Lords Sitting of 15 July 1993

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Coventry.): The LORD CHANCELLOR on the Woolsack.
Lord Berkeley—Sat first in Parliament upon the death of his aunt.

Unemployment Figures
Lord Dormand of Easington: My Lords, on behalf of my noble friend Lady Turner, and at her request, I beg leave to ask the Question standing in her name on the Order Paper:
Whether instructions have been issued to staff at local Department of Employment benefit offices to reduce by administrative means the numbers receiving unemployment benefit.
The Parliamentary Under-Secretary of State, Department of Employment (Viscount Ullswater): My Lords, no one who is entitled to claim unemployment benefit is discouraged from doing so. Instructions issued to local office staff of the Employment Service require them to give people positive help to get back into employment.
Lord Dormand of Easington: My Lords, is the Minister aware that one of the strangest features of the present time is that we still read of huge job losses but that unemployment figures continue to decrease? Despite what he said, will the Minister give a categoric assurance that benefit office staff are not encouraging people to claim sickness and invalidity benefit rather than unemployment benefit?
Viscount Ullswater: My Lords, there is no truth in the claim that the Employment Service is operating a deliberate policy of denying eligible claimants of their rightful benefits or pressurising claimants into claiming alternative benefits. There were fewer claims for invalidity benefit and sickness benefit in the first quarter of this year than in the first quarter of last year.
Lord Campbell of Alloway: My Lords, is my noble friend aware that over the years a series of charges has been made that the figures are manipulated? Will he give a categoric assurance that that has never been and is not the case?
Viscount Ullswater: My Lords, the whole point of the seasonally adjusted series of figures is that they should be consistent over a long period of time.
Lord Bruce of Donington: My Lords, the Minister will, I am sure, agree that there is a considerable difference between the term "unemployed and claiming benefit" and those actually unemployed.
Viscount Ullswater: My Lords, there are various definitions of "unemployed". This country uses two: the ILO series, and the claimants' series which is published today.
Lord Mackay of Ardbrecknish: My Lords, has my noble friend had an opportunity to read today a report from the Employment Policy Institute which says that it found little convincing evidence that the Government had conducted an administrative fiddle to make the figures more acceptable? Is not what we are seeing a smokescreen to disguise that other piece of information published today; namely, that the unemployment figures have fallen for the fifth month in a row?
Viscount Ullswater: My Lords, yes, that, of course, is good news for this country, coming on top of yesterday's figures for the retail prices index showing that inflation had fallen to 1.2 per cent. On Tuesday we published figures on manufacturing output, which was up 3 per cent. on a year ago. That is good news for the economy, individuals and Britain.
Lord Mason of Barnsley: My Lords, is the Minister aware that it is pleasing to note that unemployrnent has come down once again this month? To what extent are the long-term unemployment figures coming down? Secondly, on the figures that have been produced by the department today, is it not still disturbing to note that the loss of employment in manufacturing industry continues, and that 245,000 jobs have gone in the past 12 months? There does not seem to be much sign of an industrial increase there.
Viscount Ullswater: My Lords, no, I agree with the noble Lord, Lord Mason, that losses of manufacturing jobs are still occurring. However, what is important is to note that manufacturing output is increasing. That continues the long-term trend since the 1960s when we lost nearly 3 million jobs in manufacturing. Some have been reclassified, but the most important point is that manufacturing output is now increasing.
Lord Rea: My Lords, will the Minister accept from me that as a practising NHS general practitioner during the past few years a number of patients have asked me to put them on to the invalidity list? They say they have been told to do so by their local employment officer. Those people had not thought that their minor illnesses were sufficient for them to claim sickness benefit, but they had been advised to see the doctor to be put on the sick list. I can give names if the Minister would like them.
Viscount Ullswater: My Lords, all members of the public are entitled to make a claim for unemployment benefit, but some may not be eligible. The Employment Service research advisers seek to ensure that clients are capable of work. It is for the clients to decide whether to seek a medical opinion of their capability.
Lord Jay: My Lords, has the Minister noted that those pieces of good news are due mainly to the fall in the exchange rate last September which the Government did their best to resist?
Viscount Ullswater: My Lords, that does not affect the good news on retail sales which are up 3 per cent. on a year ago; car registrations up 11 per cent. on a year ago; and housing starts up 17 per cent. on a year ago. There is a great deal of good news about.
Lord Eatwell: My Lords, how many times since 1979 has the definition of eligibility for benefit been changed? What is the department's current estimate of how much higher the level of unemployment, as measured by eligibility for benefit, would be now had those definitions not been changed?
Viscount Ullswater: My Lords, as I said in reply to an earlier question, the consistent seasonally adjusted employment series gives a comparable assessment of trends over time. It is not possible to record the figures as suggested by the noble Lord. There have been adjustments to the figures over the past 15 years or so as there were in the 15 years before that.
Lord Stoddart of Swindon: My Lords, is the Minister aware that his reply to my noble friend Lord Rea was less than satisfactory? Is he further aware —I am sure that he is—that the Government have been complaining about the number of people who have been claiming invalidity benefit? I should like the assurance that benefit officers are not recommending people who they know are well to see their doctor so that he can pronounce them unfit in order that they may obtain invalidity benefit.
Viscount Ullswater: My Lords, I believe that the noble Lord is suggesting that doctors will take that decision when someone—
Lord Stoddart of Swindon: My Lords, no, no—benefit officers.
Viscount Ullswater:—is not fit. In answer to a previous question, I suggested that there were fewer claims for invalidity benefit and sickness benefit in the first quarter of this year than in the first quarter of last year.
Lord McIntosh of Haringey: My Lords, in his earlier replies, the Minister gave assurances that the unemployment figures had not been fiddled or rigged. Would he care to use part of the Summer Recess to read the diaries of Alan Clark, who made it clear that at his time in the Department of Employment the numbers were being rigged to reduce apparent unemployment figures? Does the Minister agree with me that common English usage indicates that "unemployment" means those who are out of work and looking for work (as it was until September 1982) rather than those who are successfully claiming benefit. which has been the definition since then?
Viscount Ullswater: My Lords, no, I do not believe that there is a common definition of "unemployment".
338
Many people in full-time education say that they are unemployed because they say they are looking for short-term, part-time jobs.
The Countess of Mar: My Lords, does the Minister agree that there is a problem in defining "eligiblity" as regards unemployment benefit, because people who undertake work for voluntary organisations while they are unemployed are defined as not being available for work? Does the Minister agree that voluntary work keeps people in the community and keeps their minds alive and that they are prepared to stop that work immediately a job becomes available? Is it right that they should be deterred from claiming unemployment benefit?
Viscount Ullswater: My Lords, the situation is, perhaps, the reverse. They are not deterred from claiming unemployment benefit but the rules of eligibility—that they should be prepared to take on work when it is offered to them—make their entitlement secure. The noble Countess said that they are not able to claim unemployment benefit, but they can do so.
Lord Whaddon: My Lords, does the Minister agree that it is ridiculous for anyone to suggest that the unemployment figures are in any way fiddled; they are just genuinely appalling?
Viscount Ullswater: My Lords, of course. I have not indicated that the Government are complacent about the unemployment figures. Indeed, they are not. We wish to see the economy grow stronger and as a result more job opportunities occurring.

Iraq: Infant Mortality
3.12 p.m.
Lord Rea Lord Rea asked Her Majesty's Government:
Whether they accept that the level of childhood malnutrition and mortality in Iraq is increasing; and whether they are actively seeking ways of encouraging and enabling Iraq to spend at least its current limit of 1.6 billion dollars on food and medical supplies.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, there are no reliable figures on infant mortality or malnutrition in Iraq. The suffering of the Iraqi people could immediately be alleviated if Saddam Hussein implemented Security Council Resolutions 706 and 712. We welcome Iraq's decision to renew negotiations on that on 7th July.
Lord Rea: My Lords, I thank the Minister for that predictable Answer. Is she aware of the detailed report written for UNICEF by the distinguished Canadian public health specialist, Dr. Eric Hoskins, entitled Children, War and Sanctions, which demonstrates that in Iraq infant mortality has almost trebled since the Gulf War and that 100,000 excess child and infant deaths have occurred? Is the Minister further aware that the democratic Iraq opposition in exile considers that the terms imposed by the Security Council, under

339
which Iraq can sell up to 1.6 billion dollars-worth of oil to pay for food and medical supplies, are so draconian and humiliating that no self-respecting government can be expected to accept them?
Baroness Chalker of Wallasey: My Lords, I have not read the UNICEF report in detail but I shall turn my attention to it in the long Recess. I know that the United Kingdom has funded medical aid work and the work of the Amar appeal. It has given nearly £500,000 to the non-governmental organisation CARE for essential water and sanitation work in southern Iraq. It is further helping the Kurds in the north with medical and other assistance. I know that the Iraqi regime could ease the suffering of all Iraqi people if it agreed to implement Security Council Resolutions 706 and 712 because those resolutions would permit Iraq to export oil and to have the benefit of that oil for the Iraqi people.
Lord Finsberg: My Lords, does my noble friend believe that even if Saddam Hussein implemented those resolutions he would allow any aid to go to the Kurds whom he is systematically murdering?
Baroness Chalker of Wallasey: My Lords, I believe that some of the assistance would get through but certainly not to the total value of the oil sold. In that regard I believe that my noble friend Lord Finsberg is right. But the Kurds have made clear that they are not going for independence but are looking for autonomy. If they can achieve that autonomy they may be able to do even more to help themselves. We are there to help them to help themselves. I believe that neither they nor the Iraqi people will be able to rely on Saddam Hussein in the medium or long term.
Lord Cledwyn of Penrhos: My Lords, will the Minister kindly enlarge on the reference she made to the application of the Iraqi Government on 7th July? Precisely what have they applied for, and is there any possibility that that could help to alleviate the situation?
Baroness Chalker of Wallasey: My Lords, I understand that on 7th July representatives of the Iraqi regime went to New York to begin further discussions on Security Council Resolutions 706 and 712. I also understand that they have returned to Baghdad for further instructions. The talks have not been suspended, as was stated in some newspapers this morning: they will be reconvened when the representatives have those instructions. I can say only that we, as president of the Security Council, will do all that we can to see that Resolutions 706 and 712 are implemented.
Lord Molloy: My Lords, while acknowledging the efforts of the British and United States governments, who are making first-class endeavours to relieve the suffering, does the Minister agree that it would be wise for them to go to the Security Council and make certain that the suffering of the Kurds and the hundreds of thousands of Iraqis under the brutality of Saddam Hussein is relieved? Is it not about time that there was a united effort to stop his terrible ways and to get rid of him once and for all?
Baroness Chalker of Wallasey: My Lords, I believe that that goes a little wide of the Question on the Order Paper. Nevertheless, I assure the noble Lord that in the Security Council we shall be taking all possible action to bring relief to the Iraqi people, to the Kurds, to the people in the marshlands and to ordinary Iraqis who are innocent of the actions of Saddam Hussein.
Lord Kennet: My Lords, will the Minister dot an "i" and cross a "t"? She said that there are no reliable figures relating to mortality and disease in Iraq. Does the blanket statement cover the report mentioned by my noble friend Lord Rea about infant mortality? That report by Dr. Hoskins indicates that infant mortality has trebled since the end of the Gulf War and that there have been 100,000 excess infant deaths.
Baroness Chalker of Wallasey: My Lords, my initial Answer was that there are no reliable figures on infant mortality or malnutrition, referred to by the noble Lord, Lord Rea. The reason is that figures are made up when they have none. Although I shall look at the report in considerable detail I cannot say that there is anything on which we can currently judge the level of difficulty, although we know and fully accept that it is great.
Lord Judd: My Lords, does the Minister accept that the whole House is agreed that we are dealing with a cynically ruthless and cruel regime which is responsible for taking the lives of thousands of its own people? Does she agree that the priority must be a change of government and that effective pressure is therefore essential? But will the Minister also agree that that must never be at the price of an unacceptable degree of suffering by the vulnerable and innocent? Will the Government look at the possibility of lifting the blockade as regards areas largely controlled by the Kurds, of ensuring direct humanitarian supplies to the Shi'ites most at risk and to those who have fled to the marshes on the Iranian border, and of ensuring the effective delivery of desperately needed spare parts for sewage treatment and water purification plants?
Baroness Chalker of Wallasey: My Lords, all those matters are under constant review. However, I make it clear again that there is one way above all which can bring relief to all sections of the Iraqi people; that is, the implementation of Resolutions 706 arid 712.
Lord Rea: My Lords, does the Minister not see a parallel situation in which Saddam Hussein is strengthening his position with regard to his own people? He can point to sanctions in the same way that Hitler did 12 years after the signing of the Versailles Treaty and so increased his popularity with the German people.
Baroness Chalker of Wallasey: My Lords, no. I believe that there are many people, led by the opposition to Saddam Hussein, who know the truth of the situation and who are making sure that it is known throughout the country.

Iraq and UN Weapons Inspection
3.20 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether they will raise in the Security Council of the United Nations the importance of UN weapon inspection teams being enabled to re-enter Iraq.
Baroness Chalker of Wallasey: My Lords, the United Nations Special Commission and International Atomic Energy Agency inspection teams are not being refused access to Iraq, but the Iraqi Government obstruct the work of the inspectors once they are in the country. We continue to make clear the importance of full compliance with all Security Council resolutions.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for her reply. Of course, much has happened since I tabled the Question. While the present attempt at negotiating access is welcome, will the Government ensure that Iraq is not allowed to play for time in trying to develop nuclear weapons? That is not bullying by the coalition nations; it is the prevention of what could become a very great mischief.
Baroness Chalker of Wallasey: My Lords, I have much sympathy with what my noble friend Lord Campbell of Croy says. The Iraqis should remember the allied action of 1991 before deciding to attack Kurdish areas. There have been many rumours of that happening recently. Allied aircraft continue to be deployed over northern Iraq in the limited region north of the 36th parallel. In co-operation with the other governments of the coalition, we shall try to do what we can but we cannot ensure the safety of those people.

Community Care: Mentally Ill
3.21 p.m.
Lord Harris of Greenwich Lord Harris of Greenwich asked Her Majesty's Government:
What action they propose to take following the killings and rapes committed by mentally disordered offenders released into the community.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, my right honourable friend the Secretary of State for Health is considering the case for new legal powers in this area and will be announcing her conclusions shortly.
Lord Harris of Greenwich: My Lords, I thank the noble Baroness for that Answer. Is she aware that apart from the three killings which have already taken place and a case of multiple rape, there has been a significant number of cases of violence to which members of the public have been subjected by mentally disordered offenders? Is it not clear that care in the community in those cases is simply not taking
342
place? Will the noble Baroness say what specific action the Government will take to protect the interests of the public?
Baroness Cumberlege: My Lords, I believe that, in general, community care is working well, but I accept that it is failing a small minority of people. I have already outlined to the noble Lord the action which the Government are taking. My right honourable friend the Secretary of State is considering whether increased legal powers are necessary. She will announce her conclusions in the autumn.
Lord Campbell of Croy: My Lords, does my noble friend agree that each mentally ill individual should be sep, rately assessed, and that only a small minority of schizophrenics are violent, but that they must be identified and special arrangements made for them?
Baroness Cumberlege: My Lords, I agree absolutely with my noble friend. That is why we introduced individual care plans for every person who is discharged from hospital into the community. The challenge is to ensure that there is adequate supervision as regards their whereabouts and their medication.
Baroness Masham of IIton: My Lords, is the Minister aware that recently a unit for mentally ill people has been opened in Brixton prison? What communication and co-operation does her department have with the Home Office when mentally ill people are discharged from prison into the community?
Baroness Cumberlege: My Lords, a great deal is being done in conjunction with the Home Office. A number of reports have been produced by Dr. John Reed who chaired a committee composed of both Department of Health and Home Office officials. That committee has produced 10 reports and a further report is to be published shortly on services for people with psychopathic disorders. Clearly, the department will wish to look at that carefully to see how we can best implement the recommendations.
The Earl of Longford: My Lords, will the noble Baroness, who is so much admired by all involved in these topics, reconsider the idea that community care is working well? She must be the only person in the world who thinks that it is. Will she bear in mind the possibility that community care is a tremendous ambiguity? On the one hand, it involves the conception of all kinds of active provision by local authorities and voluntary bodies and, on the other, it leaves it to the man in the street who, of course, does nothing.
Baroness Cumberlege: My Lords, I do not believe that my views are unique. In fact, a survey carried out this week showed that more than three people out of four favour the policy of caring for people with mental illness in the community. I am sure that my views that community care is working well are supported by the vast majority of people in this country. I accept that a

343
small minority of people who need special attention fall through the net.
Lord Merlyn-Rees: My Lords, I am sure that many meetings are taking place and many surveys are being carried out. But what happens in practice, for example, if a person as referred to in the Question moves to a certain area in Leeds and then goes to the social services? What happens in practice rather than in theory?
Baroness Cumberlege: My Lords, the care programme that we have introduced has to be agreed by the patient. It is a multi-disciplinary exercise so that all individuals who are professionally involved with that patient are involved as are the relatives and carers of that individual. If a person who has been discharged from hospital, hostel or some other accommodation then moves to another area, it is up to the key worker designated to look after that patient to ensure that adequate supervision is maintained. It is that area that we are addressing.
Baroness Faithfull: My Lords, does my noble friend agree that some of the problems, although not all, are due to the fact that mental patients discharged from hospital do not take their medication? That being the case, does the Minister agree that a community treatment order should be made so that a district nurse, health visitor or someone with medical knowledge is named who can help such a person and supervise him on a daily basis? Would not a community treatment order meet that need?
Baroness Cumberlege: My Lords, that has been the subject of wide discussion now for several years. Indeed, the Royal College of Psychiatrists produced a report recently suggesting something of that nature. But we must be very careful that under the European Convention on Human Rights we do not violate people's freedoms. It is clear to us that people cannot be made to take medication in the community and cannot be returned to hospital just because they refuse that medication. Many difficult issues are involved in this matter. That is why a departmental team has been set up to consider whether the present legislation is being adequately used, and whether further legislation is needed. That group will report to my right honourable friend in the autumn.
Lord Murray of Epping Forest: My Lords, does the Minister agree that the reason why the special unit has been opened in Brixton prison, and the reason why there has been a great increase in the numbers of such people incarcerated in our prisons, is the far too rapid rate of closure of psychiatric beds in hospitals? Those beds are being closed at the rate of more than 4,000 per year. Further, does the noble Baroness agree that the solution is to slow down considerably the rate of those closures?
Baroness Cumberlege: My Lords, it is a very tiny minority of people who suffer from mental illness. When we look at those who have offended, who have murdered or committed some other crime, they are not those who have been released from long-stay beds. They are people who suffer from acute psychotic
344
disorders. A distinction must be drawn between those people and others who have been incarcerated in mental institutions for many decades. Some have been incarcerated merely because they were socially unacceptable. In some cases, young girls who became pregnant were unacceptable to the community and have spent decades in mental institutions as a result. That is unacceptable. We must address those problems. We must also address the problems of those who are causing harm to society.
Lord Rea: My Lords, is the Minister aware that the cases mentioned in the Question of the noble Lord, Lord Harris, represent only the tip of the iceberg and that there are many thousands of other seriously mentally ill patients in the community not receiving adequate care? Can she grasp the nettle that it is not so much long-stay patients discharged into the community either from prison or from mental hospitals that cause the problems but the new generation of severely mentally ill people who have been discharged after a short time, often to be repeatedly readmitted in what is called the "revolving door" syndrome?
Does not the Minister realise that good community care, whether or not we introduce some form of community care order, is not cheap and that it may in fact cost more money than that spent on hospital care—at least initially—to develop the service?
Baroness Cumberlege: My Lords, we believe that there are about 750,000 people living very successfully in the community who have had a mental illness. Indeed, only 0.7 per cent. of the population will suffer from schizophrenia at some time in their lives. Those people need care, supervision and help. However. it is a tiny minority causing great distress and trouble within the community. We must keep the matter in proportion.
Lord Harris of Greenwich: My Lords, is the Minister aware that most of us know that we are talking about a small minority of potentially violent people? Is she also aware that in the cases that I have cited—and in many other cases to which social agencies, including the police, have drawn to the attention of Ministers—there is a deep sense of public concern that such people are not receiving the degree of care in the community that they require?
Baroness Cumberlege: My Lords, that is why we are reviewing our present policies to look at the cases of a very small minority of people who clearly are a great distress to society.

Business
3.30 p.m.
Lord Hesketh: My Lords, it may be for the convenience of the House for me to outline the procedure to be adopted on the debate on the Motions relating to Hong Kong which will be taken after the Committee stage of the Railways Bill and the Third Reading of the Sexual Offences Bill. The Motions

345
standing in the name of my noble friend Lord Ferrers and in the name of the noble Lord, Lord Bonham-Carter, will be debated together. The order of speakers is set out on the list which has been made available to your Lordships.

Summer Recess
Lord Hesketh: My Lords, perhaps I may now turn to matters of even greater importance. It may be for the convenience of the House to know that, subject to the progress of business, it is expected that the House will adjourn for the Summer Recess on Wednesday 28th July. It is expected that the House will sit at 11 a.m. on that day. It may also be for the convenience of the House to know that it is expected that the House will return on Monday 11th October, thus providing the opportunity for all of those noble Lords who wish to attend political festivities at various resorts the chance not to miss out.
Lord Shackleton: My Lords, can the noble Lord say whether the amendment of the noble Lord, Lord McIntosh of Haringey, will be discussed with the main Motion?
Lord Hesketh: My Lords, the noble Lord, Lord Shackleton, is correct in his assumption. Perhaps I may draw the noble Lord's attention to the speakers' list. He will see there that the noble Lord, Lord McIntosh, is also incorporated in it.
I should also like to take the opportunity on behalf of the whole House to congratulate the noble Lord on his birthday.
Noble Lords: Hear, hear!

Pwllheli Harbour (Amendment) Bill
The Chairman of Committees (Lord Ampthill): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read a third time.—(The Chairman of Committees.)
Lord Cledwyn of Penrhos: My Lords, I do not propose to make a speech, but I should merely like to point out that the proper pronunciation of this small and attractive town in Gwynedd is "Pwllheli". Noble Lords should take as much care to pronounce Welsh place names as they do with those of outer Mongolia.
The Chairman of Committees: My Lords, I apologise most profoundly to the noble Lord. I sincerely hope that I shall be able to do better next time.
On Question, Bill read a third time, and passed, and returned to the Commons with amendments.

Crofters (Scotland) Bill [H.L.]
Read a third time, and passed, and sent to the Commons.
Scottish Land Court Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Railways Bill
3.36 p.m.
Lord Tordoff: My Lords, I thought that it may be for the convenience of the House if I were to say a word or two on the subject of the report of the Delegated Powers Scrutiny Committee which was discussed in your Lordships' House last week.
Those noble Lords who were present will remember that it was wondered when it would be possible to discuss the matters referred to in the report and whether it would be possible for that debate to take place at a reasonable time of the day—that is, not late at night. By a certain amount of judicious placing of amendments, we believe that we have succeeded in making it possible for the subject (based on an amendment which I have tabled) to be debated as first business next Wednesday. I hope that is for the convenience of your Lordships.
Lord Clinton-Davis: My Lords, I wish to follow the remarks made by the noble Lord, Lord Tordoff, only in the respect of thanking him from this side of the House for what he said. I should also like to extend our appreciation to the Minister. One of the points made in those earlier discussions was whether the Government would be in a position to state their case in advance of the debate. The Minister has done so in a letter to me, to my noble friends and, I think, to the noble Lord, Lord Tordoff. We are very grateful to him for that fact. However, perhaps the Minister can indicate to the House that he will be prepared to put a copy of the letter in the Library so that all interested Members can have access to it and therefore perceive the Government's case in advance of the debate. I do not agree with their case; but, nonetheless, the letter has been most helpful.
The Minister of State, Department of Transport (The Earl of Caithness): My Lords, the letter mentioned by the noble Lord, Lord Clinton-Davis, has been sent to every Member of the House who took part in the Second Reading debate; in the Committee stages; and also to other noble Lords who may have an interest in the matter. I can reassure the noble Lord as regards his request: a copy of the letter is already in the Library.
The Earl of CaithnessMy 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.—(The Earl of Caithness.)
On Question, Motion agreed to.
House in Committee accordingly.

347
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Clinton-Davis Lord Clinton-Davis: moved Amendment No. 125ZB:
After Clause 78, insert the following new clause:
("Establishment of Railtrack
—(1) There shall be established a body corporate to be known as Railtrack with which the Secretary of State shall vest—

(a) all stations

(b) all track and associated infrastructure,

(c) all maintenance depots (whether "light" as defined in section 75(2) below or otherwise)

hitherto vested in the Board.
(2) The Secretary of State shall appoint a Chairman and Board of Directors of Railtrack.").
The noble Lord said: In moving the amendment, I think that it would be for the convenience of the Committee if we considered amendments Nos. 125ZC and 125ZD at the same time. I mentioned earlier in our debates a rather curious fact; namely, that Railtrack is the sort of invisible man in this farce produced by the Government. In fact, Railtrack is not mentioned anywhere in the Bill. The Minister has alluded to that, arid I shall return to the points he raised shortly.
In my submission, Railtrack is a vital player. It certainly merits mention in the Bill. The object of my amendments is to remedy that omission and also to enable the Committee to debate in some detail what Railtrack is all about; what functions it will perform, and so on. But first of all, how is it that the Minister justifies the omission? In our debates on 1st July he said at col. 1055 of Hansard:
"The names of the companies are rarely mentioned in legislation".
He added at col. 1056:
"One good reason for that is that their name may change in future. Railtrack is covered by the expression "network operator" in the Bill. This approach allows us to legislate for all network operators, not just Railtrack. For example, if the Isle of Wight Railway is operated as a vertically integrated franchise, the franchisee will be a network operator as well as a passenger service operator".
That is true, but taken overall it is a pretty unconvincing argument and wholly ignores the fact that the sort of responsibilities to be undertaken by Railtrack are out of all proportion to those of any other network operator of which one may conceive. The responsibilities are quite dramatic; I shall come to them in a moment.
The Minister also prayed in aid the fact that a precedent exists. The Electricity Act 1989 followed the same rather doubtful practice that the Minister is now recommending to the Committee. I believe there are also precedents the other way. For example, the 1962 Transport Act—I am not sure whether that was an Act the noble Lord, Lord Boyd-Carpenter, was responsible for in his days as a Minister—had the effect of abolishing the British Transport Commission and established the British Waterways Board, the London Transport Board, the British Transport Docks Board and the British Railways Board. All those departed from the concept that the Minister is now advancing. The Transport Act 1968 created specifically the National Freight Corporation. There are good precedents in this matter. In my view there is
348
a dramatic need to refer to those precedents in this case because of the critical role that RaiItrack will play in the Government's conception.
Why do I say that it is different from other national network operators? First of all, Railtrack will take over assets worth many billions of pounds. It will inherit 10,000 route miles and 23,000 track miles from British Rail. It will be responsible for huge numbers of employees including signalmen. It will be responsible for the safe and efficient operation and the development of the rail network. It will be responsible for monitoring the performance of rail operators. It will have responsibility for dealing with certain emergencies. It will have to publish an investment programme and co-ordinate with rail operators on it. It will have access to, and use of, stations and light maintenance depots. That is not to be compared with the Isle of Wight Railway. The Minister must take the idea seriously on board that Railtrack is sui generis.
The Committee may think that the responsibilities to which I have alluded are not unimportant, but there is not a word about the situation in the Bill itself. I do not believe it is safe, when dealing with legislation of this kind, simply to be given assurances—I am sure they are given in good faith—by the Minister. We seek therefore by the amendments that we are moving to redress that situation.
The proposed new clause in Amendment No. 125ZB provides for the establishment of Railtrack on the face of the Bill. The proposed new clause in Amendment No. 125ZC sets out the duties that it is required to undertake and the proposed new clause in Amendment No. 125ZD provides for an access regime policy statement to be in the form of an order based on guidance from the Minister to Railtrack.
I shall now deal with the amendments in a little more detail. Amendment No. 125ZB is designed to establish Railtrack on the face of the Bill. It would put flesh on the bones of the description of Railtrack that Ministers have provided thus far orally and in writing but not in the Bill. I shall give a single example to illustrate what I am talking about. As regards stations, ownership will pass to Railtrack but Railtrack will not operate the stations. At least that will he the case generally. The observations I make are in general terms as there may be exceptions I do not know of. That is therefore to be the duty of franchisees or of private companies. But how is investment to be encouraged and secured? That, surely, is a matter of some considerable importance, particularly as regards lines which are subsidised.
Who is to provide information at stations? Who is to be responsible for the security of passengers? Are we to understand that British Rail will start restructuring itself for franchising on the assumption that maintenance depots as defined in. Clause 75(2) —I believe that deals primarily with light maintenance services—which are currently owned by vertically integrated profit centres, will he allocated to a franchisee? On that basis presumably maintenance staff will be employed by the franchisee. But where a station is used only by a single franchisee, the lease will be vested with the franchisee. If there is more than one user, the lease could be vested in an operating

349
company which deals with a separate station. But in that case mánagement and control would be allocated to one of the franchisees. If that is usually the case, we should consider the potential for conflict; for example, operators believing that their trains are not receiving fair treatment as regards maintenance undertaken by another operator or by the station staff. If, instead of that situation, the running of all multi-user assets, for example stations and depots, were handed over to Railtrack—it would be publicly owned and, I think it is agreed, an impartial authority—conflicts, which could easily abound, would be averted.
Amendment No. 125ZC seeks to set out the duties Railtrack will be required to undertake. The duties are in a list form. In that way we do not simply rely on assurances from Ministers which are not enforceable and which clearly have limited value, however much they may have been given in good faith. The amendment refers to vitally important matters. It provides for cast iron guarantees that Railtrack will be responsible for undertaking these duties unless Parliament decides otherwise.
The new clause also addresses the question of equality of treatment as between different rail operators in the charging regime. That issue was raised in the context of Amendment No. 43, but the Minister did not address a simple question: how can the operator of a franchise service be reasonably sure that unfair competition will not emanate from an operator which has taken advantage of the marginal charge option available to open access operators?
Amendments Nos. 125ZC and 125ZD deal with the way in which the access arrangements will work in the second round of tendering. During the first round of tendering, train paths will be allocated by Railtrack, and the franchising director needs to provide for the services intended to be undertaken in the franchises that he is letting. However, in the Government's own document Gaining Access to the Railway Network, it is said that in subsequent rounds of franchising Railtrack,
"will be under no obligation to meet the access requirements of the Franchising Director".
It is extremely difficult to see how franchising can work in those circumstances.
The Minister has given certain assurances that PTAs and PTEs will continue to specify local rail services. How will that fit in with the sentence in the Government's document which I have just quoted? What factors will Railtrack take into account when it has to decide whether to meet the franchising director's requirements? Will the issue be decided on cost alone, or to what extent will policy issues also be taken into account?
I should like to make a further point in parenthesis. I referred to the duty in subsection (1) (a) (ii) of the new clause in Amendment No. 125ZC:
"to secure the maintenance, improvement and development of the railway network".
For many years local people have been campaigning for the reintroduction of passenger services on the Luton-Dunstable freight branch line. Occasional excursion trains were run over the route for people who were particularly enthusiastic. Most people,
350
including Luton Borough Council, consider reopening to be a very good idea in what is a densely populated area with severe road congestion, as anybody who has travelled in that area will be able to testify. I have been told only today that in about 10 days' time BR intends to remove about one-and-a-half miles of the track for redeployment elsewhere. I believe that such a closure would prevent any possible reopening and development at that point in the network. It also illustrates that BR is having to take infrastructure from one part of the network to patch up another. That is a serious matter. I am afraid that I have not had an opportunity to give the Minister notice of that specific point, but I should be grateful if he could provide some information about it, or at the very least write to me, because that point merely exemplifies a situation to which I am seeking to draw attention. However, it does not necessarily merit a factual reply today.
In conclusion, so many frailties affect the Government's approach to the whole issue of Railtrack. The new clauses seek to provide some answers by requiring Railtrack to have regard to guidance issued by the Secretary of State when he enters into access agreements, by ensuring full consultation on the contents of the guidance and by providing that the guidance should mirror the significance of rail services in meeting economic, environmental and wider transport objectives. So far ministerial responses on all those points have been less than satisfactory.
It may be that we have not got the drafting altogether right. I always bear in mind the drafting abilities of the noble Lord, Lord Boyd-Carpenter, who may well have something to say in that respect. We do not have the drafting services available to the Government. Leaving that aside, I believe that it is important to incorporate in the Bill some specific provisions in relation to Railtrack. I believe that the Government ought to have done that, and I am not satisfied that the responses they have given in that regard have been anything like adequate.
I hope that something positive will be elicited during the debate on the proposed new clauses. I beg to move.
Lord Peyton of Yeovil: I should like to make a few comments, because we are engaged in a very unusual debate. The Government have, for their part, engaged in a display of most becoming and maidenly modesty, which is very unusual from government Benches. They have proposed the creation of this organisation called Railtrack but wish to keep it as quiet as possible and submerged beneath the waves. I find that very strange.
The second phenomenon in this debate is the infinite kindliness of the Opposition—a quality which they do not always parade— in attempting to help the Government out of their difficulty and give a body of their own to a shadow which the Government have not provided with one. It is a very unusual debate, and one which I have quite enjoyed so far. I do not believe that I can support the amendment because I do not wish with any enthusiasm to see Railtrack achieve visibility or a high profile. I would much rather that it were well and decently buried without further ado.

351
I also have some quarrel in detail with the terms of the amendment. It is a regular feature of our legislation to give enormous discretion to the Secretary of State. However, the Opposition can be forgiven for doing so in this instance because he is about the only person in a position to go further with the creation of this being. I do not feel that any Secretary of State ought to be called upon to do on his own what the Secretary of State is called upon to do by this amendment.
There are traces of great optimism in the amendments. One of the duties which is to be placed upon Railtrack—and I applaud the notion although in these circumstances it is hardly practicable—is to prepare a 10-year programme of investment in the railway system. That is something we have never had so far; but it would be most welcome. However, I am not sure that this is the right way to ahieve that. There is a notorious obstacle in the way of such a plan, which is the short-termism and short-sightedness of the Treasury, which dominates such issues. I believe that such a provision in the Bill would not be as effective as its authors would like.
I should also like to mention one further point which puzzled me and which I am sure the noble Lord, Lord Clinton-Davis, would like to deal with. In Amendment No. 125ZC, subsection (4) (c) puts upon Railtrack the duty to,
"treat equally those rail services which are provided by a franchise entered into by the franchising director and those which are not".
I should like to know what the noble Lord, Lord Clinton-Davis, means by that. Is he talking about distribution of subsidies? Perhaps he would make himself clear on that.
While I salute the kindliness and good nature of the Opposition in attempting to give some body to the dream which the Government are entertaining, I believe that the amendment should be resisted because the Government's dream has more of the quality of a nightmare and perhaps should be decently buried.
4 p.m.
Lord Clinton-Davis: I should like to ask the noble Lord a question. He takes root and branch exception to Clause 78; and I have some sympathy with that. We seek to improve the Bill if it is capable of improvement. Is it the noble Lord's intention—it does not appear on the Marshalled List—to vote against Clause 78? If it is not, I do not understand the position that he adopts.
Lord Peyton of Yeovil: I shall have to ponder with great care after I have had the benefit of listening to my noble friend on the Front Bench. At present I am content to say that I would find it difficult to support the amendment because, kindly as the noble Lord is being, I do not believe that he should be encouraged to help the Government in this instance.
Lord Boyd-Carpenter: First, perhaps I may reassure the noble Lord, Lord Clinton-Davis, that I was not responsible for the Act of 1962. Indeed, he is seven years out because I moved from the Ministry of
352
Transport in December 1955 to other departments. Therefore I could have had nothing whatever to do with that no doubt worthy piece of legislation.
The amendment that he has moved is part and parcel of the Opposition's policy of seeking to diminish the privatisation aspects of the Bill. In support of that statement, I need only invite the Committee's attention to two short sentences in the amendments. First, subsection (1) of Amendment No. 125ZB states:
"There shall be established a body corporate to be known as Railtrack with which the Secretary of State shall vest all stations, all track",
and so on. The creation of a body corporate is obviously intended to obstruct the privatisation process. Indeed, if that were not evident, I invite the Committee's attention to subsection (5) of Amendment No. 125ZC, which states in terms,
"Railtrack shall not be permitted to sell or in any other way dispose of assets either vested in it by the Secretary of State or which it subsequently acquires"—
in other words, no privatisation; and that, of course, is the purpose of the amendment.
Lord Annan: I should like to say how much in sympathy I am with the noble Lord, Lord Peyton. I, of course, should like to have moved, That Clause 78 does not stand part. However, in so moving one would merely be making a Second Reading speech and I believe that that is to be deplored at Committee stage.
Like the noble Lord, I have never been able to understand how one can run a railway in which the track is separate from those who put the trains over it. Therefore the amendment is a noble attempt to make more sense of that policy. However, I confess that I do not entirely agree with it.
The noble Lord, Lord Boyd-Carpenter, drew attention to the last subsection which states that,
"Railtrack shall not be permitted to sell or in any other way dispose of assets … vested in it by the Secretary of State".
I believe that that is a retrograde idea. Under a Labour Government, in the 1960s and 1970s British Rail was encouraged to sell large quantities of derelict land on which factories and housing were built to the great advantage of the country. I deplore the clause although I understand that it is part of the amendment. I shall simply abstain if the amendment comes to a vote.
The Earl of Caithness: I found the presentation of the amendment by the noble Lord, Lord Clinton-Davis, interesting. I thought that I was being made redundant. He made an interesting case as to why Railtrack was not mentioned in the Bill. He then gave a very good account of the Government's reply. He then said that he found it unconvincing. What more can I say to him? I shall repeat again what I said at an earlier stage.
The noble Lord knows full well why Railtrack is not mentioned on the face of the Bill. It will be a government-owned company; and the names of companies are rarely mentioned in legislation. There is good reason for that: such a company might change its name in the future and if that were the case and the name was mentioned in primary legislation, this Chamber would have to tolerate another Bill from Her Majesty's Government.

353
The noble Lord then referred to the Isle of Wight. I, too, was going to mention the Isle of Wight but I shall not dwell on it. Instead, I thought that I would give a good precedent to the noble Lord, Lord Clinton-Davis. I refer to the British Airports Authority when it was privatised. Its assets were vested in what was called simply a successor company. It so happened that the successor company used the same name for some time after privatisation before changing it to BAA plc.
I admit that I could not follow what the noble Lord, Lord Clinton-Davis, and the noble Lord, Lord Annan, found difficult about the separation of the track from the operator of the railway. I do not know how those noble Lords believe that Heathrow works. Presumably they find it extraordinary that the world's leading international airport operates at all. The runways are not owned by the airlines. Yet it is the most successful airport in the world. It is run by a separate company. The airlines have rights to come in and land. That is extremely well co-ordinated, and an extremely safe and efficient organisation. I pay tribute to what BAA has done with regard to Heathrow and Gatwick, and what it is doing with regard to Stansted. I should have thought that the noble Lord, Lord Annan, would have great difficulty in supporting a Bill such as the BAA legislation when it came before your Lordships' House because he would not have been able to understand how one can possibly have a multitude of airlines coming in on a common runway.
Lord Annan: I believe that there is a difference between a runway which is a measurable length and an aircraft which then goes on to fly 3,000 miles, and a train which starts on rails and continues to the north of Scotland.
The Earl of Caithness: A 'plane also has to land on a runway at the other end. I do not see the difference. One is of a shorter length than the other but they have exactly the same problems. If, perchance, an aircraft breaks down on the runway, and there is a stack of aircraft waiting to come in and take off, one has a management problem. You have exactly the same management problem on the railway now if a train breaks down. You will have exactly the same management problem in the future. At present, the system is all under one hat, beautifully concealed from us and none of us knows much about it. In the future it will be a great deal more transparent and efficient as a result.
However, let me now deal in detail with the amendments. Much of what Amendments Nos. 125ZB and 125ZC seek to do can already be achieved under the Bill as it stands. As Members of the Committee know, it is our stated intention that Railtrack should become responsible for the railway infrastructure and the powers in Part II of the Bill will enable the intention of Amendment No. 125ZB to be fulfilled. In respect of Amendment No. 125ZC, we have already given commitments about Railtrack's role in the publication of a national timetable;
354
Railtrack will be responsible for the safe operation of its network; and it will inevitably need to prepare a programme for investment.
However, there are some elements of these amendments with which I have some difficulty. We have made it clear that Railtrack's existence as a government-owned company will last only until it is feasible to transfer it to the private sector. I cannot say at this stage how long that might take, but after privatisation it will be for Railtrack's board of directors to determine the scope and commercial direction of the company. While Railtrack remains in government ownership, the Secretary of State's role will be confined to reconciling the need, on the one hand, to ensure the effective independence of the regulator and on the other, to take proper account of the Government's role as sole shareholder and provider of finance to Railtrack.
I also believe it would be wrong to constrain Railtrack on issues such as the financial structure within which it will be expected to operate and the policies it will be expected to pursue. We want to encourage commercial and innovative thinking in the new organisation, particularly in putting in place mechanisms likely to assist the eventual move to privatisation, and to ensure full and proper accountability of the Government's financial position. I hope the Committee will agree that we should not seek to prescribe, in the ways suggested by these amendments, selective duties and structural parameters of Railtrack. While Railtrack is government-owned, appropriate controls will be included in its network licence and its memorandum and articles of association.
Turning to Amendment No. 125ZD, we have made it very clear that we believe that the regulator should be independent, once any special transitional arrangements—which may be required at the start of the new regime—have ended. The effect of Amenment No. 125ZD would be to give the Secretary of State continuing opportunities to interfere in the access regime, through guidance to Railtrack. I also have to say that I find the formal procedure which the amendment proposes very cumbersome. I was delighted to cherish that moment of support from my noble friend Lord Peyton with regard to the Secretary of State. I firmly commend my noble friend's advice to the Committee on this occasion.
I should like to answer a couple of points in detail. The noble Lord, Lord Clinton-Davis, asked how franchisees could be assured that they would not face unfair competition from open access operators paying marginal costs for access to the network. The answer is the same as the one which I gave at an earlier stage when we discussed something similar. It is that the regulator will exercise control over unfair competition. He will not approve an access agreement if any franchisee is unfairly disadvantaged.
The noble Lord also raised the question of BR's plans for the Luton-Dunstable line. I shall look into that and write to him, but he will be aware that BR is subject to closure procedures which are being fully

355
maintained under the Bill. It is interesting that the noble Lord sought to raise the issue which is a matter that BR has in hand at this stage.
Lord Peyton of Yeovil: I hate to disturb the cordial and friendly relations which now exist between my noble friend and myself, but I have not yet quite understood by what processes Railtrack will be brought into being. It would help me if my noble friend could tell me that. We have heard of the birth of Venus—an unusual affair—but one cannot expect anything so beautiful to emerge from a Bill.
My problem is that the matter is not even mentioned in the Bill. One feels that my noble friend, his right honourable friend and the department are qualifying themselves for the task of rewriting Hamlet without referring at all to the Prince of Denmark.
4.15 p.m.
Lord Tordoff: Before the noble Earl replies, it seems strange that throughout the whole of his address to the Committee this afternoon the Minister talked about Railtrack. My question is: what is this Railtrack thing of which he speaks? It is not in the Bill. Any attempt to put it in the Bill is met with total derision from the Government—we must not call it that. It is either Railtrack or it is not Railtrack. Will someone please tell me what it is?
The Earl of Caithness: I hope that my noble friend Lord Peyton will feel that we could equal one or two of the miracles of the past. Railtrack is fully covered in the Bill by the expression "network operator". Perhaps my noble friend will therefore have in his mind that when we mention "network operator", it is most likely—but not 100 per cent. certain because of the situation of the Isle of Wight, of which we gave an example earlier—that it is the equivalent of Railtrack or something like the Isle of Wight railway operation after it comes into being after Royal Assent. If my noble friend does that, I believe that on reconsideration, he will find that it is a perfectly logical way in which the operation, with the network operator, will come into existence, we hope, on 1st April next year.
Lord Renton: Does my noble friend agree that the word "property", which is frequently used in the Bill, must inevitably include Railtrack?
The Earl of Caithness: There is no doubt that my noble friend is right, Railtrack will own a considerable amount of property: the track, the signalling and all that goes with them, which is an essential part. I hope that that also will reassure my noble friend Lord Peyton.
Lord Greene of Harrow Weald: I should like to ask a question. As I understand it, the Bill privatises parts of British railways. Apparently the Government are not privatising the track, so it is not in the Bill.
The Earl of Caithness: With respect, I think that that is a slight simplification. We are suggesting the privatisation of the freight side of British Rail, the franchising of the passenger services, the creation of a network operator which, in due course and at a suitable time, will be put into the private sector.
Lord Greene of Harrow Weald: Whether it be passenger or freight trains, both run on the same rails.
Lord Clinton-Davis: My noble friend has bowled the Minister out with a yorker. I thank Members of the Committee who have participated in the debate. I should like, in responding to it, to deal with points in the order in which they were raised. The noble Lord, Lord Peyton, accuses me of a kindliness which is wholly in character.
The Earl of Caithness: I thought he said it was out of character.
Lord Peyton of Yeovil: I did not accuse the noble Lord of anything; I merely said that the Opposition was showing on this occasion a degree of kindliness which was not always manifested from those Benches.
Lord Clinton-Davis: That is the purpose of Opposition—we are always kindly. I could not understand why, having this compelling reason for opposing Clause 78, the noble Lord, who has not yet answered the point I put to him, does not propose to vote against the proposal, because he has not yet given notice of his intention to do so.
Lord Tordoff: One of the reasons, I suspect, that he will not vote against it is that it has already been passed.
Lord Clinton-Davis: I am sorry, I missed the point. That is being extraordinarily kind, but he missed his chance.
Lord Peyton of Yeovil: That is right.
Lord Clinton-Davis: While we are being charged with kindliness on this occasion, I point out that we are often charged—notably by the noble Lord, Lord Boyd-Carpenter—with introducing wrecking amendments, whether or not the charge is made out Indeed, it was deeply embarrassing that he should have said that on the occasion when the Government were so soundly defeated on Monday of last week. This is not a wrecking amendment. The noble Earl has not accused us of that. It is an amendment to seek to improve something that possibly is unimprovable; possibly something that is totally impracticable.
It is odd, notwithstanding the arguments that have been adduced by the Minister, that Railtrack, with the extraordinary obligations that it will undertake—obligations that are far greater than those undertaken by the BAA in the context to which the Minister referred—is totally omtted from the Bill. The Bill is completely silent about this new entity. The noble Lord, Lord Tordoff, is quite right in the observations that he made in his intervention a moment or two ago. I too would like to see, as would the noble Lord, Lord Peyton, the whole concept decently buried. But then we would certainly be accused of introducing a wrecking amendment.
The noble Earl introduced a number of detailed objections to the points which we have raised. He objects to the huge discretion given to the Secretary of State. But it is better to deal with it in that way than to be totally silent about the whole wretched thing. Then he questioned whether a 10-year programme

357
was practicable in this particular context. I shall not embark upon that argument again; we had a long debate about it in another area of our considerations. I believe that it is possible.
The noble Earl then asked about equality of treatment. We were motivated to put down this particular part of the amendment because Railtrack is being given powers to favour certain operators in setting its charges—explicitly, freight. Perhaps that is something to which the Minister has already alluded. But what about open access passenger transport, possibly in the future? The net effect of that is that the franchising director's bill for subsidised services will increase. It is effectively a cross-subsidy from public to private sectors unless offset by a grant, as may be the case for freight under Clause 126. So there is a case for dealing with the point about equality of treatment. I hope that the noble Earl will concede that there is something in that argument.
I am sorry that I thought that the noble Lord, Lord Boyd-Carpenter, might have been responsible for the 1962 Act. I did not check up on the history—I forgot to do that—but I thought that there was something known as collective responsibility; so he cannot dismiss the responsibility that he has for that piece of legislation. The charge he makes is the usual one: that it is a wreckig amendment. He said that it is part of the Opposition's purpose to diminish privatisation by introducing these amendments. I make no secret of the fact that I do not like this Bill. But this amendment is perfectly sensible and coherent. Its main purpose is very clear; namely, to write into the Bill the duties of this organisation about which we hear from the Government from time to time but with which they eschew any dealing in the Bill itself. That is extraordinary. I suspect that the noble Lord wishes to intervene. He seems uncomfortable on his Bench.
Lord Boyd-Carpenter: I am obliged to the noble Lord for his concern for my comfort. He of course ignores the fact to which I invited the attention of the Committee a short time ago—that subsection (5) of Amendment No. 125ZC explicitly inhibits Railtrack from disposing of any of its property. It is perfectly clear, therefore, that that amounts to opposition to any form of privatisation as regards Railtrack.
Lord Clinton-Davis: The noble Lord could not contain his impatience. I intended to come to that point, and I now do so. It is not my purpose to avoid the substantial point that the noble Lord made.
We are not challenging the whole privatisation process here. Of course we are not. We say that in this particular respect it makes no sense for Railtrack to operate along the lines that the Government say it should do unless this provision is included. That is our case. I do not expect the noble Lord, Lord Boyd-Carpenter, to agree for one moment with that. I should feel very uneasy if he were to do so. But that is our point.
The noble Lord, Lord Annan, took a similar point of view to that of the noble Lord, Lord Peyton; namely, that it was better to have moved that Clause 78 should not stand part of the Bill. It is a noble
358
attempt to make more sense of what he believes is not a very sensible Bill—and I rather agree with him. But there it is. We have to do our duty as an Opposition to try to improve even that which is almost incapable of improvement.
The Minister was very dismissive (as he usually is) of everything I had to say; but I do not complain about that unduly. He asked the rhetorical question: what more could he do? First, he could start to improve the Bill. I believe it was Helmut Schmidt who said that the greatest need for improvement in the world—but I cannot recall the exact quotation so perhaps I should not continue with it. However, the Minister, while being coy about Railtrack, has been totally dismissive of our intentions.
The BAA does not compare with Railtrack in the significance of its obligations. I have listed them before. They are massive. It is totally wrong that the position should be left imprecise by simply referring in the Bill to a successor company. It does not make any sense at all. The Minister says that what we seek to do is already attainable under the Bill. If that is the case, it is a little odd that he should be as dismissive as he is. He says that he wants to encourage commercial or innovative thinking. So be it. I do not accept that commercial and innovative thinking is at all discouraged by Railtrack or by British Rail. It makes absolute nonsense of the Government's constant assertions that so much has been achieved by British Rail if they say over and over again that British Rail is lacking in commercial or innovative attention.
The Minister says that we have set out selective duties. The Government could improve on the proposal in that respect by saying, "We don't think that the Opposition have set out the duties sufficiently and therefore we shall improve on these new clauses". I would not object to that. It is a perfectly reasonable way of dealing with the situation. But he does not do that at all. He says that it is not necessary; but the grounds upon which he bases his argument are very elusive indeed.
The Minister referred finally to the point to which he had alluded earlier; namely, that all network operators were caught by this particular provision and therefore it was unnecessary to introduce Railtrack at all. It seems to me to defy common sense for the Minister to try to equate the Isle of Wight railway or similar undertakings with Railtrack. It makes no sense whatsoever. Indeed, it destroys the totality of his argument. Consequently, because I find the Minister's reply so terribly unconvincing, I think that we should test the view of the Committee on this matter.
Lord Annan: Before the noble Lord sits down, perhaps he would answer a question that I put to him about the selling of land by Railtrack. I raised that point because I feel that perhaps the best thing that Mr. Richard Crossman ever did when he was Minister of Housing was to persuade British Rail to sell a very large area of ground north of Marylebone Station on which a large and extremely well conducted housing estate has now been built. It seems to me that that is the kind of initiative from a public corporation such as British Rail which is an admirable way of arranging matters between British Rail and local government.
Lord Clinton-Davis: The noble Lord, Lord Annan, has a point. This provision could be improved by providing that British Rail would have discretion to sell land. That would meet the point raised by the noble Lord. But in a way that is a detail, though it is an important detail.
I feel that what is at stake here is the principle that Railtrack should be mentioned in the Bill. It is such an important entity that for it to be given such a Cinderella-like aspect seems to me to make no sense at all. That is the burden of the case that I put.
4.30 p.m.
On Question, Whether the said amendment (No. 125ZB) shall be agreed to?
Their Lordships divided: Contents, 77; Not-Contents, 128.

Division No. 1

CONTENTS

Airedale, L.

Jay, L.

Aylestone, L.

Jeger, B.

Beaumont of Whitley, L.

Judd, L.

Birk, B.

Kennet, L.

Blackstone, B.

Listowel, E.

Bonham-Carter, L.

Llewelyn-Davies of Hastoe, B.

Boston of Faversham, L.

Longford, E.

Bottomley, L.

McNair, L.

Broadbridge, L.

Mallalieu, B.

Bruce of Donington, L.

Mayhew, L.

Carmichael of Kelvingrove, L.

Merlyn-Rees, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Penrhos, L.

Monson, L.

Clinton-Davis, L

Mulley, L.

David, B.

Murray of Epping Forest, L.

Dean of Beswick, L.

Ogmore, L.

Donaldson of Kingsbridge, L.

Peston, L.

Dormand of Easington, L.

Pitt of Hampstead, L.

Elis-Thornas, L.

Prys-Davies, L.

Ewing of Kirkford, L.

Rea, L.

Falkland, V.

Richard, L.

Gallachcr, L.

Ritchie of Dundee, L.

Galpern. L.

Robson of Kiddington, B.

Gladwyn, L.

Rochester, L.

Glasgow, E.

Russell, E.

Graham of Edmonton. L.[Teller.]

Sainsbury, L.

Seear, B.

Greene of Harrow Weald, L.

Serota, B.

Greenhill of Harrow, L.

Shackleton, L.

Grey., E.

Stallard, L.

Hanworth, V.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Strabolgi, L.

Hayter, L.

Thomson of Monifieth, L.

Hilton of Eggardon, B.

Thurso, V.

Holme of Cheltenham, L.

Tordoff, L. [Teller.]

Houghton of Sowerby, L.

Wallace of Coslany, L.

Howie of Troon, L.

White, B.

Hughes, L.

Williams of Elvel, L.

Hunt, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Aberdare, L.

Brougham and Vaux, L.

Annaly, L.

Bruntisfield, L.

Archer of Weston-super-Mare, L.

Butterworth, L.

Cadman, L.

Arran, E.

Caithness, E.

Ashbourne, L.

Caldecote, V.

Astor, V.

Campbell of Alloway, L.

Attlee, L.

Campbell of Croy, L.

Balfour of Inchrye, L.

Carnegy of Lour, B.

Bessborough, E.

Carnock, L.

Blatch, B.

Chalker of Wallasey, B.

Blyth, L.

Clanwilliam, E.

Boardman, L.

Cochrane of Cults, L.

Boyd-Carpenter, L.

Colnbrook, L.

Braine of Wheatley, L.

Craigmyle, L.

360

Cranborne, V.

Merrivale, L.

Cullen of Ashbourne, L.

Mersey, V.

Cumberlege, B.

Morris, L.

Dacre of Glanton, L.

Mountevans, L.

Davidson, V.

Mowbray and Stourton, L.

Denham, L.

Moyne, L.

Denton of Wakefield, B.

Munster, E.

Donegall, M.

Murton of Lindisfarne, L.

Downshire, M.

Newall, L.

Eccles of Moulton, B.

O'Cathain, B.

Elliot of Harwood, B.

Orkney, E.

Elliott of Morpeth, L.

Orr-Ewing, L.

Elphinstone, L.

Park of Monmouth, B.

Erroll of Hale, L.

Peyton of Yeovil, L.

Faithfull, B.

Platt of Writtle, B.

Ferrers, E.

Plummer of St. Marylebone, L.

Finsberg, L.

Porritt, L.

Flather, B.

Rankeillour, L.

Foley, L.

Renton, L.

Fraser of Carmyllie, L.

Richardson, L.

Fraser of Kilmorack, L.

Rippon of Hexham, L.

Goschen, V.

Rodger of Earlsferry, L.

Hailsham of Saint Marylebone, L.

Romney, E.

St. Davids, V.

Harding of Petherton, L.

Saltoun of Abernethy, Ly.

Harmsworth, L.

Sanderson of Bowden, L.

Harrowby, E.

Sandford, L.

Hayhoe, L.

Shuttleworth, L.

Henley, L.

Soulsby of Swallham Prior, L.

Hesketh, L. [Teller.]

Strathcarron, L,

HolmPatrick, L.

Strathclyde, L.

Hooper, B.

Strathmore and Kinghcrne, E.[Teller.]

Hothfield, L.

Howe, E.

Swinfen, L.

Huntly, M.

Swinton, E.

Jellicoe, E.

Terrington, L.

Kimball, L.

Teviot, L.

Kinnaird, L.

Thomas of Gwydir, L.

Kinnoull, E.

Trumpington, B.

Knollys, V.

Ullswater, V.

Lauderdale, E.

Vaux of Harrowden, L.

Leigh, L.

Vivian, L.

Lindsay. E.

Wade of Chorlton, L.

Long, V.

Wakeham, L. [Lord Privy Seal.]

Lucas, L.

Lyell, L.

Waverley, V.

Mackay of Ardbrecknish, L.

Westbury, L.

Mackay of Clashfern, L.[Lord Chancellor.]

Willoughby de Broke, L.

Wise, L.

Macleod of Borve, B.

Young, B.

Mancroft, L.

Zouche of Haryngworth, L.

Marlesford, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.38 p.m.
[Amendments Nos. 125ZC and 125ZD not moved.]
Clause 79 agreed to.
Clause 80 [Transfer to the Secretary of State or the Franchising Director of the Board's function of making transfer schemes]:
Lord Ewing of Kirkford Lord Ewing of Kirkford moved Amendment No. 125ZDA:
Page 90, line 24, at end insert ("and the details of any such transfer shall be included in the National Rail Statement published in accordance with Clause (National Rail Statement)").
The noble Lord said: For the convenience of the Committee, in moving Amendment No. 125ZDA I shall speak also to Amendment No. 125ZH. in the names of my noble friend Lord Carmichael of Kelvingrove and the noble Lord, Lord Tordoff. That being a new clause it is the principal proposal to which I shall direct my remarks.
Amendment No. 125ZDA is a paving amendment to Amendment No. 125ZH. They are designed to achieve the publication of a national rail statement each two years, which will cover the period ahead of 10 years. Let me say at once that having listened to the last debate, when the noble Lord, Lord Peyton of Yeovil, chastised my noble friend Lord Clinton-Davis for being helpful to the Government and the noble Lord, Lord Boyd-Carpenter, chastised him for hindering the Government, I feel that I must bare my soul to the Committee and confess that the new clause is designed, without a shadow of doubt, to be helpful to the Government. I apologise profoundly to the noble Lord, Lord Peyton of Yeovil, but then I am a generous chap. It has always been in my nature to be as helpful as I possibly can. Having laid the groundwork, I am convinced that I shall persuade the noble Earl, Lord Caithness, to accept the proposal.
During the passage of the Bill in Committee in another place the transport Minister, Roger Freeman, indicated that the publication of Railplan would continue. But to this da—and there has been ample opportunity—we have had no indication as to the shape or form of that publication. Indeed, in his statement during the Committee stage of the Bill in another place Roger Freeman made clear that he was not sure what exact form and shape Railplan would take.
The Ministers say that Railtrack is not mentioned in the Bill. But it is important to recognise that in his statement in another place Roger Freeman made it clear that Railtrack, being in the public sector, would take the lead in the publication of Railplan. Our new clause is designed to put shape and form to Roger Freeman's proposal that the publication of Railplan should continue albeit under the different name of the "National Rail Statement".
The Bill contains a proposal for three separate aspects for the future of the railway network in this country. We have the franchising director on the one hand, the regulator on the other and Railtrack as the third pillar of the three. Under the terms of the Bill the franchising director and the regulator will both be required to publish an annual report. I am assuming, and the Minister will confirm whether or not I am right, that Railtrack will also be under an obligation to publish an annual report and strategy proposals.
Our proposal brings those three reports together in an understandable fashion so that first, Parliament, secondly, the public, and thirdly (of equal importance) all three elements of the franchising director, the regulator and Railtrack, can understand clearly exactly what part each separate component of the set-up is playing. One of the problems of the Bill is that there is a proliferation of organisations. Each time either the Minister in your Lordships' Chamber or in another place says that it is the intention of Her Majesty's Government to issue guidance and objectives to the various component parts, I must be honest and say that it strikes some fear and concern in my heart. There is a great danger that the proliferation of those bodies—the three to which I referred and no doubt others —will lead also to a proliferation of
362
guidance and objectives. It is possible, because of the way in which the Bill was drafted and the duties laid upon the component parts of the proposed future arrangements, that each different part could have different guidance and objectives placed upon it.
All we are seeking to do in the most helpful manner —I am being sincere when I say that—is to place upon the Secretary of State an obligation to publish what would be the equivalent of Railplan but would be known as the "National Rail Statement". It would cover all three component parts—freight as well as passengers—and give us a co-ordinated approach and an opportunity to see in a co-ordinated fashion exactly what the future holds or what the future plan is for the 10 years ahead.
We are not talking of investment. It is noticeable that the earlier clause does not refer to investment; it talks of strategy. I am the first to accept the strictures of the noble Lord, Lord Peyton of Yeovil, that one can publish one's desires but the heavy hand of the Treasury could easily frustrate the desired plan for the future of anything for which the Government are responsible. But unless there is a publication in the co-ordinated fashion indicated in the new clause in regard to the future proposals for the strategy of the rail network in this country, we will not know what investment is required. We can argue about investment once we have seen the proposals for the future development of the rail network throughout Britain.
There is a parallel to this and I want to leave this thought with the Minister. Certainly in my time as health Minister in the Scottish Office—I am sure that it happened also in England and Wales—it was always the position that governments published their advance building programme for hospital buildings, health centres and all those buildings connected with the running of an efficient health service. We argued about the investment afterwards. We argued with the Treasury sometimes in bilateral discussions in relation to priorities and where the money should be spent. Sometimes that meant projects being pushed back five or six years, and in one case 25 years, until the money was available. But at least people in the country knew that such-and-such a district general hospital was to be built in a specific location and such-and-such a hospital would be taken out of service.
All I am saying is that we should have something similar in relation to the future of the rail network in this country. It is for that reason, in that helpful fashion, that I tabled the amendment. The transport Minister, Roger Freeman, has not been able to come up with any proposal to meet the commitment that he made during the Committee stage of the Bill in another place. We are therefore attempting to help to put flesh on the bones of the promise that he made by proposing the amendment and the new clause. I beg to move.
The Earl of Caithness: I am grateful to the noble Lord, Lord Ewing of Kirkford, for explaining his amendment. I wish to make absolutely clear that the shortness of my reply is no discourtesy to the noble Lord. The reason my reply is short is that, as many of your Lordships will recall, in Committee on 1st July

363
the noble Lord spoke for longer than he did today. His words can be found in col. 950. He spoke to his then very similar Amendments Nos. 3 and 6 which, speaking from memory, were grouped with Amendment No. 1 in the name of the noble Lord, Lord Tordoff. Those amendments were discussed, and I responded to the noble Lord's concerns. The noble Lord will recall that I mentioned the amendments specifically:
"I turn, secondly, to the matter of national rail strategy —I refer to Amendments Nos. 3 and 6, moved by the noble Lord, Lord Ewing of Kirk ford".—[Official Report, 1/7/93; col. 969.]
That is why I shall not deal at length with the noble Lord's points. They are not unimportant, but we have already been over this ground.
I should like to tell your Lordships exactly what the Government's view is on the matter. We believe that a strategy document of the type envisaged by the amendments would he inflexible and likely to be out of date before it was implemented. A centrally imposed strategy document would be quite inappropriate for the new privatised railway. Privatisation is the Government's strategy for the railways into the 21st century. That is clear, and it is a sensible and logical policy. It was a strategy outlined in last year's White Paper and fleshed out in the Railways Bill. The strategy provides for all passenger services to be franchised; Railtrack to be set up as a government-owned company responsible for track and infrastructure; the sale of freight and parcels business; a new right of access to the network for private operators; and the establishment of a rail regulator and franchising director.
Under the new system the main responsibility for many aspects of planning will rest with Railtrack. It will be responsible for infrastructure investment and will need to be in close touch with others who have a strategic interest in new infrastructure projects. The franchising director will also want to take a long-term view about the future of passenger services and how changes in demand may lead to changes in the services it wishes to franchise and the facilities that will be required from Railtrack. As the private sector becomes increasingly involved in railway services it will enter direct negotiations with Railtrack about strategic developments. It is for that reason and the reasons I mentioned earlier that suddenly to bring the Secretary of State back into it will, we believe, do nothing but ossify the situation. It would mean that one would have to try to produce a blueprint which would be out of date before it was even published, and it would curtail the flexibility which the Government are trying to build into the railways for the future.
Lord Tordoff: In some ways that is an amazing reply. The whole of British industry does indicative planning at least on a 10-year and very often a 30-year basis. Frankly, to suggest that that ossifies matters is ludicrous.
The Earl of Caithness: I am grateful to the noble Lord, Lord Tordoff, for his intervention. I did not say that the plan indicated by the noble Lord would ossify matters. I referred to the amendment whereby the noble Lord, Lord Ewing, tried to collect together all
364
the various aspects that he mentioned. He mentioned three in particular. I said that the ossification would result from the time taken by those separate organisations to make submissions to the Secretary of State and for the Secretary of State to produce the document.
Lord Tordoff: Perhaps I should read the Official Report tomorrow in order to clear my mind on the matter. What I find very difficult to get to grips with is the suggestion that somehow in future the Secretary of State will simply take his hands off everything and it will run on its own. The point made so capably by the noble Lord, Lord Ewing, is that there will be pieces of a jigsaw puzzle and somewhere they have to mesh; otherwise, we will have the kind of thing that we used to see in advertisements for The Times newspaper. Perhaps noble Lords recall the picture of the building of a huge motorway bridge which missed in the middle by about 5 metres. The slogan ran, "If only they had been better informed". It seems to me that that is what lies behind the amendment. It is a method of making sure that everybody knows what everybody else is doing. It is not a question of laying down the thing in concrete in any way. It is clear to me that the Government do not want to have any hand in a rail strategy for this country beyond the point at which this Bill passes into law.
Lord Ewing of Kirkford: Before the Minister responds to the noble Lord, Lord Tordoff, perhaps I may ask whether he can say at this stage how the commitment of the transport Minister, Mr. Roger Freeman, will be discharged and .what form Railplan will take once privatisation is in operation. The Minister has given a clear commitment that Railplan in a different form will continue to be published but we have not been told how. Perhaps the noble Earl, in his usual helpful way, can tell us exactly what stage the Government have reached on the issue.
The Earl of Caithness: I deal first with the point raised by the noble Lord, Lord Tordoff. I understand the difference of view between the noble Lord and the Government on the issue. The Committee decided upon that fundamental issue when it dealt with Amendment No. 1. I am still not persuaded that the noble Lord is right. Although I understand that the noble Lord is firm in his belief, in my view what he proposes will not help the situation.
If I may refer to the point raised by the noble Lord, Lord Ewing, on Railplan, that will be prepared by, and be the responsibility of, Railtrack, not the Secretary of State. That is what my right honourable friend the Minister for Transport has said and how his particular comment will be implemented.
Lord Ewing of Kirkford: With great respect, that is not what Roger Freeman said. He said that Railtrack, being in the public sector, would take the lead. I assumed from that that if someone or some organisation was taking the lead others would follow. I should like to know who is following the leader. Who else will contribute to Railplan under a different name

365
led by Railtrack? Roger Freeman has said that Railtrack will take the lead, so others must be following. I should like to know who the others are.
The Earl of Caithness: I do not have the advantage of having before me what my right honourable friend the Minister for Transport said at that time. In order to give the Committee the right answer I ought to look carefully at what my right honourable friend said. All I say to the noble Lord, Lord Ewing, is that my advice is that the continuation of Railplan, in whatever form, will be by Railtrack.
Lord Tordoff: That may be all very well up to a point while Railtrack remains in the public sector. What guarantee is there that when it gets into the private sector Railplan will still be produced?
Lord Ewing of Kirkford: I have listened to the reply. I am grateful to the noble Lord, Lord Tordoff, for supplementing my contribution in such an effective way. I should like to test the feeling of the Committee on this important matter.
4.59 p.m.
On Question, Whether the said amendment (No. 125ZDA) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 120.

Division No. 2

CONTENTS

Airedale, L.

Hunt, L.

Attlee, E.

Jay, L.

Aylestone, L.

Jeger, B.

Beaumont of Whitley, L.

Judd, L.

Birk, B.

Kilbracken, L.

Blackstone, B.

Listowel, E.

Bonham-Carter, L.

Llewelyn-Davies of Hastoe, B.

Boston of Faversham, L.

Longford, E.

Bottomley, L.

McNair, L.

Brooks of Tremorfa, L.

Mallalieu, B.

Bruce of Donington, L.

Mayhew, L.

Carmichael of Kelvingrove, L.

Merlyn-Rees, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Penrhos, L.

Mulley, L.

Clinton-Davis, L.

Murray of Epping Forest, L.

David, B.

Ogmore, L.

Donaldson of Kingsbridge, L.

Peston, L.

Dormand of Easington, L.

Pitt of Hampstead, L.

Elis-Thomas, L.

Prys-Davies, L.

Ewing of Kirkford, L.

Rea, L.

Falkland, V.

Richard, L.

Gallacher, L.

Ritchie of Dundee, L.

Galpern, L.

Russell, E.

Geraint, L.

Seear, B.

Glasgow, E.

Serota, B.

Graham of Edmonton, L.[Teller.]

Shackleton, L.

Stoddart of Swindon, L.

Greene of Harrow Weald, L.

Strabolgi, L.

Greenhill of Harrow, L.

Thomson of Monifieth, L.

Grey, E.

Thurso, V.

Hanworth, V.

Tordoff, L.[Teller.]

Houghton of Sowerby, L.

Wallace of Coslany, L.

Howie of Troon, L.

White, B.

Hughes, L.

Williams of Elvel, L.

NOT-CONTENTS

Alexander of Tunis, E.

Bessborough, E.

Annaly, L.

Blatch, B.

Archer of Weston-Super-Mare, L.

Blyth, L.

Boardman, L.

Arran, E.

Boyd-Carpenter, L.

Astor, V.

Braine of Wheatley, L.

366

Brigstocke, B.

Lindsay, E.

Brougham and Vaux, L.

Long, V.

Bruntisfield, L.

Lucas, L.

Butterfield, L.

Lyell, L.

Butterworth, L.

Mackay of Ardbrecknish, L.

Cadman, L.

Mackay of Clashfern, L.[Lord Chancellor.]

Caithness, E.

Campbell of Alloway, L.

Macleod of Borve, B.

Campbell of Croy, L.

Marlesford, L.

Carnegy of Lour, B.

Marshall of Goring, L.

Carnock, L.

Merrivale, L.

Chalker of Wallasey, B.

Mersey, V.

Clanwilliam, E.

Montagu of Beaulieu, L.

Cochrane of Cults, L.

Mountevans, L.

Colwyn, L.

Mowbray and Stourton, L.

Craigavon, V.

Moyne, L.

Craigmyle, L.

Munster, E.

Cranborne, V.

Murton of Lindisfarne, L.

Crickhowell, L.

Newall, L.

Cumberlege, B.

O'Cathain, B.

Dacre of Glanton, L.

Orkney, E.

Davidson, V.

Orr-Ewing, L.

Denham, L.

Park of Monmouth, B.

Denton of Wakefield, B.

Pearson of Rannoch, L.

Donegall, M.

Peyton of Yeovil, L.

Downshire, M.

Platt of Writtle, B.

Eccles of Moulton, B.

Rankeillour, L.

Elliot of Harwood, B.

Renton, L.

Elliott of Morpeth, L.

Rodger of Earlsferry, L.

Elphinstone, L.

Romney, E.

Faithfull, B.

St. Davids, V.

Ferrers, E.

Saltoun of Abernethy, Ly.

Finsberg, L.

Sandford, L.

Flather, B.

Shuttleworth, L.

Fraser of Carmyllie, L.

Simon of Glaisdale, L.

Fraser of Kilmorack, L.

Strathclyde, L.

Glenarthur, L.

Strathcona and Mount Royal, L.

Goschen, V.

Hailsham of Saint Marylebone, L.

Strathmore and Kinghorne, E.[Teller.]

Harmsworth, L.

Swinfen, L.

Harrowby, E.

Swinton, E.

Hayhoe, L.

Teviot, L.

Hemphill, L.

Thomas of Gwydir, L.

Henley, L.

Trumpington, B.

Hesketh, L.[Teller.]

Ullswater, V.

HolmPatrick, L.

Vaux of Harrowden, L.

Hooper, B.

Vivian, L.

Hothfield, L.

Wade of Chorlton, L.

Howe, E.

Wakeham, L.[Lord Privy Seal.]

Huntly, M.

Hylton-Foster, B.

Waverley, V.

Jenkin of Roding, L.

Westbury, L.

Kimball, L.

Wharton, B.

Kinnoull, E.

Willoughby de Broke, L.

Knollys, V.

Wise, L.

Lauderdale, E.

Young, B.

Resolved in the negative and amendment disagreed to accordingly.
5.7 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 125ZE:
Page 90, line 27, at end insert:
("() Where the Secretary of State, in exercise of the powers conferred upon him in subsection (1) above, directs the Board to secure the disposal of any subsidiary principally concerned with the transport of goods, it shall be a condition of the disposal that the persons acquiring control of the subsidiary shall continue for the relevant period to use railway services for the movement of goods as far as reasonably practicable to the same extent as applied prior to the disposal.
() In this section, "the relevant period" means the period beginning with the date of the disposal and ending on the fifth anniversary of the disposal.

367
() In this section, "goods" includes mail, parcels, animals, plants and any other creature, substance or thing capable of being transported, but does not include passengers.").
The noble Lord said: The purpose of the amendment is to ensure that the private sector will continue to use rail if it has bought the franchise for the freight and parcels subsidiaries. As drafted Clause 8 does not provide any guarantees that privatised rail freight and parcels companies will continue to use the railways. There is nothing to prevent those companies being acquired by existing road hauliers who could promptly move the former British Rail traffic to road. That would liquidate a very important part of rail assets.
As we heard during the two previous debates, there is no strategy to guide the future of rail use. So if this clause is not amended in the way we suggest it is possible that we shall lose a certain amount of rail infrastructure which might have a deleterious effect on other parts of the network. Such an outcome would be contrary to the Government's stated aim of transferring freight from road to rail.
This outcome may not even result from any bad feeling towards rail on the part of the new owners. The Government have already recognised that a track charging regime open to unbridled market forces could work against the use of rail for freight. That is the reason for the elaborate compensation system set out in Clause 124. Nevertheless, the continuing confusion surrounding Railtrack and the fragmentation of the industry in general could lead to freight operators throwing in the towel. The Government should accept this amendment which provides a minimum degree of protection for rail freight and for the environment.
If the Minister reads the amendment, he will see that it has been carefully worded and that "the relevant period" means
"the period beginning with the date of the disposal and ending on the fifth anniversary of the disposal".
It is not a case of writing the provisions in stone; it is a case of providing a breathing space so that when the rail strategy is ultimately brought forward it will not already have been debased. There is a possibility that the track and service areas could be debased because of a lack of protection. I beg to move.
Lord Boyd-Carpenter: The effect of the amendment, if not its purpose, must be to make the acquisition of any of these properties less attractive than might otherwise be the case. The five-year rule that there must be a similar movement of goods,
"as far as reasonably practicable to the same extent as applied prior to the disposal",
ignores the possibility that during that five-year period there may be a serious slump and the market for the movement of goods may be reduced. The purchaser, however, is apparently to be compelled to maintain during the whole of that five-year period,
"as far as reasonably practicable",
the level of rail usage which had existed previously. It seems to me that that will make the acquisition of any of these properties less attractive—but no doubt that is part of its purpose.
368
On a separate point, I am fascinated by the last sentence of the amendment which defines "goods" as including,
"mail, parcels, animals, plants and any other creature, substance or thing capable of being transported".
As the definition covers animals and plants, what other creature is contemplated? Is it insects or mosquitoes? What is contemplated?
Lord Carmichael of Kelvingrove: Mosquitoes and other such insects usually take a piggyback when they travel by rail. Obviously, there are problems with this, but then there are problems whichever way one looks at it. Looking at rail in the longer term, we have suggested a period of five years in the amendment. The Minister could suggest a different period.
I am sure that the Minister will remember that the Government, through the then Minister, the right honourable Mr. Malcolm Rifkind, made it quite clear that they would do everything possible to transfer goods from road to rail. I have been involved in transport for long enough to know that there is no magic wand for doing that. The railways' methods of handling goods are improving all the time. All that I ask—and all that the amendment seeks to do—is to help Mr. Rifkind's dream to come true and for us to have a decent transfer of goods from road to rail. We hope that from the moment that that movement begins, there will be something for the goods that used to be carried by road to move on to and that rail will be able to play its part. It is a fairly simple amendment and we accept that the Minister may want to change it slightly. As I am sure the Minister is aware, the definition of "goods" is taken from page 85 of the Bill. I look forward to his reply.
5.15 p.m.
The Earl of Caithness: I can appreciate the sentiment which lies behind this amendment. if not the substance of the amendment itself. The Government share the widely held view that freight should be transported by rail wherever that makes commercial sense. I have no need to remind the noble Lord, Lord Carmichael, that in recent months the Government have announced a range of measures to help the rail freight industry. Copies are available in the Library. At the heart of our plans is the knowledge that the introduction of competition and private sector skills can restore the fortunes of the industry. We discussed that earlier in our Committee proceedings.
I believe that the amendment falls into the trap of believing that freight should go by rail almost irrespective of the financial cost. That is no way to safeguard the future of the industry. It is merely a recipe for stagnation and inefficiency.
My noble friend Lord Boyd-Carpenter was right to bring to the Committee's attention how variable the market can be over a five-year period and the consequent down side of that. In order to secure its place in the market, rail must show that it can offer advantages to the distribution manager that other transport modes cannot match. It already has significant advantages. Where volumes are sufficient (as in coal and iron ore, for example), rail can be highly competitive even for quite short journeys.

369
Where distances are long and speed is at a premium, rail can also be highly competitive—for example, the Post Office attaches high value to the mail train service currently operated by BR's rail express systems. The opening of the Channel Tunnel will also open up new opportunities for rail freight. I fear that all too often the media and others try to sell the prospects for rail freight short. Despite everything, it remains a major industry with a shifting portfolio of traffic, still capable of winning new traffic against competition. No doubt the noble Lord was as pleased as I was to see the recently published BR annual report highlighting major new contracts for the rail freight sector, against the prevailing downwards trend.
Our aim in transferring the BR businesses to the private sector is to enhance their long-term prospects as rail-borne operations. It is a fact that overall rail freight has undergone a prolonged period of decline while in public ownership. Now is the right time to let the private sector have a go.
However, I do not believe that it would be right to force businesses to use rail, any more than it would be right to force them to use any other form of transport. Keeping freight on rail means providing attractive, affordable services which can pay their way without the aid of state coercion.
With regard to the interesting exchange between my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Carmichael of Kelvingrove, I thought for a moment that, being a good Scot, the noble Lord, Lord Carmichael, might move from mosquitoes to midges. Some of those who have been bitten to death would not mind if one or two midges took a piggyback elsewhere from the west coast of Scotland. I can assure the Committee that the definition of "goods" is in Clause 76(1).
Lord Carmichael of Kelvingrove: I am grateful to the Minister for his reply, and especially for emphasising the commitment to rail freight. All that we were trying to ensure in this amendment was that if part of the rail freight business was purchased by a road freight group which was merely after the traffic, it could not immediately devalue the infrastructure of the railways. We are still a bit concerned about what will happen if too many subsidiaries are purchased for the deliberate purpose of transferring their traffic onto the roads because that would reduce the possibilities of expanding railway services.
As I am fairly confident that the Minister is not likely to give away any more than he has already done, we shall take the amendment away, read what the Minister has said and compare that with the statements made by Mr. Rifkind and with the booklet which the Minister has placed in the Library. I have a copy of that booklet and have read it. In the meantime, we shall take the amendment away and consider whether there is any way of raising this important point at a future stage in our consideration of the Bill. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 125ZF:
After Clause 80, insert the following new clause:
("Register of railway lands
.—(1) Within two years of the passing of this Act, or by 1st January 1996, whichever shall be sooner, the Board shall compile and make available to local authorities and such other parties as the Secretary of State may from time to time determine, a register of railway lands.
(2) The register of railway lands shall classify all land holdings of the Board, its subsidiary companies and all publicly owned facility owners, except those to whom an exemption has been granted under section 17 of this Act, into—

(a) land required for the safe and efficient operation of railway services, whether passenger or freight;

(b) land required for other purposes connected with the operation of railway services or businesses related to their operation;

(c) surplus railway sites, being all areas of land in the ownership of any of the bodies mentioned above which are not required for either of the above purposes.

(3) In respect of all surplus railway sites falling within subsection (2) (c) above, the Board shall send to each local authority in whose area surplus railway sites exist a list of the sites concerned.
(4) Any local authority which receives a list of surplus railway sites shall examine the list to determine whether in its opinion any or all of the sites may in the future be required for transport use and for any such site the authority may issue a transport protection notice requiring the railway land owner not to dispose of or permit development on the site or any part of it such that the land would no longer be available for transport use.
(5) Any local authority which receives a list of surplus railway sites may require the Board to furnish that authority with a statement of the intentions of the Board or other railway land owner for disposal or development of any or all of the sites concerned and any such disposal or development shall have the prior approval of the authority concerned.
(6) Where there are no proposals for disposal or development within two years of any surplus railway site, the local authority in whose area the site is situated may serve a railway land improvement notice requiring the railway land owner to undertake works necessary to bring the land to a condition acceptable to that authority and to maintain it in that condition.
(7) A railway land owner served with a notice under either subsection (4) or subsection (5) above may if he considers the terms of the notice unreasonable appeal to the Secretary of State for the Environment who may require the terms of the notice to be enforced or varied after consideration of submissions from the local authority and the railway land owner.
(8) For the purposes of this section—

"local authority" means any County Council, District Council, Regional Council, Islands Council or London Borough Council, the Common Council of the City of London or the Council of the Isles of Scilly;

"make available to" means available for inspection at the Board's Head Office and such other locations as the Board may determine or to provide copies on payment of such sums as are necessary to reimburse the costs of reproduction of the complete register of such parts of it as may be required;

"notice" means notice in writing; and

"railway land owner" means the Board or any of its subsidiary companies (whether wholly or jointly owned) or any publicly owned facility owner to whom an exemption has not been granted under section 17 of this Act.").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 125A in the name of the noble Lord, Lord Wade of

371
Chorlton. Amendment No. I 25ZF is a necessary addition to the Bill to allow action to be taken to deal with dereliction from the past, and the consequences of the further abandonment of railway facilities resulting from privatisation. The British Railways Board is one of the country's largest landowners and much of the land is no longer in operational use. Throughout the country, large tracts of urban land, meandering alongside railways, abandoned stations and goods yard sites lie disused and derelict, attracting the attention of vandals and causing blight to surrounding properties. At an earlier stage, the noble Earl, Lord Attlee, mentioned the vandalism of old railway property.
Future prosperity depends upon creating an attractive environment to draw in much needed investment. That applies to the country as a whole, but particularly to the railways which may want to get rid of some of their Victorian aspects many of which were good, but there is also a great deal that was squalid. That will not be possible if the scars of history disfigure cities, towns and the countryside. The new clause aims to deal with the situation in the following way. We suggest that the British Railways Board sets up a register of all railway land, regardless of current ownership or use. That is necessary, because ownership will diversify under the Government's proposals, and the problem requires co-ordinated action throughout the country.
The board would notify local authorities of land not in operational use. Three categories of land can be foreseen. First, land which could be used again for transport purposes; secondly, that which is already proposed for development; and, thirdly, that which has no identifiable transport or development use. Local authorities should have the power to issue transport protection notices for land in the first category, which may well be part of continuous route corridors, and improvement notices for land in the third category, or if development of land in the second category would be delayed. That does not apply within two years. The Secretary of State for the Environment could arbitrate in the case of disputes.
Another example of the need for power to deal with the problem of disused railway land is to be found in Bradford, where a new station for PTA metro train services, longer distance regional railways and InterCity trains have been provided with support from the Government, the ERDF and local authorities. The old station was required for a large redevelopment jointly by the Burton Group and British Railways Board Property Group. The result was that for over two years passengers had to pick their way through the derelict hulk of the old station, with the associated risks to safety, while the developers prevaricated over whether they could afford to complete the new shopping centre. More public money has had to be spent to provide shelter and passenger access to what should have been within the original development scheme.
To be fair, the developers have met their share of the relocation costs, but have then been content to walk away leaving an incomplete station and surroundings which were an eyesore and a security
372
risk for many using the station. Public authorities in the form of the West Yorkshire PTA, Bradford City Council, Regional Railways and the Safer Cities Project have all had to find scarce funds for the necessary remedial work. That saga may be a precursor of the future when the grandiose plans of the new railway operators will be dropped like hot bricks as their financial fortunes fluctuate leaving railway land derelict, under-used and perhaps even more dangerous and unsightly than some of it is at present.
The new clause aims to tackle not just current. problems, but to provide the means to limit those arising in the future. It is hoped that the Government will recognise that action is required and adopt the spirit, if not the details, of the amendment. I beg to move.
Lord Wade of Chorlton: I hope that the Government will not accept Amendment No. 1252:F. although I accept that it deals with some of the issues to which I refer in my amendment which would allow disused railways to be taken over or used by local authorities. The amendment places too much onus on the rail operator. It expects the rail operator to maintain the line until the local authority decides whether it wants to use it. That is to place an unfair responsibility onto the rail operator. If the rail operator no longer needs to use the railway line, the local authority must decide whether it wants it. It must make the decision immediately, on the terms I have included in my amendment. The matter would end there if the local authority did not need the land.
Amendment No. 125ZF is unnecessarily complicated. It places an unacceptable burden onto the rail operator. However, in Amendment No. I 25A I have tried to simplify the arrangement whereby, in the event of a rail operator no longer wishing to use the line, the local authority will have the first offer. It will then have to bring the use of that railway line into its structure plans and decide whether it wants it. If it does not want it, the rail operator would he able to dispose of it however it saw fit. If the local authority does want it, it would have to pay its transport value and not buy it at some alternative value that the rail operator may feel could arise in the future. The price would have to be based on that of a transport facility.
I am looking at both the rural and the urban economy. On the rural side, one is worried that it might become no longer economically viable for a franchisee to use a line for freight, but there might be other uses for it which could be of considerable benefit to the rural economy. Rural lines form important links between towns. If they are not used for rail they could be easily converted to road use. They could be converted for short distances. They could be used for other activities. The local authority may feel it appropriate to act as the lead organisation to bring in other sources of finance and continue to operate a rail line which was seen locally to be of considerable importance in providing jobs.
We have already seen examples of links into urban areas from rural areas being no longer used. However, they are important links which could be used for other services into urban areas. I am aware of an example in

373
my town of Chester. There is a disused railway line that was used to take milk from the Cheshire farms into Manchester. The train picked up the milk in the mornings in Cheshire and took it to the dairies in Manchester. That line is now disused. It could be of enormous value in providing an alternative route into Chester to resolve the traffic problems that exist in that town. Under the present system, there is no way the local authority could take over that railway line at a sensible price. The British Railways Board is looking for alternative uses that might arise in the future.
I hope that my noble friend the Minister will look seriously at the amendment. It is important for the rural economy and for urban areas. It acknowledges the important role which local authorities play in the development of the economy in their areas and the use to which railway lines could be put. They have already had to solve the problems of remaining open and maintaining links between the rural and urban areas. The amendment will enable local authorities to keep them open and to use them for the benefit of the economy in their areas.
5.30 p.m.
Lord Cochrane of Cults: I fear that the noble Lord, Lord Carmichael of Kelvingrove, is tending to freeze the assets of the railways into an immovable mould. I should find it extremely difficult to classify land at a certain date into the three categories that he suggested. Two might be possible, but the benefits to be gained from the exercise are far outweighed by the disadvantages of his proposal.
My noble friend Lord Wade touched on an important point; that is the need to preserve routes virtually in their entirety. Immense work was done by the committee of the Croydon Tram Link as to whether five houses should be knocked down in order to complete a route. It was obviously unwise—although it did not seem so at the time—to sell the land which had become redundant from railway use. Many lines had been built in that part of the country by entrepreneurs. However, a shortsighted view was taken and a great deal of trouble was caused. I hope that my noble friend will feel able to accommodate in some part the view of my noble friend Lord Wade of Chorlton.
The Earl of Caithness: I was interested to hear the phrase used by my noble friend Lord Cochrane of Cults about the amendment tabled by the noble Lord, Lord Carmichael. My noble friend said that it would freeze the assets of BR. I am sure that all Members of the Committee who were in the Chamber when we discussed the first amendment today were interested in the remarks of the noble Lord, Lord Carmichael of Kelvingrove. My mind goes back to not so many minutes ago when the noble Lord, Lord Annan, said what a wonderful thing Lord Crossman had done by forcing BR to sell surplus land at Marylebone Station because now there was a wonderful housing estate on it. The noble Lord, Lord Annan, made such an
374
impressive point that it was remarked upon by the noble Lord, Lord Clinton-Davis. But again we are now discussing the freezing of assets.
Perhaps it would be helpful to the Committee if I explained the present situation. Before even considering the sale of surplus land, BR (or in future Railtrack) will satisfy itself that the land will not be required for future railway purposes. In the case of potentially operational land—for example, disused trackbeds of no further use—BR notifies local authorities that it intends to sell so that it can make an approach to purchase the land for its own transport use (for example, light railway systems) at the earliest possible date. If there is no approach from the local authority and once the sale is decided, those with transport interests have every opportunity to bid, in common with other parties.
The future use of redundant railway land is a land use planning issue and the existing planning system is well placed to deal with such matters. Local planning authorities should, as now, have the lead role, not BR or Railtrack. In its guidance to local authorities (Planning Policy Guidance Note 4, Industrial and Commercial Development and Small Firms dated November 1992), the Department of the Environment stressed the importance of taking into account the potential future transport use of former rail corridors in drawing up its development plans and in planning decisions. Local authorities can, if they wish, allocate surplus railway land for transport purposes in development plans and reject planning applications for conflicting development. They can also make it clear in response to land searches that there are transport uses in prospect and that planning applications for non-transport uses would not be favoured. I know that that is of particular relevance to my noble friend Lord Wade of Chorlton, who has done so much for local areas and the North West. I believe that the planning guidance helps to satisfy my noble friend's anxieties.
The registration of operational land is an onerous and unnecessary requirement. As for the registration of surplus railway sites, this information is already available from BR. In addition, BR is already preparing a register of unused or under-utilised land for the DoE as part of the Government's initiative to encourage the use of surplus public land.
I believe that the present arrangements strike an appropriate balance between the need to dispose of public land, the need to safeguard potential transport land and the rights of land owners. Disposal procedures and the planning safeguards will, in principle, be unaffected by privatisation.
In the light of those existing safeguards, there seems no justification for the requirements that the two amendments proposed by the noble Lord, Lord Carmichael, and my noble friend Lord Oulton Wade. In particular with regard to Amendment No. 125A, the existing system does not cause the value of ex-railway property to be inflated by any development potential and does not require it to be offered to the local authority.
I hope that I have made the case for the retention of the existing system, which will not be affected by

375
privatisation. It takes into account the serious and real anxieties of my noble friend together with other matters which are relevant.
Lord Carmichael of Kelvingrove: I thank the Minister for his long and detailed reply. He is aware that one of the reasons for the interest in railway land and railway transport in general is the fact that transport is in a turmoil. Many ideas are being put forward. The situation in London is becoming so desperate that people are using the River Bus. That is a novelty but, sadly, I do not know how long the service will last.
I can see the situation as regards the railways being tied up with surplus land. I believe that local authorities in their transport planning proposals should be given every encouragement to move ahead as fast as possible and make decisions about which land they need. I agree with the Minister that the planning departments should decide such matters. However, at the end of the day we shall need a great deal of the existing railway track, particularly in city centres.
During our debates on the deregulation of the buses I was worried that there would no longer be centres in towns for the buses and coaches to stop. That is now the case and there is talk that Glasgow and Edinburgh coach stations are about to be sold. That is the kind of situation that we are trying to avoid.
I accept that my amendment is somewhat elaborate in proposing national surveys and registers of all railway land. However, the situation is not that bad because every region of the railway will have full records—at least I hope that they will—of all the land that they own. I am disappointed that the Minister is not giving a little more encouragement to local authorities to plan ahead as regards transport, because urban transport is in a mess. Once a length of railway track disappears there is no way of reinstating it. The noble Lord, Lord Cochrane of Cults, spoke about five houses that had been built on railway land and that it was no longer possible to reinstate the track. However, anyone who has been involved in the building of roads knows that if the department believes it necessary houses and almost ancient monuments are knocked down in order that the road can be built. I believe that the railways need rather more encouragement. However, I can see that they are unlikely to be given that encouragement.
Lord Wade of Chorlton: I raised the important issue about local authorities. I am grateful to my noble friend for explaining the system but it is a question of the price that the local authorities must pay for the land. In order for the local community to obtain full benefit from it, it is important that the local authorities should be able to take over the land at its transport value rather than at an inflated value which it may be considered that land could command were it put to alternative use. Perhaps my noble friend will think about that issue.
My noble friend gave me the courtesy of referring to me by my christian name. That reminded me of the fact that when I entered your Lordships' House I wanted to use my christian name but I was advised
376
that it could be mispronounced and mistaken for Elton. My noble friend made it clear that it could not be so confused and he pronounced it clearly.
Lord Carmichael of Kelvingrove: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 125ZG:
After Clause 80, insert the following new clause:
("Joint industry body,
.—(1) The Secretary of State shall establish the Railway Operators' Forum.
(2) The Railway Operators' Forum shall consist of—

(a) representatives of every person providing railway passenger or freight services within Great Britain;

(b) one person nominated by each Passenger Transport Authority or Regional Council in Scotland or County Council in England and Wales responsible for the payment of subsidies for railway passenger services and by London Transport;

(c) at least two persons nominated by the Central Rail Users' Consultative Committee.

(3) The Railway Operators' Forum shall, together with the Regulator, ensure that—

(a) the existing business systems of the British Railways Board are maintained as the basis for the future development of common systems available to every person providing railway services in Great Britain;

(b) there shall be published a national railway passenger timetable including all the services of every person providing railway passenger services in Great Britain;

(c) every person providing railway passenger services in Great Britain offers fares which permit the making; of a journey from any railway station in Great Britain to any other railway station in Great Britain at an inclusive fare using only one ticket or voucher issued at the station of origin or by an agent;

(d) every person providing railway passenger services in Great Britain offers or participates in schemes designed to reduce the cost of travel for persons who may be disabled or elderly and for children and for such other groups as may from time to time be determined;

(e) every person providing railway passenger services in Great Britain shall participate in inter -available and multi-journey ticketing schemes promoted by London Transport or a Passenger Transport. Authority or a Passenger Transport Executive or any other local authority that may from time to time promote such schemes, within the areas of those authorities;

(f) measures are taken to promote the development of economically and environmentally efficient intermodal freight transport;

(g) co-operation amongst operators of rail services is. promoted so as to maximise the economic, environmental and social effectiveness of the railway network in Great Britain;

(h) appropriate training procedures and standards are developed and maintained by all persons providing railway services in Great Britain.").

The noble Lord said: This amendment seeks to establish a railway operators' forum. The consultative document on franchising made much of the need for a joint industry body in which the operators could come together to resolve matters which need their co-operation. There are many issues on which the operators will need the assistance of some kind of central body. The most immediate is to oversee through-ticketing. In the first instance that can be facilitated by maintaining the computer system currently used by British Rail to allocate revenue between their existing businesses and profit centres.
The forum will also be able to investigate new technology. Similarly, the forum would form a consensus view for debating with the franchising director and the regulator matters relating to concessionary and discount fare schemes. Inclusion of PTAs, London Transport and other authorities which promote such schemes would also assist in that process.
The forum could also assist in determining formats for the provision of timetable information to enable a national timetable to be published. It would provide a single point of contact to streamline discussions of common matters between operators, Railtrack and the regulator.
The forum would be a trade association for railway operators. It would allow them to put their views on economic and environmental questions. As with other such bodies, the forum could be expected to give a lead in training, continuing the work of British Rail's training schemes in that respect. Finally, it will assist the forum to have the benefit of views through representations from a central committee.
Therefore, the purpose of the clause is to promote debate on those issues and to establish the Government's thinking as regards some kind of joint body for the industry which may be quite unrecognisable in five or 10 years time. If it is unrecognisable, I hope that it is for the better rather than for the worse. I beg to move.
Lord Peyton of Yeovil: I am deeply indebted to the noble Lord, Lord Carmichael. Whereas he could have embarrassed me by tabling an amendment which I should have found it difficult to vote against, he has given me the opportunity, which I always long for, to support the Government.
There is no possibility that I should be willing to support such an amendment as that moved by the noble Lord, great as is my regard for him. I am not capable of adding up the numbers which the proposed railways operators' forum would comprise nor, happily, can I envisage the nightmare which is likely to dominate its proceedings. Suffice it to say that it would be quite a large body. It would no doubt meet quite frequently. It would take up a great deal of time. For those two reasons it would be unlikely to command the constant attendance of the most able people and would be faced with a tissue of absolutely impossible tasks.
It would have to maintain the existing business of British Rail; to publish a national railway timetable in circumstances of very great difficulty; to ensure that there is through-ticketing and that multi-ticketing is preserved; to look after the disabled and take measures to promote the development of economically and environmentally efficient inter-modal transport. That is not all, but it is enough.
The tasks with which it would be faced would be huge. Its competence to deal with them would be inadequate. I believe that the difficulties of running the railways under the system, if it can be run under the system envisaged by the Government, would not be helped by the creation of such a ghastly body. I hope that the Government will give it short shrift.
5.45 p.m.
The Earl of Caithness: As so often on this Bill there is nothing between the noble Lord, Lord Carmichael of Kelvingrove, and the Government on the principle of the matter. Where we differ, as we have done in the past and as doubtless we will do again in the future, is on the question of detail.
The Government fully accept the need for future operators to be able to enter into joint arrangements in order to facilitate the provision of railway services in a multi-operator environment. In some cases, it will be a condition of the operator's licence that he participates in such arrangements. We have made it clear, for example, that all passenger operators will be required to participate in through-ticketing arrangements, and the Bill provides for this to be secured through licensing.
The Government have also said that operators will be expected to participate in common ticketing and revenue allocation arrangements, based at the outset on BR's existing systems. Again, we intend that this should be the subject of appropriate licence conditions. It is not necessary to establish a statutory body to secure this; the licensing obligation will be sufficient to ensure that suitable joint arrangements are put in place.
Nor do we need a forum to secure the publication of a national timetable. The Government have already made it clear that Railtrack will be required to secure the publication of a national timetable in the event that publication is not arranged by another party.
That already takes care of the first three topics in the noble Lord's amendment. Other aspects of the amendment have already been discussed- in earlier debates: for example, discount schemes and multi-modal ticketing; where those are the subject of requirements in franchise agreements, the agreement itself can make necessary provision to ensure consistency across the network. Training was raised in the noble Lord's earlier Amendment No. 19 discussed last Thursday, and I explained that this was essentially a matter of competence and standards, and as such would be covered by the operator's safety case. We have similarly earlier debated environmental and freight issues in general terms. I do not want to go over ground covered at length in our exchanges on the opening day of the Committee's proceedings.
Not only is it unnecessary to set up a single operators' forum in the manner suggested by this amendment; in the Government's view, it is also highly undesirable.
Once again this afternoon, I am very pleased to welcome the support of my noble friend Lord Peyton of Yeovil. He explained more clearly than I could the complications and bureaucracy which would be involved in the proposed unwieldy body.
I am sure that the Committee will agree that we need the flexibility to create the right structures for the wide range of tasks on the future railway. We have that flexibility now, with sufficient power to impose requirements, where appropriate, but also with the freedom for operators to develop their own arrangements within a competitive environment.
Lord Carmichael of Kelvingrove: Whether Members of the Committee believe it or not, I was in fact very glad to hear the remarks of the noble Lord, Lord Peyton. Indeed, when he started, I felt that he was on my side. However, he speaks so charmingly and I knew that, ultimately, he would go in the other direction. Despite what the noble Lord said, there will need to he some such body and the Minister seemed to agree with that view. Perhaps the detail in the amendment has been a little overdone.
I am told that until 1947 there was a body which carried out many of the activities mentioned in the amendment; it was known as the "Railway Clearing House". Indeed, the minor, independent and preserved railways have established a similar body. Somehow or other—and the Minister was quite open about this—we will need to have an organisation to cater for transfers and timetabling.
I do not know whether the noble Lord, Lord Peyton, has any experience of bus deregulation. Although Glasgow is a city that I know very well, I do not know which bus goes where. Even if I learned where they were going, because of the way in which they operate and change the routes, I would probably be out of date with my information within a very short period of time. As I said, there will, ultimately, need to be such a body.
I accept the fact that when we were drafting the amendments we were a little over-enthusiastic and, perhaps, made them a little over-elaborate. Perhaps our planning should have been done with other people, rather than just laying down basic guidelines. However, the Minister was more encouraging on this occasion than he has been with regard to other amendments. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 125ZH not moved.]
Clause 81 agreed to.
Clause 82 [Disposals by the Board and its subsidiaries]:
[Amendment No. 125ZJ not moved.]
Clause 82 agreed to.
Clause 83 [Directions to the Board about the exercise of rights conferred by holdings in companies]:
[Amendment No. 125ZK not moved.]
Clause 83 agreed to.
[Amendment No. 125,4 not moved.]
Clause 84 [Transfer schemes: general]:
[Amendment No. 125 AA not moved.]
Clause 84 agreed to.
Clauses 85 and 86 agreed to.
Lord Clinton-Davis Lord Clinton-Davis moved Amendment No. 125AB:
After Clause 86, insert the following new clause:
("Application of Acquired Rights Directive
.—(l) The Secretary of State shall ensure the adoption of measures necessary to protect the interests of employees and of persons no longer employed in the transferor's business at the time of transfer within the meaning of Article 1(1) of Council Directive 77/187/EEC (the Acquired Rights Directive) in respect of rights conferring on them immediate or prospective entitlement to old age benefits, including survivors' benefits, under supplementary schemes referred to in the Acquired Rights Directive.").
The noble Lord said: The above amendment deals with the application of the Acquired Rights Directive of 1977. The transposition of that directive has given rise to a substantial amount of litigation, so much so that the Transfer of Undertakings (Protection of Employment) Regulations 1981 has come under challenge at quite a considerable level; that is, not merely in this country but also elsewhere. Those regulations have the effect of transposing the 1977 directive into national law.
The substance of the challenge is that the TUPE regulations (as they have become known) do not fully transpose the Acquired Rights Directive in a number of material ways. The challenges have been different, but perhaps I may allude to the basic terms of the directive and some of the challenges which have recently arisen. The basic purpose of the directive is that the terms and conditions of employment cannot be worsened as a result of transferring an undertaking to another organisation. As I said, the 1981 regulations sought to transpose that purpose.
However, the trouble is that the regulations were clearly drawn up far too narrowly. In particular, for example, non-commercial operations should not have been excluded. In the recent case of Watson Rask v ISS the European Court of Justice held that the regulations applied where a canteen's management: was contracted out. The contract parties had wrongly believed that the regulations did not apply as the ownership of the facilities had not been transferred. I believe I am correct in saying that that was a Danish case.
There was another recent case where the court held that the employees could apply, the undertaking in refusing to be transferred, thus enabling them to claim constructive dismissal. Indeed, as I indicated before, a number of new disputes have arisen which, again, challenge the transposition of the directive.
Perhaps the most important element of the matter is that one of the assumptions that have been made up to the present time is that employees with less than two years' employment are not covered by the regulations because they are excluded from British employment protection legislation. Almost certainly that assumption is wrong so far as concerns any interpretation of the regulations. I cannot see anything in the directive which would go as far as justifying that proposition.
We are suggesting that there is a considerable measure of uncertainty affecting the Transfer of Undertakings (Protection of Employment) Regulations. Therefore, to enable the litigation to take its course, it would be far better simply to refer in the Bill to the Acquired Rights Directive. There is no doubt that that is the directive that applies. It is the directive that governs the whole situation. If the regulations are shown to be inoperative or wrong in some further material respect, it would help the Government's case to ensure that the purposes of the directive would apply. That would give the Government greater flexibility.
I shall no doubt be accused by the noble Lord, Lord Peyton, of, again, being unduly helpful. However. in the light of what I have said, I believe that it is important for the Government not to tie themselves

381
down to the specific regulations. I do not think that I need take the matter any further. I hope that the Minister will respond positively because it is not a particularly controversial issue. I shall listen with interest to what he has to say. I beg to move.
Lord Wade of Chorlton: I do not profess to be anything like an expert on such matters as is the noble Lord, Lord Clinton-Davis. However, I believe that I have some understanding of the situation as regards TUPE and the Bill. There will be a range of transfers in the Bill—for example, some of them will be on a contractual basis to which TUPE may or may not apply, whereas others may involve a complete transfer of an undertaking to which the directive would apply. I should have thought that it would be inappropriate to include a clause such as that proposed in the amendment.
As a result of legal proceedings, there will have to be a clearer definition of when TUPE applies and when it does not. Indeed, the noble Lord referred to a number of issues now coming forward which will help to clarify the position. However, I should have thought that it would be far better for the situation to be clarified and for each contractual arrangement that emerges from the Bill to be considered in the light of the arrangements made between the various parties as regards where TUPE applies and where it does not apply. T should have thought that that would emerge in the course of the normal commercial arrangements that will be entered into following the passage of the Bill. It is entirely inappropriate to insert a new clause which refers to the directive when the directive will apply to everyone concerned anyway. It does not need to be part of the Bill. I am not the expert on these matters that the noble Lord, Lord Clinton-Davis, is, but I believe the proposed new clause to be inappropriate. I trust that the Government will not accept it.
6 p.m.
The Earl of Caithness: I agree with my noble friend Lord Wade of Chorlton that the amendment is inappropriate and that the suggested words should not be put on the face of the Bill. Article 3.3 of the Acquired Rights Directive states clearly that it is not intended that the transferor's obligations in respect of employees' rights to pension and similar benefits shall be transferred to the transferee upon the transfer of an undertaking. That was not the principal purpose of the directive. However, there is a proviso to that paragraph, which provides that,
"Member States shall adopt the measures necessary to protect the interests of employees and of persons no longer employed in a transferor's business at the time of the transfer in respect of rights conferring on their immediate or prospective entitlement to old age benefits, including survivors' benefits under supplementary schemes."
The amendment merely repeats that obligation and imposes on the Secretary of State a duty to adopt the necessary measures. I can assure the Committee that the UK has already adopted those measures. The noble Lord raised the point that that has not gone entirely unchallenged but we believe that we have adopted the measures. Indeed I would go further. The
382
noble Lord, Lord Clinton-Davis, will be aware that the Trade Union Reform and Employment Rights Act 1993—I refer the noble Lord in particular to Section 33—amended TUPE so as to apply to all undertakings, not just commercial ones. The words of the directive and the words of TUPE are, it is believed, now consistent with each other. We hope that the measure will be in force on 30th August. I believe that it goes a long way to satisfying the concerns of the noble Lord, Lord Clinton-Davis.
I was expecting the noble Lord, Lord Clinton-Davis, to raise a point with regard to pensions. We shall be discussing that important issue in Committee next week. Today we have tabled further amendments to the pension schedule, about which I shall write to the noble Lords concerned, to enhance the protection provisions. Those amendments will, I believe, calm the fears of the noble Lord, Lord Clinton-Davis. From the expression of the noble Lord, Lord Tordoff, I believe that he, too, is a little calmer than he was a mere 30 seconds ago.
Lord Tordoff: I am grateful to the noble Earl for giving way. I do not know whether I am calmer than I was a minute or two ago. I shall not know that until I have read the text of the amendments and the notes which the noble Earl has been good enough to send to us. However, underlying all the points made today on the amendment that has just been moved, and the points that will be made when we discuss pensions next week, is a feeling, certainly on this side of the Committee—I believe this applies to the Back Benches of the noble Earl, too—that Parliament has an obligation to ensure that every possible means are taken of ensuring that rights which are at the moment enshrined are transferred. When Parliament wills that there will be a change of ownership, Parliament must also will the protection for the employees.
The Earl of Caithness: I hope that the noble Lord, Lord Tordoff, will be satisfied that what we propose provides the necessary assurances. Everyone in the Chamber is on common ground. I believe that the words of my right honourable friend the Secretary of State will be a further reassurance.
Lord Boyd-Carpenter: Will my noble friend make clear how he will convey this assurance to noble Lords? Is he proposing to write to us individually or to circulate a memorandum on the subject?
The Earl of Caithness: Amendments have been tabled. When I have tabled government amendments in the past—I know the noble Lord, Lord Clinton-Davis, will be reassured that there are no government amendments today—I have written to the noble Lord, Lord Clinton-Davis, and to the noble Lord, Lord Tordoff. I shall be only too happy to enclose a copy and a letter to my noble friend, given his interest in the matter.
Lord Clinton-Davis: The intervention of the noble Lord, Lord Boyd-Carpenter, is helpful. There is no reason why a monopoly of information should be available to those to whom the Minister writes. As this

383
should be the property of all Members of this Chamber, it might even be helpful to place the substance of the letters in the Library.
The Earl of Caithness: I am grateful to the noble Lord, Lord Clinton-Davis. I wish to reassure him. It has always been my habit to put copies in the Library because, although I write to a specific Member of the Committee, it is difficult to cover every Member of the Committee. That is why I make sure a copy is put in the Library.
Lord Clinton-Davis: That is extremely helpful. The Minister has clarified the whole position, and I am sure that he has fully answered the anxieties of the noble Lord, Lord Boyd-Carpenter. Clearly, these are matters that are the property of the whole Chamber. I do not know whether I should now approach this issue, in the light of what the Minister has said, with the measure of serenity which was implied in his observations. However, I shall certainly consider carefully what he said. The noble Lord, Lord Tordoff, summed up our concerns and the Minister has addressed that point. It is helpful that that should be on the record. If for no other reason than that, the debate is valuable.
There is substance in what the noble Lord, Lord Wade, said and in what the Minister said in accepting those observations. There was no intention ever on our part to push the issue to a vote. We merely wished to extract the assertions that the Minister has made which are extremely helpful. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 87 agreed to.
[Amendments Nos. 125AC and 125AD not moved.]
Clauses 88 to 90 agreed to.
[Amendment No. 125AE not moved.]
Viscount Goschen: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Sexual Offences Bill
6.8 p.m.
Read a third time, and passed.
Viscount Goschen: My Lords, I beg to move that the House do adjourn during pleasure until 6.20 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.9 to 6.20 p.m.]

British Nationality (Hong Kong) (Selection Scheme) (Amendment) Order 1993
The Minister of State, Home Office (Earl Ferrers)The Minister of State, Home Office (Earl Ferrers) rose to move, That the draft order laid before the House on 10th June be approved [34th Report from the Joint Committee].
The noble Earl said: My Lords, I beg to move that the draft British Nationality (Hong Kong) (Selection. Scheme) (Amendment) Order 1993 be approved. In moving the order I shall also speak to the draft Hong Kong (British Nationality) (Amendment) Order 1993.
In addition to the two orders which are in my name on the Order Paper we have an amendment in the name of the noble Lord, Lord McIntosh of Haringey, and a Motion in the name of the noble Lord, Lord Bonham-Carter. I thought that it might be for the convenience of your Lordships if I said how, as a matter of procedure, I thought that we might deal with these matters.
I suggest that after I have made my speech and moved these orders the noble Lord, Lord McIntosh, should then move his amendment and after that the noble Lord, Lord Bonham-Carter, should speak to his Motion. Then we can have a general debate on the whole subject.
After I have made my concluding speech at the end of the debate, in which I shall try to answer some of the points which have been raised, I shall move the first order. Before that is put to the House the noble Lord, Lord McIntosh, will move his amendment. When that amendment has been decided on, the original order, as amended or unamended, will be put and decided on. Then the second order will be put and decided on. The Motion in the name of the noble Lord, Lord Bonham-Carter, will then be put and decided on.
I hope that this advice on how we might proceed will meet with the approval of your Lordships.
To return to the orders which are in my name on the Order Paper, subject: to the approval of your Lordships, the selection scheme order will come into force on 3rd January 1994 and the Hong Kong (British Nationality) (Amendment) Order will come into force on 21st July 1993.
Detailed arrangements governing the selection scheme were introduced by the British Nationality (Hong Kong) (Selection Scheme) Order 1990. These allowed applications for British citizenship to be made in tranches. Perhaps I may remind your Lordships that quotas were set for four classes of applicant. They were: the general occupational class, the disciplined services class, the sensitive service class, and the entrepreneurs class. The British Nationality (Hong Kong) Act 1990 provided for up to 50,000 places to be made available to British nationals in those four classes and the various groups of which they were comprised.
The selection scheme allows for points to be given for various attributes such as age, education, experience and so forth. Citizenship is given to those who score the most points.
Of the 50,000 places, 38,000 were assigned for distribution under the first tranche, which started in December 1990 and finishes on 1st January 1994. We are well on target to complete the first tranche by the end of the year. As at 3rd July, we had registered 31,568 principal beneficiaries together with 52,876 dependants.
The next phase of the scheme will be the last. Nearly four-fifths of the places will have been

385
allocated by then. The second and last phase will begin on 3rd January 1994 and will last until 30th June 1997 —at which point the Chinese assume the sovereignty of Hong Kong.
The new order makes some relatively minor adjustments to the selection scheme in the light of the experience which we obtained in the first tranche. At first sight your Lordships may find the detail of the order rather daunting —with a little algebra inserted to remind your Lordships of your schooldays. It may be helpful, therefore, if I were to explain its main provisions.
The 1990 order has been found to be somewhat rigid, and the main aim of the new order is to modify certain provisions of the scheme so as to make it easier to allocate the remaining places. The order will allow us to allocate the remaining places in such a way that more places can be provided to those areas where the demand has been strongest.
The orders which are before your Lordships this evening do not, however, make any separate provision for non-Chinese ethnic minorities to acquire British citizenship. Non-Chinese ethnic minorities can, of course, participate in the scheme in the same way as everybody else. The Motion which appears on the Order Paper in the name of the noble Lord, Lord Bonham-Carter, and which he will move shortly, urges the Government to give British citizenship to the members of that community. We wait with interest to hear what the noble Lord says.
In the first tranche of the selection scheme there are one or two categories in which fewer people than expected have applied for citizenship. That has occurred mostly among private sector managers and administrators. There has been a shortfall of applicants in that category of some 4,250, and among the police there has been a shortfall of about 150 applicants. It also appears that the number of potentially successful candidates in both the sensitive service class and the entrepreneurs class may turn out to be less than that for which provision had been made in the quota. The order provides, therefore, for places to be transferred from those categories to groups where they will be used.
It is anticipated that any transfers between groups and classes will take place on a date to be specified by the Governor. That will probably be before the processing of applications in the relevant group or class has been completed, but not until the Hong Kong Government have established the size of the unused quota.
Places in the second tranche will be allocated to individual groups on the basis of the same attributes as those which were used in the first tranche, but places will also be allocated in relation to the strength of demand from individual groups who applied in the first tranche. A few adjustments have been made to the scheme, but they are all technical.
So much for the selection scheme order. The second order—the Hong Kong (British Nationality) (Amendment) Order—sets out a number of deadlines by which British Dependent Territory citizens need to register as British nationals (overseas) if they wish to
386
have this status. The purpose of this order is to ensure that those who wish to acquire British dependent territory citizenship and British national (overseas) status can acquire those statuses—or more properly, I think, "stati"—before Hong Kong reverts to China in 1997. British dependent territory citizenship expires at that point.
The Hong Kong (British Nationality) Order 1986 provides that all British dependent territory citizens can acquire British national (overseas) status and passports before that date.
Under the terms of the United Kingdom Memorandum which is attached to the Joint Declaration, and Article 4(2) of the Hong Kong (British Nationality) Order 1986, we cannot process applications for British national (overseas) status after 30th June 1997 when the Chinese assume the sovereignty of Hong Kong.
It is estimated that there are some 3.3 million British dependent territory citizens who are, or who will be, eligible for British national (overseas) status and in fact only half a million of them have so far obtained British national (overseas) passports.
Unless we act now, the fear is that many of those 3.3 million people who are eligible will apply very close to 1997, and the Hong Kong Immigration Department will not physically be able to process so many applications before the 30th June deadline.
There would clearly be a serious problem if large numbers of applications were to remain unprocessed after the deadline had been reached. We are therefore anxious to institute a phased programme of British national (overseas) registrations so as to encourage an orderly flow of applications and to avoid an overwhelming last minute rush.
We think that cut-off dates for the acquisition of both Hong Kong British dependent territory citizens and British national (overseas) status are the only way to ensure that the people who are eligible for British national (overseas) status can acquire it if they so wish. Without any deadlines, there are no incentives for people to apply in good time.
The order therefore makes cut-off dates for different age groups, at three to five month intervals. The first cut-off date will come into place in October this year for 22 to 26 year-olds. The last one will come into place in September 1997 for children who were born in the last six months prior to hand-over.
The Governor will have discretion to accept late applications in certain cases. Those would be in respect of people who will not have fulfilled the time requirement for them to have British dependent territory citizenship before their British national (overseas) citizen cut-off date had passed. The governor will also have discretion for applicants who may have some other good reason for not having applied before.
The Governor has proposed that an appeal panel should be set up to deal with any late cases which the Immigration Department may refuse, and that is being discussed with the Hong Kong Legislative Council.
In order to ensure that there will be sufficient time to naturalise those who wish to become British

387
dependent territory citizens—and subsequently British nationals (overseas)—the order states that 31st March 1996 will be the cut-off date for the acquisition of British dependent territory citizenship.
Those proposals have caused some concern in Hong Kong, especially among members of the Legislative Council who were unhappy about the removal of the right to become a British national (overseas) at any time up to 30th June 1997. In their view. it was important that applicants should be able to retain their British dependent territory citizen status right up to the 1997 deadline.
There was never any question of applicants losing British dependent territory citizenship, and they will, therefore, be allowed to retain evidence of the fact that they are British dependent territory citizens by retaining their British dependent territory citizen passport when they register as British nationals (overseas) and when the acquire British national (overseas) passports. They will therefore have two passports: the British dependent territory citizen passport, which will last up to 30th June 1997; and the British national (overseas) passport which will be valid from the moment it is issued until and after 30th June 1997. On that basis I understand that the legislative councillors have withdrawn their objections to the order.
The orders have been produced in order that the transitional arrangements should proceed as smoothly as possible for the benefit of Hong Kong. I commend the order to your Lordships.
Moved, That the draft order laid before the House on 10th June be approved [34th Report from the Joint Committee].—(Earl Ferrers.)
6.34 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey rose to move, as an amendment to the above Motion, at end to insert ("but that this House regrets that the opportunity was lost to improve the future security of the Hong Kong disciplined services.")
The noble Lord said: My Lords, the Minister has presented the orders with his usual courtesy and clarity. I hope that he will forgive me if I say that he has presented them as being somewhat technical and administrative orders. They are more than that. These are people to whom we in this country owe a debt of honour stretching back over many years. They are people for whom provision has been made in the 1985 and 1990 Acts which, as your Lordships will recall, caused a great deal of controversy at the time. I remember in particular the interventions of my noble friend Lord Cledwyn of Penrhos when the Acts were first placed before Parliament.
However, the orders have never been simply administrative or technical. The orders now presented to the House appear to assume that the issues of principle have been resolved and that all we need to do is to proceed to the next, second and final stage of the implementation of the Acts. I wish to suggest to your Lordships that that is riot the case; that in all the administrative actions that this country takes we must retain still our consciousness all the time of the needs —they are often changing needs—of the people who
388
live in Hong Kong, whatever passport they hold. After all, as we have been reminded by the debates on citizenship during consideration of the European Communities (Amendment) Bill, there is a comparable situation between Hong Kong and Macao. Portugal has taken a different point of view with regard to Macao which could well result in people in Macao acquiring European citizenship—citizenship of the European Union, and citizenship of Portugal —which would enable those people to come to this country while citizens of Hong Kong would not be able to do so. We have to bear that in mind. not as a primary consideration, but as a reminder of the nature of the obligation that we have to fulfil.
The amendment in my name, and the Motion in the name of the noble Lord, Lord Bonham-Carter., are being debated together with the two orders. It would clearly be improper for me to anticipate in detail the debate on the Motion to be introduced by the noble Lord, Lord Bonham-Carter. Therefore, I merely wish to say that we fully support his Motion. The Minister will reply before either the noble Lord, Lord Bonham-Carter, or I make up our minds what to do about the amendment and Motion standing in our names. We expect the Minister's reply to recognise the strength of feeling which exists about the issues and the need for a more flexible and humanitarian approach.
I have put down my amendment in consultation with my noble friend Lord Shackleton, Unfortunately, he did not meet the 12 noon deadline to have his name on the list of speakers. With the leave of the House, he will seek to speak in the gap. He will expand with far more authority and knowledge than I can on the needs of members of the disciplined services in Hong Kong.
In effect, the issues are the same: are we to be controlled by administrative procedures, or are we to ensure that we are in control of administrative procedures? When speaking to the second order, the Minister described a series of deadlines, of cut off dates, which will apply to people of different ages. That was not the expectation when the Bill was before Parliament. It was expected that there would be an opportunity for those concerned to acquire British national (overseas) status right up to the deadline of 30th June 1997. There was no suggestion that those aged 22 to 26 would suddenly become ineligible after October 1993. The suggestions are made by those who are not prepared to ensure that we have the manpower and resources to deal with major humanitarian issues at the time when people need them to be dealt with between now and 1997. The provisions are made by people who put administrative convenience above the interests of the people of Hong Kong.
Similarly, on the first order, the Minister started by saying that we were well on target to complete the first tranche. But then he admitted in detail the extent to which there has been a shortfall until now in certain of the categories. He has admitted that there is the possibility of a shortfall of at least 4,000 people which, even if we confine ourselves to the figure of a total of 50,000, could be used for other purposes. Can it ever be anything other than administrative convenience

389
that has led Ministers, in full knowledge of the shortfall in some categories, to refuse to use that shortfall for the benefit of those who are not included? I am conscious that I should not intrude too far on the Motion of the noble Lord, Lord Bonham-Carter, but he understands the difficulty in which I find myself.
The difficulty which we all have is that we are talking about a place many thousands of miles away, but we behave as though we were legislating for our own home territory. We are not taking the views of the people of Hong Kong into account in the administrative arrangements that we make in the orders. We are not fully qualified to do so; we do not know what is going on. In this debate we have the benefit not only of the valued presence of the noble Baroness, Lady Dunn, but of many noble Lords who have direct experience of the situation in Hong Kong. They have a direct contribution to make, for which we are grateful. I suggest that it is slightly absurd that we should legislate in this detailed way for a country which has been encouraged by its present GovernorGeneral—and good luck to him—to seek more democratic institutions in the time since he has been there.
Until I hear the Minister's reply, I am not certain what action I propose to take on my amendment to the order, but I know that the Minister should take seriously the view from these Benches, and I know that he will wish also to take seriously the view of other noble Lords participating in the debate. We are not satisfied with the provision being made. We do not believe that it should be the final decision between now and June 1997. We wish the Government to recognise the strength of anxiety which is being expressed both in Hong Kong and here. I beg to move.
6.45 p.m.
Lord Bonham-Carter: My Lords, in rising to speak to the Government's Motion, I shall address the Motion standing in my name on the Order Paper. I say straightaway that I am most grateful for the support given to my Motion by the noble Lord, Lord McIntosh. I fully reciprocate by supporting the amendment which he moved so convincingly and powerfully. I hope that the noble Earl, Lord Ferrers, will take into account the fact that the amendment is endorsed by no less a person than the noble Lord, Lord Shackleton, whose birthday it is today. The noble Earl could easily give him a good birthday present. I wish to associate myself also with the statement by the noble Lord, Lord McIntosh, about our continuing duties and obligations to the people of Hong Kong and most particularly to the two groups we are discussing.
The whole thrust of British policy since negotiations with China about the handover of Hong Kong in 1997 began has been that we have tried, in the Joint Declaration and in the Basic Law, to do everything in our power to defend the rights, freedoms, prosperity and security of the people of Hong Kong after the transfer of power. That has been the thrust of our policy, and quite rightly so.
390
However, in addition to the group to which the noble Lord, Lord McIntosh, referred, there is one small group of, at the most, 7,000 people, but probably less, and that is the group to which my Motion refers—the non-Chinese ethnic minority groups, who are particularly vulnerable. I do not believe that that can be denied.
Under the Joint Declaration and the Basic Law, after the transfer of power in 1997 members of that group will have a right of abode in Hong Kong. But they do not have the right to acquire Chinese nationality, although they have been told that they can apply for a "special Chinese passport". They may or may not receive it, and it will not give them Chinese nationality. They will also have the right to have the status of a British national (overseas) which is, in effect, not much more than a travel document. It gives the holder of the status no right of abode anywhere except in Hong Kong.
According to Justice, the rights which the BNO confers are slim. British national (overseas) citizenship provides for consular protection abroad, except in China of which Hong Kong will become a part after 1997. It is precisely there that one would have thought there was most need for consular protection which will not exist. Moreover, the status of BNO runs out in the third generation.
In the view of Justice—I quote it because it has considerable legalqualifications—those people are being "rendered effectively stateless". That view is shared by the International Commission of Jurists, as it will be by most people on the grounds of common sense. After all, what is the point or the meaning of belonging to a state if one cannot live there and does not have its protection? Those are the two rights which people who belong to a state expect to receive —the right of abode and the right to protection when one is not living there. As I understand it, neither of those rights will be available to that group of citizens.
In addition, it is probable that the United Kingdom will be in breach of its obligations under the Convention on the Reduction of Statelessness 1961 which obliges signatories on the transfer of territory to ensure that,
"no person shall become stateless as a result".
That is not a matter that we can lightly set aside. It should be taken seriously. I hope that the noble Earl will deal with it in his reply.
In another place on 9th July, Mr. Wardle, Under-Secretary of State at the Home Office, correctly identified the nature of the problem. He said:
"The question at the heart of the debate is whether special measures should be taken for that section of the Hong Kong community,"
the section to which I refer—
"or whether they should compete, like everybody else, for the 50,000 British citizenship places".—[Official Report, Commons, 9/7/93; col. 650.]
The mistake that he makes is that this group is not like everybody else. It is precisely because they are not like everybody else that they feel vulnerable, are vulnerable and deserve protection. If they were like everyone else, that is, Chinese, ethnically, they would automatically receive Chinese nationality after 1997. It is because they are not Chinese ethnically, and are

391
not like everybody else in Hong Kong, that they require special treatment. The protection that we can offer them, and for which they ask, is full British citizenship.
The numbers are small, and the situation is unique. If their fears prove to be without foundation, they will not come here. They want to stay in Hong Kong. Therefore, we are not risking very much if, as the Government say, their fears are groundless. If, on the other hand, their fears are justified, we have given an undertaking which can only be interpreted as meaning that we will take them in. It therefore seems to me that we both behave badly and do not protect ourselves against what the Government fear will happen. That seems to me the worst of all worlds.
Nor am I alone in my belief of what is the right thing for us to do in the circumstances. The House of Commons Select Committee on Foreign Affairs advocates that course. So does Justice; so does the International Commission of Jurists; so does the Governor, Christopher Patten; and so, unanimously, does the Legislative Council (LEGCO), about which no doubt the noble Baroness, Lady Dunn, will speak. We greatly look forward to hearing what she has to say on the subject.
The Government have so far refused to reconsider their position. That refusal is based on the assertion that the fears of the ethnic minorities are groundless. I hope that I dealt with that proposition. In refusing, the Government appear to regard the figure of 50,000 as in some sense sacred and unchangeable. But there is nothing sacred about 50,000. It might just as well have been 45,000, or 65,000, or even more, as some of us at the time greatly wished. It is a purely arbitrary figure. If the Government so wish, they can change it. Even if it means legislation, so be it. There is nothing magical about the figure of 50,000. I urge noble Lords to put the utmost pressure on the Government so that we can carry out our obligations properly.
Mr. Wardle also said, at col. 652:
"We see the ethnic minorities in the same way as all other British nationals in Hong Kong".
But they are not the same as all other British nationals in Hong Kong. Unless that point is grasped, one cannot understand the case that is being made. I hope that the noble Earl will tell us how we can possibly pretend that this group of people are exactly the same as the other inhabitants of Hong Kong. It is a mistake so to think. And from that mistake flows the mistaken, and, I believe, rather shameful, position in which we are. Those people came to Hong Kong because it is British. Many of them were brought there at our instigation. They have served the colony well. Their only nationality is British. They deserve our protection, and we owe it to them to give it by making them British citizens.
6.55 p.m.
Baroness Dunn: My Lords, I am grateful to the noble Lord for moving this Motion. I have travelled from Hong Kong to be here to support it. As we have come to expect from the noble Lord, he raises an important issue of principle that I know troubles the conscience of many Members of this House. It is one
392
that affects the future of a small number of non-Chinese British nationals who face statelessness after 1997.
Today, they are the Queen's subjects. They settled in a British colony to enjoy British governance and to give allegiance and loyal service to the Crown. They have contributed to Hong Kong's wealth and diversity. Many fought in defence of British territory. Their ties with the countries from which their families came have long since lapsed. They are now British dependent territory citizens, but will lose that status in 1997. They have no other sovereign but Her Majesty the Queen. Soon they will have none.
Ministers have argued against granting full British citizenship to members of this group on two main grounds: first, that the provisions in the Sino-British Joint Declaration and the Chinese Basic Law give them sufficient protection; secondly, that this is not a special case for setting a precedent.
As to the first of those grounds, under the Joint Declaration and the Basic Law, after 1997 this group can have a right of abode in the Chinese special administrative region of Hong Kong; but they have no right to Chinese nationality. They can travel on a form of British travel document; but they have no right of abode in Britain. they can chance their luck and apply for Chinese nationality; but Chinese nationality laws are based on race, and they have no affinity with Chinese culture.
Ministers may argue that these improvised arrangements are good enough, but no one could argue that they are an honourable solution. Many eminent authorities have given their opinions that these people will be rendered stateless. The Times puts it more vividly: they will find themselves in "a legal no-man's land".
As to the second argument, this is a uniquely special case, as noble Lords well know. No other citizens of Britain face statelessness. What is to take place in Hong Kong has no precedent in British colonial history. Hong Kong is not offered independence: sovereignty is to be transferred to another state where these British nationals will have no right to become citizens.
For years now the ethnic minority has pressed its case with dignity. Like all of us, those people want to continue to live and work in Hong Kong. But they are apprehensive that after 1997 there will be no sovereign obliged to protect them if and when, in the turbulence of time, they have to face the unpalatable fact that they are nobody's nationals and citizens of nowhere.
Last week, in another place, the Parliamentary Under-Secretary of State, replying for the Government, assured the non-Chinese ethnic minority in Hong Kong that if they ever came under pressure to leave Hong Kong and had nowhere else to go, the British Government of the day would be expected to consider sympathetically their case for admission to the United Kingdom.
That is simply not good enough to discharge the constitutional obligations that go with sovereignty. Furthermore, it only echoes firm pledges made before on behalf of Her Majesty's Government—in 1985 by the noble Baroness, Lady Young, and in 1986 by the

393
then Home Secretary in another place—pledges that were made to all British dependent territory citizens in Hong Kong, not just the small ethnic minority. Hong Kong British dependent territory citizens attached great importance to those undertakings, as I did. Today, there is alarm and resentment that not only is there no solution to the problem of the ethnic minority but that Her Majesty's Government are backtracking on undertakings given to all British dependent territory citizens.
But we have not yet despaired of the enduring values on which Britain prides itself. We still hope for an honourable and just solution. We expect fair treatment by the British Crown for British subjects. It is a tribute to the way in which British values have taken root in Hong Kong's soil that the predominantly Chinese population do not begrudge special treatment for the ethnic minority. Successive legislatures have been united in pressing their case.
By granting full British citizenship to that small group of vulnerable and deserving British nationals, there can be no clearer signal given to the people of Hong Kong that Britain understands the unique complexities of Hong Kong's situation. There can be no better example that Britain takes the moral stance not only on large matters but on small ones, too. There can be no firmer commitment that Britain has the will and the determination to do right by its subjects in Hong Kong.
Yesterday in this House I listened to impassioned speeches about the right of people to choose their future and the duty of elected representatives of the people to exercise their judgment in the best interests of the people. It was a poignant reminder to me that the people of Hong Kong had neither the right to choose their future nor the right to elect those who decide their destiny. Their fate on so many important issues affecting their fundamental rights and freedoms has been decided without their say.
I am privileged to be able to plead in this House the case of the minority. This House is renowned for its compassion and humanity, its independence and fairness. My Lords, do not deny their trust. I urge your Lordships to support their case.
7.5 p.m.
Lord Glenarthur: My Lords, my main reason for wishing to take part in this debate this evening is that the current commitment by Her Majesty's Government to non-ethnic Chinese British dependent territory citizens and their admission to this country was written in words drafted by me and given to your Lordships on 16th May 1986 when I moved that the Hong Kong (British Nationality) Order 1986 be agreed to.
In those days I was at least in part in the shoes that my noble friend Lord Ferrers finds himself wearing this evening. Subsequently I had to live with that commitment, as the Minister responsible for Hong Kong. Indeed, as I am sure both the noble Baroness, Lady Dunn, and the noble Lord, Lord Wilson of Tillyorn, will recall, those words were played back to me at fairly regular intervals. I have to say that my
394
experience of Hong Kong both over the period in which I had that responsibility and subsequently has somewhat coloured my opinion. What I said on that occasion in 1986 was that I would go further than assurances given before. I said that I would:
"go further than the assurances so far given to the community"—
that is the community of non-ethnic Chinese BDTCs—
"by this Government by saying that we should consider it an obligation upon any future government to treat with very considerable and particular sympathy the case for admission to the United Kingdom of any individual British national who, against all our present expectations, came under pressure to leave Hong Kong".—[Official Report, 16/5/86; col. 1437.]
I well understand and appreciate the sentiments expressed by the noble Lord, Lord Bonham-Carter. But the commitment that I gave, in the face of considerable pressure, as some of your Lordships will recall, to do something of that kind from all sides of the House to meet similar, if not precisely the same, concerns as those expressed this evening, was a considerable one.
It was a commitment of unusual proportions. To place an obligation on future governments of any party and have it accepted, is going a great deal further than usually can be thought of as satisfactory or mutually agreed. Indeed, the noble Lord, Lord Cledwyn of Penrhos, to whom the noble Lord, Lord McIntosh of Haringey, referred, expressed concern at the original 1986 order. He went so far as to say at that time that the word "obligation" was crucial. He said that his party would honour it and would consider taking other steps as well.
I accept that the mood in Hong Kong has changed since 1986. Tiananmen Square, the slow progress of the JLG talks, about which in 1986 I was able to be quite bullish, the delays in agreeing infrastructural developments and Chinese concerns about the Hong Kong democracy proposals have all changed the climate of opinion in Hong Kong. The 30th June 1997 is less than four years away.
I have to say that I found the words of the noble Baroness, Lady Dunn, this evening extremely convincing. Despite the change in the mood in Hong Kong, there is a case to say that the potential circumstances of non-ethnic Chinese British dependent territory citizens has not, at least yet, altered as much as some would claim. Her Majesty's Government have gone a long way toward meeting legitimate concerns about BN(O) passport holders, British dependent territory citizens and others, including Crown servants and ex-servicemen as well as those BDTCs who are not ethnically Chinese and who, as has been explained so well this evening, have no other form of citizenship.
However, we must still consider whether what is proposed by the noble Lord, Lord Bonham-Carter, would be fair in relation to others; would be effective; would benefit subsequent generations and would secure people's confidence let alone encourage their continual abode in Hong Kong after 1997.
The noble Baroness, Lady Dunn, and the noble Lord, Lord Bonham-Carter, make very real points when they say that those concerned would effectively

395
ultimately become stateless. There are many aspects in regard to our handling of Hong Kong over recent months which have troubled me. I am on record in that regard and shall not repeat them this evening. I am encouraged that matters are now beginning to move more positively. I hope that the momentum, generated following my right honourable friend the Foreign Secretary's recent visit to Peking, can be maintained.
On the substance of the Motion of the noble Lord, Lord Bonham-Carter, while the assurances that I was able to give for the Government in 1986 were honourable, far-reaching and a substantial commitment and were right for that moment, they may not necessarily have stood the test of time. The time may well come when the Government will have to give in to the demands legitimately being made by the community in Hong Kong and address more starkly the points made by the noble Lord, Lord Bonham-Carter, and the noble Baroness, Lady Dunn. I suspect that Her Majesty's Government will gain considerable credit for accepting that fact now rather than being pushed by circumstances into later acceptance, when the force of so doing will not have such a positive effect on confidence for all concerned as it may have now.
I cannot go so far as to support the amendment in the name of the noble Lord, Lord McIntosh of Haringey. What I have heard this evening makes me feel more in tune with the Motion in the name of the noble Lord, Lord Bonham-Carter. However, I hope that a Division on either Motion will not take place. I hope also that my noble friend Lord Ferrers will be much more forthcoming when he winds up and can give an indication that the Government are prepared to think again on the matter. My view is that my earlier commitment, given on behalf of the Government, was sufficient for its time. But in the light of current circumstances it does not go far enough nor as far as 1 should like to see in 1993.
7.15 p.m.
Lord Wilson of Tillyorn: My Lords, I must apologise to the House for not being in my place at the start of the debate. Having been here last night, together with a cast of hundreds, I had to chair a meeting in Scotland in the earlier part of this afternoon. A combination of this debate starting early, the aircraft being late and the traffic being more than usually heavy led me to the discourtesy of not being present at the beginning. I apologise particularly to the Minister and the noble Lord, Lord McIntosh of Haringey, for not being here when they spoke. However, I was particularly pleased to be present for the speech of my noble friend Lady Dunn, who had come a great deal further than the shuttle flight from Edinburgh. She spoke with all the authority and feeling which one would expect, and I have a great deal of sympathy with her views.
The question of nationality is always an emotional one. It affects people's sense of belonging and security. Indeed, it affects several generations in the future because on this issue people think not only of themselves, but also of their children and their
396
children's children. One can see people in Hong Kong planning their lives in that sense—for the sake of their children and their grandchildren. That is why these issues must be handled with particular care and sensitivity.
On that score the Government have reacted to the Hong Kong (British Nationality) (Amendment) Order with sensitivity. The Legislative Council sent a delegation to express concern about some of the effects of what was written into the order, reflecting concern felt in Hong Kong that if people had to go through a process of applying now for new passports, and lost their BDTC passports, in some way they may be deprived of some right. It would have been easy for the Government to be bureaucratic on such an issue. It would have been easy for them to brush aside those concerns. It is greatly to their credit that they did neither and instead came up with a pragmatic, sensible, flexible solution by which people, when they obtain their new passports, can also keep their old BDTC passports until 1997.
There is another issue on which similar sensitivity and flexibility is required; that is, the question raised by the noble Lord, Lord Bonham-Carter of the non-Chinese ethnic minorities. The Joint Declaration and the documents associated with it went to great trouble to deal with the difficult issue of nationality, passports and right of abode. It came up with a pretty good solution. Since then there has been the British nationality package. It may not have allowed for as many UK passports as some, including myself, argued for at the time. But given the political circumstances it was a brave and forward act by Her Majesty's Government. It had the required effect of encouraging people crucial to the economic success of Hong Kong to stay in that territory.
However, one group was left out of those moves, and that is the ethnic minorities. As has already been pointed out by the noble Lord, Lord Bonham-Carter, the numbers are small. We were given a figure of 7,000; I have heard the figure of 5,000) mentioned; the number is diminishing rather than becoming greater. It is a community which came to Hong Kong because Hong Kong was under British administration. Many came to serve the Hong Kong Government or joined the disciplined forces. It is a community which contributed enormously to the success of Hong Kong, economically and in terms of its administration. It is a community which deserves our sympathy.
It could be argued that to do something special for that group would be divisive. The noble Lord, Lord Glenarthur, was implying that at one time that had been the thinking—and indeed it was—and justifiably so. It can no longer be looked at in that light. After all, we had a delegation from the Legislative Council with the unanimous support of that council (the Legislative Council is not noted for being unanimous on many things but on that issue it was unanimous) pressing the British Government to take action. Therefore the argument that it would be divisive to do something special no longer holds good.
It may be argued that those people will be able to obtain BNO passports; that their children will be able to obtain BOC passports after 1997; that their

397
grandchildren in certain circumstances will be able to obtain BOC passports and so they will be covered. But that is the end of the line. After those grandchildren there is no passport; there is no form of nationality. Anyhow, as has been argued before, those documents will be seen as travel documents rather than any form of citizenship. Therefore we have a unique group of people. We are pressed by the Legislative Council of Hong Kong to treat them in a unique way. We must respond accordingly and with sympathy.
Perhaps I can mention one point which I was asked to raise by the noble Lord, Lord Geddes, who has taken a great interest in these matters. He regrets that he cannot be here this evening. He has taken an interest in this matter since 1981 and has great sympathy for the Motion spoken to by the noble Lord, Lord Bonham-Carter.
I mention briefly the amendment proposed by the noble Lord, Lord McIntosh of Haringey. I have sympathy for anything that helps the work of the disciplined services in Hong Kong. Both the disciplined services of the Hong Kong Government and the Hong Kong people who have served in the United Kingdom forces in Hong Kong make a notable contribution. However, I find it hard to believe that we should distort the very careful arrangements that have been made for the British nationality package. As the order makes clear, they are complicated but very carefully worked out. It has been said that one needs a degree in computer science before one knows how the points will work out, but the essential matter is that those arrangements have been made with great care. I do not think that it would be right to distort them.
But I believe that it would be right to look sympathetically at the position of the non-Chinese ethnic minorities. I hope that when the Minister comes to sum up he will be able to tell us that the Government recognise that this is a group with special concerns which the Government will look at and try to meet.
7.23 p.m.
Lord Bramall: My Lords, the last time I was debating with the noble Lord, Lord Bonham-Carter (which was on the subject of cricket) I found myself on the opposite side, although I greatly respected his views which subsequently turned out to be more appropriate than mine. I am glad to say that this time we are on the same side. I support most strongly what he and other noble Lords have said about proper citizenship for the non-ethnic Chinese minority of Hong Kong, largely of Indian origin.
I know that other noble Lords can do this so much better than I can. In particular, we have heard the speeches of my noble friend Baroness Dunn and my noble friend Lord Wilson of Tillyorn based on their great experience. I add my voice to theirs. In all this we would be backing only what the Hong Kong people themselves, through their Legislative Council, had carefully considered to be fair and just. We would all hope that in Hong Kong, where we have such a deep and binding obligation, Government action in respect
398
of those people would still have a large moral and ethical content and would not be influenced purely by expediency. I believe that it is morally completely wrong to have a group of people who after 1997 will have no proper guarantee of citizenship but only travel documents and British national (overseas) status, and certainly no guaranteed long-term right of abode, so that they will be virtually stateless, whereas in a generation or so their descendants will become completely stateless and lose their passports. That will be so unless they take Chinese citizenship, which will be given automatically to those of Chinese origin. They may not want that, and indeed may not be offered it. The same applies to a return to their country of origin with which they have long since cut any ties or connections.
I know that in the statement great play has been made of the fact that if after 1997 any of these people are, for whatever reason, forced to leave Hong Kong and their position becomes untenable, successive governments here will give sympathetic consideration to granting them right of entry and abode in the United Kingdom. That statement purportedly committing all subsequent administrations (though I do not know how) is so vague and contains so many loopholes that it can hardly be expected to give this deeply and rightly worried group of people any confidence that they will not be abandoned in the near future, as they certainly will be abandoned in the longer term.
This comparatively small group of people, adding up with dependants to no more than 7,000 (some of whom I came to know well and worked with when I served under my noble friend Lord MacLehose of Beoch when he was Governor), went to Hong Kong a number of years ago. Many went there before the great influx from Shanghai at the end of the 1940s and early 1950s. They went there not because of any particular links with China but because the British were there and they wanted to serve them and work under their protection. This they have done in many capacities: frontier police, security guards, government clerks and so on. They have done that with great loyalty, pride and a sense of duty as servants of the Crown. They look upon themselves as British and have a right to be treated as such, just as the citizens of Gibraltar, who went to the rock to support the British garrison, have done and as a result have been rewarded with full British citizenship and right of abode.
As has been said by noble Lords, the great majority of those 7,000 would wish to continue to live in Hong Kong and serve the local administration, if they were allowed to do so. I do not think that there need be any fear of a mass exodus all at once. But I believe that the least we can honourably do, if we are to live up to our unique responsibility to this small group of loyal servants to the Crown, is offer them proper British citizenship and right of abode now or at least immediately after 1997. I believe that those who have been closer to the problem more recently than I have will agree with me that if this is to be done it must be

399
a separate arrangement and not come out of the existing quota of 50,000 to be granted to those from elsewhere in Hong Kong and for other reasons.
Finally, I emphasise that in granting this we would only be doing what the people of Hong Kong themselves feel is a fair and just solution.
7.28 p.m.
Lord Marlesford: My Lords, earlier this afternoon I was told that 18 speakers had to be fitted into an hour. According to my calculation, each would have 3.3 minutes if we all had the same amount of time. I knew that would not be the case, so I prepared a speech that would last 30 seconds. As the position now appears to be slightly different I ask your Lordships' indulgence if I multiply that by a small figure.
I am afraid that I do not rise to speak in favour of the Motion of the noble Lord, Lord McIntosh of Haringey. Having listened as carefully to his speech as I was able to, frankly I could not understand what he was getting at, but I am sure that that was my failure. However, I rise to support strongly the Motion in the name of the noble Lord, Lord Bonham-Carter. It was almost exactly 30 years ago that The Times contained a leading article—probably one of the most influential leaders that it ever had—under the title, "It is a moral issue". I suggest that that is the theme of this debate. Having listened to the noble Baroness, Lady Dunn, and the noble Lord, Lord Wilson of Tillyorn, it is clear to me that there is a very real obligation to this small number of people.
I make two or three rather obvious points. First, I do not believe that China has any obligation to those people in comparison with Britain's obligation. Secondly, they are not, and we should not see them as, economic migrants. Indeed, if they were economic migrants Hong Kong of all places would fully understand why we were not prepared for that reason to admit them. That does not mean I do not believe that if they come to this country—probably not many of the 7,000 will do so—they will make a very considerable economic contribution, because practically everybody who comes to Britain from Hong Kong does this country nothing but good.
What I say to my noble friend who is to answer this debate is that I for one will not be happy if the House is told that under the arrangements to be made for these people they will get passports that give them the right to come to Britain and that if they are here for a sufficient length of time they will then qualify for British nationality. I am not prepared to accept an undertaking that in the unforeseeable circumstances of three or four years' time there would necessarily be —under the administrative procedures which could well then be in force—agreement for them to stay for long enough to get that right of British citizenship.
Therefore, I must say to my noble friend that unless we get a firm and watertight commitment to fulfil an obligation which is a very small one—when I say "a very small one" I suggest a perhaps fanciful analogy: that somehow there is something worse about someone who robs an old lady for a few pennies than someone who robs a bank manager for several thousand pounds; both are wrong but the first is, in
400
my view, worse than the second—I would be prepared to support the noble Lord, Lord Bonham-Carter, should he choose to divide the House.
7.31 p.m.
Lord Chalfont: My Lords, I am not quite sure of the implications of the somewhat convoluted procedures of the Motions and the amendment, but if it is in order I should like to support both the amendment moved by the noble Lord, Lord McIntosh of Haringey, and the Motion introduced by the noble Lord, Lord Bonham-Carter.
The noble Lord, Lord Marlesford, referred to The Times leader which was headed "It is a moral issue". Perhaps I may remind the noble Lord that that leader was in fact about what was then called the Profumo affair. Nevertheless, I agree with him entirely that this also is a moral issue.
Speaking generally, before addressing the terms of the Motion and the amendment, I have had experience of Hong Kong for around 40 years since I first went there as a British Army officer. I have been on many occasions since in various incarnations. I have grown to have an enormous admiration for the people of that island. They are industrious, ingenious and attractive people. I have to say that the arrangements that have been made for them after 1997 when the island is quite understandably handed over to the Chinese have been somewhat less than generous.
A comparison was made in the debate with Portugal and Macao. Perhaps it may seem to your Lordships somewhat extreme but I should have thought it quite acceptable that all the citizens of Hong Kong should have been given the right of abode in this country if they so wished it. They are, as I have said, industrious and ingenious, and as has already been suggested, if they all descended upon us—not a likely eventuality—I cannot help thinking that they would have an enormously beneficial effect upon the somewhat battered economy of this country. They would not, of course, exercise that right because there is reason to believe that after 1997 most of the citizens of Hong Kong of all ethnic categories will want to stay there. But they may not, and it is for that reason I believe that we have been less than generous and less than imaginative in our treatment of them.
I have a special reason for speaking about the discipline forces—and especially the armed forces—in Hong Kong, many of whom will have special difficulties when the Chinese take over in 1997. I know that some special arrangements have been made, especially for people who have been working in sensitive appointments and areas, but I still think that we have not done enough. For example, there is a military unit in Hong Kong which is in the order of battle of the British Army. It is a unit of the British Army. When I visited the unit recently at its base in Stonecutters Island I discovered that the men were perplexed and surprised that they, who are serving Her Majesty's Government not as mercenaries or as attached personnel but as a unit of the British Army, were not being given the right of citizenship or of abode in this country after 1997. I believe that they have a quota. A certain number of them may apply for

401
and may get a British passport. But it is to me a source of some surprise that not all—members and families of a British Army unit—have the right of abode in this country if they should so wish when the handover takes place in 1997.
However, the discussion tonight is not entirely about them. It specifically relates to the maximum of 7,000 non-Chinese—most of the unit about which I was speaking are Hong Kong Chinese—who have, as the noble Baroness, Lady Dunn, told us so movingly and so vividly, no right to acquire Chinese citizenship, no right of abode anywhere else and who will in fact have been rendered stateless. We owe that ethnic minority group special consideration. I very much hope that the noble Earl will be able to assure us that, whatever other real and sensible considerations and factors have to be applied to this situation, those people will be borne very much in mind as a unique group.
Before I conclude, I would like to say that, unlike some other noble Lords, I have grave doubts about the wisdom of the line of action being taken by the present Governor of Hong Kong. I am extremely worried about some of the things that are happening in Hong Kong at the moment. I shall go no further than to say that I think that some of them owe more to political point scoring than to diplomatic vision or sensitivity. It is, after all, a people who after 1997 will be handed over to the People's Republic of China. It seems to me that perhaps we ought to think very hard before taking action which will so offend and upset the Government of the People's Republic of China that those actions may rebound upon the people of Hong Kong after 1997. If, as some noble Lords have said, the position of the non-Chinese ethnic minority group in Hong Kong is unique, so is the position of the people of Hong Kong as a whole. This is not comparable with any other political situation in our recent knowledge. Here is a territory and a people who will be handed over completely in 1997 to another sovereignty—to another nation.
I know that the Chinese have a reputation for sticking to their undertakings. They have a reputation —and a deserved reputation—for integrity in international affairs. But things can change. We have seen how things can change. The events of Tiananmen Square have been mentioned already in your Lordships' House this evening. I happen to believe that some of the reporting of Tiananmen Square by the British media was distorted and exaggerated. Nonetheless, it took place. I ask your Lordships, and especially the noble Earl when he speaks on behalf of the Government, to bear in mind that whatever undertaking may be given about the future of Hong Kong after 1997, things can change in China and Peking just as they can change anywhere else—and they can change for the worse as well as for the better.
I repeat a comment which I believe was made by the noble Lord, Lord McIntosh of Haringey. Like many others, I am simply not satisfied with the safeguards and the attitude that have been taken to the granting of nationality to the people of Hong Kong, and especially to the armed forces—the disciplined forces
402
—in Hong Kong, and especially to that single unit of the British Army which still remains in Hong Kong but which has been given no special treatment in the arrangements that have been made. I am concerned about the people of Hong Kong as a whole. I can only say that if, as I think is probably unlikely, either the Motion or the amendment were to be pressed to a Division in your Lordships' House this evening, I would support them both.
7.40 p.m.
Lord Butterfield: My Lords, I rise to express my strong support and great sympathy for the Motion tabled by the noble Lord, Lord Bonham-Carter. I should like to say at the outset how delighted I am to find the noble Baroness, Lady Dunn, in our midst. I appreciate what a distance she has travelled in order to speak to us. She made the case movingly for the ethnic minority—the 7,000 or so people—many of whom I have had the privilege of meeting over the years in travelling to Hong Kong and to whom I believe that we owe a very great debt of honour. That phrase has been used, and it is right to use it.
I am conscious that I am in the presence of two former governors of Hong Kong who have done much for the colony over the years that I have been going there. I was privileged to work on the University Grants Committee for the noble Lord, Lord MacLehose, and I am proud to think that I was involved in establishing a medical school and a dental school. The noble Baroness, Lady Dunn, helped us to get the dental school started. I have been proud to work also under the noble Lord, Lord Wilson of Tillyorn, for two foundations. One is the Croucher Foundation, which was much helped in its initial stages by a Member of your Lordships' House, the noble Lord, Lord Todd, and which is much supported by another Member of your Lordships' House, the noble Lord, Lord Lewis. I have also worked for the Jardine Foundation. I am sad that the former mistress of Somerville College, Lady Park, is not in her place this evening because I know how strongly she feels in favour of the remark made by the noble Lord, Lord Chalfont, that a good infusion of Hong Kong's people and citizens—they need not be Chinese citizens only —would not do this country any harm.
As a chairman of those trusts, I have spent quite a lot of time face to face with young Chinese people. If there is anxiety in this House—and I hope that there is not—about a flood of immigrants from China (from the particular group mentioned tonight or from the Chinese people as a whole), I can advise your Lordships from my conversations during the past 10 years when interviewing people across the table for the Croucher Foundation and the Jardine Educational Trust, that I have recognised quite a considerable shift in feeling among those young people. Whereas they used to want to come to the UK or perhaps go to Canada for their period of residence so that they could take out citizenship either here or elsewhere in the world, that feeling has now been replaced by a great growth in confidence. I do not know whether the noble Lord, Lord Chalfont, has encountered the same thing. When one says to those young people, "What

403
are you going to do when you have your PhD or degree and have finished school or university here?", there is the immediate reaction, "I shall come back to Hong Kong". They say that the Pacific Rim is the place to be. It is therefore my opinion that there will not be any great invasion by these 7,000 people. They find life very exciting in Hong Kong. They are conscious that their economy is a strong one. They are conscious that they are beside an enormous and fascinating market. They are surrounded by very intelligent people. I agree with that view wherever it is expressed.
I hope very much that the noble Earl will do whatever he can within government and through the authorities to ensure that the people mentioned in the Motion in the name of the noble Lord, Lord Bonham-Carter, get fair play. I hope that they will be given the chance to come here. As I said, I do not believe that many of the 7,000 will do so. Of course, some will, and we shall be pleased to have them. I can assure the House that the parents and children of this so-called "minority", to whom I have given scholarships, will not do us any harm at all. They will do us good. I hope that whatever can be done by those present in the Chamber to encourage the Government to have the generosity to see that these people are special and to help them with their citizenship will be done. As the noble Lord, Lord Wilson, pointed out, it is important that we consider also the citizenship of the children and grandchildren of the people in that group. If we can do that, I hope that it will be carried forward as a debt of honour.
7.46 p.m.
Lord Beaumont of Whitley: My Lords, when I was about to be sacked from my first job, which was that of Assistant Chaplain at St. John's Cathedral, Hong Kong, an imaginative bishop stepped in and made me, at an inconceivably early age, vicar of Christ Church, Kowloon Tong. I say "an imaginative bishop" and not just a helpful one because R.O. Hall, as many of your Lordships will know, was also the first Anglican bishop (by about 30 years) to ordain a woman priest, and thereby proved that his promotion of myself was not an isolated stroke of genius.
My new parishioners were to a large extent the English-speaking Anglicans of the New Territories beyond Boundary Road, and a majority of them were Eurasians. Quite a number of them were members of the ethnic minorities about whom we are talking this evening. I thought of them even then as the heart and strength of the colony. They did not belong to the somewhat frenetic society of expatriates, living on the Peak, whom I knew reasonably well from my time at the cathedral; nor did they belong to the Chinese, looking for the most part towards Peking or Taiwan. They were true Hong Kong people, many of them products of schools such as the Diocesan Boys' School and the Diocesan Girls' School, although many had their own non-Christian religions. Their home was British Hong Kong—not just as a place, but as a concept.
These people must not be left without right of nationality and abode. They must not merely be
404
promised, "Things will not go wrong; but if they do, we will bail you out if we can, and we still happen to feel like it; and"—as has been mentioned—"if we are still able to". They must not be subject to a points system which favours the strong and the rich at the expense of the poor and the weak.
The Government of this country, under any of the parties which has been in power since the decline of the Empire, have a bad record in looking after those who are loyal to them. I cut my teeth in your Lordships' House on the Kenyan Asians legislation—and I know. These days I am involved with the people of St. Helena who are not being treated as well as they might be. But here we are talking about a measurable and manageable number—not about the enormous numbers with which we were scared in relation to the Kenyan Asians. It will put no strain on this country to give them right of abode and nationality; and, as has been pointed out by almost every speaker, we shall benefit from that.
I go to Hong Kong in August with a delegation of the Commonwealth Parliamentary Association. I hope to see those who were my people. I speak tonight because I could not face them without having spoken. But I also hope to speak to them of the good news which I believe the Government will have to give them sooner or later, and which they would do much better to give them now rather than later.
7.50 p.m.
Lord Wyatt of Weeford: My Lords, I apologise for not being here at the start of the debate which took place rather earlier than I thought it would. Unfortunately, I missed some of the speech of my noble friend Lady Dunn, who brings with her the unquenchable spirit of Hong Kong. I should like also to pay tribute to the noble Baroness, Lady Thatcher, who, when she was Prime Minister, fought harder than anyone to ensure that the Hong Kong people obtained some passports—but perhaps not as many as she or I would have liked. At the time. she faced great opposition from within her own departments of government. Hong Kong should know that it is due to her that they received the passports that they in the end received.
On 29th June 1990, the noble Earl, Lord Ferrers, said:
"It would not have been sensible to write the details of the scheme into the Bill. They have to be kept flexible so that Parliament can, if necessary, be asked to approve changes later on in response to changing circumstances in Hong Kong".—[Official Report, 29/6/90; col. 1824.]
I am sure that the noble Baroness, Lady Thatcher, took that to mean, as I did, that should circumstances change, there would be a look to see whether extra passports could be given, if necessary. I am glad to see that she nods her head in agreement.
The situation has changed, in some ways quite remarkably. After the Tiananmen Square affair, opinion in Peking hardened against the students and supporters of the Tiananmen students in Hong Kong. It hardened also against the students in Peking. Many of them were sent to political prisoner camps where they have been treated with the utmost cruelty and violence to "rehabilitate" them, as the famous

405
communist term goes. Some of them are still there. I am afraid that that may happen to any Chinese person who served with the British Armed Forces during our period in Hong Kong. The number of passports necessary, as the noble Lord, Lord Chalfont, said, is small; and, if nothing else can be done, they must be protected against any form of reprisal which might be taken against them if Peking felt so disposed. I should not like to think of them put into political prisoner camps in mainland China for rehabilitation.
We need not be afraid of upsetting unduly the Peking authorities by changing a little the provisions relating to passports for Hong Kong Chinese or members of the non-Chinese ethnic minorities. We should remember that China is a strange and great country. In the end, she looks after her own interests first. There are three things that she wants at the moment. She wants to be a member of the GATT, as Hong Kong is; she wants the Olympics 2000 rather than have them held in Manchester; and she wants most favoured nation status with the United States. Peking is not likely to show anger, cause fear or take reprisals as a result of us giving a few more passports to the people in Hong Kong, 3 million of whom were deprived wantonly of those passports by the first British Nationality Act. It was enacted because people in Brixton did not like being mugged by people from Jamaica. As a result of that Act, many people except those from Gibraltar and the Falkland Islands, were excluded from having the passports to which they had been entitled all their lives.
I shall support the amendment moved by the noble Lord, Lord McIntosh of Haringey, and the Motion tabled by the noble Lord, Lord Bonham-Carter. I know that the noble Earl, Lord Ferrers, has a kind heart. I am sure that he has been pondering with some anxiety the possible avenues that may be open to many of the people who feel they might be put in a dangerous position after we have left Hong Kong. I am sure that he will do all he can with the Government, because various parts of Whitehall can be stubborn, to ensure that everything possible is done to increase the number of passports issued.
7.55 p.m.
Lord St. John of Bletso: My Lords, in my brief contribution I do not want to discuss the impact of the two amendment orders which the Minister so clearly outlined. They provide an element of flexibility to the British Nationality (Hong Kong) Act 1980, a fair allocation for the second tranche of applications for British citizenship and a timetable for the orderly registration of those applying for British national ordinary status. However, the orders do not provide for proper nationality status for the non-Chinese ethnic minorities who are British dependent territory citizens of Hong Kong. It is to that end, as have most other noble Lords who have spoken this evening, that I wish to address my remarks and, in so doing, to support the Motion tabled by the noble Lord, Lord Bonham-Carter.
The subject was debated in the other place on 9th July. It is well known that a central objective of Her
406
Majesty's Government in her negotiations on Hong Kong with China has been the desire to protect the rights, freedoms and prosperity of the peoples they will hand over to Chinese rule in July 1997. One of the basic rights is the right to nationality.
Most noble Lords, in particular my noble friend Lady Dunn in a most moving and convincing speech, have drawn attention to the plight of the non-Chinese ethnic minorities post-1997. It is seen by many as an embarrassing loose end to the Sino-British agreement. The history of the involvement in Hong Kong of the non-Chinese ethnic minorities is well documented. They have established a community that is highly respected for its social and economic contribution to the colony's development. Many have lived in Hong Kong for generations and have few or no ties elsewhere. They include major employers and senior figures in finance and government. I understand that until recently the Indian population, which makes up a minuscule percentage of the colony's population, contributed almost 10 per cent. towards the colony's wealth.
Because those minorities are not ethnic Chinese, as the noble Lord, Lord Bonham-Carter, said, China's race-based law gives them no automatic right to Chinese nationality, even if they wished to take it, although the Parliamentary Under-Secretary of State for the Home Department gave assurances in another place in the debate on 9th July that,
"The Joint Declaration and article 24(6) of the Basic Law guarantee the ethnic minorities the right of abode in Hong Kong … The Peking authorities have said that people in Hong Kong who are not ethnically Chinese are welcome to remain and that it is open to them to apply for Chinese citizenship". —[Official Report, Commons, 9/7/93; col. 651.]
However, as I understand it, there is a real fear that the Chinese government will, at best, grant second class citizenship to those people, and could effectively exclude them from becoming chief executives of their own companies or from filling senior civil service and police posts. The noble Lord, Lord Bonham-Carter, has already mentioned that the Chinese authorities consider the British national (overseas) documents to be of no more value than travel documents. Although these minorities have been offered the token status of British overseas citizenship it has been mentioned by many noble Lords that it does not confer the right of abode in Britain nor British consular protection in Hong Kong, and that will expire with the first generation.
While the Home Secretary has said that these ethnic minorities in Hong Kong can apply for British citizenship under the selection scheme established by the British Nationality (Hong Kong) Act 1990, presumably under the section relating to key entrepreneurs, I would argue that this is a touch elitist, in particular as the points allocated to the criteria of experience, education, training and special circumstances could favour the more affluent and successful applicants over those who are less privileged.
It has been argued that for Her Majesty's Government to refuse the non-Chinese minorities in Hong Kong the right to British citizenship could be a violation of their obligations under the 1961

407
Convention on the Reduction of Statelessness. Article 10 obliges any state involved in the transfer of territory,
"to secure that no person shall become stateless as a result".
A concern has been raised that it would set a dangerous precedent if these non-Chinese minorities were to be given British citizenship. Many noble Lords have raised that point tonight. Miss Emily Lau, who led the recent delegation from the Hong Kong Legislative Council was emphatic that LEGCO did not believe that giving these people British citizenship would create a precedent. She said:
"We think they stand in a rather unique and precarious situation".
So, in conclusion, it is my hope that the Government will take the advice of the noble Lord, Lord McIntosh of Haringey, and take a more flexible arid humanitarian approach to the plight of the non-Chinese ethnic minorities. As a leading article in The Times of 1lth June put it:
"If Britain does not offer them passports they will find themselves in a legal no-man's land, with no nation, no passport, no home and no rights".
It is for those reasons that I support the Motion.
8.3 p.m.
Lord Willoughby de Broke: My Lords, as the last speaker on the list before the winding-up speeches, I shall be brief. I hope that I shall eclipse the record of 30 seconds set by my noble friend Lord Marlesford. The case has been well put by all noble Lords who have spoken, and I have little to add. I wish to underline only two points. The first was made by the noble Lord, Lord Wilson of Tillyorn. It is that the success of the British nationality package in 1990 was in anchoring people in Hong Kong. I believe that the same reasoning should apply to the 7,000 non-ethnic Chinese who will not come here but who will wish to stay in Hong Kong. After all, they were born there —some are second generation—and they will wish to stay where their lives and friends are and will not wish to come to this country. My honourable friend the Under-Secretary of State in another place recognised that the nationality package would not meet their requirements. He admitted that candidly in the debate on 9th July.
Secondly, I wish to contrast the position of the citizens of Macao. Other noble Lords have made the point and it is worth underlining. One hundred thousand citizens of Macao could come into this country and have the right of abode. Perhaps we may contrast that with the unhappy position of the mere 5,000 to 7,000 individuals who, although born in Hong Kong and some of whose parents were born in Hong Kong and who owe allegiance to the Queen, will not enjoy that advantage. That is grossly unfair and misplaced.
The case for sympathetic consideration has been most eloquently and persuasively made. There is every good reason to support the Motion and no good reason to oppose it. Like my noble friend Lord Glenarthur. I hope that there will not be a Division, but if there is I shall support the Motion tabled by the noble Lord, Lord Bonham-Carter.
8.5 p.m.
Lord Shackleton: My Lords, it may disappoint the noble Lord, Lord Willoughby de Broke, to find that he is not the last speaker in the debate. Nor, since the House has been so kind to me, is it a birthday treat that I should be allowed to speak at this point. The procedure is a little complicated, as was pointed out by the noble Lord, Lord Chalfont. I query the propriety of the Motions. In procedural terms I prefer the amendment tabled by the noble Lord, Lord McIntosh. That is not a criticism of the contents. I support entirely the noble Lord, Lord Bonham-Carter. But the situation is tricky. I suggest that the Select Committee on Procedure should decide the best way to deal with the matter. I believe that the Motion tabled by the noble Lord, Lord Bonham-Carter, is suitable, but I prefer an amendment to the main Motion.
It is also rather tricky that there is a time limit for putting down one's name to speak. I was unaware of the number of names, and I did not know that there would be many. After 12 o'clock it was too late for me to put my name down on the list of speakers.
I wish to speak mainly about the position of the locally employed personnel, who are Chinese Hong Kong. They are greatly at risk. For many years they have been immensely loyal to the Crown. Their future, which will be in the hands of the Chinese, who are not always kind to their own people, is by no means certain. I have in mind in particular those in the Navy. The noble Lord, Lord Chalfont, gave examples of the British Army unit. What will happen if there are repercussions of the kind that we know occur in China? Will their Chinese origin be arty protection to them? We should provide them with an opportunity to come to this country or at least to obtain British citizenship.
This is not the only time such events have happened in our history. I know of areas, in particular in the Middle East, where we have undoubtedly betrayed people who have been very loyal to us. I could give examples. This is a difficult moral question.
I have in mind in particular the locally employed personnel of the Royal Navy. That naval uniform has been worn for the past 80 years or more. Those personnel serve in every rank in the Royal Navy. I should like to believe that there will be art opportunity for them. There is scope, I believe, which was not apparent when the Minister replied to my Question. He gave a rather rigid picture. I gather, however, that the Government have a great deal more scope for providing opportunities for people who have not yet been successful in coming to this country.
Many people who have applied have been turned down. I wonder whether those cases can be examined. Some noble Lords have said that, because the people involved are Chinese, they are not in favour of that arrangement. However, we owe a special debt of loyalty to those people. We are very worried about them.
I support entirely the Motion tabled by the noble Lord, Lord Bonham-Carter. It was admirably moved, and it is splendid that so many good people support

409
him. Nonetheless, I feel badly about the services. People who have loyally served the Crown may find themselves in grievous difficulties in the future.
8.10 p.m.
Baroness Seear: My Lords, it is normal for those who wind up a debate to devote their time to answering the criticisms of the Motion before your Lordships which have been made during the debate. The difficulty for me is that there have been no criticisms. Every speaker without exception has supported the Motion tabled by my noble friend Lord Bonham-Carter.
In his opening speech, the noble Earl, Lord Ferrers, indicated that there are objections based on the fact that it is said that there is nothing special about the position of the non-Chinese ethnic minorities in Hong Kong. That argument has been completely disposed of in the course of the debate. There is no doubt that their position is different and is special.
It has also been said—and the noble Earl has said this on previous occasions—that there is something sacrosanct about the number of people who it was agreed should be allowed to have passports to come to this country from Hong Kong. At the time many of us thought that to fix such a number was a mistake because if those people had the right to come here, a great many of them, secure in the knowledge that they had a place to which they could retreat if necessary, would continue to stay in Hong Kong. Indeed, it was suggested that bearing in mind the rate at which the economy in East Asia is progressing at present, those people would be sensible to remain there. I have no doubt that a great many of the people about whom we are speaking today would, if they were secure in the knowledge that they could come here if events turned hostile towards them, prefer to stay and continue their excellent and successful careers in Hong Kong.
It has also been suggested that in 1986 we gave those people a kind of guarantee that if things became very difficult, we should look favourably upon them when considering their cases. I believe that the noble Lord, Lord Glenarthur, spoke with considerable honour and courage because it was he who addressed us and informed us about that in 1986. He has said that although the statement was made in good faith at the time at which it was made, times have changed and we have since seen the difficulties which have arisen. We have seen the events of Tiananmen Square and we know the difficulties that those people may encounter. We know that that guarantee given then is not adequate now.
Therefore, I do not quite know what I am supposed to be doing in winding up this debate. In order to say something, I have tried to anticipate what the noble Earl will say. That is all that I have to deal with by way of opposition.
I should like to re-emphasise briefly what has already been said. The particular needs of that special group are different from those of anybody else. There is complete support from the Legislative Council in Hong Kong, and there is no division about this matter. The people of Hong Kong are in a very
410
dangerous position and the documents which they have been offered give them no right of abode. Should anybody want a travel document which will not allow him to put down his baggage and settle in this country? The non-Chinese ethnic minorities in Hong Kong are threatened with statelessness, and what they are offered is no guarantee against that. That is a position which no one would willingly contemplate.
I am sure that your Lordships' House will agree with me as to how convincing was the presentation of the noble Baroness, Lady Dunn. The mere fact that she has undertaken that appalling journey (I did it once) all the way from Hong Kong in order to speak to your Lordships' House this evening, and to speak with such eloquence and so convincingly must carry great weight with your Lordships.
I was privileged to meet some of the people who came here representing those minorities. I cannot imagine that they will ever be a burden upon the Exchequer of this country. They struck me as being the kind of people who, after being here for five years, will be buying up most of us, so able and competent are they.
I have never supported the party opposite, but I recognise that there is a tradition in the Conservative Party, if sometimes muted, which recognises honour and moral obligations. Let it do so this evening.
8.15 p.m.
Earl Ferrers: My Lords, there was a nice sting in that tail of the noble Baroness, Lady Seear, which I could certainly have done without. But I know that she says those things rather tongue-in-cheek.
This has been a remarkable debate. It is with a considerable amount of humility that I rise to try to answer some of the points which have been made by your Lordships. We have heard from two ex-Governors of Hong Kong. We have heard from the noble Baroness, Lady Dunn, who is the senior member of the Hong Kong Legislative Council. She said that she has flown here from Hong Kong especially to participate in this debate. We have heard from a previous incumbent of St. John's Cathedral. That is an extremely important position but not quite as elevated as that of the noble Baroness, Lady Dunn. We have heard from a "birthday boy" who regrettably appears to be no longer in his place. Perhaps he has gone to celebrate his birthday. The noble Lord, Lord Shackleton, said that it was no birthday treat for him to address your Lordships; but it was certainly a birthday treat for us to hear from him today. We have heard from a previous Minister of State at the Home Office, my noble friend Lord Glenarthur, who was very much involved with this issue. Therefore, it is with a considerable degree of humility that I try to address some of the questions that have been raised.
The speech of the noble Baroness, Lady Dunn, was extremely impressive. She brought with her her total knowledge of Hong Kong and all the problems which exist there. Of course there are problems and anxieties; and she knows about them. She was able to tell the House about them, and I am grateful for that.
Hong Kong is a special problem and it has always been recognised as such. We always knew that these

411
difficulties would arise in 1997, and that is why great efforts were made to try to find routes through the problems when making arrangements with China and when making the arrangements as regards immigration and passport problems. We agonised over those matters.
The British Nationality (Hong Kong) Act was the result. I am glad that the noble Lord, Lord Wilson, said that he thought that it would be wrong—and I paraphrase—to try to tinker about with the provisions made in that Act. A number of noble Lords are anxious about that matter. In many ways, they have tried to revisit the Act and say that we should change the numbers. It has been laid down in statute that the numbers to be allowed into the country will be 50,000. At the time that the figure was arrived at, we tried to strike the right balance between maintaining confidence in Hong Kong and limiting potential immigration into the United Kingdom. It was a controversial figure and some people may say that it is the wrong figure. But the problems of immigration cannot be under-estimated. All countries must place restrictions on the numbers of immigrants coming not merely from one country but from all countries. Your Lordships will know well the problems which can arise in that regard. That was the reason why the British Nationality (Hong Kong) Act set the figure at 50,000 applications. It is also right to say that we cannot alter that figure without altering the Act and, of course, that means producing more primary legislation.
My noble friend Lord Glenarthur has great knowledge on the subject. I am most grateful for what he said. I agree with the noble Baroness, Lady Seear, who said that he made a most courageous speech. He said that when he was in this position he gave certain commitments, but now he finds that times have changed and that he, for one, would like to see the commitments adjusted. Of course, it is fine for him to say that from the Back-Benches, although it is not so easy for someone else who happens to be responsible from this Dispatch Box. We are limited to those numbers and have tried to address the problem by allocating them to certain categories. That in itself was quite complicated, but it was done.
The noble Lord, Lord Wyatt, chivied me a little by asking why all such matters were not put in the original Act. He also chivied me the other day by suggesting that I had said that they had been put in an order so as to make them more flexible. That is precisely what the orders are: they are an indication of the flexibility that we are trying to use to show that, where certain classes of people have been undersubscribed in their applications, those undersubscribed places can be reallocated to those that have been oversubscribed. That is the point of one of the orders that is before the House this evening.
I know that noble Lords are all concerned about the matter. I also share that concern. I can only hope that we can avoid calling a Division; but of course, it is up to your Lordships to decide what to do. However, I think that it would be a pity if it were to appear that there is some division of concern within the House on the matter. We are all concerned to try to reach the right solution.
412
I am glad to see that the noble Lord, Lord Shackleton, has now returned to his place. Perhaps I may reiterate what I said earlier when he had momentarily absented himself from the Chamber. I said that we were glad that he came to the House to make a speech on his birthday. I also said that although he may have found it to be no birthday treat, it was indeed a treat for us. However, the noble Lord was concerned about the services. The whole purpose of the order is to try to meet the point that he made; namely, to reallocate those places of underdemand to those places which have shown greater demand.
The noble Lord, Lord McIntosh, said that the issues of principle are still at stake. I can only say that they were decided as such at the time of the British Nationality (Hong Kong) Act. That is how we try to deal with those provisions. The noble Lord said that people were expected to apply up to the 30th June 1997 and that administrative convenience had been put above the interests of the people of Hong Kong. That is not in fact true. Of course, people have the right to apply up to the 30th June but the practical effect is that if vast numbers apply on 1st June or on 28th June they simply cannot be processed in time. That is why we have introduced the second order; to try and phase in the applications in the full knowledge that everyone who is entitled to it will be able to obtain citizenship.
Many speakers referred to Macao., among them I believe were the noble Lords, Lord McIntosh and Lord Chalfont and my noble friend Lord Willoughby de Broke. In fact, the matter was mentioned only recently during Question Time. It is not the case that Portugal is granting citizenship to all residents of Macao. People from Hong Kong cannot simply travel and acquire Portuguese citizenship. Residence in Macao does not lead automatically to acquisition of Portuguese citizenship. Naturalisation requires six years' residence with good character, economic independence and the ability to speak Portuguese. It is also discretionary and given sparingly on a case-by-case basis. It is only children who are born in Macao to Portuguese citizens who automatically acquire Portuguese citizenship. It is only Portuguese nationals (there are about 100,000 of them in Macao) who have the right of abode in Portugal and who are able, thereby, to exercise the European Community treaties' rights and travel throughout the Community.
The arguments that have been of most concern to your Lordships this evening are those about. the non-ethnic Chinese minorities. They tend to be mostly people of Indian or Pakistani origin. The arguments fall into about four categories: first, that those people will not have a proper nationality and passport; secondly, that they will not have the right of abode in Hong Kong; thirdly, that they will be stateless; and, fourthly, that they will not be able to transmit their nationality to future generations.
Perhaps I may take those arguments in turn. I shall start first with the question of proper nationality and passport. It has been said that after 1997 those people will not have proper nationalities or proper passports. That refers to what they see as the inferior status of a British national (overseas) or British overseas citizen

413
and their related passports. I do not think that those nationality statuses—or "stati"—are in any way inferior to British dependent territory citizenship. There are over a million people in the world who have British overseas citizenship and the British overseas citizenship passport is well established. Holders of those passports and of British national (overseas) passports do not need entry clearance for visits to the United Kingdom; although, like anyone else, they do need entry clearance if they wish to come here on a more permanent basis. Both the British national (overseas) and British overseas citizen passports give the holders an entitlement to register as British citizens, provided that they have completed five years' residence in the United Kingdom and that they have achieved settled status.
My noble friend Lord Marlesford was concerned about the latter. Such people do not need entry clearance. They can stay for six months, but, like everyone else who wants to stay longer, they have to apply under the immigration rules for settlement in the United Kingdom. Thereafter, after they have been here for five years, they are entitled to British citizenship.
Those passports also confer British consular protection anywhere in the world, and will do so in the Hong Kong special administrative region after 1997, provided that the holders are not Chinese nationals as well. The ethnic minorities who at present hold British dependent territory citizenship will, therefore, be in no worse position in those respects after becoming British national (overseas) or British overseas citizens than they are now.
I turn now to the right of abode, which is a matter to which many speakers referred. The Joint Declaration and Article 24(6) of the Basic Law guarantee the ethnic minorities the right of abode in Hong Kong if they do not have a right of abode elsewhere. The Chinese authorities have made it quite clear that those people are welcome to remain and that, if they so wish, they can apply for Chinese citizenship. Their right of abode position will, therefore, be exactly the same after 1997 as it was before.
I shall now deal with the condition of statelessness. I believe that many speakers referred to it, including the noble Lord, Lord Wilson. People claim that those ethnic minorities, their children and their grandchildren will be left stateless. If I may say so, that is not strictly accurate. Specific provision was made in Article 6 of the Hong Kong (British Nationality) Order 1986 in order to deal with that problem. I should perhaps remind your Lordships that the Article says:
"Where a person ceases on the 1st July 1997 by virtue of Article 3 to be a British Dependent Territory Citizen and would, but for this paragraph, thereby be rendered stateless, he shall become on that date a British Overseas Citizen".
They are not in fact being rendered stateless. People who have British nationality—that is, British dependent territory citizens, British nationals (overseas) or British overseas citizens—before 1997 will
414
retain British nationality after 1997. They will have the status of either British nationals (overseas) or British overseas citizens.
The children of those who become British overseas citizens or British nationals (overseas) under the 1986 order will automatically become British overseas citizens if they would otherwise be stateless. Their grandchildren will have an entitlement to acquire British overseas citizenship by registration, if they would otherwise be stateless. They will not in fact be stateless. This is all provided for under Article 6. Then we come to the problem of passing nationality to future generations. There is concern that people would be unable to pass that on to future generations. That is perfectly true, but these people are in no way unique in that.
No form of British nationality will be transmissible indefinitely in Hong Kong. The British Government cannot give indefinite rights to transmit nationality from one generation to the next, especially where the territory in question will then be non-British. These limitations with regard to future generations would apply even to those who had been given British citizenship but who had decided to continue to live in Hong Kong.
I accept that these are delicate and sensitive matters. I know that your Lordships are concerned. We have tried to meet the anxieties in the British Nationality (Hong Kong) Act. We have tried to make these arrangements so that everyone in their different categories would be able to take advantage of them. It would be difficult to make a special provision to give the ethnic minorities British citizenship. They are, of course, free to apply, like everyone else, under the selection scheme which was set up under the Act. I believe that the noble Lord, Lord Wilson of Tillyorn, said that the ethnic minorities had been left out. I do not believe that that is the case. They can apply under the scheme. Some hundreds have done so, and there is about a 60 per cent. success rate. It is expected that hundreds will have been successful by the end of the exercise. Records for the selection scheme are not maintained on the basis of ethnic origin, but I understand that a check was made on the basis of surnames which indicated that the ethnic minorities who have applied have been successful in the same proportion as other applicants.
I do not think the selection scheme itself could give preference to ethnic minorities. It is designed on an impartial and objective basis with points awarded according to certain criteria. We have been prepared to give an assurance to the ethnic minorities relating to their admission to the United Kingdom in the event of their coming under pressure to leave Hong Kong. I, like other noble Lords, agree that these people have given great service to Hong Kong. I believe that they should be adequately looked after in so far as we reasonably can do so. But that applies also to other people in Hong Kong. We have tried to be fair with all of them.
We have, however, given an assurance to the ethnic minorities. We do not expect that any members of the non-Chinese ethnic minority will be forced to leave Hong Kong after 1997. Their right of abode in the

415
special administrative region of Hong Kong is explicitly protected in the Sino-British Joint Declaration and the Basic Law. There is no reason to think that the Chinese will not honour their commitments in that regard. We have, though, over the years regularly assured the non-Chinese ethnic minority in Hong Kong that if, against all expectation, members of that group were to come under pressure to leave Hong Kong and had nowhere else to go, the government of the day would be expected to consider, with considerable and particular sympathy, their case for admission to the United Kingdom. I can repeat that assurance today.
I come back to where I started when I said I felt these were sensitive issues. They are matters about which any government would feel acutely concerned. We are bound under these orders by the British Nationality (Hong Kong) Act. We have tried to be flexible and that is the reason why we have brought forward these orders today. I hope your Lordships will realise that we are doing our best to deal with this problem as sympathetically as possible. I hope your Lordships will find it appropriate not to try to call a Division which would create the impression that there is discord among your Lordships as regards how to solve this problem which is of great importance.
8.35 p.m.
Lord McIntosh of Haringey: My Lords, I rise to respond on my amendment. I am grateful to those noble Lords who have expressed support for the amendment. I note in particular the noble Lords, Lord Chalfont, Lord Wyatt and Lord St. John of Bletso, and of course my noble friend Lord Shackleton who, I suggest, knows more about these issues than almost anyone in the House. I say that with some diffidence bearing in mind the distinguished speeches we have heard this evening.
I am not convinced by the arguments of the Government. I do not think it is true that the Government needed to be limited in the way the Minister described. I do not think the orders show the flexibility that is required. I believe that in many cases they impose new bureaucratic structures rather than creating flexibility. The Minister said that it was possible through the order to re-allocate places in under-used categories to those in the disciplined services. I believe that that matter is probably better dealt with by future negotiation rather than by seeking the opinion of the House at this time. Although I hope that the noble Lord, Lord Bonham-Carter, will not follow my example, If beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Baroness Cox): My Lords, the Question is that the original Motion be agreed to?
On Question, Motion agreed to.

Hong Kong (British Nationality) (Amendment) Order 1993
8.37 p.m.
Earl Ferrers: My Lords, I beg to move.
Moved, That the draft order laid before the House on 22nd June be approved [35th Report ,from the joint Committee].—(Earl Ferrers.)
On Question, Motion agreed to.

Hong Kong: British Citizenship
8.38 p.m.
Lord Bonham-Carter Lord Bonham-Carter rose to move to resolve, That this House calls upon Her Majesty's Government to give full British citizenship to members of the non-Chinese ethnic minorities in Hong Kong who will be without a right of abode elsewhere after 1997.
The noble Lord said: My Lords, my first duty is to thank all noble Lords and noble Baronesses who have spoken for the extraordinary unanimity with which they have spoken and for their eloquence, experience and conviction. I particularly wish to thank the noble Baroness, Lady Dunn, who has made a journey to be here and who made such a magnificent speech. I congratulate also the noble Lord, Lord Wilson of Tillyorn, on his shuttle from Scotland to England arid back again. I join with others in saying how much I respected the speech made by the noble Lord, Lord Glenarthur. I was particularly pleased to note that the noble Baroness, Lady Thatcher, was in her place throughout the debate. That added greatly to our proceedings. I wish to include in my thanks the noble Earl, Lord Ferrers, who had an absolutely impossible task to fulfil. For once he did not succeed in fulfilling that task.
The noble Earl will not recognise that the ethnic minorities are a special case. He will not recognise what is a unique case. He regards 50,000 as in some way a sacred, magical number which cannot possibly be changed. It can be changed even if it means primary legislation. He did not tackle the questions which were raised by the speakers in the debate.
Although I do not want to embarrass anyone, it seems to me that to say that to have a Division would be a sign of discord is nonsense. What we have seen is real disagreement. I believe that that real disagreement has to be tested. I therefore wish to test the opinion of the House on this Motion.
8.40 p.m.
On Question, whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 48.

Division No. 3

CONTENTS

Attlee, E.

Bramall, L.

Beaumont of Whitley, L.[Teller.]

Butterfield, L.

Carmichael of Kelvingrove, L.

Beloff, L.

Chalfont, L.

Bethell, L.

Cox, B.

Bonham-Carter, L.

Darcy (de Knayth), B.

417

David, B.

Meston, L.

Donoughue, L.

Morris, L.

Dunn, B.

Morris of Castle Morris, L.

Falkland, V.

Pitt of Hampstead, L.

Geraint, L.

Prys-Davies, L.

Glenarthur, L.

Rennell, L.

Graham of Edmonton, L.[Teller.]

Richard, L.

Rodgers of Quarry Bank, L.

Greene of Harrow Weald, L.

Russell, E.

Grey, E.

St. John of Bletso, L.

Halsbury, E.

Saltoun of Abernethy, Ly.

Harmsworth, L.

Seear, B.

Harris of Greenwich, L.

Selborne, E.

Harris of High Cross, L.

Shackleton, L.

Hayhoe, L.

Stoddart of Swindon, L.

Howell, L.

Tordoff, L.

Hylton-Foster, B.

Waverley, V.

Kilbracken, L.

White, B.

Kitchener, E.

Wigoder, L.

Lawrence, L.

Williams of Mostyn, L.

Mclntosh of Haringey, L.

Willoughby de Broke, L.

MacLehose of Beoch, L.

Wilson of Rievaulx, L.

McNair, L.

Wilson of Tillyorn, L.

Marlesford, L.

Winchilsea and Nottingham, E.

Merlyn-Rees, L.

Wyatt of Weeford, L.

NOT-CONTENTS

Arran, E.

Astor, V.

Ashbourne, L.

Blatch, B.

418

Blyth, L.

Long, V.

Braine of Wheatley, L.

Lyell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Bruntisfield, L.

Mackay of Clashfem, L.[Lord Chancellor.]

Caithness, E.

Carnegy of Lour, B.

Milverton, L.

Carnock, L.

Mountevans, L.

Chalker of Wallasey, B.

Moyne, L.

Clanwilliam, E.

Peyton of Yeovil, L.

Cranborne, V.

Renton, L.

Cumberlege, B.

Rodger of Earlsferry, L.

Denton of Wakefield, B.

St. Davids, V.

Downshire, M.

St. John of Fawsley, L.

Faithfull, B.

Seccombe, B.

Ferrers, E.

Stewartby, L.

Fraser of Carmyllie, L.

Strathclyde, L.

Goschen, V.

Strathmore and Kinghome, E.[Teller.]

Hemphill, L.

Henley, L.

Thomas of Gwydir, L.

Hesketh, L.[Teller.]

Trumpington, B.

Howe, E.

Ullswater, V.

Jenkin of Roding, L.

Wakeham, L.[Lord Privy Seal.]

Leigh, L.

Lindsay. E.

Resolved in the affirmative, and Motion agreed to accordingly.
House adjourned at twelve minutes before nine o'clock.