HL Deb 15 July 1993 vol 548 cc346-83

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 Caithness

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

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—

  1. (a) all stations
  2. (b) all track and associated infrastructure,
  3. (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 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 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, 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.

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 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.

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; 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 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 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 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.
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 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 Railplanwould 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 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 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 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 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.
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 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. () 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.

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. 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 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—

  1. (a) land required for the safe and efficient operation of railway services, whether passenger or freight;
  2. (b) land required for other purposes connected with the operation of railway services or businesses related to their operation;
  3. (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—

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 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 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 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 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 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 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 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—

  1. (a) representatives of every person providing railway passenger or freight services within Great Britain;
  2. (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;
  3. (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—
  1. (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;
  2. (b) there shall be published a national railway passenger timetable including all the services of every person providing railway passenger services in Great Britain;
  3. (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;
  4. (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;
  5. (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;
  6. (f) measures are taken to promote the development of economically and environmentally efficient intermodal freight transport;
  7. (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;
  8. (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 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 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 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 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.