Lords Sitting of 18 June 1991

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield.

Lord Desai
Meghnad Jagdishchandra Desai, Esquire, having been created Baron Desai, of St. Clement Danes in the City of Westminster, for life—Was, in his robes, introduced between the Baroness Blackstone and the Lord Peston, and made the solemn Affirmation.

Businesses: Prompt Payment of Bills
2.48 p.m.
Baroness Sharples Baroness Sharples asked Her Majesty's Government:
What advice and help they can give small businesses to ensure that their accounts are paid by large businesses within a reasonable period.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, it is the responsibility of all businesses to ensure that their accounts are accurate, clear and timely. Paying bills on time is an important aspect of good business practice for both buyers and suppliers. To help in this process the Department of Employment publishes the guidance booklet Prompt Payment Please, which advises small firms on credit management and correct invoicing and large firms on their responsibilities to suppliers.
Baroness Sharples: My Lords, I thank my noble friend for that information. Can he say what is the average time taken by the Department of Health and the Ministry of Defence in the payment of subcontractors? Further, in view of the proposed European Community directive does he agree with the Law Commission's recommendation in its report of 1980 that there should be a statutory right to interest on delayed payments?
Viscount Ullswater: My Lords, the Treasury guidelines to departments are to pay bills within the contract term or, where no contract terms are specified, within 30 days of receipt of goods or a valid invoice, whichever is the later. The Department of Employment is conducting a survey of payment times by all major spending departments, including both the Ministry of Defence and the Department of Health, in the 1991–92 financial year. The overall result will be published at the end of the financial year.
With regard to the Law Commission report regarding statutory interest, there does not appear to be any conclusive evidence that in general countries where statutory interest applies have less of a payment problem than those where it does not.
Lord Mellish: My Lords, I appreciate the Minister's reply. However, is it not correct that the Government
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of the day and previous governments were the worst offenders? Small businesses had to wait until their work was impacted and the invoice had gone through all the red tape in the machinery until, finally, a cheque was sent. I hope that that situation has been amended.
Viscount Ullswater: My Lords, we must be clear whether we are speaking of late payment or long payment. The idea of long payment is that contracts negotiated by firms may allow for three months for payment, whereas it is possible to contract for shorter times.
Lord Harmar-Nicholls: My Lords, is my noble friend aware that, while the advice given in his Answer makes good sense, it is rather toothless? Is there no way of being more specific when the debt is owed by a local authority or government department?
Viscount Ullswater: My Lords, legislation, which is the alternative, will not change the position of the bargaining power between the small and the large companies. If there are instances of government departments or the top 100 companies paying late, my honourable friend Mr. Forth has said that he will take the matter up with the companies concerned. He said that in 1990 and the offer remains open.
Baroness Seear: My Lords, many voluntary organisations are suffering from late payment. Does the noble Viscount agree that, if instances of late payment by government departments which clearly damage the activities of voluntary organisations are referred to him, he will personally take up the matter?
Viscount Ullswater: My Lords, of course I shall stand in my honourable friend's shoes.
Lord Hailsham of Saint Marylebone: My Lords, given the high rate of interest charged by banks and the state of inflation in this country, is not the late payment of debts by contract date a clear case of unjust enrichment? Is not my noble friend Lady Sharpies perfectly right to remind the Government of the Law Commission's report? Sadly, it has never been implemented, owing largely to the attitude of the department for which my noble friend is speaking.
Viscount Ullswater: My Lords, to some extent I must defend myself against my noble and learned friend. Most small-firm organisations, including the Association of British Chambers of Commerce, the National Federation of Self-employed and Small Businesses Ltd. and the CBI smaller firms council, are firmly against legislation.
Lord Mason of Barnsley: My Lords, is the Minister not aware that during 1990 4,581 businesses collapsed? Many of those were small businesses which failed because money was owed to them. Does not the Minister agree that the Government should insist on companies paying their debts promptly to save small firms from being squeezed by big companies? Will he consider imposing a tax on those firms which do not pay their debts within 30 days? That should have an effect.
Viscount Ullswater: My Lords, the operation of such a scheme would be extremely difficult. As I tried to point out, the small firms thought to be those which are put upon very often do not have a good reputation for paying their own bills. It goes all the way through. It is important, too, to make a distinction between late payment and long payment.
Baroness Turner of Camden: My Lords, is not the Minister aware that the practice of subcontracting has substantially increased in this country in the past few years? In such circumstances, does he not agree that, if the bills are not paid when money is owed to small companies, there is a very serious threat to employment should such small companies be unable to maintain their businesses? Cannot something be done by the Government in view of the employment threat implicit in this state of affairs?
Viscount Ullswater: My Lords, I believe that the Government are taking action. The action that I have indicated is that they have produced the booklet Prompt Payment Please. They are also looking at the booklet again and updating it. The Government are making certain that it applies to the situation as it now exists. They are using the technical advice of the Institute of Credit Management. It is the education of the small firms in the operation of their accounts which is most important.
Baroness Sharpies: My Lords, does my noble friend accept that, apart from Ireland and Portugal, we are the only country in Europe which does not have statutory interest payment?
Viscount Ullswater: My Lords, I believe that to be so. However, in the circumstances we pay a great deal of attention to the advice that we get from the small businesses whose interests my noble friend seems to be supporting.
Lord Wallace of Coslany: My Lords, is the noble Viscount aware that delaying of payment is quite widespread in the National Health Service and that that is mainly due to under-funding?
Viscount Ullswater: My Lords, I am not aware of the problem which the noble Lord identifies. I have given the Treasury guidelines for payments by departments. As I have said, it is most important that firms tie up the contract for payment and that we distinguish between late or long payment.
Lord Elton: My Lords, is it not what the Government say but rather what the departments do that exercises us? Does my noble friend realise the enthusiasm with which we await the figures now being collected and which he promised us for next year?
Viscount Ullswater: My Lords, yes. I take note of what my noble friend says.
Lord Mackie of Benshie: My Lords, will the Minister confirm that there are large and important firms in this country which have built up large cash balances to their own great benefit simply by withholding money from firms which depend on them?
Viscount Ullswater: My Lords, I believe that that is anecdotal evidence. There is no reason to suspect that good firms have built up their cash balances in such a way.
Lord Orr-Ewing: My Lords, could not my noble friend set up a working party to consult and see what other countries do? There must be a solution to the problem. If this country is one of the worst transgressors with companies being paid very late, does my noble friend agree that we could take the best of all the ideas in Europe and bring forward legislation in the next Session of Parliament to make those ideas effective here?
Viscount Ullswater: My Lords, as I said originally, there is no conclusive evidence that in general in countries where statutory interest applies to late payment and where legislation has been introduced there is less late payment than in this country.

Whales: Icelandic Policy
2.57 p.m.
Lord Nugent of Guildford Lord Nugent of Guildford asked Her Majesty's Government:
What action they will take to safeguard the whale, following the decision by Iceland to leave the International Whaling Commission next year.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Baroness Trumpington): My Lords, our understanding is that the Icelandic Government have not yet taken a decision to leave the International Whaling Commission. The UK Government will continue to maintain their strong position on the conservation of whales and other cetaceans.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that Answer, which hardly covers the facts. Is it not a fact that the Icelandic Government applied for permission to resume commercial whaling last year and on that being refused announced their intention of leaving the International Whaling Commission? Does not that precedent indicate the danger that exists to the conservation of the whale in that in Norway the Norwegian Minke Whalers' Association announced at its annual general meeting this week its intention to resume commercial whaling next year? Will my noble friend take this matter very seriously? Is he aware that the tremendous work in setting up the International Whaling Commission, which has conserved the whale from extinction, is about to be destroyed unless really effective action is taken by our country and every other civilised country in the world?
Baroness Trumpington: My Lords, I first pay tribute to my noble friend Lord Nugent who I know has a very long association with the IWC and who shares Her Majesty's Government's very strong feelings on the preservation of the whale. Having said that, Iceland has given notice of an intention and, obviously, Iceland takes its own decisions; but it would be regrettable to leave the only forum

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concerned with all cetaceans. Iceland must also recognise that the IWC is the only forum in which to argue its case. My right honourable friend the Minister stated in another place that he would do his best to ensure that Iceland does not leave the IWC.
I have seen the report that Norwegian whalers intend to start their activities again in July. I understand that the Norwegian Government do not envisage any whaling this year and will take action against such whaling. Such a move by whalers would, of course, be in contravention of the IWC moratorium on commercial whaling and as such would need to be viewed very seriously.
Baroness Nicol: My Lords, is it not the case that the United States has legislation in the shape of an amendment to the Fishermen's Protection Act which makes it possible to embargo all fish and wildlife products from any nation that,
"diminishes the effectiveness of an international fishery or wildlife conservation agreement".
There is a further amendment to the International Fishery Conservation and Management Act which rules that any nation violating the IWC's rulings would be banned from fishing within the United States 200-mile limit. Would it not be a good scheme for the United Kingdom to take on board that kind of legislation? I understand that it works very well.
Baroness Trumpington: My Lords, the position of the United Kingdom is that the Government are not prepared even to contemplate a lifting of the moratorium on commercial whaling until it is clear that stocks are at healthy and sustainable levels, that a satisfactory management procedure is in place and that the methods used to take the whales are humane. We are particularly concerned on this latter point and have secured a specialist group to study present killing methods.
Lord Hailsham of Saint Marylebone: My Lords, arising out of that last answer, does my noble friend agree that the only methods at present in use for killing whales are inherently and horribly cruel and that no other method is at present contemplated?
Baroness Trumpington: My Lords, I agree that whaling is cruel. At our suggestion it was agreed that next year a group of experts will undertake a thorough review on the humaneness of whale-killing methods. On the basis of present evidence we are not convinced that commercial whaling can be undertaken as humanely as it should be to make it acceptable.
Baroness Nicol: My Lords, although I appreciate the very helpful reply given by the noble Baroness, will she answer my question? Will the United Kingdom contemplate the kind of legislation that exists in the United States, which seems to be effective?
Baroness Trumpington: My Lords, first, there is in any case a ban in the EC on all whale products. With regard to future action by the United Kingdom, I cannot pre-empt any action that may be taken to address a situation that has not yet arisen. However,
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I shall make sure that my right honourable friend the Minister reads the exchanges we are having in this House today.
Lord Nugent of Guildford: My Lords, rather than the calming words the Minister has given to us today will she consider taking some action? Do I not understand that Iceland has applied to join the European Community? Should not Iceland be told that on no account is it to be allowed to join a civilised community if it intends to recommence whaling? If that is not effective, could not Iceland also be told that we shall appeal to the United Nations and ask for sanctions to be applied? Iceland is proposing a monstrously uncivilised act. We expect our Government to take effective action to check it.
Baroness Trumpington: My Lords, I repeat that the Government of Iceland have not taken any decision.
Lord Gallacher: My Lords, the special workshop on methods of killing whales was decided on in May by the International Whaling Commission at its meeting in Reykjavik. That was on a British initiative, and we congratulate the Government on that. However, can the noble Baroness say whether that inquiry will report within the next 12 months?
Baroness Trumpington: Yes, my Lords. Perhaps I may elaborate as I know the House is interested in this whole subject. Experts, including veterinarians, weapons explosive experts, physiologists, forensic pathologists, and others, will meet to consider all methods currently in use in whaling or known to be in development. They will assess and compare methods and the data on their killing efficiency and evaluate progress since the last major review in 1980. A report will then be presented to the IWC for its consideration next year.

Electricity Transfer Within the EC
3.5 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What progress is being made in promoting within the EC the ability to transmit electricity across frontiers into the grid systems of other member states.
Lord Cavendish of Furness: My Lords, a directive on electricity transit is due to be implemented by 1st July. This provides for one grid company to obtain transit of electricity across another grid to a third grid company across Community frontiers. I understand that the European Commission is currently considering options for further opening up electricity markets in the Community. My right honourable friend the Secretary of State for Energy is encouraging the Commission to bring forward proposals speedily.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for his Answer. Are there now, or will there be, restrictions caused by limited capacity of

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interconnection across frontiers, as have existed between France and the United Kingdom and even between Scotland and England?
Lord Cavendish of Furness: My Lords, the transfers of electricity will be limited by the capacity of the transmission system. Between England and France the interconnector capacity is two gigawatts and between Scotland and England a nominal capacity of one gigawatt. The present interconnector is not used to full capacity at all times. Therefore, if cheap electricity is available in Europe market liberalisation will benefit our consumers. If the capacity of interconnectors proves to be insufficient, market liberalisation may stimulate the further construction of new capacity. Whether or not the new interconnectors are economic is a matter for the market to decide. The Government's role should be to ensure that there are no artificial constraints to their construction.
Lord Dean of Beswick: My Lords, does not the Minister agree that it would be a great irony if nuclear generated electricity were to be imported to this country from Europe, especially from France, when in fact our own nuclear energy is at present constrained by an almost total moratorium? Should we not look at our own situation before we start importing such energy and consider producing it ourselves?
Lord Cavendish of Furness: My Lords, the nuclear programme is under review. The results will be known in 1994. It will be in everyone's best long-term interests to have an open and transparent electricity market.
Lord Hailsham of Saint Marylebone: My Lords, contrary to what the last question implied, is it not a fact that we are importing and exchanging electrical power with France?
Lord Cavendish of Furness: Yes, my Lords, my noble and learned friend is right.
Lord Peston: My Lords, will the noble Lord clarify his reply that the relevant number of connectors will be determined by the market? Has he not seen in almost all the serious newspapers recently the view that our own electricity industry is insufficiently competitive? It clearly cannot be in the interests of the industry to allow in more competitors. Surely it is much more a responsibility for the Government to see that there is appropriate interconnected capacity so that the market can work. The market on its own seems to be very happy with the lack of competition. Is that not the case in our own industry?
Lord Cavendish of Furness: My Lords, we do seek an open market. The question of the interconnector is twofold. If there is not ample capacity at the moment, liberalisation will have the effect of guaranteeing transparency with our European partners; that will mean that British industry will be operating on a level playing field. Alternatively, if the market deemed it right then it will be in the long-term interests of everyone.
Lord Peston: My Lords, the noble Lord keeps saying "if the market deemed it right". The real point
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is that cheap electricity is in the interest of the consumers of electricity. However, surely the consumers of electricity do not build interconnectors; it is the producers that build them. Obviously it is not in their interests to build interconnectors if they can shield themselves from competition without them. That is the question I am asking the noble Lord. Surely the Government should take a more positive interest in encouraging competition across, so to speak, the maximal European grid.
Lord Cavendish of Furness: My Lords, we are taking the initiative here and we are ahead of everyone else. In fact, we are having some difficulty with our European partners. However, we are encouraging the Commission to bring forward proposals on further opening up the electricity markets in the Community. This is in four key areas: the third party access for generators to supply large industrial consumers or regional distributors in other member states; the publication of non-discriminatory tariffs for third party access; the ability to establish generation projects in other member states; and, finally, the ability to construct transmission lines, including interconnectors, to and within other member states.
Lord Campbell of Croy: My Lords, do the British Government regard the freedom to transmit electricity between member states of the EC as part of the internal market to be achieved in 1993?
Lord Cavendish of Furness: My Lords, we do indeed; and the four points that I made are directed to that end.
Lord Williams of Elvel: My Lords, how will the pricing of French or Scottish electricity coming into the English and Welsh grid be determined? Is it not the case that up to now the French interconnectors have operated almost entirely one way—between France and the United Kingdom and not between the United Kingdom and France? That is because the base load in France is generally nuclear-produced, which gives the French a substantial price advantage. Are we prepared to say that we shall establish new interconnectors and increase the throughput of the present interconnectors on the basis of what is a marginal cost to the French?
Lord Cavendish of Furness: My Lords, I am not entirely clear how the French calculate their prices. It is a fact that the consumer in France is not able to distinguish between the transmission prices and the generation prices. We seek an open and transparent market where these facts will be known and the true prices revealed.

Wheel Clamping and Emergency Vehicles
3.11 p.m.
Lord Montagu of Beaulieu Lord Montagu of Beaulieu asked Her Majesty's Government:
What is the approved policy practised by the Metropolitan Police with regard to the wheel clamping of vehicles belonging to fire and

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ambulance brigades, electricity, gas and water companies, British Telecom and of doctors and nurses when on official and emergency business.
Viscount Astor: My Lords, wheel clamping is used by the Metropolitan Police as an aid to the enforcement of parking regulations. Emergency services are exempt from parking regulations. Vehicles used by electricity, gas and water companies and British Telecom are also exempt while being used in connection with urgent repairs. However, where there is no evidence that vehicles are being used for these purposes, they could be liable to enforcement action, including wheel clamping. The Metropolitan Police practice provides that vehicles which display a British Medical Association badge will not be wheel clamped when doctors and nurses are providing care and treatment to patients away from their normal surgeries or consulting rooms, provided that details of their name and visiting address are displayed on the vehicle.
Lord Montagu of Beaulieu: My Lords, I thank my noble friend for that Answer. Is he aware that there is growing concern among the utilities and emergency services that the clamping of their vehicles is impairing their ability to respond efficiently and promptly to emergency calls? Is he further aware that British Telecom feels that dampers have got it in for its vehicles? That is borne out by the fact that I recently saw four British Telecom vehicles clamped in one street, which entailed four more British Telecom vehicles coming along to assist. Would not the use of a little more discretion by the police help out on these occasions?
Viscount Astor: My Lords, the enforcement of parking restrictions is an operational matter for the Commissioner of Police. Wheel-clamping enforcement policy is determined by the Metropolitan Police and is set out in the form of operational guidelines. Clamping crews operate under the direction of specially trained police officers who are instructed not to clamp indiscriminately.
Lord Boyd-Carpenter: My Lords, as a good deal of clamping is now done by agencies to whom it is farmed out by the police, how does my noble friend regard the enforcement of the exception that he stated that clamping must not be applied where urgent and emergency work is being done? Who controls that?
Viscount Astor: My Lords, clamping crews operate under the direction of specially trained police officers who in those circumstances would try to ascertain whether any emergency or urgent work was being done at the time.
Lord Clinton-Davis: My Lords, is the Minister aware that the House will feel mightily reassured that fire engines engaged in putting out fires will not be wheel clamped? Could there not be a problem when they are engaged on more mundane duties such as inspecting hydrants and the like? Might not those vehicles, which probably would not be deemed to be engaged in emergency duties, nonetheless be recalled for emergency duties at very short notice? Will the
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Minister look into that possibility and indeed into all the other possibilities that could arise under a policy which could be very destructive of the public duty?
Viscount Astor: My Lords, I am certainly not aware of, nor have I ever seen, any fire engines that have been wheel clamped. The police in London have guidelines. I think it most unlikely that a fire engine would be wheel clamped.
Lord Harmar-Nicholls: My Lords, what does "exemption" mean? My noble friend has said that public service vehicles are exempt from the fear of being clamped. However, we have had clear evidence from my noble friend Lord Montagu of Beaulieu that that is being done. What does exemption mean if it does not give exemption from the dangers that come from clamping?
Viscount Astor: My Lords, I said that such vehicles are exempt while being used in connection with urgent or emergency repairs. They are not exempt for the rest of the time. If the crews of four British Telecom vehicles are having a cup of tea, I am afraid that that is not an emergency.
Lord Clinton-Davis: My Lords, will the Minister ensure that in future, in order to deal with the possibility of activities not being deemed to be emergency ones, an instruction will be given that police drivers, ambulance drivers and fire engine drivers will be given enough 20p pieces, 50p pieces or £1 pieces for the appropriate meters?
Viscount Astor: My Lords, the noble Lord makes an interesting suggestion which I shall certainly pass on to the relevant departments.
Lord Winstanley: My Lords, is the Minister satisfied that the regulations are being applied impartially? Can he give any figures as to how many police vehicles have been clamped?
Viscount Astor: No, my Lords, I am afraid that I cannot. I should, however, point out that in practice any motorist may challenge a fixed penalty notice, which is a prerequisite for a clamping action, and exercise his right to a court hearing if he feels that he has been unfairly clamped.
Lord Strathcarron: My Lords, does my noble friend agree that greater tolerance should be shown towards workmen's vans which are parked outside houses when they are working inside as the tools they require are often in the van? It is quite unreasonable that they should be hounded.
Viscount Astor: My Lords, my noble friend makes an interesting point. The Metropolitan Police have a form of operational guidelines. They are issued to all police officers and traffic wardens engaged in parking duties.
Baroness Macleod of Borve: My Lords, does my noble friend agree with my noble friend Lord Boyd-Carpenter that this work has now been subcontracted to many agencies and that therefore police officers are frequently not with the clamping vehicles? That is where the trouble occurs.
Viscount Astor: My Lords, I must point out to my noble friend that clamping crews operate under the direction of specially trained officers. They cannot go out and clamp indiscriminately.

Disability Living Allowance and Disability Working Allowance Bill
3.18 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, I beg to move that the Commons reason be now considered.
Moved, That the Commons reason be now considered.—(Lord Henley.)
On Question, Motion agreed to.

Disability Living Allowance and Disability Working Allowance Bill
  COMMONS REASON FOR DISAGREEING TO CERTAIN OF THE LORDS AMENDMENTS
  [References are to Bill 28 as first printed by the Lords. The Commons Reason is printed in italics.]

  LORDS AMENDMENTS
  1 Clause 1, page 1, line 12, at end insert "a community care supplement"
  2 Page 3, line 6, at end insert ", to any one of which may be added a community care supplement payable out of the National Insurance Fund."
  3 Page 3, line 36, at end insert:
  "(5A) The weekly rate of the community care supplement shall depend on the individual circumstances of a severely disabled person. In particular it shall depend on the extent to which he is severely restricted in his ability to perform normal personal care and domestic tasks because of his disablement, on the extent of his need for help, attention or supervision from another person, on the cost of securing the required help, attention or supervision, and on such other factors as the Secretary of State may prescribe.
  (5B) For the purposes of subsection (3) above—

  (a) a community care supplement shall not be payable in addition to a payment from the independent living fund.

  (b) providing his circumstances qualify him for a payment from the independent living fund, a community care supplement shall be payable to a severely disabled person in lieu of such a payment when the payment ceases on the expiry of the life of the independent living fund Trust on or before 8 June 1993; and

  (c) payment of the community care supplement shall be disregarded for the purposes of assessing housing benefit and community charge benefit.

  3A The Commons disagreed to the above amendments for the following reason—
  Because it is not necessary to introduce a regulated benefit, since other arrangements are to be made for payments to those at present in receipt of payments from the independent living fund.
  Lord Henley: My Lords, I beg to move that the House do not insist on their Amendments Nos. 1 to 3 to which the Commons have disagreed for the reason numbered 3A.
  The House will need no reminding of the history of the issue before us today so I shall come straight to the reason for disagreeing with the amendment which the
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  noble Lord, Lord Henderson, moved in Committee. The Commons disagrees to the amendments for the following reason:
  "Because it is not necessary to introduce a regulated benefit, since other arrangements are to be made for payments to those at present in receipt of payment from the independent living fund".
  In a nutshell, the reason is that we believe there is a better way to achieve the main stated aim of the movers of the amendment; namely, to reassure people who are currently receiving help from the ILF that their position is entirely secure after April 1993. The announcement that my right honourable friend the Minister for Social Security and Disabled People made in another place on 21st May provides just that certainty about the future which the current beneficiaries of the ILF, and those noble Lords who spoke on their behalf, have been seeking. If I may, I shall return to our proposals in more detail in a moment.
  Let me first return to the amendment with which the other place disagreed. I believe that the amendment was motivated by the desire to encourage us to give the sort of guarantee that my right honourable friend has now given to the existing beneficiaries of the independent living fund. But the actual amendment went further than that; it tried to enshrine in this Bill a regulated statutory replacement for the ILF. The Government remain firmly of the view that this would do a grave disservice to the very people we are trying to help—those who are the most severely disabled. It is, I am afraid, a myth to believe that any set of regulations which the Department of Social Security might draft could possibly deliver the varied pattern of provision currently provided by the independent living fund. The 8,000 or so disabled clients for whom the ILF caters at the moment need, I suspect, 8,000 identifiably different care packages. All their needs are great, but that is about all they have in common.
  Regulated systems are necessarily about common denominators. That is fine for benefits like the new disability living allowance, which, alongside attendance allowance for people becoming disabled after age 65, will be going to close on 2 million people in two or three years' time. For all the criticisms that are made of it, the benefit system is good at delivering standard weekly amounts of benefit to very large numbers of people, provided of course that the benefits are kept reasonably comprehensible so that people have an idea of whether they will be entitled to them.
  But it is quite beyond the capacity of the benefit system to make highly sensitive, individual judgments about the needs of what is, as is universally recognised, a relatively small group of severely disabled people.
  Sir Roy Griffiths, in his report on community care, made exactly this point when he said:
  "Our social security system is essentially designed to provide a standard range of benefits for large numbers of people against objective tests of entitlement. It is not an appropriate system for the direct provision of individually tailored packages of support, within a finite community care programme".
  The Government believe that Sir Roy was right to suggest that there really had to be one single authority responsible for devising and providing these packages

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  of care. The alternative is for disabled people to be sent from pillar to post in trying to put together the help which they need, and for all the players in the game to have perverse incentives to minimise their responsibilities at the expense of others.
  If we created a statutory replacement for the independent living fund—or, indeed, if we gave the new body we are creating the scope to help people whose needs arise after April 1993—that is precisely what would happen. It would be to the detriment of all disabled people. The principle that one authority should be responsible and accountable is at the heart of the Government's community care programme. It is also quite right—indeed essential—that the single authority should be locally based. The local social service; authorities are the people with the experience and the expertise in the services from which individual packages of care must be assembled. Central government simply do not have this expertise and cannot have the detailed local knowledge required to make decisions as to the most sensible way of delivering a range of services across a given locality.
  A local authority is also much better placed to involve the disabled person in the decisions about his needs than any central bureaucracy. There is an opportunity now for organisations of, and for, disabled people to make sure that their local authority knows what disabled people in that area want, and to participate in providing the service. This is not a paper exercise. The introduction of community care involves a fundamental shift towards providing services that are truly responsive to the stated needs and wants of consumers.
  What we do accept is that it is too much to ask of local authorities to take on all the existing ILF caseload at the same time as they are being asked to develop the new services. There is no doubt that we could have engaged in protracted negotiations with each of the local authorities concerned to ensure what we have always intended—the proper protection of all the existing beneficiaries. But while we were engaging in those sorts of discussions, the ILF beneficiaries would lave been becoming increasingly anxious about their future. That was a point made very effectively by several noble Lords in our debate in Committee. I should say that my right honourable friend and I were both very much persuaded by the force of those arguments.
  That is why we decided that it would be far better to make separate arrangements for this group of people and to do so by setting up a successor body to the independent living fund to cater exclusively for them. That body will continue to operate in the same way as the ILF. It will continue to look at the needs of beneficiaries individually. Where a person's needs have increased, the new body will be able to make increased payments to enable the person to carry on living independently on the same basis as the I LF does now where that it appropriate.
  We believe that these arrangements meet—indeed, rather more than meet—the points pressed on me in Committee. I say that because the guarantee of a successor body also provides for the independent living fund to continue taking on new cases during
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  1992–93. The new body will have significantly more than the 7,000 cases which, for example, the noble Lord, Lord Henderson, referred to in Committee on 7th March 1991 when moving his amendment. The noble Lord, at col. 1505 of Hansard, was concerned about the ability of local authorities to handle the money as intimately as the present administrators of the fund. He was anxious that the money allocated to the local authorities for this purpose could get lost in the wash. We hope that the arrangements we have now announced meet this concern head on.
  The noble Lord, Lord Winstanley, was another Member of the House who argued that transitional arrangements were bound to be necessary, and enjoined your Lordships to make absolutely sure in this House that they were in place. I hope that he will agree that we have done more than make transitional arrangements: we have made a firm commitment to continue making cash payments to the beneficiaries of the independent living fund on the same basis as they are receiving them at present.
  I do not want to weary the House with too many references back to our earlier debate, but I should just like to remind your Lordships of the point made by the noble Lord, Lord Carter. He made it clear that he was not asking the Government to spend any more, but simply attempting to protect current funding and, above all, to protect the people who were benefiting from the operation of the fund.
  The other place say in their reason that they do not think it necessary,
  "to introduce a regulated benefit, since other arrangements are to be made".
  I hope that the assurances given earlier by my right honourable friend and those I have given today as regards a successor body to the ILF will be sufficient. The concerns expressed in this House were largely for existing beneficiaries. The assurances that we have given will cover them beyond 1993, as they will cover any new cases that the ILF takes on before that time. I submit that that more than meets the concerns.
  Moved, That the House do not insist on their Amendments Nos. 1 to 3 to which the Commons have disagreed for the reason numbered 3A.—(Lord Henley.)
  3.30 p.m.
  Lord Carter: My Lords, the Government's rejection in another place of your Lordships' amendments is most disappointing. As I shall explain, it will lead to great confusion and disarray in 1993 unless certain steps are taken. On Third Reading in this House I pointed out that the,
  "future protection of the grants given by the independent living fund has given enormous encouragement and a sense of relief to disabled people and their carers who now benefit from that fund. I point out most strongly to the Minister that the Government's response in another place to our amendment regarding the community care component that this House has introduced into the Bill will be a sure test of their attitude towards people with severe disabilities. With the proposals for the reform of local government and the postponement of plans for the implementation of community care, it is extremely important that the amendment we have made to the Bill in that respect should remain".—[Official Report, 15/4/91; col. 1305.]

  49
  I should make clear at this stage that we were concerned as much for the people who became severely disabled after April 1993 as we were for those already in receipt of grants from the independent living fund. But, of course, we must be thankful that the Government have undertaken to protect those who are in receipt of help from the ILF when we come to April 1993. It is fair to say that even this Government have found it impossible to take existing money away from the severely disabled.
  The successor body to the ILF, which has already been dubbed "the son of ILF" by the disability organisations, will have a crucial role to play. It is important that its role and functions are clearly spelt out. It would be helpful if the Minister could tell the House whether the successor body will be set up along similar lines to the ILF; whether it will be an independent trust; what its term will be and how many years it will have to run; how it will obtain its funds and whether they will be indexed in any way. The Minister referred to an increase in the cost of care for an individual, but inflation must be taken into account. Who will decide upon the quantum of the annual expenditure of the successor body and the disposal of that money? Satisfactory answers to those questions are essential if the interests of existing recipients of help from the ILF and the interests of those who will obtain help from the ILF between now and April 1993 are to be safeguarded properly.
  I turn now to the real problem of those who become severely disabled after April 1993 or those who, although severely disabled, are not in receipt of grant from the ILF when we reach April 1993. The Government propose that those people should become the responsibility of local authorities as part of the implementation of community care plans in April 1993. As it stands, we believe that that proposal is unworkable. We believe that direct payments by local authorities to individual disabled people to finance care packages are unlawful. The funds available to local authorities for community care are not ring-fenced. Few local authorities have the experience or expertise to design and manage the care packages required by the severely disabled. The Disability Alliance has pointed out that we shall end up with a patchwork quilt of community care for the severely disabled because, if there is a discretionary system, everything will hinge upon the principle of equity.
  From 1993 there will be people in similar circumstances, with similar needs and with the same degree of severe disability who will be treated differently according to when their need arose—whether it was before or after 1993—and depending upon the services available and the resources allocated to other forms of community care support in their local authority area and the level of demand for services in that area. As I said, we shall end up with a patchwork quilt of community care for the severely disabled.
  I should like to deal first with the possible unlawfulness of direct payments by local authorities to severely disabled people. The issue came to light
  50
  during the passage of the National Health Service and Community Care Bill. I dealt with the community care sections of the Bill and attended a meeting with the Minister responsible, the noble Baroness, Lady Hooper, and officials. It was clear that the Government were aware of the problem and would have liked to deal with it; but they did not seem to know how to do so. We were told that further consideration would be given to the problem and some solution found. So far as I am aware, nothing has happened. How does the Minister propose to deal with the problem? Local authorities are required to take responsibility for the care of those severely disabled after April 1993 but direct payments by the authorities, along the lines of those made by the ILF, may be unlawful. It will be interesting to learn how the Government propose to get around the problem. In the light of that, how will local authorities administer and implement care packages? We know that the funds available to local authorities are not ring-fenced. So how will the money required for that care be protected from leaking away into other, no doubt worthy, local authority activities? Where are the local authorities to obtain the experience and expertise to design and manage care packages?
  I have posed the problem under the three headings of legality, funding and expertise deliberately because the answer to all three could be found in the ILF successor body if properly constituted in the first place. Will the successor body's trust deed restrict its activities to those in receipt of grants in April 1993, or could it be drawn in such a way that at some future date it could be used for new applicants? Even if the trust deed is drawn wide enough to allow the newly disabled to be helped eventually, the operation of the successor body in April 1993 could still be restricted to existing recipients if the Government so determined. Thus, all the Government have to do is to provide funds for existing grants and not for the newly disabled.
  From these Benches we have made it clear that the Labour Party is committed, when in government, to ring-fence funds for community care. If the successor body were allowed to act as the local authorities' agent, rather along the lines of the purchaser/provider relationship upon which the Government are so keen for the NHS, in the implementation of community care for the severely disabled and the successor body's trust deed is drawn widely enough, the new organisation, especially if local authority community care funds are eventually ring-fenced, as they will be under a Labour Government, would provide the means to solve the three problems of legality, funding and expertise.
  I informed the Minister before the debate that I should be putting those points to him. He could go a long way towards assuaging the fears of many of us by providing satisfactory answers to those questions. We are grateful to the Government for suggesting the successor body to look after existing recipients, but we are worried about what will happen after April 1993 to the newly disabled or those who are not in receipt of a grant from the ILF. If the Minister cannot provide a satisfactory answer to the point I made on Third

  51
  Reading about the future of the ILF and the newly severely disabled, our fears will undoubtedly be borne out and the Government will bear a heavy responsibility for the unfairness, inequity and muddle that will ensue after April 1993.
  Lord Henderson of Brompton: My Lords, I hope that the Minister will not consider me churlish if I say that I cannot give wholehearted thanks for his concession, because he has only given us half a loaf. For that half, however, we are truly grateful. The decision to keep the ILF until 1993 and thereafter to create a successor body is a humane one. I congratulate the Government on making it. It will relate to those severely disabled people who are and will be until April 1993 beneficiaries of the fund. There are about 7,000 only, but they are some of the most deserving and bravest of our fellow citizens. The Government have confirmed the concept of making direct payments from central government funds. I am glad about that. What is more, disabled people will be able to direct those funds as they wish. That will ensure that they do not return or go to institutions. They will thus be able to live an independent life. For that relief, much thanks.
  However, it is disappointing that those who become severely disabled after April 1993 will not be beneficiaries of that fund or its successor body. We fear that they are likely to receive different and inferior treatment through local authority agencies. That will be the case unless the Government agree to the important amendments which were adumbrated by the noble Lord, Lord Carter.
  I can see the merits of locally based assessments. Mr. Alf Morris in another place also conceded that benefits could flow from local assessment, but those who are most knowledgeable in that field doubt the ability of local authorities to deliver the generous treatment that present funds deliver. To put it in a nutshell, that is due to the varying record of local authorities. If they had a uniformly good record upon which they could base their experience, people would be relatively happy with the Government's proposals.
  The important changes should be, first, that central government funding is dedicated, or ring-fenced, as the noble Lord, Lord Carter, suggested. I have read the proceedings in another place, and the Minister for the Disabled said:
  "Local authorities have a statutory duty to prepare plans, and submit them to the Department of Health".—[Official Report, Commons, 21/5/91; col. 815.]
  Again, he said that:
  "they must also show that they are able to respond to local needs".
  That was intended to be reassuring but I do not think that any of us who are interested in the welfare of these severely disabled people feel that that is enough without dedicated money from central government.
  We should be reassured and feel that local authority funding could work, and has a real possibility of working, if the money from central government were ring-fenced, but not otherwise.
  Secondly—and we all feel strongly about this—local authorities must be able, after 1993, to provide direct payments to severely disabled people in the same way as the independent living fund does. Then
  52
  those people can spend the money as they think fit for their personal needs and not be at the mercy of the local authority as to when or whether they can obtain personal assistance.
  As the noble Lord, Lord Carter, said, local authorities have been told that direct assistance of this kind is illegal. I ask the Minister to reply specifically to two questions under this heading. What is the position in law about direct payments by local authorities to severely disabled people? Further, if the local authorities have been correctly advised as to the law, will the Government take steps by 1993 to make direct payments by local authorities to severely disabled people legal? I should be most grateful if the Minister could answer those two questions, together with my earlier point and that made by the noble Lord, Lord Carter, about dedication of central government funds to local authorities.
  Lord Winstanley: My Lords, the Minister will recollect, as will the House, that these amendments, which were moved by the noble Lord, Lord Henderson, and which we are now asked to relinquish, were all-party amendments. They were supported by and bore the names of noble Lords from all parties and no party in your Lordships' House. They were supported in the lobbies by members of all parties. Thus in a sense this is a sad occasion. With the abandonment of the amendments we clearly see the end of the ILF. I believe that I am right in saying that nobody could have paid a warmer tribute to anything or anybody than did the Minister, Mr. Scott, to the ILF when, in the discussions in the other place on the Bill, he spoke of the wonderful work it has done. It is fair to say that the noble Lord, Lord Henley, and Ministers in our House have paid similar tributes to it. Of course, we always knew that it was only intended to exist until June 1993. Nevertheless, it is sad that it is now going.
  Like the noble Lord, Lord Henderson, I accept some of the arguments as to why it should be replaced. However, the Minister, Mr. Scott, said in the other place on these matters on 21st May 1991, at col. 794:
  "We intend to put in place a successor body to the ILF which will take on all existing beneficiaries and make cash payments to them in the same way as the ILF does now. The details of that body will have to be worked out during the coming months, but the principles are clear—the successor body will function in the same way as the ILF".
  As a rather simple person, it occurs to me to ask, if the ILF is functioning so well, why do we need a successor body? Why do we not just keep it in existence until it is no longer needed? As the Minister himself thinks so highly of it, that seems to me to be sensible. It is rather sad, in a sense, that we are not doing that.
  The quotation I have given raises two points. To emphasise what has been said by the noble Lords, Lord Carter and Lord Henderson, perhaps we may take the ring-fencing of the funds. Mr. Scott said in the passage which I have already quoted that the successor body would make cash payments to the beneficiaries,
  "in the same way as the ILF does now".
  That means that the successor body will be able to make cash payments direct to individuals. That is what he said, but it does not deal with the question of

  53
  whether or not it is ultra vires for local authorities to make those kinds of cash payments. We have an assurance that the successor body —the details of which the Minister said would have to be worked out later—will be able to make direct cash payments to beneficiaries. Perhaps we may have that confirmed.
  As regards ring-fencing, it is right to say that since the Minister stated in another place that the successor body would function in the same way as the ILF, the ILF is ring-fenced. Its funds are vested in trustees under a trust which itself ring-fences those funds for a specific purpose.
  I merely ask the Minister to confirm, first, that the successor body will be able to make direct payments to beneficiaries without any intermediaries. Secondly, I ask that the funds for that purpose shall be ring-fenced. If the Minister can give me reassurance categorically on those points, I shall be content and we shall not persist with our amendments.
  3.45 p.m.
  Baroness Darcy (de Knayth): My Lords, all I wished to say has been said. I regret very much that the other place could not agree to the amendments but I welcome the successor body and the fact that payments will still be made direct to disabled people. I endorse all that has been said by noble Lords, particularly my noble friend Lord Henderson, about the need for direct payments and for local authorities now to be empowered to make direct payments. I look forward to hearing what the Minister has to say in reply to my noble friend. I wonder whether he can agree that we should have a two-tier system to enable two-tier treatment for people in the way that they manage the most intimate and personal aspects of their lives.
  Lord Swinfen: My Lords, I too am disappointed that the other place has not seen fit to agree to these amendments. I agree with the noble Lord, Lord Winstanley, that this is a sad occasion. It is important that the severely disabled should have control over their own finances and be able to spend money as they think fit, not as some body feels it ought to be spent for them. They should be able to make their own arrangements. That will be much more difficult if the amendments are not incorporated in the Bill. I am very disappointed indeed.
  Lord Henley: My Lords, I am sorry that my noble friend is disappointed. I should have thought that we had come a long way since the Committee stage. My right honourable friend the Minister of State has come forward with a very good concession which meets a great many of the points that were made in the House at Committee stage. The concession certainly meets the principal point that the House sought protection for the existing beneficiaries of the ILF and the new beneficiaries who may appear before the ILF comes to an end in 1993.
  The noble Lord, Lord Winstanley, asked why we needed "son of ILF", as the noble Lord, Lord Carter, called it, if we already have ILF. The reason is simple and straightforward: ILF is coming to an end, as was
  54
  always the case. It had a finite date, the trust deed said that it would be wound up at that date and therefore it comes to an end. Accordingly, my right honourable friend has come forward with an alternative which, for the sake of argument, we will call "son of ILF", "new ILF", or whatever else we wish to call it. In effect, it will continue in exactly the same way or much the same way as the existing ILF. The important point is that my right honourable friend and I have given a cast iron guarantee and assurance from the Dispatch Box here and in another place that the new body will be set up and funded to enable it to operate in much the same way as the ILF does at the moment. There is the one exception that it will be restricted to those who are recipients—
  Lord Winstanley: My Lords, perhaps the noble Lord will allow me to intervene. Twice he has used the phrase "in much the same way". However, the Minister said "in the same way" twice. He said that it would:
  "make cash payments to them in the same way as the ILF does now …the successor body will function in the same way as the ILF".
  However, now the noble Lord says, "in much the same way". That seems to me to be not quite the same.
  Lord Henley: My Lords, I can assure the noble Lord that it is the same. For me to say that the successor body will operate in exactly the same way would not be right because the trust deed of the ILF states that body can take on new people. The new trust deed—what, for the sake of argument, we are calling "son of ILF"—will apply only to the existing beneficiaries of the old ILF. Therefore to say the new ILF is exactly the same as the old one would be wrong. We are trying to give an assurance to those beneficiaries of the ILF that they will continue to be beneficiaries of something that is in effect the same as the ILF after 1993, but that that scheme will be restricted—I hope this answers one of the points made by the noble Lord, Lord Carter—to existing beneficiaries and will not be extended to new beneficiaries. The noble Lord, Lord Carter, quite rightly wanted to know why the scheme was to be restricted. Our paramount concern is that existing beneficiaries of the ILF should not suffer groundless fears. It is important that they should know their future is secure.
  As I have already said, for new beneficiaries there will be community care. If we are to make a successful reality of care in the community, we must place the responsibility for that in the hands of a single authority—that is, the local authority—which is accountable for delivering the care. As I said in opening this debate, it would be wrong to have two bodies to which people could apply, as that would lead to the confusion which the noble Lord accused us of creating.
  The noble Lord, Lord Carter, also asked about the provision for the expenditure incurred by the ILF and "son of ILF". It would be wrong for me to pre-empt future decisions. Provision for 1992–93 has not yet been decided but we intend that it should be sufficient to service the existing case load adequately and to take on new cases.

  55
  The noble Lord, Lord Carter, was concerned about how long the successor body would continue. We have announced our plans for the successor body without specifying an end date. However, I can assure the House hat we have no intention of winding up that body in the foreseeable future. Obviously I cannot commit a future government to maintaining a fund for time immemorial when that fund will eventually support only a small case load.
  I come now to the question of ring-fencing community care funds. As the noble Lords, Lord Henderson and Lord Carter, will be aware, we discussed this matter last year. The noble Lord, Lord Winstanley, inquired whether the funds for the ILF would be ring-fenced. They will be ring-fenced within the ILF'. Ring-fencing entails dividing one section of local authority expenditure from another and only allowing a local authority to spend on a department the funds that have been allocated for that department.
  I doubt whether I shall convince noble Lords opposite of the validity of my argument, as I know we argued this point long and hard last year. However, in my view, it is the worst of all possible worlds to give responsibility for services to local authorities but then to tie their hands as regards how they use funds to deliver services. I hope all Members of the House will agree that the best way to ensure that local authorities deliver the kinds of services which disabled people want is for disabled people to take the opportunity now to make their views known. Every local authority is required to publish its community care plans by April 1992. Over the coming months the best thing we can do is not to complain in advance about what local authorities will or will not deliver—the noble Lord, Lord Henderson, implied that they would not be able to deliver certain services—but rather to encourage local groups of disabled people throughout the country to make sure that in their areas the people who are responsible for delivering community care services are left in no doubt about the kinds of services disabled people and their carers want.
  The noble Lords, Lord Henderson and Lord Carter, made some further points. They wanted to know whether cash payments by local authorities are unlawful. Legislation does not provide for local authorities to make payments in cash to disabled people. To allow both central and local government to make cash payments for the same purposes would be both confusing and impractical. Again we rehearsed this argument last year during the passage of the National Health Service and Community Care Bill through both Houses. The Government firmly rejected that idea then and remain of the same view. What is important is that the services must be in place and available to those who need them. The services must also be delivered in a way that is responsive to the needs and preferences of the individual.
  Lord Carter: My Lords, how exactly are the local authorities to administer and implement the care package? A newly severely disabled person cannot apply to the ILF successor body because the Government have said that body cannot help those who are newly severely disabled. The Minister has
  56
  confirmed that it will be illegal for local authorities to make direct payments to severely disabled people to organise and manage their care packages. How exactly wilt a newly severely disabled person obtain help from his local authority after April 1993?
  Lord Henley: My Lords, local authorities will put together care packages. However, a local authority cannot act in the way the ILF acts and make direct payments to the severely disabled person. The local authority will put together a care package but it will not have the power to make grants. I do not think it would be right for a local authority to start acting in effect like a mock social security department. Local authorities will put together packages but they will not make grants. It is the role of local authorities to ensure that the full range of services is in place for all the disabled people in their areas under the community care proposals and then to monitor the effectiveness of such services to ensure that people are receiving them.
  Lord Carter: My Lords, I wish to get this matter absolutely clear. Before April 1993 a severely disabled person who is in receipt of help from the ILF is deemed to be responsible enough to organise his own care package and receive his money directly, but after April 1993 the newly severely disabled person will not be allowed to do this even though he may live next door to a person who, due to this fluke in the law, is receiving a care package. During the passage of the National Health Service and Community Care Bill we were told that the Government proposed to deal with this problem. It seems extraordinary to me that they are not able to do so.
  Lord Henley: My Lords, this is not a fluke in the law. We believe that the paramount concern is to protect the existing beneficiaries of the ILF. We do not regard local authorities as being appropriate bodies to make payments, nor do we believe that there should be two bodies after 1993 other than the successor body to the ILF. That successor body will continue to look after existing beneficiaries. I believe this is the only fair way forward even though, as the noble Lord quite rightly says, some people who have applied to the ILF before 1993 will be treated differently to those who apply after 1993.
  Lord Henderson of Brompton: My Lords, the provision is manifestly unfair. The Minister has just said that it is fair but it must be unfair that one severely disabled person may receive direct payments while his next door neighbour who is severely disabled too may not. That situation is manifestly unfair. I do not understand the argument that local authorities should not be able to make direct payments on the basis that only central government should be able to make direct payments, as, after all, the money comes out of taxpayers' pockets. Why should a differentiation be made between two people who are perhaps disabled in an identical way? Why should one receive direct payments and all the convenience that goes with that in terms of independent living while the other does not? That position is manifestly unfair.
  Lord Henley: My Lords, the noble Lord is starting at the wrong point. The important point to remember is that we feel it is wrong that after 1993 both the ILF and local authorities should deliver new grants. If that were the case there would be the perverse incentive—I mentioned this in opening this debate—for all authorities to try to shift the burden from one body to another body. However, because of the anxieties expressed in this House, particularly in relation to existing beneficiaries of the ILF, we recognise that those beneficiaries may be in an invidious position after 1993 in that local authorities would not necessarily want to take them on. Therefore, we have provided a package to protect existing beneficiaries of the independent living fund. Those who have to seek such help after 1993 will go to their local authority, which will produce a package to look after them. I appreciate that that is different but it is the only way round the problem without preserving a system such as the ILF for new beneficiaries after 1993, which I do not believe is the right way forward.
  4 p.m.
  Lord Henderson of Brompton: My Lords, I understand how the noble Lord and the Administration have come to that conclusion. However, perhaps he will consider the other end of the process and the intrinsic unfairness of the arrangement to the recipient. If the noble Lord would say that he will keep an open mind about the matter or reconsider it in the light of what I have said, I should be most grateful.
  Lord Henley: My Lords, I am certainly prepared to keep an open mind. However, the noble Lord is asking that we should allow the local authorities to make direct grants rather than provide services. That is something that I and my right honourable friend and the Department of Health would be prepared to keep in mind, but I can give the noble Lord no assurances whatever. I appreciate that the noble Lord may think that the system is not as fair as he would like it to be, but if he starts from the premise that only one type of body should exist after 1993 he will reach the same position as I have.
  There were complaints that we had given only half a loaf in reaching this compromise after your Lordships' House passed the amendment moved by the noble Lord, Lord Henderson, at the Committee stage of the Bill. I feel that we have come back with more than half a loaf and with a very generous compromise which meets the demands of the noble Lord, Lord Henderson, and the noble Lord, Lord Carter, both of whom said that they were particularly concerned about existing beneficiaries and could not understand why we objected to the amendment at Committee stage if it would not lead to increased cost. Bearing that in mind, I maintain that this is the full loaf, or very nearly the full loaf, which the noble Lord sought.
  Perhaps I may briefly remind the noble Lords, as I think I did at Third Reading, that your Lordships' House also achieved considerable success on many other aspects of the Bill. Noble Lords will remember
  58
  the longstanding problems of definition that we had in relation to the 9,000 or so severely mentally handicapped people on which the Government were able to come forward with a concession. Noble Lords will also recall that we accepted representations made on behalf of blind people to ensure that the new provisions for the lower rate of mobility component would not disadvantage those independently minded people who had learnt to cope out of doors on familiar routes. Noble Lords will also remember the concession that I was able to make on doubling the capital limit of DWA.
  Bearing that in mind and the virtually full loaf—and certainly more than half a loaf—that we have been able to bring forward, I hope that noble Lords will accept the reason of another place and not insist on the amendments.
  On Question, Motion agreed to.

Mental Health (Detention) (Scotland) Bill
4.3 p.m.
Brought from the Commons; read a first time, and to be printed.

New Roads and Street Works Bill [H.L.]
4.4 p.m.
The Minister of State, Department of Transport (Lord Brabazon of Tara): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(Lord Brahazon of Tara.)
Lord Clinton-Davis: My Lords, I have taken the unusual course of speaking on this Motion because of a serious state of affairs which occurred in another place which, in my submission, amounts to a breach of faith, a breach of undertaking, on the part of the Government. I feel that the Minister should be given the opportunity to hear what we have to say about this matter, which concerns Amendment No. 85 relating to Clause 90, so that he can have a further opportunity to reflect on the situation in order to remedy the mischief that has arisen.
Although I have intimated my anxieties about the matter to the Minister— and he will acknowledge that —I understand that he is unable to respond positively to the submissions which I have made to him. I hope that that will not be the case because the issue that I want to rehearse before your Lordships now is not a party issue. It is germane to the measure of co-operation which the Government can seek to enlist on the part of local authorities, which is a matter which goes to the heart of the implementation of the Bill.
The Bill started its passage in this House. Parts III and IV of the Bill were based essentially on the recommendations of the Horne Report of 1985 which produced a package of measures. A consensus was built between the public utilities and the highways authorities. That consensus was reinforced by the Government's own response to the Horne Report four

59
years or so later in 1989 and by discussions which continued right up to and during the passage of the Bill through this House and in another place.
Over and over again during the passage of the Bill the noble Lord, Lord Brabazon, stressed how unwise it would be for this House in its deliberations to unravel that hard fought consensus. He emphasised that the goodwill of the public utilities and the highways authorities, which had taken a considerable amount of time and effort to procure, should not be endangered and was required to implement the Bill successfully.
All that is being put at risk by a capricious action on the cart of the Minister for roads in another place. That action has given rise to great anxiety on the part of all the local authority organisations, Conservative and Labour-led alike. They have taken the unusual step of sending a letter of protest—in the case of the public utilities on the 10th of this month and in the case of the local authority organisations on the 11th of this month—to the Prime Minister and to the Secretary of State for Transport. Such highly authoritative organisations do not act in that way unless they have grave cause for concern.
Moreover, the action that has been taken must have caused considerable embarrassment to the noble Lord, Lord Brabazon, who is, so far as I am concerned, guiltless in this matter. I have made that plain to him in personal conversations. I make it plain on the Floor of the House today.
So that your Lordships can appreciate what has happened I should like to set out briefly the background to the threatened clause, Clause 90. Responsibility for the final reinstatement of holes in the road is transferred under Parts III and IV of the Bill from the highways authorities to the public utilities, as recommended by the Home Report. That was accepted by the local authority organisations. The quid pro quo in the package, which was accepted by Home and by the Government in their 1989 response, was that, as considerable expertise had been built up by the workforces of local authorities in that sphere of activity, the public utilities should be able unequivocally to invite local authorities to tender for the work.
The Government agreed that they would make provision in the Bill to deal with that situation. Initially, the Bill omitted that provision, but, in order to meet: the concerns that were expressed by the Opposition and, more importantly in this instance, by the local authorities and the public utilities, the noble Lord, Lord Brabazon, undertook to remedy the omission. To his great credit, having presumably consulted his colleagues—it is inconceivable that he would not have done that—he honoured that undertaking to the letter in Committee. Hence we have Clause 90. The House accepted the amendment without demur. No one spoke against it.
Perhaps I may make it clear that the new clause gave no new powers to local authorities. It simply made it clear that, when a public utility invited tenders to carry out works for it or on its behalf, local authorities would encounter no legal impediments in tendering for that work. It left no legal doubt about their ability to do that, as there had been something of
60
a question mark over the matter. As a result, local authorities acquired no new rights in insisting on being able to undertake the work and no rights about being included on the tender list of a public utility. That was the situation when the Bill left your Lordships' House.
The amendment that was proposed by Mr. Riddick and opposed by Mrs. Ruddock—I hope that that does not lead to any confusion—in the other place provided the Secretary of State with the power to cause Clause 90 to cease to have effect. Admittedly, it is dressed up in a form of words that camouflages some of the intention, but that is the reality. When the Minister decides that it should cease to have effect after a transitional period—that period is not specified; no idea is given as to how long that will be —it can come to an end. That is what has given rise to the protest.
The Minister in another place should have honoured what his noble friend in this House agreed to unequivocally instead of fatally undermining his action. Instead, he accepted the amendment. He asserted that he envisaged that the power provided for in the amendment would be used after a transitional period. The question of a transitional period was totally new. It was never mentioned in this place by the noble Lord, Lord Brabazon. It was a totally fresh argument.
The weakness of the Government's position is emphasised by the specious arguments that were adduced by the Minister in another place. He said that the Horne Report had been completed a long time ago. A good deal of water had passed under the bridge since then. That is true. The Home Report was completed in 1985, but discussions have gone on incessantly since that time. There was nothing in those discussions that envisaged any departure from the Home Report in that significant way. Apparently, the Minister could not have noticed that it was the noble Lord, Lord Brabazon, who accepted the position in Committee in this House. It was his amendment, not ours, and it was accepted without demur.
The Minister in another place argued that it was wrong in principle for highway authorities to work for private concerns other than for a transitional period. That argument was not adduced here either. It is an argument of convenience. The local authorities should be required to facilitate the implementation of the new legislation and should then bow out, during which time they would be put to considerable financial expenditure in order to do that. That argument, therefore, will not wash.
Whether privatised or not, the public utilities should be able to serve their customers in the most profitable way. That is being denied to them under the terms of the amendment. Is it not conceivable to the Government that the direct labour organisation of a local authority could help a public utility to fulfil its responsibilities under the legislation more effectively and more profitably with the expertise that it has accumulated over the years? Why deny the public utilities that opportunity? That is what the public utilities themselves ask of Ministers.
The noble Lord envisaged no such argument when he spoke on the matter. It is therefore our case that

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this was an unprincipled argument which was wrongly accepted by the Minister in another place and which should be put right here. I am advised that it is unusual for the House to take that course of action, but the circumstances that give rise to the present position are unusual. It is for the Government to seize the opportunity. It may be inconvenient for this Bill to go back to another place at this late stage, but that is no argument when it comes to curing something that has occurred in that way.
I therefore hope that your Lordships on all sides of the House will agree with me that it is not a simple party point. I am not making it in that way. An unequivocal commitment has been given. I can express it no better than the noble Lord himself who said in Committee:
"The amendments fulfil an undertaking I gave at Second Reading to the noble Lord, Lord Underhill. I said then that highway authority direct services organisations would be allowed to tender for work. Doubts have been expressed, although we were clear in our own mind that they would be able to do so. However, as doubts had been expressed, we tabled these amendments".—[Official Report, 6/12/90; col. 281.]
What was said in another place ran completely counter to that unequivocal assertion, and it is wrong. It is wrong that it should have happened. It is wrong that the noble Lord should have been embarrassed. The arguments that have been adduced in support are utterly spurious.
The Government in another place were reckless as to the consequences of what they did. They failed to appreciate the reliance that was stated over and over again by the noble Lord about the need for future co-operation from local authorities and public utilities in relation to the Bill. They were reckless as to the need for co-operation in many other fields. That has been put in jeopardy by what has happened here on what one would have thought was an innocuous, though important, and uncontroversial Bill. It has been contemptuous of the Minister, but, more than that, it has been contemptuous of your Lordships. I therefore argue that the Government should take the opportunity to reflect further on the matter at this late stage. That is why I have drawn these matters to your Lordships' attention at this stage before we reach Clause 90 and Amendment No. 85.
4.15 p.m.
Lord Tordoff: My Lords, as someone who took part in all the proceedings on the Bill, perhaps I may intervene at this stage. I apologise to your Lordships for the fact that I shall not be able to stay throughout the whole of the discussions on the Commons amendments. The reason for that is entirely your Lordships' fault, if I may say so, in that you decided that I should be a member of the Committee considering the Committee procedures of your Lordships' House which meets at half-past four. Since it is an important committee I think that it has to take some precedence over the other amendments in this Bill. However, I want to support in principle the remarks of the noble Lord, Lord Clinton-Davis, about the very unfortunate situation with which your Lordships' House is faced.
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This was largely an uncontroversial Bill. As the noble Lord, Lord Clinton-Davis, said, a lot of thought and work has gone into it and a lot of compromises have been made. In relation to virtually every other amendment before the House this afternoon, the Government have done an extremely good job. The honourable gentleman in another place, Mr. Freeman, did a lot of work on it even after the Bill had left your Lordships' House. It emerges from the Commons for once, if I dare say so, in a better state than when it went there because further compromises were made. So it is a good Bill. It is just this one single item in relation to Clause 90, which in itself may be considered annoying and minor but nevertheless of some significance. It has upset the balance between the powers of the utilities and the highway authorities.
But for this House the matter is more serious than that, as the noble Lord, Lord Clinton-Davis, suggested. Like the noble Lord, I totally absolve the Minister from any shadow of guilt in this unfortunate matter; he has behaved with absolute integrity from the beginning of the Second Reading of the Bill throughout the whole process. His words at Second Reading, speaking about the noble Lord, Lord Underhill, were:
"The noble Lord asked finally about direct labour organisations being allowed to tender for the work. In their original response to the Horne Report, the Government accepted that although local authorities would no longer have the statutory right to supervise utility works or carry out the permanent reinstatement, they would continue to be able to tender for utility reinstatement works if they wished. That remains the position, and suitable provision will be made". [Official Report, 20/11/90; col. 674.]
Suitable provision was made and all credit must be given to the noble Lord, Lord Brabazon of Tara, for allowing that provision to be made.
It may be argued that the amendment tabled in another place caught the Government by surprise. I believe that there is more a degree of inadvertence than of conspiracy in this matter. Nevertheless, your Lordships' House is faced with a situation which is rare and which I believe should never happen; namely, that an assurance is given to this House that the Government will accept certain matters and it is not honoured. This Chamber will not work if the Opposition parties, Cross Benches and, indeed, the Government Back Benchers cannot accept assurances when they are given. Frankly, for them to be overturned when the Bill reaches another place is unacceptable for the working of this Chamber.
It may be argued that the amendment that was moved is a minor provision which need not be put into operation if the Secretary of State so decides. Nevertheless, it has changed the whole meaning of the amendment and what the Minister said at Second Reading; namely, that the Government maintain this position and have done so all along. The Government's position now is that they will maintain this position until they decide to change it, and that is a very different situation.
I am very glad that the noble Lord the Leader of the House is in his place. This is a matter which touches on his role as leader of not just the Government party but all Members of your Lordships' House. I do not wish to go any further but this is a serious matter.

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Perhaps we shall go into a little more detail when we come to Amendment No. 85. In the meantime, I hope that the Government can step back from what I believe is a very dangerous position.
Lord Mason of Barnsley: My Lords, I should like briefly to intervene and support the protest made by my noble friend from the Front Bench. As the Government know, the Association of Metropolitan Authorities made an agreement with the Government that in this New Roads and Street Works Bill, in Clause 90 as originally drafted, the direct labour organisations within local authorities would have the right to tender for reinstatement work. We should note that it is to tender only and not to carry out the reinstatement work as of right. It is just the right to tender.
In the original draft of the Bill, the agreement of the AMA and the Government was honoured but now, owing to a Back Bench Tory amendment in another place, the Government are about to renege on the deal and give the Minister the power, if Amendment No. 85 is carried today, to allocate all the work to private contractors and the DLOs will be squeezed out altogether.
This will be seen as a blatant anti-local authority act. It destroys the package that was agreed by the AMA and the Government. It breaks a promise that local authorities would have the right to tender. It will certainly sour the working relationships between all local authorities and the Government. It is a breach of a deal and the Government will be accused of cheating. Therefore, before Clause 90 is reached, I believe that the Government should think again.
Lord Renton: My Lords, perhaps I may very briefly comment. I find it strange that on the Question of whether the Commons amendments be now considered we should enter into a full debate—as has been attempted—on just one of those amendments; namely, Amendment No. 85. I should have thought it usual to wait until we reach that amendment and then consider it on its merits. The idea that we should postpone consideration of this vast mass of amendments, which are agreed, merely because eventually we may come to one with which some Members disagree is an unusual proceeding in your Lordships' House.
Lord Clinton-Davis: My Lords, perhaps the noble Lord will give way for a moment. Does he appreciate that what I said—I did it with a not very happy heart —was to give the Minister, even at this late stage, an opportunity to hear what has been said and reflect further on it? If we had done that in relation to the debate itself, no such opportunity would have arisen. That is why I spoke.
Lord Renton: My Lords, all I shall say in reply is that the Minister is quite capable of defending himself when the right moment arrives.
The Lord Privy Seal (Lord Waddington): My Lords, I shall do my best to assist the House. I understand full well that there are strong feelings about the decision made by the Government to accept an amendment to
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Clause 90 in another place in the light of what was said by my noble friend Lord Brabazon in this House. But it is right, as the noble Lord, Lord Tordoff, said, that we are now discussing one single matter concerning Clause 90 and nothing else at all in the case of a Bill which, in the words of the noble Lord, has in fact been improved in another place when debated there.
Surely the simple question that we must ask ourselves now is whether we should proceed in the normal way to debate the amendments to the Bill, and in particular the amendment carried in another place to Clause 90, or whether we should take the wholly exceptional course of refusing to consider the Commons amendments at all. I respectfully submit that the latter course would be most unusual and also not very profitable.
Your Lordships want to discuss whether in fact it was right for the Government to accept the amendment to Clause 90 in another place. If we can now proceed with discussing the amendments which are before the House, in due course those noble Lords who feel strongly that it was wrong for the Government to accept an amendment to Clause 90 in another place will be able to say so in debate. If noble Lords still feel dissatisfied with the explanation given by my noble friend Lord Brabazon at the end of the debate they can show their dislike of the Government's decision in another place by voting against the amendment to Clause 90 in the Lobby of this House. That is surely the correct way to approach the matter.
As has been said by the noble Lords, Lord Clinton-Davis and Lord Tordoff, no one accuses my noble friend of having behaved improperly in any way. My noble friend stated the Government's position as it was when the Bill was before this House. Subsequently the Government decided to change their position and accepted an amendment tabled in another place. Your Lordships now have to consider whether or not the Government were right to take that course. The right place to take that decision is surely after debate on the amendment to Clause 90.
4.30 p.m.
Lord Cledwyn of Penrhos: My Lords, I know that the House will be grateful to the noble Lord the Leader of the House for his intervention at this stage. Nevertheless I strongly believe that my noble friend Lord Clinton-Davis is fully justified in raising the matter at this stage in view of the treatment accorded to Clause 90 when the matter was before another place.
This is not a run-of-the-mill complaint against a clause in the Bill. My noble friend has raised an issue of considerable principle which this House will certainly wish to consider between now and the debate on Clause 90. When Clause 90 is debated the Minister may say that there is no time to consider the issue. My noble friend has given the House time to pause and to consider the implications.
The narrow point that I wish to make is this. The Bill has been welcomed by Members on all sides of this House. We appreciate the Bill. When my noble friend Lord Underhill raised the matter in the House, the

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noble Lord, Lord Brabazon, having considered what was said, made a response that was welcomed in all parts of the House. We are grateful to him for that. We absolve the noble Lord from any blame whatsoever. He has always proved himself to be a most honourable Member of this House and a most honourable Minister; we all appreciate that.
Having said that, from my experience of 40 years in both Houses, I take the view that the way in which this matter was dealt with in another place was disgraceful. The matter should not have been dealt with in that way. There is much that I could say but do not wish to do so at this stage. The efficacy of this important Bill depends on the maintenance of trust between the Government, local authorities and the utilities. The Bill will not work unless that trust exists. The action of the Minister for Roads in the House of Commons has breached that trust and created a feeling of dissatisfaction and insecurity which was summarised in the letter which the local authority associations sent to the right honourable gentleman the Prime Minister.
In those special circumstances, my plea to the noble Lord the Leader of the House and his noble friend Lord Brabazon, is that the matter be given very careful thought before we begin to debate Clause 90. I make that plea as strongly as I possibly can. Such a situation does not arise all that often but where we have an important Bill which has support from all parts of the House, we should do our very best to ensure that it reaches the statute book without flaw and without complaint. Therefore I plead with the noble Lords opposite again to consider the matter very carefully.
Lord Boyd-Carpenter: My Lords, perhaps I may put to my noble friend the Leader of the House the possibility of deriving advantage from the admittedly unusual procedure that your Lordships' House has been following for the past few minutes in raising this matter on the Motion to consider the Commons amendments.
If the Government wish to give further thought to the matter and in view of its obvious importance with regard to relations between the two Houses, this procedure gives an opportunity before we reach Amendment No. 85 for either my noble friend the Leader of the House or my noble friend Lord Brabazon to consult with the Secretary of State and the department to see whether or not it would be wise in the circumstances to insist on the Commons amendment.
Having had some ministerial experience, I fully understand that it would be extraordinarily difficult for the Minister to give such an undertaking straight away. He must consult his right honourable friend. However, we shall no doubt take a few minutes while considering Commons amendments to reach Amendment No. 85. Therefore there would be an opportunity for him urgently to consult either with the department or, preferably, with his right honourable friend. I suggest that noble Lords from all quarters of the House are unhappy about the situation not because of the intrinsic importance of the matter but because it seems to go against the normal procedures
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which govern relations between the Houses. I am sure that my noble friend the Leader of the House is anxious above all to prevent that.
Can we not therefore be given an indication that in the interval—whatever length it may be—before reaching Amendment No. 85, my noble friend Lord Brabazon will consult his right honourable friend or the department to see whether they wish to insist on the amendment?
Perhaps I may further suggest that, if we reach Amendment No. 85 too quickly, it will be perfectly possible by a Motion to defer the taking of that amendment until the end of proceedings.
Lord Waddington: My Lords, I take note of what my noble friend says. Obviously we shall make what use we can of the time available between now and reaching that amendment. However, at the end of the day your Lordships will have to make a judgment as to whether the amendment to Clause 90 is right or wrong. We must hear the arguments on the merits.
Lord Tordoff: My Lords, before the noble Lord sits down, can he give us some comfort? He speaks as Leader of the House. I was careful not to go into the details of the amendment. I did not seek to put my argument on that basis. As his noble friend Lord Boyd-Carpenter has indicated, and as the noble Lord the Leader of the House realises, the issue goes far beyond the amendment. It goes to the relationship between various parts of this House, and between this House and another place.
Therefore I beg the noble Lord to put on his hat as Leader of the House and to give the House some comfort by stating that he understands the difficulty that we face. That does not relate to the merits of the amendment but to the procedural difficulty which exists because a promise which has been given by a Government Minister in this House has been at least partially overturned in another place.
Lord Waddington: My Lords, with the greatest respect, there is no procedural difficulty whatsoever. It is in noble Lords' hands now to decide whether or not they like or dislike the amendment to Clause 90 which was carried in another place.
My noble friend Lord Brabazon stated the position at the time of the debate in this Chamber. Subsequently an amendment was moved in another place and, perfectly correctly, I would submit, the Government made a decision as to whether to accept the amendment. They decided to accept that amendment and it is now for your Lordships to say whether or not you believe that the Government were right to accept it. There is nothing more in the matter than that.
Lord Campbell of Alloway: My Lords, with respect to the noble Lord the Leader of the House, having listened to this, surely there is very much more to the matter. The noble Lord the Leader of the House asks: is this amendment right or wrong? However, that is not the question which has been before your Lordships' House. The question is: ought, in the circumstances and having regard to comity between the two Houses, this amendment to have been made at

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all? That is the issue, and it is on that issue that noble Lords on all sides of the House are pleading for time and accommodation.
We are masters of our own procedure. We can do what we like. We could adjourn the House if the House so wished. We have asked for time. Surely we could be given time in which to consider the situation and the Government likewise could be given time to consider it. Noble Lords with great experience who have held office— I have never held office and never shall—have given their views; one defers to them and hopes that some accommodation may be reached.
Lord Waddington: My Lords, in answer to my noble friend Lord Boyd-Carpenter I have already said that we must make what use we can of the time available between now and when Clause 90 is reached. If your Lordships do not wish to deal with Clause 90 when it is reached, again that is a matter which lies in your Lordships' hands. I am perfectly prepared to accept the suggestion made by my noble friend Lord Boyd-Carpenter.
Lord Shepherd: My Lords, will the noble Lord the Leader of the House indicate whether the Government would accept such a Motion? There has been a debate on this matter and those who are present here understand the issue. This is not a full-time House and many noble Lords who are present have other occupations. A debate may take place when those present may have no cognisance of the issue.
As there is no great pressure upon the House in terms of legislative time, if the noble Lord the Leader of the House would indicate that the Government will accept such a Motion, I think that most noble Lords would be more than satisfied.
Lord Waddington: My Lords, I have already said that I am happy to accept the suggestion made by my noble friend Lord Boyd-Carpenter. There is a Motion before the House now. It is the Motion which is objected to by the noble Lord, Lord Clinton-Davis. Of course it is perfectly open to the House to continue with the debate on the Motion that this House should consider the amendments. However, I have already recommended to your Lordships that that would not be an appropriate course because I can now follow the suggestion made by the noble Lord, Lord Boyd-Carpenter. We can proceed with the business of the House in the normal way and, when we come to Clause 90, noble Lords will be able to express their views on it.
On Question, Motion agreed to.

New Roads and Street Works Bill [H.L.]
  COMMONS AMENDMENTS
  [The page and line refer to [Bill 85] as first printed by the Commons.]

  COMMONS AMENDMENT
  1 Clause 1, page 2, line 10, leave out 'amount' and insert 'compensation'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. I hope that the noble Lord, Lord Underhill, will be grateful to see this amendment on
  68
  the Marshalled List. It follows a line of reasoning that he urged on me at Report stage and uses the same word, "compensation", as is used in the parallel Clause 1(4) and in the Scottish Clauses 25(7) and (8). There were subtle legal nuances which led to our original drafting and I tried to explain them to the noble Lord. But when a similar point was pressed in another place, my honourable friend was able to accept it. It has never been our intention to create a compensation system which favoured the concessionaire over the highway authority, and we are now happy that to use the word "compensation" in Clause 1(5) would be correct in the context of costs actually incurred. I beg to move.
  Moved, that the House do agree with the Commons in their Amendment No. 1.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  2 Page 2, line 16 leave out subsection (6)
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. I shall speak also to Amendments Nos. 7, 8, 15, 19, 22, 23 and 35.
  Your Lordships may recall that at Report stage I introduced an amendment requiring the Secretary of State to make an annual report to Parliament, stating the number of concession agreements entered into by him and the number of new concession roads opened for which he is the highway authority. A similar amendment was made for the Scottish Secretary of State to report on Scottish concession roads.
  During debates in another place it was suggested that the report should cover all toll orders made under this Bill, whether in relation to concession roads or not, and including toll orders on local authority roads, which the Secretary of State must confirm. The Minister was happy to accept that suggestion, and these amendments are the outcome. The main amendment is No. 15, the new clause. Amendment No. 35 is the equivalent new clause for Scotland and the other amendments are consequential. I beg to move.
  Moved, that the House do agree with the Commons in their Amendment No. 2.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.
  4.45 p.m.

  COMMONS AMENDMENT
  3 Clause 3, page 3, line 28, leave out subsection (4) and insert:
  '(4) The concessionaire may issue a notice under section 14 of the 1984 Act (temporary restriction or prohibition of traffic) having the same effect as a notice issued under that section by the traffic authority.
  The Secretary of State may by regulations make provision excluding in relation to such a notice issued by a concessionaire the provisions of the 1984 Act relating to—

  (a) the procedure in connection with the issue of the notice,

  (b) the maximum duration of the notice, and

  (c) the making of provision in relation to alternative roads,

  and making instead such other provision as appears to him to be appropriate.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. I shall speak, with the leave of the House, also to Amendments Nos. 37, 62, 63, 126 and 127. These are purely drafting amendments. They concern references to provisions in the Road Traffic Regulation Act 1984 which are also affected by the Road Traffic (Temporary Restrictions) Bill. That Bill has been passed in another place and is being taken through this House by my noble friend Lord Brougham and Vaux. It is a useful measure, and I wish it every success. The provisions concern the temporary restriction of traffic. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  4 Clause 5, page 4, line 36, after 'agreement' insert 'terminates or'
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 4. I shall speak also to Amendments Nos. 6, 20, 21, 26 and 27. These are technical amendments intended to improve the provisions relating to the termination of concessions and the making of extension toll orders, and to correct small discrepancies in the drafting of the relevant clauses.
  The clauses relating to extension toll orders—Clause 12 for England and Wales and Clause 28 for Scotland—were added in this House at Report stage. It was intended that extension toll orders must always come into force as soon as the existing tolling power expires. But the clause, as drafted, overlooked some of the possible circumstances and these amendments fill the gaps. I beg to move.
  Moved, That the House do agree with the Commons in their Amendment No. 4.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  5 Clause 11, page 7, line 33, at end insert:
  '( ) A toll order may not be varied so as to extend the toll period; and a toll order which does not authorise the charging of tolls in respect of the whole length of the special road to which it relates may not be varied so as to extend the length of road in respect of which tolls may be charged.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 5. I shall speak also to Amendments Nos. 17, 25, 166, 167 and 197 to 200.
  These amendments deal with a matter which I recall was mentioned at earlier stages in this House. It may sometimes be expedient to include in a toll road a piece of existing free road. We do not want to rule that out entirely, but we want to ensure that there are adequate safeguards for those who have a right to use the existing road. These amendments will serve that purpose.
  The main amendment in the group is No. 166. This would make a toll order which would affect any length
  70
  of existing free road, no matter how small, subject to special parliamentary procedure, unless some alternative free road were provided. That is similar to what happens when common land is acquired under statutory powers—some other land has to be provided in exchange, and if it cannot be, the compulsory purchase order is subject to special parliamentary procedure. That would involve setting up a joint committee of both Houses to hear outstanding petitions. The order could not come into effect unless and until the Committee approved it, or (as happens only extremely rarely) a confirmation Act were passed by Parliament.
  If the concessionaire is not able or prepared to provide a new piece of free road in addition to the toll road, one other possibility is open. He may obtain a toll order which still allows free use of the piece of existing road with suitable access to the free network at either end, of course. So traffic using this stretch and no other part of the concession road would not have to pay any toll. The second part of Amendment No. 5 (following the semicolon) ensures that an order of this kind, once made, cannot then be extended to allow tolling on the other sections of the road.
  Where there is already a suitable alternative road, or where the concessionaire is providing one, the Secretary of State may issue a certificate to that effect. The rest of Amendment No. 166 and much of Amendment No. 167 are concerned with the procedures for this certification. There will be an opportunity to make objections, which can be heard concurrently with those relating to the order itself so as not to be a source of additional delay in providing the road.
  Moved, That the House do agree with the Commons in their Amendment No. 5.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  6 Clause 12, page 8, line 9, leave out subsections (3) and (4) and insert:
  '( ) Any extension toll order must be made so as to come into force not later than—

  (a) the end of the toll period under the previous toll order, or

  (b) where the concession agreement terminates or is terminated before the end of that period, two years after the termination of the agreement,

  whichever is the earlier.'.
  7 Page 8 line 20, leave out 'and'.
  8 Page 8 line 21, at end insert ', and section (Annual report on concession agreements and toll orders) (annual report by Secretary of State).'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 6 to 8 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 6 to 8 en bloc. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  9 Clause 13, page 8 line 36, leave out from beginning to end of line 41 and insert:

  71

  '(a) a police vehicle, identifiable as such by writing or markings on it or otherwise by its appearance, if being used for police purposes;

  (b) an ambulance as defined in section 4(2) of the Vehicles (Excise) Act 1971;

  (c) a fire engine as so defined;

  (d) a vehicle exempt from duty under that Act by virtue of—

  section 4(1) (g) of that Act (invalid carriages),

  section 4(1) (kb) of that Act (vehicles used for carriage of disabled persons by recognised bodies), or

  section 7(2) of that Act (vehicles used by or for purposes of disabled person).'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I shall speak also to Amendments Nos. 10, 11, 28 to 30 and 32.
  Noble Lords will recall that, when the Bill started out in this House, no category of vehicle was expressly exempt from tolls; our policy was to leave everything to individual toll orders. However, my noble friend Lord Swinfen persuaded the House to add a provision to Clause 13 so that every toll order must exempt those disabled persons' vehicles that are exempt from vehicle excise duty. This reached its final state at Third Reading in this House, and I undertook to see to it that amendments were tabled in another place to bring the Scottish provisions into line with those for England and Wales. That is the purpose of Amendments Nos. 28 and 29.
  Ministers in another place were persuaded that there is an equally strong case for adding exemptions for emergency vehicles. That is the purpose of Amendment No. 9 (for England and Wales) and Amendment No. 30 (for Scotland). I think the House will agree that they improve the Bill.
  Moved, That the House do agree with the Commons in their Amendment No. 9.—(Lord Brabazon of Tara.)
  Lord Clinton-Davis: My Lords, I wish to mention a small matter. I understand that there is an ambiguity in the situation at present as regards the police authorities. The Greater Manchester and West Midlands police authorities have made formal representations with regard to the matter.
  On Report in another place the Minister acknowledged that the Bill did not prevent a highway authority from reaching agreement with a concessionaire in relation to paying for policing costs. I understand that that is what the police authorities want. Is the Minister satisfied that the police authorities are happy about the situation and that there is no room for ambiguity?
  Lord Brabazon of Tara: My Lords, the noble Lord raises a rather different point on the question of police costs on future toll roads. These amendments only allow police vehicles to go on the roads free of charge. The question of police costs was debated when the Bill was before your Lordships. As the noble Lord says, we are receiving representations from police authorities. Those matters can be dealt with in the concessions when granted to potential toll operators. They need not be dealt with on the face of the Bill.
  Lord Clinton-Davis: My Lords, I am much obliged.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  10 Clause 16, page 10, line 23, at end insert:
  '( ) Those responsible for the design and construction of facilities for the collection of tolls, and those responsible for the collection of tolls at such facilities, shall have due regard to the need to avoid delaying the passage of such vehicles as are mentioned in section 13(2) (a), (b) or (c) (police vehicles, ambulances and fire engines).'.
  11 Page 10, line 24, leave out subsection (2).
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 10 and 11 en bloc.
  Moved, That the House do agree with the Commons in their Amendments Nos. 10 and 11 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  12 Clause 16, page 10, line 33, leave out 'valuation' and insert 'rating'.
  13 Page 10, line 36, leave out 'may be necessary or convenient' and insert 'are reasonably required'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 12 and 13 en bloc. I shall speak also to Amendments Nos. 18 and 33.
  All these amendments concern the facilities for the collection of tolls, which are to be exempt from the business rate and for which land may be purchased compulsorily.
  Moved, That the House do agree with the Commons in their Amendments Nos. 12 and 13.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  14 Clause 17, page 10, line 42, at end insert:
  '( ) Subsection (1) does not apply to the construction of a highway or private means of access by or on behalf of a government department or Minister of the Crown which the department or Minister is satisfied is reasonably required for discharging any function of the department or Minister.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 14. I shall speak also to Amendment No. 34.
  The Government's main anxiety in tabling this amendment was to ensure that concessionaires would not be able to use the veto in Clause 17 over the construction of accesses to prevent the Department of Transport constructing weighbridges adjoining a concessionaire's road. We are keen to ensure that the department's powers in the Road Traffic Act 1988 to weigh certain vehicles are not constrained. And there may well be other good reasons why government departments other than the Department of Transport would wish to construct an access to a toll road.
  Moved, That the House do agree with the Commons in their Amendment No. 14.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  15 After Clause 17, insert the following new clause:—
  Annual report on concession agreements and toll orders'
  '.—(1) The Secretary of State shall in respect of each calendar year lay before Parliament a report—

  (a) stating the number of concession agreements entered into by him during that year,

  (b) stating the number of new roads opened to public use during that year for which he is the highway authority and which at the time of their opening were subject to a concession,

  (c) listing the toll orders, and orders varying or revoking toll orders, made or confirmed by him in that year, and

  (d) containing such information as appears to him to be appropriate with respect to the toll orders (whenever made) which are in force during that year or any part of it.

  (2) The report shall be laid on or before 31st July in the following calendar year.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 15.
  Moved, That the House do agree with the Commons in their Amendment No. 15.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  16 After Clause 17, insert the following new clause:—
  Environmental assessment of projects involving special roads
  '. In section 105A of the Highways Act 1980 (environmental assessment of certain highway projects), after subsection (2) (cases in which environmental statement must be published) insert—
  "(2A) Any project for the construction or improvement of a special road which falls within Annex II to the Directive shall be treated as having such characteristics that it should be made subject to an environmental assessment in accordance with the Directive.".'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 16. I shall speak also to Amendment No. 36.
  When this Bill was before your Lordships, I assured the House that any conceivable special road scheme would be subjected to environmental assessment, and my right honourable friend the Minister of State, Mr. Freeman, gave similar assurances in Committee in another place. But they were not entirely convincing. These new clauses, one for England and Wales, one for Scotland, should put the matter beyond doubt.
  All road construction schemes fall within the EC directive, either in Annex I or Annex II. For those in Annex I, environmental assessment is mandatory. Schemes in Annex II must have an environmental assessment if the member state considers their characteristics require it. In this country, this has been interpreted very broadly with regard to all-purpose trunk roads. This amendment means that all special road schemes must be regarded as having the requisite characteristics, simply by virtue of being special roads. And all toll roads provided under the Bill will be special roads.
  Moved, That the House do agree with the Commons in their Amendment No. 16.—(Lord Brabazon of Tara.)
  Lord Clinton-Davis: My Lords, I thank the Minister for going a long way in the direction which
  74
  we suggested. Indeed, the present proposal before the House is an important move on his part and he has argued the case for it.
  I have a number of serious anxieties about the environmental implications of this part of the Bill and, indeed, about Part II. The Government have refused to impose a general environmental duty on concessionaires. There are continuing anxieties about the nature of the appraisal and assessment in terms of the procedures which are required for special loads.
  There is no provision on the face of the Bill for ensuring that the construction and operation of concession loads does not undermine broader national, regional and local environmental, transport and land use policies. The Minister must be aware that the key anxieties which have been expressed relate to the fact that environmental issues do not have to be addressed statutorily until the examination of a special road scheme once a preferred concessionaire and route have been identified.
  Ministers and the department have given assurances. For example, in Committee in another place Mr. Roger Freeman said that environmental considerations started from the word go, and, in response to representations from the West Midlands districts, the transport department said that wider economic traffic and environmental effects of any tender submissions in relation to the western orbital route would be taken into account in determining the winner.
  Given the strength of those assurances, it is difficult to understand why the Government are not prepared to write the appropriate procedures on the face of the Bill. That is the only point I wish to make.
  5 p.m.
  Lord Renton: My Lords, I was one of those at Committee stage who expressed difficulty with two matters connected with Amendment No. 16. The first was the lack of a specific requirement to have an environmental assessment in relation to special roads, although it was clear that there had to be one in relation to trunk roads. The second problem was the inaccessibility of the law, the difficulty of finding it and the difficulty of correlating the various legal provisions, including that contained in an EC directive on environmental assessment.
  I wish to thank the Government for the trouble that they have taken over the matter. On the question of the unsatisfactory nature of the presentation of the law—leaving aside its substance—my noble friend Lord Brabazon said that he would invite the attention of the Secretary of State to the views expressed in this House on the position. I was asked to see the Secretary of State, at which time I pointed out the appalling confusion that exists in the law. He wrote to me at great length, but I shall not trouble your Lordships with the content of his letter. He pointed out that if we were to simplify the position in the Bill, it would make the Bill twice as long as it already is. It is a branch of the law where Parliament, over the years and in spite of the consolidation contained in the Highways Act 1980, by building first on one piece of legislation and then another, has created a voluminous amount of statute law. Furthermore, regulations also have to be

  75
  read in order to obtain the complete picture. The Minister gave me an assurance that nothing more could be done to clarify the matter at this stage. I must accept that. But it is an advantage to us to have Amendment No. 16 on environmental assessment.
  I want to say a few words about what an environmental assessment should, and I hope will, contain in relation to special roads, trunk roads and highways in general.
  I am advised that there are two major failings at the moment. The first is a lack of any comparison between the different alternative routes when quite clearly such alternatives already exist or should exist. I hope that in the future environmental assessments will state the relative advantages and disadvantages of alternative routes. Secondly, the wider effects of building a road are not always considered. For example, we know that new roads stimulate development pressures, especially around road junctions; that faster roads lead to increased journey lengths and more frequent trips; and that very often, because of the greater speed—or in some cases the lower speed—the contribution of road vehicles to noxious gas emissions is a factor that should be taken into consideration.
  I cannot expect my noble friend to give firm undertakings at this stage regarding the contents of the environmental assessments along the lines I mentioned. However, I have a duty to place these matters on record because they have caused anxiety. Having done so, I acknowledge the trouble taken by the Secretary of State, my noble friend and Mr. Freeman and express thanks for all that has been done.
  Lord Brabazon of Tara: My Lords, I am grateful to my noble friend Lord Renton for those words. I well recall the debates that we had what seems to be a long time ago, when we discussed the Bill in Committee in this House. I should like to say a few words which I hope will assist both the noble Lord, Lord Clinton-Davis, and my noble friend Lord Renton.
  The noble Lord, Lord Clinton-Davis, was asking why the environmental assessment does not occur at an earlier stage of the process. The purpose of an environmental assessment is to inform the decision on authorising a scheme not the decision to put a scheme into a programme, which is only a proposal. It is not true that once a road is in the programme it stays in. We recently removed the M.23 extension northward into London and the western environmental improvement route in west London from the programme largely for environmental considerations.
  The formal environmental statement required with the publication of draft orders is the culmination of a long process in road design. Only at this stage can all relevant factors be known and properly weighed up. Of course we start looking at environmental impact much earlier in deciding whether to build a road at all and, in response to my noble friend Lord Renton, where it should go. In considering private sector bids, environmental issues will be important factors. Environmental assessment is a developing art. We are always looking at ways of improving methods. That goes much wider than the new roads provided under the Bill. The Standing Advisory Committee on Trunk
  76
  Road Assessment will be reporting later this year on valuing the environment. Ministers promised wide consultation on any procedural changes they may recommend.
  With regard to not imposing any environmental duty on concessionaires in the Bill, a duty exists in Section 11 of the Countryside Act 1968—referred to in previous debates both in this House and in another place. It was argued that the section was inadequate for the purposes of this Bill because it applies only to public sector bodies. But there will be public sector bodies, central or local government, responsible as highway authorities for all the roads provided under the Bill. Their duty does not cease simply because there is another player, the concessionaire acting on their behalf. Therefore I do not believe that there is a need for an extension of that duty.
  A specific provision requiring environmental assessment for special road schemes is of much greater value than a vague general duty. With those remarks I hope that the House will agree to the amendment.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  17 Clause 25, page 16, line I, leave out 'and paragraphs 15 and 18 of Part III' and insert paragraphs 15 and 18 of Part III and Part IV'.
  18 Page 16, line 35, leave out from 'facilities' to 'for' in line 36 and insert 'within the boundary of the road or on land adjoining the road as are reasonably required'.
  19 Page 16, line 39, leave out subsection (10).
  20 Clause 28, page 18, line 4, after 'assignation' insert 'terminates or'.
  21 Page 18, line 16, leave out subsection (4) and insert:
  '(4) Any extension toll order must be made so as to come into force not later than—

  (a) the end of the toll period under the previous toll order; or

  (b) where the assignation under section 26(1) terminates or is terminated before the end of that period, two years after the termination of the assignation,

  whichever is the earlier.'.
  22 Page 18, line 24, leave out 'and'.
  23 Page 18, line 25, at end insert ', and
  ( ) section (Report on toll roads and toll orders in Scotland) (report by Secretary of State).'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 17 to 23 en bloc. These amendments have already been spoken to. I commend them to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 17 to 23 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  24 Clause 31, page 20, line 3, leave out 'by a toll order'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 24. I shall speak also to Amendment No. 31. These amendments are minor technical corrections.
  In Scotland a toll order will always authorise the charging of tolls by the roads authority. The order

  77
  will, however, specify if the right to charge tolls is to be assigned to a private developer. The concessionaire in Scotland will therefore be authorised by an assignation rather than the toll order to charge tolls. It is necessary to remove the words "by a toll order" to ensure that a concessionaire in Scotland is covered by the provisions of Clauses 31 and 37. I commend the amendment to the House.
  Moved, That the House do agree with the Commons in their Amendment No. 24.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  25 Clause 32, page 20, line 25, at end insert:
  '( ) Without prejudice to section 28 above (extension toll orders), a toll order may not be varied so as to extend the toll period.
  '( ) A toll order which does not authorise the charging of tolls in respect of the whole length of the special road to which it relates may not be varied so as to extend the length of road in respect of which tolls may be charged.'.
  26 Clause 33, page 20, line 45, after '26(1)' insert 'terminates or'.
  27 Page 21, line 16, at end insert:
  '(5) Where an assignation granted by the special road authority under section 26(1) terminates or is terminated before the end of the toll period and the authority either intends to grant a fresh assignation or to charge and collect tolls itself then, for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 1981, or any regulations replacing those regulations, the concessionaire shall be treated as transferring to the authority an undertaking which, if a new concessionaire is appointed, the authority shall be treated as then transferring to the new concessionaire.
  (6) References in this Part to the termination of an assignation are references to the termination of the rights assigned under the assignation.'.
  28 Clause 34, page 21, line 22, leave out 'which specifies maximum tolls'.
  29 Page 21, line 23, leave out 'which is subject to a maximum'.
  30 Page 21, line 24, leave out from beginning to end of line 29 and insert:

  '(a) a police vehicle, identifiable as such by writing or markings on it or otherwise by its appearance, if being used for police purposes;

  (b) an ambulance as defined in section 4(2) of the Vehicles (Excise) Act 1971:

  (c) a fire engine as so defined;

  (d) a vehicle exempt from duty under that Act by virtue of—

  section 4(1) (g) of that Act (invalid carriages),

  section 4(1) (kb) of that Act (vehicles used for carriage of disabled persons by recognised bodies), or

  section 7(2) of that Act (vehicles used by or for purposes of disabled person).'.

  31 Clause 37, page 23, line 4, leave out 'by a toll order'.
  32 Page 23, line 8, leave out subsection (2) and insert:
  '( ) Those responsible for the design and construction of facilities for the collection of tolls, and those responsible for the collection of tolls at such facilities, shall have due regard to the need to avoid delaying the passage of such vehicles as are mentioned in section 34(2) (a), (b) or (c) (police vehicles, ambulances and fire engines).'.
  33 Page 23, line 21, leave out 'may be necessary or convenient' and insert 'are reasonably required'.
  34 Clause 38, page 23, line 27, at end insert:
  78
  '( ) Subsection (1) does not apply to the construction of a road or private means of access by or on behalf of a government department or Minister of the Crown which the department or Minister is satisfied is reasonably required for discharging any function of the department or Minister.'.
  35 After Clause 38, insert the following new clause:—
  Report on toll roads and toll orders in Scotland
  '.—(1) In any calendar year in which there occurs an event to which this section applies, the Secretary of State shall in respect of that year lay before Parliament a report informing Parliament of that occurrence or, as the case may be, the number of such occurrences.
  (2) This section applies to the following events—

  (a) the Secretary of State enters into a contract for the design and construction of a road which is to be subject to a toll order;

  (b) there is opened to public use a new road subject to a toll order for which he is the roads authority;

  (c) a toll order, or an order varying or revoking a toll order, is made or confirmed by him.

  (3) A report under this section shall contain such information as appears to him to be appropriate with respect to the toll orders (whenever made) which are in force during that year or any part of it.
  (4) A report under this section shall be laid on or before 31st July in the following calendar year.'.
  36 Insert the following new clause:—
  Environmental assessment of projects involving special roads in Scotland
  '.—(1) In section 20A of the Roads (Scotland) Act 1984 (environmental assessment of certain road construction projects), after subsection (2) (cases in which environmental statement must be published) insert—
  "(2A) Any project for the construction of a special road which falls within Annex II to the Directive shall be treated as having such characteristics that it should be made subject to an environmental assessment in accordance with the Directive.".
  (2) In section 55A of that Act (environmental assessment of certain road improvement projects), in subsection (2) (cases in which environmental statement must be published) after the word "and" there shall be inserted the words "either the project is in respect of a special road or the project".'.
  37 Clause 39, page 23, line 43, leave out subsection (4) and insert:
  '(4) The concessionaire may issue a notice under section 14 of the 1984 Act (temporary restriction or prohibition of traffic) having the same effect as a notice issued under that section by the traffic authority.
  The Secretary of State may by regulations make provision excluding in relation to such a notice issued by a concessionaire the provisions of the 1984 Act relating to —

  (a) the procedure in connection with the issue of the notice,

  (b) the maximum duration of the notice, and

  (c) the making of provision in relation to alternative roads,

  and making instead such other provision as appears to him to be appropriate.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 25 to 37 en bloc. These amendments have already been spoken to. I commend them to the House.
  Moved, That the House do agree with the Commons in their Amendments Nos. 25 to 37 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  38 Clause 44, page 26, line 17, leave out first 'in' and insert 'by'.
  39 Page 26, line 17, leave out 'vested' and insert 'exercisable'.
  40 Page 26, line 18, leave out 'vested in him' and insert 'exercisable by him'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 38 to 40 en bloc. I shall speak also to Amendments Nos. 94, 96, 97, 103 to 105, and 156 to 158. This is the first group of amendments to the street works provisions of the Bill for the consideration of your Lordships. They are all minor drafting amendments to improve definitions.
  Amendments Nos. 38 to 40 improve the definition of "undertaker" in relation to apparatus for the purposes of this Part of the Bill. Amendment No. 94 is an associated change in the definition of the term "statutory right". Amendment No. 96 provides a definition of the circumstances in which apparatus is to be regarded "as affected by works". Amendment No. 97 is a minor consequential amendment. The remaining amendments do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 38 to 40 en bloc. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  41 Clause 46, page 27, line 19, at end insert:
  '(1A) A street works licence authorises the licensee to execute the works permitted by the licence without obtaining any consent which would otherwise be required to be given—

  (a) by any other relevant authority in its capacity as such, or

  (b) by any person in his capacity as the owner of apparatus affected by the works;

  but without prejudice to the provisions of this Part as to the making of requirements by any such authority or person or as to the settlement of a plan and section and the execution of the works in accordance with them.
  (1B) A street works licence does not dispense the licensee from obtaining any other consent, licence or permission which may be required; and it does not authorise the installation of apparatus for the use of which the licence of the Secretary of State is required, unless and until that licence has been granted.'.
  42 Page 27, line 21, leave out 'and effect'.
  43 Page 27, line 32, at end insert; but subsection (1A) does not apply in relation to such a licence.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 41 to 43 en bloc. I shall speak also to Amendments Nos. 168, 170, 106 and 107. These amendments put right an anomaly in the provisions on street works licences, improve drafting and make clear what is authorised by a street works licence. Amendments Nos. 106 and 107 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 41 to 43 en bloc. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  44 Clause 48, page 28, line 16, at end insert '(or which the person responsible for the works believes on reasonable grounds to be existing or imminent)'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 44. I shall speak also to Amendment No. 108. Your Lordships will recall the discussions we had in Committee about emergency works. I am pleased to say that as a result of consideration in another place and further consultation with the utilities and local authority associations, it has proved possible to agree an amendment which meets the concern about the practical effects of the tightly-drawn definition of "emergency works" in this part of Bill. Amendment No. 44 will allow the person responsible for street works to carry them out as emergency works where they "believe on reasonable grounds" that circumstances likely to cause danger to persons or property either exist or are imminent. Amendment No. 108 does the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 44.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  45 Clause 50, page 29, line 22, after 'other' insert 'procedural'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 45. I shall speak also to Amendments Nos. 57, 109 and 121.
  These are drafting amendments which meet concerns voiced on behalf of the utilities. Amendment No. 45 limits the requirements which may be prescribed or imposed for the purposes of coordination of works to the providing of information and other procedural steps to be taken. Amendment No. 57 enables a street authority which requires the removal of an unnecessary obstruction by notice to give the undertaker longer than 24 hours to comply where appropriate. Amendments Nos. 109 and 121 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 45.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  46 Clause 52, page 30, line 30, at end insert:
  '( ) The Secretary of State may issue or approve for the purposes of this section a code of practice giving practical guidance as to the exercise by street authorities of the power conferred by this section; and in exercising that power a street authority shall have regard to the code of practice.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 46. I shall speak also to Amendments Nos. 53, 54, 110, 117 and 118.
  These amendments deal with the practical guidance to be given to street authorities and undertakers on notices and co-ordination of works. They meet concerns which we debated at earlier stages of the Bill. Amendment No. 46 empowers the Secretary of State to issue or approve a code of practice giving guidance as to the exercise by street authorities of their power under Clause 52 to give directions as to the timing of street works. Amendments Nos. 53 and 54 require the

  81
  Secretary of State, rather than simply permitting him, to issue or approve a code of practice giving guidance as to the duty of street authorities under Clause 55 to co-ordinate works and the duty of undertakers under Clause 56 to co-operate. In practice, it is the Secretary of State's intention to approve a single code of practice covering all these matters before the new powers and duties take effect. Amendments Nos. 110, 117 and 118 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 46.—(Lord Brabazon of Tara.)
  Lord Brougham and Vaux: My Lords, I thank my noble friend. I moved Amendment No. 62 to Clause 50 in January. I am most grateful to my noble friend and his colleagues.
  On Question, Motion agreed to.
  5.15 p.m.

  COMMONS AMENDMENTS
  47 Clause 54, page 31, line 11, leave out 'which consists of or includes a carriageway'.
  48 Page 31, leave out lines 15 to 23 and insert:
  'For this purpose substantial road works means works for road purposes, or such works together with other works, of such description as may be prescribed.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 and 48 en bloc. I shall speak also to Amendments Nos. 51, 52, 111, 112, 115 and 116.
  Your Lordships agreed to revised Clause 54 at Report stage, which provided a clearer provision for the 12-month restrictions on street works to be imposed following substantial road works. The amendments made in the other place make further improvements.
  Amendments Nos. 47 and 48 replace the definition of "substantial road works" on the face of the Bill with a power for the Secretary of State to prescribe the definition of those works for road purposes which may trigger a 12-month restriction on street works. The provision is no longer limited to highways which include a carriageway, so certain road works on footpaths, cycletracks and pedestrian areas may be prescribed as "substantial road works" for the purpose of this clause. It is the Secretary of State's intention to have further consultation on which sorts of road works should be prescribed.
  Amendments Nos. 51 and 52 meet a concern raised on behalf of utilities and local authorities by providing that any disputes over the withholding of consent to the execution of street works during a period of restriction may be settled by arbitration. Amendments Nos. 111, 112, 115 and 116 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 47 and 48 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  49 Clause 54, page 31, line 37, leave out from 'authority' to 'person' in line 38 and insert:
  82
  '(d) any person who has given notice under section 50 (advance notice of certain works) of his intention to execute street works in the part of the highway to which the restriction relates, and
  (e) any other'.
  50 Page 32, leave out lines 4 and 5.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 49 and 50 en bloc. I shall speak also to Amendments Nos. 113 and 114. These further amendments to Clause 54 improve the procedure for giving notice of restrictions to be imposed on street works following substantial road works. Amendment No. 49 adds to the list of people entitled to receive such advance notice any person who has served notice under Clause 50 of his proposed street works in the relevant part of the highway. This should be of help in particular to cable television operators and others who do not already have apparatus in the highway but whose plans may be affected by the restriction. Amendment No. 50 removes some unnecessary words from subsection (4). Amendments Nos. 113 and 114 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 49 and 50 en bloc.—(Lord Brabazon of Tara.)
  Lord Brougham and Vaux: My Lords, these amendments concern a matter that I raised at Second Reading. I am most grateful to my noble friend.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  51 Clause 54, page 32, line 10, leave out '(which shall not be unreasonably withheld)'.
  52 Page 32, line 17, at end insert:
  '( ) The consent of the street authority under subsection (5) (b) shall not be unreasonably withheld; and any question whether the withholding of consent is unreasonable shall be settled by arbitration.'.
  53 Clause 55, page 32, line 34, leave out 'may' and insert 'shall'.
  54 Clause 56, page 33, line 21, leave out 'may' and insert 'shall'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 51 to 54 en bloc. I have already spoken to these amendments.
  Moved, That the House do agree with the Commons in their Amendments Nos. 51 to 54 en bloc. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  55 Clause 57, page 33, line 33, leave out subsection (1) and insert:
  '( ) The consent of the street authority is required for the placing of apparatus by an undertaker in a protected street, except as mentioned below.
  The following are "protected streets" for this purpose—

  (a) any highway or proposed highway which is a special road in accordance with section 16 of the Highways Act 1980, and

  (b) any street designated by the street authority as protected.

  ( ) Consent is not required for the placing of apparatus—

  83

  (a) by way of renewal of existing apparatus, or

  (b) in pursuance of a street works licence, unless, in the latter case, the licence was granted before the street became a protected street.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 55. I shall speak also to Amendment No. 119. This drafting amendment to the provision on protected streets was added in another place to remove an unnecessary duplication in the procedure for consent to placing apparatus in a protected street by a street works licensee. Since the street authority will already have given its consent when granting the street works licence, a separate consent under Clause 57 is only required where the licence was granted before the street became a protected street. Amendment No. 119 does the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 55.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  56 Clause 57, page 34, line 4, leave out first 'the' and insert 'any'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 56. I shall speak also to Amendments Nos. 169 and 120. These drafting amendments remove some ambiguous wording in two provisions which refer to the right of street authorities, where they own the land on which the street is situated, to charge undertakers for the placing of apparatus in that land. This concern was raised by noble Lords at earlier stages. Amendments Nos. 56 and 169 make clear that no additional rights are conferred on street authorities by the wording adopted in Clause 57 and Schedule 3. Amendment No. 120 does the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 56.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  57 Clause 62, page 37, line 2, after it' insert', or any longer period specified in the notice,'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 57. I have already spoken to this amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 57.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  58 Clause 65, page 37, leave out lines 34 to 44 and insert 'take all reasonably practicable steps—

  (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 58. I shall speak also to Amendments Nos. 74, 80, 84, 122, 139, 144 and 147.
  Your Lordships may recall that during our earlier consideration of the Bill we added a number of provisions to this part providing statutory defences for undertakers who, despite taking reasonable care, failed to comply with certain requirements. Following further debate in another place and consultations with the utilities and the local authorities it has proved possible to meet remaining concerns over certain other offences of strict liability.
  Amendments Nos. 58, 74 and 80 rephrase the duties to give facilities for monitoring works and to comply with certain requirements in terms of taking all reasonable practicable steps to do so. Amendment No. 84 provides a defence of having taken all reasonable care for undertakers who fail to comply with requirements imposed by a transport authority as to the displaying of lights. Amendments Nos. 122, 139, 144 and 146 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 58.—(Lord Brabazon of Tara.).
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  59 Clause 66, page 38, line 27, at end insert:
  '(4A) The permanent reinstatement of the street shall include, in particular, the reinstatement of features designed to assist people with a disability.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 59. I shall speak also to Amendments Nos. 100, 123 and 161.
  These amendments fulfil a commitment I gave to the House at Report stage in response to concerns raised by my noble friend Lord Swinfen. Amendment No. 59 requires undertakers carrying out street works to ensure that any special features designed to assist blind and disabled people which are disturbed by the works are properly reinstated. Amendment No. 100 is a consequential amendment to the index of defined expressions. Amendments Nos. 123 and 161 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 59.—(Lord Brabazon of Tara.)
  Lord Swinfen: My Lords, perhaps I may take this opportunity to thank my noble friend and his right honourable and honourable colleagues in another place for bringing forward these amendments. They will make life not only easier but safer for people with disabilities.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  60 After Clause 69, insert the following new clause:—
  Charge for occupation of the highway where works unreasonably prolonged
  '.—(1) The Secretary of State may make provision by regulations requiring an undertaker executing street works in a maintainable highway to pay a charge to the highway authority where—

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  (a) the duration of the works exceeds such period as may be prescribed, and

  (b) the works are not completed within a reasonable period.

  (2) For this purpose "a reasonable period" means such period as is agreed by the authority and the undertaker to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable, for completion of the works in question.
  In default of agreement, the authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbitrator.
  (3) The regulations may provide that if an undertaker has reason to believe that the duration of works will exceed the prescribed period he may submit to the authority an estimate of their likely duration—

  (a) in the case of works in connection with the initial placing of apparatus in the street in pursuance of a street works licence, together with his application for the licence,

  (b) in the case of other works (not being emergency works), together with his notice under section 51 (notice of starting date), or

  (c) in the case of emergency works, as soon as reasonably practicable after the works are begun,

  and that the period stated in an estimate so submitted shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (4) The regulations may also provide that if it appears to the undertaker that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—

  (a) is likely to exceed the prescribed period,

  (b) is likely to exceed the period stated in his previous estimate, or

  (c) is likely to exceed the period previously agreed or determined to be a reasonable period,

  he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the highway is affected by the works.
  Different rates of charge may be prescribed according to the place and time at which the works are executed and such other factors as appear to the Secretary of State to be relevant.
  (6) The regulations may make provision as to the time and manner of making payment of any charge.
  (7) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
  (8) The first regulations for the purposes of this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
  61 Clause 70, page 40, leave out Clause 70.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 60 and 61. I shall speak also to Amendments Nos. 187, 188, 190, 124, 125 and 195.
  We had interesting debates at earlier stages of the Bill on the provisions which deal with charging for the occupation of road space during works. Following further lively debate in Committee in the other place the Government undertook to come forward with replacement provisions which more closely met the
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  objective of an incentive to carry out street works efficiently without placing an unnecessary financial burden on utilities and their customers. This group of amendments is the result.
  Amendments Nos. 60 and 61 provide a new enabling provision for the Secretary of State to introduce a scheme of charges for occupation of the highway by undertakers where street works are unreasonably prolonged. It is expressed more clearly as a reserve power, with "a reasonable period" to complete the works to be allowed free of charge in each case, and charges to accrue only where works are unreasonably prolonged. The highway authority is to be free to reduce or waive charges. The first regulations prescribing fees, as before, are to be subject to affirmative resolution.
  Amendments Nos. 187, 188 and 190 make directly parallel provision in the case of occupation of the highway by builders' skips, scaffolding and other relevant structures. Amendments Nos. 124, 125 and 195 do the same for Scotland.
  I believe these revised provisions offer the satisfactory compromise of an incentive on utilities and others to execute works efficiently without penalising those who complete work within a reasonable period.
  Moved, That the House do agree with the Commons in their Amendments Nos. 60 and 61.—(Lord Brabazon of Tara.)
  Lord Boyd-Carpenter: My Lords, these are most welcome amendments which make a considerable improvement on Clause 70 of the Bill. As my noble friend said, this will give an incentive to those who undertake street works on important highways to do so as quickly as possible. It is quite plain to those of us who travel a great deal that some incentive of this kind is needed, certainly on some roads. I hope and believe that as presently drafted these provisions will have that effect. I very much welcome them.
  The Earl of Dudley: My Lords, perhaps I may ask my noble friend whether I have misunderstood Clause 70(4). As I read it, the undertaker has powers under this amendment to invalidate any previous contract. It seems to me that by producing a new estimate he is given that power. It seems unreasonable that he should be put in the position that the contract should be invalidated by him alone before the local authority, or whoever he is dealing with, has had power to object or not to object, as the case may be.
  Lord Brabazon of Tara: My Lords, I hope I can answer the point that has been made by my noble friend; I shall certainly read most carefully what he has said. If I am unable fully to answer him perhaps I may write to him. I also thank my noble friend Lord Boyd-Carpenter for his kind words as regards these amendments.
  My understanding is that subsection (4) provides for the revision within an agreed reasonable period where unforeseen circumstances arise and the undertaker requests the street authority to extend the

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  time allowed to complete the works. As before, any dispute; are settled by arbitration. I hope that goes some way to answering my noble friend's point.
  The Earl of Dudley: My Lords, the noble Lord has not answered my question which was whether the undertaker is given the power to submit an estimate and by so doing invalidates the contract which has been previously made with him by the local authority. That appears to be the wording. It is an entirely one-sided power to cancel any existing contract. If he has fall en down on a job he is able, unilaterally, to cancel his contract. That is my reading and it seems to me to be unreasonable, unfair and too favourable to the contractor.
  Lord Brabazon of Tara: My Lords, I shall have to write to my noble friend on this matter. I am sure we would lot wish to be unreasonable or unfair. I cannot believe that the Bill includes such a provision. There must be a misunderstanding.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  62 Clause 72, page 42, line 18, leave out '3' and insert '3(4)'.
  63 Page 42, leave out lines 23 to 28, and insert 'the cost to the authority or concessionaire—

  (a) of complying with any requirement to notify the public of any matter in connection with the making, issuing or operation of the order or notice, and

  (b) of providing traffic signs in connection with the prohibition or restriction of traffic by the order or notice.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 62 and 63.
  Moved, That the House do agree with the Commons in their Amendments Nos. 62 and 63.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  64 Clause 75, page 43, line 23, after 'shall' insert', except in such cases as may be prescribed,'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 64. I shall speak also to Amendments Nos. 66, 128 and 130.
  Minor Amendments Nos. 64 and 66 to the provisions on records of apparatus will allow appropriate exceptions to be made by regulations from the new duty in Clause 75 on undertakers to record the location of "every item of apparatus" of theirs in the street, and the associated duty in Clause 76 on persons carrying out work who discover unmapped or wrongly mapped apparatus in the street. Amendments Nos. 128 and 130 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendment No. 64.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  65 Clause 75, page 44, line I, leave out subsection (6) and insert:
  '(6) An order under section (Effect of Part III on other existing enactments or instruments) (power to make consequential amendments, repeals, &c.) relating to an enactment or instrument containing provision for the keeping of records of apparatus which appears to the Secretary of State to be superseded by or otherwise inconsistent with the provisions of this section—

  (a) shall not be subject to the procedure provided for in Schedule 5, and

  (b) may make such transitional and other provision as appears to the Secretary of State appropriate for applying in relation to records compiled under that enactment or instrument the provisions of subsections (2) to (5) above and section 76 below.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 65. I shall speak also to Amendments Nos. 87 to 91, 93, 99, 173 to 178, 211, 215, 129, 150 to 155, 160, and 181 to 186.
  These are technical amendments which will allow the Secretary of State by order to amend outlying references and requirements in general legislation which are inconsistent with this part of the Bill.
  Moved, That the House do agree with the Commons in their Amendment No. 65.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  66 Clause 76, page 44, line 27, at end insert:
  '( ) Subsections (1) and (2) have effect subject to such exceptions as may be prescribed.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 66. I have already spoken to this amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 66.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  67 Clause 77, page 44, line 33, leave out 'safety, the' and insert 'the safety and'.
  68 Page 44, line 36, leave out 'in it' and insert 'of the authority in the street'.
  69 Page 45, line 1, leave out subsections (3) and (4) and insert:
  '(3) If an undertaker fails to give a relevant authority the facilities required by this section—

  (a) the street authority may in such cases as may he prescribed, and

  (b) any other relevant authority may in any case, execute such works as are needed to enable them to inspect the apparatus in question, including any necessary breaking up or opening of the street.

  (4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section—

  (a) the street authority may in such cases as may be prescribed, and

  (b) any other relevant authority may in any case, execute any emergency works needed in consequence of the failure.'.

  70 Page 45, line 15, at end insert:
  '( ) Nothing in subsection (3) or (4) shall be construed as excluding any other means of securing compliance with the duties imposed by subsection (1).'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 67 to 70 en bloc. I shall speak also to Amendments Nos. 131 to 135.
  We had some discussion in Committee of the provisions of Clause 77 imposing a general duty on undertakers to maintain their apparatus in streets properly and providing protection for street authorities, bridge, transport and sewer authorities. As a result of further consideration in another place these amendments were made to reduce the possibility of unwarranted interference by authorities with undertakers' apparatus.
  Amendments Nos. 67 and 68 remove "integrity of undertakers' apparatus" from the purposes for which a street authority can require to be satisfied as to whether apparatus is being properly maintained. Amendments Nos. 69 and 70 limit the street authority's power to carry out inspections and emergency works in respect of undertakers' apparatus to such cases as are prescribed in regulations. It is the Secretary of State's intention here to consult utilities and local authorities on an appropriate definition of works to manholes, surface boxes or covers and the like.
  Amendments Nos. 131, 132, 134 and 135 do the same for Scotland, and Amendment No. 133 is a minor drafting amendment to the Scottish Clause 135.
  Moved, That the House do agree with the Commons in their Amendments Nos. 67 to 70.—(Lord Brabazon of Tara.)
  Lord Brougham and Vaux: My Lords, noble Lords may recall that in Committee on 6th December I moved amendments to this clause. One could say that this is a belated Christmas present. I am grateful to my noble friend, to his colleagues in another place and to everyone at the Department of Transport for all the work they have done. The utilities are very pleased with all the Government have done to this part of the Bill. It is a much better Bill now than when it left us. Everyone seems to be very pleased with it. I am truly thankful to my noble friend and to all his colleagues in the department.
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  71 Clause 78, page 45, line 17, leave out from beginning to 'as' in line 19 and insert:
  '(a) the street authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such, and
  (b) any other person having apparatus in the street in respect of any expense reasonably incurred in making good damage to that apparatus,'.
  72 Page 45, line 38, leave out 'authority' and insert 'person'.
  73 Page 45, line 41, leave out 'authority' and insert 'person'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 71 to 73 en bloc. I shall speak also to Amendments Nos. 136 to 138.
  Concern was voiced in another place on behalf of the utilities that the liability under Clause 78 for loss or damage caused by undertakers had been drawn unreasonably wide. As a result, Amendment No. 71
  90
  was made which limits the extent of undertakers' liability under this clause to other persons having apparatus in the street to the cost of making good damage caused to that apparatus. Amendments Nos. 72 and 73 are minor drafting amendments. Amendments Nos. 136 to 138 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 71 to 73.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  74 Clause 79, page 46, leave out lines 6 to 15 and insert 'take all reasonably practicable steps—

  (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 74. I have already spoken to this amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 74.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  75 Clause 81, page 47, line 11, leave out from 'undertaker' to 'make' in line 25 and insert 'in such manner as may be prescribed.
  (2) The regulations may make provision as to the costs allowable for this purpose.
  Provision may, in particular, be made for disallowing costs of the undertaker—

  (a) where the apparatus in question was placed in the street after the authority had given the undertaker the prescribed notice of their intention to execute the works, or

  (b) in respect of measures taken to remedy matters for which the authority were not to blame,

  and for allowing only such costs of either party as are not recoverable from a third party.
  (3) Where the authority have a right to recover from a third party their costs in taking measures in relation to undertaker's apparatus but in accordance with section 80 it is determined that the measures should be taken by the undertaker, the right of the authority includes a right to recover the undertaker's costs in taking those measures and they shall account to the undertaker for any sum received.
  (4) The regulations shall provide for the allowable costs to be borne by the authority and the undertaker in such proportions as may be prescribed.
  Different proportions may be prescribed for different cases or classes of case.
  (5) The regulations may require the undertaker to give credit for any financial benefit to him from the betterment or deferment of renewal of the apparatus resulting from the measures taken.
  (6) The regulations may'.
  76 Clause 82, page 48, line 10, at end insert:
  '(ee) works carried out in exercise of the powers conferred by section 184 of the Highways Act 1980 (vehicle crossings over footways and verges),'.
  77 Page 48, line 13, at end insert:

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  '( ) Works executed under section 184(9) of the Highways Act 1980 by a person other than the highway authority shall also be treated for the purposes of this Part as major highway works; and in relation to such works the references in sections 80 and 81 to the highway authority shall be construed as references to him.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 75 to 77 en bloc. I shall speak also to Amendments Nos. 189, 219, 140 and 141.
  These are technical amendments to the provisions on diversionary works made necessary by major highway, bridge or transport works. Amendment No. 75 allows for the apportionment of costs of diversionary works in cases where the authority promoting the works has a right to recover its costs from a third party. Amendments Nos. 76, 77, 189 and 219 bring the construction of vehicle crossings over footways and verges more clearly within the definition of "major highway works" for the purposes of diversionary works. Amendments Nos. 140 and 141 do the same for Scotland.
  Moved, That the House do agree with the Commons in their Amendments Nos. 75 to 77.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  78 Clause 84, page 48, line 39, after second 'to' insert 'place apparatus in and'.
  79 Page 48, line 42, at end insert 'placed or'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 78 and 79 en bloc. I shall speak also to Amendments Nos. 86, 95, 171, 172, 209, 210, 216, 224, 142, 143, 149, 179 and 180. These are all minor drafting amendments.
  Moved, That the House do agree with the Commons in their Amendments Nos. 78 and 79.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  80 Clause 84, page 49, leave out lines 2 to 13 and insert 'take all reasonably practicable steps—

  (a) to give the bridge authority reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by them which is reasonably necessary for the protection of the bridge or for securing access to it.'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 80. I have already spoken to this amendment.
  Moved, 'That the House do agree with the Commons in their Amendment No. 80.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  81 Clause 85, page 49, line 19, leave out subsection (1) and insert:
  '(1) In this Part—

  (a) 'sewer" and "public sewer" have the same meaning as in the Water Act 1989, and

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  (b) "sewer authority", in relation to a public sewer, means the sewerage undertaker within the meaning of that Act in whom the sewer is vested.'.

  82 Page 49, line 27, at end insert:
  '(2A) References in this Part to apparatus include a sewer, drain or tunnel.
  (2B) References to the undertaker in relation to such apparatus, or in relation to street works in connection with such apparatus, shall be construed—

  (a) in the case of a public sewer, as references to the sewer authority, and

  (b) in any other case, as references to the authority, body or person having the management or control of the sewer, drain or tunnel.

  (2C) Section 65 (provisions as to works likely to affect other apparatus in the street) does not apply by virtue of subsection (2A) above in relation to works likely to affect a public sewer if, or to the extent that, Schedule 4 (works in streets with special engineering difficulties) applies.'.
  83 Page 49, line 28, leave out subsections (3) to (6).
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 81 to 83 en bloc. I shall speak also to Amendments Nos. 92, 98, 101, 102, 145, 146, 159 and 162.
  These are drafting amendments to the provisions dealing with sewers. Amendments Nos. 81 to 83 bring the protection for sewers, drains and tunnels into line with that for "apparatus" under Clause 65, and Amendments Nos. 92, 98, 101 and 102 amend the associated definitions accordingly. Amendments Nos. 145, 146, 159 and 162 do the same for Scotland.
  Moved, That the House do agree with the Commons in the their Amendments Nos. 81 to 83. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  84 Clause 88, page 51, line 18, at end insert:
  '( ) In proceedings for such an offence it is a defence for the undertaker to show that all reasonable care was taken by him, and by his contractors and by persons in his employ or that of his contractors, to secure that no such failure occurred.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 84. I have already spoken to this amendment.
  Moved, That the House do agree with the Commons in their Amendment No. 84.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.
  Lord Clinton-Davis: My Lords, before we embark on any discussion of Amendment No. 85, I wonder whether the Leader of the House or the Minister has a statement to make concerning the discussions that we had at an earlier stage about the matter.
  Lord Waddington: My Lords, I have had the opportunity to speak to my right honourable friend the Secretary of State for Transport. The position is that at Second Reading in another place the Government were under pressure to end forthwith the right of local authorities to tender for reinstatement work; that is, to drop entirely the provision inserted by your Lordships. In the circumstances, and not least because of the position stated by my noble friend here,

  93
  it was thought better at the Report stage in another place to accept an amendment leaving open the question of when the opportunity to tender should end.
  As I hope I made clear earlier, I do not for one moment pretend that the amendment which another place has sent to us does not represent the acquiescence of the Government in a different policy in this area from that which your Lordships originally agreed when Clause 90 was added to the Bill. It has been suggested that this is a breach of comity between the Houses. With the greatest respect, that cannot be so. We have the position that the other place was acting as a revising Chamber to your Lordships. What happened was that the Government reconsidered our policy in another place and changed it. We are now asking your Lordships to agree to that change on its merits.
  The amendment agreed by another place was in origin a Back-Bench amendment. When the Government accept such an amendment in your Lordships' House, we are usually applauded. Of course I take the point made by the noble Lord the Leader of the Opposition that this Bill has largely been agreed between the parties. I am sorry that this point of difference between us in a party political sense should have marred the harmony on the Bill, but I do not believe that it has done so to a disastrous extent. However, I should like the opportunity of arguing the case on the merits because it is for noble Lords to decide whether they believe the change in policy is right or wrong. In due course I think it may be convenient if I open the debate on the amendment and my noble friend deals with points raised during the debate.
  Lord Clinton-Davis: My Lords, I thank the noble Lord the Leader of the House for his intervention. However, I cannot hide from the House my disappointment that the response to the points which have been made on both sides of the Chamber was not more effective and positive. In the circumstances, I think it would be right for the Government, having regard to the nature of the comments which have been made, to agree to give further consideration to the position.
  I should point out that the reference on Second Reading was in fact made by one Government Back Bencher. It can hardly be said that at that stage the Conservative Back Benchers in another place were in a state of high dudgeon and conducting a revolt against the Government. It was later when the amendment was moved by a Back Bencher that the Government responded as I indicated, and as has indeed been noted by the noble Lords, Lord Boyd-Carpenter and Lord Campbell of Alloway.
  In my view, the right course of action to follow in these circumstances is that we should give the Government still further opportunity to consider the very important points that have been articulated today. Few people who spoke earlier, especially from the other side of the House, could have been entranced by the reasoning adduced by the noble Lord the Leader of the House.
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  I propose, if I may, to move that further consideration on the Commons Amendments be adjourned to another day. That would give the Government the opportunity to carry out proper consideration. I hope that I am in order in my request. I am still a new boy, having been in this place for barely 13 months. I realise that I may be going wrong so far as concerns the procedure of the House. However, I understand that it might be the right time to do so. Therefore, I move a Motion from this side of the House in those terms.
  Moved, that further consideration of the Commons Amendments be adjourned until another day.—(Lord Clinton-Davis.)
  The Earl of Onslow: My Lords, I do not know whether it is in order for me to speak now, but it does seem to me that an immense amount of heavy weather is being made in this connection. The Government said one thing in this House and then changed their mind in another place. However, we spend our whole time asking governments to change their minds. Therefore, to say that governments have got to do absolutely everything that they said in the first place, seems to me to be a storm in a teacup; but the teacup is so small that it is in fact a teacup in the Queen's doll's house.
  Lord Boyd-Carpenter: My Lords, in the light of what has just been said, I agree that the Motion to adjourn consideration on the Commons Amendments is wholly unnecessary. This is an amendment of very little intrinsic importance, but it has acquired a certain amount of importance because of the unfortunate—I use the word "unfortunate" deliberately—course of events which followed: it was adopted in good faith by my noble friend Lord Brabazon of Tara in this House; and then, in equally good faith I am sure, it was rejected by virtue of a Back Bench amendment in another place.
  We are indebted to my noble friend the Leader of the House for the trouble that he has taken over the matter. However, I would not say that anything which aroused the genuine feelings which your Lordships heard expressed earlier this afternoon was a storm in a teacup. Members on all sides of the House are very properly concerned with the standing of this Chamber and its relationship with another place. They did see it to be affected.
  On the other hand, my noble friend the Leader of the House has certainly done what I asked of him. He has consulted the Secretary of State on the issue. Therefore, that simply leaves us with the question of the merits of the matter. As regards those merits, as I indicated, I have very limited views and concern. However, I believe it is right that we should continue now with the discussion on the amendment. There is a good attendance in the House today. Therefore, if it be the view of the House, the amendment can be rejected. But I believe that it would be a waste of everyone's time to postpone consideration until another day. I hope, therefore, that we shall proceed.
  Lord Renton: My Lords, if we were to have an adjournment it could only be justified on one of two

  95
  grounds. The first is that the Opposition had been taken by surprise. However, from the eloquent speeches that we heard earlier we know that that is not so. The second is that my noble friend Lord Brabazon of Tara, and perhaps my noble friend the Leader of the House, had not had an opportunity to discuss the implications of the amendment with the Secretary of State. I should think that they have discussed scarcely anything else for quite a long time.
  5.45 p m.
  Lord Tordoff: My Lords, far from Members of the Opposition not having had time to discuss the matter among themselves, perhaps it was felt that Members of the Government had not had sufficient time to do so. I must say that I found the intervention of the noble Earl, Lord Onslow, to be unfortunate. It is not a storm in a teacup; it is a matter which touches this House quite deeply. Indeed, I believe that the noble Lord, Lord Boyd-Carpenter illustrated that fact.
  When government Ministers come to the Dispatch Box in this place and say, "Yes, we understand the point made by the Opposition; we accept it, and we shall do something about it" and then do something about it and explain that that is part of the philosophy behind the Bill, we expect that to be sustained. However, I believe that we have made our point as fairly as we can. All that we can ask is that it does not become a habit of the Government to fail to live up to expectations in another place which have been raised in this Chamber. I hope that the adjournment will not take place and that we can continue to debate the meat of the matter.
  Lord Sefton of Garston: My Lords, it seems to me that the debate is concentrating on the issue of the two Houses. However, that is not the issue. The promise was not made just to this House but to all local authorities in the country. If we are really to consider the people who matter, we should take some time to discuss the situation.
  I have a few comments to make on the amendment. Moreover, there is much to say about the way in which it has been handled. The Motion before the House merely seeks to provide time to allow us to give proper consideration to the issues arising out of the very unfortunate way that the Government have handled the matter. As I said, it is not just a question of this House versus the other place. I did not spend 52 years of my life in local government to see local government moved out of the way to give in to party dogma. There is a need for an adjournment so that we can re-establish the trust between local authorities and central government. Quite simply, the action of the Government as regards this particular amendment has certainly damaged the trust which existed.
  Lord Waddington: My Lords, as I understand it, it is open to your Lordships to vote on the Motion that this House should not consider the amendment. However, I respectfully submit to your Lordships that the feelings voiced by noble Lords can be fully expressed in a debate on the amendment. Moreover, if your Lordships do not like the amendment—not least, perhaps, because the Government have changed their
  96
  position since the Bill was last dealt with in this place —as I said, it is open to noble Lords to vote against the amendment. I believe that that is probably the most convenient way to proceed. However, if your Lordships really want to vote on the question of whether we should proceed then, as I understand it, there is nothing to prevent such action.
  Lord Clinton-Davis: My Lords, before the noble Lord the Leader of the House sits down, it would be most helpful to the House if he could clarify a few points.
  First, can he tell us whether the Government, at the time that they accepted the amendment or since, have conferred with the local authority organisations and the public utilities about the matter? Secondly, can he say whether the Secretary of State for Transport has, apart from a bare acknowledgment, responded to the letters which were sent to him on the 10th and 11th June respectively by the public utilities and the local authority organisations? Thirdly, can he say whether there has been any reply from the Prime Minister to the letters which were addressed to him?
  Lord Waddington: My Lords, with the greatest respect, whether there had been adequate consultation is a matter which can be raised by your Lordships in the debate on the amendment. Your Lordships would be entitled to take the view that you should not support the amendment because the consultation had been inadequate. That does not go to the question of whether to accept the Motion moved by the noble Lord, Lord Clinton-Davis.
  Lord Clinton-Davis: My Lords, the virtue of having raised the matter in this way is that we have been able to obtain some clarification, albeit negative, from the Government so that we can now move on. I do not propose to test the opinion of the House. I wanted an explanation of the situation from the Government. I resent the fact that the noble Earl, Lord Onslow—I am not sure that he was here at the time—should say that this is a storm in a tea cup. It is nothing of the kind. That has been borne out by the debate. I am informed that there has been no consultation: we shall refer to that when we debate the amendment. I beg leave to withdraw the Motion.
  Motion, by leave, withdrawn.

  COMMONS AMENDMENT
  85 Clause 90, page 52, line 17, at end insert:
  '( ) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'
  Lord Waddington: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 85. I shall speak also to the parallel Scottish amendment, Amendment No. 148.
  We come now to the only amendment to the street works parts of the Bill made in the other place that was not a government amendment. I shall explain why the Government felt able to support the amendment and commend it to your Lordships. Amendment No. 85 allows the Secretary of State, by order, to end the permissive power in Clause 90 for street authorities

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  and district councils to execute street works by agreement on behalf of undertakers. Amendment No. 148 does the same for Scotland.
  Clause 90 was of course inserted by the Government during our earlier consideration of the Bill. We accepted that allowing local authorities and their DLOs to work for the utilities, where the utility so wished, was an inherent element of the street works reform proposals which should be expressly provided for in the Bill for the avoidance of doubt. However, upon further consideration prompted by concerns raised in another place, the Government have concluded that in the longer term there will be no good reason for the continued involvement of local authority direct labour in the carrying out of street works once the utility companies and private contractors are able to carry out the works satisfactorily themselves.
  In other words, the Government changed their policy in the light of new arguments that had not been advanced in the House. Therefore, while it would not have been appropriate to drop Clause 90 from the Bill altogether, as some had argued in another place, it was appropriate to include a "sunset" provision which would enable the Secretary of State to signal in advance when the relevant power of local authorities would end and so allow local authorities and utilities to plan for the changed circumstances.
  We accept that local authorities should continue to have power to do work where the utilities wish them to do so in order to allow for an orderly transition to the new arrangements. My right honourable friend the Secretary of State would undertake full consultation with those involved before proposing to use the power to appoint a day from which the clause would cease to have effect. I commend the amendment to your Lordships.
  Moved, That the House do agree with the Commons in their Amendment No. 85.—(Lord Waddington.)
  Lord Clinton-Davis: My Lords, that will not do. I do not find it convincing if the Government are saying that they were caught by surprise by a Government Back-Bencher seeking to reverse the reasoning of the Minister in this place. If they were so caught out, it is merely incompetence. I do not believe that that was the case. If they were not caught by surprise, they must have thought about their position. They must have discussed the matter with the noble Lord, Lord Brabazon, who, with the approval of the House, took such a strong position and behaved with total integrity, as has been said. They must undoubtedly have consulted the other organisations concerned—the public utilities and the local authorities—on whom they were relying to such a great extent, as the Minister has confirmed, to implement the Bill.
  If the Government have not done that, and they clearly have not—I know they have not, and the noble Lord the Leader of the House has no doubt now been informed that there has been no such consultation—why not? I am not talking merely about the amendment. What about the implications of the amendment and the need to consult local authorities
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  about whether the Government were reneging on such an important matter and had therefore broken trust? What explanation have the Government given to the local authorities and the public utilities? The answer is that the Government were honing inertia into a fine art on this issue.
  The Government had decided, extraordinarily, that no one was to benefit from any consultations. That will not do. In the eyes of those who have, in a sense, taken the extraordinary step of writing to the Prime Minister and to the Secretary of State, the Government have broken a promise which the Minister in this House properly gave. Why has there been no response from Ministers to the important letters that they have received? It is not as though there had been no opportunity to reply. The letters were sent and, I believe, received the same day—on 10th and 11th June. The Government have had ample opportunity to consult since the matter was discussed in Committee in another place.
  The burden of showing that the matter has been dealt with appropriately has not been discharged by the noble Lord the Leader of the House. Nevertheless, his intervention—for which I thank him, although I do not agree with him—is an effective response to the noble Earl, Lord Onslow, who said that this was a storm in a tea cup.
  I understand that the local authority associations wrote to Mr. Freeman after Second Reading on the point made by Mr. Graham Riddick and that a reply was received after Report. Consultation was clearly needed and was not undertaken. So be it. That causes the proposal to be fatally flawed.
  I turn now to the consequences of the amendment. What transitional period do the Government have in mind? The local authorities are surely entitled to know. It is unacceptable to expect them to decide upon their ability to tender if the period that the Government have in mind is to be short. This is not a matter where the Government should go out to consultation later with the local authorities. Perhaps they will do, but it is not good enough. The local authorities should have been told before; they ought to be told now the extent to which utilities may wish to take advantage of the authority's ability to tender. If the Government wish at least in part to remedy the mischief that has been done, I suggest an alternative. Although we do not believe that the amendment should proceed, the Government could indicate now that they do not intend to use the power provided by the amendment for a period of several years. I should have thought 10 years, but perhaps your Lordships may think that excessive. If the Government do not use the power for a number of years, at least it would give local authorities sufficient confidence to encourage them to gear themselves to help overcome the transitional problems which have evidently concerned Ministers. I ask the Minister to indicate whether the department intends to approach the problem in that way.
  Another matter which the Government could consider, but evidently they have not, is deploying the affirmative procedure. Neither of those propositions would totally satisfy me because it is wrong in

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  principle. Nonetheless, the Government might restore some trust in themselves vis-à-vis other undertakings if they were to approach the matter in that way. We have had no hint of such a possibility.
  I end on this note. Over and over again during the passage of the Bill, the Government have said that they would consult local authorities and public utilities about this, that and the other. We welcomed it, although we felt that in some instances it might have been recorded on the face of the Bill. We accepted it in good faith. I think now that we were wrong; we should have insisted on everything relating to consultation being included on the face of the Bill. Be that as it may, I do not believe that the Government have discharged the burden that rests upon them today to satisfy the House that the amendment should be accepted. I therefore hope that in due course, at the end of the debate, your Lordships will feel it appropriate to vote against this new clause.
  6 p.m.
  Lord Tordoff: My Lords, I do not wish to over-egg the pudding and return to subjects with which we have already dealt. This is an unfortunate matter because it has begun to divide the House on party lines, which is sad in relation to this Bill. I said at Second Reading that I hoped that so far as concerns this part of the Bill relating to the Home Report, the less tinkering your Lordships did with the Bill the better. I have maintained that position, as I hope noble Lords who were present will agree, throughout the proceedings in the House. The Bill had much thought put into it. There was a long gestation period before the Government gave their response to the Home Report and an even longer gestation period before the Bill was brought before your Lordships' House. That spirit was maintained throughout the whole passage of the Bill through the House.
  The trouble is that this is a bad amendment. It does precisely what we sought not to do; it tinkers with what was put on to the face of the Bill. It tinkers in a way which is unacceptable to the local authorities and the highway authorities. Noble Lords may say, "Well, of course they would object; they lose the opportunity to tender for work". It is also objected to by the National Joint Utilities Group which sees the amendment removing the possibility of wider competition for the jobs that need to be done. It prevents a major and in many cases skilled competitor having the ability to tender in the future.
  Noble Lords may be encouraged by the fact that the Leader of the House referred to this as a "sunset" amendment. As this year the sun has not yet risen, perhaps we may hope that the time will be somewhat delayed. However, the coming events cast their shadows before them, and that is the problem. Local authorities will not be able to invest in further training, which is required under the provisions of the Bill, with further skills being put into their workforce to make sure that they are up to the standards required, if they do not know when their ability to tender will be removed. That, as much as anything, is the problem with the amendment. I suspect that it was included in the Bill because an honourable gentleman
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  in another place had trouble with his local authority direct labour organisation. I have some sympathy with him from that point of view. However, in many places throughout the country DLOs are capable of doing this job and the utilities would wish them to do so if they could put forward a competitive tender. All that is being asked is that that position should be restored. I invite your Lordships to reject the amendment today.
  Lord Boyd-Carpenter: My Lords, it would help your Lordships' consideration of the amendment if, when he comes to reply, my noble friend gives an indication as to the Government's view on the likely timing of the exercise of power which the amendment gives them. It is not unreasonable that local authorities, for the reasons that have been given—and I shall not weary your Lordships by repeating them—should have some idea as to how long the position will remain open for them to be employed in appropriate cases.
  I am no great admirer of the direct labour system, as I have already made clear to your Lordships on many occasions. However, fair treatment would be greatly helped if the Government, without binding or committing themselves, could give an indication of the timescale they have in mind in respect of the exercise of this power. It would be extremely helpful to many of us if they were to do that.
  On the general aspects of the matter, I have never taken a strong view on the merits. My regret has been that it has been an issue which has given rise to a certain amount of perfectly sincere and genuine heat. I regret even more that it has caused some embarrassment to a much respected Minister. The sooner we conclude the matter the better. Perhaps it would help if we could be given some idea of the Government's timing intentions.
  I rather liked the idea of the noble Lord, Lord Tordoff, that this power should preferably be exercised by affirmative resolution and affirmative order. However, I suppose that at this stage procedurally there may be difficulty in introducing it. After all, we are discussing Commons amendments to the Bill. Short of going through the whole rigmarole again and sending the Bill back to the Commons with an amendment—which is a heavy-handed procedure in a measure of this kind—I cannot see how we could introduce it procedurally. I agree that if we could do so, on merit it would probably be a more satisfactory way of exercising the power. The matter is of importance.
  Lord Mason of Barnsley: My Lords, I rise to oppose the amendment. Those of your Lordships who have taken an interest in the matter will remember that the Horne Report, published in 1985, recommended much needed and sweeping changes to the legislation on utility street works. Some of the proposals favour the undertakers, some the local authorities, but the proposals were welcomed by both sides as a package which would benefit the road user.
  Since then, there has been excellent co-operation between local authorities and the undertakers, on the understanding that the whole package would be

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  implemented. Considerable progress has been made in agreeing arrangements which will be necessary when the Bill is implemented. Current legislation—the Public Utilities Street Works Act 1950—provides for undertakers to carry out temporary reinstatements and for highway authorities to deal with the permanent ones. This work is normally carried out by direct labour organisations in those local authorities which operate them. The permanent reinstatement that is carried out in my local authority is worth hundreds of thousands of pounds a year.
  Promises have frequently been given by Ministers that local authorities would be able to tender for this work under the new legislation. Following representations, Clause 90 was duly included in the Bill. That clause permits a highway authority to carry out reinstatement work on behalf of undertakers. It does not give the work automatically to the DLO. It merely empowers the DLO to tender for the work. Clearly the DLO will not be awarded the work unless its tender is the lowest.
  This amendment gives the Secretary of State the right to scrap the clause or the undertakings to the DLOs at any time he chooses. I oppose the amendment on the following grounds. First, Clause 90 as originally drafted merely empowered a DLO to tender for reinstatement work and not to carry it out as a right. The removal of DLOs from tender lists will not only deprive DLOs of work but also undertakers of potentially their most competitive contractor. That will result in a higher than necessary cost to the undertaker. The only people to gain will be the private sector contractors.
  Secondly, promises given by Ministers over a number of years that local authorities' right to tender was an integral part of the package are now seen as worthless. Thirdly, this blatantly anti-local authority amendment destroys the balance of the package which in turn is likely to sour the previous excellent working relationships that existed between local authorities and undertakers to the detriment of all. The Barnsley Metropolitan Borough Council, like many local authorities in the country, will feel aggrieved at the change the Minister has made. The authorities feel badly let down. No doubt this anti-local authority amendment will sour relations between the Government and the Association of Metropolitan Authorities. I believe it to be a breach of a deal, and I believe therefore that the amendment should be rejected.
  Lord Skelmersdale: My Lords, I have listened to practically all the discussions this afternoon bar the first five minutes. I missed the first five minutes as I did not expect this matter to arise at the very beginning of your Lordships' consideration of this part of the Bill. I am very glad that tributes have been paid to my noble friend Lord Brabazon as regards his handling of the Bill in its earlier stages in your Lordships' House. During the earlier discussions it occurred to me that there but for the grace of God go I or any other noble Lord who either has or will hold high office in your Lordships' House.
  One of the reasons for the position we are now in
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  is that it is easy for Ministers in the House of Lords to become insular. Their political horizons tend to be bounded by the parameters of the department they have the honour to serve at any particular time. If I may make a cheap joke, one may currently refer to that phenomenon in the Department of Transport as tunnel vision. I am surprised however that this discussion has extended not only to my noble friend's officials but also to his fellow Ministers in this case. I agree with noble Lords opposite that my noble friend must have discussed the government amendments with fellow Ministers. Someone should have picked up the fact that for many years it has been general government policy that elected authorities, whether of central or local government, should not do anything that could be done better or cheaper by the private sector. I wonder how many of my noble friends voted against the competitive tendering legislation when it was before your Lordships' House. I suggest that very few, if any, did so.
  It was therefore something of an anachronism that the Government, in the shape of the then Parliamentary Under-Secretary in another place, accepted the recommendations of the Home Report on reinstatement that the noble Lord, Lord Mason, has just referred to. As a result of subsequent events, the Government have been accused of bad faith. I believe that charge to be unfounded. How would noble Lords have felt if the Government had torn up our amendments? What would my noble friend have thought of such a step? My noble friend and other Members of your Lordships' House would have been rightly furious at such a step. That is a hypothetical case but if it had occurred it could have caused the resignation of my noble friend. However, the Government have not taken such a step. As I understand the position, the Government have agreed with my honourable friend Mr. Riddick that until the private sector is up to the job, local authorities may tender for the work. When the private sector can come up with the goods, the Secretary of State is empowered to prohibit local authorities from any further tendering in this area. In other words, local authorities are given temporary powers in this regard.
  I believe that approach keeps faith with my noble friend Lord Brabazon and, more importantly, with the actions he took in your Lordships' House, and also with the long-term objectives of government policy; namely, to disengage direct labour organisations from operations that can be performed perfectly well by other bodies. Like my noble friend Lord Boyd-Carpenter, I am no great fan of DLOs but they have a role on some occasions. I believe they have a role for a short period in respect of street works. However, I do not believe that role will continue for ever and a day. I hope it is of some comfort to my noble friend when I say that it is a far, far better thing he does now than he did before.
  6.15 p.m.
  Lord Renton: My Lords, I hope it will not embarrass any noble Lord on either side of the House if I draw attention to the fact that I am very puzzled indeed by the drafting of Clause 90(1) as it appears in

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  the Bill. Indeed I cannot make sense of it. Therefore I would not be exceedingly sorry if one day the power to be given in Amendment No. 85 were to be used. I invite the attention of noble Lords to subsection (1) which states:
  "A street authority or district council may enter into an agreement with an undertaker for the execution by the authority or council "—
  I then come to the words—:
  "on behalf of the undertaker of any street works".
  I do not know why those words are there. If we wish to find the true meaning of that phrase, we have to turn to the definition of "undertaker" which is to be found on page 26 in Clause 44(4) which states:
  "In this Part 'undertaker' in relation to street works means the person in whom the relevant statutory right"—
  The subsection refers to a statutory right and not to an opportunity or a contractual obligation—
  "is vested (in the capacity in which it is vested in him) or the licensee under the relevant street works licence, as the case may be".
  It would make much greater sense to my simple mind if the words in subsection (1) of Clause 90,
  "on behalf of the undertaker"
  were omitted. I have to confess however that I had not previously spotted that point and it is not in issue this afternoon. I am merely saying that I feel it a duty to invite the attention of the House to the fact that if we give power to the Secretary of State to do away with this clause, he may one day improve the Bill.
  Lord Sefton of Garston: My Lords, the noble Lord the Leader of the House said at the beginning of the debate that there was no good reason to continue with the present arrangements with regard to the reinstatement of road works following the work of a contractor. However, there are very good reasons for doing so. There are good reasons why local authorities should continue on a long-term basis the job of reinstating roads and pavements that have been damaged by the work of undertakers. That is to the benefit of the undertakers.
  I do not know how many of your Lordships live in areas where the cable companies are tearing up the roads and installing cables for cable television. The situation is deplorable. It is evident that the people employed by the cable undertakers are amateurs and were recruited straight from the dole. Their method of reinstatement of the pavements—
  Lord Tordoff: My Lords, I hope that the noble Lord will forgive me. It seems to me that in the speech which he is now making he is going right back to the Second. Reading of the Bill. If he looks at the provisions of the Bill he will see that the possibility of amateurs doing that job is ruled out by the provisions of the Bill. That is part of the deal between the local authorities and the utilities. That is why it is a mistake at this stage to go back to square one, where we started so many weeks ago. It seems to me that that is what the noble Lord is doing.
  Lord Sefton of Garston: My Lords, with all due respect to the noble Lord, I do not know why it is that whenever I get to my feet somebody decides that what I say is irrelevant or that I am going back to square one. I am not doing any such thing. I am replying to
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  the point that has been made that there is no need for the present situation regarding the reinstatement of footways and roads to continue. That is the point to which I was replying. It has been made in the debate. The noble Lord is shaking his head. I could suggest why he is shaking his head, but I shall not do so in polite company.
  Lord Tordoff: My Lords, I was shaking my head because that is not the position under the Bill.
  Lord Sefton of Garston: My Lords, the position under the proposed amendment is that at some time in the future local authorities will be prevented from tendering to reinstate roads. I am trying to put the case that that should not happen. I am trying to put to this House one reason, which is the benefit to the undertaker. I drew the parallel with the present system whereby roads are being torn up by people who are new to the work and leave a terrible mess behind which the local authority will ultimately have a responsibility to put right. At some time in the future somebody will trip over the mess that has been left behind. That person will not sue the people responsible, but will sue the local authority for not maintaining the footpath. The Minister is shaking his head now. Will he tell me that nobody can sue the local authority for not keeping the footpaths in good repair?
  Lord Brabazon of Tara: My Lords, it would have been helpful if the noble Lord had studied the Bill more carefully. The whole point of the Bill is that it places the duty for making the reinstatement upon the utility rather than on the local authority.
  Lord Sefton of Garston: My Lords, nowadays if the local authority fails to keep a footpath in good repair and somebody trips, rather than as previously when non-feasance applied, it can be sued because it did not do something that it is considered that it should have done. Previously it had to be proved that a local authority was guilty of failing in its duty before it could be sued. That no longer applies. The point I am trying to make is that it would be of advantage to the undertakers to have an agreement with local authorities so that once the work has been done and the road has been reinstated the local authority will be responsible. In order to achieve that, there has to be an agreement between the undertakers and the local authority.
  If that is not apparent I hesitate to say anything else. If it is true, it would be to the advantage of the undertakers to employ the local authority, by tender if necessary, to reinstate the footpath. That being so, the undertakers would know where their responsibility lay.
  If that does not happen, who will be responsible for any accidents caused by failure to reinstate pathways correctly? Believe me, it will be tremendously difficult to decide. One cannot just dig a hole and fill it immediately. That is not possible. It has to be reinstated, allowed to subside and then be reinstated again. Therefore, establishing responsibility for any bad work could lead to some very costly law suits.

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  In regard to the amendment moved by the Government, there is a breach of trust. The Government have breached the trust between local government and central Government. At one time if that happened it would be a question of resigning. If somebody asked a Minister to break an undertaking or a promise given to somebody he would not do it. He would rather resign. That is what would have happened in this situation. It is not a small matter of a storm in a tea cup; it is a very important issue. We should stick by what we said in the first place.
  I should like to examine other points which give me cause for concern. Yesterday in this Chamber a government Minister said that the Government were neutral on a Private Member's Bill in spite of the fact that that Private Member's Bill proposed to disapply statutes that were agreed by this House and the other place and which are the law of the land. That is not a situation on which to be neutral. The Government should have had something to say about that, but they did not.
  The cost of operating local authorities' responsibility for roads which are not properly reinstated will be enormous. In over 50 years in local government I cannot remember when a promise or a pledge by a Minister of State has been so lightly overturned. If it is right to be neutral about changing Acts of Parliament and to overturn an undertaking freely given to local authorities, that would represent a major change in the attitude of central government towards local government.
  Finally the company carrying out the work—or the cable company—can be sued in certain circumstances. But who will be the undertaker? If the cable company employs another company to carry out the work and that company defaults or goes bankrupt, who then will be responsible for any claims made by members of the public for injury caused by the works? It would come back to the local authority. Therefore, from all points of view, in my opinion it is essential that the local authorities and the undertakers should cooperate. The amendment prevents them from doing so.
  Lord Brabazon of Tara: My Lords, I think that it would be useful—
  Lord Underhill: My Lords
  Lord Brabazon of Tara: My Lords, the noble Lord has had his say from that side.
  6.30 p.m.
  Lord Underhill: My Lords, I have not. I have not spoken for myself during the whole passage of the Bill. I should like to intervene briefly, not from a political or party angle, but as President of the Association of Metropolitan Authorities.
  I have considered the Horne Report carefully for several years. We pressed for action to be taken following the report. In May 1989 the Government issued a consultation document, paragraph 21 of which states:
  "The Government's response proposed that Local Authorities should be able to tender to carry out street works
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  for statutory undertakers. Provision will be made to allow this with effect from the time at which undertakers become responsible for all reinstatements".
  When the Government issued their response to the Home Report, the local authorities generally welcomed it. At meetings of the Association of Metropolitan Authorities, I listened to and read quite a number of reports dealing with the work of the Highway Authorities and Utilities Committee. I referred to that joint committee in previous debates. It consists of the highway authorities, representing the local authorities, and the public utilities.
  Throughout, the local authorities and public utilities were keen to ensure that there was no political argument on the matter. They wanted to ensure that the best possible agreement was reached between them. As other noble Lords said, they insisted that there should be a balanced package. The letter that the public utilities group sent to the Secretary of State on only 10th June emphasised that it was a balanced package that it could jointly present to its members as the correct way forward for the future.
  Throughout, the public utilities group has not argued about the provision for the tendering requirement because it recognises the expertise and experience in many of the DLOs of local highway authorities. There was no insistence that the highway authorities should be given the tenders, but they should at least be given the opportunity to tender. A decision can then be taken as to whether to accept the tender. I do not know whether the Minister will deal with the reason that the Government changed their view. That change of view will upset the public utilities as much as it will upset the local authorities. I must emphasise that all four local authority associations, whether Conservative or Labour, believe that there is no argument about it. The public utilities joint committee is upset with the decision and the change of policy. It is worried as to what it will mean for maintenance work.
  I appreciate the support of the noble Lord, Lord Boyd-Carpenter, but it is not a question of the Government saying that they will not introduce the provision until January 1992, or whenever it might be. The least that the local authorities and public utilities group requires is an undertaking that no change will be made within a certain number of years, whether it be five years, 10 years or however many years. That is the least that the local authorities can ask for.
  I must emphasise the point with which I started: this is not a party political matter. We must not contemplate the possibility of the utilities falling out with the highway authorities when, at present, they are in complete agreement. They have helped to produce a balanced package. We must also avoid the Government giving the impression that, once again, local authorities are being pushed to one side. That will not help future discussions and relationships with highway authorities. I hope that the Government will seriously consider what has been said this afternoon.
  Lord Brabazon of Tara: My Lords, of course we shall seriously consider what has been said this

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  afternoon. In the meantime, perhaps it would be useful if I reminded the House exactly what the amendment does and does not do.
  Amendment No. 85 was added to the Bill as a Back-Bench amendment in another place to give the Secretary of State power by order to end the ability of local authorities to carry out street works by agreement on behalf of undertakers. We listened to the arguments of another place and, as has been said, we reviewed our policy. Those arguments were raised both on Second Reading and at following stages of the Bill, not suddenly at the last stage of the Bill, as might have been implied by some of the remarks made this afternoon.
  We support the amendment because it will allow the Government to take a view on how long it is reasonable to allow local authority direct labour to continue to undertake work that the private sector may be able to carry out satisfactorily for it. We are not talking about removing Clause 90 altogether and so ruling out all possibility of local authorities tendering for street works if the utilities so wish. My noble friend Lord Skelmersdale made that point. Clause 90 could have been removed altogether in the Commons. It was not. We are leaving open the option of bringing those arrangements to an end in due course once the utility companies and private contractors are seen to be in a position to undertake all such works themselves.
  The noble Lord, Lord Clinton-Davis, asked what consultation we have had. We have not yet consulted the utilities and the local authorities about the amendment, but my honourable friend the Minister for Roads and Traffic gave an undertaking, which I think is a much more important one, that there will be consultation before the power is used. I am happy to reiterate that assurance today.
  My noble friend Lord Boyd-Carpenter and the noble Lard, Lord Underhill, asked about the timing of the introduction of the powers in the amendment. We have been criticised today for taking a decision on the matter in haste. I can assure the House that we shall not hurry into a decision on how long a transition should be allowed. There will be genuine consultation on the matter before any decision is taken to use the power. I hope that that reassurance is helpful.
  The noble Lord, Lord Clinton-Davis, said that we had no.. yet responded to the letters written by the various local authority associations. My right honourable friend has carefully considered the expression of concern from the local authorities in the letters of 11th June. They will receive a reply shortly, taking lull account of the further views expressed in the House during the debate.
  The noble Lords, Lord Clinton-Davis and Lord Tordoff, thought that it was unreasonable to expect local authorities to gear themselves up to tender for works in what is only a transition period. Each local authority will need to make a judgment on what resources it requires for the remaining utility reinstatement work and what their training needs are. That would have been the case whether or not the DLOs were to be prevented from doing work after a transitional period. Eventually, every street work will
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  require a qualified operative and supervisor. If local authorities do not provide them, the private sector will do so. I hope that local authorities take sensible decisions in the context of the local market conditions and in the interests of residents and road users in their areas.
  The noble Lord, Lord Tordoff, suggested, perhaps rightly, that the utilities themselves wanted those powers to be kept for the direct labour organisations. I accept that utilities want the maximum choice of contractors to tender for work, and the use of DLOs may he essential in certain areas. That is one reason why we accept that there must be a transitional period before any use of the sunset provision is made. As I said, we shall listen carefully to the views put forward by the utilities as well as by the local authorities.
  The noble Lords, Lord Mason of Barnsley and Lord Underhill, suggested that that sabotaged the consensus that had been reached between the local authorities and the utilities. The Government are anxious to maintain the consensus between the directly interested parties that has marked this part of the Bill. It is essential that local authorities and utilities should co-operate if the new arrangements are to work properly.
  However, that did not mean that the concerns raised in another place should have been ignored. We were bound to reconsider whether there was any need for DLOs to do reinstatement works for private utilities indefinitely. We therefore concluded that the sunset provision was an acceptable and prudent addition to the Bill. What has changed since 1986, when the Government gave their response to the Horne Report, is that all the major utilities are now in the private sector. It is increasingly anachronistic to be encouraging contractual arrangements between them and public sector DLOs. We accept that, in areas in which DLOs have customarily done most utility reinstatement work as of right, there may be a need for their continuing involvement on a contractual basis until the private sector is ready to take over full responsibility.
  Lord Clinton-Davis: My Lords, perhaps the noble Lord will allow me to intervene. I am much obliged to him for the care that he has taken to respond. Perhaps he could help me in one respect. Under the public procurement directive which now exists, am I right that in certain instances direct labour organisations employed in other member states would be entitled, after the transitional period, to tender for work—in fact that is the requirement of that directive—whereas direct labour organisations in the United Kingdom would be debarred from so doing?
  Lord Brabazon of Tara: My Lords, if I may say so, that is an entirely new point that the noble Lord has sprung upon me and I am afraid that I do not have an answer to it. What the noble Lord suggests is extremely unlikely. After all, we are talking about only fairly small works and I suspect that they would fall below the cash limit to which the provisions referred to by the noble Lord apply.
  I shall try to answer all the points that have been made during the debate. It was suggested by my noble

  109
  friend Lord Boyd-Carpenter that this measure might have been better done by affirmative resolution. I say to him and other noble Lords—and my noble friend made the point that it is probably too late now anyway —that the negative resolution allows the opportunity for further debate by Parliament if the House so wishes.
  My noble friend Lord Renton raised an interesting point on Clause 90 itself. The DLO would be doing the work on behalf of the undertaker because it is the undertaker which has the statutory right to carry out street works. The wording of Clause 90(1) makes that clear. The DLO has no street works powers of its own which could duplicate those of the undertaker.
  Lastly, I turn to the remarks made by the noble Lord, Lord Sefton. I wish that the noble Lord would study a little more carefully the provisions in the Bill in order to gain a full understanding of what exactly it is all about. The noble Lord mentioned the example of the cable television operators. They will have to meet nationally prescribed standards for workmanship, qualifications of workmen, and so on. They will be fully responsible for defective work and any claims for accidents attributable to dangerous reinstatements. Whoever carries out the work for the undertaker, the undertaker is responsible under the Bill for the standard of work. That is on whom the blame (if that is the word) will ultimately fall.
  In the light of the clear undertakings that have been given, and that I have repeated today, for further consultation before any use of the order-making power is made, I hope that your Lordships will accept this amendment. I believe that it adds a useful flexibility to the new Act.
  6.43 p.m.
  On Question, Whether the House do agree with the Commons in their Amendment No. 85.
  * Their Lordships divided: Contents, 123; Not-Contents, 68.

  Division No. 1

  CONTENTS

  Alexander of Tunis, E.

  Constantine of Stanmore, L.

  Allenby of Megiddo, V.

  Craigavon, V.

  Ampthill, L.

  Craigmyle, L.

  Astor, V.

  Crickhowell, L.

  Auckland, L.

  Cross, V.

  Bauer, L.

  Davidson, V. [Teller.]

  Beaverbrook, L.

  Denton of Wakefield, B.

  Belhaven and Stenton, L.

  Dilhorne, V.

  Bessborough, E.

  Dudley, E.

  Blatch, B.

  Eccles of Moulton, B.

  Blyth, L.

  Eden of Winton, L.

  Boardman, L.

  Elles, B.

  Borthwick, L.

  Elliot of Harwood, B.

  Boyd-Carpenter, L.

  Elliott of Morpeth, L.

  Brabazon of Tara, L.

  Faithfull, B.

  Brentford, V.

  Flather, B.

  Brougham and Vaux, L.

  Fortescue, E.

  Butterworth, L.

  Fraser of Kilmorack, L.

  Caithness, E.

  Gardner of Parkes, B.

  Campbell of Alloway, L.

  Glenarthur, L.

  Carnegy of Lour, B.

  Grantchester, L.

  Carnock, L.

  Greenway, L.

  Cavendish of Furness, L.

  Hailsham of Saint Marylebone, L.

  Coleraine, L.

  Colnbrook, L.

  Halsbury, E.

  Colwyn, L.

  Hanson, L.

  110

  Hardinge of Penshurst, L.

  Norfolk, D.

  Harmar-Nicholls, L.

  Onslow, E.

  Harmsworth, L.

  Orkney, E.

  Harvington, L.

  Orr-Ewing, L.

  Henley, L.

  Park of Monmouth, B.

  Hertford, M.

  Peyton of Yeovil, L.

  Hesketh, L. [Teller.]

  Portsmouth, E.

  Hives, L.

  Pym, L.

  Hooper, B.

  Rankeillour, L.

  Howe, E.

  Renton, L.

  Hylton-Foster, B.

  Romney, E.

  Jeffreys, L.

  Saltoun of Abernethy, Ly.

  Johnston of Rockport, L.

  Sandys, L.

  Kimball, L.

  Seccombe, B.

  Kinloss, Ly.

  Selborne, E.

  Kinnaird, L.

  Sharpies, B.

  Kinnoull, E.

  Shrewsbury, E.

  Knollys, V.

  Skelmersdale, L.

  Knutsford, V.

  Stanley of Alderley, L.

  Lauderdale, E.

  Stodart of Leaston, L.

  Lindsey and Abingdon, E.

  Strathclyde, L.

  Long, V.

  Strathmore and Kinghorne, E.

  Lucas of Chilworth, L.

  Swinfen, L.

  Lyell, L.

  Swinton, E.

  McColl of Dulwich, L.

  Teviot, L.

  Macleod of Borve, B.

  Thomas of Gwydir, L.

  Malmesbury, E.

  Trumpington, B.

  Marlesford, L.

  Tryon, L.

  Merrivale, L.

  Ullswater, V.

  Mersey, V.

  Vaux of Harrowden, L.

  Mottistone, L.

  Waddington, L.

  Mountevans, L.

  Wade of Chorlton, L.

  Mowbray and Stourton, L.

  Westbury, L.

  Munster, E.

  Whitelaw, V.

  Murton of Lindisfarne, L.

  Winterbottom, L.

  Nelson, E.

  Young, B.

  NOT-CONTENTS

  Addington, L.

  Longford, E.

  Airedale, L.

  Lovell-Davis, L.

  Ardwick, L.

  Macaulay of Bragar, L.

  Attlee, E.

  McIntosh of Haringey, L.

  Beaumont of Whitley, L.

  Mackie of Benshie, L.

  Birk, B.

  Mason of Barnsley, L.

  Blease, L.

  Milner of Leeds, L.

  Boston of Faversham, L.

  Monson, L.

  Brooks of Tremorfa, L.

  Morris of Castle Morris, L

  Carmichael of Kelvingrove, L.

  Mulley, L.

  Carter, L.

  Nicol, B.

  Clinton-Davis, L.

  Perry of Walton, L.

  Cocks of Hartcliffe, L.

  Peston, L.

  David, B.

  Phillips, B.

  Dean of Beswick, L.

  Pitt of Hampstead, L.

  Desai, L.

  Prys-Davies, L.

  Dormand of Easington, L.

  Rea, L.

  Ezra, L.

  Robson of Kiddington, B.

  Falkender, B.

  Rochester, L.

  Falkland, V.

  Russell, E.

  Fitt, L.

  St. John of Bletso, L.

  Gainsborough, E.

  Shepherd, L.

  Gallacher, L.

  Stoddart of Swindon, L.

  Graham of Edmonton, L. [Teller.]

  Strabolgi, L.

  Taylor of Blackburn, L.

  Grey, E.

  Tordoff, L. [Teller.]

  Hatch of Lusby, L.

  Turner of Camden, B.

  Hollis of Heigham, B.

  Underhill, L.

  Howie of Troon, L.

  Varley, L.

  Jacques, L.

  Wallace of Coslany, L.

  Jay, L.

  White, B.

  Kilbracken, L.

  Wilson of Langside, L.

  Kilmarnock, L.

  Winstanley, L.

  Kirkhill, L.

  Young of Dartington, L.

  Lockwood, B.

  1* The Tellers for the Non-Contents reported 69 names. The Clerks recorded 68 names.
  Resolved in the affirmative, and Motion agreed to accordingly.
  6.51 p.m.

  COMMONS AMENDMENTS
  86 Clause 93, page 53, line 7, leave out 'Notice' and insert 'Notices'.
  87 Clause 97, page 54, line 26, leave out subsections (5) and (6).
  88 Page 54, line 45, at end insert:
  '( ) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.
  89 After Clause 97, insert the following new clause:
  Effect of Part III on other existing enactments or instruments
  '.—(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of Part III (not being a special enactment to which section 97(l), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of that Part.
  (2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of Part 111, shall continue to have effect as if the provision referred to had not been repealed.
  (3) An order under this section may, in particular, make provision in relation to—

  (a) enactments providing for the keeping of records of apparatus, and

  (b) enactments providing for the giving of notice of proposed street works.

  (4) An order under this section may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.
  (5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  (6) Except as mentioned in section 75(6), the provisions of Schedule 5 have effect with respect to the making of an order under this section in relation to a special enactment.
  (7) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.
  90 Clause 100, page 55, line 44, leave out from 'includes' to end of line 45 and insert 'an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;'.
  91 Page 56, leave out lines I and 2.
  92 Page 56, leave out line 6.
  93 Page 56, leave out lines 7 and 8 and insert:
  ' "special enactment" means an enactment which is not a public general enactment, and includes—

  (a) any Act for confirming a provisional order,

  (b) any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and

  (c) any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;'.

  94 Page 56, leave out lines 9 to 11 and insert:
  "'statutory right" means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a street works licence;'.
  95 Page 56, line 18, leave out 'highway' and insert 'street'.
  96 Page 56, line 26, at end insert:
  '(3A) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).'.
  97 Clause 101, page 57, line 3, at end insert:
  112

  'affected by (in relation to apparatus and works)

  section 100(3A)'.

  98 Page 57, line 4, column 2, leave out 'section' and insert 'sections 85(2A) and'.
  99 Page 57, leave out line 28.
  100 Page 57, line 31, column 2, at end insert '(and see sections 66(4A) and 86(1))'.
  101 Page 57, line 34, column 2, leave out '100(1)' and insert '85(1) (a)'.
  102 Page 57, line 50, column 2, leave out 'section 44(4)' and insert 'sections 44(4) and (5) and 85(2B)'.
  103 Clause 102, page 58, line 23, leave out first 'in' and insert 'by'.
  104 Page 58, line 23, leave out 'vested' and insert 'exercisable'.
  105 Page 58, line 24, leave out 'vested in him' and insert 'exercisable by him'.
  106 Clause 104, page 59, line 23, at end insert:
  '(1A) A person to whom permission has been granted under this section to execute works may do so without obtaining any consent which would otherwise be required to be given—

  (a) by any other relevant authority in its capacity as such, or

  (b) by any person in his capacity as the owner of apparatus affected by the works;

  but without prejudice to the provisions of this Part as to the making of requirements by any such authority or person or as to the settlement of a plan and section and the execution of the works in accordance with them.
  (1B) The granting of permission under this section to a person does not dispense that person from obtaining any other consent, licence or permission which may be required; and it does not authorise the installation of apparatus for the use of which the licence of the Secretary of State is required unless and until that licence has been granted.'.
  107 Page 59, line 35, leave out subsection (4) and insert:
  '(4) Before granting permission under this section the road works authority shall give not less than 10 working days' notice to each of the following—

  (a) where the works are likely to affect a sewer vested in a local authority, to that authority,

  (b) where the works are to be executed in a part of a road which is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

  (c) where in any other case the part of the road in which the works are to be executed is carried or crossed by a bridge, to the bridge authority,

  (d) to any person who has given notice under section 108 (advance notice of certain works) of his intention to execute road works which are likely to be affected by the works to which the permission relates, and

  (e) to any person having apparatus in the road which is likely to be affected by the works;

  but a failure to do so does not affect the validity of the permission.'.
  108 Clause 106, page 60, line 32, after 'imminent' insert '(or which the person responsible for the works believes on reasonable grounds to be existing or imminent)'.
  109 Clause 108, page 61, line 36, after 'other', insert 'procedural'.
  110 Clause 110, page 62, line 43, at end insert:
  '( ) The Secretary of State may issue or approve for the purpose of this section a code of practice giving practical guidance as to the exercise by road works authorities of the power conferred by this section; and in exercising that power a road works authority shall have regard to the code of practice.'.
  111 Clause 112, page 63, line 25, leave out 'which consists of or includes a carriageway'.
  112 Page 63, leave out lines 28 to 36 and insert:

  113
  'For this purpose substantial works means works for road purposes, or such works together with other works, of such description as may be prescribed.'.
  113 Page 64, line 3, leave out from 'authority' to 'person' in line 4 and insert:

  '(d) any person who has given notice under section 108 (advance notice of certain works) of his intention to execute road works in the part of the road to which the restriction relates, and

  (e) any other'.

  114 Page 64, leave out lines 14 and 15.
  115 Page 64, line 20, leave out '(which shall not be unreasonably withheld)'.
  116 Page 64, line 27, at end insert:
  '( ) The consent of the road works authority under subsection (5) (b) shall not be unreasonably withheld; and any question whether the withholding of consent is unreasonable shall be settled by arbitration.'.
  117 Clause 113, page 64, line 44, leave out 'may' and insert 'shall'.
  118 Clause 114, page 65, line 28, leave out 'may' and insert 'shall'.
  119 Clause 115, page 65, line 40, leave out subsection (1) and insert:
  '( ) The consent of the road works authority is required for the placing of apparatus by an undertaker in a protected road, except as mentioned below.
  The following are "protected roads" for this purpose—

  (a) any road or proposed road which is a special road in accordance with section 7 of the Roads (Scotland) Act 1984, and

  (b) any road designated by the road works authority as protected.

  ( ) Consent is not required for the placing of apparatus—

  (a) by way of renewal of existing apparatus, or

  (b) in pursuance of a permission granted under section 105 of this Act (permission to execute road works) or section 61 of the Roads (Scotland) Act 1984 (permission to place and maintain apparatus under a road), except where the permission was granted before the road became a protected road.'.

  120 Page 66, line 10, leave out first 'the' and insert 'any'.
  121 Clause 120, page 69, line 19, after 'it', insert or any longer period specified in the notice,'.
  122 Clause 123, page 70, leave out lines 6 to 15 and insert 'take all reasonably practicable steps—

  (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

  123 Clause 124, page 70, line 42, at end insert:
  '(4A) The permanent reinstatement of the road shall include, in particular, the reinstatement of features designed to assist people with a disability.'.
  124 After Clause 127, insert the following new clause:
  Charge for occupation of the road where works unreasonably prolonged
  '.—(1) The Secretary of State may make provision by regulations requiring an undertaker executing road works in a public road to pay a charge to the roads authority where—

  (a) the duration of the works exceeds such period as may be prescribed, and

  (b) the works are not completed within a reasonable period.

  (2) For this purpose "a reasonable period" means such period as is agreed by the authority and the undertaker to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable, for completion of the works in question.
  In default of agreement, the authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbiter.
  (3) The regulations may provide that if an undertaker has reason to believe that the duration of works will exceed the prescribed period he may submit to the authority an estimate of their likely duration—

  (a) in the case of works in connection with the initial placing of apparatus in the road in pursuance of a permission granted under section 104 (permission to execute road works), together with his application for permission,

  (b) in the case of other works (not being emergency works), together with his notice under section 109 (notice of starting date), or

  (c) in the case of emergency works, as soon as reasonably practicable after the works are begun,

  and that the period stated in an estimate so submitted shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (4) The regulations may also provide that if it appears to the undertaker that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—

  (a) is likely to exceed the prescribed period,

  (b) is likely to exceed the period stated in his previous estimate, or

  (c) is likely to exceed the period previously agreed or determined to be a reasonable period,

  he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the road is affected by the works.
  Different rates of charge may be prescribed according to the place and time at which the works are executed and such other factors as appear to the Secretary of State to be relevant.
  (6) The regulations may make provision as to the time and manner of making payment of any charge.
  (7) The regulations shall provide that a roads authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
  (8) The first regulations for the purposes of this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament; subsequent regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
  125 Clause 128, page 73 leave out Clause 128.
  126 Clause 130, page 74, line 29, leave out '39' and insert '39(4)'.
  127 Page 74, leave out lines 34 to 39 and insert 'the cost to the authority or concessionaire—

  (a) of complying with any requirement to notify the public of any matter in connection with the making, issuing or operation of the order or notice, and

  (b) of providing traffic signs in connection with the prohibition or restriction of traffic by the order or notice.'.

  128 Page 75, line 33, after 'shall' insert ', except in such cases as may be prescribed,'.
  129 Page 76, line 14, leave out subsection (6) and insert:
  '(6) An order under section (Effect of Part IV on other existing enactments or instruments) (power to make consequential amendments, repeals, &c.) relating to an enactment or instrument containing provision for the keeping of records of apparatus which appears to the Secretary of State to be superseded by or otherwise inconsistent with the provisions of this section—

  (a) shall not be subject to the procedure provided for in Schedule 7, and

  115

  (b) may make such transitional and other provision as appears to the Secretary of State appropriate for applying in relation to records compiled under that enactment or instrument the provisions of subsections (2) to (5) above and section 134 below.'.

  130 Clause 134, page 76, line 41, at end insert:
  '( ) Subsections (1) and (2) have effect subject to such exceptions as may be prescribed.'.
  131 Clause 135, page 77, line 3, leave out 'safety, the' and insert 'the safety and'.
  132 Page 77, line 6, leave out 'in it' and insert 'of the authority in the road'.
  133 Page 77, line 15, leave out 'road, bridge or' and insert 'works for roads purposes, major bridge works or major'.
  134 Page 77, line 17, leave out subsections (3) and (4) and insert:
  '(3) If an undertaker fails to give a relevant authority the facilities required by this section—

  (a) the road works authority may in such cases as may be prescribed, and

  (b) any other relevant authority may in any case, execute such works as are needed to enable them to inspect the apparatus in question, including any necessary breaking up or opening of the road.

  (4) If an undertaker fails to secure that apparatus is maintained to the reasonable satisfaction of a relevant authority in accordance with this section—

  (a) the road works authority may in such cases as may be prescribed, and

  (b) any other relevant authority may in any case, execute any emergency works needed in consequence of the failure.'.

  135 Page 77, line 31, at end insert:
  '( ) Nothing in subsection (3) or (4) shall be construed as excluding any other means of securing compliance with the duties imposed by subsection (1).'.
  136 Clause 136, page 77, line 33, leave out from beginning to 'as' in line 35 and insert:

  '(a) the road works authority or any other relevant authority in respect of any damage or loss suffered by the authority in their capacity as such and

  (b) any other person having apparatus in the road in respect of any expense reasonably incurred in making good damage to that apparatus,'.

  137 Page 78, line 9, leave out 'authority' and insert 'person'.
  138 Page 78, line 12, leave out 'authority' and insert 'person'.
  139 Clause 137, page 78, leave out lines 23 to 32 and insert 'take all reasonably practicable steps—

  (a) to give the person to whom the apparatus belongs reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by him which is reasonably necessary for the protection of the apparatus or for securing access to it.'.

  140 Clause 139, page 79, line 31, leave out from 'undertaker' to 'make' in line 45 and insert 'in such manner as may be prescribed.
  (2) The regulations may make provision as to the costs allowable for this purpose.
  Provision may, in particular, be made for disallowing costs of the undertaker—

  (a) where the apparatus in question was placed in the road after the authority had given the undertaker the prescribed notice of their intention to execute the works, or

  (b) in respect of measures taken to remedy matters for which the authority were not to blame,

  and for allowing only such costs of either party as are not recoverable from a third party.
  (3) Where the authority have a right to recover from a third party their costs in taking measures in relation to undertaker's apparatus but in accordance with section 139 it is determined that the measures should be taken by the undertaker, the right of the authority includes a right to recover the undertaker's costs in taking those measures and they shall account to the undertaker for any sum received.
  (4) The regulations shall provide for the allowable costs to be borne by the authority and the undertaker in such proportions as may be prescribed.
  Different proportions may be prescribed for different cases or classes of case.
  (5) The regulations may require the undertaker to give credit for any financial benefit to him from the betterment or deferment of renewal of the apparatus resulting from the measures taken.
  (6) The regulations may'.
  141 Clause 140, page 80, line 25, at end insert:
  '(dd) works carried out in exercise of the powers conferred by section 63 of the Roads (Scotland) Act 1984 (new access over verges and footways),'.
  142 Clause 142, page 81, line 10, after second 'to', insert 'place apparatus in and'.
  143 Page 81, line 13, at end insert 'placed or'.
  144 Page 81, leave out lines 19 to 30 and insert 'take all reasonably practicable steps—

  (a) to give the bridge authority reasonable facilities for monitoring the execution of the works, and

  (b) to comply with any requirement made by them which is reasonably necessary for the protection of the bridge or for securing access to it.'.

  145 Clause 143, page 81, line 39, at end insert:
  '(1A) References in this Part to apparatus include a sewer, drain or tunnel.
  (1B) References to the undertaker in relation to such apparatus, or in relation to road works in connection with such apparatus, shall be construed—

  (a) in the case of a sewer vested in a local authority, as references to that authority, and

  (b) in any other case, as references to the authority, body or person having the management or control of the sewer, drain or tunnel.

  (1C) Section 123 (provisions as to works likely to affect other apparatus in the road) does not apply by virtue of subsection (IA) above in relation to works likely to affect a sewer vested in a local authority if, or to the extent that, Schedule 6 (works in roads with special engineering difficulties) applies.'.
  146 Page 81, line 40, leave out subsections (2) to (5).
  147 Clause 146, page 83, line 30, at end insert:
  '( ) In proceedings for such an offence it is a defence for the undertaker to show that all reasonable care was taken by him, and by his contractors and by persons in his employ or that of his contractors, to secure that no such failure occurred.'.
  148 Clause 148, page 84, line 28, at end insert:
  '( ) This section shall cease to have effect upon such day as the Secretary of State may appoint by order made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
  149 Clause 151, page 85, line 15, leave out 'Notice' and insert 'Notices'.
  150 Clause 155, page 86, line 41, leave out subsections (5) and (6).
  151 Page 87, line 11, at end insert:
  '( ) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.
  152 After Clause 155, insert the following new clause:
  Effect of Part IV on other existing enactments or instruments
  '.—(1) The Secretary of State may by order make such provision amending, repealing, or preserving the effect of, any enactment passed or made before the commencement of Part IV (not being a special enactment to which section 155(1), (2) or (3) applies) as appears to him appropriate in consequence of the provisions of that Part.
  (2) Subject to any order under this section and (in the case of a public general Act) to any express amendment made by this Act, any such enactment which proceeds by reference to any provision of the Public Utilities Street Works Act 1950, or any other provision repealed by this Act in consequence of Part IV, shall continue to have effect as if the provision referred to had not been repealed.
  (3) An order under this section may, in particular, make provision in relation to—

  (a) enactments providing for the keeping of records of apparatus, and

  (b) enactments providing for the giving of notice of proposed road works.

  (4) An order under this section may contain such transitional provisions and savings as appear to the Secretary of State to be appropriate.
  (5) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
  (6) Except as mentioned in section 133(6), the provisions of Schedule 7 have effect with respect to the making of an order under this section in relation to a special enactment.
  (7) The provisions of this section apply in relation to an instrument having effect under or by virtue of an enactment as in relation to an enactment; and references to a special enactment shall be construed accordingly.'.
  153 Clause 158, page 88, line 9, leave out from 'includes' to end of line 10 and insert 'an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;'.
  154 Page 88, leave out lines 14 and 15.
  155 Page 88, leave out lines 19 and 20 and insert:
  ' "special enactment" means an enactment which is not a public general enactment, and includes—

  (a) any Act for confirming a provisional order,

  (b) any provision of a public general Act in relation to the passing of which any of the Standing Orders of the House of Lords or the House of Commons relating to Private Business applied, and

  (c) any enactment to the extent that it is incorporated or applied for the purposes of a special enactment;'.

  156 Page 88, leave out lines 21 to 23 and insert:
  "'statutory right" means a right (whether expressed as a right, a power or otherwise) conferred by an enactment (whenever passed or made), other than a right exercisable by virtue of a permission granted under section 104;'.
  157 Page 88, line 38, at end insert:
  '(3A) For the purposes of this Part apparatus shall be regarded as affected by works if the effect of the works is to prevent or restrict access to the apparatus (for example, by laying other apparatus above or adjacent to it).'.
  158 Clause 159, page 89, line 3, at end insert:

  'affected by (in relation to apparatus and works)

  section 158(3A)'.

  159 Page 89, line 4, column 2, leave out 'section' and insert 'sections 143(1A) and'.
  160 Page 89, leave out line 25.
  161 Page 89, line 28, column 2, at end insert '(and see sections 124(4A) and 144(1))'.
  162 Page 89, line 45, column 2, leave out 'section 102(4)' and insert 'sections 102(4) and (5) and 143(1B).
  Lord Brabazon of Tara: My Lords, with the leave of the House I beg to move that the House do agree with the Commons in their Amendments. Nos. 86 to 162 en bloc. The amendments have already been spoken to.
  Moved, That the House do agree with the Commons in their Amendments. Nos. 86 to 162—(Lord Brabazon of Tara).
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  163 Clause 161, page 90, line 42, leave out 'this section' and insert 'subsection (4)'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 163. This is a technical correction of the clause concerning application of the Bill to the Crown. The clause is meant to ensure that the street works provisions bind the Crown, but a person acting in the service of the Crown may not be prosecuted. The amendment restricts the immunity to prosecutions under Parts III and IV of the Bill as was originally intended.
  Moved, That the House do agree with the Commons in their Amendment No. 163.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  164 Clause 165, page 91, line 44, leave out subsection (2).
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 164. This removes the "privilege amendment" which by convention was inserted in this House to avoid questions of privilege.
  Moved, That the House do agree with the Commons in their Amendment No. 164.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  165 Schedule 2, page 94, line 2, at end insert:
  '(3) Where the special road to which the toll order relates is to be subject to a concession, the Secretary of State or the local highway authority shall make available for inspection with the copy of the draft order or of the order, as the case may be, a statement containing such information as may be prescribed with respect to the concessionaire and the concession agreement.
  The notice under sub-paragraph (I) or (2) shall indicate that such a statement will be so available for inspection.
  (4) In sub-paragraph (3) "prescribed" means prescribed by the Secretary of State by regulations made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 165. I shall speak also to Amendment No. 196.
  These two amendments—one for Scotland and one for England and Wales—were tabled in another place following the arguments made in both Houses about the need to bring the concession agreement further into the public domain. The concession agreement is, we can all agree, a key document since it defines the relationship between the highway authority and the concessionaire.
  We were therefore minded to accept the principle of an amendment made in another place which required the publication of a concession statement which would be before the public inquiry and would be able to inform the inspector's decision. The concession statement will contain information which is likely to be of relevance to those affected by a road scheme.
  Moved, That the House do agree with the Commons in their Amendment No. 165.—(Lord Braba7, on of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  166 Schedule 2, page 95, line 15, at end insert:
  'Special parliamentary procedure where existing highway appropriated or transferred
  8A.—(1) A toll order shall be subject to special parliamentary procedure where—

  (a) the relevant special road scheme provides for the appropriation by or transfer to the special road authority of an existing highway comprised in the route prescribed by the scheme, and

  (b) the toll order authorises the charging of tolls for the use of that existing highway or any part of it,

  unless the Secretary of State is satisfied as regards all classes of traffic entitled to use the existing highway that another reasonably convenient route free of toll is available, or will be provided before the date on which the appropriation or transfer takes effect, and certifies accordingly.
  (2) Where the Secretary of State proposes to give such a certificate, he shall—

  (a) give public notice of his intention to do so,

  (b) afford an opportunity to all persons interested to make representations and objections, and

  (c) cause a public local inquiry to be held if it appears to him to be expedient to do so, having regard to representations or objections made,

  and before deciding whether to give the certificate he shall consider any representations and objections made and, if an inquiry has been held, the report of the person who held the inquiry.
  (3) As soon as may be after giving a certificate, the Secretary of State shall publish in the London Gazette, and in such other manner as he thinks best for informing persons affected, a notice stating that the certificate has been given.'.
  167 Page 95, line 37, at end insert:
  '9A. —(1) In relation to a toll order which is subject to special parliamentary procedure—

  (a) if the order is confirmed by Act of Parliament under section 6 of the Statutory Orders (Special Procedure) Act 1945, paragraph 9 above does not apply;

  (b) in any other case, that paragraph has effect subject to the following modifications—

  (i) the reference in sub-paragraph (1) to the date on which the notice required by paragraph 8 is published (or first published) shall be construed as a reference to the date on which the order becomes operative under the Act of 1945, and

  (ii) in sub-paragraph (5) the words "and shall become operative" to the end shall be omitted.

  (2) The provisions of paragraph 9(1) to (3) and (5) above apply in relation to a certificate under paragraph 8A as in relation to a toll order, subject to the following modifications—

  (a) the reference in sub-paragraph (1) to the notice required by paragraph 8 shall be construed as a reference to the notice required by paragraph 8A (3), and

  (b) in sub-paragraph (5) for "made or confirmed" substitute "given" and omit the words from "and shall become operative" to the end.'.

  168 Schedule 3, page 95, line 41, leave out paragraph I and insert:
  '1. Before granting a street works licence the street authority shall give not less than 10 working days' notice to each of the following—

  (a) where the works are likely to affect a public sewer, to the sewer authority,

  (b) where the works are to be executed in a part of a street which is carried or crossed by a bridge vested in a transport authority, or crosses or is crossed by any other property held or used for the purposes of a transport authority, to that authority,

  120

  (c) where in any other case the part of the street in which the works are to be executed is carried or crossed by a bridge, to the bridge authority,

  (d) to any person who has given notice under section 50 (advance notice of certain works) of his intention to execute street works which are likely to be affected by the works to which the licence relates, and

  (e) to any other person having apparatus in the street which is likely to be affected by the works;

  but a failure to do so does not affect the validity of the licence.'.
  169 Page 96, line 6, leave out first 'the' and insert 'any'.
  170 Page 96, line 9, leave out paragraph 3.
  171 Schedule 4, page 98, line 19, leave out 'or part of a street'.
  172 Page 99, line 35, leave out 'a consumer' and insert premises'.
  173 Schedule 5, page 101, line 35, leave out 'existing special enactments' and insert 'certain existing special enactments or instruments), or an order under section (Effect of Part III on other existing enactments or instruments) (effect of Part III on other existing enactments or instruments) relating to a special enactment or instrument,'.
  174 Page 101, line 37, after 'enactment' insert 'or instrument'.
  175 Page 102, line 9, column 1, after 'enactment' insert 'or instrument'.
  176 Page 102, line 20, column 1, after 'enactment' insert 'or instrument'.
  177 Page 102, line 22, column 2, after 'enactment' insert 'or instrument'.
  178 Page 102, leave out lines 24 to 27 and insert:

  'Order under section (Effect of Part III on other existing enactments or instruments) amending, repealing or preserving effect of enactment or instrument

  Any person whose interests are specially affected by the proposed provision

  179 Schedule 6, page 103, line 14, leave out 'or part of a road'.
  180 Page 104, line 31, leave out 'a consumer' and insert 'premises'.
  181 Schedule 7, page 106, line 33, leave out 'existing special enactments' and insert 'certain existing special enactments or instruments), or an order under section (Effect of Part IV on other existing enactments or instruments) (effect of Part IV on other existing enactments or instruments) relating to a special enactment or instrument,'.
  182 Page 106, line 35, after 'enactment' insert 'or instrument'.
  183 Page 107, line 4, column 1, after 'enactment' insert 'or instrument'.
  184 Page 107, line 15, column 1, after 'enactment' insert 'or instrument'.
  185 Page 107, line 17, column 2, after 'enactment' insert 'or instrument'.
  186 Page 107, leave out lines 19 to 22 and insert:

  'Order under section (Effect of Part IV on other existing enactments or instruments) amending, repealing or preserving effect of enactment or instrument

  Any person whose interests are specially affected by the proposed provision

  187 Schedule 8, page 108, leave out lines 13 to 42 and insert:
  "'Builders' skips: charge for occupation of highway.
  140A.—(1) The Minister may make provision by regulations requiring the owner of a builder's skip deposited on a highway maintainable at the public expense to pay a charge to the highway authority where—

  (a) the period for which the skip remains in the highway exceeds such period as may be prescribed, and

  (b) the skip is not removed within a reasonable period.

  (2) For this purpose "a reasonable period" means such period as is agreed by the authority and the owner of the skip to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable in the circumstances.
  In default of agreement, the authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbitrator.
  (3) The regulations may provide that if a person applying to the highway authority for permission under section 139 above submits together with his application an estimate of the likely duration of the occupation of the highway, the period stated in the estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (4) The regulations may also provide that if it appears to the owner of the skip that by reason of matters not previously foreseen or reasonably foreseeable the duration of the occupation of the highway—

  (a) is likely to exceed the prescribed period,

  (b) is likely to exceed the period stated in his previous estimate, or

  (c) is likely to exceed the period previously agreed or determined to be a reasonable period,

  he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the period for which the highway is occupied by the skip and the extent of the occupation.
  Different rates of charge may be prescribed according to the place and time of the occupation and such other factors as appear to the Minister to be relevant.
  (6) The regulations may make provision as to the time and manner of making payment of any charge.
  (7) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
  (8) In this section "prescribed" means prescribed by the Minister by regulations.".'.
  188 Page 109, leave out lines 10 to 45 and insert:
  ' "Works under s. 169 or s. 171: charge for occupation of the highway.
  171A.—(1) The Minister may make provision by regulations requiring a person carrying out any of the following works in a highway maintainable at the public expense

  (a) erecting or retaining a relevant structure within the meaning of section 169(1) above, or

  (b) depositing building materials, rubbish or other things, or making a temporary excavation, as mentioned in section 171(1) above,

  to pay a charge to the highway authority if the duration of the works exceeds such period as may be prescribed and the works are not completed within a reasonable period.
  (2) For this purpose "a reasonable period" means such period as is agreed by the authority and the person executing the works to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable in the circumstances.
  In default of agreement, the authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbitrator.
  (3) The regulations may provide that if a person applying to the highway authority for a licence under section 169 or consent under section 171 submits together with his application an estimate of the likely duration of the works, the period stated in the estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (4) The regulations may also provide that if it appears to the person carrying out the works that by reason of matters not previously foreseen or reasonably foreseeable the duration of the works—

  (a) is likely to exceed the prescribed period,

  122

  (b) is likely to exceed the period stated in his previous estimate, or

  (c) is likely to exceed the period previously agreed or determined to be a reasonable period,

  he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (5) The amount of the charge shall be determined in such manner as may be prescribed by reference to the time taken to complete the works and the extent to which the surface of the highway is affected by the works.
  Different rates of charge may be prescribed according to the description of works, the place and time at which they are executed and such other factors as appear to the Minister to be relevant.
  (6) The regulations may make provision as to the time and manner of making payment of any charge.
  (7) The regulations shall provide that a highway authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
  (8) In this section "prescribed" means prescribed by the Minister by regulations.".'.
  189 Page 110, line 5, leave out paragraph 9 and insert:
  '9. In section 184 of the Highways Act 1980 (vehicle crossings over footways and verges), omit—

  (a) in subsection (9), the words from "In relation to works" to the end, and

  (b) subsection (14)

  and in subsection (15) (supplementary provision as to costs recoverable by highway authority), for "the cost of any works which are required by the said Act of 1950 to be executed" substitute "the cost of any measures needing to be taken in relation to undertaker's apparatus, in accordance with section 80 of the New Roads and Street Works Act 1991,".'.
  190 Page 111, line 1, leave out from 'containing' to 'shall' in line 3 and insert '—

  (a) the first regulations for the purposes of section 140A,

  (b) the first regulations for the purposes of section 17IA as it applies in relation to erecting or retaining a relevant structure within the meaning of section 169(1) above, or

  (c) the first regulations for the purposes of section 171A as it applies in relation to depositing building materials, rubbish or other things, or making a temporary excavation, as mentioned in section 171(1) above,'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 166 to 190 en bloc. The amendments have already been spoken to.
  Moved, That the House do agree with the Commons in their Amendments Nos. 166 to 190 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  191 Schedule 8, page 115, line 19, leave out 'the' and insert 'any'.
  192 Page 116, line 10, leave out from beginning 'for' in line 11 and insert:
  '.—(1) Section 22 of the Road Traffic Regulation Act 1984 (traffic regulation for special areas in the countryside) is amended as follows.
  (2) '.
  193 Page 116, line 24, at end insert:
  '(3) On the coming into force of Part I of the Natural Heritage (Scotland) Act 1991, for the reference in subsection (3) as amended by this paragraph to the Countryside Commission for Scotland there shall be substituted a reference to Scottish Natural Heritage.'.
  194 Page 120, line 43, leave out paragraph 61 and insert:
  '61. In section 84 of the Road Traffic Regulation Act 1984 (speed limits on roads other than restricted roads), for subsection (2) (authority having power to make order) substitute—
  "(2) The power to make an order under subsection (1) is exercisable by the traffic authority, who shall before exercising it in any case give public notice of their intention to do so.".'.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 191 to 194. I speak also to Amendments Nos. 202 to 205, 208, 212 to 214, 217 and 220 to 223.
  These are all minor technical amendments or additions to the schedule which make consequential amendments to other enactments. They bring them into lire with the provisions and language of the Bill.
  Moved, That the House do agree with the Commons in their Amendments Nos. 191 to 194 en bloc.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  195 Schedule 8, page 125, line 20, leave out from beginning to end of line 9 on page 126 and insert:
  "'Charge for occupation of road.
  61A.—(1) The Secretary of State may make provision by regulations requiring a person who occupies a public road by doing anything to which this section applies to pay a charge to the roads authority if the duration of the occupation exceeds the longer of the following periods—

  (a) such period as may be prescribed; or

  (b) such period as is agreed by the authority and the person to be reasonable or, in default of such agreement, is determined by arbitration to be reasonable in the circumstances.

  (2) This section applies to the occupation of a public road by doing anything which would require the consent or permission of a roads authority under any of the following provisions of this Act—

  section 56 (works executed in or excavations under a public road);

  section 58 (occupation of road for deposit of building materials and erection of scaffolding);

  section 59 (placing or depositing anything in a road);

  section 61 (placing, leaving, retaining, maintaining, repairing and reinstating apparatus in or under a public road); or

  section 85 (depositing a builders' skip).

  (3) For the purposes of paragraph (b) of subsection (1) above. in default of agreement, the roads authority's view as to what is a reasonable period shall be acted upon pending the decision of the arbiter.
  (4) The regulations may provide that if a person applying to the roads authority for consent or permission under any of the provisions of this Act specified in subsection (2) above submits together with his application an estimate of the likely duration of the occupation, the period stated in the estimate shall be taken to be agreed by the authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (5) The regulations may provide that if it appears to the person occupying the road that by reason of matters not previously foreseen or reasonably foreseeable the duration of the occupation—

  (a) is likely to exceed the prescribed period,

  (b) is likely to exceed the period stated in the previous estimate, or

  124

  (c) is likely to exceed the period previously agreed or determined to be a reasonable period,

  he may submit an estimate or revised estimate accordingly, and that if he does so any previous estimate, agreement or determination shall cease to have effect and the period stated in the new estimate shall be taken to be agreed by the roads authority to be reasonable unless they give notice, in such manner and within such period as may be prescribed, objecting to the estimate.
  (6) The amount of the charge shall be determined in such manner as may be prescribed by reference to the duration and extent of the occupation and different rates of charge may be prescribed according to the purpose of the occupation and such other factors as appear to the Secretary of State to be relevant.
  (7) The regulations may make provision as to the time and manner of making payment of any charge.
  (8) The regulations shall provide that a roads authority may reduce the amount, or waive payment, of a charge in any particular case, in such classes of case as they may decide or as may be prescribed, or generally.
  (9) In this section "prescribed" means prescribed by the Secretary of State by regulations.".'.
  196 Page 127, line 27, at end insert:
  '(3) Where it is intended that the proposed toll order shall authorise the special road authority to assign their rights to charge and collect tolls, the Secretary of State or, as the case may be, the local roads authority shall make a statement containing such information as may be prescribed with respect to that assignation and the person to whom the rights are intended to be assigned and—

  (a) the statement shall be made available for inspection with the copy of the order to which the notice under subparagraph (I) or (2) relates; and

  (b) the notice shall state that such a statement will be so available.

  (4) In sub-paragraph (3) "prescribed" means prescribed by the Secretary of State by regulations made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.'.
  197 Page 127, line 40, at end insert:
  '14D.—(1) A toll order shall be subject to special parliamentary procedure where—

  (a) the relevant special road scheme provides for the appropriation by or transfer to the special road authority of an existing public road comprised in the route prescribed by the scheme, and

  (b) the toll order authorises the charging of tolls for the use of that existing road or any part of it,

  unless the Secretary of State is satisfied as regards all classes of traffic entitled to use the existing road that another reasonably convenient route free of toll is available, or will be provided before the date on which the appropriation or transfer takes effect, and certifies accordingly.
  (2) Where the Secretary of State proposes to give such a certificate, he shall—

  (a) give public notice of his intention to do so,

  (b) afford an opportunity to all persons interested to make representations and objections, and

  (c) cause a public local inquiry to be held if it appears to him to be expedient to do so, having regard to representations or objections made,

  and before deciding whether to give the certificate he shall consider any representations and objections made and, if an inquiry has been held, the report of the person who held the inquiry.
  (3) As soon as may be after giving a certificate, the Secretary of State shall publish in the Edinburgh Gazette, and in such other manner as he thinks best for informing persons affected, a notice stating that the certificate has been given.'.
  198 Page 127, line 41, leave out ' 14D' and insert '14E'.
  199 Page 127, line 44, at end insert:
  '(3) In paragraph 19 of that Schedule—

  (a) in sub-paragraph (a), after "I" insert "or 14A";

  (b) in sub-paragraph (b), after "above" there shall be inserted the words "or held under paragraph 14B above"; and

  125

  (c) in sub-paragraph (c), for the words "and 13" there shall be substituted the words ", 13 and 14C".'.

  200 Page 127, line 44, at end insert:
  '.At the end of Schedule 2 to the Roads (Scotland) Act 1984 (validity and date of operation of certain orders and schemes), the following paragraph shall be inserted—
  "6. The provisions of paragraphs 2 to 4 above apply in relation to a certificate under paragraph 14D (1) of Schedule 1 to this Act as in relation to a scheme or order to which this Schedule applies, subject to the following modifications—

  (a) the reference in paragraph 2 above to the notice required by paragraph I above shall be construed as
  a reference to the notice required by paragraph 14D (3) of that Schedule, and

  (b) in paragraph 4 above for the words 'made or confirmed' there shall be substituted the word 'given' and the words from 'and shall become operative' to the end shall be omitted.".'.

  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 195 to 200. These amendments have already been spoken to.
  Moved, That the House do agree with the Commons in their Amendments Nos. 195 to 200. —(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENT
  201 Schedule 8, page 127, line 45, leave out paragraph 97.
  Lord Brabazon of Tara: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 201. I speak at the same time to Amendments Nos. 206, 207 and 218. These Scottish amendments are all of a minor and technical nature.
  Moved, That the House do agree with the Commons in their Amendment No. 201.—(Lord Brabazon of Tara.)
  On Question, Motion agreed to.

  COMMONS AMENDMENTS
  202 Schedule 8, page 128, line 2, at end insert:
  'Roads Act 1920 (c.72)
  .In section 10 of the Roads Act 1920 (powers of Secretary of State in relation to charges for use of vehicles on roads), at the end insert—
  "Nothing in this section applies to any sum payable by virtue of Part I or II of the New Roads and Street Works Act 1991.".
  Fire Services Act 1947 (c.41)
  .—(1) The Fire Services Act 1947 is amended as follows.
  (2) In section 3(2) (supplementary powers of fire authorities; provisions as to exercise of power to place fire alarms in public places), for the words from the beginning to "maintaining the road;" or, in Scotland, "of the roads authority;" substitute—
  "(2) Before exercising the powers conferred by subsection (1) (c) above in relation to a highway for which they are not the highway authority or, in Scotland, a public road for which they are not the roads authority, a fire authority shall obtain the consent of the highway or roads authority;".
  (3) In section 38(1) (interpretation)—
  (a) at the appropriate place insert—
  "'highway authority' has the same meaning as in the Highways Act 1980;";
  and
  (b) in the definition of "road" for the words "Public Utilities Street Works Act 1950" substitute "Part IV of the New Roads and Street Works Act 1991".'.
  203 Page 130, line 10, at end insert:
  'New Towns (Scotland) Act 1968 (c. 16)
  . In section 8 of the New Towns (Scotland) Act 1968 (acquisition of land for roads in connection with new towns), in subsection (2) for "a trunk road" substitute "a road for which he is the roads authority".'.
  204 Page 130, line 21, after 'lines)' insert'—

  (a) for the words "road, other than a trunk road" substitute "a road for which the Secretary of State is not the roads authority"; and

  (b)'..

  205 Page 130, line 42, at end insert:
  'Development of Rural Wales Act 1976 (c.75)
  . In Schedule 3 to the Development of Rural Wales Act 1976 (the new towns code)—

  (a) in paragraph 1(4) (c) for "a trunk road" substitute "a road for which the Secretary of State is the highway authority", and

  (b) in paragraph 2(2) for "a trunk road" substitute "a road for which he is the highway authority".'.

  206 Page 131, leave out lines 18 to 20.
  207 Page 131, line 22, at end insert:
  '( ) In section 109(1) (interpretation), in the definition of "road", for the words "Public Utilities Street Works Act 1950" substitute "Part IV of the New Roads and Street Works Act 1991".'.
  208 Page 132, line 17, at end insert:
  'New Towns Act 1981 (c.64)
  . In section 11 of the New Towns Act 1981 (acquisition of land for highways), in subsection (2) (a) (powers of Secretary of State) for "a trunk road" substitute "a road for which he is the highway authority".'.
  209 Page 133, line 10, leave out ' "upon," ' and insert ' "in, on,".'.
  210 Page 133, line 13, after 'substitute "' insert 'in'.
  211 Page 133, line 18, leave out paragraph 111.
  212 Page 133, line 41, at end insert:
  'Transport Act 1985 (c.67)
  .—(1) The Transport Act 1985 is amended as follows.
  (2) In section 7(12) (application of traffic regulation conditions to local bus services; requirement of consent of Secretary of State) for "a trunk road" substitute "a road for which the Secretary of State is the highway or roads authority".
  (3) In section 137(1) (interpretation), omit the definition of "trunk road".'.
  213 Page 133, line 43, leave out from beginning to 'for' in line 44 and insert:
  '113.—(1) Section 62 of the Airports Act 1986 (provisions as to telecommunications apparatus) is amended as follows.
  (2) In subsection (2) (cases in which highway authority or owner of subsoil may require alteration of apparatus), for paragraph (b) substitute—
  "(b) for the improvement of the highway where the Secretary of State is not the highway authority,".
  (3) In subsection (4) (limit on effect of subsection (2) (b),'.
  214 Page 134, line 31, at end insert:
  'Road Traffic Act 1988 (c.52)
  .—(1) The Road Traffic Act 1988 is amended as follows.
  (2) In section 22A (3) (c) (i), omit the words "section 8 of the Public Utilities Street Works Act 1950".
  (3) In section 39 (provisions with respect to road safety)—

  (a) in subsection (3) (a) (duty of local authority as to study of road accidents), for "trunk roads" substitute "roads for which the Secretary of State is the highway authority (in Scotland, roads authority)";

  (b) in subsection (3) (b) (duties as to taking of measures in light of studies), for "roads for which they are the highway authority (in Scotland, local roads authority)" substitute "roads for the maintenance of which they are responsible".

  (4) In section 192(1) (general interpretation), for the definition of "highway authority" substitute—

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  "'highway authority', in England and Wales, means—

  (a) in relation to a road for which he is the highway authority within the meaning of the Highways Act 1980, the Secretary of State, and

  (b) in relation to any other road, the council of the county, metropolitan district or London borough, or the Common Council of the City of London, as the case may be;".'.

  215 Page 135, line 41, leave out paragraph 119.
  216 Page 136, line 3, at end insert:
  . In the same Schedule, in paragraph 12 (interpretation), omit the definitions of "navigation authority" and "railway authority".'.
  217 Page 136, line 5, leave out from beginning to 'for' in line 6 and insert:
  '119.—(1) Section 256 of the Town and Country Planning Act 1990 (provisions as to telecommunications apparatus) is amended as follows.
  (2) In subsection (3) (power of local highway authority to require alteration of apparatus) for "highway, other than a trunk road" substitute "highway for which the Secretary of State is not the highway authority".
  (3) In subsection (4) (limitation of power under subsection (3))'.
  218 Page 136, line 9, at end insert:
  'Natural Heritage (Scotland) Act 1991 (c. )
  . In paragraph 5(4) of Schedule 7 to the Natural Heritage (Scotland) Act 1991 (works under drought orders), for "section 39(1) of the Public Utilities Street Works Act 1950" substitute "section 106 of the New Roads and Street Works Act 1991".'.
  219 Schedule 9, page 136, line 42, column 3 at end insert:

  'In section 184—

  (a) in subsection (9), the words from "In relation to works" to the end;

  (b) subsection (14).'.

  220 Page 138, line 4, at end insert:

  'Section 132A.'

  221 Page 138, line 14, column 3, at beginning insert:

  'Section 127.'

  222 Page 138, line 41, at end insert:

  '1985 c. 67.

  Transport Act 1985.

  In section 137(1), the definition of "trunk road".

  223 Page 1.38, line 45, at end insert:

  '1988 c. 52.

  Road Traffic Act 1988.

  In section 22A (3) (c) (i), the words "section 8 of the Public Utilities Street Works Act 1950".'.

  224 Page 139, line 14, column 3, at beginning insert:

  'In Schedule 4, in paragraph 12, the definitions of "navigation authority" and "railway authority".'.

  Lord Brabazon of Tara: My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments Nos. 202 to 224 en bloc. These amendments have already been spoken to.
  There is a misprint in Amendment No. 217. The reference should be to page 136 and not page 138 as printed. With that reservation, I beg to move.
  Moved, That the House do agree with the Commons in their Amendments Nos. 202 to 224.—(Lord grabazon of Tara.)
  On Question, Motion agreed to.
  An amendment (privilege) made.

  Property Misdescriptions Bill
  6.56 p.m.
  Report received.
  Clause 1 [Offence of property misdescription]:
  Lord Coleraine Lord Coleraine moved Amendment No. 1:
  Page 1, line 18, leave out from ("unenforceable") to ("by") in line 19.
  The noble Lord said, My Lords, in moving Amendment No. 1, I speak with the leave of the House to Amendment No. 2, to which Amendment No. 1 is a paving amendment, and to Amendment No. 3, which is consequential.
  The amendments provide that the commission of an offence of property misdescription under the Bill will also give rise to civil liability for which the person or any person suffering a loss as a result of the offence may sue for damages. It would generally involve a relatively simple and inexpensive application in a small claims court. It would also avoid the need for criminal proceedings in circumstances where criminal proceedings may not be appropriate.
  The amendments were moved in Committee. However, I bring them back today because reading the Official Report makes it clear that the record is not altogether correct and complete as to the rights and remedies of a person suffering loss as a result of a property misdescription. I also consider that these matters deserve further consideration and response today before the Bill passes into law.
  I am aware that it is a Private Member's Bill. I do not propose to press the matter further. The answer given by my noble friend Lord Astor in Committee, and echoed by my noble friend Lady Carnegy, was that the statutory duty for which I ask is not necessary because two remedies already exist and there is no need to add a third. My noble friend Lord Astor stated that, in the event of the conviction for an offence of misdescribing property, the aggrieved party would be able to apply to the court for a compensation order under the Powers of Criminal Courts Act 1973. The consumer who is adversely affected by misdescription also has recourse to compensation by way of a civil action to misrepresentation.
  In reply to the debate I suggested that, except where a contract for a purchase of land ultimately follows the property misdescription, the only right of an aggrieved person to sue for damages would be where he could prove that the misrepresentation was made either fraudulently or recklessly. There is no general right to found a claim on misrepresentation. However, it has since been suggested to me that an action for negligent misrepresentation might effectively provide a full civil remedy. I think that that is unlikely. The action for negligent misrepresentation is a development of the common law over the past 20 years. It began with a decision of the House of Lords in 1964 in the case of Hedley Byrne & Company Limited v. Heller and Partners. In that case a company's bankers carelessly gave an incorrect financial reference for the company to a third party with whom those bankers

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  had no financial or other relationship. The bankers were held to be potentially liable to that company, to whom they were found to owe a duty of care.
  The question which would have to be answered before an estate agent was held liable for negligent misrepresentation is whether the estate agent owed the applicant a duty of care at common law. In my opinion it is unlikely that this question would be answered affirmatively. The matter is put in the following way on page 448 of the practitioner's main reference work on tort, Clerk & Lindsell:
  "On the question when such a duty of care would be owed, the House of Lords said that this would be so whenever there was a special relationship between the plaintiff and the defendant, in particular whenever the party seeking information or advice was trusting the other to exercise such a duty of care as the circumstances required, where it was reasonable for him to do that and where the other gave information or advice when he knew or ought to have known that the inquirer was relying on him".
  The reference to the House of Lords was in the case of Hedley Byrne.
  I very much doubt whether an estate agent would be found to owe that duty of care to an applicant for property. It is correct that people looking for property do rely on what they read in the estate agent's particulars and on what they are told by estate agents. That would not bring estate agents within the rules. Applicants know that the given measurements of rooms and descriptions of drainages are likely to be correct, but they also know that there is the possibility, to say the least, that they are the result of wild exercises of imagination on the part of estate agents and that they should be verified if they are of material importance.
  They know that the estate agent is acting for the seller of the property and owes his entire duty to his client. They do not see themselves as recipients of information given to them by a person acting under a duty of care. For there to exist a duty of care to every applicant would impose a quite unacceptable and unrealistic burden on the estate agent in relation to his own client. I should mention that I am of course speaking of the common law and not of this Bill.
  If I am right—and the Consumers' Association have informed me that they are unaware of a reported case for a successful action against an estate agent for negligent misstatement—then the aggrieved applicant is left with the possibility that the weights and measures authority may successfully bring a prosecution against the estate agent and that the courts may award compensation under Section 35 of the Powers of Criminal Courts Act 1973. We discussed this briefly in Committee and I shall not dwell on it, if only because it is a useful remedy in the right circumstances but can never be a remedy of general application.
  It is true, I understand, that an aggrieved applicant may bring a private prosecution, although not in Scotland. His rights must otherwise depend on the decision of a weights and measures authority to prosecute. In coming to a decision whether or not to prosecute, it is very unlikely that the authority will attach much weight to the possibility that a compensation order may be made. So we are left with the likelihood that many, but not all, of these
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  applicants will be without compensation as a consequence of property misdescription, depending on whether or not there is a successful prosecution under the Act.
  This seems an unfortunate omission in a consumer protection measure. The Bill creates what ought to be a new civil wrong affecting individuals. It is the response of the collectivist to legislate for penalties and offences, as in this Bill, and to withhold from the consumer the right to go to court to look after himself. I consider that the Bill should have had a clause creating a statutory duty, or, if that was inappropriate, should have disapplied the provisions of the Powers of Criminal Courts Act 1973. I beg to move.
  Lord Monson: My Lords, far too many new criminal offences have been created during the past 12 years: the tally must be approaching 1,000 by now. Also there is far too much recourse to the criminal law nowadays, even when perfectly adequate civil remedies are available which, as the noble Lord, Lord Coleraine, has indicated, benefit the consumer rather than the state in the abstract. Both these tendencies are undesirable in principle for obvious reasons, and are often counter-productive in practice. One only has to look at what a damp squib insider trading has turned out to be recently. For these reasons I warmly support the three amendments of the noble Lord, Lord Coleraine.
  Viscount Astor: My Lords, perhaps it would be convenient if, before the noble Baroness, Lady Carnegy, answers, I put the Government's view. My noble friend Lord Coleraine moved an amendment in Committee which is identical to Amendment No. 1 which is before you now. That amendment was negatived and I am a little surprised that the noble Lord has come back to your Lordships' House with the same amendment, although I understand my noble friend is seeking to protect the position of people who may suffer loss as a result of property misdescription. However, I submit, as I did at the Committee stage, that the noble Lord's amendments are unnecessary. Clause 1(4) does not deprive aggrieved parties of any of their rights of action for compensation under existing law. It merely means that the commission of an offence under the Bill does not in itself result in any further civil rights. It may help your Lordships if I go into a little more detail on this than I did in Committee. In doing so I hope to be able to persuade my noble friend that there is no need to pursue this matter any further.
  Perhaps I should preface my remarks by saying that I am not a lawyer and I have no wish to cross swords with my noble friend over matters of legal interpretation or practice. However, I am speaking on behalf of the Government and, as I have said at earlier stages, the Government have provided the drafting services for this Bill from the beginning.
  The purpose of Clause 1(4) is to make clear that the Bill does not create a new civil remedy. The reason for the clause is that the Bill is intended to put the misdescription of property broadly on all fours with the misdescription of goods under the Trade Descriptions Act 1968. The criminalisation, and

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  thereby the deterrence, of property misdescription is the sole object of the Bill and, in not providing specific civil remedies for aggrieved persons, it follows most other statutes in the field of what might be broadly called consumer protection law. I know the noble Lord is an expert on the law of tort and contract but he may be less familiar with some of the various statutes which have been passed to protect consumers by means of enforcement by third parties. There is a body of law which has developed over many years, and most of the relevant statutes create criminal offences. These statutes relate to specific trading matters and are enforced by local authorities or other agencies. In such statutes it is not uncommon for an action for a breach of statutory duty to be expressly excluded.
  As we discussed in Committee, there are other remedies available for consumers who suffer loss as a result of property misdescription and perhaps I may briefly summarise them again.
  In Committee my noble friend Lord Coleraine referred to two possible remedies; namely, an action for fraudulent misrepresentation or for innocent misrepresentation. I am advised that what he said is perfectly correct as far as it goes but he may not have considered some aspects of the matter. Where a contract has been concluded, the party to the contract would. in the case of fraudulent misrepresentation, have the remedy at common law of damages relating to the contract. If the misrepresentation had become a term of the contract, a remedy for breach of contract would also be available. In the case of innocent misrepresentation by virtue of the Misrepresentation Act 1967, a party to the contract would have the remedy of recision of the contract or damages in lieu of recision. Again, if the misrepresentation had become a term of the contract, there would also be a remedy for breach of contract.
  Those possibilities are fairly clear but, as my noble friend pointed out, they do not help the person who does not conclude a contract but who nevertheless suffers a loss as a result of the misdescription. However, there are two possibilities in such a case. First, as my noble friend acknowledged in Committee, there is a remedy for fraudulent misrepresentation. In that case, there may also be a criminal offence under existing law.
  The second possibility is an action for negligent mis-statement. I am advised that in the circumstances in which an offence under Clause 1 of the Bill is likely to be committed, it is also likely on the same facts that a civil action could be brought for negligent mis-statement if not for fraudulent misrepresentation.
  Therefore, it seems to me that remedies are available for people affected by property misdescriptions and that to add another specific remedy under this Bill is not in practice likely to make much of an improvement to the consumer's position. My noble friend's point has logical merit, but I submit that the Bill as drafted is well precedented and does not need amendment.
  Baroness Carnegy of Lour: My Lords, I admire enormously the determination and energy with which my noble friend Lord Coleraine has pursued his
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  anxieties on this Bill and the courtesy with which he has kept me in close touch with his thinking. The Minister responded to most of the legal points made. I am grateful to him. I shall confine myself briefly to a general comment on one point only.
  In bringing back these three amendments for the second time, my noble friend Lord Coleraine explained that, since Committee stage, it has been pointed out to him that certain consumers, whom he felt may have inadequate means of redress under the Bill, may well be able to take civil action for negligent misrepresentation. My noble friend explained in some detail why he has doubts about whether that could be done and why, therefore, he has retabled his amendments. My noble friend on the Front Bench responded to that.
  I have listened carefully to what my noble friend Lord Coleraine said. Even if there were a case for the law regarding negligent mis-statement to be strengthened, it seems to me that there is no case for a piecemeal approach dealing with only this mis-statement in one particular commercial context and not with others. I know that that is the view of the consumers' associations and it clearly makes sense.
  In any case, this Bill is not intended and never was intended to provide an all-embracing solution to all consumer problems associated with the description of property. Had that been the intention, the Bill might have made provision for those matters which should have been included in property descriptions as a minimum rather than merely banning misdescriptions.
  The Bill is modest with limited aims. As I said on Second Reading, it seeks only to ensure that those in the business of marketing property are subject to the same sort of regime as those in the business of selling goods. In so doing, it follows a number of other statutes which form the cornerstone of consumer protection in this country.
  I have had a number of conversations with my noble friend and discussed with him his anxieties, and I have sought advice. I am not persuaded that the absence of a specific civil remedy in this Bill is a deficiency. The purpose of the Bill is to make property misdescription a criminal offence and to arrange for enforcement to be carried out by trading standards officers who are experienced in administering statutes of this type.
  I take the point made by the noble Lord, Lord Monson, in his welcome intervention in our discussions on the Bill but I believe the House is concerned not to make criminal offences when there is no need to do so. If he has studied the previous stages, he will know that the Bill in this form is greatly welcomed by professional bodies, trade organisations and many others who have been consulted. It has not been a source of disagreement.
  I am convinced that this arrangement will represent a great advance in consumer protection in this area. I hope that my noble friend will accept that expanding the scope of the Bill in the way in which his amendments would do is not appropriate. If my noble

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  friend's arguments have validity, I suggest that they would be for another Bill at another time. Therefore,
  I hope that he will not press his amendments.
  7.15 p.m.
  Lord Coleraine: My Lords, I am grateful to all noble Lords who have spoken. It has clarified a situation which remained rather uncertain in Committee. My anxieties about the possibility of estate agents committing the tort of negligent misrepresentation or mis-statement remain unabated. However, whether or not the Minister and my noble friend are lawyers, I should not consider it appropriate to continue that discussion at present.
  I congratulate both my noble friends on the fact that, although not lawyers, they have pursued in relation to the Trade Descriptions Act and other Acts of the same nature the doctrine of precedent. I am not certain that those precedents should always be applied. I believe that certain precedents do not necessarily apply to this Bill in relation to this amendment. However, it is not my intention to pursue the matter further and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 2 and 3 not moved.]

  Coal Mining Subsidence Bill
  7.18 p.m.
  Lord Cavendish of Furness: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
  Moved, That the House do now resolve itself into Committee.—(Lord Cavendish of Furness.)
  On Question, Motion agreed to.
  House in Committee accordingly.
  [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Cocks of Hartcliffe) in the Chair.]
  Clause 1 [Subsidence damage to which Act applies]:
  On Question, Whether Clause 1 shall stand part of the Bill?
  Lord Renton: I welcome this clause. I do so because somewhat unusually, it contains the definitions which govern much of the rest of the Bill and that comes at the beginning of the Bill instead of the end, which is more normal practice. I hope that the example given by the draftsman on this occasion will be followed on many other occasions.
  Perhaps I may also say that this Committee stage is a nostalgic experience for me. In another place I piloted the Coal-Mining (Subsidence) Act 1957, which this Bill repeals and re-enacts with amendments. That Act consisted of 18 sections and two schedules. It was contained in 32 small pages of statutes at large. Alas, this Bill has 54 clauses, eight schedules and is contained in 58 much larger pages. It is therefore characteristic of the excessively detailed legislation which is presented to us nowadays. However, I must confess that I shall later move an amendment which, though succinct in its terms, will add slightly but necessarily to the length of the Bill.
  Lord Cavendish of Furness: Perhaps I may take the opportunity to thank my noble friend for his general welcome of the Bill and its drafting. Since it will be self-evident to noble Lords that I claim no credit for it, I agree that it is a well drafted Bill. I know that my noble friend's remarks will give pleasure where they are deserved.
  Clause 1 agreed to.
  Clauses 2 to 18 agreed to.
  Lord Renton Lord Renton moved Amendment No. 1.
  Before Clause 19, insert the following new clause:
  Environmental duties
  (".—In formulating or implementing any proposals for remedial action in respect of subsidence damage, the Corporation shall—

  (a) have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest and of protecting sites, buildings and objects of architectural, historic or archaeological interest; and

  (b) so far as possible ensure that the proposals include measures to mitigate any adverse effect which the proposed activities may have on the natural beauty of the countryside or on any such flora, fauna, features, sites, buildings or objects.").

  The noble Lord said: This amendment imposes upon the British Coal Corporation a duty to have regard to environmental factors in formulating or implementing any proposals for remedial action in respect of subsidence damage. Some of us believe that it would be an advantage if the amendment imposed such a duty on the corporation in respect of all its operations, including the sinking of new coal mines, surface works and so forth, as well as opencast mining which is dealt with separately. However, the Long Title of the Bill restricts the application of the amendment. I am glad that the noble Baroness, Lady David, has added her name. I look forward to hearing her support of the amendment.
  It will be seen that the amendment is in simple terms which nobody should dispute; namely, that the proposals shall,
  "have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest and of protecting sites, buildings and objects of architectural, historic or archaeological interest".
  Paragraph (b) requires the corporation, so far as possible, to,
  "ensure that the proposals include measures to mitigate any adverse effect which the proposed activities may have on the natural beauty of the countryside".
  In fairness, I should perhaps point out that Clause 19 of the Bill gives protection to ancient monuments and listed buildings. In doing so it repeats a similar provision contained in the 1957 Act. There is therefore nothing new about it. However, in regard to the broader responsibility which I have described, there are good precedents for it. The first is contained in the Electricity Act 1957, which I also had the responsibility of piloting. That similar responsibility has been introduced in recent years to the Water Act and I believe it is to be found in the gas Acts. I am glad to say that it is a growing tendency of legislation to require people undertaking these various matters to have regard to environmental factors.
  When considering the New Roads and Street Works Bill earlier this evening, Amendment No. 16

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  tabled in another place required an environmental assessment to be made. Amendment No. 1 is not controversial. I hope that my noble friend on the Front Bench will feel able to accept it. I beg to move.
  Lord Campbell of Alloway: With respect to my noble friend Lord Renton, there are problems with Amendment No. 1, two of which he has forthrightly acknowledged. I shall come to them in a moment. Paragraph (a) of the amendment identifies certain environmental duties of a general nature to be observed for the protection of our heritage, if I can put it broadly that way. The hope is that one day some environment protection Bill of general application will find its way on to the statute book. However, the imposition of that duty upon the corporation and its limitation to remedial action in respect of subsidence damage is not acceptable, both on grounds of form and substance.
  My noble friend Lord Renton referred to the aspect of limitation.
  Lord Renton: No, I did not. My noble friend may have overlooked the fact that a number of statutory precedents exist for exactly what is proposed in the amendment. If it should be an obligation upon the electricity authority as it was, and now the various electricity boards, to have regard to those statutes, surely it is right that the British Coal Corporation should do the same.
  Lord Campbell of Alloway: With the greatest respect to my noble friend, I did not mishear and I do not believe I misunderstood him. If I did, I hope that I shall be forgiven.
  I said, with respect, that the limitation of the duty to remedial action in respect of subsidence damage is not acceptable. I shall leave out any reference to my noble friend Lord Renton in that context. It is not acceptable either in form or in substance. The amendment does not lie within the Long Title which sets out the broad purpose of the Bill's general intent. It would conflict with the structure of the Bill under which it is the claimant, not the corporation, which sets the standard of repair and under which the payments in lieu provisions of Part II must be taken into account. This is no time for legalistic technicality. The problems arising may be stated simply and shortly.
  Sites, buildings and objects of architectural, historic or archaeological interest under paragraph (a) of the amendment are covered by Clause 19 of the Bill which provides that scheduled monuments, ancient monuments and listed buildings shall be restored to their former condition so as to maintain their special interest. Paragraph (b) of the amendment takes no account whatever of the payment provisions in Part II of the Bill. Although remedial action will normally be taken by works, the use of the term "proposed activities" in paragraph (b) of the amendment is not consistent with the payment provisions in Part II of the Bill. Furthermore, this amendment is concerned with the formulation or implementation of proposals for remedial action in Part II of the Bill. That has to be considered in context with the duty to take remedial
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  action in Clause 2, and the schedule of remedial works under Clause 6(2) (a) which requires the damage to be made good,
  "so far as it is reasonably practicable to do so, to the reasonable satisfaction of the claimant and any other person interested".
  Under Clause 7 there is the obligation to execute the works as soon as reasonably practical. The payments in lieu provisions under Part II designate that the claimant or other interested person is entitled to payment. It is the claimant not the corporation which sets the standard of repair. In most cases he will insist that the land is restored to its former condition. In those cases there is no need for the amendment, but in others the effect of the amendment would be to make the corporation responsible for ensuring that the claimant has due regard for the environment. That is a responsibility which may not be discharged by the corporation because no powers to such purpose exist under the Bill or under any extant statute.
  Another effect of the amendment is that it limits the protection of natural beauty and so forth and the heritage as set out in paragraph (a) of the amendment to cases where subsidence damage has occurred. In practical terms how can a corporation, in formulating or implementing proposals for remedial works, require the landowner to take such matters into account by making good subsidence damage to his satisfaction when such matters do not have to be taken into account by the landowner when carrying out improvements or developments to his land?
  7.30 p.m.
  Lord Renton: It may save the time of the Committee if I point out that the provision had to be limited to subsidence damage because of the Long Title of the Bill, which deals with that matter. I have listened carefully to my noble friend, but I cannot find anything in the Bill (even the provisions that he has mentioned) which is inconsistent with the amendment.
  As regards Clause 19, on which my noble friend relies, it applies only to ancient monuments and listed buildings. The amendment goes a good deal further in preserving natural beauty and so forth.
  Lord Campbell of Alloway: As to the charge made that there is nothing in the Bill which is inconsistent with the amendment or vice versa, there are two specific instances which alone will perhaps suffice. Paragraph (b) contains the words "proposed activities". That, and the whole concept of the amendment, ignores and excludes the financial payment in lieu provisions under Part II of the Bill. That is my view. My noble friend can shake his head, but we are entitled to differ and I do.
  The second point of total conflict is the concept that under the Bill it is the claimant who has to have everything restored—if he has it restored—to his satisfaction. The amendment seeks to put that duty on the shoulders of the corporation. That is in conflict with the Bill. Therefore, the amendment drives straight into the broad construction of the Bill. For that reason alone it is defective and not acceptable.
  Another effect of the amendment is that it limits the protection of natural beauty, as set out in paragraph

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  (a) (which I call the "heritage") to cases where subsidence damage has occurred. How can a corporation, in formulating and implementing proposals for remedial work, require the landowner to take such matters into account when they do not have to be taken into account by him when redeveloping the land and so forth? Under the Bill the environmental duties as proposed by the amendment lie within the province of the landowner. I speak with deference and will listen with the greatest possible care to everything that is said. I accept that I may be wrong. I also accept that my noble friend Lord Renton is probably right. However, that is how I see the amendment. If one is addressing the Committee, it is no use addressing it in someone else's shoes.
  Baroness David: I do not think that I shall try to join in the battle between the two legal Lords. I say to the noble Lord, Lord Campbell of Alloway, that the Public Bill Office accepted the amendment. Presumably therefore it allowed the amendment to be put down, which means that it falls within the Long Title of the Bill. I shall confine my remarks to supporting the amendment moved by the noble Lord, Lord Renton. During the passage of the Coal Industry Bill last year, in response to an amendment moved by the noble Lord, Lord Norrie, the Government accepted that an environmental duty should be placed on the private sector opencast mine operators. He limited his amendment to opencast mining after discussions with the Government, but he indicated that he would seek the first legislative opportunity to return to the more general issue of British Coal's environmental responsibilities, especially as they relate to the deep mine sector.
  That is what the noble Lord is doing now in the amendment in his name and moved by the noble Lord, Lord Renton. The Bill provides an opportunity to complete the job and to ensure that the industry as a whole is governed by appropriate environmental responsibilities. It will create a level playing field by bringing deep mining into line with the opencast sector. That is especially important in the run-up to the possible privatisation of British Coal. The Bill provides the last opportunity to ensure that the industry as a whole faces restructuring, with its environmental responsibilities clearly defined.
  One of the arguments against a statutory environmental duty was cited by the Minister during Second Reading. It is that there is no need for such a duty as the planning process provides adequate environmental safeguards. The Minister quoted two planning decisions in support of that argument; namely, those of Selby and Hawkhurst Moor. The Minister pointed out that planning permission was refused at Hawkhurst Moor because British Coal had failed to address properly the environmental implications of the proposal.
  In our view the Hawkhurst Moor decision precisely illustrates the need for a statutory environmental duty on British Coal's deep mine operations to strengthen and complement its existing commitments under the
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  planning system. A recent edition of Planning magazine of 1st March of this year commented on the Hawkhurst Moor decision that,
  "it is not difficult to escape the conclusion that British Coal is still lacking in sophistication over its environmental stance".
  The inspector went on to detail a number of separate failures on the part of British Coal in considering the environmental impact of the proposals. I shall not take up time to quote those now. In our view, and in the view of the Council for the Protection of Rural England, the Hawkhurst Moor decision illustrates the invaluable role of the planning system in protecting the environment against manifestly unsuitable proposals for coal mining activities. However, it also clearly illustrates the urgent need for a statutory environmental duty to focus the mind of British Coal when planning new investment. That would help to avoid the waste of significant amounts of time and money involved in public consideration of clearly inappropriate planning applications. I hope that that response to the Minister will convince him that perhaps his earlier remarks were not entirely suitable. I have great pleasure in supporting the noble Lord, Lord Renton, in his amendment.
  Lord Campbell of Alloway: I hate to interrupt the proceedings, but perhaps the Committee will forgive me if I ask the noble Baroness whether she appreciates that I was not saying that the amendment is in any way out of order. The amendment has been accepted by the Public Bill Office. The amendment is totally in order and falls within what is permitted. However, what is permitted, as this is a Government Bill, is to enlarge the scope of the title. The Public Bill Office accepts that. All I am suggesting, with respect, is that it is not appropriate to enlarge the scope of the general intendment of the Bill; that this is really a matter for a general environmental Bill. I mention that only because I want to explain what I was trying to put over.
  Baroness David: We do not have an environmental Bill. We cannot really be blamed for taking the opportunity that is on offer here.
  Lord Ezra: I have considerable sympathy for the amendment moved by the noble Lord, Lord Renton, and supported by the noble Baroness, Lady David. I should like to say that, from my experience, the coal industry was very conscious of the environment and did everything it could to preserve it. Nonetheless, there ought to be a statutory statement of intent and an obligation on such a large organisation to accept the very highest environmental standards.
  However, where I am a little doubtful is whether this is the appropriate place for such an amendment; particularly as it is purely limited to the impact of subsidence. The noble Baroness, Lady David, spoke about investment in coal mining operations. That would not be covered by this amendment at all. Although it might be difficult to visualise in what other impending legislation such a clause might be introduced, I feel that it is of very limited impact, put forward as it is in the context of a Bill dealing exclusively with subsidence. Therefore, while I

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  support the concept I have some doubts as to whether it is really appropriate to include it, as drafted, in this Bill.
  7.45 p.m.
  Baroness Nicol: I, too, support the amendment, even though I appreciate the limitations which are laid on it by the kind of Bill we are discussing. As my noble friend Lady David said, it seems reasonable that the whole industry—deep mining as well as opencast—should have some regard to the need to protect the environment. This is a good opportunity to put the issue before the industry.
  As we have heard, such duties exist already. Two previous coal Bills have been mentioned. I have a list of nine Bills in which this specific kind of duty is laid on an undertaking. I shall not weary the House with reading them all. However, I should like to mention those which were enacted in the 1980s, during the time of this Government. The Wildlife and Countryside Act 1981 laid such a duty on the water authorities and on the Forestry Commission. The wording, as I recall—and I must confess that I have not checked it this evening—is very similar to that now before your Lordships. The Agriculture Act 1986 gave the Minister a duty to balance environmental interests. The Water Act 1989 gave the Secretary of State, the Minister, the director and every relevant body such a duty. The Electricity Act 1989 gave that duty to the Secretary of State, the director and licence holder. Those examples establish a precedent for this kind of amendment.
  The Government appeared to accept the need for British, Coal to consider the environmental impact of its activities. At Second Reading the noble Lord, Lord Cavendish, said:
  "I wish to stress that I am completely committed to the importance of British Coal taking full account of the environmental impact of its activities. There is nothing between us in principle on that point".—(Official Report, 17/5/91; co1.1884.)
  He went on to say that an attempt to put this kind of amendment in the Bill would trivialise those responsibilities. However, that is not the view of the Council for the Protection of Rural England which has considerable expertise in these matters. The noble Lord's theory is not supported in other areas of responsibility, as I have shown in the quotations I have just given.
  The coal mining industry undoubtedly has an impact in general; transport links, mine water discharge, spoil disposal, and so on. We cannot approach those in the Bill, and I understand that. However, even within the limits of the Bill a sensitive approach can make a considerable difference to what happens in the restoration of subsidence damage. Without a statutory requirement such a careful approach from British Coal cannot be relied upon. I therefore support the amendment.
  Lord Cavendish of Furness: I understand well noble Lords' reasons for tabling this amendment. I can assure them that I, too, share their concern for the environment. The intention behind the amendment is clear: British Coal should take into account the
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  environment when undertaking remedial action. But we are being asked to consider a specific amendment to this Bill and therefore we have to look at the actual effect it would have if applied.
  The Bill is so arranged as to ensure that remedial action will generally mean that British Coal either undertakes repairs itself or enables the claimant to use his own contractor to undertake repairs. The amendment refers to flora, fauna, buildings of special architectural interest, and so forth, described by my noble friend as heritage, so it would not therefore have any application to repairs to ordinary domestic properties.
  The first point I should like to make is that,
  "sites, buildings and objects of architectural, historic or archaeologic interest",
  are already covered by Clause 19. That clause provides that scheduled monuments, ancient monuments and all listed buildings will be restored to their former condition so as to maintain their special interest. I think the Committee must agree that if, say, a listed building is repaired to its former condition the concerns which have prompted this amendment will have been fully met. I therefore suggest that that part of the amendment which refers to listed buildings, and so forth, is possibly redundant.
  I now turn my attention to repairs to land since that is what could have an impact on flora, fauna, and so forth. The key factor to bear in mind is the standard of repair for land as set out in the Bill. Clause 6(2) (a) requires British Coal to make good the damage to the reasonable satisfaction of the claimant. That is a fundamental reason why this amendment cannot work. My noble friend Lord Campbell of Alloway went straight to the heart of the matter. Clause 6(2) (a) means that it is the claimant, not British Coal, who sets the standard of repair. In almost all cases the claimant will insist that the land is restored to its former condition, in which case the anxieties expressed in the debate do not arise.
  Conceivably, however, a claimant might decide that he would prefer repairs that resulted in an outcome that was somewhat different from the pre-damaged condition of the land in question. Under these circumstances, the effect of the amendment would be to put British Coal in an invidious, some would say impossible, position. It would have to take into account the desirability of preserving natural beauty and so forth when effecting repairs, and yet it is the claimant, not British Coal, who sets the standards. What the amendment would do, in other words, would be to place a responsibility on British Coal's shoulders which the Bill does not give it the power to carry out; or, to put it another way, the effect of this amendment would be to make British Coal responsible for ensuring that the claimant has due regard for the environment. This is neither fair, nor sensible, nor workable.
  A further difficulty with the amendment is that it limits the protection of natural beauty and so forth to cases where subsidence damage has occurred. But what is the logic for requiring British Coal to require a landowner to take into account flora and fauna when he is determining how subsidence damage is

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  being put right if the landowner can ignore flora, fauna and so on when redeveloping his land, carrying out improvements or whatever? It simply makes no sense to restrict protection of the environment to those few occasions when land is damaged by subsidence.
  The noble Baroness, Lady David, said that this is where the amendment would complete the job. I remind her that the amendment does not apply to British Coal's deep mine activities. It is anything but complete. This would be about as sensible as relying exclusively on the Bill to ensure the protection of listed buildings. The point of course is that there is a comprehensive regime for protecting listed buildings. The real question is whether there should be a similar regime to ensure that there are adequate requirements on landowners to preserve the natural beauty of their land. This is a question which goes far beyond the repair of subsidence damage and should be addressed comprehensively in the context of the existing planning regime, not in the context of this Bill.
  The amendment is deficient in terms of its workability—because it places the responsibility on British Coal when it should be placing it on the landowner—and in terms of its scope—because it is limited to repairs following subsidence damage. More generally, while we must all be concerned to protect the environment, it does not follow that it makes sense to tack on to Bills which make provision for a detailed statutory regime general duties of the kind proposed by the amendment. The Coal Mining Subsidence Bill is itself entirely intended to mitigate the adverse effects of coal mining and to restoring both the natural and man-made environment. I do not believe that the proposed amendment would add to the measures proposed in the Bill, and indeed, as I have explained, it would in fact detract from them.
  It is important to stress that British Coal already takes its environmental duties seriously, a point raised by the noble Lord, Lord Ezra. In January of this year it adopted a framework policy statement on the environment. The statement covers every aspect of the corporation's business and sets out its responsibilities to the community and its concern for the environment. This is a worthwhile initiative and is to be welcomed.
  I remind the Committee—and in this respect I take the opposite view from the noble Baroness, Lady David—that the Government plan to privatise the coal industry after the next election. The environmental responsibilities of the privatised industry are clearly one of the issues which will have to be addressed. It may be that a privatisation Bill would be a more suitable context for consideration of a general environmental duty underpinning the coal industry's operations. The precedents advanced by my noble friend Lord Renton and the noble Baroness, Lady Nicol, are far more akin to that kind of proposed legislation than to the Bill before us. I therefore urge my noble friend to withdraw the amendment and to leave consideration of this important issue to a context where it would actually produce benefits.
  Lord Renton: I am grateful to all those who have spoken in the debate. I am especially grateful to my
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  noble friend Lord Cavendish for his full reply on behalf of the Government. I shall naturally wish to consider carefully what he has said.
  There was common ground between all those who spoke in the debate that it would be highly desirable if a general obligation were placed on British Coal to have regard to environmental factors not only in relation to mining subsidence but also, as was stressed by the noble Lord, Lord Ezra, in relation to other matters as well. I recollect from my own time at the Ministry of Power that the work done in restoring land after opencast mining was mostly extremely well done. There has been no technical difficulty about a statutory obligation towards the landowner and an obligation to do what is necessary to protect the environment. In relation to the Electricity Act 1957, there is an almost precisely similar obligation. No such problem has arisen there. If there is such a problem in this Bill it can be rectified perfectly easily by redrafting.
  As I said in reply to my noble friend Lord Campbell of Alloway, I do not consider, having naturally read the Bill before I tabled the amendment, that the obligation placed on British Coal to satisfy the landowner is in any way consistent with placing on British Coal an obligation, in formulating its plans and in implementing them, to do what is necessary to protect the environment and the heritage.
  I conceded at the outset that my amendment overlaps with Clause 19. I should have mentioned that I was moving it as a probing amendment in order to give Members of the Committee on both sides an opportunity to consider this important matter, which should not be ignored in relation even to mining subsidence. I am grateful to those who have expressed views on the matter. I hope that we shall not lose sight of it. I may come back to it at a later stage, having taken advice on any consequential amendments that may need to be considered. Meanwhile, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clauses 19 to 27 agreed to.
  Clause 28 [Payments for tenant farmers]:
  Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 2:
  Page 21, leave out lines 36 to 47 and insert:
  ("C is the compensation which would have been payable to the agricultural tenant under section 20 of the Compulsory Purchase Act 1965, had the land been compulsorily acquired at the relevant time.
  V is the value of the land with vacant possession at the relevant time, if it had not been affected by the subsidence damage.
  D is the amount of the depreciation payment made to the owner of the land.
  (2) The Corporation shall not be liable to make a payment under this section to any person who has received a depreciation payment in respect of the same damage, but this section shall not prejudice the right of a tenant farmer to make a claim under section 30 of this Act.").
  The noble Lord said: An amendment similar to this was debated in another place on 5th March and an undertaking was given by my honourable friend Mr. Heathcoat-Amory that he would look at this problem again. Therefore, I raise this matter once again with some little hope.
  The intention of the amendment is to make sure that the agricultural tenant is in the same situation as if he were faced with compulsory purchase. The Committee can read in the amendment that this has been cone by altering the meaning of items C, V and D in the Bill's formula. I can explain the detail of item C, which is the vital one, if Members of the Committee wish it. In brief, it refers to the compensation terms laid down under Section 20 of the Compulsory Purchase Act 1965, whereas in the Bill the terms are laid down under Section 12 of the Agriculture (Miscellaneous Provisions) Act 1968.
  I hope that my noble friend on the Front Bench will be able to agree that reference to Section 20 of the Compulsory Purchase Act 1965 is a fairer way of compensating tenant farmers than reference to the Agriculture (Miscellaneous Provisions) Act 1968. I beg to move.
  8 p.m.
  Lord Cavendish of Furness: As presently drafted this clause provides for compensation to tenant farmers when the corporation makes a depreciation payment to the owner of any agricultural land. In those circumstances, the tenant would get a payment based on the provisions of the Agriculture (Miscellaneous Provisions) Act 1968. The entitlement under the 1968 Act is four times the annual rent. In the case of subsidence damage, however, the tenant has not necessarily lost the land. The payment is, therefore, modified to reflect the degree of depreciation caused to the holding. For example, if the owner was paid £1,000 to reflect the depreciation on a £10,000 holding of land, the tenant farmer would get 10 per cent. of four times his annual rent.
  The practice of paying compensation to a tenant farmer based roughly on the compensation he would have received had his farm been compulsorily purchased was introduced by British Coal in its 1976 code of practice. Even in 1976 that did not represent the full range of compensation available to a tenant farmer whose farm was compulsorily acquired; for example, it took no account of the value of the unexpired term or interest in accordance with Section 59(2) (a) of the Land Compensation Act 1973 and Section 20 of the Compulsory Purchase Act 1965. Nevertheless, it served as a useful approximate and ensured that the tenant farmer received some compensation.
  My noble friend's amendment is designed to bring compensation for tenant farmers more into line with the full range of compensation available, in the event of compulsory purchase applying, with the provisions of Section 20 of the Compulsory Purchase Act 1965. In summary, the amendment would mean that a tenant farmer would be entitled: first, to compensation for the value of his unexpired term or interest; secondly, any just allowance, usually referred to as "tenant right"; and, thirdly, compensation for loss or injury.
  I applaud the spirit of my noble friend's amendment but, having considered the practical effect of it, I have to say that it has made me realise that one has to be careful not to push too far the analogy
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  between compulsory purchase and subsidence damage. The most obvious difference is that, with compulsory purchase, the tenant farmer actually loses his land. With subsidence damage, however, the tenant farmer's land may suffer a serious depreciation in value but he is generally going to be left with land which still has some value. He may well be able to obtain a reduction in rent to reflect the depreciation in value and this, combined with the existing compensation provisions, should enable him to obtain more land, leaving him overall in something resembling his former position. A further complication arises because subsidence damage can happen on a number of occasions depending on the degree of undermining. Compulsory purchase, on the other hand, is a one-off event.
  For those reasons it seems to me that one must have some care about applying in a simplistic fashion the compulsory purchase arrangements to cases of subsidence damage. One must also recognise that many of the circumstances that the compulsory purchase provisions are designed to cover are, in fact, already covered by the provisions of the Bill. For example, "tenant right", which includes compensation for growing and harvested crops and produce is already covered by Clause 27 which deals with crop losses. Expenses such as removal cost are unlikely to be incurred unless the subsidence damage is so severe that the tenant farmer has to leave the land. In addition, up to the time the depreciation payment was made the tenant farmer will probably have been entitled to payments under Clause 30 in respect of loss of profits.
  While it is important that a tenant farmer should be properly compensated in the event of subsidence damage, it would not be right to compensate him twice for the same expenses. I should, therefore, like to consider the matter further to see whether or not the Bill as presently drafted adequately compensates the tenant farmer. If it does not, and if I cannot satisfy myself in that respect, I would expect to bring forward an amendment at a later stage.
  Lord Stanley of Alderley: I thank my noble friend for his response. I understand what he said, but there are just two points I should like to make. The first refers to the fact that he seemed slightly to assume in his remarks that the tenant would be able to obtain other land. However, in all probability—and I see that the noble Lord, Lord Carter, is smiling—he will not be able to do so. Therefore, he will be stuck with that piece of land. Secondly, perhaps my noble friend would be kind enough to look at subsection (2) of my amendment. I believe, and hope, that that deals with the possibility of the tenant trying to claim twice, as he suggested in his response.
  In the meantime, I accept my noble friend's offer to look again at the matter. I understand the difficulty as regards drafting. Nevertheless, I hope that he will be able to put forward an alternative on Report. In the circumstances, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 28 agreed to.
  Clauses 29 to 36 agreed to.
  Lord Peston Lord Peston moved Amendment No. 3:
  Before Clause 37, insert the following new clause:
  ("Advice centres
  .—(1) The Secretary of State shall, after consultation with the Corporation, ensure that the Corporation shall establish advice centres within three months of the commencement of this Act.
  (2) The advice centres shall offer, free of charge, advice to all claimants in need of legal or technical advice on any matter relating to coal mining subsidence.
  (3) The advice centres shall issue guidelines on the making of claims under regulations made under the provisions of this Act.
  (4) All reasonable expenses of the advice centres will be met by the Corporation.
  (5) The Corporation shall submit to the Secretary of State an annual report on the working of the advice centres to be established under the provision of this section.").
  The noble Lord said: In speaking briefly to this amendment, I should like to reiterate the point that I made on Second Reading; namely, that the general view of the Opposition on the Bill is that we are supportive of it. I am introducing these amendments in the hope that one or two of them may interest the Government and with the view that they may strengthen the Bill. However, it not my desire to be interpreted as wishing in any way to undermine the basic principles of the Bill.
  This amendment arose from a subject that was debated in another place and which was also raised in this Chamber on Second Reading. I have given the matter further thought. As I see it, the essence of the matter is that none of us disagrees on the importance of advice. Where the corporation, under Clause 26, meets its duty of notifying individual owners and occupiers that there is a risk of subsidence damage and notifies local authorities of such matters, it has already taken an important step forward. Of course, such notices are available free of charge so there is no problem in that respect.
  The real question is, what does a person do who believes himself to be affected by subsidence damage? I shall return to the point of the difference between the factual statement that the people concerned "are affected" and the statement that they "believe that they are affected". That is partly what troubles me.
  At that stage, it seems to me that what one has to do is most important and that what is required is advice. What one should do in such circumstances is by no means obvious from the Bill as it stands, even though the legislation provides that when one makes a claim all one's expenses will be reimbursed. In other words, the Bill is fairly favourable on that account. However, it does not say, "Well, the best thing to do is this …". One may go to a citizens' advice bureau or one may go to a law centre. I believe that it would be wholly advantageous—and, indeed, wholly advantageous in terms of the corporation's interest —if independent advice centres or bureaux were to be set up which could deal with this kind of problem.
  In that connection, I have studied what I believe to be a ministerial statement from another place, but I have some difficulty in understanding the ministerial objection to the setting up of such advice centres. I have also learnt that the coal industry has endeavoured to be helpful in the matter. Indeed, it
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  voluntarily introduced at the beginning of the year a new low-cost independent arbitration scheme which is operated by the Chartered Institute of Arbitrators. That seems to me to be a good idea. However, my amendment goes further than that in its proposal to set up these advice centres.
  I shall now raise a related issue. It is one to which I may wish to return at a later stage before we finish our deliberations on the Bill in two or three weeks' time. I refer to the distinction between being affected by subsidence and the belief that one is or might be so affected. In other words, everyone recognises the fact that this is not quite a hard-and-fast matter; essentially, we are dealing with risk and uncertainty. This is something that can happen and it may be that one is affected. People have written to me on that precise subject. For example, in addition to the physical damage caused, people can suffer psychologically as a result of worrying about such risks.
  All that comes under the general heading of "blight". I am not convinced that the Bill as at present drafted fully deals with blight, especially since there is some question about the physical area to which compensation applies. It is not obvious that defining the area in the way the Bill does will cover all the problems associated with blight, if by that one means that, at least in part, there has been a fall in the value of property because, so to speak, "somewhere over there" mining is taking place. Those are the issues that I have in mind.
  On the general subject of blight and uncertainty, I do not believe I have yet got to grips with how to deal with the matter. The Bill deals with it to some degree. I do not believe that my amendment covers that issue. I am just warning the Minister that the subject is still on my mind and I shall try to find a way of returning to it. In what is, as is agreed, a useful Bill, it would have been a distinct improvement—I do not accept that it would be costly—if we had tried to do something more about advice centres, which is why I have tabled the amendment. I beg to move.
  Lord Ezra: The noble Lord, Lord Peston, has made an important point. The whole purpose of the Bill is to give even greater protection than has existed hitherto to persons who are, or could be, affected by mining subsidence. The way in which the coal industry has responded to the Bill and the action it has taken to support it shows that the industry is ready to try to make the Bill work. The question is how those who feel that they are, or are likely to be, affected by subsidence can be advised. It is important that they should be advised. They must feel that there is somewhere they can go to obtain a statement and an indication of what their rights are, what procedures they should follow and so forth.
  However, I am a little reluctant to suggest that we impose upon the coal industry the added cost, which may or may not be large—we can argue about that—involved in setting up separate advice centres. Would the point raised by the noble Lord, Lord Peston, be met if, in coal mining areas, especially those where subsidence was a possibility or had occurred, the relevant coal organisation made it known, through the press or other media, where on the coal industry's,

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  premises people could obtain advice? As the coal industry is supportive of the Bill's intent, it would be reasonably objective in providing the information. The industry would have it at its disposal. The people living in mining areas would know where the offices of the various coal mining enterprises, the mines and other organisations are located, and I should have thought that the point could be properly met in that way rather than going to the expense of finding separate premises, staffing them with people who would have to be trained, and therefore incurring added expense.
  8.15 p.m.
  Lord Cavendish of Furness: First, I should like to thank the noble Lord, Lord Peston, for giving the Bill an overall welcome. I shall deal with one of his last points. first. He mentioned his continuing anxiety about blight, and I thank him for giving me notice that he would raise that matter. If he feels that there is anything that would be usefully discussed between now and the next stage, it would be simple to arrange a meeting.
  The issue has been discussed on a number of occasions. I regret to tell the Committee that nothing I have heard today would make me wish to depart from our position on this issue. I make no apologies for repeating the Government's position in some detail
  Advice centres miss the real point. We should not be aiming to assist claimants to negotiate a complex claim process. We should be concentrating on making the process simpler so that a claimant will not need detailed advice.
  Let us look at how the system for a householder making a claim will work in future. He is first individually notified that his property may be damaged by subsidence. At the same time he will received a copy of an advisory leaflet explaining how to make a claim. Subsequently, he notices damage. He knows that the damage may well be due to subsidence and therefore makes a claim to British Coal. Unlike the present position, in future there will be only one Act governing claims and only one claim form. British Coal will then say whether or not it accepts the claim, and if it does, what remedial action it proposes. If there i s any dispute about the rejection of the claim or the nature of the remedial action, the householder can refer the matter, as was acknowledged by the noble Lord, Lord Peston, to the low-cost, speedy arbitration scheme for subsidence disputes operated by the Chartered Institute of Arbitrators. British Coal will send all claimants details of the new scheme, including application forms, so householders will be aware that that option is open to them.
  To submit a dispute to arbitration all the householder need do is send the chartered institute the application form which describes the nature of the dispute. That does not have to be done in technical language and specialist advice is unlikely to be necessary. One must also remember that in the event of a dispute the claimant does not have to prove that
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  damage is due to subsidence. The onus will be on British Coal to prove that the damage is not due to subsidence.
  The arbitrator may ask for further information from the claimant but, if the dispute raises technical issues, it is the arbitrator, not the claimant, who will obtain the necessary expert advice. The arbitrator may call for expert evidence; he may visit the property in question; he may sit with one or more independent technical advisers; and he may commission an independent examination of the subject matter of the dispute. In any event, British Coal will bear the costs involved in obtaining such further independent advice.
  At no point during that process would the claimant necessarily need any technical or legal advice. Relevant information about undermining, making a claim and resolving disputes would all have been provided automatically. Against that background, I am not clear that an advice centre would have a real role to play. It does not seem sensible to spend money on technically trained people just in order for them to advise the claimant that they should fill in a claim form, not to pay for lawyers to advise that perhaps the claim should be referred to the Chartered Institute of Arbitrators' scheme, the point mentioned by the noble Lord, Lord Ezra.
  I am not suggesting that technical or legal advice will never be necessary, but better notification procedures and the new arbitration procedure should reduce considerably the need for specialist advice. Where specialist advice is necessary I would remind the Committee of the provisions of Clause 38 which provides for all a successful claimant's reasonably incurred expenses to be reimbursed.
  If local authorities feel the need to provide additional advice to householders, they are of course free to do so. Under Clause 47, the corporation is obliged to inform local authorities of its mining plans. British Coal has also assured me that it will provide assistance and information to local authorities. It wants to make the operation of new legislation as transparent as possible and has offered to make available to local authorities and others its new internal manual of procedures, which will be prepared in the light of the new legislation. That confirms what the noble Lord, Lord Ezra, said about the corporation's willingness and desire to make the legislation work. It has also offered to make available the new internal training video when it is prepared and to provide information to local authorities on an ad hoc basis. I am sure the Committee will agree that those are helpful initiatives which are to be welcomed. Against the background of that greatly increased supply of information, I can see little to justify the extra expense of advice centres along the lines envisaged in the amendment.
  I should also like to point out that I am not aware of any of the proponents of advice centres in this place or the other place having made any attempts to quantify the costs involved. I fail to understand how one can argue that advice centres are justified without having done so. Nobody is arguing that advice centres are intrinsically bad. The question is, do the benefits

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  justify the costs? Arguing in favour of an advice centre without having attempted at least to make a broad brush estimate of the costs is, in my view, open to serious objections. I have made it clear that I consider the benefits likely to be minimal and the costs likely to be considerable. I have heard no arguments or figures tonight to suggest that either of those propositions is wrong. In the circumstances, I ask the noble Lord to consider withdrawing his amendment.
  Baroness Seear: My Lords, before the noble Lord sits down, I am totally ignorant of the subject but listening to what the noble Lord said, it is obvious that there is a comprehensive and no doubt expensive arbitration scheme. It has been set up to deal with claims once they are made. There are always slightly crackpot people who think they have a claim. They should be advised sensibly whether or not they have one; and it is not only crackpot people.
  Before one reaches the stage of filling in the appropriate form one should seek advice. I can imagine people worrying, "Have I got subsidence? Will it mean that the end of my garden will collapse?" They ought to be able to ask someone, without entering into the elaborate procedure of filling in forms and being told by someone knowledgeable, "You have nothing to worry about". Alternatively, they may be told, "You have something to worry about. Now go and fill in the form". It could be something quite simple. Perhaps a specialist in the union could be financed to carry out that kind of activity. However, people should not and do not want to reach the stage of filling in forms and going to arbitration, which incurs costs.
  Lord Cavendish of Furness: My Lords, I understand the anxiety of the noble Baroness. We are dealing with people who do not feel able to cope with such a problem at the early stage. I am confident that the simplicity of the procedure and goodwill on the part of the corporation to try to make this work will cover the problem. There is a stage before the arbitration procedure: the simple filling in of a claim in one's own words, stating what is wrong.
  I take the point made by the noble Baroness. I shall leave the matter for the moment and write to her. I believe that I shall be able to reassure her that there is no anxiety. I certainly feel none.
  Lord Peston: My Lords, I thank the noble Lord for his reply and other noble Lords for intervening. Following the remarks of the noble Lord, Lord Ezra, I believe that the Bill leans over backwards in order to help the affected party, but it would not have to go much further to deal with the whole matter. Since it has gone so far to help the people affected, I am puzzled as to why it should not go a little further along the lines of the suggestion put forward by the noble Baroness, Lady Seear. I do not ever expect to be involved in such difficulties myself, but if one is affected then it seems a big problem.
  This is not a simple matter of filling in a form. One is concerned about possible costs and similar problems, and that is why I see advice centres as a
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  solution. I entirely accept the noble Lord's view about costs and if I had known it before I would have worked on the matter. One ought to cost these suggestions, which is something that I am quite good at. I am sorry that he should tell me, as late as this, that I ought to have done so. He believes, a priori, that the costs are large and the benefits small. I am prepared to tell him that, a priori, the costs are small and the benefits large.
  More seriously, it had not occurred to me that this was a highly costly business. I would not press it if I felt that it was. Nonetheless, the noble Lord made the point and he has given the Government's reply. We have done our duty and I say no more. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 37 agreed to.
  Clause 38 [Reimbursement of successful claimants' expenses]:
  Lord Peston Lord Peston moved Amendment No. 4:
  Page 32, line 6, at end insert:
  ("(1A) The Corporation shall also pay any costs or expenses reasonably incurred by the householder served notices under section 46 subsections (4) and (6) below").
  The noble Lord said: My Lords, with your Lordships' permission, I shall speak also to Amendment No. 6. I can be brief as the arguments are similar to those which I have just deployed. Central to what I have in mind is that there is a risk of subsidence damage, but no certainty. That is the nature of the problem. If the risks a priori—I seem to use that expression all the time—were high enough, even if they turn out to be groundless, it seems reasonable to me and, I hope, to all noble Lords that the householder should be reimbursed for the costs involved in dealing with all the problems. Equally, we do not wish to encourage people to engage in frivolous surveys and waste a lot of money, taking it for granted that they will be compensated if it turns out that there is no subsidence damage. This is one reason why my earlier amendment on advice centres is relevant.
  It seems to me that with Amendment No. 4, the proposal that,
  "The Corporation shall … pay any cost or expenses reasonably incurred",
  is quite a good way of reassuring people who believe that they are affected, whether or not it turns out that they are.
  The other point is a straightforward technical one. If someone carries out a survey on a property as a form of protection in case there may be a subsidence problem and a claim for compensation, they will incur expense. I may be wrong, but, as I understand it, if more than three years go by from that date before there is progress with the mining operation which might cause subsidence before the damage occurs—and I wait to be told that I am mistaken—the Bill would not allow repayment for premature expenditure.
  Therefore, my Amendment No. 6 replaces "three" with "six" and goes more in the direction of saying, "If you think you are worried, then incur some basic expenditure right away". Even if it is quite a few years

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  before that person gets to grips with the subsidence, he will be covered in terms of recompense. That is all I have in mind. I beg to move.
  Lord Cavendish of Furness: My Lords, Clause 38 allows a claimant to recover the reasonable costs of preparing and pursuing a successful claim for subsidence damage against British Coal. My hope is that the Bill will greatly simplify the procedures for dealing with subsidence damage and that expert advice will generally be unnecessary. However, there will be cases where expert advice is required as it is important that the claimant should be able to recover his reasonably incurred costs if he is to be able to secure his rights.
  Expenses are already defined in subsection (2) of Clause 38 in a way which enables a claimant to obtain a record of condition of his property should he so wish and claim back the costs in the event of a successful claim. Such surveys may well follow the individual notification of householders introduced in Clause 46.
  British Coal will itself undertake records of condition where necessary, but in the majority of cases there will be no need, given that repairs will be to the claimant's reasonable satisfaction and not necessarily to the pre-damaged condition. I can nevertheless understand that a householder may feel happier if he commissions a record of condition in advance of mining. If the householder subsequently makes a successful claim against British Coal, it seems to me right that he should be able to reclaim the costs of the records of condition. But because there is generally no operational need for records of condition there is no case far reimbursing the cost of a survey if, in the event, there was no subsidence damage. If Amendment No. 4 were passed British Coal might as well stamp on the bottom of its Section 46 notices "Dear Householder, this voucher entitles you to a free record of condition at British Coal's expense". I am afraid I cannot convince myself that this is a sensible use of British Coal's resources.
  It is also important to note that Amendment No. 4 as drafted would go beyond simply the commissioning of a record of condition. A claimant could also go out and spend significant sums of money on precautionary works; for example, he could dig trenches round his property, or make slits in the sides of buildings, and then send the bill to British Coal. There are two basic objections to this. First, mining plans can and do change for reasons that are not foreseeable, such as unexpected geological faulting. That means that considerable sums of money could be spent to prevent damage from subsidence which never in fact takes place.
  Secondly, the costs of such measures are frequently out of all proportion to the damage they minimise. The average cost of settling a subsidence claim is, after all, only about £3,000. If, however, the costs make sense In view of the likely damage, Clause 33 already empowers British Coal to require measures to be taken at its expense. The government position regarding preventive and precautionary measures is quite clear. British Coal should execute such works or require others to do so only when there is a clear economic case for so doing. Amendment No. 4 seeks
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  to enable the carrying out of such works where there is no such justification and therefore should be resisted.
  The Committee will have noted that Clause 38 enables the claimant to recover the reasonable costs associated with the prosecution and preparation of a claim incurred in the three-year period prior to a claim being made. Amendment No. 6 would extend the period to six years.
  Three years should be more than adequate for a claimant to establish whether or not he has a claim, particularly when one remembers that the onus will be on British Coal to prove that damage is not due to subsidence. In other words, a claimant does not have to spend a lot of time building up a case. He can simply make a claim on the basis that he thinks damage is due to subsidence and leave it to British Coal to try to show otherwise. Expert advice may be required on other aspects of the claim, such as the method of repair recommended by British Coal, but these expenses will be incurred after the claim has been made and will not therefore be caught by the three-year period.
  The advantage of a three-year period is that it gives the claimant an incentive to make a claim reasonably promptly. This tends to be in everyone's interests because the longer the delay between damage appearing and a claim being made, the greater the scope for otherwise avoidable arguments about, for example, the extent to which some of the damage might be due to natural wear and tear and unconnected with subsidence.
  The three-year period will, of course, also apply to records of condition. I have already indicated that in my view records of condition are not essential. One must also bear in mind that the longer the period of time between the record of condition and the claim, the less its usefulness. In my view a six-year-old record of condition may well be of little or no use in assisting with the final settlement of the claim. I shall read carefully what the noble Lord, Lord Peston, said as regards Amendment No. 6 as I wish to satisfy myself that the Bill is fair. I shall reconsider the matter without commitment to see whether there is a case for returning with a government amendment.
  8.30 p.m.
  Lord Peston: I thank the Minister for his extremely interesting reply. He brought out clearly the need to balance prudent behaviour with possible frivolous behaviour on the part of the householder. I take the noble Lord's point on that matter. Essentially he is saying that British Coal could be in the position, as it were, of saying, "Please have a survey done at our expense". Obviously I do not wish that to happen. However, if someone thinks about the possibility of damage in a sensible manner, and has a survey carried out or takes a few preventive measures, and it turns out ex post facto that such action was unnecessary, that does not mean it was stupid ex ante facto to have taken that action. We should not take it for granted that such a person should not be compensated.
  My amendment may not be technically brilliant. I chose the word "reasonably" to illustrate the case of

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  someone who acted reasonably even if at a later stage it turned out that he did not need to take such action. I believe that that person should still be entitled to compensation. Even though I am pressing my point of view, I can well understand the opposite point of view. However, I would feel aggrieved if I acted sensibly as a householder and received no compensation because it later transpired that I need not have taken the action. Having made those remarks, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Peston Lord Peston moved Amendment No. 5:
  Page 32, line 8, after ("claimant") insert ("or by a local authority acting on behalf of the claimant or as landlords, ").
  The noble Lord said: This is a technical amendment. The matter has been brought to my attention by a group of local authorities. The amendment enables me to ask the Minister whether local authorities will be treated on a par with everyone else in this matter. My reading of the Bill suggests that they will, but local authorities are not certain. Will local authorities, as the Bill is drafted, be able to recover costs that they have reasonably incurred as landlords, or will they not be treated on a par with householders? I beg to move.
  Lord Cavendish of Furness: As presently drafted this clause already enables a local authority to reclaim the reasonable costs of pursuing claims in connection with its own property. I hope that that reassures the noble Lord as I may have misunderstood and misjudged his amendment. The amendment also wants local authorities to be able to reclaim the costs incurred by them while acting on behalf of any claimant, whether a council tenant or not. I had the unworthy thought that this was an attempt to introduce advice centres by the back door. The Committee has already considered the question of advice centres. I hope I have gone some way towards reassuring the noble Lord and that he will feel able to withdraw the amendment.
  Lord Peston: I assure the noble Lord that I am constitutionally incapable of introducing any measure by the back door. I always blunder in through the front door, whether it helps me or not. I was not seeking to do anything subtle. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 6 not moved.]
  Clause 38 agreed to.
  Clauses 39 to 43 agreed to.
  Clause 44 [Time limits for certain disputes]:
  Lord Peston Lord Peston moved Amendment No. 7:
  Page 34, line 37, leave out ("three") and insert ("six").
  The noble Lord said: I regard Amendment No. 7 as a technical amendment. Its purpose is to probe the Government on the three-year time limit for certain disputes. I understand that Clause 44 may offer the corporation some protection if it delays taking remedial action. Clause 44(2) (a) imposes a three-year limit within which the claimant may dispute a breach by the corporation. If the dispute concerns
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  non-payment of money or compensation, I am told that a three-year limit halves the normal limitation period of six years. Therefore, it seems that a period of six years should be imposed by subsection (2) (a) in the interests of consistency with the general law. I beg to move.
  Lord Cavendish of Furness: This clause deals with the time limit for bringing an action in respect of an alleged failure by British Coal to comply with its obligations under Part II of the Bill. The time limit is whichever is the longer of three years from when British Coal is in breach of its remedial obligation, or six years from when the damage should have become apparent. The amendment seeks to extend the first period to six years. The effect would be to enable a claimant who has delayed making a claim until six years after he became aware of the damage to wait a further six years from British Coal's alleged default before starting an action. In other words, actions could still be brought against British Coal more than 12 years after the damage appeared. This is far too long a period and would be likely to lead to all sorts of complications. One can imagine how difficult it could be to resolve a dispute about damage 12 years after the event, particularly if there has been further wear and tear to the property.
  I remind the Committee that the three-year period referred to in Clause 44(2) (a) only begins to run once a claim has been submitted and British Coal is in default. Clause 3(3) of the Bill already gives the claimant the extremely generous period of six years from the appearance of damage in which to submit his claim.
  The effect of Clause 44 is that the claimant will always have a minimum of three years from default by British Coal to bring an action and could bring that up to more than nine years after the damage appeared, no matter how slow he was in submitting his claim. In my view those periods are more than adequate. I hope that I have been able to reassure the noble Lord, Lord Peston, and that he will be able to withdraw his amendment.
  Lord Peston: I thank the noble Lord. He has certainly reassured me. The difficulty is that this is not a subject on which I regard myself as remotely an expert. The answer sounded convincing, but I must go away and discover whether it really is. If the noble Lord is right and I am mistaken in saying that the position is not consistent, I shall be satisfied. For the moment at least, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 44 agreed to.
  Clauses 45 to 47 agreed to.
  Clause 48 [Provision of information on request]:
  Lord Peston Lord Peston moved Amendment No. 8:
  Page 37, line 39, leave out ("may") and insert ("shall").
  The noble Lord said: With the permission of the Committee I should like to speak to Amendments Nos. 8 through 11. Again, I shall not delay the Committee very long on this matter, especially as it was discussed in some detail in the other place and I

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  read the argument put forward by the Minister there. On the other hand, I am not entirely convinced by that argument and I thought that it would be useful to place on record the concern which leads one to argue that a register of information about subsidence should be established.
  A particular point has been drawn to my attention. A prospective purchaser of a property in a relevant area has difficulty in obtaining information about previous claims relating to that property. It has been suggested to me that it is perfectly possible for a claim to have been made for payment for works to be carried out and for the works not to have been carried out. The purchaser of the property would then be refused compensation. I can understand why such a purchaser should be refused compensation: the compensation would already have been paid. The problem—and I do not see how it can be resolved without a register—is how a. purchaser ever finds that out.
  In another place the Minister argued on two bases. One was the argument which the noble Lord has already used in connection with advice centres—namely, that it would be a significant undertaking. That is another way of saying that the costs would be high. He also warned against bureaucracy. However, as we move into the 1990s warnings against bureaucracy no longer carry the weight they used to carry as one of the watchwords of the 1980s. Therefore, I am not worried by being warned against bureaucracy.
  On the other hand, I am certainly interested in whether the costs would be high. It does not seem to me that keeping a register would be expensive and it seems to me that the benefits would be overwhelming. I belong to the school of thought which believes that, on the whole, information is good. As an economist I know that, in terms of the working of the market mechanism, information is not only good but is intrinsic to the efficient working of the market mechanism. Therefore, if we have an opportunity to add to the information available to buyers and sellers of property we ought to take it. The purpose of the amendment is essentially to place on record my response to the arguments of the Minister in another place and to ask the Government, not with a great deal of hope, to think again as to whether a register could be provided and to consider again my view that such a register would not be very costly or bureaucratic. I beg to move
  8.45 p.m.
  Lord Ezra: I should like to support the noble Lord, Lord Peston, on this amendment. I believe that Clause 48 does not go far enough. First, it is not certain that the Minister would make the appropriate regulations. Secondly, the amount of information made available appears to he of a limited nature. I should have thought that a register or list of subsidence damage would be compiled in any case and that that should therefore be made available to relevant and interested parties without any difficulty.
  Lord Cavendish of Furness: At present British Coal provides information on past damage on search forms
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  agreed between itself and the Law Society. The forms provide information on past, present and future mining, and also details of past claims and how they were discharged. That means, in effect, that Amendment No. 9 is redundant because such information is already being provided. I also draw the Committee's attention to Clause 48(1) (a) which enables the Secretary of State to prescribe the information provided. I can assure the Committee that we shall use that power if we feel the corporation is providing insufficient information about past claims and mining plans. I therefore hope that the noble Lord will not move Amendment No. 10.
  The fact that those arrangements have been agreed with the Law Society, whose members represent both buyers and sellers of property, suggests that they strike the right balance between a potential purchaser's legitimate right to know about a property and a householder's legitimate right not to have his privacy invaded without good reason. British Coal and the Law Society are keeping the arrangements under review and I am confident that that will ensure their continued successful operation. Should any serious difficulties emerge, the Secretary of State has the power to make regulations setting out new arrangements. I have received no representations that these arrangements are not working well and can see no reason for making regulations simply for the sake of it. I would therefore ask the noble Lord to withdraw Amendment No. 8.
  I do not see the case for a register of all claims since it would merely duplicate information held by British Coal and readily available from the corporation through the search forms. Such duplication would almost certainly lead to an increase in costs without offering any significant benefits. I shall not attempt to quantify the costs. Throughout, on all sides, we have attempted to keep an eye on costs because we need to be certain at the end of the day that the interests of British Coal are also taken into account.
  It would also arguably be an invasion of privacy. It should be possible for a prospective purchaser to obtain such information. However, it is less clear that anyone at all should be able to obtain such information without the householder even being aware of the fact. It was for both of those reasons —cost and invasion of privacy—that the suggestion was rejected by the report of the other place's Energy Select Committee, which went on to endorse the arrangements between British Coal and the Law Society. I therefore ask the noble Lord not to proceed with Amendments Nos. 9 and 11.
  Lord Peston: I thank the noble Lord for his replies. Again, I shall look very carefully at what he said. If Amendment No. 9 is redundant I could not be more pleased.
  On the question of information generally, I do not accept the privacy argument. I do not believe that this type of information represents an intrusion into personal matters. I am not convinced by that argument.
  On the question of cost and bureaucracy, the Minister made my point for me. As I understand it, British Coal has that information. It is purely a

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  question of the form in which it is kept. Essentially, a register would be a user-friendly form of information that would be available, so I do not believe that the argument about cost could possibly hold up in that case. However, I shall look at the matter further because I am equally reassured by the fact that the Law Society has considered the matter and is keeping an eye on it. As I understand it, the Government are saying that, if a problem of the kind that I have in mind arose, they would take it seriously and do something about it anyway. It may well be, therefore,
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  that I am a little premature in mentioning this point, but I am not certain about that. Having heard the Minister's reply, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 9 to 11 not moved.]
  clause 48 agreed to.
  Remaining clauses and schedules agreed to.
  House resumed: Bill reported without amendment; Report received.
  House adjourned at nine minutes before nine o'clock.