Lords Sitting of 28 January 1993

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St. Albans.): The LORD CHANCELLOR on the Woolsack.

UK Nuclear Weapons Capability
Lord Mayhew Lord Mayhew asked Her Majesty's Government:
Whether they propose to increase the United Kingdom's strategic and sub-strategic nuclear weapons capability.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My Lords, the Government remain committed to retaining the minimum nuclear capability necessary for credible and effective deterrence.
Lord Mayhew: My Lords, is the noble Viscount aware that the report Options for Change showed plainly that the Government intend to increase the minimum nuclear deterrent and to have in the next few years more warheads of greater range and accuracy? They will perhaps also have an entirely new surface-to-air nuclear weapons system. Can the Minister explain why, in the Government's view, our present and future defence needs call for more nuclear weapons and fewer infantry battalions?
Viscount Cranborne: My Lords, as concerns the first part of the noble Lord's question, he will know as well as I do that the 512 warheads in the four Trident nuclear submarines have been repeatedly given as a maximum. Her Majesty's Government will continue to review the situation and to make a judgment as to what is the minimum deterrent consistent with assuring the security of the country.
As concerns TASM, which I suspect is what the noble Lord referred to, he is regularly kind enough to ask me for an update on the progress of the review. I have to tell him that my answer today is precisely the same as that I have given him until now.
Lord Jenkins of Putney: My Lords, is the noble Viscount aware that his Government, like all other governments, are committed by a United Nations resolution to the ultimate extinction of the nuclear weapon? Whereas other governments continue to pay lip service to that aim, the noble Viscount's Government do not even trouble to do that. Is not the Answer given today quite inconsistent with the Government's commitment to the United Nations resolution?
Viscount Cranborne: No, my Lords, I am sorry to have to disagree with the noble Lord, Lord Jenkins. Our present position is entirely consistent with the terms of the non-proliferation treaty. He is right in saying that the ultimate objective, which has many times been declared by Her Majesty's Government, is to ban all nuclear weapons and nuclear tests. We are far from being able to implement that unilaterally,
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particularly in view of the increasing danger of proliferation of nuclear weapons in an uncertain world.
Lord Finsberg: My Lords, I welcome what my noble friend says. Is he satisfied that there is sufficient co-operation with our French colleagues who also have an independent nuclear deterrent?
Viscount Cranborne: My Lords, I am most grateful to my noble friend for the implications of what he said. Her Majesty's Government are entirely committed to trying to increase co-operation on all levels of defence with the Government of France. There are many instances of progress being made in that direction. We hope that it is an increasing and accelerating trend.
Lord Stoddart of Swindon: My Lords, in the light of the change of administration in the United States of America, are the Government confident that the United States will be prepared or will continue to be prepared to provide the Trident missile?
Viscount Cranborne: My Lords, the noble Lord, Lord Stoddart, is as aware as I am that the Trident agreement is a continuation of the original Polaris agreement between the United States Government and Her Majesty's Government. He must be aware that that agreement is registered with the United Nations. So far as we are concerned, there is no question of the agreement being put in question by the new American administration.
Lord Boyd-Carpenter: My Lords, will my noble friend express his gratitude to the noble Lord, Lord Mayhew, for the splendid tribute which the noble Lord paid to the steps which Her Majesty's Government are taking to secure the defences of this country?
Viscount Cranborne: Yes, my Lords.
Lord Williams of Elvel: My Lords, does the noble Viscount agree that the refusal to declare how many missiles will be deployed in each Trident boat has two serious disadvantages? The first is that under START 2 counting rules, when we get into negotiations—as we surely will—we shall be assumed to have eight missiles per boat, whereas under START 2 the United States has agreed to download—if I may use the technical expression—from eight to four missiles on a verifiable basis. Does the Minister accept that if Her Majesty's Government were to give an assurance that we shall have on Trident no more missiles deployed than we have at the moment on Polaris, subject to a continuation of the anti-ballistic missile treaty that would make a serious contribution to the responsible control of arms?
Viscount Cranborne: My Lords, I listen always to the suggestions of the noble Lord, Lord Williams, with the keenest of interest. All I can say is that we keep the number of missiles under constant review, as I was able to confirm to the noble Lord, Lord Mayhew. There is no doubt at all that uncertainty is part of deterrence and that uncertainty serves the purposes of deterrence well at present.

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As concerns START 1 and START 2, it is a bilateral agreement between the governments of Russia and the United States, to which we are not a party. I point out to the noble Lord that one of the reasons why we welcome both those treaties and their signature is that it puts an end to the extraordinary escalation in the number of nuclear warheads which were one of the by-products and direct products of the cold war. The policy of Her Majesty's Government has differed significantly from that of both the super powers in that we have always regarded our policy as being to maintain the minimum deterrent rather than to engage in an arms race.
Lord Williams of Elvel: My Lords, with respect, the noble Viscount did not answer my second question. Would it not be right for Her Majesty's Government to declare now what the Trident fleet will carry in the way of missiles in order to contribute to the arms control limitation process?
Viscount Cranborne: My Lords, I am sorry to be a little blunt with the noble Lord. I answered his question as best I could. The short answer to his supplementary must be no.
Baroness Elles: My Lords, does not my noble friend agree that in view of the large number of suspected nuclear missiles throughout the former Soviet Union, we should be grateful that the Government are determined to keep a minimum deterrent for the safety of this country?
Viscount Cranborne: My Lords, I am grateful to my noble friend. Again, pursuing the desirable trend for short answers to pertinent questions, the answer must be yes.
Lord Holme of Cheltenham: My Lords, is the Minister aware of the evidence given yesterday to the Defence Select Committee in another place of severe potential overstretch in our infantry battalions? Does he not agree that the balance between our minimum nuclear capability and our conventional force capability is something that the Government need to keep under careful review in the changing conditions following the end of the cold war? I wonder whether the Government accept that the time has come for a fundamental defence review.
Viscount Cranborne: My Lords, were I to answer the noble Lord's question in detail regarding the level of overstretch, particularly among infantry battalions, I suspect that your Lordships would feel that I was straying outside the scope of the Question. However, I can agree with the noble Lord's overall proposition. It is right and proper that we keep matters under review. I do not believe that in saying so I differ in any way from what I have said to your Lordships in the past.

Iran: Provision of Military Technology
3.11 p.m.
Lord Ennals Lord Ennals asked Her Majesty's Government:
Whether they are still supplying militarily useful technology to Iran in view of its record on human rights.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, no lethal defence equipment has been supplied to Iran since 1979. In addition, guidelines relating to the delivery of all defence-related equipment have been in force since 1984. The Government are carefully reviewing their policy, and meanwhile no licences are being granted.
Lord Ennals: My Lords, first, I welcome the last statement by the Minister and the fact that Her Majesty's Government jointly sponsored the resolution on human rights in the United Nation's General Assembly which drew attention to the high number of executions, the practice of torture and restrictions on freedom of expression in thought, opinion and press. In view of the Minister's reply, can he say when we will receive an answer? My Question, which he did not answer, was in regard to technologically useful information. Is it not time that we learnt a lesson from the Iraqi experience? We were supplying equipment which enabled Iraq to have power. Should we not stop straight away in relation to Iran which may at some stage pose a similar challenge?
The Earl of Caithness: My Lords, obviously we are concerned about the sort of exports that may go to Iran, that is why we have guidelines. If the noble Lord has a specific item in mind, that is perhaps best dealt with in correspondence. He asked a general question. Every exporter must look at the guidelines and apply for a licence.
Baroness Blackstone: My Lords, while I welcome the Minister's earlier reply to my noble friend's Question, may I ask whether he is aware of the activities of an Iranian company in this country known as ATA? It is re-establishing Iran's defence procurement network in this country. Have the Government made any representations to the Government of Iran regarding the activities of that company?
The Earl of Caithness: My Lords, the Iranian officials explained to us that they do not seek to export equipment from the UK in breach of our export control regulations. Furthermore, we have no evidence of a breach of those regulations involving the Iranians. Should the noble Baroness have an example she can give me, I shall follow it up.
Baroness Blackstone: My Lords, there have been press reports regarding the activities of that company. I shall be grateful if the Minister will follow it up.
Lord Ennals: My Lords, has the Minister's attention been drawn to the statement made by the Iranian authorities that they hope to have a full nuclear capability by the turn of the century?
The Earl of Caithness: My Lords, we hope that the Iranians will abide by the terms of the nuclear proliferation treaty, which is the important treaty governing that area, and not go beyond the bounds of that.

Gibraltar/Spain Border: Traffic Delays
3.14 p.m.
Lord Merrivale Lord Merrivale asked Her Majesty's Government:
What action they will take to reduce the long delays experienced by vehicular traffic entering Spain from Gibraltar; and whether they are aware of the submissions made by the inhabitants of Gibraltar to the European Citizen Action Service in Brussels concerning this problem.
Baroness Trumpington: My Lords, we are aware that some Gibraltarians have written to the European Citizen Action Service in Brussels about delays at the border between Gibraltar and Spain. We are watching the situation closely. Delays tend to be intermittent.
The Spaniards are well aware of our view that there should be the maximum possible free movement of EC nationals at internal borders commensurate with controlling the movement of terrorists, drug smugglers, other international criminals and illegal immigrants.
Lord Merrivale: My Lords, I thank the noble Baroness for that Answer. However, will the matter of barriers to free movement at that frontier be raised at the bilateral ministerial meeting in Madrid early in March? Will steps be taken to seek mediation assistance from the Danish presidency as well as support from other EC members? Such action on the part of the Spanish authorities is certainly not in accord with the Community spirit.
Baroness Trumpington: My Lords, if specific action by the Spanish customs caused lasting and unusually long delays at the frontier we would speak to the Spanish authorities in Madrid. So far, any problems have been resolved on the spot between Gibraltarian and Spanish officers, which is a good example of local co-operation. There is a draft convention called the External Frontiers Convention. Eleven countries are willing to sign but there has been no agreement with Spain that it should be extended to Gibraltar. The Danes have said that they would like to find a solution within their presidency and so would we. We look forward to seeing their proposals.
Lord Bottomley: My Lords, does not the Minister agree that as much damage is done to Spain as to Gibraltar in restricting the traffic? Will the Government give the strongest support to the representations being made by Gibraltar to the European Services Commission in Brussels?
Baroness Trumpington: My Lords, I am not aware of any restrictions on traffic. Delays can occur but they are usually short lived.
Lord Bruce of Donington: My Lords, is the noble Baroness aware that the trouble on the border with
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Gibraltar arises directly from the continuing dispute over the Gibraltar airport? I have had the opportunity of seeing Mr. Joe Bossano at least three times over the past three years and he is a reasonable man. Would it not be wise to have consultations between the British Government and Mr. Joe Bossano with a view to resolving the major difficulties and ensuring that they are not caught up with the civil service bureaucracy in Brussels?
Baroness Trumpington: My Lords, consultations between the UK Government and Mr. Joe Bossano are constant. Spain is perfectly within its right to carry out border controls. Gibraltar chose to be outside of the Community customs territory and arrangements by virtue of her omission from Council Regulation 2151/84, which defines the customs territory.
Lord Brougham and Vaux: My Lords, is not my noble friend aware that the traffic problems between Spain and Gibraltar are caused by the fact that petrol is so much cheaper in Gibraltar than it is in Spain? The Spaniards are driving over in droves with their jerrycans and cars, bribing the customs on the Spanish side with cigarettes, which is causing the delays.
Baroness Trumpington: My Lords, I happen to know that my noble friend knows that road pretty well. There are many reasons for delays.
Lord Monson: My Lords, does the noble Baroness agree that the country which is causing so many difficulties for our Gibraltarian friends is now receiving substantial sums of money from the British taxpayer under the cohesion proposals agreed at the Edinburgh Summit last December, even though the Spanish standard of living is only slightly lower than our own? Is that not a further reason for the Spanish to adopt a more friendly attitude towards the Gibraltarians?
Baroness Trumpington: My Lords, I am not aware that the Spanish have a particularly unfriendly attitude. As I said before, there are many reasons why there is such heavy traffic. Spanish public holidays cause extra traffic. Sometimes on the basis of a tip-off the Spanish customs officials decide to conduct thorough searches of vehicles and people crossing into Spain. There is a real problem with tobacco smuggling.
Baroness Blackstone: My Lords, does the Minister agree that many of the traffic hold-ups between Spain and Gibraltar are caused by normal holiday traffic? Having just visited Gibraltar myself, I was totally unaware of any difficulties caused by Spanish officials. Does she also agree that the state of the roads on the Gibraltar side of the border leaves much to be desired? Perhaps she will ask the Government to make representations to the Gibraltar authorities about that.
Baroness Trumpington: My Lords, I shall pass on those remarks to the right quarters.
Lord Whaddon: My Lords, does the noble Baroness appreciate that some of us may feel that she is treating the subject a little lightly?
Noble Lords: No!
Lord Whaddon: My Lords, there are tremendous hold-ups. Is the noble Baroness aware that only a fortnight ago it took me 45 minutes to go from Gibraltar into Spain at midday? Frequently one hears of three-hour delays. Clearly, Spanish customs are delaying people for petty reasons. Will she continue to make urgent representations in this regard?
Baroness Trumpington: My Lords, I would be very upset if your Lordships thought that I was treating this matter in a light-hearted way. Indeed I was not. The Spanish authorities and the Gibraltar authorities work side by side in the rather cramped conditions that exist on the frontier. I am sorry that the noble Lord had a delay. As I said, delays are intermittent and occur for many reasons.
Baroness Hooper: My Lords, will my noble friend give reassurance to the people of Gibraltar who sometimes feel very beleaguered by confirming that the British Government will continue to use their best endeavours to ensure that no impasse develops, which could only be detrimental to people living on both sides of the frontier?
Baroness Trumpington: Yes, my Lords.
Lord Merrivale: My Lords, perhaps I may ask the Minister a further question because I feel strongly on this subject, having visited Gibraltar for many years. With delays of two hours, three-and-a-half hours and four hours, I trust the Minister will agree that by their actions the Spanish authorities are seeking to discourage Spaniards from visiting, working and shopping in Gibraltar, thus hurting the Gibraltar economy. Therefore, should not remedial action be taken very soon?
Baroness Trumpington: My Lords, I have to say that this is news to me. It is for the Spaniards who might be affected to take up this matter with their own authorities.

Social Security Bill
3.22 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): 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 Henley.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Pension schemes: payments by Secretary of State under Part I of Social Security Act 1986]:
Baroness Turner of Camden Baroness Turner of Camden moved Amendment No. 1:
Page 1, line 16, at end insert—
("( ) After subsection (1) of that section, there shall be inserted—
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"(1A) Subsection (1) above shall apply to members of Contracted-out Salary-related Schemes and Contracted-out Money Purchase Schemes.".").
The noble Baroness said: Ideally, we do not want the proposed 1 per cent. incentive designed to encourage people to stay outside SERPS. Clearly, the provision is intended to encourage people to opt for private personal pensions when they may not always be to their advantage.
That is not to say that there is no place for personal private pensions. Clearly, there are people for whom it is a good idea, and we would not want it to be thought that we want to discourage personal thrift. Nor is our support for SERPS based on pure ideology, as the Minister claimed at Second Reading. We really believe that SERPS as originally envisaged offered the best opportunity for poorly paid people to retire on a pension which bore some relation to their pre-retirement earnings. It was particularly helpful in the case of women with a non-continuous work pattern and for manual workers, many of whom have relatively higher earnings at younger ages.
Yet one of the first things the Government did when they began their pensions review was to abolish the provision that pensions would be based on the best 20 years earnings revalued. Then the accrual rate was worsened, making SERPS less attractive. It is as well to remember that the pensions legislation of the mid-1970s which introduced SERPS was based on an all-party agreement, including that of the party now in Government. However, all this Government's incentives have been based on support for individual pension provision rather than collective provision. It is not only SERPS—and here I come to the main point of my amendment. The Government's attitude has been less supportive of collective occupational pensions provision than it has of individual provision. And yet, despite Maxwell, salary related occupational pensions schemes are still the best way of providing for most employees in retirement.
Of course, there have been difficulties. We await with interest the recommendations of the Goode Committee. But why have the Government provided this new incentive only for personal private pensions? There is very real concern that employers may not consider it worth their while any more to offer good occupational schemes. Unemployment is rife. The pressure to retain good employees is no longer so strong. There is some evidence that employers have already been turning away from final salary schemes because of the increasingly complicated legislative framework. It would appear that there is now similar anxiety about COMPS—contracted out money purchase schemes—yet the Government in 1988 appeared to be encouraging them.
It is clear that the Bill is being seen by many in the pensions industry as further evidence of the Government's support for personal pensions as against collective provision. It seems to me that the Bill is sending out entirely the wrong signals to the pensions industry. This week Post, the insurance magazine, quotes one of the providers of pensions, Mr. Alasdair Buchanan, group marketing manager at Scottish Widows, as saying:
"The move"—

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that is, the Bill—
"reflects the Government's whole philosophy of favouring the personal element… Companies will increasingly have to ask themselves whether it is worth their while setting up pension arrangements for their staff".
Surely that would be an extremely retrogressive development.
Employees do not always realise that in order to provide good pensions, particularly salary related pensions, employers have to pay a great deal more per employee into the scheme than the employees pay themselves. That is particularly true of schemes funded on a "balance of cost" basis and especially true in times of high inflation. For these reasons collective pension provision normally offers employees a very good deal indeed, particularly where there is membership participation with employee trustees. It therefore seems very unfair to give personal private pensions preferential treatment.
These anxieties have already been expressed by the Occupational Pension Schemes Joint Working Group. The group, which also includes organisations concerned with the provision of personal pensions, has urged strongly that there should be equity of treatment. Unfortunately, it does not seem to have persuaded the Government, although the Secretary of State has indicated that the present Bill contains temporary arrangements only and that he will be reconsidering the structure of the rebate, including all contracted out arrangements for COMPS and salary related schemes in due course. If that is so, why not do it now? Why cause one section of the pensions industry to feel discriminated against; and why give this extra incentive only to PPPs? I hate to use that overworked phrase "a level playing field" but that is certainly what we shall not have if the Bill goes through unamended.
I realise that the amendment which I have tabled may well be technically flawed, but I believe it is important that the principle is debated and the issues clearly understood. If we can gain acceptance of that, then at Report there will be an opportunity for the House to debate a technically less flawed amendment. I beg to move.
3.30 p.m.
Lord Henley: The subject of this amendment has been raised several times during the passage of this Bill both at Second Reading in your Lordships' House and in another place. Its effect would be to extend the 1 per cent. additional rebate for personal pension holders aged 30 or over to members of both contracted-out salary-related occupational pension schemes (COSRS) and contracted-out money purchase occupational pension schemes (COMPS). I am not entirely clear whether the intention is to extend the additional rebate to members of all COSR schemes or just to those schemes contracting out since the provisions of the Social Security Act 1986 came into force. This is quite an important point, so I shall come to it later on. It would make an enormous difference to the cost of the provision as to whether it extended to those pre or post the 1986 Act.
It will come as no surprise to the Committee if I remind Members that I cannot accept the amendment
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in relation to both COSRS and COMPS, although for different reasons. Perhaps I may start with COSRS. As the Committee will be aware, the COSR scheme is to contract out of the State Earnings Related Pension Scheme (SERPS). Perhaps I may say in response to the noble Baroness, and repeat what I said in response to her noble friend at Second Reading, that the Government have no ideological objection to SERPS. We have always made that quite clear and I did so at Second Reading. Our reforms to SERPS in the mid-1980s were designed to ensure that there was a pension structure in the next century which is affordable to our children and grandchildren, who will be having to pay for it at a time when, due to demographic changes, there will be very many more pensioners in receipt of pensions in relation to the number of people in the workforce.
As the Committee will be aware, for a COSR scheme to contract out of SERPS it must undertake to provide a guaranteed minimum pension in place of SERPS. The Government Actuary, when recommending the new level of the contracted-out rebate to come into effect from April 1993, took full account, as was his duty, of the costs to COSR schemes of providing guaranteed minimum pensions. His recommendation was that 4.77 per cent. was the appropriate level for the rebate and the then Secretary of State accepted that figure subject to a rounding, quite rightly, to 4.8 per cent. The Committee will therefore appreciate that, as COSR schemes have been perfectly reasonably compensated, nothing would be gained by giving them the 1 per cent. addition.
For COMPS—that is the money purchase schemes —the reasons are different but no less valid. Obviously, I must first accept that there are similarities between personal pensions and COMPS, in that they are both money purchase arrangements. However, there are also significant differences and, bearing in mind that the 1 per cent. addition is to meet an immediate need, we felt that it would not be appropriate to extend this temporary measure—again, I must stress that this is a temporary measure, a point to which I shall come later on—to COMPS.
Perhaps I may outline some of the differences. COMPS are set up voluntarily by employers to meet the needs of the employer's workforce. Personal pensions are a direct arrangement between the individual and a pensions provider; the employer generally is not involved. With a COMPS scheme, the employer is liable to make payments into the scheme but with a personal pension he has no such liability. The level of charge is generally lower for COMPS than for personal pensions because a PP is tailored to the individual's requirements while a COMP meets a more general need and reflects the more general economies of scale.
COMP scheme members have payments made into their funds on a regular basis, generally monthly, as earnings are received, whereas personal pension holders, as the noble Baroness will know, have the minimum contributions paid to their provider by the department after the end of the tax year. That allows the department to use the employer's normal end-of-year returns. There is therefore no additional

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burden on business. This later payment to the provider does obviously affect the rate at which the investment grows. The earlier payment of the money into COMPS gives a valuable advantage to COMPS which I believe the Government Actuary would estimate to be something like one-half per cent.
Finally—as I said earlier—the amendment would create an additional annual cost of about £60 million if extended to both COSRS and COMPS set up since the provisions of the Social Security Act 1986 came into force. Obviously, if it were extended to all COSR schemes, the figure would go up by a further £800 million. I believe that neither figure can be justified in the present circumstances.
The noble Baroness also claimed that giving the 1 per cent. addition only to those in personal pensions would encourage people to take out personal pensions. I again remind both the Committee and the noble Baroness that the 1 per cent. additional rebate is purely a short-term measure pending the review of the structure on which we shall shortly be embarking. We have undertaken, as part of that review—my right honourable friend repeated that in another place—to look at an age-related structure both for COSRS and COMPS as well as for personal pensions.
I cannot believe that it would be in the interests of any scheme or individual to change the basis of their pension provision just because the 1 per cent. addition is not being applied to COSRS and COMPS. Similar suggestions were made at the time of personal pensions that it would take a lot of people out of perfectly good occupational schemes, whether they were COSRS or COMPS. That did not happen then. We saw a dramatic growth in the number of people taking out personal pensions—there are now about 5 million people with personal pensions—without any fall-off in the number of people in perfectly well run company schemes which were contracted out.
We believe that this 1 per cent. addition is important to provide stability for personal pensions in the coming years. We also believe that it would be an unnecessary and unjustified short-term view for people to move from perfectly good COSR or COMPS into PPs purely for that 1 per cent. addition, given the commitment that both I and my right honourable friend have made that we will look at age-related structures for both COSRS and COMPS as well as for personal pensions. I therefore ask the noble Baroness whether she feels able to withdraw this amendment.
Baroness Turner of Camden: I thank the Minister for his explanation. I am not entirely satisfied with it. As I said when I introduced the amendment, I accepted that it was not perfect. I confirm that if it were applied I would not wish that to be done pre-1986. I do not believe that that would be sensible. Nevertheless, I believe that the case for treating all pension schemes on a similar basis is a very strong one. The Minister quotes expert opinion to the contrary, but there does seem to be a very strong view in the industry that the additional 1 per cent. rebate
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will have the effect of persuading some people who may be in COMPS, or perhaps even in COSRS, to want to come out and have a personal private pension.
Perhaps I may quote another expert writing in the Post magazine this week:
"'Those who have COMPS may well switch to a personal pension', said John Woolnough, pensions development manager at Sun Life".
There is real concern that the provision of the incentive in this one-sided way will have the effect of encouraging people to come out of quite good occupational schemes. The problem is that many people who are in occupational schemes do not realise —perhaps this may be the fault of such schemes to some extent—that the employer often pays quite a lot to provide them with a reasonable pension on retirement and that their best interests are served by staying in their occupational schemes. Nevertheless, I do not intend to press the amendment this afternoon.
I was very anxious to put the arguments on record in favour of equal treatment to all pension schemes. I shall await with interest the results of the review which the Minister says that it is the Government's intention to undertake. He has said that this is a purely temporary measure; but if it is only a temporary measure, that seems to me to be an argument for treating everybody the same. Since the Minister does not appear to be willing to accept that argument, however, and I do not intend to press the matter to a vote this afternoon, it seems that I have no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Payments into National Insurance Fund out of money provided by Parliament.]
On Question, Whether Clause 2 shall stand part of the Bill?
Baroness Hollis of Heigham: We propose that Clause 2 should not stand part of the Bill. Clause 2 provides for Exchequer deficit funding to the National Insurance Fund to a maximum of 20 per cent. next year and 17 per cent. in subsequent years. Clearly, the fund will be in deficit; clearly, the National Insurance Fund must balance and, clearly, the only source of additional revenue is central government. So, on those grounds we do not oppose what the Government are suggesting in narrow terms. However, we wish to hold up the passage of the clause because we want to raise again two arguments that we trailed on Second Reading, when we felt that the Minister's response was not entirely satisfactory. The narrow reason for our objection to the clause is that we doubt whether the Treasury contribution sums will be appropriate given the latest unemployment figures—in other words, that the Government are boxing themselves in too tightly. Secondly, we want to raise a wider question about the nature of the National Insurance Fund as such.
On the first point, about the appropriateness of the figures as specified in the Bill—I stress that they are specified in the Bill; it is not being done by statutory regulation —the Bill proposes a Treasury deficit grant to be drawn on of up to 20 per cent. next year and 17 per cent. in subsequent years. Let us remind ourselves

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of the assumptions on which the Government Actuary recommended those two figures. I turn first to the levels of unemployment. When the Government Actuary recommended those sums, it was estimated that unemployment would be at 2.74 million this year. However, as of 21st January, the figure is already 2,983,339—that is, 200,000 higher. The Government Actuary expected unemployment next year to be 2.8 million, but all the forecasts now suggest that it will be over 3 million by 18th February and probably 3.25 million by the end of next year. That is reinforced by the headlines in, for example, yesterday's Evening Standard which stated that London is losing jobs at the rate of 400 a day.
In other words, and to put it very simply, unemployment is already exceeding the expected figure for next year. As a result, each additional 100,000 people unemployed by which the Government Actuary has under-calculated will cost the National Insurance Fund £250 million a year in lost contributions and increased benefits. That suggests, looking simply at the unemployment figures, that the estimated deficit will have been under-calculated by something of the order of £1 billion by this time next year.
The second assumption of the Government Actuary which formed the basis of the Bill relates to inflation and wages. Obviously, it is welcome that inflation is falling, but the Government Actuary's figures were based on annual wage increases of 5 per cent. in this and subsequent years. However, we know that public sector employees' wage increases are being pegged to 1.5 per cent. We know that many employers are offering nil increases or are even negotiating to reduce wage levels in the current round. Again, the Government Actuary indicates that for every 1 per cent. that earnings growth falls below his estimate of 5 per cent., there will be a net fall in contributions to the National Insurance Fund of £300 million. Again, if the Government Actuary's figures are out by 3 per cent., as seems extremely likely, that will worsen the fund by another £1 billion over and beyond the £1 billion that is associated with the rising unemployment. Therefore, quite realistically, it already looks as though the figures are out of date by about £2 billion.
However, there are balances. The Government Actuary said that it was advisable to maintain a minimum—not an average, but a minimum—balance of two months' expenditure. It is already clear and we already know—the Minister effectively conceded this on Second Reading—that that balance will be heavily eroded. Ministers accepted in another place that they would be drawing very close to the 20 per cent. cap figure for deficit funding specified in the Bill. It is estimated already that, even on the most favourable assumptions, we will be drawing 19.6 per cent. If unemployment continues as experts expect, and if wage rises diminish as experts expect, I suggest that the figure of 20 per cent. will be exceeded and that the balances will be eroded.
Referring back to some of the comments made by the noble Lord, Lord Boyd-Carpenter, on Second Reading, surely it is better for the Government to make whatever annual contribution may be necessary
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each and every year to balance the fund rather than to specify a maximum deficit contribution in advance when the figures are so fragile to changing information on assumptions about unemployment and wage rises.
The problem is intensified because the cap is so tight that, should it require amendment, primary legislation would again be required—in my view, quite unnecessarily taking up the time of your Lordships' House. If we agree that there should no longer be a fixed contribution, as was the case before 1988, why now put in a fixed sum to draw on for deficit funding, irrespective of the out-turn of how many claimants and how many contributors? It cannot be sensible.
The second consideration is a wider one. We all accept—certainly on this side of the Committee—that the fund has to be fully funded, with contributions from the consolidated funds—in other words, from the Exchequer, or in other words, from the taxpayer. It has to be fully funded so we call it a fund, but why? Surely—I merely put this as a question—the concept of a National Insurance Fund is increasingly anachronistic. By virtue of the Government's deficit funding, we are accepting that it is not a ring-fenced fund, as it was before 1988, in which surpluses in one year offset deficits in others. Essentially, it is a pay-as-you-go arrangement in drag, in which current workers finance former workers' contributions and in which the national insurance contribution is now essentially a tax rather than a pension contribution. As my party has argued in the past, we should consider whether it could be consolidated into general taxation.
In other words, the National Insurance Fund is increasingly a fiction as these subventions make clear. Why not, therefore, reconsider this clause, both for the narrower considerations that the calculations on which it is based are already outdated, and for the wider considerations that if we are talking about deficit funding, we are talking about a pay-as-you-go scheme and we should call things what they are? I oppose Clause 2 standing part of the Bill.
3.45 p.m.
Lord Henley: The noble Baroness invites me into a fairly wide and general discussion on the whole concept of contributory benefits and the National Insurance Fund. If we accept her arguments that the National Insurance Fund is anachronistic and a mere fiction, I think we are drawn on to the whole question of whether benefits should be contributory or otherwise. I understand that her own party is now considering these things in its commission on whatever it is called and is looking—
Baroness Hollis of Heigham: On social justice.
Lord Henley: The Committee on Social Justice.
Baroness Hollis of Heigham: The Commission on Social Justice. I realise that those words are unfamiliar to the Minister.
Lord Henley: It is examining everything in great detail as to whether all benefits should be means-tested or whatever. At this stage, I am somewhat confused about what and how far it can examine these matters

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because we seem to hear different statements from different members of the Front Bench of the noble Baroness's party opposite. Anyway, I do not intend to follow her into the more general discussions on the National Insurance Fund and the general contributory principle other than to say that I believe in the contributory principle. I do not believe that the fund is anachronistic. I believe that it is still a National Insurance Fund taking contributions from the contributors, who then receive the appropriate contributory benefits according to what they have paid.
Perhaps I may turn back to the first point of the noble Baroness's amendment and the question that she raised. Put very simply, her point was that at 20 per cent. it would not be enough and that in the following years at 17 per cent. it would still not be enough because it is based on the wrong assumptions. Perhaps I may first turn to the assumptions that it is based on, how those are arrived at and why the Government Actuary sticks to them.
When planning for the future it is obviously necessary, as the noble Baroness will appreciate, to make assumptions as to how events might turn out and no one can ever guarantee 100 per cent. that they will be right. Obviously, there will always be scope for debate about the levels of unemployment and earnings which will occur, but when planning government finances I believe that it would make no sense to employ other than a consistent set of assumptions at any one time. That is why the Government Actuary used the assumptions on which the public expenditure plans are based, as published with the Chancellor's Autumn Statement.
I appreciate that the noble Baroness might argue that this would have the effect of lowering the amount of Treasury grant potentially available to my right honourable friend because the estimate of benefit expenditure on which the grant is based would be unduly low or, for that matter, the assumptions on unemployment were wrong. But we have constructed the grant in this way so that the maximum available will be more than within the calls upon the fund. It does not have to be a precise and exact science and we do not think that small variations in estimates will upset the rationale of the grant.
Having said that the Government Actuary must stick to the general assumptions as used by the Government, were the assumptions that he used about rises in unemployment unrealistic would we end up with a reduced balance in the fund by, say, April of 1994? Obviously, I can appreciate the concern of the noble Baroness. The Committee will be aware from the Government Actuary's report that my right honourable friend will need to draw at the maximum, or jolly near the maximum, for 1993–94 as a catching-up exercise. We shall carry forward a reduced balance in April this year, so we shall need to recover that ground to get back to the level that the Government Actuary thinks we should be at, as well as providing finances to meet a projected shortfall between income from national insurance contributions and expenditure on benefits.
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The actual fund balance may be less than currently projected. It may, for that matter, be more because events might turn out very differently from the forecasts based on the working assumptions. That is why we plan for the level of balance that we do—to provide us with a substantial safety margin. There is also a substantial safety margin built into the maximum level of Treasury grant that my right honourable friend can seek from 1994–95 onwards. At this stage we are not expecting that anything like 17 per cent. would be needed each year to keep the fund in balance, but if events turn out differently there will be the option, as there is in this year, of using the grant to recover lost ground.
I should also remind the Committee, as I believe I reminded the noble Baroness on Second Reading, that the grant is not intended to guarantee the fund's solvency in all circumstances. There must remain the existing measures for adjusting the various levels, rates and thresholds in the national insurance contribution system and it would be a matter for judgment at the time which measures are most appropriate for keeping the fund in balance. I do not accept that the suggestion made by the noble Baroness that the cap is too tight is valid. There are other means of adjusting the balance in the fund and my right honourable friend will preserve those means.
I must say that I found it very interesting for once to hear the noble Baroness suggesting that we should take yet further secondary powers so that we did not have to come back to this House seeking further primary powers. At least I believe that that was what she was suggesting. We are satisfied that the primary powers that we are seeking for the maximum grant of 20 per cent. this year and 17 per cent. in future years will be sufficient.
I therefore hope that the noble Baroness will feel able to withdraw her opposition to the clause, which I have to say I was somewhat puzzled to hear her voice as that was the one part of the Bill that she generally welcomed on Second Reading. It was the first part of the Bill that her party seemed to be opposing. Now that the noble Baroness has explained herself and has listened to my explanation, I hope that she will feel able to withdraw her opposition.
Baroness Hollis of Heigham: I have to say that I remain singularly unpersuaded by the Minister's exposition of the figures. He accepts that his right honourable friend the Secretary of State in the other place has said that, even on the Government's Actuary figures they will be drawing down 19.6 per cent. of the 20 per cent. figure. In so far as those figures are already being outpaced, it is clear that the 20 per cent. cap will be too tight. However, far be it from me to try to save the Government the need perhaps to return with primary legislation to amend a Bill that could have been amended at this stage. With the leave of the House, I shall withdraw my opposition to the clause.
Clause 2 agreed to.
Remaining clauses agreed to.
House resumed: Bill reported without amendment.
Then Standing Order No. 44 having been dispensed with (pursuant to Resolution of 20th January): Report received.
3.57 p.m.
Lord Henley: My Lords, I beg to move that the Bill be now read a third time. If I may, I would like to say a couple of words before we finally pass the Bill. On Second Reading my noble friend Lord Boyd-Carpenter raised an interesting drafting point about Clause 5 which, since we have gone past Clause 5, I wonder whether we can deal with now.
My noble friend was concerned that, as drafted, legislation not yet enacted would be cited as the Social Security Act of 1992 when we are now already in 1993. I have done a little research into this matter. I understand that Clause 5(1) was drafted so that the year mentioned in the short title was the year in which the Bill was introduced. I believe that this is not unusual and it is a matter for the style of drafting of individual parliamentary draftsmen. I note that the Asylum Bill is drafted as the Asylum Act of 1993 whereas this piece of legislation is described as the Social Security Act of 1992. It is the custom in such cases for this to be changed to the appropriate year by the House authorities as a matter of routine during the process of printing. A similar change will also be needed to Clause 2(9). In the circumstances, it is not necessary for the House formally to amend the Bill in this respect, but nevertheless I congratulate my noble friend and thank him for bringing this to my attention and certainly for widening my education.
Lord Boyd-Carpenter: My Lords, I am much obliged to my noble friend the Minister for dealing with the small drafting point that I raised at an earlier stage. As I understand it, the Bill will be cited as the Act of 1993.
Lord Henley: My Lords, my noble friend is absolutely correct. We both, and possibly the rest of the House, have probably learnt a great deal about the styles of individual draftsmen, but it does seem to be a matter for their own individual styles.
In moving that the Bill be now read a third time, perhaps I may offer my thanks to the Benches opposite and the usual channels for enabling us to proceed to Third Reading so speedily. When shortly we come to consider my right honourable friend's proposals for national insurance contributions and benefits which will apply from April, the House may now debate them, confident that it has done all it can to ensure that the necessary financial conditions are in place.
Obviously on this occasion I do not propose to go over the Bill's provisions again in detail. However, I think that it is fair to say that, despite some debate about how far it addresses the issues facing us, there is broad agreement across the House that the measures are right, even if we sometimes differ on the extent to which they will suffice. In any event, this will not be the last time that the House debates the issues. Whenever my right honourable friend and the Treasury determine that a grant is needed, an order to that effect will be brought before the House. In due course the House will no doubt be called upon to debate proposals arising from the wider review of the contracted-out rebate, the 1 per cent. additional rebate
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in the Bill being, as I stressed, an interim measure. As ever, I shall look forward to those occasions. I commend the Bill to your Lordships.
On Question, Bill read a third time.
Lord Henley: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Henley.)
On Question, Bill passed.

Insurance Companies (Amendment No. 2) Regulations 1992
4 p.m.
Viscount St. Davids Viscount St. Davids rose to move, That the draft regulations laid before the House on 30th November be approved [13th Report from the Joint Committee].
The noble Viscount said: My Lords, the regulations are intended to fulfil our obligations to implement the second Council directive on life assurance (Directive 90/619/EEC of 8th November 1990). The main purpose of the directive is to allow life assurance companies which have their head offices in one member state to conclude contracts with policy holders in another member state without having to set up a branch or agency in that state.
The directive is part of the European Community's single market programme and represents a stepping stone towards the completion of a single European market in insurance. The development of EC legislation on direct insurance began as long ago as 1973 when the first non-life insurance directive laid down the right of an insurer with its head office in one member state to establish a branch in another member state. This directive was followed in 1979 by a parallel first life assurance directive.
These directives were important in two key ways. First, they avoided the need for an insurer to establish a separate subsidiary if it wished to do business in another member state. Secondly, they took the first steps towards a common approach to financial supervision by laying down detailed rules relating to the calculation of an insurer's solvency margin. Nevertheless, the directive allowed all business carried on in a member state to be subject to supervision in the member state where the branch was situated.
The second directives, the non-life services directive adopted in 1988 and the life services directive adopted in 1990, allow insurers for the first time to sell insurance in another member state without having a local presence. This concept of selling insurance across member states' borders is known as the freedom to provide services. This freedom for non-life insurance was implemented in the UK in 1990. The regulations now before the House extend the freedom to life assurance, though not, for the time being at least, to long-term business falling within Class VII; that is, pension fund management.
This freedom is, however, of limited effect. Only insurers of large non-life risks, and life contracts which are taken out by the policy holder on his own initiative, enjoy full freedom to provide services under the second directives. The directives allow the member

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state where the services are provided to continue to authorise the provision of other life assurance into that state.
The UK currently allows insurance to be provided directly into the UK from an overseas establishment without the need for UK authorisation. Thus the Government did not take up the option to authorise services business in respect of non-life insurance provided into the United Kingdom and do not propose doing so either for life assurance. So we will continue to allow freedom to provide services into the UK. Certain other member states may do the same.
The second directives represent a limited mid-way stage between the first directives and the more important third directives adopted last year. Your Lordships will be aware of the significance of these third directives from the inquiry into the proposed single insurance market chaired by my noble friend Lord Aldington in the first half of 1991 when the European Commission's proposals were first published.
These third directives complete the single market for insurance by introducing the "single passport" concept for all direct insurance. This single passport will mean that an insurer will be able to offer insurance anywhere in the European Community on the basis of the single authorisation which it receives in the state where its head office is situated.
The third directives were adopted in a form which was very acceptable to the Government. They are due to be implemented by July 1994 and measures will be laid later this year to achieve that. The third directives are not due for debate today and I should therefore like to return to the second life directive.
This directive is essentially in two main parts. The first amends and extends the first life directive by introducing provisions in four areas: first, rules governing the law applicable to direct life assurance contracts; secondly, procedures for the transfer of life assurance contracts from one insurer to another; thirdly, an extension of the supervisory authority's powers to take action against an insurer which infringes the laws of another member state; and, fourthly, the establishment of reserve powers to enable member states to act together to obtain effective access to non-EC markets. The second part introduces the freedom for life insurers to provide services.
These provisions include, first, a requirement on the insurer to notify supervisory authorities of his intention to provide services in another member state. Notification must be made to the authorities in the member state where his head office is situated, those in the state where the services are to be provided and, where the insurance is to be provided from a branch established in a third member state, the authorities of that state also.
Then there is the option that I mentioned for member states to choose to make the provision of services in their territory conditional upon the grant of an official authorisation from their authorities except where the policy holder takes the initiative to conclude a contract on a cross-border services basis. It also requires the competent authorities in the member state
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where the services are provided to have adequate powers to take action against companies which fail to comply with the laws applicable to them in that state if the authorities of the member state where that establishment is situated fail to do so. It grants cooling-off rights for all individual life insurance policy holders contracting on a cross-border services basis. Lastly, it requires member states to exchange statistics on premium income receivable from services contracts.
I have already placed in the Library and the Printed Paper Office detailed notes on the regulations which we are now discussing, and I hope that your Lordships will find these helpful to your understanding of their effect. I shall indicate briefly how each regulation implements these principles.
The first group of regulations which I shall describe extends to long-term insurance business certain existing provisions of the Insurance Companies Act 1982 which were introduced by earlier regulations in respect of general insurance business. These are Regulations 2, 4 and 6.
Regulation 2 extends the Secretary of State's powers of intervention, powers to withdraw a company's authorisation and powers to petition for the winding-up of a company where that company has failed to comply with the laws of another member state if those laws implement the first or second life directives. This includes, for completeness of implementation, reserve powers for the Secretary of State to take action against the members of Lloyd's. This does not affect Lloyd's ability to regulate itself under the various Lloyd's Acts.
Regulation 4 extends provisions relating to the provision of life assurance into the UK from another member state and thus fulfils one of the key purposes of the directive. Regulation 6 provides interpretation for certain phrases used in the Insurance Companies Act 1982 as it is amended by these regulations.
I turn to the detailed arrangements established by Regulation 3. This regulation implements Article 6 of the directive which provides for consultation with the authorities in other member states before approval can be given to a transfer of long term insurance business from one authorised insurer to another. It also requires the authorities in the member state where the head office of the transferee company is situated to certify that the transferee will have the necessary margin of solvency after taking the transfer into account. Essentially, Regulation 3 provides that the authorities of any member state connected with a proposed transfer of life assurance contracts must be consulted and give their assent before a transfer can be approved.
The next group of regulations, Regulations 5 and 9 implement the provisions of the directive which determine the law applicable to direct life assurance contracts. Regulation 5 amends the Insurance Companies Act by introducing the rules governing the applicable law for life assurance contracts set out in Article 4 of the directive. Regulation 9, which amends the Contracts (Applicable Law) Act 1990, clarifies the

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relationship between Article 4 of the directive and the Rome convention on the law applicable to contractual obligations implemented by the 1990 Act.
Essentially, the effect of the two regulations taken together is that the 1990 Act will apply to insurance contracts except where there is a conflict with the law applicable to insurance contracts under the Insurance Companies Act in which case the latter rules take precedence.
Two further regulations affect provisions of the Financial Services Act. These are Regulations 7 and 8. Regulation 7 limits the notification requirements on EC insurers providing insurance into the UK if that insurance is investment business within the definition in the Financial Services Act.
The Financial Services Act requires such insurers to notify the Securities and Investments Board of their intention to provide such services into the UK. However, all EC insurers providing any kind of life assurance services into the UK are required by the Insurance Companies Act to notify the Secretary of State. This regulation allows such insurers to be deemed to have complied with the Financial Services Act by submitting a single notification to the Secretary of State, who will in turn forward such notifications to the SIB.
Regulation 8 completes the implementation of Article 9 of the directive and Article 4 of the Motor Services Directive (Directive 90/618/EEC), which establish reserve powers to enable member states to act together to obtain effective access to non-EC markets. These articles were for the most part implemented by the Insurance Companies (Amendment) Regulations 1992 (SI 1992/2890) made on 19th November last year.
This new regulation ensures that the Secretary of State's or the Treasury's powers to take action under Section 183 of the Financial Services Act against an insurer which is connected with a non-EC country cannot be exercised in situations where the Council or the Commission may issue a direction under these directives. The Government accept that in this area it is more effective for member states to act together. A similar provision in respect of banking was made last month in the Banking Co-ordination (Second Council Directive) Regulations 1992 (SI 1992/4848).
Finally, Regulations 10 and 11 introduce a statistical requirement on life insurers to provide details of premium income receivable from their services business, broken down into each class of business and each member state in which the services have been provided. Regulation 11 limits the provision of statistics to cover only that business provided from the time that the regulations come into force, that is, after 20th May this year, thus ensuring that the requirement is not retrospective.
The schedule to the regulations provides the form on which this information should be supplied. These regulations do not implement the cooling-off provisions of Article 15 to which I referred earlier. This article was amended by Article 30 of the third life directive, which was adopted on 10th November last year. The Government intend to lay regulations shortly which will implement the cancellation
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provisions of both directives. These regulations will come into force on the same day—20th May—as the regulations we are discussing now.
The Government attach a high priority to the completion of the single market in insurance. The second directive, and the regulations we are discussing today represent a small but useful transitional step. The key regulations will be those which the Government intend to bring before the House later this year, which will grant the "single passport" to EC insurers and make the single market a reality. I commend the regulations to the House.
Moved, That the draft regulations laid before the House on 30th November be approved [13th Report from the Joint Committee]. — (Viscount St. Davids.)
4.15 p.m.
Lord Peston: My Lords, it gives me great pleasure to thank the noble Viscount for an excellent account of an extremely difficult matter. When the regulations were debated in another place, Members chose to have a rather broader debate on insurance. I shall not delay the proceedings today by demanding such a debate at this time. However, I believe that noble Lords on all sides of the House would find it opportune to discuss insurance in the near future because it is a particularly interesting matter.
The regulations seem as good an example as any of the benefits of the single market. I am convinced that our industry will gain, as will our consumers of insurance. Certainly, from these Benches, we welcome the regulations as much as the Government do in putting them forward.
I accept that this is a transitional phase. We look forward to what will be the third directive when it comes before the House. There are two general comments that I wish to make. The first relates to the single market. To my mind this brings out how important it is for us to get back to a fixed currency and, in due course, a single currency regime. Clearly, with insurance operating in the single market there is an additional risk if currencies are also floating. I do not go back from my earlier position that fixed currencies and eventually a single currency are the right basis for the single market.
The second point is technical and is a matter which we should discuss in the future. How the insurance market works depends very much on the tax regimes of individual countries. We need to look at that in more detail.
I have some questions for the noble Viscount, although I assume that the answers are obvious. I take it that the industry strongly welcomes these directives and the single market. Certainly, it should do because it is a great opportunity for what is a particularly efficient part of our financial system.
Secondly, I believe that what is proposed is in the interests of consumers. I am interested to know whether the Government have consulted consumers directly or whether there have been any representations from consumer organisations. My judgment is that that is not particularly necessary because it is obvious that widening the market is to the benefit of

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consumers. However, I should be interested to hear whether the noble Viscount has anything to add on the subject. I repeat that I welcome the regulations.
Viscount St. Davids: My Lords, as I mentioned earlier, my noble friend Lord Aldington has inquired into these matters and I am sure that, with his well known diligence, he will have consulted all interested parties. What is proposed makes very little difference to the consumer at this stage. Cooling off rights will be extended to most life policies but those arrangements will he dealt with in separate regulations to be brought before the House shortly. That will be the only area in which there will be much influence on consumers.
On Question, Motion agreed to.

Industrial Training Levy (Engineering Construction Board) Order 1993
4.19 p.m.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater)The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater) rose to move that the draft order laid before the House on 30th November be approved [13th Report from the Joint Committee].
The noble Viscount said: My Lords, it may be for the convenience of the House if I speak to this order and the following order together. The proposals before your Lordships this evening seek authority for the Construction and Engineering Construction Industry Training Boards to impose a levy on the employers in the building and civil engineering and engineering construction industries to finance the running costs of the boards and fund their range of training initiatives, including grant schemes.
Provision for this is contained in the Industrial Training Act 1982 and the orders before your Lordships would give effect to proposals submitted by the two boards. Both proposals include provision to raise a levy in excess of 1 per cent. of an employer's payroll. The Industrial Training Act 1982 requires that in such cases the proposals must be approved by affirmative resolution of both Houses. In each case the proposals are the same as those approved by your Lordships last year. They are based on employers' payrolls and their use of sub-contract labour. Both have special provision for small firms.
For the CITB the rates are 0.25 per cent. of payroll and 2 per cent. of payments made by employers to labour-only sub-contractors. Employers with a liability of £45,000 or less will be exempt. The ECITB treats its head offices and construction sites as separate establishments and applies different levy rates which reflect the actual costs of training particular workers. For head offices the rates are 0.4 per cent. of payroll and 0.5 per cent. of payments to labour-only sub-contractors. Firms employing 40 or fewer employees are exempt. The rates for sites are 1.5 per cent. of payroll and 2 per cent. of labour-only payments with exemption for employers with a liability of £75,000 or less.
In each case the proposals have the support of the employers in the industry as required by the Industrial Training Act and have the full support of the respective boards. Your Lordships will know the CITB and the ECITB are the only two remaining statutory industry training boards. Most other sectors of industry are covered by independent arrangements. The Government believe that in the overwhelming majority of cases independent employer-led arrangements are the most effective.
Your Lordships will be aware the CITB is currently under review. This has, I know, given rise to much speculation and concern. I hope your Lordships will be reassured when I say that, as in 1990, we have consulted widely with the industry about the effectiveness of the board and its current funding arrangements. The Government are not yet able to make a statement about the board's future but I can say that the results of that consultation will be extremely important in informing our decision. Although there is still work to be done, an announcement should be made shortly.
In the meantime though the operations of both these boards continue as normal. I believe it is right for 1993 that the House should agree to approve the draft orders before it. I commend them to the House. I beg to move.
Moved, That the draft order laid before the House on 30th November be approved [13th Report from the Joint Committee].—(Viscount Ullswater.)
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of these two orders. As he has rightly said, they are very similar to the orders which have been approved by your Lordships' House on previous occasions and on that score we certainly have no opposition to offer from these Benches. I am glad, however, that the Minister has addressed the question of the future of the CITB. I gave him notice that I would raise that matter as I have raised it in the past.
I am sure the House will appreciate that in a situation where the future is uncertain, because the review is still not complete and consultations are proceeding, the staff involved naturally do not feel terribly secure as regards their future. Certainly I should have thought it was in everybody's interest that a decision is made as quickly as possible. Your Lordships will be aware, of course, that we on this side of the House supported industry training boards and were sad to see their demise.
We believe the Construction Industry Training Board has done a good and effective job. Because of the special circumstances that apply in construction there is a case for maintaining a board and the system which the board itself runs. I therefore hope it will not be very long before the Government make a decision and the fears and uncertainties that exist in the minds of the people who work for the board will then be laid to rest. I am glad that full consultation is taking place with everyone concerned. It is my information that the industry in general is in support of maintaining the CITB. I hope that the Government will come to that decision. We offer no opposition whatsoever to these orders; indeed, we support them.
Lord Rochester: My Lords, from these Benches I wish to thank the noble Viscount, Lord Ullswater, for having introduced these orders so clearly. I am glad the Government decided that the two boards should be allowed to continue at least for a further period and that under the orders they are authorised once more to raise a levy on employers in the construction industry at the same rates as those which applied last year. It is an industry which, because of the mobile nature of the workforce and the extensive use of contract and self-employed labour, could hardly be treated, as I see it, in any other way.
Against the background of continuing job losses in the industry it is vital that the skill level of construction workers should be maintained by means of training to counter the tendency of unemployment to reduce it. Otherwise, when the upturn comes—we on these Benches have remarked on this point on a number of occasions—the industry will once again find itself disastrously short of the craftsmen it will need and that will lead to inflationary pressures as employers compete with each other for scarce skills by offering higher wages.
Like the noble Baroness, Lady Turner of Camden, we shall await with interest the outcome of the review to which the noble Viscount referred. We hope that in the special circumstances of the construction industry it will be possible for those boards to remain in being and for them to be in a position to plan ahead for a reasonably long period. That is not something they have been able to enjoy recently. The noble Viscount knows that in my view the Government themselves could well spend more on training. However, that is a matter for another day. I have no further comments to make on the contents of the orders themselves and I am accordingly happy to accept them on behalf of my noble friends.
Baroness Hooper: My Lords, I should be most grateful if my noble friend the Minister would be kind enough to confirm one specific point. I believe there is some anxiety among members of the consulting engineers' profession. They had understood from the 1988 White Paper entitled Employment for the 1990s that consulting engineers would not fall within the scope of the Industrial Training Board as they constitute largely a permanent workforce. They constitute a qualified workforce and they have established training schemes of their own. I hope my noble friend can confirm that point.
Viscount Ullswater: My Lords, I thank the noble Baroness, Lady Turner of Camden, and also the noble Lord, Lord Rochester, for the welcome they gave to these orders. These orders are, of course, particular to the construction and engineering construction industries. Those industries are different from most—the Government have recognised that—and need to be treated accordingly. I very much take to heart the comments of the noble Baroness about the concerns staff have as regards the future of the CITB. All I can do at the moment is to assure her that Ministers are currently considering that matter. I hope an announcement will be made soon.
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The noble Lord, Lord Rochester, put his finger on an important factor when he mentioned the mobile nature of the labour force we are discussing and the difficulty that poses for training. He mentioned the importance we need to attach to skill levels and to maintaining them. I agree with the noble Lord that the money that is raised from the levy is extremely well spent in that area.
My noble friend Lady Hooper asked me a question about consulting engineers. Whereas I believe they are within the scope of the order, and therefore that the ECITB has been active within its proper remit, I understand that a feasibility study is being set up to establish the demand for an independent industry training organisation for consulting engineers. I suggest that my noble friend's point might be considered alongside that study.
As I have intimated, the proposals have the support of the respective employers and have been approved by the boards. I believe that it is not in dispute that they should be approved by your Lordships. I commend the order to the House.
On Question, Motion agreed to.

Industrial Training Levy (Construction Board) Order 1993
Viscount Ullswater: My Lords, I beg to move.
Moved, That the draft order laid before the House on 9th December be approved [15th Report from the Joint Committee].—(Viscount Ullswater.)
On Question, Motion agreed to.

British Railways Bill
4.30 p.m.
Lord Mountevans: My Lords, I beg to move that the Bill be now read a second time. In doing so I declare an interest.
The Bill is a Private Bill promoted by the British Railways Board. Several noble Lords have asked me why it is before your Lordships at all in view of the Transport and Works Act which received Royal Assent shortly before the last election. Although that Act made substantial changes to the methodology for authorising public works its provisions do not apply to works Bills already in progress. This particular Bill was deposited in 1990. It comes before your Lordships as an unopposed Bill, the one petition against it in this House having now been withdrawn.
The Bill has 47 clauses and, if enacted, would enable British Rail to undertake a number of works, all of which are necessary to improve the railways' operations and are designed to facilitate or improve passenger services or to enable British Rail to attract or retain freight traffic.
Authority for those works is sought in Clause 5 of the Bill, while the works themselves are detailed in Schedule 1. In summarising the works to the House I shall take the opportunity to name the sponsors of the various projects.
Work No. 1 involves the reinstatement of a stretch of line at Guide Bridge, Manchester, to facilitate the

1387
operation of aggregates trains. Operating costs for such trains will be reduced, making rail more competitive with road transport. The cost of the works will be met by Trainload Freight.
Work No. 2 consists of the reinstatement of a piece of line at Edge Hill, Liverpool, to enable trains carrying imported coal to run directly from Bootle Docks to Fiddler's Ferry power station. That work is also funded by Trainload Freight.
Work No. 3 involves the reinstatement of a stretch of railway in St. Helens facilitating a new passenger service from St. Helens to the West Coast main line at Warrington. That work is sponsored by Merseyside Passenger Transport Executive.
Work No. 4 is being promoted on behalf of the Department of Transport and will consist of a temporary diversion of the Leeds to Skipton railway line to accommodate the construction of the new Aire Valley trunk road.
Works Nos. 5 and 6 involve the construction of additional track between Holbeck Junction and Leeds City Station. The additional capacity is needed to alleviate congestion and to enable West Yorkshire PTE, the sponsors, to run additional services.
Work No. 7 was to have been sponsored by British Rail's European passenger services and involved extension of a line already authorised in connection with services to and from the Channel Tunnel. The extension would have taken place at Ashford. If the Bill is given a Second Reading tonight the promoters will seek to have that item withdrawn from the schedule as there is no longer any operational necessity for the extension. My noble friend Lord Aldington has advised me that he wishes to discuss that particular proposal and its consequences and I am sure that I shall return to it in my winding-up speech.
Work No. 8 involves a new spur near Worksop to facilitate the movement of imported coal from South Humberside ports to Cottam power station. It is sponsored by Trainload Freight, as is Work No. 9 which involves a new siding at Sherborne in Elmet, North Yorkshire. The siding will be for the unloading of limestone to be used by the flue gas desulphurisation plant at Drax power station, where the material will be converted into insulation material.
Work No. 10 involves the construction of a footbridge in connection with the stopping up of a level crossing at Marholm near Peterborough on the East Coast main line. The crossing closure is already authorised by the British Railways (No. 2) Act 1986. The cost will be met by InterCity.
Works Nos. 11A and 11B arise from the need to close a public and a private farm crossing at Broughton West on the Cumbrian coast line. It is sponsored by Regional Railways.
In addition to those works the Bill provides for land purchase at Strood in Kent to allow a siding extension required for the operation of longer commuter trains on Network SouthEast's North Kent route. That would be funded by Network SouthEast and would in part be grant aided.
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There are also a number of minor works and level crossing closures designed to improve the reliability and safety of the railways. They are detailed in the remainder of Part II of the Bill and in subsequent paragraphs.
The Bill contains a number of other clauses. These are standard to works Bills of this kind and your Lordships will already be familiar with them. In concentrating on the works themselves, and in particular their funding, I have sought to demonstrate my belief that privatisation does not make the Bill irrelevant. Rather, I feel that Railtrack, the passenger transport executives and other successor bodies to British Rail would wish the works to proceed. Indeed, noble Lords may have noted PowerGen's announcement last week of its plans to buy a locomotive and rolling stock in connection with the facilities making up the work proposed at Drax.
The future ownership of our railways is not an issue for me this afternoon. The issue is the authorisation of works to improve the railway network and the service it provides. The issue is attracting more business to rail. Regardless of ownership our railways must develop and prosper. Achievement of those goals is the aim of this Bill. I urge your Lordships to support that aim and to give the Bill a Second Reading. I beg to move.
Moved, That the Bill be now read a second time. —(Lord Mountevans.)
4.37 p.m.
Lord Aldington: My Lords, I should like to thank my noble friend for the lucidity of his explanation of the Bill and for the manner in which he moved its Second Reading. Much of the Bill has my full support but I wish to raise a particular point in relation to Clause 9. The clause relates to works, to which my noble friend referred, which are no longer needed and, in particular, to the closure of a level crossing. That is the point which I wish to discuss.
First, however, I ask the House's pardon if I appear a little inexperienced in the procedures applicable to Private Bills. The last time I spoke on a Private Bill in this Chamber was about 41 years ago, when the Chamber was occupied by another place.
Clause 9 refers to the closure of an important level crossing at Aylesford Place in the middle of the Willesborough area of Ashford. The level crossing was first established there more than 150 years ago. British Rail is seeking powers in Clause 9 to close the crossing in connection with Work No. 7. Since British Rail has now abandoned Work No. 7, it proposes to abandon Clause 9. However, that clause includes provision for the construction by British Rail of a new footbridge in relation to which undertakings were given to the committee of another place in June 1991 concerning an alternative route for vehicles.
At first sight, it may seem not unreasonable of British Rail to wish to withdraw Clause 9. However, I propose to explain to your Lordships that it is very unreasonable and, in a way, quite outrageous and verging on sharp practice of a kind that no one would expect of British Rail if, in the circumstances which it explained through distinguished counsel Miss Sheila

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Cameron to the House of Commons committee on 12th June 1991, it was to fail to provide alternative crossings for pedestrians, perambulators and disabled persons' wheelchairs on the one hand and for vehicles on the other.
I am glad to be able to say that the board of British Rail has told me and the council that it will provide, at its expense, the new footbridge provided for in the Bill. But the board will not provide any alternative route for vehicles. I shall come to that.
One might ask, "Why is it that the board of British Rail agrees to provide the footbridge?" The reason is to be found in the speech of the board's counsel. I shall quote quite extensively from it. The reason for the closing of the crossing was, according to her, not really the works then proposed but the increase in railway traffic reliably expected to follow the opening of the Channel Tunnel. The abandonment of the works will not leave the level crossing open sufficiently for the required movement of vehicles and people.
At page 3 of the transcript of her opening statement, Miss Cameron said:
"I then turn, sir, to the need to close the level crossing. This is a manned crossing; the sole remaining level crossing on the London to Folkestone railway line, and it could be regarded in 1991 as something of an anachronism in any event on such a major line … So far as the Board is concerned"—
That is, the board of British Rail—
"its closure has now become necessary with the advent of the Channel Tunnel and the Board's proposal to run international trains on the existing railway line between Ashford and Folkestone".
Later, referring to the advent in due course of a high speed line, she said that,
"there is no way that any level crossing could be retained together with such a high speed line".
Miss Cameron explained the impracticality of retaining the crossing. Some noble Lords may have seen the minutes of evidence. At the bottom of page 4 of the transcript, she said:
"I now turn … briefly to the impracticality of retaining the crossing. My witness will explain how impractical it would be to retain the crossing from the point of view of the road users once international trains are using this line. By way of illustration, sir, taking a 16-hour day, at present during 14 of 16 hours the crossing is open for vehicular traffic for 30 minutes or more in each hour—each of those 14 hours. In future there will be only one hour in 16 when the crossing could he open for vehicular traffic in excess of 30 minutes, and that would be for a total of 33 minutes. For six hours it would not be open for more than 20 minutes and for two hours of those 14 it would be open for only five minutes in each hour. In other words, it would be closed for 55 minutes. It, therefore, takes little imagination, sir, to realise that drivers of vehicles are going to look for an alternative route".
That is what she said then about the practicability.
I have had the advantage, through Mr. Urie of British Rail, of obtaining a more up-to-date estimate of the hours in which the crossing will be available in 1996. In one hour it will only be available for three minutes and in another․94 minutes in a row․it will only be available for eight minutes. That deals with the impracticality of keeping the crossing open and relates to the footbridge.
What was said by Miss Cameron about the provision of vehicle alternatives is also important. I quote from page 6 of the transcript where she said:
"The first point [I want to make in this connection] is that the Board has long recognised that if and when the level crossing was closed, then improvements would have to be
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made to an alternative route across the railway. The nearest alternative route across the railway is a bridge with which Members will soon become very familiar, called Crow Corner Bridge, which is about 500 metres"—
or slightly less than that—
"to the east of the level crossing".
The reconstruction of that bridge to a higher standard has always been a prerequisite to the Ashford Borough Council's agreement to the closure of the level crossing.
Later, having described the consultations that had taken place, she was talking to the members of the Commons committee about a residents' petition against the Bill. She said:
"What, however, I must make quite clear, is that the Board is proposing to meet the whole cost of the widening of Crow Corner Bridge from its present narrow span of five yards with no footpaths which is 4.5 metres, to an eight yard carriageway and two yard footpaths on either side, making a total span, as I understand it, of 12 yards, so that it will meet modern highway standards. So the bridge is going to be enlarged substantially".
She went on to make what she said was her fourth point in that connection, stating that,
"there is no question that the level crossing would be closed until Crow Corner Bridge has been reconstructed and brought into use for road vehicles, so that that new wider span bridge would have to be complete and ready before the Board could close the level crossing at Aylesford Place".
That establishes the case for what the board proposes to do in view of the closing of the crossing which it took powers to do under Clause 9.
I have explained to the House that the reason for the closing of the crossing was not the works but the increase of rail traffic reliably expected after the opening of the Channel Tunnel. On the basis of British Rail's own figures, it is now expected to have a devastating effect from the point of view of vehicles and passengers crossing the railway in 1996. It seemed to me that on behalf of the board a clear undertaking was given to members of the Commons committee dealing with a petition from the residents that it would be provided. On that basis, the Commons let the Bill go through.
I therefore say to your Lordships that it seems to me incredible that the board of British Rail is now resiling from what was promised then. I think it is resiling from it purely because it has abandoned the works. It has forgotten that to all intents and purposes, as it told the Commons committee, the level crossing will be unusable and therefore closed to traffic.
It seems to me that if the Bill stays as it is with Clause 9 remaining, albeit slightly amended to remove the reference to the works, it will then be just a provision for the closing of level crossings, of which there are others in the Bill. It seems that the undertakings given to the Commons committee will then be valid and British Rail will have to follow them. That would seem to me a sensible piece of procedure if it is in accordance with Private Bill procedure in the House. I cannot believe that British Rail argues that the crossing will not in effect be closed once international rail traffic increases along that line.
There is, if the House does not accept my advice, another way for the borough council to deal with the matter. That is by a legal action. It has taken counsel's opinion and it is assured that it is in the right to impose

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upon British Rail an obligation to provide an alternative route for vehicles. I understand that British Rail took opinion and that it received exactly the opposite advice. That may be so.
My noble friend the Minister, in his usual courteous way, replied to a letter that I sent him informing him of what I intended to say. I do not believe that he will so far have been surprised at anything I have said. He said that there is no railway reason to widen the Crow Corner bridge. Why then did Miss Sheila Cameron say that it would be done. Apart from that, is it not a good railway reason that British Rail should honour undertakings made in its name to a committee of the Commons? I hope that at Committee stage a way will be found of looking after the justifiable interests of the people of Willesborough in Ashford.
4.52 p.m.
Lord Underhill: My Lords, although I speak from the Opposition Dispatch Box, I should like to make it clear, as always on these occasions that I do so in a personal capacity as it is a Private Bill. However, I have no reason to doubt that my noble friends support what I am going to say.
As the noble Lord, Lord Mountevans, said, the Bill carries out what most British Rail Bills aim to do; namely, to facilitate the running of the railway, to improve reliability and to improve safety. This Bill is in the same line.
As has been mentioned, the Bill received an unopposed Second Reading in the other place as far back as March 1991, three years ago. There are now no petitions to be heard. Therefore, if this House gives it its Second Reading, the Bill will go to an Unopposed Bill Committee.
A very important issue was raised by the noble Lord, Lord Aldington. He explained what Work No. 7 in Clause 9 refers to; namely, stopping up a level crossing in the Ashford area. That, as we heard from the noble Lord, has given great concern to the Ashford Borough Council. I emphasise that the Ashford Borough Council displayed keen interest and support for the fast rail link which is intended when the Channel Tunnel goes ahead.
The noble Lord, Lord Aldington, referred to the undertaking given on behalf of British Rail at the Commons Select Committee in June 1991. That, I believe, was a very important undertaking. I shall not weary the House by going over what the noble Lord, Lord Aldington, said in a very plain speech, explaining the situation clearly. However, I stress that Ashford Borough Council has emphasised that it had no reason to doubt that the works—namely the alternative works and the improved bridge at Crow Corner—would be carried out in the light of the undertaking given by counsel on behalf of British Rail. I understand that the council was absolutely amazed when the undertaking given quite freely was withdrawn at a later stage.
I must ask two questions. Noble Lords may feel that they have been answered in the speech of the noble Lord, Lord Aldington. But I would like the
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noble Lord, Lord Mountevans, to answer the questions and perhaps the Minister as well. Why was the undertaking so clearly given by counsel on behalf of British Rail? Secondly, why was the undertaking subsequently withdrawn?
Reference was made by the noble Lord to a ministerial letter he received from the noble Earl, Lord Caithness. He will certainly not mind my referring to it, as the noble Lord, Lord Aldington, has given me a copy. The noble Lord read out one part. It said:
"As regards vehicles, there is no railway reason why Crow Corner Bridge should be rebuilt".
Unfortunately the noble Lord forgot to mention the last three words—"at this time". Those words are very important.
I support what the noble Lord, Lord Aldington, said. That is why I would like two questions answered. Why should the decision as to what is going to happen be taken "at this time"? I would urge that if British Rail cannot now provide the actual works, it should give a renewed undertaking to be prepared to pay for any works that have to be carried out to improve the Crow Corner bridge. It seems pretty clear from what I have heard of the case, and from what the noble Lord has explained to the House, that when the level crossing is stopped up, there will be difficulty with vehicular traffic using the present bridge at Crow Corner. It is a narrow bridge and a hump bridge.
The other reason why I believe an early decision needs to be taken is so that one can be ready for what has to be done when the Channel Tunnel link is finally determined. I hope that it will be possible for something to be done with a complaint so strongly put forward by the noble Lord, Lord Aldington, and that there is some means whereby the position can be improved in the light of the original undertaking given by the board's counsel.
The other point I wish to raise is that Works Nos. 2 and 8 relate to developments to facilitate the handling of imported coal. I can understand the point that has been made that British Rail carries out provisions to meet the wishes of customers. May there not be changed circumstances? We understand that a report is to be presented which may lead to a completely changed situation regarding imported coal. Some of the pits which it has been announced will be closed may not be closed. There may be a new agreement with British Coal whereby British Coal will take much more coal from the pits, and the need for imported coal may not be as important as this Bill would suggest. I do not blame British Rail. If a customer wants provision to be made, British Rail must comply or should consider doing so. But, in the light of circumstances that I believe are to change in the next few weeks, provisional facilities for imported coal should be seriously considered on the basis of whether they should proceed or whether that would not be an encouragement to bring in coal which is no cheaper than coal from our own pits. It is not just a question of British Rail; it is a question of national policy, to which I believe the Government should give some consideration.
The final point that I wish to make is that Works Nos. 3, 5 and 6, as the noble Lord, Lord Mountevans,

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emphasised, relate to works to improve local services in accordance with decisions of the relevant passenger transport authority and its passenger transport executive with the PTA meeting any cost involved. That clearly emphasises one point made when we considered amendments to the British Coal and British Rail paving Bill, namely, the importance of Section 20 schemes put forward by PTAs which are so vital to the provision of local passenger services. I hope that consideration will be given to the point emphasised in the Committee stage of the paving Bill that the passenger transport authorities and their executives should be clearly associated with the granting and developing of franchises under the railways Bill which we shall be considering shortly.
I support what British Rail is trying to do. However, I hope that some way will be found of resolving the complaint of the noble Lord, Lord Aldington, to which I give my full support.
5 p.m.
The Earl of Caithness: My Lords, I am sure that the whole House is grateful for the clarity with which my noble friend Lord Mountevans introduced his Private Bill. I stress, as did the noble Lord, Lord Underhill, that it is a Private Bill and therefore places the speakers at the Dispatch Box in a different position from normal.
The Government have considered the content of the Bill and have no objection in principle to the powers sought by the railways board. We have no points outstanding on the Bill. However, it would be wrong for me not to comment on one point because there is a departmental interest in it. I refer to Works No. 4 which relates to the proposed Airedale trunk road scheme. Obviously, we do not wish the Bill to be delayed as we wish to progress with that work. We believe that that is an important and vital part of the trunk road scheme which will bring substantial benefits locally.
I comment briefly on a point raised in detail by my noble friend Lord Aldington and the noble Lord, Lord Underhill. As the House is aware, it is up to the promoters of the Bill to persuade Parliament that the powers that they are seeking are justified and to explain in particular their policy towards the Willesborough level crossing. As your Lordships will know, my noble friend Lord Aldington was a barrister and he would have been more than a formidably good advocate had he not become a formidably good Minister. He certainly put a strong case tonight. That is but one side of the story. For every good barrister on one side there is doubtless a good barrister on the other. Indeed, my noble friend mentioned that BR had received different advice from the advice that he was backing.
As a good barrister my noble friend is well aware that interpretation of the statute is ultimately a matter for the courts. However, whatever the practical merits of the point, my advice and as I understand it—I am no lawyer—is that BR's legal advice is that BR has a statutory right to carry the line across the road on the level and a right to keep the crossing gates closed at all times when the line is being used by rail traffic. In
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other words, rail has priority to road and the intensification of rail use does not, in the board's opinion, affect the board's legal right or obligations.
Having said that, I would add that that dates back to the South-east Railway Act of 1836 as amended by an order made by the then Minister of Transport in June 1966. It is a complex and legal affair and I am sure that the House will agree that this is perhaps not the time to look into the details of it. The Committee stage is obviously the right place and Members of the Committee will be in a better position than we are today to examine the issues in detail. Meanwhile, I hope that the House will give the Bill a Second Reading.
5.4 p.m.
Lord Mountevans: My Lords, as I said earlier, my noble friend Lord Aldington kindly gave me notice of his intention to raise the subjects of Willesborough crossing and Crow Corner Bridge—two locations which have caused considerable anxiety also to the noble Lord, Lord Underhill. I must say at the outset that I have some sympathy from a personal point of view, as I am sure your Lordships do, with the case put forward by my noble friend Lord Aldington. This is not the first time and, alas, it will not be the last when we have to consider instances where a sacrifice is demanded of a minority—in this case the users of the Willesborough crossing—for the greatest good of the greatest number.
My noble friend raised a number of points concentrating on the speech of British Rail's counsel before the committee of the House of Commons. However, it is worth saying that there are a number of other points of view which should also be taken into account. As I mentioned earlier, the alterations to the design of the international station at Ashford are such that the closure of the level crossing as then thought necessary, is no longer such a necessity. Noble Lords will be aware that the Government rejected British Rail's original proposals for Ashford International. There is now a second set of proposals before the Government, but they have been moved some distance away.
My noble friend Lord Aldington made much of the undertakings given in another place by British Rail in arguing for the closure of the level crossing. However, as I said, the argument was based on the original proposals in respect of Ashford International. Since then, not only has the station itself been moved, but other factors have changed. The opening of the Channel Tunnel has been delayed. That will enable British Rail to undertake the re-signalling of the Ashford area and include Willesborough level crossing into the new plans in time for the introduction of international services. British Rail therefore no longer has any operational purpose in seeking the closure of the level crossing. We must be careful because both my noble friend and the noble Lord, Lord Underhill, used a word, which was not far short of "stop-up", and implied that the crossing was going to be closed in perpetuity. It is not. It will be open when the operation of trains commences.

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I turn briefly to Crow Corner Bridge. Part of the reason for rebuilding it was to include an extra span which was to accommodate a road access between a development site called "Newtown", which the board proposed to develop in the context of the original proposals for Ashford International. It would give access between that site and the southern orbital road. However, owing to the current depressed state of the property market that development is not being progressed. Again, British Rail feels unable to accommodate my noble friend.
As the board no longer seeks authority in the Bill to carry out any works at Ashford, it is highly questionable whether it possesses the statutory powers needed to pay for highway improvements unrelated to railway works. That is what a reconstructed railway bridge at Crow Corner—as the noble Lord, Lord Underhill, requested—would constitute.
As my noble friend Lord Aldington said, after the opening of the Channel Tunnel there will be periods when crossing the railway at Willesborough by car will be difficult. But as he also reminded us, there are alternatives to motorists by Newtown road, which I recognise has a height restriction, or by the use of Crow Corner Bridge. British Rail stands by its original undertaking to assist with the highway changes when next Crow Corner Bridge is rebuilt—I stress, "when next".
My noble friend mentioned also that British Rail made considerable progress in benefiting again pedestrian users of Willesborough crossing. A new footbridge is in the design stage. It takes total account of the requirements for the disabled, people with prams and so forth and abides by the later statutory directives in that sense. There has been widespread consultation with the local residents' association to ensure that the bridge meets their requirements. Ashford council has been present at least at some of those consultations.
Lord Aldington: My Lords, perhaps I may interrupt my noble friend and I hope that he will not think I am being discourteous. In the course of his earlier remarks he implied that I slightly misled your Lordships by saying that the board had said in its evidence to the Commons that it was necessary to close the crossing. May I remind him of what counsel said quite clearly:
"So far as the board is concerned, its closure has now become necessary".
That is clear. What has happened to change the board's mind about that?
Lord Mountevans: My Lords, I thought that I had detailed a number of things that have happened. Ashford International has been moved. Property developments which British Rail was seeking to achieve have been deferred. On the south side of the crossing, property developments which Ashford Borough Council was seeking to encourage have also been deferred. The line will be resignalled before Channel Tunnel trains start operating. That is now the hope. I really cannot go much further. I can fully understand why British Rail gave the undertakings it
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did at the time in the Commons committee, but, as I cannot seem to stress enough, many of the circumstances have changed since then.
If I may return briefly to the footbridge, I can assure my noble friend, in case he has not been assured before, that funds are earmarked for this project. I understand that British Rail hopes to submit a design proposal to Ashford Borough Council for planning consent some time next year. One cannot predict when the bridge will be built or opened because there is the planning process to go through.
My noble friend also mentioned the legal opinion which had been obtained by Ashford Borough Council regarding the crossing. I cannot comment on that legal opinion because the promoters have not seen it. As your Lordships will have heard, however, the promoters have secured their own opinion. The opinion that they have received leads them to believe that they have in their favour the support of 150 years of law relating to railway operation and public rights of way.
The noble Lord, Lord Underhill, referred to the two works which are concerned with facilitating the import of coal. He reminded us that a number of imminent reports might well remove the requirement for those works by making imported coal less attractive. As he also implied, when this Bill was deposited the two works were put in because it appeared to the promoters that they met a marketing opportunity—there was a need for them. Whether that marketing opportunity will exist in the future I cannot tell, because quite clearly I cannot today address the problems of the coal industry. It would be extremely presumptuous of me to attempt to second guess what the energy White Paper might eventually say when it is published.
The noble Lord, Lord Underhill, also mentioned the two works being commissioned by passenger transport authorities. He well knows that I share his considerable support for the work being done by the PTA and PTE system. He will probably remember several very pleasant and instructive trips that we have had to various venues in the north of England. I share his enthusiasm and I understand that the PTEs will still be able to specify the service level and will still be able to request investment levels even in the new regime which might come to pass if the privatisation Bill before another place eventually receives Royal enactment. I hope that he finds my support sufficient on that matter.
I have endeavoured to respond to the points made by those noble Lords who have put questions to me. I am sorry that I cannot accommodate my noble friend Lord Aldington further. He and I, I fear, will always differ on this because he is in one sense living in the past. He is quoting the situation as it was in 1990 and 1991. I have sought to quote the situation that will prevail in 1994 and beyond, which will be different. With those closing remarks I thank those who have spoken for their support.
Lord Underhill: My Lords, the noble Lord has said that circumstances will be different. What are the changed circumstances which will render unnecessary an improvement for vehicular traffic?
Lord Mountevans: My Lords, I have tried to cite some of them already. The delay of the Channel Tunnel itself—hence delay in the coming into service of the increased traffic. There will also be reduced road traffic because two developments which played a significant part in formulating British Rail's thoughts for the work are no longer necessary. They are not going ahead at the moment. They may of course go ahead in the future. Union Rail may go ahead in the future. I mentioned resignalling. There are a whole number of items which I believe reflect a substantial change in the situation since 1990.
On Question, Bill read a second time, and committed to an Unopposed Bill Committee.

Royal Assent
The Deputy Speaker (Lord Hayter): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following two Acts:
Social Security Act,
London Underground (King's Cross) Act.

Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992
5.15 p.m.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom rose to move to resolve, That this House calls upon Her Majesty's Government to revoke Regulations 2 and 8 of the Salmon (Definition of Methods of Net Fishing and Construction of Nets) (Scotland) Regulations 1992 (SI 1992, No. 1974).
The noble and learned Lord said: My Lords, in speaking to this Motion this evening I remind your Lordships that as long ago as 1861, by a decision of your Lordships' House, the principles of what constitutes net and coble fishing at common law in Scotland were identified and set down and that in accordance with those principles courts have since that time struck down attempts to extend those principles—what might be termed abuses. For instance, again in your Lordships' House in 1900, a method known as "toot and haul", and also hang or driftnet methods were declared illegal as methods of fishing in Scottish rivers. In 1919 the Court of Session struck down another method which was known as fleeting.
In 1951 Parliament prescribed the legal methods of fishing for salmon in any inland water as rod and line and net and coble; and in 1986 additional provision was made for the present lawful methods of salmon fishing in Scottish waters by Section 21 of the Salmon Act of that year.
In the course of discussion in your Lordships' House in Committee during the passage of the Salmon Bill it was said that the term "net and coble" was not defined except by judicial decision. That is a not
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unusual situation in the common law. But the essential of the net and coble method of fishing has been put thus:
"taking a grasp of a portion of a river during which time only as is required for the boat to row round the net".
It is therefore a form of fishing which is essentially shore based. It has to have a continuous sweep of the net. It requires the net being continuously paid out from the stern of the coble or boat and the other end of the net to be attached to a rope which is continuously moved down by hand from the launching point to the shore landing ground. The principle of the act is that the fish are guided by the movement of the net towards the shore landing ground and are not simply enmeshed in the net.
It has been put in another way in a legal textbook of considerable authority:
"Thus the net is not to be fixed or stinted or in any manner settled or made permanent in the river, but it is to be used by the hand, and is not to quit the hand and is to be kept in motion during the operation of fishing".
In that it refers to both ends of the net as being hand held.
I was alerted to the terms of the regulations with which this Motion is concerned after they were laid before Parliament in August of last year. I was so alerted by a colleague who has a close association with the Salmon and Trout Association, of which I am also a member. But I have to say that today I speak on my own account.
My concern at that stage was with what were then Regulations 2 and 8 of the draft regulations and more particularly with the definition of net and coble in what is now Regulation 2 and with the prohibition in Regulation 8 as being limited simply to monofilament netting. I understand that these concerns were not limited to the Salmon and Trout Association and that while the draft regulations were before Parliament representations were made by other organisations. I understand that it was accepted by government that there was merit in those objections. They related in the first place to Regulation 2. I remind your Lordships of the words of sub-paragraph (a):
"fishing for or taking salmon by net and coble means the use of a sweep net, paid out from a boat, whereby the salmon are surrounded by the net and drawn to the bank or shore".
It will be observed that in that definition, which is quite general and replaces the common law definition, there is no reference whatsoever to the shore end. It does not connote that the net has been launched from the shore, nor does it connote that it has there to be hand held. Indeed, on one reading of the regulation it may give rise to an extension of the definition of net and coble at common law to encompass a widespread abuse in the past in the Forth estuary by use of a floating buoy attached to one end of the net. It may even be argued that such extension of the common law is not within the powers of the Minister granted by the 1968 Act.
In relation to Regulation 8, which was limited to a prohibition on monofilament netting—no doubt because of its invisibility—in the debates in this House in 1986 (of which I have some little recollection) reference was made to the fact that multifilament netting could be equally invisible. I considered this regulation to be too restrictive in its effect. I put down

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a Motion attempting to bring this matter before your Lordships' House but unfortunately omitted to count the necessary number of days within which the Motion should be debated in accordance with your Lordships' procedure. That being so the regulations came into force on 1st January of this year.
The Government have indicated a preparedness to consider with some sympathy further representations with regard to the regulations. Indeed, they have indicated a willingness to amend them. I received a copy of a letter from the Scottish Office indicating that there was a proposal to amend the net and coble definition and introduce a new Regulation 8A. That letter was dated 23rd November 1992, which was at about the end of the period during which the draft regulations would have been before your Lordships' House. It was perhaps unfortunate that the Government did not have the courage of their convictions and at that stage withdraw the regulations before they took the force of law. So be it. The regulations are there, but it appears it is intended that they will be further amended.
They are also regulations which are intended to form the basis for prosecutions. I suggest that to change the goal posts with such rapidity in the regulations is not the best way forward in dealing with the criminal law. Criminal prosecution requires certainty, not uncertainty. For example, is the Lord Advocate to await the new regulations before launching prosecutions in relation to net and coble fishing because it is likely that amending legislation is in prospect which may have an effect on the terms of any charges to be laid against individuals?
I should like to deal with the suggestions made in the consultation letter. The proposal is to introduce a new Regulation 8A on the following lines:
"No net used in fishing for salmon by net and coble or by bag net, fly net, or other stake net shall be designed or constructed for the purposes of catching fish by enmeshing them".
Since the proposed amendment would make clear that the net is not to be used and therefore designed or constructed, for the purposes of catching fish by enmeshing them—that is to say, that it also deals with the general issue that net and coble fishing is not to enmesh but simply to surround fish - to that extent my concerns about Regulation 8 are stilled. However, I should still like to know from government what they would wish to do about multifilament nets and why that matter could not have been included within the regulations as they were.
My principal concern remains the definition of net and coble. If, as is now acknowledged by government, there are difficulties in achieving a satisfactory definition of net and coble, it suggests to me that what is now in force in the regulations remains unsatisfactory. The question is whether what is proposed as an improvement is in any sense a better solution. I have already read to your Lordships the present regulations. What is now proposed is to add to the definition at the point where reference is made to a sweep net paid out from a boat the words,
"and worked from the bank or shore or from waters adjacent to the bank or shore".
That is an attempt to bring in a reference to the rope attached to the other end of the net from that which is paid out from the coble. I pause to observe that no reference to "hand held" appears in the proposal.
I pause also to observe that this is a general definition, as is perfectly plain from its terms. It makes reference to,
"worked from the bank or shore or from waters adjacent to the bank or shore".
What does "adjacent" mean? The dictionary tells us that it means to "lie near" or "close". Is the same test to be applied where it is the bank of a river as it is to the shore of an estuary; that is to say, in exact length, breadth or degree? Is that to mean that, where commonly the operation has been carried out from the bank and without a boat other than the coble, the operation can now be extended into the water adjacent to the bank and also extended further by the use of a boat at that point? It may be some other thing such as a floating buoy.
I make that point because, as I understand it, there is a concern that the present practices should be preserved and so far as possible not departed from. But that certainly would not simply reflect the present practice in the width to which it extends.
The point is even stronger because the 1986 Act was passed and authority was given to the Secretary of State to define by the use of regulation the section which is now Section 2A of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951. It specifically provides as follows:
"The Secretary of State may by regulation define fishing for or taking salmon by net and coble and may make different provision as respects inland waters from that as respects other waters".
That is to say, that the provisions so far as definition of net and coble can be different for inland waters, rivers and tributaries as opposed to estuaries. No doubt it will be said with some force that some of the innovations on what might be called the understood practice have been in reference to estuaries. It appears to me that not only are there in the present regulations a most unsatisfactory degree of uncertainty in the definition but even what is suggested now in the consultation paper is equally objectionable.
I suggest to the Minister that there is another approach which might be adopted and one which has been adopted in the common law since 1861, and indeed before. It is to rely on the principles which are to be derived from our common law and judicial decision and to seek to use the regulations to outlaw those operations or methods which would fall out with the common law. That is precisely what the courts have done since 1861 with success and it is equally the manner in which they proceed forward securing certainty and at the same time dealing rapidly with the abuses as they appear. It is for those reasons that I beg to move.
Moved, That this House calls upon Her Majesty's Government to revoke Regulations 2 and 8 of the Salmon (Definition of Methods of net Fishing and Construction of Nets) (Scotland) Regulations 1992 (SI 1992, No. 1974).—(Lord Cameron of Lochbroom.)
5.34 p.m.
Viscount Thurso: My Lords, we should be grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for drawing our attention to this matter and giving us the opportunity to discuss it on the Floor of your Lordships' House. But I very much hope that at the end of the day we shall not upset the arrangements which have already been passed into law by the Statutory Instrument and which have taken a great deal of effort and co-operation between the various interested parties and the Agriculture and Fisheries Department in the Scottish Office. Indeed, it has been a kind of co-operation which is all too rare and which we have been very glad to see in this instance.
Before going too far I should explain that I have quite a wide interest in this matter. I am the principal shareholder and chairman of a company which owns and operates rod fishing on the whole of the River Thurso. It also owns and operates a sweep net in the estuary of the Thurso. It also owns and operates bag nets in Thurso Bay. In addition, I have been for many years the chairman of the Thurso District Salmon Fishery Board. About three years ago I was able to persuade my neighbours that it would be advantageous to us all if we got together and formed a wider board, which we did. We have now joined all the rivers of Caithness together into one Caithness District Salmon Fishery Board. We find that it works very well and that it has helped us in our task of trying to enforce the law and to improve and uphold the quality of the fisheries in the area.
What the noble and learned Lord, Lord Cameron, is asking us to do, it seems to me, is to gralloch the statutory instrument. We are being invited in this instance to tear all the vital organs out of the instrument in the shape of Clauses 2 and 8, which really contain the vital parts of the instrument. In other words, we are being asked to throw out the instrument which has been the law since the beginning of the year. Yet we know that discussion has taken place between Scottish Office officials and the Minister, Sir Hector Monro, members of the council of the Association of Scottish District Salmon Fishery Boards, and representatives from the Salmon and Trout Association and from the Atlantic Salmon Trust. As a result of representations which we have all put to the Scottish Office, I understand that there are amendments to be brought forward to the regulations which I have no doubt the Minister will tell us about later.
We are confident that these adjustments to the instrument are going to be satisfactory. The Association of Scottish District Salmon Fishery Boards gave an assurance that we were in favour of the instrument and of the adjustments which were due to be made to it. We believed that we were speaking for the salmon industry as a whole, including the rod fishermen and the netsmen, both the sweep nets and the fixed engines. We believed that, as such, we were expressing a consensus of opinion. We were therefore very disappointed to find that, notwithstanding the great efforts which have been made, the noble and learned Lord, Lord Cameron of Lochbroom, and the
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honourable and learned Lord, Lord Marnoch, have questioned the wisdom and validity of the decisions which have been reached.
It is important that we get this matter sorted out. At the moment, relying solely on common law, it is difficult for the various people who are responsible for enforcing the law to be sure of their position before taking cases. It is immensely desirable that the various methods of netting for salmon should be defined and put into some form of statute. We feel that this should be done by the proper discussion which has already taken place.
We do not think that common law has been extended. Defining exactly how a net and coble should be worked is an immensely difficult process. In fact, net and coble fishing is done ever so slightly differently on nearly every river because the shape of rivers and their banks and the way fish approach are all slightly different. However, the principle remains the same. The noble and learned Lord, Lord Cameron of Lochbroom, has ably described the principle of encircling the fish, rounding them up and bringing them to the shore, but it is extremely difficult to define how that is actually done.
Is the method employed, for instance, on the Oykel going to be acceptable to the noble and learned Lord, Lord Cameron? There ropes are not held in the hand, but on a winch, which is then wound. Is there something wrong with that? In our case, for instance, it is impossible to launch the boat from the shore so the boat has to ride in the estuary, attached to a buoy. The net is not unfurled at this point. It is loaded on the stern of the boat and is held with a rope which is not pulled. The rope is not released until the boat starts to shoot. When the boat shoots, it shoots continuously and people on shore start to haul in.
On the other hand, if a shore is covered with bushes, one has to have some other means of taking the shore rope down to the point of haulage—and this is where a boat in waters "adjacent to the shore" has to be used. There are all sorts of different local conditions which have to be dealt with. We might have been wiser to have given powers of adjustment to these regulations to the individual boards so that local arrangements could have been taken into account. However, I accept that defining fishing methods has to be done on a country-wide basis, so I do not quarrel with the way in which this has been done.
With regard to the question of whether the Lord Advocate has to wait before launching prosecutions, perhaps I should point out that he will not want to launch any prosecutions for a little while yet because the netting season is not open. There is plenty of time to get the new wording out before the netting season opens. Many rivers will not be netting and most of the coast will not be netting yet. It is rather early in the year for that to be taking place. Therefore, there is plenty of time and we do not need to worry about that. I am sure that the department will get the new regulations out in good time.
I have a feeling that if we agree to this Motion, we shall not so much be throwing out the baby with the bathwater as throwing out the bathwater before we have had a chance to put the baby in it. It seems to me

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that we need to allow the regulation, which is now the law, to be used and, if it is found that the shoe pinches, there will be plenty of time to adjust the regulations later. Certainly, the adjustments which have been agreed will arrive in time for no great harm to have been done.
The whole question of netting has to be seen in perspective. There has been an enormous decrease in the amount of netting carried out around our coasts —not always with advantage to the rivers. A great deal of this is due to buy-outs and to nets being taken off deliberately, but much of it is due to the low price ruling for salmon in the market and to the much bigger danger of netting on the high seas, which is depressing the market for salmon. We would be wise to hope that the noble and learned Lord, Lord Cameron of Lochbroom, will not pursue his Motion to the ultimate and that, at the end of the day, he will be persuaded to withdraw it so that we can allow this instrument to take effect and allow the amendments which have been agreed among many parties to be added to it. I hope that the noble and learned Lord will listen to my plea.
5.46 p.m.
Lord Sanderson of Bowden: My Lords, I start by congratulating the Government on daring to put their toe in the water in this very fraught area of netting regulations. I, for one, know a little bit about this and I am well aware that there are those more learned in the law than I who can deal with this matter. The only area that I wish to raise in the presence of my noble and learned friend the Minister of State is that relating to the definition of netting and coble, which was referred to eloquently by the noble and learned Lord, Lord Cameron of Lochbroom. It relates to paragraph 2(a) and to the phrase, "or from waters adjacent to the bank or shore".
I am sure that the Government understand the importance of what they are trying to do in attempting to define in statutory language the definition of fishing by "net and coble". As a layman, I thought that the general principle of the existing law is that the shore end of the net should be operated from the shore. It is true that there has been one case where, in tidal waters, it has been held permissible for the shore end of the rope to be hand-held by a man sitting in a boat, dropped down on a fixed rope on the line which he could have waded at low water. However, I repeat that there has been only one case, which I believe must have persuaded the Government now to seek, by their wording, to make it a general rule by stating that the net may be worked from the bank or shore "or from waters adjacent to the bank or shore".
I am told—and I am not at all surprised—that that wording is so vague as to be totally unenforceable in a court of law. If that is the case (and the reason that I have risen to speak is that), having had a bit of experience of the troubles in the Forth estuary some years ago, I am advised that that wording could give legislative authority to some of the practices and activities that have taken place on that river quite
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recently, in relation to which the fisheries protection department of the Scottish Office had great difficulty in bringing prosecutions.
We have to ask the Government what is meant by the phrase, "or waters adjacent to the bank or shore"? What distance from the bank or shore is to be permitted? Would this not vary, as the noble Viscount, Lord Thurso has said, depending on whether we are talking about a river a hundred yards wide, an estuary a mile wide or even the shores of the Irish Sea? It is true that criminal prosecutions must be as certain as possible if they are to be effective. I realise the difficulty in codifying existing law. Therefore, is it not better to let the law develop rather than pre-empt it by having in code the very worst situation as regards the rod fishing industry?
My own view is that a net operating from the shore would allow a man to wade close to that shore, in which case no special wording is required. I see no reason—I entirely agree with the noble Viscount—why the other provisions of the statutory instrument should not remain, but I believe that this particular phrase should be looked at again before cases are brought before the courts which, in the end, noble and learned Lords like the noble and learned Lord, Lord Cameron of Lochbroom, have to dismiss because the law is inconclusive.
5.51 p.m.
Lord Moran: My Lords, as an Englishman living in Wales, who on this question is speaking for himself and not representing the views of any organisation, I feel diffident about embarking on what is obviously an exclusively Scottish matter and, moreover, to a large extent a Scottish legal matter. I took part in the debates on the Salmon Bill in 1986 which the noble Lord, Lord Belstead, who I see is in his place, will remember all too well. I found that during the passage of that Bill there were a number of questions requiring legal expertise, so I asked my noble and learned friend Lord Denning whether he was prepared to lend a hand, which he very kindly agreed to do. He took a prominent part in the debate, but when he got involved in the Scottish law I remember that he was taken to task by my noble and learned friend Lord Cameron of Lochbroom, who was then Lord Advocate. So if such an enormously distinguished legal luminary could get into difficulties with Scottish law, a mere layman like myself must obviously be hesitant.
This statutory instrument derives from Section 21 of the Salmon Act 1986 which, as I understand it, states that the Secretary of State for Scotland may define lawful netting methods for catching salmon in inland and coastal waters. That was nearly seven years ago, so it has taken some time for the Secretary of State to do that, but the statutory instrument that we are now discussing is the result of it. Most of it, as a result of the consultation process described by the noble Viscount, Lord Thurso, is generally agreed, but my noble and learned friend Lord Cameron of Lochbroom has questioned two of the regulations. I understand that the problem about Regulation 8 is on the way to resolution, so I shall say nothing about

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that. We are left with Regulation 2 which seeks to regulate net and coble fishing. This has caused great difficulty, but it is of great importance because net and coble fishing is, as we know, the only legal method of fishing for salmon in Scottish rivers, apart from the Solway, and when the fish have moved into the confines of their native rivers they must clearly be protected from methods of fishing which would unduly exploit the stock.
When the Department of Agriculture and Fisheries for Scotland, as it then was, put out what seemed to me a very sensible consultation paper in May 1988, it foresaw that this problem would be difficult. It said in that consultation paper that in deciding particular cases the courts had described the essential features of fair net and coble and went on to say:
"It is therefore possible to contend that there is no need for a new definition as 'net and coble' in the new sub-section (1)(A) would take the meaning of the same words in sub-section (1) whose meaning has been set by case law. Moreover, a potential disadvantage of a statutory definition would be that, if it was held to comprise the whole law on the meaning of net and coble, it could leave loopholes unless it covered every point of current and likely future importance that has been decided in past cases".
I understand that there were prolonged discussions on the question of defining this method of fishing, but it has evidently not been possible to reach general agreement and the Scottish Office, as has been said, proposed in November amended wording which included this wording, that it should be
"the use of a sweep net, paid out from a boat, and worked from the bank or shore or from waters adjacent to the bank or shore".
I agree with the noble Viscount, Lord Thurso, about the need for clarity which is so necessary, for enforcement, but, although I am no lawyer, it seems to me that those words—
"waters adjacent to the bank or shore"
—are hopelessly vague.
"Adjacent to the bank or shore",
might mean four metres or four miles. It seems to me that, if a court were asked to enforce that in a case, it would be in an impossible position. In general, the statutory instruments emanating from your Lordships' House should be clear, intelligible and unambiguous.
Very sadly, this proposal has split the organisations concerned with wild Atlantic salmon. The view of the Salmon and Trout Association is that this proposed new wording would be a quite unwarranted extension of the existing law and is, in any event, so vague as to amount to a charter for serious abuse. However, the Association of Scottish District Salmon Fishery Boards takes a different view and, being I hope a fair-minded person, I asked to see its briefing note, of which I have a copy.
In essence, it makes, as I understand it, two main points. First, the wording, although it may not be very satisfactory, is the best that can be achieved. Efforts to improve on it have failed. In other words, it is not very good but there is no way of having anything better. Secondly, if the Motion were pressed to a Division and the Government were defeated, the organisation says that there is,
"little doubt that the wild salmon lobby would be at a major disadvantage in future discussions with the Scottish Office
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when it comes to more important future legislation on issues such as the regulation of fish passes and the requirement of fish screens to protect juvenile and adult salmon at all abstraction points".
It also makes one or two other points.
That seems to be a very strange suggestion because it implies that, if the matter were to be pressed and the Government were defeated, the Scottish Office would, so to speak, sulk and, just to spite the salmon organisations, would not help them on anything else. That seems to me to be both insulting to the Scottish Office and ridiculous. I hope that when the Minister comes to wind up he will be able to dismiss that suggestion.
Viscount Thurso: My Lords, I hope that the noble Lord will accept that the President of the Association of Scottish District Salmon Fishery Boards—me—did not make that point.
Lord Moran: My Lords, those were the two points in the brief that the association put out.
As I understand it, there is a firm requirement, and there has been for many years, that one end of the net should be held by a fisherman. I have seen a copy of a textbook, Tait on The Game and Fishing Laws of Scotland, second edition (1928), which states:
"It will be noticed … that when the net is in the water it is constantly in motion",
and that,
"one end never leaves the hand of the fisherman".
Later it says:
"It was not legal to fish with a net unless when the net continued in the hand of the fisherman. The net must not quit the hand, and the net must be in motion during the operation of fishing".
The question of the net being in motion is fully covered, but as far as I can see the question of the net being held in the hand is not covered in the statutory instrument or the proposed amendment. Why not? Why is it not laid down that, apart from tidal waters, the shore end of the net needs to be held on the shore? That is a point that was made by the noble Lord, Lord Sanderson of Bowden.
It is clear that the doubts expressed in the original 1988 consultation paper, which I quoted, about the wisdom of trying to define net and coble fishing were well founded. The details given to us by the noble Viscount, Lord Thurso, of the varying practice of net and coble fishing in different rivers reinforce that view. There is clearly a deep division of views about the existing wording and the proposed amendment. Eminent legal authorities, of which my noble and learned friend is one, have serious doubts about it.
The answer must he to delete Regulation 2. As I see it, it is not necessary to define "net and coble". It can be left, as it has been up to now, to the common law of Scotland. If there is any doubt as to how it should be understood and enforced, surely the Inspector of Salmon Fisheries in Scotland can seek clarification or development of the law by instigating test cases where appropriate. I hope therefore that the Government will consider carefully the arguments put forward today and will be disposed to take away Regulation 2 and think some more about it.
6.2 p.m.
Lord Kimball: My Lords, I think I am right to say that the situation is unsatisfactory. What are we being asked to do? We are being asked to leave on the Table an order and not vote it down on the understanding that it will be amended. That in itself may be all right. Some of us were told—certainly in the brief produced by the Association of Scottish and District Fisheries—that it is all right to leave the order now because the amendment has been agreed. We now find that there is no agreement among fishing interests on one part of the amendment. I believe that we all agree that there is no problem with those parts of the order that deal with the type of net and what I would call the enmeshment of fish and the size of net used. The problem arises over what I choose to call the anchor end of a net fished out of the back of a coble, whether it is held by a man or tied to a rock on the shore.
We are looking to clarify the regulations which affect what in fact is a dwindling legitimate practice throughout Scotland. Many river boards no longer operate their nets, and many people have given up netting as it is no longer economically viable. However, it is important that the amendment should be clear and should make it possible to enforce the regulations. The words that are causing trouble, as the noble Lord, Lord Moran, has said, are:
"or from waters adjacent to the bank or shore".
As someone who for many years has operated a sweep net out of the back of a coble, I can think of certain circumstances where one needs the support of that definition. There can be severe winter gales and the mouth of the river from which one operates one's coble fishery may change. One may not be able to draw the boat right into the bank. One may well have a chap wade out, probably in thigh waders, and hold the end of the net there. There may be moving sand bars and alterations to the river mouth. The noble Lord, Lord Moran, has probably not operated a net from the back of a coble because he said that a man could be half a mile out in the estuary. The first thing that would happen is that the moment the man leaves the shore the net will no longer work because the fish will go between the man and the shore.
There is a problem while doing that because the river is running down and the fish are running up on the upcoming tide. So some motion must be kept on the net or it will go slack and the fish will all escape. The idea that one can move far away from the shore with one's net and coble is unrealistic because the whole of the operation depends upon the spiesman—the chap who sits up on the bank. When he sees the shoal of fish coming in on the incoming tide he gives a signal to the boatman to pull away and pull the net around him. What nearly always happens, and why it is an inefficient method of fishing, is that the spiesman sees the first two fish coming, he becomes overexcited, he drops his hand, they roll out the net, they get about 12 fish encircled in the net and another 50 go by. It is not a constructive method and it would not work if the anchor end —I do not want to be tied down as to whether it is attached to a buoy, because as we all know it would not work with a buoy—was fixed
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because the net must be moving with the tide against the river coming down. It is not an efficient way of fishing.
The proposed definition is one that we should support. I should like to add to what the noble Lord, Lord Moran, said. The president of the Association of District Fishery Boards should see that a better brief is sent to noble Lords. The brief was incompetent and inadequate. I shall seriously think about my future subscriptions to the noble Viscount's association.
6.7 p.m.
Baroness Strange: My Lords, we are all grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for introducing this Motion, because it means that we have a chance to compliment my right honourable friend Sir Hector Monro and the Scottish Office on the really excellent job they have made of this statutory instrument on which they have worked for some years, defining the various methods of net fishing and construction of nets to the satisfaction of most of those involved in the industry, in fishing, in conservation, certainly to the satisfaction of the Salmon Net Fishing Association of Scotland, the Association of Scottish District Salmon Fishery Boards, and the Atlantic Salmon Trust among others. Perhaps I might say to the noble Lord, Lord Moran, that also being a fair-minded person I also have the brief from the Salmon and Trout Association which was produced in Fishmongers Hall, which I too have read. I am also grateful to the noble and learned Lord for giving me a rare, and possibly unique, opportunity to disagree with him totally.
The situation on paragraph 8 is relatively simple, so I will deal with that first. There is already a working party set up by the Scottish Office on the construction of nets, whose report should be ready by the end of March. The important thing is that all twine should not be below a given thickness.
Before I tackle the complexities (to a layman) of net and coble fishing, I should perhaps first establish my own credibility. My husband for some years ran a small netting station at Kinlochbervie, on the north west coast of Scotland, and latterly at Auchmithie, near Arbroath, which was worked by one of our sons living in a caravan on the site, assisted by a local fisherman.
As the noble and learned Lord, Lord Cameron, has stated, coble and net fishing is a net with two rope ends which is heaped up at the back of a small rowing boat or coble. (Although it is spelt with one "b" it is pronounced as though it had two). One fisherman holds the shore rope while the other pays out the net from the boat and walks along the edge of the shore to meet up with the coble when it comes into land, and the two ends of the rope are then hauled in.
I have sat in the back of the boat, paying out the net, not always with success. It has to go out smoothly and evenly and not in lumps. I shall never forget the excitement of seeing the nets pulled in and finding one or perhaps more huge shining salmon inside the net.
The words in the proposed Government amendment,
"or from waters adjacent to the bank or shore",

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which have been so objected to by Lord Marnoch, and by the noble and learned Lord, Lord Cameron of Lochbroom, the noble Lord, Lord Moran, and my noble friend Lord Sanderson are the best words that can be devised in view of the complications of the Bermoney boat. The Bermoney or Beardmoney is simply a second boat which runs along the line between two fixed points like a tramcar and is only used at high tide when the bank is too steep for a fisherman to walk along towing the rope. It was invented in 1821, but was not used before 1843.
The Bermoney boat was first mentioned in the famous case of Hay v. Perth Magistrates on 12th May 1863. As Mrs. Charlotte Elizabeth Richardson Hay and her husband, who were the pursuers and suspenders, or appellants in the case, were my great, great uncle Henry Maurice Drummond and his wife, I can claim a family knowledge of the case.
They owned the fishing on the Tay below their house at Seggieden. At low tide they were able to fish it with net and coble in the usual way, but when the tide came in (the Tay is tidal up to Perth) there was a gravel bank which became covered and ran too steeply into the Tay for a man to walk along it. That was when the Bermoney boat, which, as I have stated, was like a cable car, was employed. There was a stake at either end and a rope in between. The Lord Provost, council and magistrates of Perth, representing the salmon conservation, and the heritors of salmon fishing higher up the river brought a case against them in the Court of Session, and removed the stakes, declaring that the use of the Bermoney boat was illegal. They won the case.
However, Mrs Charlotte Hay and her husband were not so easily downed. They appealed to the House of Lords. They said that their method of fishing was not contrary to common law; it was not prohibited by statute; it struck at a previous judgment, and it was substantially net and coble fishing.
The then Lord Chancellor gave a judgment which is as clear today as it was 130 years ago. He stated that there were three main objects in keeping the river clear:
"(1) To ensure to the salmon a full and unimpeded access to the upper reach waters which are the natural spawning grounds of the fish; (2) to secure the unimpeded return to the sea of the smolts or young fry of the salmon; (3) to prevent the killing of unclean fish within the river mouths. For that purpose it is unlawful to erect any cruives or weirs in waters where the sea ebbs and flows".
However, he went on to say that to object to the Bermoney boat and staves was to put too narrow an interpretation on net and coble fishing; that:
"It would in effect confine the fishermen to the old practice, introduced centuries ago, and handed down from generation to generation".
Charlotte and Henry Drummond-Hay won their case, the Lord Provost's judgment was overturned, and they were given costs.
This statutory instrument, which has been law since 1st January this year, since there were no objections during the 40-day period, will make it easier for those who enforce the law in an activity which, although legitimate, is, like so many of our traditional activities, on the way out.
6.13 p.m.
Lord Carmichael of Kelvingrove: My Lords, I am sure that noble Lords will wish to thank the noble and learned Lord, Lord Cameron, for coming amongst us again, as we have not lately seen a great deal of him. As one would expect, he has raised more of a legal case than an expert case on the catching of salmon in rivers.
I was interested to hear the noble Lord, Lord Kimball state that he did not like the brief that he received. I would have felt considerably better if I had received a brief. I had to find something on my own. I do not have any specialist knowledge of this subject. I was involved with the Bill originally and we spent many evenings on it, sometimes well into the night. I have no specialist knowledge of the standing orders. I have not understood from the debate why revocation is sought, apart from the fact that the noble and learned Lord, Lord Cameron, stated that it was deficient in some way and that it should not be passed for that reason. The Government have been under pressure to produce an order and they are under an obligation to do so under the 1986 Act.
Many complaints have been made about delay. The statutory instrument states that the Secretary of State has consulted widely. I think I, having a scant knowledge of the subject, am entitled to ask how wide the consultation was under Regulations 2 and 8 in conformity with the views that were expressed after the consultation? I should like to know what minority views were not accepted by the Secretary of State, the reasons for not giving credence to them and why they were not included in the explanatory notes. An explanation is not normally given, but a rough indication could be helpful to noble Lords.
Regulation 2 appears to meet current views on desirable river fishing practice, which is to conserve stocks and prevent illegal methods of fishing which reduce stocks. I should like to know whether the objection to the terms of Regulation 2 is based on practicalities or supervision problems leading to non-enforcement. Were the details put to the persons who were consulted or was an amalgam of views expressed? If they were composite, do they make a workable whole? Perhaps the noble Lord, Lord Fraser of Carmyllie, could express a view on that matter.
I am puzzled by the objection to Regulation 8. I understood that caring fishers dislike monofilament netting. On the last occasion that subject was discussed at great length and I thought that the noble Lord, Lord Kimball, stated that monofilament net was satisfactory. As a layman, I thought that I had learned something from the last debate, but perhaps I need to unlearn that point. I thought that it was because the nets strangled the fish. The fish were not able to see the nets because they were rather thinner and, therefore, could cut the fish. I shall read with care the noble Lord's speech to see exactly what he said. Is there any connection between the catching rules in Regulation 2 and the prohibition in Regulation 8?
The debate has given the noble and learned Lord, Lord Fraser of Carmyllie, an opportunity to explain this order. However, perhaps he will also tell us that there will be wider consultation in future before another order such as this is laid before the House.

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Although the general feeling is that this order should be agreed to, as the noble and learned Lord will realise, it has taken considerable time to discuss this matter. A little more time spent in other ways would have reduced the time taken on the Floor of the House. I shall listen with great interest to the noble and learned Lord's reply. The longer I am in your Lordships' House, the more I become further educated in the ways of the wild Atlantic salmon.
The Minister of State, Scottish Office (Lord Fraser of Carmyllie): My Lords, first, I thank the noble and learned Lord, Lord Cameron of Lochbroom, for providing this opportunity to debate the 1992 Scottish salmon netting methods regulations. I express my appreciation also to other noble Lords who have contributed to such a stimulating debate. The noble and learned Lord, Lord Cameron, was not only my devil master before I was called to the Bar but was my distinguished predecessor as Lord Advocate for Scotland. I am sorry that on this occasion I shall be disagreeing with him.
However, I am sure that we both agree that the wild salmon is of great importance to Scotland, as all noble Lords who have participated in the debate will acknowledge. Apart from the valuable contribution which it makes to our rural economy, it is also a major asset within our natural heritage. It is important therefore that every effort is made to preserve and conserve our native stocks.
Fortunately, in Scotland, we have always recognised the importance of this. A great deal of well focused research, particularly by the Scottish Office salmon and freshwater fisheries scientists has been undertaken in this field. Much help is also now provided through organisations like NASCO and the Atlantic Salmon Trust, for example, and it is to their great credit that they do so. The guidance and expertise of the Salmon Advisory Committee is also of much benefit. Important as these contributions undoubtedly are, it is on our district salmon fishery boards that we depend for the local protection and management of the resource. I wish to acknowledge the good work that those boards have done.
It is to Parliament and the Scottish Office that we must look to create the necessary legislative framework. However, for the legislation to be practically effective, it must have the support of the main Scottish salmon interests and particularly of those who have the task of enforcing it. Ensuring such support can sometimes take time, and can on occasion give rise to difficulties. However, I know that my honourable friend the Parliamentary Under-Secretary, Sir Hector Monro, is prepared to go to considerable lengths to achieve a consensus and where consensus is reached, to take action when that is desirable and practicable. I can assure the noble Lord, Lord Moran, that he will not be sulking in his tent should this House indicate any disagreement with the way in which the matter has been taken forward.
I now turn to the substance of this debate on the 1992 salmon netting regulations. The starting point for the regulations was our Committee stage debate on the 1986 Salmon Bill, to which reference has been
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made. My noble friend Lord Gray of Contin proposed an amendment to the Bill inserting a new subsection (2A) into Section 2 of the 1951 Salmon and Freshwater Fisheries (Protection) (Scotland) Act giving the Secretary of State for Scotland powers to make regulations defining the lawful methods of salmon netting. This was in response to strong arguments, notably from the noble Viscount, Lord Thurso, and my noble friend Lord Lansdowne, in favour of precise definition of the permitted methods of salmon net fishing. It was reasoned at the time—and that reasoning is as sound as ever—that,
"specifying the methods and defining them would also have a significant effect in making enforcement easier and letting fishermen know more clearly what was allowed".
For example, these regulations, which are widely drawn, permit the Secretary of State to define what constitutes fishing by net and coble and to make,
"different provisions as respects inland waters from that made as respects other waters".
I shall return to that point later.
With the 1986 Salmon Act in place, the Government consulted the salmon fishing organisations and others with a view to making regulations containing such definitions. I can assure the noble Lord, Lord Carmichael, that that consultation was as wide as it could possibly be with interested parties. The consultations dealt not only with the detailed content of possible regulations but also specifically asked the consultees whether they were in favour of introducing statutory definitions as opposed to relying on case law. The overwhelming majority of Scottish salmon interests and the enforcement authorities supported this. Consultations on the detail of the proposed regulations proceeded. It was made clear throughout—and this was accepted—that the regulations would, as appropriate, seek to encompass the breadth of the relevant judicial decisions. As I have indicated, this was well within the powers of the 1951 Act. It was also made clear —and again this was accepted by the main interests—that the legislation should not disadvantage lawful fishermen, whether anglers or netsmen.
This debate will have demonstrated that this is a complex area in which to legislate. Therefore, the consultations were detailed, patient but protracted. Last summer, the regulations were duly laid before both Houses of Parliament, it having been thought that their content satisfied Scottish salmon interests. Once the regulations were laid, however, my honourable friend the parliamentary Under-Secretary received representations on two aspects. There was a strong body of opinion calling for the ban on the use of monofilament netting twines, as set out in the regulations, to be extended to include multifilament twines. There were also some who advocated strongly that the net and coble definition should be altered by requiring the operation in every circumstance to be controlled from the bank or shore and that the net must be held in the fisherman's hand.
Given my honourable friend's desire to found the regulations on consensus within the main salmon interests, he was concerned at the strong feelings behind these representations. His response was to consider amending regulations to take account of the

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two areas of anxiety and to consult salmon fisheries interests on their content. But let me explain in more detail the substance of anxiety on the two issues, and the prompt and constructive response to dealing with them.
First, and possibly less controversial, as regards netting twines, it is possible to define monofilament netting, as is done in the regulations. Real practical difficulties arise if that is extended to multifilament twines. In view of that, my honourable friend established a time-limited specialist working group to look again into whether it would be possible to devise an acceptable and enforceable minimum gauge for salmon netting twines. As a more immediate measure my honourable friend also authorised further consultation, which has now been completed, on the inclusion of a provision in amending regulations which would make it clear that salmon nets must not be designed or constructed for the purpose of catching fish by enmeshing them. As there was widespread support for this my honourable friend is now considering incorporating the provision in amending regulations which of course would come before this House.
My honourable friend's response to representations on the net and coble definition was equally prompt and constructive. It is very important that this House understands that no real problem has arisen over the fundamental characteristics of net and coble fishing as defined in the regulations. The fundamental characteristics of net and coble fishing are those set out in the regulations. They are that,
"fishing for or taking salmon by net and coble means the use of a sweep net, paid out from a boat, whereby the salmon are surrounded by the net and drawn to the bank or shore"
with several provisos to ensure the net is kept in unchecked motion and not used to obstruct the passage of fish but to enclose them. My noble friend Lord Kimball has practically and graphically explained how that is undertaken.
What was at issue therefore, as I explained, was the case for clarifying control by the fisherman of the operation from the bank or shore. This has been reflected in the main issues to emerge in the debate. First, let us consider whether two boats should be used only in tidal waters. As I understand the argument, it is only in tidal waters that one might legitimately use two boats to come within net and coble fishing. It is understandable how this conclusion has been reached since the major cases dealing with the use of two boats have been in the broader tidal stretches. However, the principles of net and coble do not in any way limit their application to tidal situations. It would be very difficult indeed to make a distinction between a fisherman who uses a boat in tidal waters to convey him when the tide is in, and one who, in non-tidal waters, might need one because the water happens to be deeper than normal at the place where he usually wades. An even more compelling reason why no such distinction can be made in the regulations is that the 1951 Act does not allow a distinction between tidal and non-tidal inland waters.
Secondly, let us look at whether there is justification for limiting the scope of a two boat operation. It has been argued that any net and coble
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operation involving two boats must be confined to the foreshore. Some net and coble stations operate broadly on that basis. There are perfectly sound practical reasons for doing so. The bank or shore acts as a natural obstruction and hence an aid to the fisherman when encircling the fish. This lessens the chance of them escaping. This should not lead to the conclusion that the boat carrying the shore end of the net should be restricted in this way.
In support of this I wish to follow the remarks of my noble friend Lady Strange in mentioning the case of Hay v. Lord Provost of Perth (1863). She said somewhat modestly that she had only a family knowledge of this case. However, she gave the most lucid explanation of the case that I have ever heard. In that case the Lord President of the Court of Session in Scotland had correctly expressed the rational interpretation of the law in his opinion that,
"it is not illegal to start the boat at a point further out into the stream, and that it is not illegal to convey the tow rope from that point to the place where the net is hauled in by a boat instead of over a man's shoulder, he walking in the river."
That and similar judgements confirm in my mind that the judicial decisions do not support such a restriction.
Finally, let us consider whether the shore end of the rope should be hand held. It has been argued that at all times this should be a fundamental requirement of net and coble fishing. Indeed I understood my noble friend Lord Sanderson of Bowden to express that view. Again I accept that this is the general practice but it is not universally so. For example, the Bermoney boat, which has been mentioned, has a small winch on board to which the shore end of the rope is attached. While the rope is under the effective command and control of the fisherman at all times, it is not always in his hand. This is supported in the case of the Duke of Atholl v. Glover Incorporation where Lord Davey commented:
"The mere fact that the fisherman is holding one end of the net whilst the net is left to catch or impede the passage of fish of itself is not what was meant; and, on the other hand, the fisherman might conceivably attach the end of the net to his boat, and move the net by rowing the boat, and yet be within the rule. What I understand to be meant is that the net must be under the effectual command and control of the fisherman, and be kept in motion by him for the purpose of enclosing the fish within its sweep".
I draw the following conclusions from these points. It is both inappropriate and ultra vires to draw a distinction between tidal and non-tidal waters. Case law simply does not support any limitation on the distance from the shore at which a boat carrying the shore end of the net may operate, within fair net and coble. Finally, provided the shore end of the rope is under the effective command and control of the fisherman, there is no need for it to be held by hand at all times.
My honourable friend the Parliamentary Under-Secretary was conscious of these points when faced with representations to change the net and coble definition. The only real scope for constructive action which would help meet their wishes was to limit the distance from the shore at which a boat carrying the shore end of the net should operate within fair net and coble. As I have indicated, such a provision would also have to take account of the fisherman who may walk along the shore or wade into the water if he chooses to

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do so. Accordingly, he consulted on the basis of altering the net and coble definition in the 1992 regulations by incorporating in amending regulations the requirement that net and coble fishing should be carried out "from the bank or shore" or "from waters adjacent to the bank or shore". As I understand it, virtually all Scottish salmon interests are content to proceed on this basis. That includes the Association of Scottish District Salmon Fishery Boards, who not only represent angling and netting interests but who would also have the task of enforcing such a provision.
Much has been said about the word "adjacent". Of course it is accepted that "adjacent" is not a precise term. But the circumstances in which net and coble fishing is legitimately practised at present are not precise in that sense either: for example, it is not possible to specify a fixed distance from the bank or shore. Circumstances differ from place to place. In this situation it is important that the word "adjacent" should be interpreted within the context of the definition as a whole and not be considered in isolation. Again I turn to the practical explanation that my noble friend Lord Kimball has given.
If a fisherman observes all the fundamental requirements of net and coble as set out in the definition but an enforcement authority has doubts over the adjacency of the operation then the grounds for a prosecution would have to be assessed carefully and in the light of the particular circumstances that applied at the time. The district boards were consulted on this point. I believe it has been confirmed this evening that they are content to proceed on this basis.
The debate has been useful and enlightening. Some of the points made are indicative of the uncertainty that led to pressure for statutory definitions in the first place. In that sense they confirm the need for legislation in this area. The 1992 regulations fulfil this need. The regulations by and large have been accepted. It is now acknowledged that they could stand clarification and greater definition in two respects; that is, on netting twines and on the net and coble definition. Consultations have been carried out recently on both matters. A consensus has now been reached in support of amending the regulations. I suppose I have to acknowledge that if there is a possibility of amending the regulations, there could be further amendment should that prove necessary. I do not believe that that would be the case, but we look forward to having the amending regulations introduced as soon as possible.
On the basis of that explanation I hope that the noble and learned Lord, Lord Cameron, will not feel it necessary to divide the House and will accept that in bringing this matter before the House he has enabled all those who have a keen interest in it to express their views.
6.40 p.m.
Lord Cameron of Lochbroom: My Lords, I am most grateful to all noble Lords who have taken part in the debate. I was struck by the fact that the Minister was able to define net and coble fishing from the common
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law without having to try to redefine it in a statutory instrument. I found that particularly interesting because I was waiting to hear from the noble and learned Lord why that definition was unsatisfactory. Nothing that I have heard tonight suggests that there have been difficulties in bringing prosecutions within the definition. I waited for some indication of anxieties that particular methods which were thought to be unjustified within the common law definition of coble and net fishing had been the subject of unsuccessful prosecutions. I heard nothing to that effect.
Moreover, I am grateful to the Government for the fact that they have consulted further, particularly in relation to monofilament netting, and that in relation to multi-filament regulations a working party has been set up. It appears that a satisfactory outcome will result. However, I remain concerned about Regulation 2(a), partly for the reasons which I have already mentioned but more particularly in view of what has emerged from the debate.
The noble Viscount, Lord Thurso, expressed concern because local conditions, in terms of the river pattern and geography, impose different constraints upon the form of fishing. However, net and coble fishing extends beyond the inland waters to estuaries. I accept entirely the Minister's point about the distinction between tidal and non-tidal waters in respect of inland waters and estuaries, but those are the phrases which are used in the Act.
The noble Lord, Lord Kimball, described a particular form of fishing which he pursues on his river in the north of Scotland. However, that is a particular operation on a particular river. It seems to me that at the end of the day what is required and what we all seek is a law which is clear, intelligible and unambiguous and which will form the basis for proper prosecutions and provide clear guidance to the prosecutor. Therefore, to include a phrase such as adjacent to a "bank or shore" in the regulations as a generality serves merely to confuse and make it yet more difficult to determine at what point a particular method of fishing falls foul of the question of adjacency, depending on whether a bank or a shore is involved. Nothing that has been said by the noble and learned Lord has in any way eased my concern on that point. I should have been happier if he had been able to suggest, for example, that his noble and learned friend the Lord Advocate, wearing his prosecution hat, would be happy to draft a complaint on the basis of a regulation which contained such a general phrase and which applied to the generality of this method of fishing.
In an area such as this, when one is dealing with the need for certainty for the purposes of prosecution, I should have hoped that we could hold in mind the old Latin tag, festina lente. Even seven years is nothing in order to get the matter absolutely right. I have suggested one way forward and I should have hoped to hear rather more from the Minister.
However, I recognise that this is a matter on which debate can continue. I trust that it will, because we want to get this right. I have no intention of dividing the House on the matter. This Motion has served as a means of securing the debate which I had hoped to see

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take place at an earlier stage. However, through my own incompetence in not being able to determine what the Minister and I would recognise as clear days, I was unable to initiate a debate before the regulations fell to be approved.
I am most grateful to all those noble Lords who have taken part. I am particularly grateful to the noble Lords, Lord Sanderson and Lord Moran, for their support. I recognise the other points of view which have been expressed by the noble Viscount, the noble Lord, Lord Kimball, and the noble Baroness, Lady Strange, who comes to the matter with a degree of familiarity which I cannot endeavour to achieve even after five readings of the case of Hay against the magistrates of Perth, both in the Court of Session and in your Lordships' House.
In those circumstances I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.

Perthshire: Floods
6.46 p.m.
The Earl of Perth The Earl of Perth rose to ask Her Majesty's Government what action they will be taking over the devastation in Perthshire caused by the River Tay.
The noble Earl said: My Lords, I should like to begin by declaring an interest. My home stands high and safe above the River Tay. I know the river's moods. I also have a farm a few miles further up the river which on this occasion has been totally inundated. Farmhouse, cottages, steadings and all the land were flooded: not an acre was not under water. I am only one of dozens in that position.
I should like to thank those noble Lords who are to take part in the debate at such short notice. A Statement on the subject was made in another place a fortnight ago. I greatly regret that it was not repeated in this House because Members of the House would then appreciate the seriousness of the situation. I know that, due to the short notice, the noble Baroness, Lady Carnegy, and others of my neighbours are unable to be present. I offer my sincere thanks to those who are present. It is worth the sacrifice, because this is an important subject, not only for those who live close to the River Tay or in Perthshire but for the country generally.
Perhaps I may begin by saying a few words about the River Tay. It is a great river. I wonder if your Lordships realise how great it is. Its flow is two or three times that of the River Thames. Since we have been talking about salmon perhaps I may boast that the biggest salmon that has ever been caught on the River Tay by rod or line weighed 64 lbs and was caught by a Miss Ballantyne some years ago.
The river is like a monster. Lady Perth said that she did not like the word "monster" and in a sense I agree, but it is a living thing, it has a will of its own and when roused it is frightening, almost irresistible. Again and again in the past it has flooded the city of Perth, broken bridges and caused great damage, suffering
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and loss of life. This time it has excelled itself—and I use the word because I do not know what other one to use.
In 1990, only three years ago, we had a great flood unequalled for over 100 years. River banks were smashed, hundreds of square miles were under water. Farmlands were flooded up and down the river. Many of the roads all around were two or three feet under water. The cottages suffered and everywhere there was devastation or suffering. But that is in the past and I shall not dwell on it except to say that I am glad that the noble Lord, Lord Sanderson, is taking part in the debate today and to emphasise how much we appreciated the fact that at that time he and the Government came to our aid. Together owners and the Government rebuilt the destroyed defences, but clearly we did not do enough.
Potentially even more important, a study was initiated, I think at the University of Stirling, to look at the causes of that great flood and make suggestions as to how a repetition could be avoided and what should be done. However, as so often happens in these cases—after all it had only happened once in 100 years—the report may have been made, but it was certainly not acted upon. It was felt that there was plenty of time, "Once in 100 years, it won't happen again".
How wrong we were. Three years later there were strong gales, heavy snow and rain and the river swiftly rose to an almost incredible 15 feet above its normal level. It is the greatest river in Britain and 15 feet along its length is really something. This time the results of the flood were far more serious. That is not unexpected. Not only were the river banks smashed and flood banks overwhelmed, bridges and rails destroyed but, more seriously, the city of Perth itself was inundated. It was just before dark when the river reached its peak and in a short time 1,500 houses were inundated. They were lived in mostly by the old and infirm who alas, lost everything—all their possessions, beds, household goods and family pictures and photographs. Those cannot be recovered and one can imagine the distress that that causes. Perhaps even more serious, some of the poor were unable to insure their possessions and have therefore lost all that they owned.
The city fathers and the emergency services did wonders and somehow all the people were saved and lodged with friends and relatives or in the gymnasium or other community centres. Hot soup was forthcoming and no lives were lost. I know all this because a week later I went round with the provost, Jean MacCormack, and saw how hard and well the emergency services and volunteers were working and coping. Those evacuated still had nowhere to go except their temporary accommodation. It will be two or three months before things return to anything like normal. I found that some of them were losing heart they worried so much about the future. How long would it be before they could return to ordinary living? What about the losses they had suffered? Their courage and patience are turning to bitterness.
The region and the city have opened an emergency fund and appealed for bedding and furniture. As a

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start, they themselves have subscribed £350,000 and it is my belief that there will be a considerable further response to the fund in kind and money.
I could go on about the damage to the city of Perth. However, I recall, as others will, that it is not just the city that has suffered; for example, five miles away Bridge of Earn endured the same fate. The only difference is that only 300 houses were flooded, as opposed to 1,500. Up and down the river, this time it was cottages, farmhouses, all were inundated. There is less misery because it is less concentrated, but the damage is there.
I have paid tribute to the city workers and I also do so to the Ministers and Members of Parliament who have toured the area and seen for themselves the damage and hardship. I know that the Government are promising help, but is it enough? In my opinion—and perhaps this is the main thrust of my speech—there should be a declaration that it is a disaster area. I am told that that is difficult because, happily, there was no loss of life. However, what happened in the Shetlands? That was made a disaster area at once and, so far as I know, there was no loss of life except for the seals, the birds and the fish. That is all over, thanks to the miracle of the sea, the winds and all that went with them. Perthshire and the River Tay go on.
What of the future? How can we control this monster? I have already mentioned the study by the University of Stirling. The first thing that must be done is to resume that study and its conclusions must be published and then acted upon, whatever the cost. There must be preventive action to stop this kind of thing happening. After all, no one objected when there was preventive action on the Thames and the barrage was constructed. This flood was far greater and it recurs more often.
What should be done? I do not know: that is the point of the study. For example, there may be higher dams or hydro dams and, if the water is coming from the forests, there must be a containing area below them. Again, we may have to contemplate deliberately flooding areas just as they have been discussing in East Anglia.
I am certain that we must undertake control which involves major work and expense. On my part of the Tay, major works were carried out 100 or more years ago. It is remarkable to see the stonework all along the banks and the flood banks that were created then. It must have been a huge task and expense. I am not talking only about my small area. The Government in those days went to town, if I may put it that way, to ensure control. Sadly, now that is not enough and the study will show us why.
In the meantime, we must make some immediate repairs. We cannot let this damage of broken banks and so forth on for too long. The Government have promised help. I believe it is either 75 per cent or 85 per cent of the repair costs. That is very important. It is not enough for those farmers who suffered so much the last time and are more or less ruined, farmers who now have no land left. All the topsoil is gone, and all that remains are boulders strewn over the place—a sort of moonscape.
The report must come very quickly. I come back to a declaration of a disaster area. If we took that action, there are funds in the European Community which could do two things. One is to help finance the study; the second, and far more important, is to help finance the steps that have to be taken to prevent a similar happening. I suggest that the Scottish Office approach the Community soon, and approach it not in any humble way, but rather with pride and positively. Here is one of the great rivers of Europe. Europe must control it. It is a challenge to all of Europe. If, unhappily, I am wrong, the appeal is not made and we are left to do it alone, then we must go it alone. So be it. But we must go on, and soon.
7.2 p.m.
Lord Sanderson of Bowden: My Lords, I am very grateful to the noble Earl, Lord Perth, for raising this matter in your Lordships' House. First, I too would like to express sorrow at the devastation caused by the floods in Tayside on this occasion. Etched on my mind are the floods of 1990 and the difficulties that arose as a result of that terrible time, particularly for the farmers of Tayside. But this time, more than just the farmers have been affected. The city of Perth has suffered a devastating blow.
I should like to draw this point to the attention of my noble friend who will reply to the debate. The situation is very similar to the troubles which occurred on the Welsh coast, at the time of the 1990 disasters in Tayside farmland. I very much hope, indeed I am sure, that the Minister will take my remarks for what they are worth, and realise that any sympathetic help that can be given within the city of Perth to the people of Perth should be examined most closely. I shall not go so far as the noble Earl in talking about disaster areas. I know only too well the difficulties that the Government may face in trying to go down that course. But that does not mean that no help is available. I am certain that some help could be found. With regard to agricultural land, I am sure that the Government will certainly look favourably on the problems facing the farmers of Tayside. After all, the floods are very damaging. In particular, as the noble Earl said, the loss of topsoil in so many places is devastating for the farmers.
The other point to bear in mind is that much of the land affected on this occasion happens to lie outwith the less favoured areas part of Scotland. In examining the help that could be given for the flood damage, the Government might like to bear that point in mind.
The noble Earl referred to a review in 1990 which is perhaps —I know not—gathering dust on a shelf somewhere. I believe that something has changed since 1990 that might facilitate a better, more thorough and government-led review. Since 1990, Scottish Natural Heritage has come into being. It seems to me with the problems of Tayside, of the River Tay and its tributaries—we cannot forget its tributaries, particularly in this case the River Earn —that Scottish Natural Heritage may well form the vehicle for looking into the reasons why the floods have taken place; looking to see whether in the area of the hydro board's responsibility or in the Forestry

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Commission's responsibility there is room for examination for change. If the result of those deliberations helps Tayside, there may be a spin-off to other areas in Scotland. I well recall the difficulties of the valley of the River Conon not so many years ago, where the same lessons learnt about Tayside can be learnt about other parts of Scotland.
Obviously help is required, and as I understand it, help is being offered. But quantifying it is always an extremely difficult job. However, I have absolute confidence that the Government will recognise the difficulties, the devastation and the upset to so many people, so many lives and so many homes that these floods have caused. Action should be forthcoming, and soon.
7.7 p.m.
Lord Mackay of Ardbrecknish: My Lords, as the noble Earl, Lord Perth, said in his introduction to this short debate, the Tay is a mighty and powerful river. I perhaps know it best from some happy hours spent on it catching salmon, or occasionally not catching salmon. But its might and its power are certainly not lost on one, even when it is at its lowest summer levels.
I was supposed to be trying my luck last week. But when the levels of the river were explained to me, in the part I know best, it was brought home to me—in a way that perhaps nothing else has been (not even television pictures do it) —just what was happening in the valley of the River Tay. We all saw television pictures of the folk in Perth whose houses were not just two or three inches deep in muddy and cold water, but what looked to me like two or three feet deep. One can only feel heartfelt sympathy and sorrow for them. It will take them many months simply to get rid of the dampness, let alone be able to re-equip their houses to the way they were previously.
The one thing I hope my noble and learned friend will be able to say is that when the district council, which will have considerable expenditure on its housing account I have no doubt, faces that, it will not find itself being capped by the Government for spending over the normal limit. It is an excellent council. I believe my noble friend knows that it would not do that deliberately. In the circumstances that confront it now, I cannot see how it can avoid having to spend a great deal more money than it would spend in any normal year. I certainly hope that the Scottish Office will be sympathetic both to the district council and the regional council in that regard.
When I was watching the films that television people were showing and listening to people commenting, my attention was drawn to the flood barriers, the flood banks, which over the years have been built all the way down the river and to the fact that where they were breached the water poured into the adjacent fields. While I do not expect my noble and learned friend to reply to me now (indeed I may be absolutely wrong) I wondered whether the problem of the River Tay, which is a huge river, has to be solved a lot further up than Perth. The simple fact of the matter is that, if the River Tay is 15 to 20 feet above its normal level, Perth is below that. There is nothing
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that either the Government or anybody else can do about that. One must therefore try to ensure that the river does not come down to Perth at those heights.
One cannot turn off the rain or prevent the snow from melting, and therefore one must find some way of allowing those many thousands of tons of water to find somewhere where they can stay still before being drained away gradually over many days or indeed weeks. My mind is drawn to the Spey, which is another mighty river though not as mighty as the Tay. Those who know the Spey Valley, as I am sure many of your Lordships will, above Lochinch, will know that between Lochinch and Kingussie, there is a flood plain which has not been cultivated or drained. It has been left rather as nature intended and when the River Spey becomes mighty that flood plain fills up. The result is that a great deal of water can be held in that flood plain and it gradually moves away down the river.
As an aside, my noble friend Lord Sanderson mentioned Scottish National Heritage. Such is the importance of the Spey flood plain that it is a site of special scientific interest. On the other hand, the Tay has been confined within rather tight banks from Loch Tay right down to the City of Perth. Therefore all the water coming into the system has been tightly contained all the way down the valley. The net result is that there is nowhere else it can go other than down the valley and on to Perth.
I wonder whether, in our attempt to cultivate the soil and improve the farmland, we have removed what I am sure 200 or 300 years ago were the natural flood plains of the River Tay. I do not know the whole river system that well but I think I am right in saying that nowhere are there flood plains on the Tay. Nowhere is there any allowance made for the river spilling over its banks.
Perhaps I can therefore make a suggestion to my noble friend, that rather than rushing to spend money in rebuilding all the defences all the way down the river, a little thought ought to be given to some lateral thinking and in fact removing some of the defences so that when the river becomes excessive it has room to spill over. It could either be done, for example, north of Dunkeld—between Dunkeld and Ballinluig where the Tummel joins the Tay—or perhaps into what I suspect is more expensive farmland south of Dunkeld between Caputh and Meikleour.
At the risk of being howled down by farmers from Perthshire, and at a time when both the Government and the European Commission are encouraging farmers to look at set-aside, I wonder whether this is an opportunity to do some good with set-aside. Civil engineers and water engineers could easily define the areas and farmers could be encouraged to give at least part to set-aside and no longer try to cultivate their fields with arable. They could maintain them as grassland or grazing land into which the river could flood on those few occasions it needs to and when the damage would be very small. They would become a kind of water meadow as they have in the south.
It may well be that if the engineers cannot come up with other solutions, we ought seriously to consider that kind of solution of compensating farmers in a

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certain part of the Tay watershed for not being able to farm their land in the normal way; setting aside the land to act as a reservoir to protect lots of other farmland and the City of Perth. I do not expect my noble and learned friend to reply to that suggestion tonight. At least, having aired it, I hope that his advisers and the people who are much more expert in these matters than I, will look at it and consider whether or not it is a way of preventing the kind of horror pictures we have seen occurring yet again.
7.14 p.m.
Lord Lyell: My Lords, I do not need to declare an interest; the interest in the mighty River Tay has been eloquently expressed by the noble Earl, Lord Perth. However, it is worthy of notice, and the noble Earl has done valuable work this evening in bringing to the notice of your Lordships' House the two floods—the recent one in 1993 which followed on from what all of us thought were disastrous floods in 1990: two mighty floods occurring within the period of three years and yet, according to all the predictions, such floods should take place only once every 50 or 75 years. I understand that the floods in the City of Perth have not been seen on a scale such as we saw them a fortnight ago since 1814. I am sure that that date is in the annals and may well be part of the briefing for my noble and learned friend.
My first concern this evening is for the farmers in the affected areas of the Tay. I thought it was well put by my noble friend Lord Mackay. The area stretches from the seaward end of Loch Tay all the way down to the city. Indeed, my noble friend showed considerable courage in what he suggested. I am sure that no sooner had my noble friend sat down than that the information from your Lordships' debate reached the Dundee Courier and the National Farmers' Union in the Perth area. I hope that we shall see my noble friend hale and hearty next week—I am sure that we shall.
My main concern is with the stock. My noble friend Lord Sanderson also considered that matter, and indeed was responsible for providing assistance in the flood of 1990. I am sure that your Lordships are aware that there is not sufficient space for the flood waters of the Tay to escape. It has to go down this fairly narrow tract of land which is flat and, as my noble friend Lord Mackay said, highly cultivated, containing valuable arable crops. But I am concerned also with the extraordinary damage caused by the topsoil being removed—rubble, stone and gravel wrecking all the valuable work that has been done by the farmers. Valuable lessons were learnt in 1990 which I am sure will be applied this year and I hope in the future.
I thank my honourable friend the Minister. I understand that he was able to give considerable advice and indicated that the Government will look sympathetically and practically upon the problems above all of the farmers, but also of the inhabitants of the City of Perth. I believe that the North Muirton estate was the worst affected. I was somewhat shaken in that I watched a television programme and found that the floods had risen to within one foot of the top
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of football goalposts. On a normal football pitch I cannot even reach the top. That must indicate that the river on the South Inch must have been an average of six to seven feet above normal. Indeed, there are pictures in today's papers which gave me considerable anxiety.
My noble and learned friend may not be able to answer tonight; he may have time to write to me but we may see a response to my question in his reply. Since the events of 1990 have there been any further developments in the flood banks or improvements in those banks? Have they been raised in any way as a result of what happened in 1990? Have all the possible improvements been made, not only in the flood banks but also in diverting the flow of the river? The experts who advised me across the water in Northern Ireland were called "fluvial morphologists". I am sure that my noble and learned friend will be obtaining a great deal of advice from such persons. If they have been able to give advice from 1990, let alone 1993, I hope that that is taken into account.
I had one other thought that followed on from what was suggested by my noble friends Lord Mackay and Lord Sanderson. In the headwaters of the Tay, around the loch and further upstream, there are fairly extensive forestry plantations. It may be worth considering that with each plantation undertaken there should be provided some form of flood catchment area. It would not have to be too large. I am sure that advice could be given as to the kind of pond which would achieve what I believe my noble friend Lord Sanderson was suggesting, which would restrict the flow of the river in such times of exceptional storm, rain and wind as we experienced earlier this month. That may be worth looking at—perhaps in 1993 or in the year 2050. It is an idea that could be examined.
There are two other points on which I hope my noble and learned friend can reassure us. The road running north from Perth—I call it the "old A/" although it may be renumbered now—serves a valuable number of communities on the left bank of the Tay as it speeds down. I hope that it has not been damaged beyond repair and that the new A.9 which I use from time to time has not been damaged too much. Will my noble and learned friend convey our best wishes to ScotRail? Can he give us some indication as to how long the railway bridge and the railway embankment at Dalguise north of Dunkeld will take to repair so that ScotRail can have an efficient service between Perth and Inverness?
I can see that I am into my seventh minute. I wish to add my support for the Question asked by the noble Earl, Lord Perth. I very much look forward to hearing what my noble and learned friend has to say, let alone seeing my noble friend Lord Mackay in good health on Monday.
7.21 p.m.
Baroness Strange: My Lords, I would like to support my noble kinsman and Clan Chief. I would also like to agree with him about the greatness of the River Tay—so did the Romans when they first peered over Moncreiffe Hill and shouted "Ecce Tiber".

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We both of us live in Perthshire and we are both fully aware of the amazing gamut of weather and disasters we have had to contend with since 10th January. When our own minister in Errol Church last Sunday was appealing for funds, bedding and furniture for the citizens of Perth, instead of Bosnia, Somalia, Ethiopia and all the other disaster areas we are normally collecting for, things have come to a pretty pass.
The snow started with some force on the night of Sunday 10th January. Many roads in Perthshire were blocked, including the A.9 where drivers were evacuated into temporary shelter in Ayton Hall, Auchterarder and Blackford village hall, where they were marooned for some days. By Tuesday we were snowed in, and many of us in the Carse of Gowrie had no electricity. On the Sidlaws the electricity was off for two days, and there were drifts of four to five feet of snow, on an overall depth of one foot. Cattle and sheep had to be fed and rescued from drifts.
By Thursday night, 14th January, the temperature had risen and a heavy rainfall commenced which continued all night. On Friday 15th January we were wakened by the sound of a huge oak tree crashing down at the back-door, removing half of our driveway. In the Carse we had gale force winds all day, with hurricane gusts up to 140 miles per hour. These combined with the heavy flooding (from Balmyre Hill the Carse, which is all about sea level, looked like a river) loosened the roots of the trees, so that large trees were crashing everywhere like ninepins. With us, three trees fell, bringing down electricity lines, two blocked a side road and another three had to be cleared from blocking access to people's houses. Slates whizzed off the roof and embedded six inches deep in the grass. It was simply awful. Three hundred year-old oaks and lime trees crashed to the ground or split in half 50 feet up. Parts of the dome in the centre of our house fell in, spraying the carpet with rain and broken glass. At Bridge of Earn the river began to rise and started to burst its banks.
By Saturday the Tay and Earn were both on red alert. Perth Grammar School was turned into an emergency evacuation centre run by the council and voluntary agencies. By 5 p.m. on Sunday 17th January the flood levels at Perth were only 18 inches short of the 1814 record floods, which my noble friend mentioned and which my other noble friend will also tell us about. The flood protection barrier at South Muirton was breached in three places. Milnathort, Comrie, Dunkeld, Spitalfield, Meikleour and Alyth were also badly flooded. Military helicopters were called in to fly over the flooded areas and rescue people stranded. We saw them flying over as we wrestled to cut and drag trees off the road.
Over 300 people were processed through the emergency centre at Perth Grammar School on the Sunday; 1,529 houses were affected, and 873 extensively damaged. Much of the furniture of the evacuated houses had to be removed because it had been polluted by sewage and oil. Some may be retrievable, some may not. There is also the problem
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of people returning from evacuation to find their furniture gone, including their precious photographs of family events.
Some of the archives stored in the Old Council Buildings on Tay Street have also been damaged by flooding. Some of the books from Perth Library have been wrecked. And despite a gallant battle by the curator and museum staff, the entire storage and workshop level of the museum was flooded to a depth of two feet. Many of the collections stored there have been damaged.
My Lords, I could go on, and on, but I have probably said enough. We all owe a debt to so many people—my noble kinsman for introducing this debate, my noble and learned friend for replying to it, the council, the voluntary workers, the police, the fire brigade, the army and all those who have worked selflessly and tirelessly to mitigate the disaster. They have all been wonderful. But make no mistake: a disaster is what it is.
7.26 p.m.
The Earl of Dundee: My Lords, all of us will be very grateful to the noble Earl, Lord Perth, for focusing attention today on the recent devastation in Perthshire. As I live quite some way down stream of Perth, my own home and land have been completely unaffected. The only personal inconvenience suffered, although arguably from the point of view of my children a positive benefit, has been that they were prevented for a while by bad weather from getting to school.
When the Tay last burst its banks three years ago in 1990 government reaction to the consequences—and not without some justification—was perhaps rather more philosophical than positive. It was pointed out that, since there had been no similar occurrence for about 100 years, perhaps there was no desperate urgency to launch a proper study into the analysis of causes and preventive measures. Nor was there an enormous public outcry about the need to recompense farmers, who at that time were damaged most. On their trade and production within the economy farmers were already undergoing a number of misfortunes, and flood damage might have been viewed as simply one more misfortune to take its place along with all the others. Nevertheless, as we know, some measure of compensation was given to those farmers. Much credit for that should go to my noble friend Lord Sanderson, who within the Scottish Office then worked hard to see that it did. This time, however, there is no case that comforting words should to some extent take the place of the speedy disbursement of public funds.
There are two obvious ways in which public funds ought to be committed. First, those who have suffered property damage, many of whom through lack of resources were underinsured, should be completely recompensed. Secondly, as your Lordships have already been advocating, a proper study must be urgently launched by the Government into ways and means of preventing similar future disasters. Among various schemes already in place there is, of course, the Bellwin formula. Broadly speaking, this formula

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pays back to the local authority 85 per cent. of that which it will have been required to spend in all its work to restore the status quo ante. That then leaves a 15 per cent. shortfall between the total cost of restitution and the receipt of central funds.
In many contexts, 85 per cent. government help would be extremely generous. Such areas are those where the aim is to encourage and to pump-prime businesses, jobs and industry. Yet of course what we are talking about today is an entirely different context. We have seen families in their own homes, in particular in North Muirton, Perth, who have been caused a huge measure of distress. They have experienced the damage and destruction of personal possessions. For many, all their furniture is irrecoverable. For the elderly, as the noble Earl, Lord Perth, has already pointed out, photographs, mementos and so on have gone. There has been the horror of witnessing this, the uncertainty about when you will return home and the uncertainty regarding the state of your home when eventually you do.
Already, as we have heard, there has been locally a very impressive level of voluntary work done and voluntary funds donated. For all those reasons, there is a compelling case that Government support should be far higher than 85 per cent. I wonder whether my noble and learned friend will give an assurance that the Government will provide more funds either by increasing the present provision under the Bellwin formula or through other means.
There is an urgent need for a proper study into the problem to be launched by the Government. Clearly, we can make no comfortable prediction that further devastation will not recur next year or at some far distant time that it is convenient to calculate. We thought that we could do that in 1990. We have been proved wrong. We knew then that the force of water was 750 cubic metres per second. This time the force was 2,250 cubic metres per second according to my information. It has been estimated that at that rate even if Loch Faskally were bone dry it would have taken only 16 minutes for it to have been filled up completely. It is hardly surprising that, given that exceptional power and force, the Tay has now struck again with such devastation.
The Government should now act to launch a comprehensive study. I hope that my noble and learned friend is in a position to give that commitment today. We may well be eligible for EC funds in respect of this matter, as the noble Earl, Lord Perth, suggested. It would be interesting if the results of the study were to include some of the ingenious ideas put forward by the noble Lord, Lord Mackay, which he described as lateral thinking. It may be that the Government could bring in Scottish National Heritage, as the noble Lord, Lord Sanderson, suggested. That apart, the important thing is that a study must now be launched.
No human life—at least not directly—may have been lost. We are indeed fortunate in that. Yet great strain has been placed upon the health of many, particularly the elderly. There is no room for complacency. We should act now to achieve with
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central funds complete reimbursement to those who have suffered materially and psychologically, and we should act immediately to prevent a disaster of this kind ever happening in the area again.
7.33 p.m.
Lord Hughes: My Lords, I was aware that the noble Earl, Lord Perth, was to raise the matter of the devastation in Perthshire but unfortunately discovered too late that it was to be done today and failed to put my name down in the ordinary way. In preparing the list of speakers it is the custom that a gap appears. Today a gap appears after the name of the noble Earl, Lord Dundee. For the first time in over 30 years' membership of your Lordships' House I have occasion to take advantage of that gap.
The noble Earl, Lord Perth, gave a graphic description of the situation in Perth in particular. None of your Lordships needs to be told that he was not exaggerating. Perhaps for the first time in generations Perthshire appeared on television news night after night showing the extent of the devastation suffered. The noble Earl, Lord Perth, has spoken of two things that have to be done: first, we must respond to the immediate need to provide help to those who have suffered so much distress, whether they be farmers or tenants of council houses in Perth. All have suffered extreme devastation. I live in what used to be called the Clachan of the Ross. It used to be a separate village but is now part of Comrie. Comrie was one of the places which, like Bridge of Earn, also suffered badly as a result of this. I did not suffer any personal loss, apart from the fall of one tree. The only inconvenience I suffered was that for two days I could not get out of the Ross into Comrie and for four days I could not get from Comrie to the town of Crieff seven miles away. We had been advised not to use the roads because of the floods which still covered them.
I must pay tribute both to the regional council and to Perth and Kinross District Council for their magnificent efforts. The situation was such that it was impossible for human resources to deal with the situation, but they certainly did their best. They got help from the army. For example, at Comrie we had the Cultybraggan camp a mile up the road and that was opened to those who might have been washed out of their houses in Comrie, although fortunately most people were able to make use of the help of their friends.
Reference was made to the tributaries of the Tay. It was not only the Tay itself that suffered. Two rivers flow through Comrie, one of which I am quite certain most of your Lordships have never heard of: the River Ruchill. Normally, it is a pleasant little stream. In many parts a person more capable than myself can easily jump across it. One night it burst its banks and within minutes four houses—which could never have expected to be in danger from any river—had four feet of water bursting through their doors. Yesterday the people concerned were still dealing with the resulting problems.
I should like to tell your Lordships how I saw the situation at the time. In less than 24 hours 15 inches of snow fell. That was a normal problem for the local

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authorities in terms of getting the roads clear. But within a comparatively short time a sudden thaw was accompanied by torrential rain. Anybody who had been out east would have compared it with a monsoon storm. That contributed to the enormous rise in the level of the Tay and its tributaries.
The noble Earl, Lord Dundee, said that there should be immediate help for those in distress and indicated what should be done to prevent the same situation recurring in future. Much thought will have to be given to that. Some interesting suggestions have been made. The noble Lord, Lord Mackay, put forward one suggestion. I am reminded that in the 1960s a tremendous gale stripped the roofs off thousands of homes in Glasgow. It was a dreadful situation for the people living in those tenements. When asked what Glasgow Corporation would do to deal with the situation, the Town Clerk demurred and said, "If we carry out repairs to these homes some of the people will not be insured and there is no way that we will get the money back". The then Secretary of State, the late Lord Ross of Marnock, instructed Glasgow Corporation to go ahead with the repairs. He said, "Many of the people will be covered by insurance. The problem of those not covered by insurance is something that you and I will have to deal with when the event occurs".
I say to the noble and learned Lord who is to reply to the debate that it is unlikely that the Government will be able to do everything that is necessary either immediately or in the long term to satisfy everybody. No matter what they do, somebody will say that the Government are wrong. What I say to him is that if the Government are to make any error in dealing with the situation they should err on the side of generosity.
7.39 p.m.
Lord Carmichael of Kelvingrove: My Lords, first, we should thank the noble Earl, Lord Perth, for having raised this subject. Although he made the point that he was sorry your Lordships had not taken the Statement when it was brought forward, the fact that we are having a much larger bite at the problem is better than having a Statement merely tacked on at the other end. In addition, we now know more about what happened.
The noble Earl gave a most graphic account of the circumstances at the lovely town of Perth and explained vividly just how powerful and mighty was the River Tay. He suggested that a disaster area should be declared. It is for the Government to weigh up and decide whether the issue falls into that category. The fact that the noble Earl has suggested it means that we expect a response from the Government to a different problem in Perth which is at least as effective as the response given to the situation in Glasgow. That was quite remarkable. My noble friend Lord Hughes will perhaps remember that slaters were brought from London and the South East to deal with the damage. That was the kind of urgency with which the matter was looked at.
Flooding is perhaps rather a different matter. We did not get very much flooding in the west of Scotland but the winds were very high. Power lines were down.
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Power workers are to be congratulated for working in appalling weather to restore the services. All that we lost were some television programmes; in Perth and round about many people lost just about everything.
In the west of Scotland, because of the built-up nature of the area and the age of some of the houses, chimney pots and slates were lost and trees were blown down. We had a number of fatalities. That was something of which other parts of Scotland were largely spared. However, everyone was aware of just how badly Perth and the surrounding area had been affected by the water which is essential in its right place. In the wrong place it is uncontrollable and unpleasant.
Another factor emphasised by the noble Earl, Lord Perth, was the fortitude of the people and the way in which they got to work and also the performance of the different organisations. In the other place everyone gave credit to the army, the navy and the air force, the district authorities, Perth District Council, the fire service, the local communities and the voluntary services.
A number of points were raised in another place. One was raised with the Minister, Sir Hector Monro. He explained what had happened two years ago when a special increase was made in the grant for flood banking. He said that the normal capital grants scheme would be available for hedges, walls and fences. I am not sure if that is the measure which was introduced by the noble Lord, Lord Sanderson, and whether, as a one-off measure it needs to he revived. I am not sure whether it applied only to farmers or to many other people who were very badly affected.
Another point raised in the other place was dampness. My honourable friend, Mr. Dennis Canavan, MP for Falkirk West, asked if the Minister would have a word with his right honourable friend the Secretary of State for Social Security as to whether the cold weather allowance could be extended for a period to the areas badly affected by floods. In a situation of this kind—there has been the odd problem of burst pipes in my own area—people have had to have electric heaters on night and day for weeks and weeks. Some people have got into great difficulty and have incurred debt. I hope that the Minister will take note of that. I do not know whether he is able to say anything now about the request made to Sir Hector Monro in another place.
The least we can ask is that we have a full report from the Government with some ideas of what possibilities and plans they may have for the Tay Valley. This is a question which the Government may say is a gamble that must be taken with nature if it only happens about once every 100 years. A balance must be made as regards the cost of carrying out some very expensive scheme or setting up a fund for a less elaborate scheme to alleviate problems when they arise.
The danger, as pointed out by the noble Lord, Lord Lyell, and, I believe, by the noble Baroness, Lady Strange, is the increase in the rate of occurrence from 1812 or 1814 or thereabouts. These are the kinds of questions to which we need answers. We should all be grateful that we have had the chance to express a hope

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on behalf of the people of Scotland, who have had, and who are having, a very hard time, that they are being heard down here and that the Government are being kept on their toes as to what their response will be to a quite definite disaster.
7.46 p.m.
Lord Fraser of Carmyllie: My Lords, I am grateful to the noble Earl for giving your Lordships' House the opportunity to debate this important issue. It was indeed raised in another place on an earlier occasion, but that was in response to a PNQ which, as I understand the practice of this House, is not normally repeated here. Perhaps I may begin by expressing my sympathy and that of my colleagues in the Scottish Office to the people of Perth and Kinross for the distress which they have suffered during the recent severe weather.
The Secretary of State for Scotland and my honourable friend the Parliamentary Under-Secretary of State for Agriculture and the Environment have already visited the area and, as has been indicated, they have seen the extensive flooding and damage that has been caused. My honourable friend the Parliamentary Under-Secretary of State for Education and Housing, following on earlier discussions which he has already had with the Provost of Perth and Kinross, will be visiting Perth tomorrow and discussing their problems. In recognition of the problems encountered, the Prime Minister has also written to the Provost expressing his sympathy.
Perhaps I may also join in the compliments which have been expressed about the professionalism and commitment of the local authority, the emergency services and the military personnel for their handling of the situation when the flooding was at its height and in the immediate aftermath. Their response was outstanding. We have been seeking for some time to encourage the establishment by local authorities of joint emergency planning co-ordinating committees and, if nothing else, I believe that this incident has provided evidence that the arrangements which are in place have worked well.
Flooding of the severity experienced recently should, statistically, have occurred no more than once every 100 years. However, it has now happened twice in three years. Natural hazards such as flooding are not always bound by the laws of statistical probability nor do they lend themselves to easy or quick solutions. However, I welcome this opportunity to set out what the Government have done and believe should be done.
The flows in the River Tay were at their highest in some 40 years of records. The level reached at Perth was exceeded only by the flood of February 1814, as my noble friend Lord Lyell indicated. However, the 1814 event was partly the result of ice blocking the river. Therefore, it will be appreciated that the recent flooding was even more exceptional. The 1990 flood was also severe and, understandably, there is a concern which has been expressed this evening that the frequency with which these events occur appears to be increasing. But floods are caused by combinations of
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many factors and are unpredictable. Extreme events can occur close together and, similarly, there can be long periods without a major incident.
Your Lordships will be interested to learn that the Scottish Office has been in touch with the Tay River Purification Board and the Institute of Hydrology with a view to forming the best assessment of the magnitude of the flood and its relationship to other extreme events in the catchments. This important study could increase our understanding of the nature of the flood mechanism. Preliminary indications are that the unusually rapid snow melt, together with the sustained rainfall which the noble Lord, Lord Hughes, and others will recollect, on a saturated catchment were the principal causes of this emergency, coupled with high tides and exceptionally high winds.
The noble Earl and others have referred to the study which was carried out after the 1990 flood. One of the recommendations of that study was that improved flood warning systems should be installed. That recommendation has been acted upon and the flood warning systems have been installed by the Tay River Purification Board with government encouragement. It appears that the systems worked well and gave vital warnings which were acted upon by the emergency services.
The report on the study also recommended that urgent consideration should be given to the flood protection provided in the city of Perth. These are matters on which Tayside Regional Council has powers to act under the Flood Prevention (Scotland) Act 1961. I understand that today the council has convened a meeting of representatives from bodies which formed the steering group which oversaw the 1990 study. The Scottish Office was represented, and any issues arising will be carefully studied. I can assure the noble Earl that any flood prevention scheme proposed by the regional council and included in its future financial plans will be taken into account when the capital allocations are being set.
Expenditure on confirmed flood prevention schemes and preliminary studies for such schemes now attract grant from the Scottish Office at the rate of 50 per cent. My noble friend Lord Sanderson of Bowden may recall that that figure was set at 30 per cent. in 1992, but it has been increased. However, the initiative for such a scheme must come from the regional council itself.
There has been the suggestion that an integrated management scheme should be developed for rivers such as the mighty River Tay. While this could be done to some extent by the regional council itself using its existing powers, there are severe practical and administrative difficulties in reconciling the many legitimate interests of the persons and bodies involved. It has to be borne in mind that, even with an integrated approach, there are limits beyond which flooding will still occur. The resulting damage could well be greater for people having been lulled into a false sense of security. Protection against natural hazards such as flooding can never be absolute and there is a risk to all developments in the flood plain.
The residents of North Muirton in Perth are only too acutely aware of this risk. I understand that the

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district council is carrying out a survey of all the properties which have been flooded to assess the extent of the damage. The council will assess the cost of work required once the final results of the survey are known. The council already has substantial resources made available to it for housing capital investment in 1992–93: this amounts to £6.2 million for investment in its own stock and just over £2 million for investment in private sector housing. Provisional allocations for 1993–94 have also been issued. If after the council has fully assessed the extent of the damage it considers that the cost of the appropriate remedial work cannot be met from within its existing allocations, it should get in touch with officials in the Scottish Office Environment Department to discuss the situation.
Perhaps I may now turn to the impact on farmers and land owners, which has been raised more than once during the debate. There has been extensive damage to walls and fences and some damage to crops but, fortunately, very little loss of livestock. Some farm buildings will have been damaged and there has been a considerable volume of debris deposited on farm land.
We have considered carefully what help might be justified to farmers in these difficult circumstances. In our view, it is clearly important to maintain in good repair the floodbanks which have been built to prevent, or at least to mitigate, the worst effects of flooding. It is important that these defensive works should be restored as quickly as possible. They benefit not only the riparian landowners and farmers but have a wider public benefit for other farmers and nearby villages.
In 1990, which saw the most recent instance of serious flooding in Scotland, the Government agreed to increase the rate of grant available to farmers under the farm and conservation grant scheme for floodbank repairs. We increased the rate to 75 per cent. for farms in the less favoured areas and to 60 per cent. elsewhere. That offer applied for the duration of the summer in order to encourage repair work to be completed before the following winter.
This year my colleagues moved quickly to repeat that offer, and on 21st January it was announced that we would again provide the same rate of grant. On the basis of the experience in 1990, this will entail about £600,000 of additional government expenditure. I trust that it should be sufficient to ensure that the repairs are completed in good time.
Since the flooding, staff of the Scottish Office Agriculture and Fisheries Department have been closely involved in seeking to assess the impact of the floods and in advising farmers. I am pleased to report this evening that, in addition, the Government have arranged for technical staff of the Scottish Agricultural College to provide free advice to farmers in the affected areas on possible ways of repairing damage or coping more effectively with the risk of flooding in the future.
As my noble friend Lord Mackay of Ardbrecknish anticipated, with the new requirement to set aside land under the reformed common agricultural policy, some farmers may have more options to consider in
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planning the future use of their land. I hope that they will find it helpful to have free access to this independent, expert advice in framing their business plans for the future.
As regards finance, government finance has already been made available to local authorities affected in the Tayside area after Treasury approval was obtained to trigger what is known and has been referred to as the Bellwin scheme of special financial assistance. It exists to provide special financial assistance to local authorities which would otherwise incur an undue financial burden in providing relief and carrying out immediate work to safeguard life and property. The affected authorities have been requested to apply for grant by 30th June at the latest should they consider they have an eligible claim. To date, no indication has been received by my officials of the likely cost. This is not, however, unexpected, given that authorities must wait for the flood waters to recede before any complete assessment of the damage, even of an immediate nature, can be made.
Authorities that claim will receive grant at 85 per cent. of eligible expenditure over a given threshold. Such authorities have statutory powers to deal with emergencies and it is reasonable to expect that they will have provided for a reasonable contingency level in their normal financial planning. The scheme does not aim to cover the full costs of dealing with an emergency. Rather, it seeks to prevent any undue burden falling on the authorities. However, I can assure your Lordships that each claim received will be considered sympathetically within the scheme rules.
The noble Earl asked me whether it might be possible to have the area declared a disaster area. He referred to the declaration at the Shetlands. Although it is a well-known approach and is familiar to many of us when a hurricane hits the Atlantic coast of the United States, there is no formal procedure within the United Kingdom for designating any particular area a disaster area and there is no particular mechanism that would allow the Government to respond in any different way. However, I hope that I have assured the noble Earl that a considerable number of measures are taken and considerable support is available when a natural disaster on this scale occurs.
The noble Earl and my noble friend Lord Dundee asked me whether it might be possible to look for EC funding. While the assessment is still being made as to the full extent of the damage, it cannot yet be clear whether it is sufficiently grave in that sense for an appeal for EC funding to be made. Such payments are normally more of a gesture, which is none the less greatly appreciated by the United Kingdom, rather than a payment to address the fundamental problem. Any possible aid is therefore likely to be a contribution at the margins.
I was asked a number of other detailed questions. I hope that I shall be forgiven if I do not respond to them all. My noble friend Lord Lyell asked me about the railway embankment which collapsed at Dalguise. I understand that that work is expected to take some 10 days. However, the rebuilding of the pier on the Forteviot bridge which carries the Glasgow to Aberdeen railway line is technically more difficult and

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may take some three months to repair. I am pleased to say that there is no serious damage reported to either the old or the new A.9 and other damage is being tackled by Tayside Regional Council as the roads authority.
We have all had to recognise the serious impact that these recent events have had on the local communities. I hope that it will be accepted that we have taken positive measures in response to the flooding and are keeping in close touch with the local authorities. We have demonstrated, I trust, our concern by providing financial support for the local authorities towards the costs incurred in dealing with the emergency and to farmers to restore flood defences for agricultural areas.
In the longer term, which I think has underlain much of what has been contributed to the debate this evening, there is a concern that we should look carefully at proposals for improved flood defences and river management, not only on the River Tay but on other significant rivers in Scotland. I can say that they will receive careful consideration. I conclude by again thanking the noble Earl for bringing the matter to the attention of the House.
Lord Carmichael of Kelvingrove: My Lords, perhaps I may raise a point that I did not raise earlier namely, the question of the worst-off people in the community—those who are on supplementary benefit—and the possibility of the cold weather heating allowance being extended to them. They will be sitting in damp houses and will be extremely worried. Many old people will not even turn on their heaters. I am sure that the noble and learned Lord knows the picture very well. Will he at least undertake to raise the matter with the appropriate Minister to see whether the cold weather heating allowance could be extended for this particular disaster?
Lord Fraser of Carmyllie: Certainly, my Lords. I shall ask the Minister responsible in the Department of Social Security about that matter. As I think the noble Lord will appreciate, that allowance is triggered by a somewhat elaborate formula relating to the degree and duration of the cold. Curiously enough, one of the problems here was that, after an extremely savage cold snap, the thaw came very quickly. However, I shall certainly raise the matter with my ministerial colleagues and let the noble Lord know the outcome.
House adjourned at five minutes past eight o'clock.