close consultation with those bodies and that they have all supported the creation of a rail accident investigation branch. If a rail accident occurs in Scotland, Wales or Northern Ireland, the chief inspector will keep the regional governments informed on progress. There is no problem about consultation.
  However membership of the branch deserves attention. This is not a branch of interests; it is one of professionals. It comprises a highly skilled professional team of professional rail accident investigators. They must have the highest level of expertise in accident investigation, rather than be appointed on the basis of the region from which they come. I do not believe that analogies with, for example, boards under Ofcom in the Communications Bill is relevant. I hope that the amendment about the composition of the board will not be pressed now or later.
  Viscount Astor: I am grateful for the Minister's reply and I shall study it carefully. I understand the noble Earl's point about Scotland not being described as a region. I do not know how the Welsh view themselves; are they a nation or a region—
  Lord McIntosh of Haringey: It is a principality.
  Viscount Astor: The noble Lord, Lord McIntosh, corrects me and says that it is a principality. Is a principality a nation or a region? I suspect that it is a nation.
  I am grateful for the Minister's reply and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 3 agreed to.
  Clause 4 [General aims]:
  Viscount Astormoved Amendment No. 3:
  Page 2, line 27, after "Branch" insert ", working in conjunction with the Railway Safety and Standards Board,"
  The noble Viscount said: In moving Amendment No. 3, I shall speak also to my Amendment No. 5. The clause outlines the general aims of the rail accident investigation ranch. My amendment would ensure that the branch would have to have regard to the rail
  GC6
  safety and standards board, with a clear commitment to that on the face of the Bill rather than merely implied.
  Amendment No. 5 seeks to explore the relationship between the RAIB and the rail safety and standards board. The board may be in place before the RAIB, but we are trying to explore the thinking on the relationship between the two bodies. Will the railway safety and standards board be similar to the RAIB? It would be helpful to know more about the interrelationship between the two. Furthermore, to whom will the railway safety and standards board report? Will it be the Office of the Rail Regulator?
  As I said at Second Reading, many of the bodies that are being created and many of those which already exist are being brought together in the Bill. We support the aims behind that, but believe it important that the bodies work together and that we, the general public and all those involved in the industry, understand how the relationships between the new bodies and the reporting structures will work. We want to ensure, first, that they do not overlap and, secondly, that there are no gaps. I beg to move.
  4 p.m.
  Lord Bradshaw: I cannot support this amendment. I have already said that I want the rail accident investigation branch to be independent. We should be careful about qualifying whatever it does by specifying "by reference to", such as the railway safety and standards board, the Office of the Rail Regulator, the Health and Safety Commission or anyone else.
  The railway safety and standards board, which has been reconstituted and is about to embark on its new career, has a specific job to do related to railway operations and engineers. It is a job for the railway industry to decide on its own standards and, presumably, to justify those standards by dint of lives saved/pounds spent. Obviously, such consideration appears to have been forgotten.
  At the same time, I believe that the rail accident investigation branch needs to separate itself completely and judge the matter according to its own lights. I would be most reluctant to support either the question of consultation with the rail accident investigation branch and I would be equally concerned about reference to the Office of the Rail Regulator. I believe that the new regulatory board should be an economic regulator, as is the case with people in other industries such as electricity, gas and so forth.
  In the railways, we have burdened ourselves with an enormously complicated safety structure which people not only do not understand but is costing huge sums of money. Huge meetings take place because all parties want to be represented. I believe that if we are to overcome railway costs, we must demystify and simplify the structure and therefore I will not support the amendment.
  I wish to speak to Amendments Nos. 10 and 11, which are in the same group. I am sorry that I overlooked them. We believe that there is an absolute priority for an investigation to take place to find out

  GC7
  what happened. I shall not go over old cases but we all know of many which have still not been the subject of reports after a disgracefully long time. I make it clear that the rail accident investigation branch should have the duty to inform either the police or the Health and Safety Executive as appropriate if it has prima facie reason to believe that an offence has been committed.
  But if it believes that it is what we might call an ordinary accident and that no one has committed a criminal offence, in my view neither the Health and Safety Inspectorate nor the police should be involved. The British Transport Police should be confined, if I may use that word, to securing the perimeter of any accident site against trespassers and to rescuing any persons who may have been killed or injured in the accident. It is not a job for policemen who are not trained in railway safety to root around the wreckage looking for God knows what, which is what it amounts to.
  There are still 68 police officers of the British Transport Police fully engaged in investigating past accidents. What we need—as happens with the Air Accident Investigation Branch—is for a very swift conclusion to be reached as regards what happened so that swift action can be taken. Within days of the Korean aircraft crash in Essex proper action was taken with that class of aircraft, on a world-wide basis, to ensure that the relevant fault was corrected.
  That was done without trying to attribute blame to anyone and in the interests of safety. We need to get away from the culture of hunting desperately for someone to blame and back to a system where the primary purpose of an investigation is to ensure that such accidents do not happen again and that proper action is taken to prevent them.
  It is a matter of gathering evidence. We shall discuss later whether the courts will be able to penetrate the RAIB or to subpoena witnesses. I have conducted a large number of these inquiries. People who are summoned to give evidence are assured that anything they say will not be taken down under oath and given in evidence. If there is to be frankness, evidence must be given quickly against the background of a cast iron assurance that it is given totally in confidence. I believe that that underlines CIRAS, the confidential reporting system which has recently been established.
  Lord Berkeley: I apologise to the Committee. I omitted to declare an interest at the start of the Committee proceedings as chairman of the Rail Freight Group.
  I share the concern of the noble Lord, Lord Bradshaw, with regard to Amendments Nos. 3 and 5. The railway safety and standards board was set up as an independent industry owned and controlled body. The board is comprised of industry people, apart from the chairman of the SRA, and no one else. Its job is to set standards and to ensure that the industry meets those standards. The board is supervised by the Health and Safety Executive. It talks to other bodies, as one
  GC8
  should in industry, but it would be unwise to complicate matters, as I believe Amendments Nos. 3 and 5 do.
  I turn to Amendment No. 10. I have little to add to what the noble Lord, Lord Bradshaw, said on that. Clearly, the RAIB should inform the Health and Safety Executive and the police if it has reason to believe that an offence has been committed. It should also inform them and others if it does not believe that an offence has been committed. That is equally important. We ought to discuss that matter.
  I also support Amendment No. 11. As the noble Lord, Lord Bradshaw, said, there is a slight problem here. I can see why the Health and Safety Executive and the British Transport Police might want to get hold of confidential evidence collected by the RAIB in the course of its investigations. I refer in that regard to the procedure followed by the Air Accident Investigation Branch. Many people who work for the railways have a distinct fear of doing anything. I am told that 140 senior staff within Network Rail—or Railtrack as the company was called when the relevant incidents occurred—or its contractors live in significant fear of being charged with manslaughter following the accidents to which the noble Lord, Lord Bradshaw, referred. Living and working in a state of fear is not conducive to getting on with the job and doing it properly. I cannot believe that after all these years those 140 people will be taken to court.
  I believe that the RAIB will have to spend an enormous amount of time gaining the confidence of staff involved in the industry and getting them to report properly. Certainly to start with, it would be better if subsection (7) of Clause 7 were not included in the Bill, as Amendment No. 11 proposes. Then people would have absolute confidence that whatever happened, what they had said to the RAIB to try to ascertain the causes of an accident would remain confidential. It is still open to the Health and Safety Executive and the British Transport Police to conduct their own completely separate inquiries after having been informed of an accident.
  The Lord Bishop of Hereford: I echo strongly what has been said by the noble Lords, Lord Bradshaw and Lord Berkeley. There has been a very regrettable trend in recent years away from clinical investigation of what happened and what went wrong so that it can be put right towards the blame culture. I do not support Amendments Nos. 3 and 5 but I do support Amendments Nos. 10 and 11. It is terribly important that the initiative remains with the RAIB. It is absolutely essential that that is where the power, the initiative and the authority remain, and in particular that the British Transport Police be prevented from taking the part that they have taken in recent accident investigations. Although I am sure that that was well intentioned, it was in the end immensely unhelpful in terms of getting at the root cause of the problem and

  GC9
  making it possible to put in place essential remedies. I hope that the Committee will accept that line of argument.
  Lord McIntosh of Haringey: First of all, I deal with Amendments Nos. 3 and 5. The noble Lord, Lord Bradshaw, rightly made the point about the need for the complete independence of the rail accident investigation branch. It has to be entirely independent of the industry and its own regulators. The railway safety and standards board is an industry body that provides safety leadership for the industry and sets safety standards, a very worthwhile and important task. But it is a company which is responsible—I respond now to the noble Viscount, Lord Astor—to its members. It reports to its members. The members are the rail industry. It would not be appropriate for the rail accident investigation branch as independent accident investigator to work in conjunction with the railway safety and standards board, the industry's own safety body, when undertaking investigations.
  Amendments Nos. 10 and 11 are rather different. I agree with what the noble Lord, Lord Bradshaw, said, but not with the amendments as they have a rather different impact. Amendment No. 10 would inhibit witnesses before the rail accident investigation branch speaking freely and frankly because they would be afraid that what they said would be used against them or other people in a prosecution.
  The whole thrust of the Cullen recommendations on the rail accident investigation branch is that it should come to a conclusion quickly in order to ensure that any failures which might cause comparable accidents in the future are knocked on the head immediately. Examples have been given—and can be given, I am afraid—of very long delays between an accident occurring and a report being produced.
  If witnesses are not willing to come forward because they might compromise themselves or others, that would add to delay and would compromise the independence and the objectivity of the rail accident investigation branch.
  If RAIB inspectors were placed under a statutory duty to tell the police or the Health and Safety Executive if they suspected a criminal offence had been committed, they would be under great pressure to explain why they thought that an offence had been committed and one would then be back in the same cycle in which we have been as regards rail accident investigations. That will be extremely difficult to do if that belief has come about only as a result of their taking a witness statement. If the public and rail industry perceive that there is any risk of disclosure of witness statements, the fundamental purpose of achieving safety will be undermined.
  If the police or Health and Safety Executive want to see a copy of a witness statement, they will have to seek a court order for such disclosure. The court would then decide whether disclosure would be in the public interest.
  GC10
  Amendment No. 11 would deny the possibility of the chief inspector applying to the High Court or the Crown Court for a declaration that the making of a report will not amount to contempt of court in relation to civil or criminal proceedings. We cannot accept the amendment. One of the main criticisms of the current regime into the investigation of railway accidents is that the publication of a report, and therefore its implementation, could be delayed by criminal proceedings. The Health and Safety Executive has said that it is not able to publish a final report on the Hatfield derailment, even now, until the position on prosecutions becomes clearer.
  Those issuing reports must also give consideration to whether their publishing the report will amount to contempt of other legal proceedings if they publish.
  The RAIB will publish its report whether or not civil or criminal proceedings are in progress, as stated in Clause 7(6). Following an accident, the RAIB will publish a report as quickly as possible, normally within 12 months—I hope that it will be a lot less than that in some cases—about the accident and its causes. If there are urgent safety lessons which emerge immediately, the RAIB will publish interim reports so that those lessons can be shared with the industry as quickly as possible. That is what the Air Accident Investigation Branch and the Marine Accident Investigation Branch do at the moment.
  If the chief inspector is concerned that by publishing a report she could be in contempt of court, she can use the powers available in subsection (7) which the amendment seeks to delete. That does not mean that she has to apply to the court, but she can do so for the court's definitive view. If the court were of the view that the publication were to amount to contempt, the report could be amended accordingly but still contain the safety lessons. For all those reasons, I do not think that the amendments are desirable.
  Amendment No. 11 does not concern the Health and Safety Executive or the British Transport Police obtaining RAIB witness statements. It would prevent the RAIB from going to court for a declaration that it is not a case of contempt of court.
  4.15 p.m.
  Lord Bradshaw: I put down the amendment to probe what the Minister would say. However, it appears that my amendments are not satisfactory. Nevertheless, the Bill needs strengthening to underline the confidentiality of statements given to the RAIB. That is what I seek.
  My learned friends the lawyers seem to think that the law is above everything, as it were, and that they will be able to obtain disclosure of every piece of information they require. I am not absolutely satisfied that statements given in confidence to the RAIB can be safeguarded against subsequent interference by the

  GC11
  courts. That may be a very difficult point for the Minister to answer but it is the basis of what I am saying.
  Lord McIntosh of Haringey: That is a legitimate point, but its thrust is in direct opposition to the wording of the amendment. Let us talk about it between now and Report stage.
  Viscount Astor: I was interested to hear that the noble Lord, Lord Bradshaw, and the right reverend Prelate the Bishop of Hereford did not like Amendments Nos. 3 and 5. The focus of their argument was that the RAIB should be independent—which, of course, I agree with—and that it should not be fettered. Those are perfectly valid arguments. However, they seem to ignore that although under Clause 4(b) the RAIB should aim
  "to prevent railway accidents and railway incidents",
  under paragraph (a) it should aim
  "to improve the safety of railways".
  The right reverend Prelate and the noble Lord, Lord Bradshaw, appeared to ignore that point totally. The RAIB has a safety role. It is important that it should work with the relevant industry body.
  My amendment may not be drafted the right way round because we have now heard that the industry body, the railway safety and standards board—I am not sure whether that body has been set but I see that the noble Lord, Lord McIntosh, nods in agreement—will be independent and a company limited by guarantee. It will also in effect be owned and controlled by the industry, as the noble Lord, Lord Berkeley, said. Does that mean that it will be subject to public scrutiny? Presumably, as a private company it need not be subject to public scrutiny. It can keep its reports and information entirely private. The public will not know about that. These organisations that the Government are setting up should he not only accountable but also should be seen to be accountable and be openly accountable.
  Lord McIntosh of Haringey: I make it clear that the Government are not setting up the railway safety and standards board; the industry is doing that.
  Viscount Astor: Yes, but on the suggestion of the Government. The Government have put forward the suggestion to the industry and the industry has taken it up.
  Lord McIntosh of Haringey: There was a predecessor organisation. Any responsible industry will have an organisation of that kind. It does not need government urging to do it.
  Viscount Astor: I suggest that the Government have not urged the industry to do it. I do not agree with the noble Lord, Lord McIntosh. The Government have encouraged that process.
  Lord McIntosh of Haringey: I am sorry to intervene again but Lord Cullen said that there should be a body of this kind. The Government support Lord Cullen's recommendations.
  Viscount Astor: The noble Lord makes my point. Lord Cullen recommended the measure. The
  GC12
  Government supported it. Therefore, it has been urged on the industry and the industry accepted it. But the point I am making concerns accountability and openness. The body will not be open to public scrutiny. It will be responsible for improving safety and standards. I wish to make sure that the different bodies work together. As I said, the rail accident investigation branch has a responsibility not just to prevent accidents but also to improve the safety of railways. The public have a right to see that that is being done and that it is being done in an open way. We need to give back confidence to the travelling public where it has been lost as a result of the dreadful accidents that have occurred. I believe in openness and I should have thought that the Government would believe in open government. However, I am not sure.
  My amendment may not be drafted the right way round but I shall certainly rethink it and come back to it. I hope that when I do the noble Lord, Lord Bradshaw, will support the principle that the railway safety and standards board should have some accountability so that we can all see what it does and see that it is doing the job that it is supposed to do. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Viscount Astormoved Amendment No. 4:
  Page 2, line 30, leave out "and railway incidents"
  The noble Viscount said: This is purely a probing amendment. The aim of the rail accident investigation branch is to prevent railway accidents and railway incidents. I seek a definition of a "railway incident". What is a minor incident? What is a major incident? How does one define an "incident"? Does the industry define an incident in a particular way? Can it be someone behaving badly on a train or does it have to be something happening to the train? I am sure that the noble Lord, Lord Bradshaw, with his experience will be able to put forward the industry point of view. The Government should tell us a little more what they define as an incident. It could mean a lot or it could mean a little. I beg to move.
  Lord McIntosh of Haringey: I accept that we do not have a definition in the Bill but we have made a start in Clause 2(4) which states:
  "Regulations under subsection (2) making provision about what is to be treated as an incident may, in particular, include an event or omission which does not cause damage or loss but which might cause damage or loss in different circumstances".
  What we are after here are things that might cause accidents in the future. One might call an incident a worrying or dangerous event which has not caused an accident but which could in the future. For that reason we specifically stated in Clause 4 that,
  "the Rail Accident Investigation Branch shall, wherever relevant, aim … to prevent railway accidents and railway incidents".
  One cannot set all this out on the face of the Bill but there will be regulations under Clause 2(4). It is important that the rail accident investigation branch

  GC13
  should investigate incidents in order to prevent accidents. That is what Lord Cullen said and we agree with him.
  Lord Berkeley: Perhaps I can help my noble friend by giving a couple of examples. I refer to the all too frequent occurrence of people in certain areas lobbing bricks at locomotives. When they miss, it is presumably an incident. When they hit, it is an accident, or it could be. They even hang bricks on ropes at the level of a driver's head in the hope that the train is going too fast to stop. I could give many other examples which I am convinced need to be defined. However, I should be unhappy if the word "incident" were removed.
  Viscount Astor: The Minister has been helpful. One hopes that the Government will consult the industry about how the word "incident" will be defined.
  Lord McIntosh of Haringey: Of course.
  Viscount Astor: I am grateful for the noble Lord's confirmation. The industry will have to know what constitutes an incident and what does not as it will largely be up to the industry to report incidents when they occur. It is important that there is clarity and everyone knows what is and is not an incident. I am grateful for the Minister's response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Chairman of Committees: In calling Amendment No. 5, I should point out that there is a mistake in the amendment. The new subsection to be inserted should read:
  "(2)The Rail Accident Investigation Branch shall be consulted on the establishment of any statutory body for the purposes of setting standards for the safety of railways".
  [Amendment No. 5 not moved.]
  Clause 4 agreed to.
  Clause 5 agreed to.
  Clause 6 [Annual report]:
  Lord Berkeleymoved Amendment No. 6:
  Page 3, line 3, at end insert—
  "(3) Any report published under this section shall be laid before Parliament."
  The noble Lord said: Amendment No. 6 is fairly self-explanatory. I expect that my noble friend will say that it is not necessary anyway. However, I have been advised that it is a good amendment to table. I beg to move.
  Lord McIntosh of Haringey: Of course I am sympathetic to annual reports. We have already provided for an annual report. We have already gone further than is provided for the Marine Accident Investigation Branch or the Air Accident Investigation Branch. There is no requirement on either of those to produce annual reports but in practice they do. They ensure that they are publicly available. I understand that they are placed in the Libraries of both Houses of Parliament. There is no reason why the rail accident
  GC14
  investigation branch should act any differently. In fact, the publication of a report is likely to be mandatory under the forthcoming European legislation. It will report on the activities of the RAIB and will include details of safety recommendations made in that year. On the assurance that it will make its annual report public and it will place it in the Libraries of both Houses, and that it will have to do so later this year, I do not think that the amendment needs to be pressed now or later.
  Lord Berkeley: I am grateful to my noble friend for yet another reminder of the difference that European regulations will make. As he said, the measure will be put in place anyway. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 6 agreed to.
  Clause 7 [Investigations]:
  Lord Bradshawmoved Amendment No. 7:
  Page 3, line 7, leave out "shall" and insert "may"
  The noble Lord said: The purpose of this amendment is to prevent the rail accident investigation branch having to investigate a serious accident of which the cause is absolutely plain and self-explanatory. There is a requirement on the Strategic Rail Authority with regard to franchises to check up on very minor things at stations. It is burdensome in that it is unnecessary, bureaucratic and employs many clerks checking that something is done. However, sometimes such things are ignored. The word "may" would allow a certain amount of discretion.
  A foolhardy driver of a road vehicle may jump a red light at a level crossing which is working normally. I can think of a case in Northern Ireland w here this happened. There is no need to launch a full-scale investigation into such a self-evident incident. There is a rather prescriptive approach to such matters which I seek to alleviate so that some discretion is allowed both for the person whom the Government will appoint as the head of the RAIB and for the Government themselves in deciding whether to call for an investigation. Obviously, I do not seek to avoid an investigation when a serious accident has occurred for which there is no easy explanation. But where an incident is self-evident, I believe that some discretion ought to be allowed. I beg to move.
  4.30 p.m.
  Lord Dixon-Smith: One might sympathise with the noble Lord. The example that he gave is perfectly reasonable, but it reminds me of another accident not long ago, in which a driver fell asleep and left the road, driving down on to a track. It was a most appalling accident. The cause was perfectly plain. But the question was not the cause but what to do about it. Although I accept that there will be occasions when there is nothing to add, in my experience, even negative

  GC15
  intelligence is useful intelligence. At any rate, I am not sure that I would want to go so far as to substitute "shall" with "may". That might be going too far.
  Lord Berkeley: The example that the noble Lord, Lord Dixon-Smith, quoted has been subject to enormously long investigations by the Health and Safety Executive and, probably the British Transport Police, when it is quite clear that the problem was road-related. To some extent, that example supports the argument of the noble Lord, Lord Bradshaw. The cause is clear. How can railway operators stop cars landing on the track unless they close railways down? I shall return to that in later amendments. It is a roads problem; therefore, I suggest that it has nothing to do with the rail accident investigation branch. The problem would probably be resolved if we knew the definitions of "serious", "non-serious", and other terms. Until we do, I support the plea of the noble Lord, Lord Bradshaw, for flexibility. Perhaps the Minister will have some information about what is a serious railway accident.
  Lord McIntosh of Haringey: I cannot give a definitive answer yet. A European rail safety directive is due to come into force towards the end of the year. The current draft of it, which is the Council of Ministers' working definition, is subject to change. At present, it reads:
  "'serious accident' means any train collision or derailment of trains resulting in at least one killed person or five or more seriously injured persons or extensive damage to rolling stock, the infrastructure or the environment, and any other similar accident, with an obvious impact on railway safety regulation or the management of safety; 'extensive damage' means damage that can immediately he assessed by the investigating body to cost at least 2 million Euro in total".
  Committee Members can see why we do not include definitions of that sort in the Bill. The definition could change. But that is what we will have to do in a directive that will, not come into force, but be finalised, towards the end of this year or early next year.
  We are making advance provision in the Bill. The noble Lord, Lord Bradshaw, used the phrase "full-scale investigation". The Great Heck example that the noble Lord, Lord Dixon-Smith, gave us is simple in railway terms but not in road terms. If the case is as simple as is thought, the investigation and the publication of the report will be very quick, and nothing will have been lost.
  Lord Bradshaw: I thank the Minister for his reply. He has not really gone fully to assuage my concern that we will end up spending much time investigating either self-evident accidents or relatively minor ones. I would like the Minister to consider whether the provision can be tightened in some way to allow the chief inspecting officer some way out of undertaking what will be, unfortunately, a bureaucratic exercise if the need for it is not evident. Perhaps we can discuss the matter. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Viscount Astormoved Amendment No. 8:
  Page 3, line 12, at end insert—
  "(1A) The Rail Accident Investigation Branch may investigate any railway situation which it judges to have the potential for fatality or injury."
  The noble Viscount said: Clause 7(1)(c) states that the rail accident investigation branch,
  "shall investigate a non-serious railway accident or railway incident if required to do so by or in accordance with regulations made by the Secretary of State".
  My amendment would give the RAIB more powers. It states that if it wishes to investigate any railway situation, it may do so. I cannot think either of any situations that the RAIB could not investigate or that the Secretary of State should make regulations requiring it to investigate a situation that it would not wish to investigate. I am confused as to why Clause 7(1)(c) is necessary. I admit, too, that my amendment should have proposed the insertion of one provision and the deletion of the other. People could regard it as a belt-and-braces exercise. Will the Minister give that explanation in his response? This is a probing amendment to discover the width of the RAIB's remit. I beg to move.
  Lord Bradshaw: I certainly cannot support the amendment. Almost anything that happens on the railway has the potential to result in fatality or injury. It is in the nature of transporting people at speed around the country that any incident may lead to a fatality or injury. It is not a result that one welcomes; one hopes that it will not arise. None the less, there is remarkably broad scope, which I, for one, am trying to constrain.
  Lord Berkeley: Is their similar provision to allow the Air Accident Investigation Branch and the Marine Accident Investigation Branch in their own remit to investigate anything that has the potential for fatality or injury?
  Lord Dixon-Smith: I agree with the noble Lord, Lord Bradshaw, as regards the potential of the railway industry to cause fatalities. One could make the perfectly logical argument that standing on a station platform involves a risk of fatality—it certainly does if someone goes too close to the edge of the platform and slips at the wrong moment. Little can be done about that. To that extent, I do not sympathise with the amendment as worded.
  Had the amendment referred to the potential to cause an accident, rather than the potential for fatality or injury, it would be an entirely different kettle of fish. I could see the point of empowering the branch to look at situations that might give rise to an accident, as opposed to those that have the potential to cause fatality. There is a clear distinction. In my experience, it is usually productive to think about accident prevention.
  Lord McIntosh of Haringey: I certainly agree with that last point. The Bill is rationally drafted here. We

  GC17
  have already agreed that the rail accident investigation branch must investigate a serious railway accident. Clause 7(1)(b) states that it,
  "may investigate a non-serious railway accident or a railway incident"
  and paragraph (c) provides that it,
  "shall investigate a non-serious railway accident or a railway incident if required to do so by or in accordance with regulations made by the Secretary of State".
  In reading out the current state of the European definition of a serious railway accident, it has become clear why, in Clause 2(4) we have provided for regulations rather than a definition in the Bill on what is to be treated as an incident. That is why, in Clause 7(1)(c), we provide that the investigation shall be carried out in accordance with regulations made by the Secretary of State.
  In reading out the current state of the European definition of a serious railway accident, it has become clear why, in Clause 2(4) we have provided for regulations rather than a definition in the Bill on what is to be treated as an accident. That is why, in Clause 7(1)(c), we provide that the investigation shall be carried out in accordance with regulations made by the Secretary of State.
  I see no value in adding a new subsection referring to something different—a "situation" rather than an accident or an incident. The chief inspector should have the flexibility to order an investigation into any other less serious accidents and incidents that she thinks may hold safety lessons for the rail industry. They could include near misses, crowding on a platform or anything with the potential for fatality and injury. I do not think that Amendment No. 8 adds anything to the careful way in which the Bill is drafted.
  Viscount Astor: I am grateful to the Minister for his reply. I agree with my noble friend Lord Dixon-Smith that perhaps my amendment should have been drafted as he suggested. I shall consider the matter and whether I need to return to it at the next stage.
  Lord McIntosh of Haringey: Perhaps I may add that what we are providing is comparable to provision for marine and air accidents.
  Viscount Astor: That is very helpful, as I was about to say that I would be looking to see whether that provision was different and whether it would be necessary to return to the issue. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Viscount Astormoved Amendment No. 9:
  Page 3, line 13, leave out subsection (2).
  The noble Viscount said: The amendment would delete Clause 7(2), which relates to tramways. Subsection (2) states that,
  "a tramway shall not be treated as a railway (despite section 1(1))".
  I want to know why not. What provisions do tramways come under?
  The Deputy Chairman of Committees: The Division bell has rung. The Grand Committee is adjourned for 10 minutes.
  [The Sitting was suspended for a Division in the House from 4.42 to 4.51 p.m.]
  Viscount Astor: If Committee Members will forgive me, I shall start again. I hope that I say something
  GC18
  vaguely similar to what I did on moving the amendment. The purpose of Amendment No. 9 is to find the meaning of Clause 7(2), which states:
  "For the purposes of subsection (1)(a) a tramway shall not be treated as a railway (despite section 1(1))".
  Clause 1(1) states that,
  "'railway' means a railway or tramway within the meaning given by section 67 of the Transport and Works Act 1992".
  Are tramways included? They seem to be excluded. If so, why? Who is responsible for regulating tramways? What Act does it come under? If tramways are excluded, surely it should be done in a way that gives the Government the power to change the definition, as with the previous amendment that we discussed? The Government should be able to change the definition of railway incidents and accidents in Clause 2 so that they apply to tramways.
  The drafting is extraordinarily muddled. It certainly confused me, but so do many government Bills, so it is not entirely surprising. It has confused others also. Will the Minister explain the provision? It is not clear whether the rail accident investigation branch can or cannot investigate a tramway accident or incident. Will the railway safety and standards board have any remit? It is important because more and more towns and cities in this country are either introducing tramways or considering doing so. The Government's intentions must be clarified. At present, they are obscure, to say the least. I beg to move.
  Lord Fyfe of Fairfield: I am very interested in this amendment. The definition of a tramway is somewhat obscure. The best definition that I can find is under Section 67 of the Transport and Works Act 1992. It states that,
  "'tramway' means a system of transport used wholly or mainly for the carriage of passengers in employing parallel rails—which

  (a) provide support and guidance for vehicles carried on flanged wheels, and

  (b) are laid wholly or mainly along a street or in any other place to which the public has access (including a place to which the public has access only on making a payment)".

  That definition does not cover adequately former railways that have turned into tramways, such as much of the Manchester tramway or the Croydon Tramlink. It would be helpful to have a proper definition of "tramway", which could then be included in the Bill, clarifying its jurisdiction. My noble friend Lord Hogg intended to table an amendment to Clause I attempting to do that. He will wish to move such an amendment on Report, as he cannot attend the Committee today. I will be interested to hear what my noble friend has to say about the problem.
  Lord Dixon-Smith: Will the Minister bat slightly wider than the business of investigating railway accidents by saying who is responsible for investigating accidents on tramways, if they are not to be included in the Bill? If he could do so, I am sure that it would relieve the need for further questions at later stages. It is all very well to say that such accidents would be subject to a normal police investigation or one by the body responsible for creating the tram service in question, but there is a similarity between

  GC19
  tramway and railway services. One could argue that the potential for accidents on a tramway service is considerably greater than it is on railways. Railways have their own integrity and discrete lines to which the public do not generally have access, whereas tram lines are more open. It would help us all if the Minister could explain the responsibility for accidents on tramways, even if the matter is outwith this Bill.
  The Earl of Mar and Kellie: The principal difference between a railway and a tramway is how the driver acts. On a railway, drivers rely largely on signals determined by others, and on a tramway must drive on line of sight, as does the driver of a car or lorry.
  Baroness Scott of Needham Market: On reading a report of proceedings on this Bill in another place, I was struck by the debate on whether we should consider having a transport authority to look at transport safety in general. This is the second debate on an amendment in which it has become very clear that the lines—no pun intended—between railway safety and other aspects of safety are not clear. Great Heck has shown how an aspect that is relatively simple in railway terms is much more complicated in road terms. Equally, that applies to the difference between roads and trams. Will the Minister reflect on the issue of transport safety rather than just rail safety?
  Lord Berkeley: I have another definition of "tramway", which is referred to in the Bill. Section 42 of the Transport and Works Act refers not only to other railways and tramways but to,
  "trolley vehicle systems and to any system using a mode of guided transport prescribed by regulations".
  Although I agree with other speakers that there is a problem with the definition of tramways, it might be interesting to widen the ambit to include guided busways. They are a guided transport system. I am not sure whether they have signals. I do not think they do. I am not sure whether the noble Earl, Lord Mar and Kellie, is right, as many branch lines do not have signals. The driver collects a wooden token and must keep to the speed limit.
  A number of aspects of the Bill could usefully be discussed in the context of including "and guided busways". Such systems are planned for Cambridge and Luton, and one already operates in Ipswich. The noble Lord, Lord Bradshaw, wants to build one in Oxford. Basically, guided busways are the same as trams. You can regulate and investigate them as much or as little as you like. They are not very different from railways. But the Bill will demonstrate the difference between how we tend to treat roads and our treatment of railways. I shall not pre-empt my comments on later amendments. Tramways are somewhere in between. A definition would be very useful.
  I would be happy for the RAIB to investigate guided busways under the supervision of the Health and Safety Executive, which would require it to erect fences
  GC20
  along the line, to produce accident reports, to report everything that it does, and generally to make life difficult.
  Lord McIntosh of Haringey: We have had at least three definitions of tramways. There is one in the Bill, at Clause 1(1), which is a definition by reference to Section 67 of the Transport and Works Act 1992. I shall not go further than that. I do not blame the noble Viscount, Lord Astor, for being confused about it. I was, because it was not immediately evident to me that Clause 7(2) means that, for the purposes of Clause 7(1)(a),
  "a tramway shall not be treated as a railway (despite section 1(1))".
  It refers to Clause 7(1)(a), but it does not need to say so because it is in the same clause as that paragraph. The provision is correct, but very difficult to understand.
  There is a distinction between tramways that run on the public roads, where there are no lessons to be learnt for road safety and where the police will investigate, and tramways that run off the public road—they are more like a railway—where there could be railway implications and where the RAIB should be responsible. The distinction between the two could be very difficult. A tramway could run between a public road and a railway, for example. I believe that some do. That is not something that one would seek to define in any legislation.
  All that we can provide, which is what we are providing in the Bill, is that there should be flexibility for the chief inspector of the rail accident investigation branch. If there are no rail implications, she does not have to carry out an investigation. However, if there are rail applications under Clause 7(1)(a), (b) or (c), she can do so. If the noble Viscount is unhappy about that—I confess that I am a little unhappy about it, because I do not see all the links—I suggest that he and I and anyone else who wants to can talk about it before Report.
  5 p.m.
  Viscount Astor: I am grateful for the Minister's response. He has illuminated the matter a little, but not that much. If I understood what he said, tramways will not come under the provision unless there is some rail implication. However, that takes one back to Clause 1(1), in which,
  "'railway' means a railway or tramway within the meaning given by the … Transport and Works Act",
  as pointed out by the noble Lord, Lord Faulkner. I have not got that Act in front of me, and therefore I do not know what it covers. The subject needs to be cleared up, and I am grateful for the Minister's offer that we should talk about it before Report, because we should be clear on it.
  There was something that I did not understand from the Minister's answer. Under the current rules, should there be a tramway incident—for example, if a tram crashes not into a car but another tram—who is currently responsible? Does the Minister know? Is it

  GC21
  the police who investigate it? Does it come under the Health and Safety Executive? Do any rail-specific bodies have some remit? It seems to me that a tramway is much closer to a railway than to a bus, whether guided or powered by other means. They are much closer to railways, whether or not the driver has the power to press the stop and go buttons when the passengers have got on.
  Lord McIntosh of Haringey: I can answer that question immediately. The rail accident investigation branch does not exist, but Her Majesty's Rail Inspectorate exists and is responsible.
  Viscount Astor: That is helpful. As I understand it then, Her Majesty's Rail Inspectorate is responsible for tramway incidents or accidents, as it were. Therefore, we will want to ensure that its successor body, the rail accident investigation branch, has similar responsibility. I think that we will have to look at the definition of tramway, because a tramway can be a permanent rail system, but I have seen systems that can involve rails temporarily put down on the top of roads so that temporary trams can operate.
  Lord McIntosh of Haringey: I am sure that we can look at that, but I hope that the noble Viscount will not tempt me into suggesting that any such definition can be included in the Bill.
  The Earl of Mar and Kellie: The Bill states:
  "For the purposes of subsection 1(a) a tramway shall not be treated as a railway".
  However, subsection 1(a) states that the rail accident investigation branch,
  "shall investigate any serious … accident".
  Subsection 1(b) and (c) refers to non-serious accidents. Am I correct to understand that, under the Bill, the rail accident investigation branch shall investigate non-serious accidents?
  Lord McIntosh of Haringey: The RAIB can investigate serious accidents as well. That is within the discretion of the chief inspector.
  Viscount Astor: I take the Minister's point that the Bill should not necessarily define what is and is not a tramway, but it may be something that the Government need to look at by regulations. Indeed, they may be able to give the power to the rail accident investigation branch to decide what is a tramway and what is not. The fundamental principle is something that runs on rails, I would have thought. However, I am grateful for the opportunity to have this brief debate. It seems that there is some confusion, but we are all on the same side and it needs to be cleared up. beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 10 and 11 not moved.]
  Clause 7 agreed to.
  Clause 8 [Investigator's powers]:
  Viscount Astormoved Amendment No. 12:
  Page 3, line 39, after "dwelling-house" insert "within 500 yards of railway property"
  The noble Viscount said: The amendment follows an exchange in Committee in another place, when one of my honourable friends moved a similar amendment and the Minister there replied that it,
  "would apply to land that was within 500 yd of railway property. We are talking about going across land, which may be necessary to move heavy lifting equipment and so on to get access to the railway. Her amendment would preclude that. This is not about the invasion of houses, but the crossing of property, which may include houses".—[Official Report, Commons Standing Committee D, 4/2/03; col. 57.]
  That seemed to imply that in order to move the so-called heavy lifting equipment, one would have to go through a house as opposed to round it, which seems a wide power.
  We are all concerned with safety and with all those involved getting access to any site as fast as they can. Obviously, that is crucial. However, it seems worth asking the Government about subsection 1(b), which reads,
  "enter land (which may include a dwelling-house)".
  We ought to have some assurance that the power will not be ill-used and should be narrowly focused. I am not sure of the specific legal meaning of dwelling house, but I imagine that it is a house in which someone lives.
  Will the Minister explain a little more as to why the provision is in the Bill? Of course we understand that someone might have to go through someone's house to get to a particular embankment or part of a railway system, but we were somewhat concerned at the idea that, in the words of the Minister in another place, it may be necessary to move heavy lifting equipment. That was his response to the amendment, so I would be interested in the answer of the noble Lord, Lord McIntosh. I beg to move.
  Lord Dixon-Smith: I want to support the amendment. Particularly in countryside areas, one could envisage a railway frankly being a very long way from even the nearest road. That happens, and an accident could occur somewhere remote. Access could be a problem. We talk about moving heavy lifting equipment, but the accident could happen to be in the fens or somewhere like that. The idea of moving such equipment across that rather soft and structureless soil is preposterous, to say nothing of the fact that there would probably be intervening dykes and other problems. We need to be a little careful.
  We also have to remember that we are talking about the accident investigation board. The number of cases when it will actually need the heavy lifting gear will be fairly small. The people who will really need heavy lifting gear if an awkward accident does structural damage, or rolling stock has broken down or been smashed up, are the railway operators. For them, there is no question but that in most circumstances the best, easiest and quickest way of access will be down a

  GC23
  railway line that is otherwise shut. Some explanation as to exactly what the provision means would be helpful.
  Lord McIntosh of Haringey: The example that I would give is Selby. In order to get to the accident site there, one had to go across land. As the noble Lord, Lord Dixon-Smith, says, that land could be a very long way from a road. Let me make it clear that when the Bill states,
  "land (which may include a dwelling-house)",
  it does not mean that someone has to go through a dwelling house but through land that has a dwelling house on it. It means a garden or private road that is part of the same—only local government people will know the word—curtilage.
  There is no question of going through the house. However, one might have to go quite a long way, with or without heavy lifting equipment, and possibly through a piece of land with a dwelling house on it. One might have to go through someone's garden or, more likely, their private access road. There is also a possibility that some part of the train could fly off a considerable distance from the actual site of the accident, and could land in the garden of a house more than 500 yards away.
  We have plenty of restrictions. The Bill talks of land,
  "which adjoins or abuts railway property".
  There is no free-for-all for investigators to roam all over the countryside invading people's privacy. The provision is only what is necessary for the purposes of an investigation. Let us leave it flexible.
  Lord Dixon-Smith: I entirely take what the Minister said, but I am not sure that I yet understand why an accident investigator might be the person who has to move in heavy lifting gear. Almost invariably, it will be the operator who has to do that, even with a bit of rolling stock that has managed to fly 500 yards.
  Lord McIntosh of Haringey: The operators might wish to use specialist lifting gear for the immediate purpose, say, of getting people out or moving things to one side. However, the rail accident investigation branch may subsequently want to use specialist lifting gear, which might not be heavy lifting gear, to investigate the cause—to isolate the bogies, or something of that sort. I am no expert on the subject, but I would rather not tie the investigators down in the way that the amendment would.
  Lord Berkeley: Looking at the matter from the other end of the telescope, it appears to me that the Government are constraining themselves by saying that the inspector can only,
  "enter land … which adjoins or abuts railway property".
  An investigator could require to go through several different properties before he got to the land. Is it necessary to constrain him that much? I am referring to Clause 8(1)(b).
  Lord McIntosh of Haringey: We have to look at Clause 8(1)(d) as well, which reads,
  "enter land which does not fall within paragraph (a), (b) or (c) if … it is used wholly … for … anything done on or with railway property, or … the inspector reasonably believes that it may contain evidence relating to an accident or incident".
  Viscount Astor: I am grateful for and content with the Minister's explanation, and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Viscount Astormoved Amendment No. 13:
  Page 4, line 11, at end insert ", pursuant to the issuing of a warrant or pursuant to a decision by a magistrates' court and only where accompanied by a member of the British Transport Police"
  The noble Viscount said: The amendment seeks to clear up what I believe could be some confusion in the Bill about the powers of inspectors. As I understand it, the provisions are not similar to those involved in aviation and marine law, but perhaps I am wrong and the Minister will correct me. I think it would be better to list the powers given to inspectors and investigators, as in the two existing boards, which are more specific.
  We believe that it would also be appropriate for the investigators to enter a property or cross land,
  "only where accompanied by a member of the British Transport Police".
  That would help the Government to keep within the provisions of the European Convention on Human Rights, especially when entering property. That is a probing point and I want to ask the Minister about it.
  It seems important that where the powers exist in terms of investigations and entry there is a clear understanding of what they are, and what can and cannot be done under them. I am interested in the Minister's explanation. I beg to move.
  5.15 p.m.
  Lord Bradshaw: I do not support the amendment. I have very wide experience of the investigation of railway accidents, and have never known a riparian owner object to an inspector or person investigating the accident actually seeking access to the railway, although usually or very often such people come along the railway, as has been said. I particularly do not wish the inspector to have to be accompanied by a member of the British Transport Police, because that simply makes another call on police time, which is very scarce. I do not think that it does anything more than perhaps give the impression of a criminal investigation, but probably no criminal act has occurred.
  My argument goes with the grain of what I have said all along. I want the inspectorate to be independent and seen to be independent. We all know that, if the press are there and the police appear, people put two and two together and make 99. Whatever is done in those circumstances, we see screaming headlines in the local paper saying, "Police investigate railway

  GC25
  accident", when there was probably a broken rail or something of the sort, and nothing whatever to do with the police.
  Lord McIntosh of Haringey: The answer is that we are following what happens for the Marine Accident Investigation Branch, the Air Accident Investigation Branch and, indeed, Her Majesty's Railway Inspectorate. They do not have to have warrants or to he accompanied by the police. That seems to work all right. Lord Cullen said that we should follow that example, and that is what we are doing.
  Viscount Astor: I thank the Minister for that reply. I quite agree with him in terms of Lord Cullen and the powers. I will look more carefully at the powers given to investigators in the aviation and marine branches, because I am not entirely convinced that they are similar at the moment.
  I understand where the noble Lord, Lord Bradshaw, is coming from, but he should realise that we are giving substantial powers to investigators. After all, Clause 8(2)(e) requires,
  "a person to answer a question".
  Investigators can use their powers on anyone that they want to, so far as I can see. We are giving them enormous authority. I believe in their independence, but also that we must not compromise people's rights in the process. That is my concern.
  I shall study what has been said. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 8 agreed to.
  Clause 9 [Regulations]:
  [Amendment No. 14 not moved.]
  Clause 9 agreed to.
  Clause 10 agreed to.
  Clause 11 [Accident regulations]:
  Lord Berkeleymoved Amendment No. 15:
  Page 7, line 15, at end insert—
  "(5) Regulations made under this section, to the extent that they provide for the investigation of railway accidents and railway incidents involving the obstruction of a railway by road vehicles, may provide for the Rail Accident Investigation Branch to give a direction requiring—

  (a) works to be carried out on any road at or in the vicinity of the place where an obstruction occurred for the purpose of preventing further accidents or incidents at that place; and

  (b) the highway authority responsible for that road or, where there is no such authority the owner or occupier of the land of which that road forms a part, to carry out or meet the cost of carrying out those works."

  The noble Lord said: I am not sure whether the clause is the right place to propose such an amendment, but it seems as good as any and the amendment fits quite well in it. The amendment relates to a document that the Department for Transport issued in February called Managing the accidental obstruction of the railway by road vehicles. It contains a good code of practice about who does what, making
  GC26
  sure that an incident does not happen again, and undertaking risk analysis on whether precautionary measures should be put in.
  The document's conclusion on page 13 states that the lead agency is the Highways Agency, with all the costs shared 50:50. However, costs of railway possessions, which can be extremely high, are paid by the railways, and costs of road closures, which probably comprise something like a couple of non-lit signs, are paid for by the Highways Agency. That seems very unfair on the railways. By definition, the accidents are caused by vehicles going off the road. Why should railways have to pay when vehicles land on them?
  My theory is that he who causes an accident should pay for it. The matter is particularly serious when we think of heritage railways, which are usually mostly run by volunteers. The thought of them having to pay half the costs of what the Highways Agency might decide was right would put some of them into liquidation. It seems very unfair.
  My amendment is designed to enable the inspector to give a direction as to what needs to be done and who should pay for it. Perhaps "direction" is too strong; perhaps the amendment should mention "advice". Perhaps it should not suggest the accident investigation branch, but it probably should because the branch will have investigated the accident. It is right that the costs should generally be paid by the Highways Agency or highway authority, or that the RAIB should advise or direct on who should pay the cost of preventing an accident happening again, which is what we are talking about. I beg to move.
  Baroness Scott of Needham Market: Perhaps I should declare an interest as chair of the Local Government Association's transport executive. Rather unusually, I find myself slightly at odds with the noble Lord, Lord Berkeley. There is something rather unseemly and sordid about squabbling over costs after an accident has happened. Nevertheless, if it has been determined that a problem has been caused by a particular factor, and that remedial action is necessary, clearly the notion of who pays for what will rear its ugly head.
  The Local Government Association has done a lot of work with the Highways Agency and Network Rail to come to an accord on how such work should be paid for in those circumstances. I would much prefer that approach, where the agencies work together on a case-by-case basis, rather than have provisions in the Bill such as the amendment that would automatically put the whole cost, which can be considerable, on to a particular highway authority. If it were the Highways Agency, I might have a little less sympathy, as it has a much larger budget. However, the cost could be significant for a small highway authority.
  I beg the noble Lord's pardon, but the issue is not as simple as a car simply landing on the railway and that not being its fault. It is a question of development over many years in the particular topography, given that we have a transport system that has evolved rather than

  GC27
  one that we would design if we were building from scratch. I would have trouble supporting the amendment.
  Lord Berkeley: The costs are not inconsiderable for the railway—about £30 million a year according to the document. I hear what the noble Baroness says but, if a road vehicle is to be prevented from falling on a railway, surely it is the road vehicle that has to be constrained. The highways people who provide the surface on which it runs should constrain it.
  Lord McIntosh of Haringey: The noble Baroness, Lady Scott, is of course quite right; she would be, given her position. Local authorities and the Highways Agency have done a deal with Network Rail and London Underground and agreed that it is appropriate for the costs to be split 50:50. Clearly there are cases in which the balance would be different if the costs were calculated on particular circumstances, but it is much better, as she said, not to have an unseemly squabble over money and simply to agree on a formula that appears acceptable. I hasten to say that the formula was not imposed by the Government.
  The Bill already provides the power for the RAIB report to make recommendations about rail accidents involving road vehicles. To the extent that the RAIB feels that it has something to contribute so far as concerns road safety, it can already make such recommendations. However, it should not be for the RAIB to decide who should bear the costs of any recommendation. That should be decided according to the agreement to which we referred. The chief inspector will make her own professional judgment, based on her management experience and knowledge, to decide what is appropriate.
  I may be misreading the amendment, but it should not be assumed that any accident on a railway that involves a road vehicle is entirely the responsibility of the road authority. After all, there are different sorts of level crossing, where railways have responsibilities as well on public roads.
  Lord Berkeley: I am grateful to my noble friend for that explanation. It differs from what Network Rail told me that it had been instructed by the Government to go 50:50–but I shall not take the matter further. I shall read what he said with interest. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 11 agreed to.
  Clauses 12 to 15 agreed to.
  Schedule 1 agreed to.
  Clause 16 [Transfer of functions]:
  Lord Bradshawmoved Amendment No. 16:
  Page 8, line 8, at end insert ", saving duties concerning safety where the office should confine itself to the economic effects of safety regimes imposed on the railway"
  The noble Lord said: The amendment suggests that the Government make the Office of the Rail Regulator responsible for the economics of the railway and not
  GC28
  for its safety. I realise that the amendment may not be the most appropriate that could have been tabled. If the Minister agrees, I am more than willing to discuss an appropriate amendment with him.
  In my campaign to have rather fewer cooks spoiling the broth, with the advent of the RAIB, I would like the Rail Regulator to confine himself to those aspects of safety that affect the costs of the railway, and for him to have no part in determining what safety measures should be adopted on the railway, what is most appropriate, and so on. That would curtail his activities so far as safety is concerned.
  I propose that the regulator should fully take into account the safety requirements of the railway—fixing access charges, determining access agreements, and approving safety cases. He would obviously require that people had done those, but he would not have spent time and effort investigating safety. He has many other duties, such as the interim review of the access charges, which is now being undertaken. All that I am aiming to do is to simplify what, by any description, is a very over-complicated system. I am sure that it is right that the huge costs are one of the reasons why railway traffic and travel in this country is so expensive and emerging costs are so high. I am simply seeking to bring some simplicity to the system.
  5.30 p.m.
  Viscount Astor: Amendment No. 17, grouped with Amendment No. 16, is a probing amendment. I seek more information from the Minister about the Office of the Rail Regulator. After all, this Bill will cover England, Wales and Scotland. I am concerned that its focus will be—
  The Deputy Chairman of Committees (Lord Tordoff): I am afraid that we need to suspend the Sitting for 10 minutes for a Division in the House.
  [The Sitting was suspended for a Division in the House from 5.30 to 5.40 p.m.]
  The Deputy Chairman of Committees: I think that we might recommence.
  Viscount Astor: The Division came just as I started speaking. I shall start again because I do not remember where I was when I stopped. The purpose of this amendment is to probe the Government a little more about the office of rail regulation. Amendment No. 17 sets out various functions.
  It is important that we note the monopoly of Network Rail, a body set up by the Government. As we know, it is a strange beast which is financed off balance sheet. However, it is the body that, as it were, will own and operate the track until the Government put forward their proposals to break it up or whatever.
  However, the second part of my amendment is more concerned with the financial framework and the renewing and using of private finance and, indeed, public subsidy. People are concerned that the office of rail regulation would be the economic regulator. as pointed out by the noble Lord, Lord Bradshaw. We must ensure that its role is clearly defined and that

  GC29
  there is no misunderstanding. Even looking at the schedules which relate to the office of rail regulation, I am not sure that it is clear and that there does not need to be some improvement. I am not necessarily saying that my amendments are exactly the right way forward, but they are along the lines that we are considering. I shall be interested to hear the Minister's reply.
  Lord McIntosh of Haringey: Part 2 of the Bill—Clauses 15, 16 and 17—is very simple. The effect of these clauses is to change a single rail regulator to the office of rail regulation in accordance with practice being adopted in a number of regulatory cases. There is no intention whatever to change the function or duties of rail regulation. Those are set out fully in the Railways Act 1993, as amended by the Transport Act 2000. The functions are broad, flexible and enable the office to be adaptable. For example, because they were flexible, the office was able to accommodate the change in infrastructure manager from Railtrack plc to Network Rail.
  Under Section 4(3)(a) of the Railways Act 1993, the rail regulator has an existing duty,
  "to take into account the need to protect all persons from dangers arising from the operation of railways, taking into account, in particular, any advice given to him in that behalf by the Health and Safety Executive".
  Amendment No. 16 would narrow that duty.
  Surely, as the office of rail regulation is the licensing body, it has that responsibility. It is not the safety authority; the Health and Safety Executive is. But it has a responsibility of taking these matters into account when considering licensing decisions. It cannot be entirely economic.
  The noble Lord, Lord Bradshaw, is going back to the Transport Act 2000, then going back to the Railways Act 1993. He is suggesting a rather fundamental change which is inappropriate within the very limited terms of Part 2 of the Bill. If the regulator's duty were narrowed in the way suggested by the noble Lord, Lord Bradshaw, he would not be able to take into account the health and safety record of an operator when making a decision on whether to grant a licence or a licence exemption. He would not be able to consult the Health and Safety Executive to establish whether it had accepted the applicant's safety case or granted a safety case exemption. That surely is an undesirable restriction on the proper responsibilities of the office of rail regulation.
  On Amendment No. 17, the noble Viscount, Lord Astor, is attempting to rewrite in this Bill something which he is not proposing to repeal in the Transport Act 2000. In other words, there would be two conflicting definitions of the functions of the office of rail regulation. Under the Railways Act 1993, the regulator does not set the contractual framework within which Network Rail works to retain, renew and expand the network. It is Network Rail's licence that requires it to maintain and renew the network. Paragraph (a) of Amendment No. 17 would confuse this as it interferes with the existing licensing regime.
  GC30
  Paragraph (b) of Amendment No. 17 would require the office of rail regulation to manage Network Rail's expenditure. That cannot be right. Day-to-day management should rest with Network Rail within the regulatory framework established under the Railways Act 1993. Paragraph (c) of Amendment No. 17 is unnecessary; it just reflects the existing function of the office. I cannot be supportive of either of these amendments.
  5.45 p.m.
  Viscount Astor: Amendment No. 17 does not propose to manage. The word "manage" does not appear. Paragraph (b) of Amendment No. 17 states that the office of rail regulation will,
  "ensure that the Network Rail's income … is spent appropriately".
  This amendment is about looking at how Network Rail will be managed and its responsibilities. In effect, Network Rail has been created by the Government and, as I understand it, is answerable to the Strategic Rail Authority. Will the Minister explain the relationship of the office of rail regulation to Network Rail, if there is to be one? For those of us who are not involved in the industry, it is difficult to understand the demarcation lines between, and the changes to, the existing and the future bodies. My constant aim is to obtain a clear understanding of how not only the current bodies have been working since the changes—for example, the creation of Network Rail—but how they will work in the future with the new bodies. It would be enormously helpful if the Minister could answer my question.
  Lord McIntosh of Haringey: Strictly speaking, that is not a matter for this all. Part 2 makes a change from a rail regulator to the office of rail regulation. Neither the noble Viscount, Lord Astor, nor I, is expert in the rail industry, unlike some other Members of the Committee. The noble Viscount is asking a specific question which does not need to be answered for the passage of this Bill, but to which he is entitled to have an answer. I shall write to him and send copies to Members of the Committee.
  Viscount Astor: I am grateful to the noble Lord. I think that there must be a connection between the office of rail regulation and Network Rail which is relevant when looking at the Bill as a whole.
  Lord Bradshaw: While I appreciate the impatience of the Minister to get this Bill onto the statute book—I would want the same thing if I were in his position because it contains clauses concerning the accident investigation branches and the British Transport Police, which are very important—I think he might concede that there are few opportunities for the House to debate any matter relating to transport. The chances in the near future seem fairly remote—I believe my noble friend. Lady Scott is waiting for a road safety Bill and has been waiting for a long time. Parliamentary time, apparently, never seems to be sufficient to allow these issues to come forward.

  GC31
  Perhaps the Minister will grant me that this is an opportunity to raise the issue of some of the duties of the Rail Regulator. While I accept that these were part of the Railways Act 1993 and were referred to in the Transport Act 2000, in this Bill we have an opportunity to change this enormously complicated structure. If a railway operator has a safety case from the HSE, that is a matter that the regulator may note, but he does not have to do anything about it. Unfortunately, the Rail Regulator's office does do things about it. It is this complicated overlapping of duties to which I am trying to put an end and to simplify the tremendous cost and machinations which go on within the railway industry.
  Therefore, I trust that the Minister might allow me to return to this matter. I shall study carefully both pieces of legislation of which, of course, I am well aware, and perhaps make some suggestions.
  Lord McIntosh of Haringey: Before the noble Lord withdraws the amendment, I hope that he will allow me to object to some of his language—in the nicest possible way. I do not accept that I am impatient. I hope that I answer all the points made in Committee. I hope that my desire to see the Bill completed does not put me in the position of trying to curtail proper parliamentary scrutiny. At the same time, I hope that the noble Lord will recognise that it is not up to me what amendments he puts down on Report.
  My point is simple. Part 2 of the Bill makes a change in the constitution of the Office of the Rail Regulator rather than in its functions. Within the extraordinarily lax procedures of this Committee, the noble Lord, Lord Bradshaw, is free to use that as a peg on which to hang any amendments that he likes. Virtually nothing can be stopped within the Long Title of the Bill—and that is not an invitation.
  Lord Berkeley: I should like to put on record that I oppose both these amendments for the same reasons as my noble friend Lord McIntosh. I believe that the role of an independent regulator is absolutely fundamental. I shall fight any demise or reduction of the role to the hitter end. He has a big role to play on competition issues, on access rights and on regulating charges for using the infrastructure. The regulator also deserves some credit for setting up the railway safety and standards board. It could have been done by regulation by the Government, but it was not. It was done by the regulator who headed up, as we said in a previous amendment, an independent body.
  That is a tremendous advantage. I hope that the regulator will not necessarily spend too much time on safety issues. Just changing the structure is all we need. Leave the rest and I think matters will resolve themselves and improve.
  Lord Bradshaw: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 17 not moved.]
  Clause 16 agreed to.
  Schedules 2 and 3 agreed to.
  Clauses 17 and 18 agreed to.
  Schedule 4 [British Transport Police Authority]:
  Lord Bradshawmoved Amendment No. 18:
  Page 62, line 35, leave out "four" and insert "two"
  The noble Lord said: In speaking to Amendment No. 18, I declare my interests. I am vice-chairman of Thames Valley Police Authority and have been for some time and I am a member of the Association of Police Authorities. On looking at the proposed composition of the British Transport Police authority, it is lacking in two or three areas. First, Transport for London pays a very large sum of money towards the upkeep of the British Transport Police force. Indeed, a large number of police are deployed in the capital and during the past 18 months their presence has been very evident.
  I think that the Bill should reserve some places for Transport for London. As a big contributor, it should be accorded that position. I have taken two of the four people away from the number who are described as having,
  "knowledge of and experience in relation to the interests of persons travelling by railway".
  I assume that the people nominated by Transport for London will have the interests of people who use the railways in and around London and the mainline termini at heart. Therefore, I have substituted that there should be,
  "two persons with direct experience of providing railway services in London appointed following consultation with Transport for London".
  As a member of one of the 43 police authorities for the past 10 or 11 years, I have seen five chairmen. They are elected by the members of the police authority. In appointing a chairman, we are not seeking some nominee of government or a county council or someone else. We are looking for a person who can bring together a fairly disparate group of people to work as a co-ordinated whole as an authority for the police. Preferably, we do not want a person who represents the magistracy or political parties or an independent member, but someone who can actually weld those people into a team. In turn, the team will be subdivided into sub-committees which will examine, for example, personnel policy, property policy, finance and general purposes and police complaints.
  Therefore, one is looking for someone who exhibits leadership qualities. We have changed the chairmen of police authorities, as county councils and other bodies change their chairmen. The person selected is often a person who has shown the ability to secure a coordinated response to issues. That is what is wanted.
  I look forward to what the Minister says in reply to the amendments. I am particularly concerned that we do not have a chairman and a deputy chairman appointed by the Secretary of State. I am afraid that what we may get are just placemen and not people who have a genuine interest. I beg to move.
  Viscount Astor: My Amendment No. 21 is grouped with this. Having studied the amendment proposed by

  GC33
  the noble Lord, Lord. Bradshaw, I shall not speak to my amendment because I do not think that it is very good any more. I think that Amendment No. 19 is better. It states that,
  "at least two persons with direct experience of providing railway services in London appointed following consultation with Transport for London".
  London is in a bizarre situation with the Government's policy. We have a Mayor who has a transport policy that is sometimes in step with everyone else but most of the time seems to be out of step with everyone else. Certainly, I find myself confused as to whether the Mayor is currently in agreement or not in agreement with the proposals of the Government on the hand-over of London Transport and its effects. We shall want to know when the Government finally come to a decision on whether to go ahead, for example, on Crossrail, and what considerations they are taking into account.
  So it seems that there is a gap here. It is important that within the British Transport Police authority there will be some overlapping responsibilities in respect of London Underground and British Rail. Therefore, it would be helpful if London knew that it would always be represented. I am sure that the Minister will say that the Secretary of State will ensure that London will be adequately represented, but that is not stated in the Bill. I think that perhaps it should be and I shall be interested to hear the Minister's response.
  6 p.m.
  Lord Faulkner of Worcester: I support Amendments Nos. 18 and 19 but oppose Amendment No. 20. I have an open mind in regard to Amendment No. 21, but as the noble Viscount has lost faith in it I shall not speak to it.
  In view of the fact that Transport for London pays between 30 per cent and 40 per cent of the entire British Transport Police funding, it is entitled to have its representation on the police authority written into the Bill. It is for that reason that I support. Amendments Nos. 18 and 19. A huge amount of the work of the British Transport Police is carried out on the London Underground, at main line stations in London and with the railway operating companies in the London area. It is a reasonable request which I hope my noble friend will take seriously.
  As to the appointment of the chairman and deputy chairman, I have re-read what my noble friend Lord McIntosh said at Second Reading on 1st May. He made two points. First, that this is to be a new authority and that to appoint a chairman in advance of establishing it makes good sense because the other members of the authority would want to know who the chairman is to be before taking up an appointment. Secondly, he said that the chairman should have some say in the appointment of the other members. That is also sensible. It is for those reasons that I oppose Amendment No. 20 and support Amendments Nos. 18 and 19.
  Earl Russell: I thank the noble Viscount, Lord Astor, and the noble Lord, Lord Faulkner of
  GC34
  Worcester, for their support for Amendments Nos. 18 and 19. I shall speak briefly in support of Amendments Nos. 19 and 20.
  The case for separate status for Transport for London rests in part on the fact that it represents, especially the Underground part of it, a very different kind of transport body from those normally dealt with. The problems of the literally crumbling infrastructure under London are ones which have no parallel in the main railway system. I remember, for example, that when the Jubilee Line was being built the ceiling of the maternity wing of University College Hospital fell in. No one had undertaken an adequate geological survey. The chances of an interaction between the various pieces of the crumbling infrastructure are considerable. Some of the problems of cabling and crowding are not found elsewhere.
  Transport for London is also to be responsible for running a system which it has not chosen—and which it would not have chosen—and is in slight danger of the reverse of the Baldwin position of having responsibility without power, the prerogative of the charwoman through the ages.
  As to the appointment of the chairman, there is a Latin proverb, much beloved by our 17th-century predecessors in this place, which might be freely translated as, "When your party wall is on fire, watch out". I therefore declare a non-pecuniary interest as a trustee of the National Portrait Gallery. Shortly before the last election—too near to the election for a Bill to pass but far enough off for us to hear very clearly the rumbling of the approaching Whitehall steamroller—a Bill was introduced to bring in an almost identically worded provision for the chairmen and the trustees of all the major London museums and galleries. We all agreed, almost exactly, with the description of the responsibility of trustees and the appointment of chairmen, to which my noble friend Lord Bradshaw has referred. We all thought that it was an entirely unnecessary centralising. proposal. When we reached the Committee stage of that Bill, a formidable force—led by the noble and gallant Lord, Lord Bramall, as a trustee of the Imperial War Museum—produced a withering fire which I would have not cared to face.
  It is curious to find exactly identical wording in two Bills as different as this one and a cultural miscellaneous provisions Bill. Where you find identical wording in two widely separated documents it is good academic training to check for a common source. In 1988 the noble Lord, Lord Carter, discovered that there is a series of model articles for the drafting of Bills. In different Bills we kept seeing the phrase that people were not capable of being trustees or members of funding councils if they were disabled or otherwise incapable of performing their duties. The noble Baroness, Lady Darcy de Knayth, most elegantly brought forward a series of amendments to delete the words "disabled or otherwise", leaving him to do all the necessary things he needed to do. Finally the noble Lord, Lord Carter, said, "How many more times have we got to do this?" and managed to persuade the Government to alter the model articles.

  GC35
  If this phrase is in the model articles for the drafting of Bills, it will appear many more times and there will be a considerable temptation for an alliance to be forged between all the various critics of the proposal. It is not necessary. Secretaries of State must get it into their heads that they do not have to control everything that they fund; that they cannot control everything that they fund; and that they are mistaken in regarding public money as a kind of barium meal which has to be observed passing through the digestive processes of all those who ingest it.
  Lord Dixon-Smith: I cannot follow that little masterpiece. I support the case for London. Although there is nothing in the Bill which excludes it, my point would be answered if the Minister could give an assurance that it will be included.
  As to the appointment of the chairman, I have always felt that a body should appoint its own chairman. The Minister would be wise to think so too because if he does not, it will mean that he has failed in his selection of people to serve on the authority in the first place.
  Lord McIntosh of Haringey: I shall deal first with Amendments Nos. 18 and 19, and then with Amendment No. 20. I am glad that I do not have to deal with Amendment No. 21.
  The combined effect of Amendments Nos. 18 and 19 would be to increase the number of industry representatives at the expense of passenger representatives on the British Transport Police authority. It is true that, at the moment, four out of nine members of the British Transport Police Committee are industry representatives. In addition, the chair of the British Transport Police Committee is appointed by the Strategic Rail Authority. That means that the industry is in the majority in the British Transport Police Committee. We are trying to get away from that situation because we believe that it is fundamentally important that the British Transport Police should be recognised as a public police service which protects the whole rail community from crime—passengers, staff and of course the rail companies. It has to balance the interests of all those it serves, not only those of the industry.
  That is why we have provided for at least four persons who have knowledge and experience of the interests of rail passengers; at least four persons in the industry who have knowledge and experience of providing railway services; a person who has knowledge and experience of railway employees—that is on the trade union side; a person nominated by the Strategic Rail Authority, who is the only person not appointed by the Secretary of State; and three people who have knowledge of the interests of persons in Scotland, Wales and England. Of course, some members of the authority could qualify on more than one ground by satisfying more than one of the criteria, but that is the kind of balance for which we are looking, one which is more customer-oriented than industry-oriented.
  GC36
  The effect of the amendments would mean returning to a industry-oriented British Transport Police. We do not believe it is desirable that those funding the British Transport Police—that is, the rail industry—should have control over it. We are not saying that they have distorted the British Transport Police in their favour, starved it of funds or anything like that, but if you take the analogy of local police authorities, they are not dominated by their funders.
  Lord Bradshaw: Indeed they are. Local police forces always have a majority of councillor members—and the majority of those councillor members have to support the annual budget. The Minister is not right; the funders are in a majority.
  A measure of expertise in the industry is necessary. There is a wide spectrum, not only of train operators but of engineering companies and all the other disciplines, from which to choose. It will be extremely difficult to get a body representative of the industry which can satisfy all the criteria the Government wish to impose.
  Lord McIntosh of Haringey: I am sorry to hear that from the Liberal Democrat Party.
  The Deputy Chairman of Committees: We must adjourn for 10 minutes for a Division in the House.
  [The Sitting was suspended for a Division in the House from 6.10 to 6.20 p.m.]
  Lord McIntosh of Haringey: I was about to answer the point made by the noble Lord, Lord Bradshaw, about councillors being the funders on police authorities. Yes, of course they are the funders, but they represent the council tax payers—in other words, the punters. I am trying to persuade the Liberal Democrats, who should be in favour of democracy, that the British Transport Police authority should have a greater representation of punters and a lesser representation of professionals. I hope that the noble Lord will agree that our balance is better than the one that he suggests.
  As to the reference to London in Amendment No. 19, I can give the assurance required. It is inconceivable that there will not be someone with specialised experience and knowledge of transport in London on the British Transport Police authority.
  As to Amendment No. 20, which refers to the chairman and deputy chairman, we can make analogies with all kinds of organisations. I would not have made an analogy with the National Portrait Gallery. Analogies with police authorities are more appropriate. Normally, police authorities are appointed by different bodies, not only by the Secretary of State. The entire British Transport Police authority will be appointed by the Secretary of State. An analogy can be made with appointees appointing their own chairman and deputy chairman, but it is nothing like as good as analogies with the National Crime Squad and the National Criminal Intelligence Service, which are both national police authorities appointed by the Secretary of State, who also appoints their chairmen and vice chairmen.

  GC37
  The point that I made at Second Reading about the chairman being known in advance is still valid, but I would find it slightly more difficult after the first appointment to argue against subsequently having the chairman appointed by members of the committee. I am not saying that I would fail to make that argument—I can see a separate argument—but that point has not been made in the amendment.
  Lord Clinton-Davis: When this matter was debated when we were in opposition, the then government did nothing about it. Is my noble friend aware of that?
  Lord McIntosh of Haringey: I do not know whether that is a plea for the Government to be consistent or for the Opposition to be consistent. I choose to take it as a plea for the Conservative Party to be consistent.
  Baroness Scott of Needham Market: Before my noble friend withdraws the amendment, I do not know whether, during the short time available for the Division, the Minister went into the tea-room, but he appears to want to have his cake and eat it. When it suits him, he creates analogies with local police authorities; at other times, he does not.
  Both my noble friend Lord Bradshaw and I have served on police authorities where, as we have heard, local authority members form a majority on the basis that they represent the primary funder, and they appoint their own chairman from within their ranks. There are two reasons for that. The first is a general point of principle, which my noble friend Lord Russell explained very well. There is also a pragmatic reason. It is very important in bodies such as this, which bring together disparate groups of people, that the chair has the respect and support of all the people participating in its activities.
  I have had experience of local authorities that have attempted to impose chairs on police authorities for political reasons. It usually ends in tears. Ultimately, the most effective chairs are those that have the support and consensus of the committee. I very much regret that the Minister saw fit to make a petty party-political point out of the issue. I do not indulge in such actions, because we want to ensure the best for the new authority based on the lessons that we have learnt from other police authorities, which are not so very different.
  Earl Russell: The Minister's remarks could lead to some misgivings in the world of museums and galleries. He attempted to argue that, because the trustees are ministerial appointees, the chairman separately should also be a ministerial appointee. That is certainly not our present practice. The suggestion will be viewed with considerable alarm by some of my colleagues.
  The arguments made by my noble friend Lady Scott are perfectly sound. The right chairman is the person who enjoys the confidence of, and easy relations with, the other trustees; the person who is capable of making them act as a single force; the person who is capable of mediating differences: the person who is good at
  GC38
  arbitrating. Those qualities are known to the trustees in a way that cannot be known to the Secretary of State.
  I have not heard a clear justification for transferring this power to the Secretary of State. I should like to hear one before leaving the issue.
  Viscount Astor: Perhaps I may help the Minister by intervening to say that the answers he gave to the noble Lord, Lord Bradshaw, in regard to Amendment No. 19 certainly satisfy us. The assurance that London will be represented covers any concerns that we have.
  As to the point made by the noble Lord, Lord Clinton-Davis, about consistency, it is difficult to enter into that argument. Since we were in power there have been substantial changes both in London and to the railways—in terms of the Mayor of London and so on. As circumstances change, so do one's views.
  Lord Berkeley: As regards Amendments Nos. 18 and 19, my noble friend rightly said that the service providers should not have a majority representation. That is reasonable. He went a little way towards accepting that one of the four people referred to in paragraph 2(1)(b) should have knowledge of transport in London. I argue very strongly that there needs to be at least one person with knowledge of freight. Freight service operations are very different from those for passenger services. Many run on branch lines, where there is an acute problem of vandalism.
  It is a lot to expect from four people. I hope that my noble friend will accept that there needs to be a wide range of experience among those four people, including experience of freight and London.
  Lord Dixon-Smith: I welcome the Minister's assurance on London. His comparison of NCIS and the National Crime Squad with the British Transport Police authority is tenuous, to say the least. Those two national bodies are specific and specialist. They have a clear and distinct remit to provide services for all other police authorities across the country. The British Transport Police authority will be a police authority in its own right, with its own field of operations. It will be very much a police authority like any other. I would like the Government to be more flexible on the issue of its chairman.
  6.30 p.m.
  Lord McIntosh of Haringey: If there is a problem about analogies, I shall first put at rest the mind of the noble Earl, Lord Russell. There is no reason for anything that I say to be heard with any misgiving by the museums and galleries world or by anyone outside transport. When I mentioned the National Portrait Gallery in my response to him, I was saying that I did not believe that there was an analogy there. I did not say that what happens in the National Portrait Gallery, the British Museum, the V&A or anywhere else is wrong. I simply said that there was more than one model as to whether the members of a body should appoint their own chairman and deputy chairman or whether they should be appointed by the Secretary of State.

  GC39
  I gave as an analogy NCIS and the National Crime Squad. First, they are national bodies as opposed to local police authorities; and, secondly, all the members are appointed by the Secretary of State. So the alleged democratic deficit in the difference between this body and other police authorities is less apparent to me than may be the case if the body were composed of representatives chosen by different bodies outside.
  When all the members are appointed by the Secretary of State, it seems that the arguments that I used at Second Reading, to which the noble Lord, Lord Faulkner, was good enough to refer—about the chairman being known in advance, not being able to be known by the members of the authority and the ability to have a say in the selection of members of the authority—seem valid. But there is no reason for anyone outside the transport sphere or anywhere else to fear a knock-on effect of the arguments that I use.
  Lord Bradshaw: I thank the Minister for his reply and other noble Lords for their interventions. I am not satisfied with the answer. Unless the Minister is prepared to reduce to two the number of people in paragraph 2(1)(a), we are left with one representative from London, which pays 40 per cent of the cost—not a large amount from Government, plus 20 or 25 per cent as is the case with county authorities—and one to represent freight, as was mentioned by the noble Lord, Lord Berkeley. That leaves only two people to represent the interests of people providing railway services.
  Lord McIntosh of Haringey: No. that is not the case. The Bill provides for an authority with a membership of 11 to 17. It provides for 13 specified origins, if you like, but they need not be provided by 13 people. In other words, the industry people, the trade union person or the passenger people could also represent national interests. There is no reason why there should not be an overlap. There is plenty of flexibility. I certainly do not rule out the possibility of someone with knowledge and experience of rail freight.
  Lord Bradshaw: That goes some way, but I would still like to see provision in the Bill to preserve the right of Transport for London to nominate two people. I would accept one person from the freight industry, but that would leave many railway interests without professional representation on the authority. Given the specialist areas of the railway industry, I believe that that is needed. We must bear in mind that there are very adequate provisions for the representation of users on the Rail Passengers Committee. That is not the only way in which people can make representations. I shall study what the Minister has said, but I feel strongly about the matter and shall probably return to it on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 19 and 20 not moved.]
  Schedule 4 agreed to.
  Clause 19 [Exercise of functions]:
  [Amendment No. 21 not moved.]
  Clause 19 agreed to.
  Clause 20 [Establishment of Police Force]:
  [Amendments Nos. 22 and 23 not moved.]
  Clause 20 agreed to.
  Clause 21 [Chief Constable]:
  [Amendments Nos. 24 and 25 not moved.]
  Clause 21 agreed to.
  Clauses 22 to 24 agreed to.
  Clause 25 [Special constables]:
  Lord Bradshawmoved Amendment No. 26:
  Page 11, line 39, at end insert—
  "( ) The Chief Constable may pay or make allowances to special constables as may be allowed to other special constables."
  The noble Lord said: The amendment is fairly simple. It depends on other moves being made which, as far as I know, have not yet been made. I know that it is in the mind of the Government to allow police authorities to make payments or to provide allowances for special constables. I have no idea of the allowances that the Government have in mind, nor do I know that the Government will definitely provide for them, but I do not want the rare occasion of the British Transport Police figuring in our debates to pass without making provision for it to be treated in exactly the same way as other police forces in other police authorities. I beg to move.
  Lord Faulkner of Worcester: I wish to speak to Amendment No. 27 which is grouped with Amendment No. 26. It deals with community support officers. I referred to this matter during the passage of the Police Reform Act 2002 and during Second Reading of the Bill on 1st May.
  The way in which the Police Reform Act is phrased currently makes it impossible for the BTP to accredit CSOs in the same way as Home Office forces. It is now generally accepted that in relation to the Home Office forces the introduction of CSOs has been a great success. A number of their functions, which they already carry out with success, apply to the railway environment. They help to deal, for example, with graffiti and vandalism; they provide a visible authority presence at stations at times of increased alert; if necessary they share information and provide extra presence where a majority of luggage thefts occur; they provide prompt removal of nuisance offenders; and they cut down on opportunistic crime.
  In the past the BTP has made representations to the Department of Transport on this matter. It has been told at an official level that this will be applied in the current legislation. As I understand it, at present it is not possible. I hope that my noble friend will accept that an amendment along the lines that I propose in Amendment No. 27 should be made to the Bill.
  Baroness Scott of Needham Market: It is purely an accident that the names of Liberal Democrat Peers have not been added to the amendment. We strongly

  GC41
  associate ourselves with its sentiments. It has become very clear that the initiative of providing community support officers has been useful. It has helped to deter low level crime because there is a much more visible uniform presence. We support the amendment.
  Lord Dixon-Smith: I find myself in the position of the sinner who repenteth. I remember opposing the introduction of community support officers. In other sectors they have carried out extremely good work. Although I am not sufficiently expert on the way in which the railways work or on the way in which the British Transport Police works to see too many obvious roles for them, I can certainly see that in major stations, at particular times of the day when the normal police are severely stretched, their presence could be extremely helpful. I have added my name to the amendment. If the British Transport Police is to be a genuine police authority it should have access to all the facilities that other normal police authorities have. At present, the law disbars that access. This is an opportunity to put that right and I hope that it is taken.
  Lord Berkeley: I support Amendments Nos. 26 and 27. It is important to recognise that, with apparently 40 per cent of the BTP force engaged in the London area, that does not leave many to operate outside London. It may be reflected in the payments, but I am told that, at any one time, just two of the force are available nation-wide for rail freight. I could expand on that, but I suspect that that will not bother the Minister too much.
  The need for special constables, community support officers and so on to the maximum extent and for them to be paid allowances is desperately important. What many passengers on trains fear, particularly when the trains are less crowded, is not having access to police if something goes wrong. One of passengers' biggest fears when travelling on public transport is the lack of a police presence. The more there are the better. This appears to be a useful way of achieving that.
  Lord McIntosh of Haringey: On Amendment No. 26, Clause 36 allows the authority to make regulations under government, administration and conditions of service as special constables serving with the transport police, including the payment of allowances. As far as it is possible to meet the specific circumstances of the British Transport Police, those regulations must be consistent with the equivalent Home Office regulations, including those governing the conditions of service of Home Office special constables—in other words, that they can be paid. I am not aware of any specific circumstances of the British Transport Police that would make that inoperable; in other words, my understanding is that the amendment is unnecessary.
  Amendment No. 27 is more difficult. Section 38 of the Police Reform Act 2002 allows the chief police officer to designate skilled and trained employees of the police authority to exercise certain powers and to undertake certain duties under the direction and control of the chief constable. That was a matter of great political controversy, and, on several occasions,
  GC42
  the Opposition bitterly opposed the provision in the Division Lobbies. It does not apply to the British Transport Police, and, as the Bill is drafted, it will not apply to the British Transport Police authority.
  It would not be easy to extend community support officers to the British Transport Police, but I recognise from what has been said that there could be advantages. We shall have to consider the relevant provisions of the Police Reform Act 2002 to see whether it can be amended to allow the British Transport Police to deploy at some future stage community support officers. Without making any guarantees, I undertake that we shall consider the matter and, if it appears possible and appropriate, return with appropriate amendments.
  Viscount Astor: The Minister is right that my noble friend opposed the matter originally, but the Government occasionally are proved right. I am always prepared to give them credit where it is due. The provision seems to work, so I believe it is important that it should be extended to the British Transport Police. I welcome the Minister's assurance that he will look into the matter.
  Lord Bradshaw: I am happy with the assurances given by the Minister. The British Transport Police authority has the power to pay allowances to special constables. As he will consider the provisions in the Bill, I shall withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clause 25 agreed to.
  Clause 26 agreed to.
  Clause 27 [Civilian employees]:
  [Amendment No. 27 not moved.]
  Clause 27 agreed to.
  Clauses 28 and 29 agreed to.
  6.45 p.m.
  Clause 30 [Jurisdiction]:
  Viscount Astormoved Amendment No. 28:
  Page 13, line 16, after "constable" insert "in the following sites and in their vicinity"
  The noble Viscount said: This is an extremely important amendment. It has all-party backing, and at Second Reading the Minister dealt with the issue and gave perhaps the most disappointing answer he has given during the course of the whole Bill. I shall seek to explain why.
  The amendments in this group are fairly similar. My amendment is no better than that in the name of the noble Lord, Lord Faulkner of Worcester. The principle in the amendment relates to the powers that the British Transport Police has and its ability to carry out policing. Quite rightly the Minister said that the Anti-terrorism, Crime and Security Act gave the British Transport Police jurisdiction outside railways in urgent situations on non-railway matters. He also pointed out that Parliament saw fit to put in a sunset clause.

  GC43
  The argument against an amendment to the Bill was that under the sunset clause there will be a committee of Privy Counsellors that will have its say on the antiterrorism Act and will decide whether to continue it or not. The Minister went on to say,
  "if by any chance the committee of Privy Counsellors do so decide, we shall take action in the six-month period which is allowed to ensure that it does continue. Therefore, there will be continuity. I do not believe any amendment is necessary".—[Official Report, 1/5/03: col. 829.]
  I believe that that portrays a certain lack of knowledge of the argument. It is helpful to those who think that the sunset clause should be continued, because it shows that there is government understanding that the powers were brought in because of a specific situation. In effect, we have seen what happened. The powers have not been necessary to deal with a terrorism threat—although I am sure that they may be necessary for that—but they have been in the day-to-day operation of the transport police and their authority. That is the most important point. It has made their day-to-day operations work well.
  Whatever the effects of the Anti-terrorism, Crime and Security Act, we do not want to pre-empt any report from the Privy Counsellors any more than the Minister does. He accused us of pre-empting the report, but then said that if they decided to do something different, the Government would take action—he can pre-empt, but we cannot. I do not believe that any of us is trying to do that. We are saying that whatever they report on the Act, or whether they decide to continue with the Act, the power has been useful in allowing the transport police to carry out their work and it has been a success. For those reasons we believe that it should continue.
  I do not understand what the Government have against the amendment. Without this power, the ability of the British Transport Police to respond to a non-railway matter outside its jurisdiction would be hindered. I gave examples and I do not need to go into them again. There are interchanges with other forces such as those at airports. Transport is being extended and we do not want the British Transport Police, in dealing with a crime, to come to a grinding halt.
  I was interested to read in a briefing supplied by the British Transport Police that in comparison to the Ministry of Defence police and the UK atomic energy police, in relation to jurisdiction it is in a less favourable position. Those forces have the term "in the vicinity" written into their governing legislation and it is specified in terms of distance. I also understand that the Ministry of Defence police were afforded the same extension of powers under the Anti-terrorism, Crime and Security Act, but do not face the potential of their new statutory jurisdiction being weakened as a result of legislation. It seems to me that if it works satisfactorily for the Ministry of Defence police and the atomic energy police, it is important that we should try to continue it.
  I have an interest to declare. The time when I was enormously helped by the British Transport Police was in relation to station car parks. Those of us who park
  GC44
  our cars at stations on our way to your Lordships' House know that in the past they have been extremely dangerous places to leave a car. The car can be in more danger in a car park than if it is left in a street. The situation has improved to a degree, but if the Minister opposes the amendment, would the British Transport Police be excluded from helping to prevent crime taking place in station car parks, whether official station car parks or car parks just outside? I shall be interested to hear the Minister's answer.
  I hope that the reason given by the Minister at Second Reading has nothing to do with other police forces in the country being concerned about jurisdiction as well. I hope that he will confirm that that is not the case. This is an important issue. I am at a loss to understand why the Minister opposed the principle of the matter at Second Reading. It seems to make sense and certainly does nothing to pre-empt whatever may happen in the future when the sunset clause of the Anti-terrorism, Crime and Security Act is dealt with by the committee of Privy Counsellors before it comes back to Parliament. I beg to move.
  Lord McIntosh of Haringey: I do not want to curtail the debate in any sense, but I agree entirely with what has been said about the desirability of the British Transport Police operating in the vicinity of railway property. I shall not put forward any arguments about that. That is common ground. We can talk about the propriety of sunset clauses and so on, but I hope that I have saved the Committee time by making that clear.
  Viscount Astor: Does that mean that the Minister accepts any of the amendments in principle or not? I am slightly confused.
  Lord McIntosh of Haringey: I am saying that the powers of the British Transport Police to operate in the vicinity of railway premises, in the same way as pertains for the Ministry of Defence police or the atomic energy police in relation to jurisdiction, will continue.
  Lord Bradshaw: I thank the Minister for that reply. I was going to give some examples. The other night there was a football match in Reading and Thames Valley police officers on horses were on station premises and British Transport Police officers, not on horses, were in the streets. That is the kind of thing that happens rather than what is described in the law, although I admit that the Anti-terrorism, Crime and Security Act provides cover for that at the moment.
  I wanted to ally Amendment No. 30 with Amendment No. 28. It inserts the words:
  "in response to a request for assistance from an officer of another force",
  because frequently officers in charge at police stations ask for British Transport Police and vice versa for assistance, which is readily given under the mutual assistance arrangements. I trust that that may be tidied up in the legislation.
  Lord Faulkner of Worcester: I shall be brief in view of what my noble friend said in his helpful

  GC 45
  intervention. It is important that the words "in the vicinity" are put into the clause relating to the jurisdiction of the British Transport Police. Curiously enough those words were in the original British Transport Commission Act 1949 in relation to the British Transport Police. Section 53 of that Act is repealed by this Bill so something needs to be put back in so that the position returns to what everyone believed it to be.
  The answer to the question posed by the noble Viscount about what happens in the car parks is that they are covered by British Transport Police perfectly legally. But if the words "in the vicinity" were not in place and the force spotted someone on its closed circuit television making off with the noble Viscount's car, it would technically be unable to pursue such a person down the street to arrest him. I welcome unreservedly what my noble friend has said. It seems that we have achieved exactly what we were seeking in relation to this amendment.
  Lord McIntosh of Haringey: It is proper that I respond now to the last piece of potential disagreement. That is really a matter of propriety. Parliament in its wisdom, when it passed the antiterrorism Act, said that there would be a sunset clause. The motivation for that was fear of fierce antiterrorism legislation eroding civil liberties, and Parliament said that it should be looked at again by a committee of Privy Counsellors. As a matter of propriety I believe that we should leave Parliament's wishes untouched; in other words, the committee of Privy Counsellors should look at the matter. As a Privy Counsellor I have no amour propre in this matter. It would not worry me at all if the committee of Privy Counsellors were to be sidelined. I do not believe that it is right for Parliament itself, having wished for the protection for civil liberties of having a committee of Privy Counsellors, to overturn it now in advance of that consideration by the committee of Privy Counsellors.
  I can give, as Members of the Committee wish me to, an assurance. To me it is inconceivable that the committee of Privy Counsellors should say that the sunset clause should apply to this provision and that the power of the British Transport Police to operate in the vicinity should not continue. The Government believe, and will say so in advance, that we should take advantage of the opportunity within six months to reactivate the provision. Therefore, not only will it continue but it will continue without a break.
  Viscount Astor: Will the Minister explain what he means by reactivating the provision? What are the mechanics of that?
  Lord McIntosh of Haringey: There is a six-month period provided when Parliament without primary legislation can decide to continue with any provisions of the anti-terrorism Act. That is what we would do.
  Earl Russell: I am not clear on the Minister's attitude to Amendment No. 30, which is about the power to respond to a request from another force.
  GC46
  That is very necessary, as anyone who lives anywhere near the boundary between Middlesex and the City realises very clearly. Almost everyone on foot in the neighbourhood of a railway is either going on to it or off it. If there is no such power there may he confusion.
  Lord McIntosh of Haringey: Yes, but the power is provided for under the Anti-terrorism, Crime and Security Act. Therefore it could be continued.
  Viscount Astor: I am grateful for the response of the Minister in principle but I believe I differ from him as to the practice. The sunset clause relating to the Antiterrorism, Crime and Security Act was specific as to the serious powers given by the Act in terms of dealing with terrorism, crime and security. At the time it was particularly relevant to terrorism. I accept that, but those powers luckily have not been useful in terms of terrorism, but in terms of ordinary policing. Therefore it is important that they are not lost. I asked the Minister a question about the six-month period. I think I understood what he said, but I would like to think it through more carefully.
  7 p.m.
  Lord McIntosh of Haringey: Perhaps I may help by setting out the provisions. Under the sunset clauses, the Secretary of State appoints a committee of Privy Counsellors. The committee must review and report to the Secretary of State within two years of the Act being passed; that is, by December 2003. The review is already under way. The Secretary of State lays a copy of the report before Parliament as soon as possible. The report can operate so that all or parts of the Act should cease to have effect six months after the report is laid before Parliament. But if both Houses of Parliament pass a Motion within that same six-month period, the provisions in question remain on the statute book. Under those circumstances, which I consider highly unlikely, the Government intend, within that six-month period, to propose to both Houses of Parliament a Motion that the provisions should remain on the statute book.
  Lord Dixon-Smith: The Minister is refreshing my memory, as I had a hand in the passage of that Bill. I happen to know the chairman of the group that reviewed the passage of the Bill. When I last saw him, he did not thank me for the task. The purpose of the sunset clause was particularly directed at antiterrorism effects. The Minister is absolutely correct; the provision affects the whole Bill.
  Lord McIntosh of Haringey: It is the Anti-terrorism, Crime and Security Act.
  Lord Dixon-Smith: Indeed, but the sunset clause affects the whole Bill, so this has to be gone through. The review will almost certainly say that almost all, if not all, of the Bill should remain. I do not think that there will be a difficulty.
  Viscount Astor: I am grateful for the Minister's explanation. I think that I understand what he is saying and that his explanation satisfies all our

  GC47
  concerns. However, I will have to read Hansard carefully to check that it deals with our concerns and those raised by the noble Earl, Lord Russell. I think that it does, but I am not absolutely convinced. Perhaps Members of the Committee who have questions might be allowed to correspond with the noble Lord and his department before the next stage. In the mean time, I thank the Minister for his support and understanding of the genuine concerns of Members on all sides. I am grateful for his response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 29 to 31 not moved.]
  Clause 30 agreed to.
  Clauses 31 to 70 agreed to.
  Lord Berkeleymoved Amendment No. 32:
  After Clause 70, insert the following new clause—
  "FINANCIAL ARRANGEMENTS
  No charges or levies shall be made on organisations in the railway industry for the services of the Authority, which shall be funded from money provided under section 116."
  The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 58, which is included in the same group. Both amendments relate to funding of the activities of the British Transport Police and the Health and Safety Executive. I understand the Government's transport policy to be that, so far as possible, road, rail, and occasionally other modes of transport should compete on a level playing field.
  Amendment No. 32 relates to the British Transport Police. The Committee has already heard that around 40 per cent of its staff are engaged in London Underground, while very few cover rail freight. Quite a few investigate accidents, but we need not go into that. I suggest that much of their work is in dealing with incidents of societal concern very similar to the work of police forces around the country. There are many different police forces. BTP is a national one, with enormous specialist knowledge, which is good. But I understand that, at present, train operators and licence holders pay. Some complain strongly on the basis that their competitors in the road and rail sectors, be it passengers or freight, do not pay.
  I believe that that is a particular concern for heritage railway operators. There is a very strong argument that they should be exempt from the Act even if they do not have an agreement. There is an argument for their exemption from paying for the police. I suspect that the British Transport Police would never get to a heritage railway because there are not enough of them around.
  As regards equality with road, there is a strong argument for the BTP being funded nationally and not through a levy on trade operators or Network Rail. After all, road service activities are not funded through a levy on the trucking industry or even on the private car, which much of its work addresses these days. My submission on Amendment No. 32 is that BTP should be funded nationally out of general taxation.
  GC48
  As to Amendment No. 58, the argument is the same for the Health and Safety Executive. The Bill would empower the Government to introduce regulations to impose a levy—it does not state on whom or whether it would be licence holders or everyone involved in the industry—to reimburse the Health and Safety Executive for its charges. At present, the HSE's approach is considered to be fairly unsatisfactory by most of the industry. It charges on a hourly basis. If an assistant who is learning what to do is brought along it charges for two people at the same rate. There are the usual arguments about invoices getting lost and being indecipherable. No one is saying that the present system is good.
  There are significant problems in imposing a levy—the first of which is who should pay it and how much should be charged? As regards competition with road, why should railway operators pay for the Health and Safety Executive's work when similar work for roads is paid for out of general taxation? Infrastructure must be separated from operations but the lead agency for rail safety is the Health and Safety Executive and road safety is generally in the hands of the police. The Health and Safety Executive, local authorities and so on carry out only a small amount work on the roads, with the very limited exception of the transport of dangerous goods where the HSE takes a lead. There is no cost recovery from the operators for any of these services, apart from the very small charge that the Environment Agency imposes for cleaning up after the spillage of dangerous goods. We can probably ignore that.
  The same applies to the approval of vehicles. A small amount is payable when HGVs are tested and there is a small charge on manufacturers for type approval. The problem for the railway industry is that the HSE spends so much time and effort on approvals that the costs become enormous. There should be an incentive for the HSE to reduce its costs. I have spoken to some officials and I believe that it intends to do so.
  Nevertheless, the best comparison is that road services are paid for out of general taxation. The same should apply to the Health and Safety Executive. There should not be a levy on the industry; the services should be paid for out of general taxation. One hopes that that would give the HSE an incentive to do what I think it intends to do—that is, to take a step backwards and upwards to a higher plane of overall supervision of the industry, leaving the railway safety and standards board to carry out all the detailed work. That board will be funded by the industry. Again, there is a question as to whether the heritage railways would have to pay an HSE levy. The argument is the same as before—I am sure that they would not be able to afford it. That, if nothing else, is an argument against the provision.
  Due to the rather disparate BTP and HSE roles, I hope that my noble friend will see fit to agree that it would be appropriate, in the interests of fair

  GC49
  competition with road, that the same type of charging should be made, and that that should be paid for out of general taxation. I beg to move.
  Lord Bradshaw: I support what the noble Lord, Lord Berkeley, said in both cases. The British Transport Police performs a service for the railway. Very largely, it does so for the passengers of the railway, not for the railway companies. It is Joe Public who is being served, just as civilian police authorities serve the same public. We must bear in mind that most money for the railway comes in one way or another from the taxpayer or the fare box, so a great deal comes from the taxpayer. When people bid for franchises, they no doubt factor in the costs that arise from employing the British Transport Police. Therefore the taxpayer pays for it either with a lower premium or a higher subsidy than there would be otherwise.
  The case for funding the British Transport Police out of general taxation is quite strong and really needs serious consideration. The present collection costs are somewhat arbitrary. Some operators complain that they pay far too much, while others probably pay too little. There is a fairly strong case for regarding at least a large part of the money as exigible under general taxation. I am not sure that it would mean that a lot of money would actually change sides, because the subsidies to the railway would be lower, and therefore the taxpayer would benefit on one hand although he may have disbenefits on the other.
  So far as the Health and Safety Executive is concerned, I am very worried about any public body being allowed to levy the people whom it serves. Every public body has a duty to make a budget and stick to it. It should not post facto be able to levy its emerging costs from anyone. People should know exactly what they are being called on to pay before they pay it.
  I have personal experience of that because I am—the noble Lord, Lord Berkeley, alluded to it—chairman of GTE for Oxfordshire. It is not a pecuniary interest; I am really just the victim. However, we got into an enormous quarrel with the Health and Safety Executive, because it gave us what it called some advice, but that advice was not worth having. I could have written better advice myself. It sent bills for about £430, which kept coming through my door like confetti and got nastier and nastier. Eventually, I was summoned to appear before a meeting. The meeting, and the lunch that the HSE provided, must have cost all of £430. The adjudicator, whom I knew very well, found in my favour, so we did not pay the bill.
  That is the sort of nonsense that goes on, and it does not benefit anyone. Whatever the Minister replies to the debate, we would like an assurance that the Health and Safety Executive will be required to produce a budget, and that it will stop the practice of charging for trainees, who are carted round, do not add anything and cost people a lot of money. The employment of such people is not voluntary; they must be used. Giving them a blank cheque is not on.
  7.15 p.m.
  Viscount Astor: I shall deal first with the Health and Safety Executive. Can the Minister say what other industries are in a similar position to the railways? What will be the basis of future charging? How will it be determined? The Health and Safety Executive deals with many industries. On what other bases does it charge or the Government intend it to charge? Before making up our minds we need to put matters into context.
  I am sympathetic to the amendments with regard to the British Transport Police, which is there to support the public in the same way as any other police force. Ultimately, national police forces are funded by central government, so we all pay and we all benefit. In effect, passengers pay through the charges.
  Before one can take a considered view, it would be helpful to know whether the Government expect costs to rise when the new British Transport Police authority is established and whether there will be any change in the basis of charging the industry. If we can set the issue in context, the Committee may be able to form a clearer view.
  Lord Faulkner of Worcester: My noble friend Lord Berkeley has raised two quite separate debates. I agree with him absolutely that some means should be found of exempting the heritage railways from the charging provisions. My understanding is that British Transport Police officers do not patrol the lines and look after tourists. Indeed, I gather that the nearest a British Transport Police officer gets to a heritage railway is an occasional visit to the Wensleydale line, which is not fully open yet anyway. I hope that a means will be found to exempt the heritage railways from a charging regime.
  On the wider question of who pays for the BTP generally, I have a great deal of sympathy for the argument that the money should come out of general taxation. I am reminded that council tax payers find a precept on their council tax bills stating that a proportion of the money collected will go to their local force, whether it is the Metropolitan force, the Thames Valley force or whichever. In that way there is a link between the citizen and the police, and people are conscious that they are making a direct contribution to policing costs.
  The principle that the railways pay for the transport police, which has applied since 1845, cannot be thrown away lightly. However, in extending the role of the transport police, both through the Anti-terrorism, Crime and Security Act 2001 and the widening of the jurisdiction we have heard about today, we are asking the transport police to take on a number of duties away from railway premises in the furtherance of wider law and order issues. It strikes me that if the transport police are asked by a civil force to assist with a riot situation, as they were in Bradford some while ago—which was clearly away from railway premises—it would be a little hard on the railway companies in Yorkshire if they had to pay for the cost of that policing operation.

  GC51
  The reality, of course, is that the money goes into a large pot and no one knows how the sums are divided up. An acceptable way forward might be for there to be an element of general taxation funding the wider policing activities of the transport police together with a continuation of the railways contribution. I shall be interested to hear what my noble friend has to say about this.
  Lord Bradshaw: The precept amount to a local police authority is about 20 per cent of the cost. The remainder is met through government grant.
  Lord Dixon-Smith: The noble Lord, Lord Faulkner, cannot be allowed to get away with the fact that no one knows what happens when the police operate mutual aid. They jolly well do know who pays which costs when police forces work together. The bills eventually go out and they catch up with the local authorities. I am also sure that the Home Office knows, because it pays a large part of police costs.
  I raised the question of heritage railways at Second Reading. The case for exempting them from the charges of the British Transport Police should not need arguing. They are not an "operation" in the commercial sense. They are a specific tourist attraction, if anything, run by enthusiasts. Anything that adds to their financial burden makes their life more difficult.
  The issue raised by the noble Lord, Lord Berkeley, about the British Transport Police is significant. Whatever the historical arguments, the British Transport Police is part of the general police service. It may be specialised, but it is part of general policing. If that is so, and if this is the opportunity to consider whether its funding arrangements are appropriate, we should do so.
  The Earl of Mar and Kellie: I understand that heritage railways are experiencing considerable rises in insurance premiums because they are classed as a hazardous operation. That makes them even less able to pay.
  Lord McIntosh of Haringey: There are general points on funding and some specific points to which I must reply. The first relates to the funding of the British Transport Police. The BTP has been funded by the rail industry since its creation in the 19th century. There is no equivalent on policing the roads. The roads are policed by the general police force, which is rightly—and no one has questioned it—funded by general taxation.
  However, we must look at the amounts of money involved. I do not know the budgets for police forces around the country, but the British Transport Police budget for 2003–04 is £136 million, which is less than 2 per cent of the rail industry's turnover. That excludes the turnover of London Transport. Therefore, it is considerably less than 2 per cent. As regards who pays, London Underground and Network Rail pay 25 per cent each and the remaining 50 per cent is met by the passenger train operating companies.
  GC52
  The freight operators will pay about £1 million in 2003–04, which is less than 1 per cent of the total budget of the British Transport Police and far less than 0.1 per cent of the freight companies' turnover.
  As to the funding of the Health and Safety Executive, that is a more recent funding provision. It is a decision the Government took deliberately in 1999 because they took the view that it was right for those whose activities cause safety risks to bear part of the cost of regulation. It is in line with the "polluter pays" principle, which I hope is generally accepted as proper in environmental matters. It should be here, too. On that basis, I see no reason for a change in the principle of the funding of the HSE.
  Baroness Scott of Needham Market: On the basis of "polluter pays", in both arguments the polluters are the general public. That is certainly so in the case of the British Transport Police. I am not trying to be facetious, but I do not see that the argument that this is the application of "polluter pays" works. It is not the fault of the rail company if it is subject to vandalism, trespass and so forth. I do not understand the analogy.
  Lord McIntosh of Haringey: I was talking about the Health and Safety Executive and its health and safety responsibilities. That has nothing to do with vandalism, as far as I can see. This is a safety risk inherent in rail operation. On the principle I have enunciated, which is comparable though not identical to the "polluter pays" principle, it is right that those whose activities cause safety risks should contribute to the cost of their regulation. That is the general principle behind, first, the British Transport Police and, secondly, the Health and Safety Executive.
  I turn to the specific points raised. The first was on heritage railways. We do not require them and tramways to enter into a public service agreement to fund the British Transport Police where they operate away from the national rail network. I cannot promise that that will always be the position, but we currently have no intention of changing it. We have no intention of requiring heritage or tramway operators who do not operate on the national rail network to take part in the funding of the British Transport Police.
  The next specific point is about the nature of the levy, particularly for the Health and Safety Executive. The HSE has a most extraordinary charging system on an hourly basis; in other words, it charges for approving a safety case on an hourly basis. I do not know whether it includes training, but the whole point is that we are getting rid of that system. We are having a much simpler levy system, which I cannot specify in detail. It will not be specified in detail on the face of the Bill, but it will be specified in regulation after proper consultation. I can say that it will be simpler, more rational and more economical both to the HSE and ultimately the rail industry.

  GC53
  I can give the kind of figures we are talking about. The income from charging in 2001–02 was £5.25 million. That is not a large amount of money. It is the intention that the proportion of the total costs of the HSE which can be ascribed to railways and which will he charged to the railway industry will be the same in future as it is now; that is, 55 per cent. There is no intention of raising extra money from the railway industry for the work of the HSE.
  The noble Lord, Lord Bradshaw, asked about the HSE budget and gave the analogy of the police authority budget. Yes, the HSE produces and will continue to produce a budget, but with a levy system it will he simpler for the rail industry to see what it is getting for its money.
  The noble Viscount, Lord Astor, asked what other industries had a levy charged in the same way by the HSE. I know that there are some, but I do not have them to hand. I will have to write to him about that and I apologise for not having the information before me.
  We are making minor and entirely positive changes to the regime. We are carrying on the regime for British Transport Police. We are simplifying and improving the regime for the HSE and we do not believe that these amendments are desirable.
  Viscount Astor: I am grateful to the Minister for saying that he will write to me. Perhaps in the letter he could explain the basis of charging for Network Rail as opposed to the train operating companies. How is it broken down and on what basis is it made?
  Lord McIntosh of Haringey: I can certainly do that. There are analogies with other industries at which I shall just hint now. The HSE makes charges for regulatory work in potentially high hazard areas of industry such as the nuclear and off-shore oil industries or any on-shore major hazard industries. It is generally accepted that that is a proper way to behave. Safety risks are created by rail operation and they should be paid for.
  7.30 p.m.
  Lord Bradshaw: I rise to express disappointment with what the noble Lord has said. I shall look closely at the Health and Safety Executive because it is an area which in my opinion, having visited the place, has considerable scope for economy. I shall look at its budget closely and see whether suitable economy is being exercised. No doubt we will raise the matter at another time if there is not. It is a huge burden on the industry and one of the reasons why costs are so high.
  Lord Berkeley: I am grateful to my noble friend for his reply. I shall read with interest his response to the noble Viscount, Lord Astor, and to know the other industries which do or do not charge. I am always interested in why the Health and Safety Executive call the railways "high hazard industry". On the roads—we shall discuss the HSE role in a future amendment—there have been at least eight fatalities in the past year on motorways and workmen have been killed. That is very serious. If the railways are a high hazard industry, I suggest that the roads probably were. As I said, I do not see much sign of the polluter paying for the work that the HSE or equivalent agencies undertake on the roads.
  I shall study with great interest my noble friend's reply and his letter to the noble Viscount, Lord Astor. In the meantime, I beg leave to withdraw my amendment.
  Amendment, by leave, withdrawn.
  Clauses 71 and 72 agreed to.
  Schedule 5 agreed to.
  Clauses 73 to 76 agreed to.
  Lord McIntosh of Haringey: This may be a convenient moment for the Committee to adjourn until Thursday 5th June at 3.45 p.m.
  The Committee adjourned at twenty-eight minutes before eight o'clock.