HL Deb 16 July 1987 vol 488 cc1172-8

4.15 p.m.

Proceedings after Third Reading resumed.

Clause 17 [Supervision by Intergovernmental Commission and Safety Authority]:

Lord Carmichael of Kelvingrove moved Amendment No. 3:

Page 19, line 12, at end insert ("in Scotland except by or with the consent of the Procurator Fiscal or")

The noble Lord said: My Lords, the Minister may recall that I raised this in the dying days of the Report stage. The Minister in his reply said that Scotland was covered by subsection (10), which on the face of the Bill refers only to England, Wales and Northern Ireland. I tabled the amendment to give the Minister time to make sure that his words were correct.

I still have grave doubts. I have taken some advice. I hope that the Minister will be able to clear up the matter and that he has taken legal advice. I beg to move.

Lord Brabazon of Tara

My Lords, I am grateful to the noble Lord for having raised the matter. We have in the interim taken advice from the Scottish law officers.

I should first own up to an inaccuracy in my description of the effects of Scots law during the Report stage on Monday. I have to say that the Government still believe that the amendment is unnecessary.

Prosecutions in Scotland are of course normally brought by the Procurator Fiscal in lower courts and the Lord Advocate in higher courts. There are, however, very limited circumstances in which a private prosecution could be brought in Scotland. Whereas elsewhere in the United Kingdom in the absence of specific legislation the right of private prosecution is virtually unconstrained, this is not the case in Scotland. The Scots law already provides a thorough system of checks against vexatious proceedings. It is not therefore necessary or appropriate to make special provision in the Bill as it is for England, Wales and Northern Ireland.

On the basis of that explanation, I hope that the noble Lord will feel able to withdraw the amendment. However, I shall once more draw what he has said to the attention of my noble and learned friend the Lord Advocate.

Lord Carmichael of Kelvingrove

My Lords, I note that the Minister said this was neither necessary nor appropriate. As to its inappropriateness I wonder whether he would look at it again. That is one of the points on which the meaning of the amendment hinges.

If the Minister has consulted the noble and learned Lord the Lord Advocate, as I am sure he has, and this has been looked at carefully, I am in no position to proceed with the amendment.

I still have a very uneasy feeling. I know that private prosecutions happen rather more often than the Minister seems aware. We have had some very important ones quite recently. Given the Minister's assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 [Intergovernmental Commission and Safety Authority: Supplementary]:

Lord Brabazon of Tara moved Amendment No. 4: Page 19, line 23, leave out ("or direction") and insert (", direction or certificate").

The noble Lord said: My Lords, I beg to move Amendment No. 4 and I shall speak also to Amendments Nos. 5 to 13 inclusive.

In proposing the amendment I am honouring an undertaking that I gave on Report to the noble Baroness, Lady Stedman. To use her own word, she was "shattered" on that occasion by my telling your Lordships that the Government accepted the principle of her amendment, which provided that Eurotunnel should adopt a code of practice relating to the transport of persons who are disabled. I explained—I think that the noble Baroness accepted this— that certain drafting changes were needed. These have now been made, and the amendments now before your Lordships achieve the objective.

The amendments provide that Eurotunnel must adopt a published code of practice on transport by their shuttle trains of people who are disabled. They may if necessary exclude certain categories of disabled people but, if so, they must explain why. This is intended simply for those categories of people whose needs in terms of facilities or equipment are so complex that the concessionaires could not reasonably be expected to carry them on shuttle trains. They must give details of how they will ensure the safety of disabled persons in the tunnel system. This code of practice will be considered by the Intergovernmental Commission, and only when it is satisfied will it issue a certificate allowing Eurotunnel to carry passengers.

If Eurotunnel has not made satisfactory arrangements for carrying passengers with disabilities, it will not be allowed to carry passengers on its shuttles at all. I do not think that your Lordships could ask for more. I beg to move.

Baroness Stedman

My Lords, we come back to this question for the third time. Both I and those helping me to prepare the case appreciate very much the Minister's gesture. We are satisfied with the amendment that he has offered in place of mine, which was wrongly drafted.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendments Nos. 5 to 13:

Page 19, line 29, after ("direction") insert (", certificate").

Page 19, line 37, after ("direction") insert ("or certificate").

Page 19, line 40, after ("direction") insert ("or certificate").

Page 19, line 41, leave out ("certificate") and insert ("statement").

Page 19, line 43, leave out ("stating").

Page 19, line 43, after ("direction") insert ("or certificate").

Page 19, line 44, at end insert ("or certificate").

Page 19, line 45, leave out ("certificate") and insert ("statement").

Clause 19 [Operation by the Concessionaires]:

Page 20, line 11, at end insert— ("(4) The Concessionaires shall not convey any passengers by means of shuttle trains at any time when there is not in force a certificate issued by the Intergovernmental Commission stating—

  1. (a) that the Commission are satisfied with a code of practice relating to the conveyance by means of shuttle trains of persons who are disabled which has for the time being been adopted by the Concessionaires; and
  2. (b) that the code of practice has been published in a manner approved by the Commission.
(5) Such a code of practice must contain—
  1. (a) a statement of any description of such persons not intended to be conveyed by means of shuttle trains, with reasons;
  2. (b) details of provision for ensuring the safety of such persons in the tunnel system, in particular the safety in the event of an emergency of such persons being conveyed by means of shuttle trains; and
  3. (c) information relating to such other matters affecting the conveyance by means of shuttle trains of persons who are disabled as the Commission may specify.
 (6) Contravention of the restriction imposed by subsection (4) above may be restrained by an order of the High Court made on an application by the Intergovernmental Commission.").

On Question, amendments agreed to.

4.30 p.m.

Lord Sefton of Garston moved Amendment No. 14: After Clause 20, insert the following new clause:

("Insurance cover.

As stated in the Treaty, and regardless of anything contained in Clause 22 or Annexe III of the Concession Agreement, the Concessionaires shall take out and maintain insurance cover for any liabilities incurred by them arising from the construction and operation of the Channel Tunnel.").

The noble Lord said: Before I forget to do so, may I also take this opportunity of congratulating the Minister for the way he has handled the Bill on its way through the House and for putting up with what he may have considered to be my untimely interruptions.

This is the third time that I have spoken on insurance. I make no apology for bringing the matter up again at this late stage. At Report stage I had not received certain information from the Minister which subsequently made me change my mind. I received the information too late as I had already submitted the amendment. The same situation arises today. The Minister at Report stage said that he would write to me if he thought there was anything worth writing about. He evidently thought there was not.

If I remember correctly, the Minister called my amendment otiose. Not being a very literate person, I looked that up. I found that my amendment had been described as "lazy", "sterile", "not required", "serving no practical purpose" and "functionless". If a desire to ensure that people travelling through the tunnel and any expenses arising out of collapse, breakdown or accidents in that tunnel are insured warrants that description, then my education is worse than I thought it was—and at times I think it was pretty bad!

Surely my amendment cannot be described as functionless and futile. It is a point of principle in our society that if someone creates something that ultimately means someone else is damaged or it has an adverse effect on other companies, that person should be responsible either for compensation or for rectifying the damage. That is all that my amendment seeks to do.

The Minister said that the amendment was futile. He went on to say that it was not necessary because it repeated requirements in the concession agreement. The second point made by the Minister was that it went beyond the agreement. Therefore, it must have done something other than repeat assurances in the agreement. The third point made by the Minister was that it could not be done at a reasonable cost. We have been hearing a lot about privatisation and how the private sector of our society can do things as well as government. I said then that so far as I was concerned I thought that, if this tunnel had to be built, it should have been built from public funds; if the community decided that it should be built, it should be responsible for any damages arising. I still believe that that is absolutely true and a fundamental principle.

If the Government, having been elected on a specific requirement to push forward privatisation, have told the electorate of this country that privatisation is as safe and as good as public ownership, then the same requirements should be put upon the private sector to comply with the simple principle of compensation for damage done. So far as I know, the only way that they can ensure that is to insure against all risks.

The concession agreement says, after the treaty was negotiated saying that insurance shall be taken out, that that should only be done at a reasonable cost. Nobody said what a reasonable cost was and I asked the Minister who would decide that. I have not yet received a reply. I am sure that Members of the House will not be surprised if I say that I am still not satisfied. Users of the tunnel are entitled to know where they stand with regard to insurance.

There is another implication that may be involved. If Eurotunnel cannot find insurers in the private sector to cover such risks, how do we know that an ordinary person can insure himself against the same risks? If it is impossible for Eurotunnel to cover the risk, how can an individual be guaranteed that he can be covered? It may be that the Government, in order to see justice done, will accept that they should do something about covering the risk. I doubt very much whether the Minister will be prepared to say that.

However we look at this matter, this is a government Bill. The Government are laying down the proposals and submitting them to Parliament. Therefore, some responsibility should be laid at their door. If this clause stays as it is and my amendment is defeated, will the Government make the public aware at all times of what the state of insurance is in regard to the tunnel? The proposal is that they should in the first place insure it and then perhaps afterwards, if it becomes unreasonable in someone's opinion, they will stop it. The public are entitled to know. If they are not told, then they will have been deceived.

Lord Inglewood

My Lords, may I ask exactly what the point is? I think that what is suggested also happens when half of London is flooded. Is it so unreasonable that there should be claims under the same heading?

Lord Sefton of Garston

My Lords, I am not sure that I understood the noble Lord's point. Perhaps he can make it again later.

There should be some duty to inform members of the public whether at any particular time insurance covers the risks that may be involved in going through the tunnel. If the Minister can give me a satisfactory reply about informing the public and an assurance that they will be able to negotiate insurance and that the Government will pick up any tab for damages caused, I may withdraw my amendment. Otherwise I certainly am not inclined to.

I do not want to keep the House very long. However, I wish to make the point that if the tunnel is built under the present Bill and Annex III of the concession agreement, it will be possible for people to travel through it uninsured. I think that that is a disgraceful state of affairs.

Viscount Massereene and Ferrard

My Lords, perhaps the noble Lord can tell me whether, if a train has an accident and people are killed or injured, British Rail compensates them? As far as I know, it does not.

Lord Sefton of Garston

My Lords, I do not know. I have some experience of insurance. I could keep the House up until very late tonight if the noble Viscount wants examples. What we are talking about now is the fundamental reason for doing something in advance. I mentioned in a previous debate, when the noble Lord, Lord Harmar-Nicholls, raised the question of too much bureaucracy in the tunnel, that if a little more bureaucracy had existed in Townsend Thoresen we should not have got to the stupid situation in which there was no television monitor showing whether the doors were closed.

Lord Ferrier

My Lords, curiously enough I again find myself in complete agreement with the noble Lord, Lord Sefton. Relying from my memory, I believe that during the debate in February I raised the question of what the cost of insurance would be. I also wrote to the Minister and received a reply. I did not think that that reply was satisfactory. However, I was not prepared to argue further about it. On the other hand, this is an opportunity for me to say with some certainty that insurance is one of the indeterminate aspects of the whole plan which causes me to feel that the situation is unsatisfactory. Why do we not know? How can we find out? I have sought the advice of insurance men and they ask, "What do you want to insure?". However, I feel it is proper for me to tell your Lordships that I agree with what the noble Lord, Lord Sefton, said.

Lord Brabazon of Tara

My Lords, I am grateful to the noble Lord, Lord Sefton, for his kind words at the opening of his speech. The reason I have not written to him on the subject is that there was not enough time. I felt it was easier to answer his questions here and now in the House this afternoon.

If I can draw your Lordships' attention to subparagraph (3) of the last paragraph of Annexe III of the concession agreement, this requires the concessionaires to insure their liability to compensate third parties and users in respect of death, bodily injury or disease, or loss of or damage to their property. Clause 22 of the agreement provides that this obligation shall apply only to the extent that such insurance is available at reasonable cost, because it is possible that unlimited cover against extreme eventualities may be beyond the capacity of the insurance market or would be obtainable only at utterly prohibitive cost.

However, Clause 22 also provides that the concessionaires' insurances shall be subject to the approval of the Intergovernmental Commission, and if the concessionaires contend that cover beyond a certain level is not available at reasonable cost they will have to satisfy the commission that that is so.

The concession agreement simply recognises that in the real world every conceivable eventuality concerning damage to users and third parties may not be insurable. But this question is not left entirely to the concessionaires to decide. The decision will be entirely in the hands of the Intergovernmental Commission; and I remind your Lordships that decisions of the commission require the agreement of both national delegations. So there is no uncertainty about this insurance—at least I feel that there is no uncertainty. I hope that what I have said will satisfy the noble Lord and he will not press the new clause further.

Lord Sefton of Garston

My Lords, the Minister has merely repeated what. I said in my statement. Of course I referred to Clause 2, of course I referred to the treaty, of course I referred to Part III, and of course I pointed out the matter of reasonable cost of insurance. That is not a new point. The only matter which the Minister has raised which is new to this debate—also inside the agreement—is that it will be the Intergovernmental Commission that will decide whether the tunnel should be insured. I accept that, and I accept it as meaning quite deliberately that the Intergovernmental Commission will decide the issue of reasonable cost. It should be on the record that the Minister has said that.

The Minister then went on to say—if I am wrong, please correct me—that that agreement is subject to the agreement of the national states concerned. In other words, if the British Government do not agree that the tunnel can go on without insurance because of unreasonable cost, then it has to go on willy-nilly. That is what it means, if it means anything at all. If the Minister is smiling to say it does not mean that—if he will tell me it does not mean that—then I shall know what to say next.

Lord Brabazon of Tara

My Lords, there is very little more I can say. If the noble Lord reads what I have said this afternoon, I think he will see that there is definitely going to be a certain level of insurance available which has to be enough to satisfy the Intergovernmental Commission.

Lord Sefton of Garston

My Lords, it is evident that the words used by the Minister (namely, that the agreement of the Intergovernmental Commission must be subject to the agreement of both national states) mean what I said they meant. Therefore, the Government cannot escape the blame for allowing people to go through the tunnel and possibly suffer horrific damages without any insurance. That will be their claim and we do not want any fudging of the issue. That is the situation. It is serious, and strikes at something else, because the third reason for refusing my amendment was that we would have to renegotiate the terms of the agreement. It is evident that we do not have to.

We have now arrived at a situation where the British Government, by refusing to agree that the insurance taken out by Eurotunnel is unreasonable, can ensure that that insurance is taken out and maintained. That is the issue now. In view of the Government's refusal to ensure that this tunnel is insured at all times for all risks I am going to press my amendment.

The Deputy Speaker (Lord Murton of Lindisfarne)

The Question is that Amendment No. 14 shall be agreed to. As many of that opinion will say, "Content", to the contrary, "Not-Content". I think the "Not-Contents" have it. Clear the Bar. Tellers for the "Contents" have not been appointed pursuant to Standing Order. No. 51. A Division therefore cannot take place, and I declare that the "Not-Contents" have it.

Schedule 7 [Protective provisions]:

Lord Brabazon of Tara moved Amendment No. 15:

Page 102, line 41, leave out ("which may result").

The noble Lord said: My Lords, I shall speak also with the leave of the House, to Amendment No. 16. These are drafting improvements. I beg to move.

On Question, amendment agreed to.

Lord Brabazon of Tara moved Amendment No. 16:

Page 103, line 12, leave out second ("in") and insert ("approved under").

On Question, amendment agreed to.