Railways Bill

HL Deb 19 July 1993 vol 548 cc523-80

3.7 p.m.

The Minister of State, Department of Transport (The Earl of Caithness)

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

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

Lord Shepherd

My Lords, perhaps I may raise a matter of procedure on the Motion and of business management.

Schedule 10 of the Railways Bill deals with some 350,000 pensioners, who have put their life savings in some respects into those pension schemes. It is their entitlement. The size of the schemes which will be dealt with is some £8.5 billion. The committee on delegated legislation looked at Schedule 10 and produced a report, which I understand will be considered on Wednesday. That will be followed later by consideration of the various amendments to Schedule 10. It was only close to midday today that I became aware of the amendments which the Government have laid on the Marshalled List. It seems to me that they pretty well rewrite the whole of Schedule 10. They are all highly technical. This is a matter which is beyond party political conflict. This House is seeking to find some way in which the redistribution of and amendments to the pension schemes should fall equitably among those who have worked all their lives or continue to work for British Rail.

It seems to me—it may seem so to others who have considered the amendments—that it would be difficult to do justice either to the House or to the pension schemes if the matter were to be taken on Wednesday. The amendments may be very helpful; at this moment it is too soon to say. There may be other amendments yet to be laid. I hear that that is a possibility.

Therefore, I put a plea to the Chief Whip as to whether he and the usual channels will have a serious and urgent discussion on the best way in which this important subject can be dealt with in justice to all those people who are affected and also in justice to this House. It is a revising Chamber. At this moment in time it has the final responsibility so far as concerns Schedule 10 since it has been passed by another place.

I make only one suggestion for consideration. Having listened tomorrow to what the Government have in mind, perhaps there could be a very firm commitment from the Government that Schedule 10, and that part of the Bill dealing with the pensions, should be recommitted to the House after the Summer Recess. However, I urge upon the Chief Whip and the noble Earl, Lord Caithness, that in the light of our own responsibility and the seriousness of the issues that are confronted in Schedule 10 the matter cannot be dealt with on Wednesday. I hope that noble Lords will bear that factor in mind.

Lord Boyd-Carpenter

My Lords, this is not a party matter, as the noble Lord, Lord Shepherd, said. I was very puzzled when I saw on the Marshalled List page after page of amendments to Schedule 10. It is quite obvious that this House's function as a revising Chamber could not possibly be discharged as early as Wednesday in respect of this mass of amendments which will involve a great deal of hard work by those who are studying them. I hope, therefore, that the Minister will have something to say to meet the point that has been put. A promise of recommitment seems a possibility. However, simply to plug ahead with all the amendments next Wednesday would be not only letting the House down but also treating somewhat irresponsibly the interests of the thousands of people whose future depends on a proper handling of their pension arrangements.

Lord Marsh

My Lords, perhaps I may draw attention to what has been amended in the Bill. The issue deals with the pensions of British Rail staff past and current, as has already been said. The Government have had this complex problem for a long time. Nothing new has emerged in relation to those schemes. I ask the Minister to comment on this. The first item deals with the transfer of pension rights and corresponding assets and liabilities. That is the crux of the entire governmental policy towards those pension schemes affecting almost 400,000 people, as has already been said. More than three-quarters, the vast majority, of that section of the Bill relating to the transfer of the pension rights, assets and liabilities has been redrawn and rewritten in the amendments.

The next part relates to the powers of protection of the pensioners. Again, large quantities of the measure have been amended. It is very difficult indeed for the Government—they must have had months of discussion on the issue—to expect people to take part seriously in a debate when they find the ground rules changed at this stage.

3.15 p.m.

Lord Clinton-Davis

My Lords, these Benches support noble Lords who have already spoken. Quite apart from the difficulties to which reference has already been made, the Minister could not reasonably expect any of your Lordships to be able to take expert advice, which is critical in these matters in particular from the point of view of the Opposition parties. How on earth could we do that before next Wednesday?

Since I became a Member of this House, albeit only three years ago, I can recall no issue on which I have had such an immense post bag from people who express deep anxiety about these matters. I am sure that a number of your Lordships who have been interested in the passage of the Bill will share that experience. It reflects a deep and abiding anxiety because it is the future of those people which is at stake and they are naturally worried about it. I believe that it would put your Lordships' House in a somewhat unseemly situation if we were to debate such matters of considerable importance, difficulty arid technical significance without having access to reasonable and expert opinion. Therefore, the suggestion by my noble friend Lord Shepherd should commend itself to the House. I shall listen with great interest to what the Minister says.

Lord Peyton of Yeovil

My Lords, I support what has been said. I have tabled Amendment No. 126. It would be quite wrong for me to argue the case for it now Amendment No. 126 was drafted with one matter in mind; namely, to give effect as nearly as possible in plain words to the clear promise made by the Government in the White Paper that the position of pensioners would not he altered as a result of a privatisation measure.

There is plenty of room for argument about much of what is in the Bill. However, there can be absolutely no room for argument as to where the rights and wrongs lie when it comes to fulfilling the promise made very solemnly in a formal document to pensioners, to people who have retired, who can do nothing to protect themselves and whose position will be altered as a result of government action, wise or foolish. It is really a very solemn obligation upon the Government to make sure that that position is not in any way prejudiced.

Without wishing to delay matters, I believe that the consideration of the long series of amendments now put forward on this subject demands postponement, unless, of course, in the interval it is possible for those who are carrying out the argument to realise the impossibility of doing anything other than giving full protection to the pensioners.

For the life of me I cannot understand what the reason or delay is. Again and again we have this penny pinching attitude which in the end reflects nothing but discredit on the Government. It must be extremely embarrassing to the Ministers who have to put forward the measure. I hope that my noble friend will complain to his right honourable friend —he has had the courtesy to invite me to see him tomorrow evening —that it is high time that the discussions were ended in the only way in which they can be ended respectably and with honour.

Lord Tordoff

My Lords, from these Benches I support what has been said. I do not in any way wish to go into the substance of the amendment. Noble Lords may be interested to realise that we are talking about Amendments Nos. 126ZA onwards, which cover about five pages of today's Marshalled List. This may well be—I am sure that the Minister will say that it is the case—in response to the promises that were made in another place in order to sort out the problems which already existed with Schedule 10. If that is the case, then it is to be welcomed that the Government have at last made a move on this subject. If this is the answer, it has taken a long Lime; but it is an answer. But none of us is in a position. certainly not today, and almost certainly we will not be by Wednesday, to comment on whether this is an adequate response from the Government to the questions that were raised in another place.

I have a proposal on the Marshalled List that seeks to omit Schedule 10. If we get to that, I shall have no idea which Schedule 10 we are talking about. We are in an unusual position. I hope that the Government can listen to what the noble Lord, Lord Shepherd, said, and perhaps use the time between the end of the Recess and the overspill in order to get this whole matter tidied up, to the great credit of the Government and of this House.

The Earl of Caithness

My Lords, I listened with care to what was said, particularly by the noble Lord', Lord Shepherd. I am sorry that he did not receive the amendments until lunchtime today. They were in fact tabled on Thursday. They were available to all noble Lords on Friday. That is a considerable and decent length of time in which the amendments could be studied. The important point is that the noble Lord, Lord Tordoff, is right. Those noble Lords who have followed this discussion with care will realise that there are three groups of amendments tabled by the Government. Two amendments follow commitments given in another place, which should be welcomed by all noble Lords. One indeed fulfils a commitment given to the honourable friend of the noble Lord, Lord Clinton-Davis, the Member for Wrexham. If the noble Lord does not want to support his honourable friend from Wrexham, that is up to the noble Lord. But it was a matter that the Government said that they would bring forward in this House. 1t is an amendment to specify that the views of the trustees will be made available to noble Lords before any affirmative order is discussed. I am sure noble Lords will welcome that. The Government said that they welcomed it and would bring forward an amendment.

Other amendments also fulfil a commitment to give those with pension rights the indefeasible right to stay in a joint industry scheme. We shall go into the details of this, but again it is to fulfil a commitment made in another place.

The third group of amendments alters and improves the definition of a protected person. Again, I believe that noble Lords will welcome that. The amendments are all designed to protect and improve the position of the pensioner. My noble friend Lord[ Peyton of Yeovil referred to a totally different: amendment from that raised by the noble Lord, Lord Shepherd. I look forward to discussing that matter with him on Wednesday.

I do not believe that there is any difference between any of us in this House as to what the Government's commitment was, is, and remains. What we seek to do —and we are still in discussion at this precise moment with the trustees and the British Railways Board—is to make sure that the Bill as presented to your Lordships will, together with the government assurances, provide the necessary reassurance to all the pensioners. We have said that that is what we seek to achieve. We remain totally of that view; so there is nothing between Members in this House in trying to get to that position. But that is a different question from the one posed by the noble Lord, Lord Shepherd. Obviously, this is a matter for the usual channels. My noble friend the Chief Whip has listened to the discussion and we shall obviously wish to reflect upon it.

Lord Clinton-Davis

My Lords, further to what the Minister has said, it is not really sufficient to say that we have had a reasonable time in which to consider amendments of this technicality and detail. He says that they were tabled on Thursday and were available on Friday. Many of us were not able to be here on Friday. I saw the amendments this morning for the first time. Perhaps I am blameworthy in that. Had I seen them on Thursday, or Friday morning, I think that I would have been none the wiser.

The Minister says that the amendments are largely in fulfilment of commitments that were made in another place. I do not in any way suggest that he is wrong. But the detail is all important in these matters. It is the detail that will affect whether the Government have got it right or wrong; and most particularly whether the pensioners will feel that their case has been properly and adequately considered by this House. With great respect I say to the Minister: he has said that he will consider the matter through the usual channels, and we are grateful to him for that, but I impress upon him the need to think basically about the timetable for this matter. In my view it is not adequate to continue to discuss these matters on Wednesday.

Lord Boyd-Carpenter

My Lords, before my noble friend replies to that point, perhaps I may take up with him his statement that this is a matter for the usual channels. With respect, I do not think that it is. I think that it is a matter for the House. The usual channels may or may not be interested in the careful study and analysis of highly complicated and very important amendments. But this House is interested. If this House is to do its job as a revising Chamber on a matter of considerable public importance, it must have the time to study these amendments. With respect, whether the usual channels agree or not, I suggest to my noble friend that this House has its own duties to perform, and cannot perform them if these amendments are to be taken on Wednesday.

Viscount Whitelaw

My Lords, I understood my noble friend the Minister to say that the Chief Whip had listened to the discussion and would certainly consider the matter. Surely the only way that it can be considered by this House—With all possible respect to my noble friend Lord Boyd-Carpenter—is for it to be planned according to the wishes of the House through the usual channels. There is no other way. If that is the wish of the House, I understand; and I am bound to say that I feel deeply about the railway pensioners for very obvious reasons. I, too, feel that we must be seen in this House to be genuinely looking after the interests of a lot of people who are naturally very worried. I only wanted to welcome the fact that the Chief Whip, having heard the discussion, will look into it with his noble friend. It seems to me that through the usual channels we ought to be able, as a House, to get what we all believe we want in this case.

Lord Tordoff

My Lords, perhaps I may add that as a Member of the House who is intimately involved in dealing with the Bill, and as a Member of the usual channels, I believe that I may act as a useful interface.

The Earl of Caithness

My Lords, I do not think that I can improve on what my noble friend Lord Whitelaw said.

On Question, Motion agreed to.

3.30 p.m.

House again in Committee accordingly.

[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]

Lord Clinton-Davis moved Amendment No. 125AF: After Clause 90, insert the following new clause: ("Safety provisions Before disposing of any subsidiary of the Board under the provisions of section 82 above, the Secretary of State shall require the transferee to disclose his safety record and policies.").

The noble Lord said: In moving this amendment, for the convenience of the Committee it would be useful to discuss with it Amendments Nos. 125AP and 125AQ.

This group of amendments deals with the issue of safety in the railways, and in particular with safety under the new regime that the Government envisage. The culture of safety is a matter of the greatest concern. One needs only to go back to the appalling recollection of the "Herald of Free Enterprise", when the old P&O company was indicted from top to bottom because it failed to exercise that culture of safety. In that situation, irresponsibility and negligence permeated the company right down from the top to the bottom. Yet one had there a system of regulation which people failed to observe.

With the greatest goodwill in the world, however sophisticated the system of regulation may be, safety in any industry—particularly so far as concerns the railways—ultimately depends not so much (although it is important) on an enforceable and enforced system of regulations, as primarily on dedicated and experienced staff and managers—people who are properly trained, but who are also devoted to their calling. We are talking about train drivers, panel operators, shunters, supervisors and technicians—the whole gamut. The public depends on them.

Those highly experienced, dedicated men and women, who have kept safe our old, out-dated signalling and rolling stock, have worked under immense pressure—pressure from staff levels being cut and the reduction of British Rail in preparation for privatisation. There has unquestionably been inexorable pressure to cut costs, drive down support payments and deny British Rail access to private funds which exist elsewhere. That is a debate that we have had on previous occasions and I shall not go into it now. The reality is that thousands of members of British Rail staff —I believe approximately 7,500— have left the service of the railways recently. They had an average length of service of something like 30 years. That is a direct result of pressures that have come from the Government, with further uncertainties and probably job losses adding to problems of morale.

British Rail staff operate in an environment that is increasingly constrained by cash limits which, in my judgment and the judgment of those far more expert than I, are far too rigid. That is not conducive to establishing the high safety standards that the public demands.

We can reflect that a few years ago the safety culture on British Rail was a matter of the highest significance. I do not suggest that among management and staff it has substantially diminished now. But those other factors to which I have just referred have to be taken into account. There are fewer train crews, fewer staff at stations and fewer people to look after the customers. To some degree there is a relaxation of some aspects of the BR rule book. All that combines to make it increasingly difficult to keep a check on safety. BR gets by largely because of the dedication of staff, to which I referred.

What happened at Clapham and King's Cross led to very sharp criticisms of the railway inspectorate being made by the inspectors—lack of attention to London Underground issues in the latter case. But, with respect to the inquiry, I do not believe that sufficient attention was addressed to the issue of the inspectorate itself being understaffed and too small to discharge its public responsibilities. Some of us have expressed concern also about inspectorates in other areas; for example, the Department of Transport's surveyors in relation to shipping who have been reduced very substantially over recent years.

What emerged from the inquiries was a picture of an organisation at breaking point, stretched and demoralised by constant reorganisation, not least because of impending privatisation. That is a constant pressure that has been brought about by the Government. The Hidden Report stated at Recommendation 50: BR shall ensure that the organisational framework exists to prevent commercial considerations of a business led railway from compromising safety".

Safety clearly requires team work of the highest order. It requires clear lines of command. It has to extend to a multitude of issues, including the ownership of the infrastructure, the requirement to pay for essential safety on trains, proper dissemination of information concerning safety, examination of track and bridges and so on. Anything that increases the chances of misunderstanding between operatives on the ground can easily lead to a fatal compromise with safety.

The anxieties on this side of the Chamber are that privatisation will further fragment an organisation that is probably too fragmented already. Safety validation is very helpful if the regime is well established; but it is not and cannot be the sole or even main protector of safety. I certainly do not say that all potential franchisees will be thirsting for reductions in safety standards. I know only too well that in all areas of transport there are excellent employers in the private sector. Many of them recognise the desirability of combining with trade unions, not simply for collective bargaining purposes but also to ensure high safety standards and in the context of the Health and Safety at Work Act 1974 the role of trade unionists is extremely important.

Such companies would have nothing to fear from a scrutiny of their safety policies. That is the purpose of Amendment No. 125AF, which seeks to expose the safety policies of prospective purchasers of BR subsidiaries to the scrutiny of employee representatives and the public. In my submission that cannot be an unreasonable idea. But not every employer can face up to the scrutiny to which the best employers can face up. That is an issue which I believe is absolutely critical for the public and indeed for existing BR employees.

I turn to Amendment No. 125AP. Its purpose is to incorporate into the legislation the Health and Safety Commission's recommendations on future safety. Obviously the Government felt deeply concerned about safety implications in relation to their privatisation proposals and indeed the fragmentation of British Rail. That is why, faced by considerable criticism from within both Chambers and outside—from pressure groups and trade unionists—as well as from the Transport Committee in another place, the Government said that they must examine the matter with the Health and Safety Commission. In consequence, the Health and Safety Commission made 37 recommendations to which If shall turn in a moment. The Government said that they accept all of them and we are very happy that that should be the case. I do not believe that it is necessarily sufficient and that is why we propose these amendments today.

Let me turn to some of those 37 recommendations. Obviously I cannot go through all of them and the Committee will in any event have access to them. Perhaps I can summarise the situation. First, the Health and Safety Commission and its Executive should be supreme on safety matters. Secondly, Railtrack will validate the safety arrangements of all train and station operators. Thirdly, Railtrack's own safety arrangements will be scrutinised by the Health and Safety Executive. Fourthly, there will need to be procedures for settling disputes. Fifthly, there should be arrangements for assessing the competence of certain safety-critical staff, especially drivers. Next, consideration should be given to controlling the hours worked by drivers. Lastly, the Health and Safety Executive and Railtrack should have sufficient resources to carry out their work. In my submission that goes to the very heart of the role of the HSE. The Health and Safety Commission were making that point in the recommendations. It said that it was imperative that there had to be enough staff and resources available if that system—I add, with all its imperfections—is to be made to work from a safety point of view.

In paragraphs 5 and 6 of the report one sees a good deal of underlying scepticism about the whole process. I quote: Companies with little or no previous experience of operating on the railway and managers with limited experience of railway safety issues will enter the railway industry as the BR monopoly is broken. Many changes in traditional working arrangements may be proposed. Control of railway operations will be divided between many different organisations and this will generate a need to define the extent of the responsibilities of each party and to ensure effective management of safety (including emergency planning), particularly at the numerous interfaces between parties. Unless considerable care is taken to set up systems to ensure that new operators are properly equipped and organised there can be no confidence that risk will be effectively controlled right from the start and that important matters do not fall between the safety arrangements of the various parties. The consequences of failing to achieve adequate systems of control will be seen in increased risk on the railway system and the likelihood of an increase in the numbers, and possibly also the severity, of accidents". That is a very critical paragraph in the report. The commission has done its job well. It is right that we should also reflect on another transport area where standards have slipped—not in all respects but certainly in some. I refer to the privatised bus industry. We therefore have to ensure that we do not have a recurrence of that state of affairs on the railways.

As far as concerns the future role of British Rail's safety organisation, overall responsibility for the strategy remains centred on the corporate headquarters of the British Railways Board. But the separation of track and train management envisaged in the Bill, together with the involvement of private sector train operators and maintenance contractors, threatens to create fragmentation. That could have an effect on overall safety policy. When the matter was being debated in Committee in another place on 18th March the Minister said (at col. 836 of the Official Report) that the BR standards unit—responsible for standards of construction for new rolling stock, locomotives and track—would be moved with the BR safety auditing organisation to Railtrack. Whether or not BR eventually becomes a franchisee in its own right, the corporation will continue to operate as a residual train operator for some considerable time. So we have to ask the question: who is to perform these safety functions for BR if the expertise has gone out and has been transferred to Railtrack? Will we have duplicate organisations, which undoubtedly would be very expensive? The Government should answer that question in this debate.

There remains a strong possibility that some franchises will be let on a vertical basis to cover trains, tracks, stations and maintenance depots. That appears to be the purpose underlying the plans for the Isle of Wight service. If Railtrack is to have no involvement, who will validate the safety arrangements of the train operators? In Committee in another place the Minister said: Although the Isle of Wight railway company will be responsible for running the passenger trains and looking after the infrastructure for the period of the franchise, Railtrack will still be responsible for validating the safety case of the Isle of Wight railway company for passenger operations and maintenance of the infrastructure". —[Official Report, Commons Standing Committee B, 18/3/93; col. 834.] The fact is that Railtrack will normally be able physically to prohibit access by a train operator to any track until the safety case has been approved. Can that be the situation with a vertically integrated franchise? Will it be the case? I shall listen with interest to what the Minister has to say.

I wish to say a few words about hours of work because when the inquiry was held into the Clapham accident excessive working hours—and constant overtime in particular—were stated to be, a clear minus factor as far as safety is concerned". BR was recommended to monitor overtime working. Then BR introduced a number of proposals, which I shall not go into now. One of them was that a working week was not to exceed six days or 72 hours. Perhaps we shall be talking about this on Thursday but in this day and age to be talking about working weeks in this context of up to 72 hours' duration seems utterly outrageous. Of course that is not the general level of hours, but that too is very high indeed. In a Written Answer on 5th July the Secretary of State said that for the week ending 26th June this year the average hours worked were 47.8 for drivers and 50.8 for signalmen. Here we have people with the greatest responsibility in terms of safety having to work quite excessive hours, which could easily have a damaging effect on safety.

Our case is that there is a risk—it is a risk that is by no means fanciful—that safety standards could be eroded. We are looking for firm guarantees from the Government that they will not simply use their best endeavours but that this situation will be averted. The Government must take seriously the fact that some prospective private operators will not follow the safety precepts of British Rail and that there will be a temptation, particularly in times of financial difficulty, to trade off conditions of the workforce, extend working hours and impair conditions in our railway system.

During the Committee stage in another place the Minister said that he would reflect on the proposed 28-day time limit for Railtrack .to consider a train operator's safety case. He said: Should we give Railtrack and the Health and Safety Executive sufficient time to consider an application so that they are not under pressure to decide?". He also promised to, have something further to say about research".—[Official Report, Commons Standing Committee B, 18/3/93; col. 836.] I have not seen any follow-up to that. Perhaps the Minister will be able to put me right.

I turn to the resourcing of the Health and Safety Executive. If the executive is not properly resourced then clearly dangers will arise. We need to have the clearest assurances from the Government today that there will be no question of underfunding as regards the railway responsibilities of the HSE. The Minister must not rely on the fact that, whatever happens to this Bill and whether or not it becomes law eventually, there will be a lessening of the furore that applies at the present time. Will proper resourcing apply throughout the lifetime of our future railway service?

How is the HSE to operate? Will we have a system comparable to classification societies in shipping? That area is fraught with difficulties. As the Minister knows only too well, the European Community is having to consider anxieties about some of the activities of classification societies. Will there be a reduction in the number of surveyors, as has happened in the shipping industry? Checks are one thing but the everyday conditions of the safety environment are something else.

The basic problem that could arise in this new development of the railways is that an accident or a series of accidents —if there was another Clapham or another King's Cross—might mean that a franchisee simply could not afford to put matters right. The option will then be almost open-ended government subsidy. We do not know what the terms of repayment will be. That is a major question. The franchisee may go under, or threaten to do so. We may have a situation where the franchising director has to look for another franchisee. That reverts to the old debate that still remains open. The situation is fraught with practical difficulties.

As far as Amendment No. 125AQ is concerned, the Government have given assurances that the Health and Safety Commission report, Ensuring Safety on our Railways, will be implemented and that Railtrack will be responsible for safety validation of railway operators. Discussion of those arrangements has been made very difficult by the fact that Railtrack is not mentioned in the Bill. The new clause proposed by Amendment No. 125AQ will require regulation of working hours and rest periods for safety-critical staff. The Government have promised that. It is not in the Bill. However, in fairness to the Government the Health and Safety Commission's document, Draft Proposals for the Railways (Safety Critical Work) Regulations purports to deal with that situation. There is a statutory instrument annexed to that document which will regulate the hours of many railway workers. First impressions of this recently published document are that it will provide a reasonably safe framework for working hours in the rail way industry. But we need an assurance from the Government that they will implement the statutory instrument and incorporate any changes that may come from the consultation process in which they will be engaged over the course of the next few months.

I conclude by asking a question that I hope the Minister will be able to answer. It vitally affects people who are engaged in litigation, particularly if it is likely to be long drawn out. BR has very properly adopted the policy of making interim payments for damages to mitigate hardship, particularly where litigation is likely to be long drawn out. Are the Government prepared to take any steps to ensure that that practice will also be honoured by franchisees? I believe that future litigants will hope that the answer to that question will be a very robust "Yes". I beg to move.

Lord Tordoff

In rising to support this amendment I do not intend to say very much more than has already been said comprehensively and very properly by the noble Lord, Lord Clinton-Davis. This is an issue of great concern. If the new system does not get health and safety right on the railways we will have failed. In regard to Amendment No. 125AQ, I am particularly attracted by the publication of a code of practice by the Health and Safety Executive so that there will be a continuing review of the yardsticks laid down.

My main point relates to Amendment No. 125AF, which is a requirement on a transferee to disclose his safety record and policies before subsidiaries of the board are disposed of. I spent most of my working life in the chemical industry. That was a very dangerous place in which to be, though not where I was working. I refer to the laboratories and factories of the chemical industry. That industry has a very good safety record. It has that record because there is a consciousness in that industry of the need for health and safety. Over the past few years the Chemical Industries Association has worked very hard on a programme that it calls Responsible Care. It is that attitude which is very important in the whole health and safety area. The places where there are serious problems are those in which the top-level management or board of a company does not take safety as seriously as it ought to do. In a safe company there has to be an understanding that the people at the top of the organisation regard safety as a very high priority—a priority greater than the bottom line of the profit and loss account. Unless one has that attitude accidents will happen, and when they happen they will be serious ones.

It is important that the transferee should disclose his safety record and policies on safety. The noble Lord, Lord Clinton-Davis, referred to the bus industry. It is true that since the deregulation of that industry safety standards have declined in some areas. Standards in other areas have also declined, but it is particularly so in the case of safety. That applies to some, though not all, of the smaller bus companies. Some of them are the very people who may wish to take out franchises in the new railway network. It is because of that that it seems to me to be wise that before transfers are made very close scrutiny is made of anybody who wishes to bid for a franchise or one of the subsidiaries of the board.

Baroness O'Cathain

I have a great deal of sympathy for this amendment. Perhaps one way of tackling the matter would be to recommend the procedure followed by airlines, which have an air safety committee of the same status as the remuneration or audit committee of the board. I believe that to make such a committee a statutory requirement may cause too many legal problems or place too many constraints upon franchisees. However, where safety is paramount and there is genuine public concern about safety of transport, perhaps the Government may see fit to recommend that in the case of privatisation the franchisee should, in effect, have responsibility for formulating a rail safety committee. I put forward that suggestion to the Committee.

4 p.m.

The Earl of Caithness

I agree with all who have spoken to this amendment on the importance of safety. I am delighted that the noble Lord, Lord Clinton-Davis, has moved these amendments because it provides the Committee with its first opportunity to consider in detail the very important matter of railway safety.

Before I address the terms of the amendments before us, I hope that your Lordships will find it helpful if I say a little about the arrangements that the Government propose to ensure that safety on the railways is maintained. I make absolutely clear at the outset that safety has been of paramount concern in the formulation of proposals. That is why we have sought the independent expert advice of the Health and Safety Commission (HSC) which is and will continue to be the railway safety regulatory authority. Its report on the safety implications of our proposals was published earlier this year. That report recognised the possible safety implications of privatisation. Thus, it made safety recommendations to ensure that there would he no diminution of safety standards. It contained 37 detailed recommendations that covered all aspects of railway safety.

As the noble Lord, Lord Clinton-Davis, said, not only did the Government accept those recommendations but, it is worth stressing, BR also accepted all of them and said that they were the right recommendations for the future. We do not want to lose the expertise that exists in BR. That is why the BR rail safety organisation will be retained and transferred to Railtrack as a unit. There will be no diminution of expertise. We welcome that and believe it to be right. I am sure that your Lordships will also welcome it. If BR were to run a franchise it would be subject to safety case regulations in the same way as any other operator. The new safety regime is based upon that —a system of preparation and validation of railway safety cases. All operators, including Railtrack, will need to have a validated safety case before operations commence.

Just to be absolutely clear: before operations commence a railway safety case will have to be produced. That safety case will set out how the operator intends to meet all necessary safety requirements. It will include safety policy, risk assessment and a description of safety management systems. Railtrack will have primary responsibility for safety of operations on the network and will validate the safety cases of operators wishing to come onto the network. Railtrack's own safety case will be validated by the Health and Safety Executive. Therefore, even if one offered a potential franchise to someone who had not until that moment been involved in the railways, before that person could be granted the franchise he would have to satisfy the stringent tests of a railway safety case.

The statutory framework for the new safety regime will be provided in regulations to be made not under the Bill, but under the Health and Safety at Work etc. Act 1974. A consultation exercise on the three sets of draft regulations was launched by the HSE earlier this month. It is the intention that the regulations should come into force at the beginning of next year. The Government, HSE and BR are confident that the new safety regime will ensure that there is no diminution of safety standards following privatisation.

Turning to the amendments before us, I shall deal first with Amendment No. 125AF, which provides that before the disposal of any BR subsidiary, the Secretary of State shall require the transferee to disclose his safety record and policies. From what I have already said, Members of the Committee will understand that I have no difficulty with the sentiments underlying the amendment. Nobody will be able to operate on the rail network without having previously demonstrated that he can do so safely. Therefore when a transferee takes over a company which was previously a BR subsidiary, there will have to be in place a validated railway safety case. This is not just a one-off exercise. The safety case will need to have shown how the operator will continue to meet the necessary safety requirements. Compliance with the safety case will be the subject of monitoring by Railtrack and the HSE. The HSE will continue to enforce standards across the industry.

However, the mechanism for achieving that is not through the Railways Bill, but through the HSWA regulations. A provision such as that proposed by the noble Lord, Lord Clinton-Davis, is inappropriate for this Bill and unnecessary because its intent is already being met under a different Act.

In responding to Amendments Nos. 125AP and AQ, I think it would be helpful to say just a little about what lies behind Clause 110. The HSC's report recommended that appropriate parts of the existing legislation relating to railway safety should be made "relevant statutory provisions" under the HSWA. Clause 110 fulfils that recommendation. Its effect is to enable the statutory provisions and regulations made under them to be progressively replaced by a system of regulations and approved codes of practice. The legislation listed in the clause relates to the proper construction and safe operation of certain transport systems, of the vehicles used on those systems, and the protection of railway employees or the general public from personal injury and other risks. Thus, the regulations to implement the HSC's report are being made under the HSWA.

Amendment No. 125AP seeks to limit the effect of Clause 110 only to the extent necessary to implement the HSC's recommendations. We believe that that would tie the hands of the HSE, which is and will continue to be the railway safety regulatory authority. The HSE and HM Rail Inspectors are the safety experts and if they see a need to develop or modify regulatory control or issue codes of practice on matters related to railway safety, they must be free to do so. I hope Members of the Committee are agreed on that. The production of HSWA regulations is a process involving consultation with all interested parties, as I have already mentioned. I hope that the Committee will therefore understand why I cannot agree with Amendment No. 125AP.

Amendment No. 125AQ relates to a specific aspect of the new safety regime and a matter that was dealt with in some detail in the HSC's report. The amendment would require the HSE to publish a code of practice setting out maximum working hours and minimum rest periods for railway staff. It would require operators to employ staff on terms which comply with that code of practice.

The HSC report made a number of recommendations in respect of personal safety factors including the selection, training and certification of staff and also in relation to avoidance of fatigue. The noble Lord, Lord Clinton-Davis kindly admitted that we had taken action and, as a result, the draft HSWA regulations propose a new general duty on operators to ensure safety critical staff do not work excessive hours that may compromise the safe performance of their duties. That would be in addition to the general duties on employers under the HSWA which include ensuring protection against risks arising from fatigue caused by working excessive hours. The HSE has gone further in the case of train drivers where the job requires constant vigilance over extended periods and the ability and skill to react to events in all circumstances. For consultation purposes, specific limits on the hours of duty to be worked by drivers have been proposed based on existing BR limits modified to provide greater flexibility.

It is important also to make clear that there is little objective evidence in this area. Indeed the HSC report concludes that it is unlikely that truly objective general limits could be defined on the basis of current knowledge. Nevertheless, the consultation exercise demonstrates that it is an issue of importance and one on which the views of all those with an interest are being sought.

Amendment No. 125AQ is therefore premature. A code of practice for dealing with hours of work is not the way of current HSE thinking, although it will want to take account of all views expressed on this matter. I can assure the Committee that operators will have to comply with whatever is included in the final regulations.

I turn to some of the points of detail raised by Members of the 'Committee. The noble Lord, Lord Clinton-Davis, asked about vertical integration. Although the HSE regulations propose that the HSE rather than Railtrack should validate the safety cases of infrastructure controllers, it is proposed that Railtrack will validate the safety case of the Isle of Wight. As that is a small, self-contained operation, Railtrack will keep the freehold of the infrastructure. I therefore confirm what I said earlier to the noble Lord. I do not see the difficulty that he sees in that issue.

The future of British Rail research is the subject of current discussions between the Government and the board. Those discussions are taking place in the context of a wider examination of the research requirements and capacity of the future rail industry. We intend to commission studies of those wider issues and will make the final decisions in the light of them.

The noble Lord, Lord Clinton-Davis, raised the important question of resources. In responding to the HSC's report, the Government confirmed their commitment to ensure that adequate resources are made available to enable the HSC and the inspectors to fulfil the tasks that they will need to carry out their work following the privatisation measures.

I listened with interest to the noble Baroness, Lady O'Cathain, regarding the introduction of a rail safety committee. Perhaps she will allow me to give the matter further consideration with my right honourable friends the Minister for Public Transport and the Secretary of State before replying more fully. I can then write to her on that matter.

Lord Tordoff

Before the noble Lord, Lord Clinton-Davis, decides what he is going to do about this amendment, I should like to thank the Minister for what he has said this afternoon. It is a very reasoned response to the genuine questions which have been raised. As I said before, this is a matter which must exercise Members in all parts of the Committee. It is not a party issue. The answers are somewhat complicated. I hope that it will be possible to take this matter away and return to it, if necessary, at a later stage, but it is entirely in the hands of the noble Lord, Lord Clinton-Davis.

Lord Clinton-Davis

I am grateful to the Minister and to those who have participated in this debate; and in particular to the noble Baroness, Lady O'Cathain, for the suggestion which she made, which is certainly worth considering. I am glad that the Minister has said that he will reflect on it with his colleagues. The precedent for that is encouraging. It can do no harm and it could do a power of good. Therefore, I am grateful that this debate has led to that very positive suggestion and I am sure that the Committee will acknowledge that. I do not for one moment dispute the Minister's and the Government's commitment to safety, but perhaps we have a different approach. I shall certainly read with care what the Minister has said.

I wish to raise one or two matters which emerged from his reply. Going to the heart of the first amendment is the concept of transparency and to what extent the Health and Safety Executive, in its consideration of these matters, will also reflect on the importance of taking into account the views of the public—and here the role of the safety committee, if implemented, could be very useful—and also those of the staff. They have everyday experience of working on the railways. I am sure that through their trade unions and as individuals they can make the most useful responses to questions raised by the HSE and could themselves also have some useful innovative ideas.

The Minister said that as regards working hours there was little objective evidence. The problem has been rather better dealt with on the railways than it has been in terms of road haulage. The Minister and I—I believe it was the Minister in his earlier capacity when I was in the commission—and certainly Ministers from his Government were engrossed in many hours of debate over the question of drivers' hours and rest times. Today we have a very unsatisfactory regime. It is not properly policed and it is certainly not properly enforced. Many abuses exist. As commissioner, I remember that Ministers overrode the commission's objections to their amendments, which were carried unanimously against the will of the commission. I warned at the time that an unsatisfactory regime would follow and that has happened. Therefore, we must take note of the evidence that occurred in that particular case. I am sure that the Government will do that in this context.

As regards resources, this Government in particular have made promises of adequate resources in other respects, but the promises have gone a little wanting. But we can only tell in the future whether that will be the case. This is a matter to which the Commission gave enormous emphasis. The Government would be very foolhardy if they sought to reduce the resources in any shape or form.

Before I sit down I shall invite the Minister to comment on the question I raised concerning litigation and the very worthwhile practice of interim payments by British Rail at the present time. Is the Minister able to say that he will make any recommendations in that regard to the franchising director so that this matter would become an important condition under which the new franchisees will operate? Does the Minister believe that it is a matter of practice which ought to be maintained? I certainly do. I am certainly prepared to give way to the Minister to enable him to say something about that. If he is not in a position to do so, maybe he will write to me and then, as usual, put a copy of the letter in the Library.

The Earl of Caithness

The noble Lord, Lord Clinton-Davis, knows a lot more about litigation than I do. He thrives on it and I do not. On this particular issue, I am quite happy to take it away, have a look at what he says, and then write to him.

Lord Clinton-Davis

I thank the Minister. I no longer thrive on litigation as I used to. The noble Lord, Lord Tordoff, is very sad about that. I was an extremely capable litigator in my time. I hope that the Minister will reflect on this matter. Having regard to the way in which the Minister replied to the debate, as much as to the substance of it, I am prepared to reflect further on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Schedule 7 [Transfers by transfer scheme]:

Viscount Goschen moved Amendment No. 125AG: Page 154, line 8, at end insert: ("Perfection of vesting of foreign property, rights and liabilities —(1) This paragraph applies in any case where a transfer scheme provides for the transfer of any foreign property, rights or liabilities. (2) It shall be the duty of the transferor and the transferee to take, as and when the transferee considers appropriate, all such steps as may be requisite to secure that the vesting in the transferee by virtue of the transfer scheme of any foreign property, right or liability is effective under the relevant foreign law. (3) Until the vesting in the transferee by virtue of the transfer scheme of any foreign property, right or liability is effective under the relevant foreign law, it shall be the duty of the transferor to hold that property or right for the benefit of, or to discharge that liability on behalf of, the transferee. (4) Nothing in sub-paragraphs (2) and (3) above shall be taken as prejudicing the effect under the law of the United Kingdom or of any part of the United Kingdom of the vesting in the transferee by virtue of a transfer scheme of any foreign property, right or liability. (5) The transferor shall have all such powers as may be requisite for the performance of his duty under this paragraph, but it shall be the duty of the transferee to act on behalf of the transferor (so far as possible) in performing the duty imposed on the transferor by this paragraph. (6) References in this paragraph to any foreign property, right or liability are references to any property, right or liability as respects which any issue arising in any proceedings would have been determined (in accordance with the rules of private international law) by reference to the law of a country or territory outside the United Kingdom. (7) Duties imposed on the transferor or the transferee by this paragraph shall be enforceable in the same way as if the duties were imposed by a contract between the transferor and the transferee. (8) Any expenses incurred by the transferor under this paragraph shall be met by the transferee.").

The noble Viscount said: In moving this amendment, I shall speak to Amendment No. 127J. These amendments are essentially of a technical nature. Amendment No. 125AG is a revised version of paragraph 3 in Schedule 12, dealing with transfers of foreign property when a transfer scheme is made under the Bill. The main alterations are the deletions of references to the "transitional period" during which the provisions of the paragraph are to apply. We need them to apply without any time limit. The new paragraph is to be inserted into Schedule 7, which contains the other detailed provisions concerning the making of transfer schemes.

Amendment No. 125J tidies up the ensuing loose end by deleting the existing paragraph 3 in Schedule 12. These are not controversial amendments, and I commend them to the Committee. I beg to move.

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

Clauses Nos. 91 to 93 agreed to.

Clause 94 [Target investment limit for Government shareholding in certain successor companies]:

Lord Carmichael of Kelvingrove moved Amendment No. 125AH: Page 100, leave out line 29.

The noble Lord said: In moving this amendment, with the leave of the Committee I shall speak to Amendment No. 125AJ. The object of Amendment No. 125AH is to remove the presumption that the public stake in partially privatised undertakings will be allowed only to contract. Clause 94 permits the Secretary of State to vary the proportion of shares retained by the nation in privatised railway companies. That power can vary and be very useful to a future government hoping to increase public control of the railways. However, subsection (4) (a) insists that the degree of state ownership can be varied only in a downward direction. It is that provision which we seek to delete.

How can we tell what will happen in future? Other countries in the world have had to take over more and more of their railway undertakings. It is not as though increased public control and public investment in railways is something which can be done by stealth. It will be a matter for open public discussion. But there could be a situation where more public investment, and therefore some increased public participation, will be the only way to sustain a rail network. In the present fluctuating state of transport and the problems of traffic in conurbations, it will be wise to have this provision as a stopgap for a future government.

Amendment No. 125AJ is to prevent the Secretary of State utilising the disposal powers contained in Clause 94 to privatise non-British Rail undertakings such as London Underground, Glasgow Underground, the Docklands Light Railway or the Tyne and Wear Metro.

The definitions of "operating company" and "public sector railway company" in subsection (10) could permit the Secretary of State to reduce the public stake in railway companies not owned by BR. That may be an unintended consequence of the Bill being made a "Railways Bill" rather than a "British Railways Bill", which is what many of us thought that it should have been. On the other hand, if it had been called the "British Railways Bill", Madam Speaker could have decided that it was hybrid. The provisions may herald a so far undeclared intention to extend privatisation beyond British Rail and its subsidiaries. It would be a very sad day if the present purpose of Glasgow Underground, London Underground, the Docklands Light Railway and the Tyne and Wear Metro, were to be removed. That purpose is to relieve congestion and to make some kind of attempt at providing integrated transport in urban areas. We believe that this amendment is of vital importance. I beg to move.

Viscount Goschen

The noble Lord, Lord Carmichael of Kelvingrove, has explained that the effect of Amendment No. 125AH would be to remove from Clause 94 the requirement that any new target investment limit for the government shareholding in a privatised operating company must be lower than the one it replaces. The intention of that requirement, in subsection (4) (a), is that a privatised company which has a fixed government shareholding knows that shareholding can only decrease through time. The effect of the amendment would be that the Government would be in a position to renationalise such a company by revoking an existing order and making a new one with a higher government investment limit. This would provide a considerable deterrent both to innovation in the company and to investment by other shareholders.

It is our policy that the role of the private sector in the railways should increase through time and this amendment would provide unacceptable uncertainty as to the future. If a future Government wished to renationalise the railways—and we very much hope that they would not—then it is only right that they should have to pass primary legislation in order to do so.

Amendment No. 125AJ deletes publicly-owned railway companies from the meaning of "public sector railway company". The effect of this deletion is that a target investment limit for the government shareholding could not apply to a company which became a government-owned company before privatisation. Railtrack will fall into this category. The target investment limit could only apply to a direct privatisation of the board or one of its subsidiaries.

We see no reason for singling out government-owned companies in this amendment. We believe that the arguments in favour of this clause, which I have already outlined, apply both to privatisations of British Rail subsidiaries and to those of companies such as Railtrack.

In each case, we want to encourage private sector ownership and investment, not to deter it. And in each case, we believe that if a future Government wish to renationalise a privatised railway company, then they should have to pass primary legislation in order to do so.

I therefore cannot commend either of these amendments to the Committee, and invite the noble Lord to withdraw them.

Lord Carmichael of Kelvingrove

The Minister will not be surprised to hear that that was a disappointing reply. In effect, he is taking all flexibility away from an industry which, as I tried to say earlier, is in a state of flux and which needs, in certain areas, to be flexible enough to try to solve some of the problems of the urban areas.

If a future government were so minded, it would be possible for them to take more of the equity into public ownership. That could be done. In the future, we could end up with a crisis in which government money would be desperately needed. I have tried to draw that scenario for the Committee. l believe that the future lies with dedicated transport and with rail transport in the large urban areas.

The Minister did not answer my question about the fact that the well developed underground systems in London, Glasgow and Tyne and Wear, and the Docklands Light Railway could be targeted if the Government decided to take no interest in them or to pass the public service railway companies over to private enterprise. Before I decide whether to withdraw or press the amendment, I wonder whether the Minister could give me some reassurance on that point.

Viscount Goschen

I apologise for my omission in my reply. Perhaps I may explain further that Clause 94 would not allow the Secretary of State to privatise London Underground Ltd, Tyne and Wear Metro or the other companies which the noble Lord mentioned. The provisions relate only to holdings in certain public sector railway companies, not to London Underground Ltd. I draw the noble Lord's attention to subsection (1) of Clause 137.

Lord Carmichael of Kelvingrove

I thank the Minister for that explanation. It is the one reassurance that we have had today and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125AJ not moved.]

Clause 94 agreed to.

Clause 95 agreed to.

Clause 96 [Government lending to certain successor companies]:

Lord Carmichael of Kelvingrove moved Amendment No. 125AK: Page 101, line 46, leave out ("for the time being").

The noble Lord said: The purpose of this amendment is to try to elicit from the Government an assurance that it is not their intention to write off loans when Railtrack is privatised, thus providing a particularly good buy for anyone wishing to invest in it. This is a probing amendment which seeks to delete from Clause 96 the definition of any successor company (by which the Government mean Railtrack) as one which is for the time being wholly owned by the Crown. The significance of this will not be lost on the Committee in that the position of a loan may vary between it being triggered when it was wholly owned by the Crown and after privatisation when it becomes a private company and the loan has to be repaid.

I am sure that the Committee would welcome a comment from the Minister on whether there is any intention, if necessary, to sweeten the sell-off of Railtrack in the future by indicating that the Government may write off loans which they accorded that company while it was wholly owned by the Crown.

Railtrack will be the keeper of the infrastructure of the railways and it will need massive investment to sustain that infrastructure. Therefore, the sums involved could be substantial in themselves and we feel that Clause 96 gives the Secretary of State the power to provide privatisation incentive. Given the new force of law that may be applicable to statements made in both Houses, we are looking for the Government to give a categoric assurance that that is not the intention of the clause and that under no circumstances will loans not be repaid in the proper time and at appropriate interest rates.

Certainly, there has to be a clause which provides for the transition period and the necessity for an input of government money, but it is money that should remain in the public domain and which should not be lost with any assets to a private undertaking. Our request in this amendment is fairly straightforward. I commend it to the Committee. I beg to move.

4.30 p.m.

Viscount Goschen

I cannot accept Amendment No. 125AK. The purpose of Clause 96 is to enable the Secretary of State to make loans to successor companies wholly owned by the Crown. Railtrack will be such a company before, in time, it is privatised. The clause would not allow loans to be made by the Secretary of State to a privatised successor company which had formerly been wholly owned by the Crown.

We do not believe that the amendment would change the effect of the clause, but it might make it less clear that loans can be made under this Clause only while a successor company is wholly owned by the Crown. In the light of that explanation, I ask the noble Lord not to press the amendment.

Lord Carmichael of Kelvingrove

I am sorry, but I find the Minister's reply unsatisfactory. The Minister is saying that a loan will be made to a company wholly owned by the Crown, but there is no suggestion that immediately after privatisation there will be any obligation on the new company to repay what might be vast sums of money. It is all very well saying that that will be taken into account when deciding the price. It would be wrong if those willing to become involved in the purchase of railway property or services know that that sort of money will be spent, and that they will be able to get out from under the loan. I believe that it would cause a great furore. The Minister seems to have something to say to me, perhaps he would like to intervene.

Viscount Goschen

I am grateful to the noble Lord, Lord Carmichael. Clause 96 enables the Secretary of State to make loans, not to write them off. Clause 99 deals with the restructuring of debt.

Lord Carmichael of Kelvingrove

The restructuring of debt is what we are worried about. I shall take away the Minister's remarks for consideration and perhaps return to the matter on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 agreed to.

Clauses 97 and 98 agreed to.

Clause 99 [Extinguishment of certain liabilities of successor companies]:

On Question, Whether Clause 99 shall stand part of the Bill?

Lord Clinton-Davis

I wish to raise a matter in relation to Clause 99 which concerns the writing off of the railways' debts. I am somewhat worried about that, and I should like the Government to be rather more open than has been the case in the past. We know from experience that the privatisation programme in which the Government have indulged has cost no less than £13 billion in terms of the debts written off over the past 14 years.

I rely upon a Written Answer given by a former Chancellor of the Exchequer of 3rd March 1992, in which he gave full particulars of the amounts that had been written off in relation to British Aerospace, the National Freight Corporation, the British Transport Docks Board, British Telecommunications, where nearly £2.8 billion was written off. With British Airways, BAA and British Steel, about £3.5 billion was written off. Nearly £5 billion was written off in respect of water holding companies and Scottish electricity companies.

The explanatory notes as to the financial effects of the Bill, which the Minister will see at page xi, state: The proposals in this Bill are not expected to lead to major reductions in public expenditure in the short term". They can say that again! I do not envisage that there will be much scope for public expenditure reductions in the middle or long term, having regard to the open-ended subsidies that the Government will be forced to make in this rather crazy scheme.

It would be wholly inappropriate—putting it in the most neutral terms consistent with the elegance of this place—if the public were to find that the writing off of BR's debts would lead to substantial further losses. I understand that BRB's accounts for 1992–93 indicate that capital liabilities to the Secretary of State amount currently to nearly £1.9 billion. I hope that the Minister will be able to give a reasonable assurance that the public will not be in for another outrageous amount as a result of the Government's proposals.

Viscount Goschen

We cannot accept the deletion of Clause 99 from the Bill. That would prevent the Secretary of State from extinguishing liabilities of successor companies which are for the time being wholly owned by British Rail or the Crown.

Clause 99 enables the Secretary of State to secure any necessary capital restructuring of successor companies by converting public sector loans into securities. The effect of removing the clause would be to take away the ability of the Government to write off debt of successor companies in return for the allotment of shares in that company or for some other forms of security such as a debenture.

The Government's long-term intention is to privatise such companies. It needs powers such as this to restructure them in preparation for sale. It would certainly not improve the Bill to remove Clause 99, and I ask the Committee to agree that the clause stand part, especially in the light of the fact that the debt is written off in return for the allotment of shares on some other form of security.

Lord Tordoff

I do not intend to start being a financial expert, but it is all very well for the Government to say that they have to do that. All that the noble Lord, Lord Clinton-Davis, is pointing out is what an expensive exercise it is. Perhaps taxpayers should be made aware that they are funding an expensive exercise.

Lord Clinton-Davis

I am grateful to the noble Lord, Lord Tordoff, for his intervention. The Minister was shrouding whatever facts may be in this brief with remarkable expertise. I learnt nothing from what he said. I had asked him what were the Government's plans in relation to writing off British Rail's indebtedness. The Minister said nothing about it. He spoke of possibilities. The public need to know, and the Government have been coy about this. What is the truth of the matter? I shall not press a Division on the deletion of Clause 99—the Minister can take comfort in that fact—but I want to know, and the massed ranks on the Benches behind me want to know.

Noble Lords

Hear, hear!

Viscount Goschen

It is too early to say how much debt, if any, might be written off using the powers contained in this clause. That can only be considered in the light of the restructuring scheme in question.

Lord Tordoff

The Minister is asking this place to write a blank cheque for the Government.

Viscount Goschen

The debt can only be written off by order, so it will be with the consent of Parliament.

Lord Tordoff

Although orders may be debated in this place, they are not voted against and cannot be amended. So by allowing the clause to stand part, we are today writing a blank cheque for the Government.

Lord Clinton-Davis

Are we talking about something like £2 billion?

Viscount Goschen

I have stated clearly that it is too early to say how much debt, if any, might be written off using the powers contained in the clause.

Lord Clinton-Davis

With respect, the Minister must have some idea. Are we talking about £50, £1,000 or £2 billion? It seems to me from the BRB's own statement that it rather looks as though it is the latter.

Viscount Goschen

The noble Lord, Lord Clinton-Davis, invites me to speculate as to the amount. I have been absolutely clear that at present I cannot say how much debt, if any, will be written off.

Lord Clinton-Davis

It is fairly clear that the public will catch another heavy weight as regards the indebtedness and it will have to pick up the bill. That is extremely unsatisfactory. I have listened to the Minister's response which is just about as unsatisfactory as it could be, although expressed in the nicest possible terms. I know that the Minister always tries to be helpful, but on this occasion, he has not been. However, I do not wish to press the matter any further.

Clause 99 agreed to.

Clauses 100 and 101 agreed to.

Clause 102 [Grants to the Board]:

Lord Carmichael of Kelvingrove moved Amendment No. 125AKA: Page 106, line 22, at end insert: ("() The Secretary of State shall every year lay before Parliament his criteria for and the method of calculating the total payments to be made to passenger service operators by virtue of any provision of the public service obligation regulations. The Secretary of State shall include with this information an estimate of the payments to be made by virtue of any provision of the public service obligations for each of the next five years. () In this section "the public service obligation regulations" means Council Regulations (EEC) No. 1191/69 on the public service obligations in transport, as amended by Council Regulation (EEC) No. 1893/91.").

The noble Lord said: This amendment asks that: The Secretary of State shall every year lay before Parliament his criteria for and the method of calculating the total payments to be made to passenger service operators by virtue of any provision of the public service obligation regulations".

The public service obligation payments to the railway are paid as compensation for the cost of operating socially necessary railway services required by the Secretary of State. As the costs of providing a railway service are easily quantifiable, it should be possible for the Secretary of State to quantify the PSO payments required to meet the objectives which he sets for the railway operators.

At present, the PSO appears to be calculated on the basis of the minimum which the Government believe that they can get away with in any particular year. Private operators will have to plan over a number of years—perhaps over a longer period than the Government tend to plan—and it seems reasonable that the Secretary of State should publish art important part of that information in order that the privatised companies can plan their future services. That seems to be self-evident common sense.

Now that the Government have decided to privatise, the privatised companies will he expecting that a number of the lines which already receive .PSO grants will continue to do so. As many of the lines will be feeder lines for the main services, it is rather important that some idea should be given as to the amount of money which the Secretary of State is likely to allocate to those lines. If it varies too much, it could greatly affect the privatised companies. Despite the impression that we may have given because of our opposition to the Bill, we still want the railways to work properly and as efficiently as possible. Therefore, we believe that it is only fair to include such an undertaking on the face of the Bill. I beg to move.

4.45 p.m.

Lord Redesdale

On these Benches, we support the amendment. It seems only fair that as the Government have stated that privatisation will make the system cheaper to run, the subsidies to be supplied to the privatised companies should be scrutinised. It would seem odd indeed if after privatisation the costs should rise steeply and the Government would have to pay more subsidies to a service which they consider to be cheaper. It is possible that in the future some privatised companies may run a service because of the subsidies available and for no other reason.

Viscount Goschen

As the noble Lord said, the amendment is aimed at requiring the Secretary of State to publish his criteria for making, and his methodology for calculating, payments to be made to passenger service operators by virtue of the public service obligations, as defined in the amendment. In addition, it seeks to require the Secretary of State to make an estimate of payments to be made by virtue of those regulations in the following five years. I should say that PSO grant will continue to be paid, under the powers in Clause 123.

Under the current system, the Government pay BR a block. PSO grant to compensate them for running loss-making but socially necessary services. In future we intend that the franchising director will enter into separate franchise agreements covering the whole network, under which grant will be paid in respect of specific groups of services. Prospective franchisees will bid for the subsidy they believe they will require on the basis of forecasts of costs and revenues.

The Government want to increase transparency. Under the new regime, we will therefore have franchise agreements and franchise contracts which will contain the details of the subsidy to be paid for specific groups of services, rather than having one very large subsidy for the whole railway.

Prior to franchising, services which continue to be operated by BR will continue to receive PSO subsidy. But as BR sets up subsidiaries in preparation for franchising, we expect the franchising director will move away from block grant so that the arrangements closely resemble how they will be once the service has been franchised.

As regards the overall budget for passenger railway subsidies, the Chancellor will announce, as part of the unified budget, the funds which will be made available to the franchising director for the following year, and the provisional figures for the following two years. That is consistent with the treatment of other public expenditure.

I hope that the noble Lord will be content with the explanation that I have given and agree that no further provision is necessary.

Lord Carmichael of Kelvingrove

I listened carefully to the Minister's reply. He will realise that it is not one in which we can see too much reason. We believe that the Secretary of State should be much more specific about detailing the PSO. However, I shall look at the Minister's reply and decide what is the best way to handle the matter.

Amendment, by leave, withdrawn.

Clause 102 agreed to.

Clauses 103 to 105 agreed to.

Schedule 8 agreed to.

Clause 106 [Objectives of the Secretary of State and corresponding duties of the Board]:

Lord Tordoff moved Amendment No. 125AL: Page 107, line 20, at end insert: ("() ensuring efficient transport of goods by rail, if necessary by using his powers under sections 124 and 126.").

The noble Lord said: I understand that the noble Lord, Lord Clinton-Davis, does not wish to move this amendment; but Members of the Committee will remember that at an earlier stage of the Bill we sought to put general objectives into the Bill. We were then referred to Clause 106 in Part II and a different clause in Part I. It seems to me very important as no general objectives are to be written into the Bill—the Committee rejected that proposition—that we should make sure that Clause 106 is adequate. I believe that the fact that there is very little reference to freight in this part of the Bill is an omission. I certainly would not wish to press the amendment, but it is very important that since we failed to convince the Committee that there should be overall objectives, we should get the objectives right at this stage. I beg to move.

Viscount Goschen

If I understand the amendment correctly, its purpose is to ensure that the privatisation of BR's freight services does not prejudice the future carriage of goods by rail. First, the objectives which are listed in Clause 106(2) already include the desirability of maintaining efficiency in the provision of railway services. Perhaps I may remind the Committee that the term "railway services" includes services for the carriage of goods. I should also remind the Committee that my noble friend explained that the term "railway services" included services for the carriage of goods by railway in response to Amendment No. 110AV on 7th July. The noble Lord, Lord Carmichael, was good enough to accept the Minister's assurance on that point.

Secondly, Clauses 124 and 126 provide the Secretary of State with a mechanism for tipping the balance in favour of rail versus road where there are clear benefits from doing so. The amendment neither adds to nor subtracts from those important provisions.

Of course, we have made it plain on a number of occasions that the purpose of privatisation is to unshackle rail freight from state control and allow it to develop away from bureaucratic intervention. The industry faces many challenges as its traditional markets contract and its road haulage competitors adapt to meet today's distribution needs. Privatisation will release the energy of managers to develop creative solutions to rail freight problems. In the light of that explanation, I invite the noble Lord, Lord Tordoff, to withdraw the amendment.

Lord Tordoff

I am grateful to the noble Viscount for that response. I believe that it illustrates the fact that those of us on this side of the Committee need to look further at Clause 106 before the next stage of the Bill's proceedings. If it is the only part of the Bill that deals with objectives, I am not at all satisfied that it is as comprehensive as it ought to be. However, I shall leave the matter there for the present. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 106 agreed to.

Clause 107 agreed to.

Clause 108 [Parliamentary disqualification]:

The Deputy Chairman of Committees (Lord Hayter)

I must point out to Members of the Committee that if Amendment No. 125AM is agreed to, I cannot call Amendment No. 125AN.

Viscount Goschen moved Amendment No. 125AM: Page 108, leave out lines 22 to 27 and insert: (""Director of a company—

1. (a) which, within the meaning of Part II of the Railways Act 1993, is a successor company wholly owned by the Crown, or
2. (b) which, within the meaning of that Act, is wholly owned by the Director of Passenger Rail Franchising,

being a director nominated or appointed by a Minister of the Crown, the Director of Passenger Rail Franchising or any other person acting on behalf of the Crown".").

The noble Viscount said: Amendment No. 125AM is essentially technical. It plugs a possible loophole in Clause 108 (which is a standard provision in legislation) that directors of companies owned by the Crown should be disqualified from sitting in the House of Commons. There is a potential gap which Clause 108 at present leaves open. It need not necessarily be the case that a company wholly owned by the franchising director will be a "successor company", as defined in Clause 91 of the Bill. There may be cases in which property, rights and liabilities are not vested in it in accordance with a transfer scheme under the Bill—they may be vested in the company by other means. The government amendment removes a possible loophole by ensuring that the directors of any company wholly owned by the franchising director will be subject to parliamentary disqualification.

I turn now to Amendment No. 125AN. Its effect would be to extend parliamentary disqualification to directors of wholly-owned British Rail subsidiaries. It would not disqualify directors of companies which BR sells to the private sector; nor will it apply to the directors of private sector franchisees. The definition of "successor company" in Clause 91(1) makes that clear.

In practice, we doubt whether many directors of wholly-owned BR subsidiaries will be Members of the other place. But there is no reason to prevent that happening. The convention is that paid servants of the Crown should be disqualified from sitting in another place. British Rail and its subsidiaries are not emanations of the Crown. We do not see any need to go against the conventions by extending parliamentary disqualification in that way. I would ask the noble Lord not to press this amendment. I beg to move Amendment No. 125AM.

Lord Clinton-Davis

In tabling Amendment No.25AN, I was simply seeking to probe a point that turns, at least in part, on the Government's amendment. As I understand it, the legislation prevents a Member of Parliament from being a director of a successor company owned by the Crown. The current amendment extends that provision to include directors of all railway operating companies.

At the end of the privatisation process which is being undertaken by the Government and after the passing of the legislation, the Secretary of State and, to some extent, Parliament, together with the appointees of the Secretary of State—namely, the regulator and the franchising director —are bound to be able to exercise enormous collective and individual influence over the railway operating companies. Therefore, in such a situation is it appropriate for Members of Parliament to be capable of influencing the opportunities of competing private companies when they may in fact be directors of rival companies? I merely tabled the amendment in order to give myself the opportunity to ask that question.

Lord Tordoff

We are now entering an area of great complexity. In the past people have been caught by being members of organisations where they did not realise that they would be disqualified. I raise the point because it was such a situation that caused a Bill to be passed retrospectively in another place which allowed Lord Winstanley to retain his seat when he was the Member for Cheadle. I mention that fact because it gives me an opportunity to do something that I would wish to do; namely, to pay tribute to Lord Winstanley who died on Saturday. I should like to say how much we on this side of the Committee—and I am sure Members on all sides—regret his passing.

Lord Boyd-Carpenter

I am far from clear as to what the position is under the two amendments. Perhaps my noble friend the Minister can make it clear whether or not I am right in suggesting that it is proposed that, where a company has been privatised, it is possible for one or some of its directors to be Members of another place, but that, where a company has not been privatised, the prohibition will still operate. Can my noble friend clarify whether I am right in that assumption or whether I have misunderstood the position?

Viscount Goschen

My noble friend Lord Boyd-Carpenter is basically correct in what he said. Amendment No. 125AN seeks to extend parliamentary disqualification to directors of wholly-owned British Rail subsidiaries. However, the point is that it would not disqualify the directors of companies which BR sells to the private sector; nor will it apply to the directors of private-sector franchisees. Therefore, what my noble friend said is correct as regards what would be the effect of Amendment No. 125AN.

Lord Boyd-Carpenter

I am much obliged to my noble friend.

Lord Clinton-Davis

I should like to take the opportunity, albeit not strictly speaking in order, to pay my own tribute, and that on behalf of this side of the Committee, to Lord Winstanley who so sadly and prematurely passed away over the weekend. He was a great servant of both this and another place. It was, indeed, an untimely death.

As I said, I simply tabled the amendment as a probing measure. I think that I have probed sufficiently. I shall not move my amendment.

Viscount Goschen

I should point out that I have moved Amendment No. 125AM.

Amendment No. 125AM agreed to.

[Amendment No. 125AN not moved.]

Clause 108, as amended, agreed to.

Clause 109 agreed to.

5 p.m.

Clause 110 [Safety of railways and other guided transport systems]:

[Amendment No. 125AP not moved.]

Clause 110 agreed to.

[Amendment No. 125AQ not moved.]

Clause 111 agreed to.

The Earl of Caithness moved Amendment No. 125AR: After Clause 111 , insert the following new clause: Security: power of Secretary of State to give instructions

(".—(1) The Secretary of State may from time to time give—

1. (a) to any person who is the owner or operator of a relevant asset, or
2. (b) to any person who provides railway services, such instructions as the Secretary of State considers appropriate for the purpose of ensuring that relevant assets within Great Britain, or persons or property on or in any such relevant asset, are protected against acts of violence.

(2) An instruction may be given to any person who appears to the Secretary of State to be about to become such a person as is mentioned in paragraph (a) or (b) of subsection (1) above, but an instruction given to a person by virtue of this subsection shall not take effect until he becomes such a person and, in relation to an instruction so given, the provisions of this section shall apply with the necessary modifications. (3) Without prejudice to the generality of subsection (1) above, an instruction may, in particular, require the person to whom it is given ("the recipient")—

1. (a) not to cause or permit any persons, or any designated persons, or more than a specified number of persons or designated persons, to enter any relevant asset or any designated relevant asset, or not to cause or permit them to do so unless they submit to a search or unless or until some other specified condition is complied with;
2. (b) not to cause or permit any goods, or any designated goods, or more than a specified quantity of goods or designated goods, to be brought or loaded on to or into any relevant asset or any designated relevant asset, or not to do so unless the goods in question are subjected to a search or unless or until some other specified condition is complied with;
552
3. (c)to run no trains, or to restrict the running of trains, or to run no train unless it is subjected to a search, or unless or until some other specified condition is complied with;
4. (d) to secure the carrying out of a search of—
   1. (i) any designated relevant assets, or
   2. (ii) any persons or designated persons who, or any goods or designated goods which, are on or in any such assets;
5. (e) to furnish to the Secretary of State such information as he may require for the purpose mentioned in subsection (1) above;
6. (f) to prepare plans specifying action to be taken by the recipient and his servants or agents—
   1. (i) in the event that an act of violence of a specified description occurs, or
   2. (ii) in times when there is an increased likelihood of such acts occurring,

and to conduct, at specified intervals, exercises in connection with the implementation of such plans;

1. (g) to employ specified numbers of suitably trained staff for the purpose of preventing the occurrence of acts of violence;
2. (h) to meet specified requirements with respect to the construction of, or to make specified modifications to—
   1. (i) any relevant assets, or any designated relevant assets, of which the recipient is the owner or operator, or
   2. (ii) any apparatus or equipment, or any designated apparatus or equipment, on or in any such assets.

(4) Where an instruction requires the carrying out of a search, it may also specify—

1. (a) the kind of search which is to be carried out;
2. (b) the manner in which the search is to be carried out; and
3. (c) the persons, or the class or description of persons, who are to carry out the search.

(5) Where any person refuses to submit himself or any goods in his possession to a search required by an instruction, any person authorised to carry out that search may take any steps that are necessary, including the use of reasonable force—

1. (a) to prevent the person concerned from entering the relevant asset in relation to which the search is being carried out; or
2. (b) to eject him, and any goods in his possession, from that asset;

but this subsection is without prejudice to any other powers of the person carrying out the search. (6) An instruction—

1. (a) shall be in writing;
2. (b) shall specify the time at which, or the period within which, it is to be complied with, and the period during which it is to have effect;
3. (c) may be varied or revoked by the Secretary of State.

(7) No instruction shall have effect in relation to any rolling stock which is for the time being in use in police service or in the service of the armed forces of the Crown. (8) A person who is the owner or operator of a relevant asset or who provides railway services shall be under a duty to comply with an instruction given to him under this section, notwithstanding the requirements of any other enactment or instrument relating to him or to—

1. (a) the use of, or the exercise of rights over, the relevant asset,
2. (b) the management of the relevant asset, or
3. (c) the railway services,

as the case may be, and notwithstanding any other duty or obligation to which he may be subject. (9) In this section—

• "act of violence" means—
  1. (a) any act which constitutes, or
  2. (b) any potential act which, if carried out, would constitute,

the offence of murder, attempted murder, manslaughter, culpable homicide, assault, real injury or malicious mischief. or an offence under section 18, 20, 21, 22, 23, 24, 28 or 29 of the Offences against the Person Act 1861, under section 2 of the Explosive Substances Act 1883 or under section I of the Criminal Damage Act 1971;

• "designated" means specified in an instruction, or of a class or description so specified;
• "instruction" means an instruction given under this section, and any reference to an instruction includes a reference to an instruction as varied under subsection (6) (c) above;
• "operator" and "owner" have the same meaning as in section 111 above;
• "relevant asset" has the same meaning as in section 111 above, and any reference to such an asset includes a reference to any part of any such asset;
• "specified" means specified in an instruction;

and, subject to that, expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.").

The noble Earl said: In moving Amendment No. 125A R I wish to speak also to Amendments Nos. 125AS, 125AT and 127AA. The recent terrorist campaign has underlined the need for effective protective security arrangements. The purpose of these amendments is to ensure that present railway security practices can be maintained following privatisation, and that powers exist to adapt these as necessary to any changes in the level of threat.

Currently BR is responsible to the Secretary of State for the safe operation of the railways. With regard to security, this means that the board maintains an awareness of any risks or threats to that safe operation, and ensures that best security practices are implemented so as to minimise such risks. The co-ordination of counter-terrorist security on the railways is undertaken at board level with a single chain of command to individual managers. This enables the responsible BR manager to ensure that appropriate day-to-day and contingency arrangements are in place, and to give fast and precise directions in the event of an actual emergency.

We believe that the current arrangements are effective, and the Government also believe that their essence must be maintained following privatisation. We must ensure that there is a continuity of best security practice during and beyond the transition to the private sector. We intend to ensure continuity by transferring the board's responsibility for the supervision of railway security to Railtrack. At the same time, the key BR personnel dealing with security will be transferred to Railtrack. Finally, there will be a Railtrack board member with responsibility for security matters, just as there is a BR board member with those responsibilities at present. Railtrack will operate the security command structure and implement BR's current security standards. We expect that Railtrack will continue to review and adapt these standards in consultation with operators and will inspect and check on the effectiveness of their implementation.

It might be helpful to stress that the role of the British Transport Police in providing guidance on dealing with threats and their key input into the planning and implementation of security arrangements will be unchanged by our proposals. The only difference will be that the transport police will provide assistance to Railtrack rather than to British Rail. The other security authorities will continue to co-ordinate the counter-terrorist effort.

In order for the existing day-to-day security procedures to continue to work effectively and to be improved and developed, we need to give them statutory backing. We expect the railway operators and owners who will enter the industry to be responsible people who will be keen, to implement thorough security procedures. For such people, our proposals will be positively beneficial, not just because they will make their part of the railway safer, but because they will ensure that all operators are working to the same standards, thus ensuring that the whole railway is as safe as we can practicably make it.

Our amendments follow closely the precedent of the Aviation and Maritime Security Act 1990. This Act already gives my right honourable friend the Secretary of State an important role in aviation and maritime security. The Act has worked well in practice and there is no reason to think that its principles will not apply to railway security. Standards of security in the maritime and aviation sectors are improving; only 10 enforcement notices have been issued against airports and seaports and air and sea carriers in the three years since the Act was passed, and there have been no prosecutions to date. By introducing a similar regime to the railways we will be able to draw upon the experience which has been built up in aviation and maritime security, particularly within the Department: of Transport, and will be able to strengthen the co-ordination of security across all modes of transport. That is why we have tabled these amendments. If any Member of the Committee so requires, I can go into detail on any of the amendments. Meanwhile, I beg to move Amendment No. 125AR.

Lord Clinton-Davis

I am a little puzzled as to why the Government have suddenly woken up and have tabled this long and complicated series of amendments so late in the day. The Minister said that the recent terrorist campaign as regards the railways was what had motivated the tabling of the amendments. I am sure that that is right and I am not challenging the need for these provisions; I merely wish to raise certain questions. My first question is this. As terrorism, or threatened acts of terrorism vis-à-vis the railways and railway stations in particular, have been taking place for a considerable period of time, why have the Government omitted the inclusion of these provisions in the original Bill? I believe that is a perfectly legitimate question to raise.

I wish to ask questions on certain other parts of the provisions. Is none of this covered by existing criminal law, particularly in relation to the powers of search? If these provisions are simply duplicating powers, that is undesirable. In what respect does the present law not encompass that which is set out as regards the carrying out of searches under, in particular, the proposed new subsection (3) (d)? That states: to employ specified numbers of suitably trained staff for the purpose of preventing the occurrence of acts of violence". That seems to be a strangely worded provision. How do the Government ever know what is to be the appropriate number of staff to be available in such circumstances? How are they to be suitably trained? Who is to train them? Are we contemplating the employment of private security firms? Save us, please, from Group 4 in such a context. The proposed new subsection (4) states that an instruction may specify, the kind of search which is to be carried out". It may also specify, the manner …and the persons, or the class or description of persons, who are to carry out the search". Why is that different from the provisions of the proposed new subsection (3) (g)? The proposed new subsection (7) states: No instruction shall have effect in relation to any rolling stock which is for the time being in use in police service or in the service of the armed forces of the Crown". I should have thought, with great respect, that that is somewhat otiose. Perhaps the Minister will be kind enough to respond to the points that I have just raised.

Lord Boyd-Carpenter

Like the noble Lord, Lord Clinton-Davis, I am a little puzzled by the necessity for this amendment. Obviously responsibility for security must remain with the Secretary of State, but is it necessary to legislate in such detail to secure that? Is there any comparable legislation in effect now in respect of other forms of transport such as aviation, buses or the like, or are they treated as being covered by the ordinary law and the ordinary duties of the Government to provide security? If they are, why is it necessary to have a special provision in respect of the railways?

Lord Tordoff

I also wish to make a general point on this matter and that is that I am always extremely leery of bits of legislation on matters of personal liberty being slipped into Bills at a late stage. I have frankly not given this matter the attention I ought to have done and I will now do so. I will draw it to the attention of people who know more about these things than I. This is one of those cases where I fear we may legislate in haste and repent at leisure if we are not careful. It seems a curious collection of clauses.

Like other noble Lords who have spoken, I do not deny the need for the Government to have in position such security measures as are necessary to deal with the threats that we face. However, the fact that the Secretary of State "may from time to time" do a whole series of things is rather worrying in the context of civil liberties. I for one should like to look more closely at this clause before the next stage.

The Earl of Caithness

Perhaps I may explain a little more about the need for the amendments to which I spoke. They are naturally of concern to the Committee because they relate to an area which we all want to get right.

Under the existing procedure, there is no formal arrangement with regard to security. It does not require statutory backing. The Secretary of State can give directions, and the British Rail Board will be able to take such measures as are necessary to carry out the policy they consider fit and appropriate. When one transfers that responsibility to the private sector, there is a necessity for legislation. I can say to my noble friend Lord Boyd-Carpenter that the Aviation and Maritime Security Act was necessary to cover these particular areas of concern in relation to aviation and maritime transport. I confirm to my noble friend that the Aviation and Maritime Security Act has been used as a model for the new clauses. Therefore, this Chamber has seen something very similar before.

I had expected the difference between the noble Lord, Lord Clinton-Davis, and the noble Lord, Lord Tordoff, to emerge. The noble Lord, Lord Clinton-Davis, asked why we needed the detail concerning the number of people involved, exactly what they will do and the question of training. The noble Lord, Lord Tordoff, said, as I knew he would, that he was anxious about civil liberties—and quite rightly so. Therefore, we thought that the more we spelt out clearly the type of work that needs to be done the better, having had the experience of the earlier Act.

I can confirm that the Bill does not alter the existing powers of search of the police or the British Transport Police, but it extends those powers to the operator, where appropriate. It is right to be aware that the new clauses cover a much wider range of matters than search. For example, it is possible to stop trains, and there have to be evacuation procedures, for which there is no present legislation. In order to continue the present regime which British Rail has built up and operated so well in the past and continues to do so —which I am sure is an objective which is endorsed by all Members of the Committee—we believed that it was right to spell out the detail which is necessary, and which is well precedented.

Lord Clinton-Davis

The Minister seeks to divide me from the noble Lord, Lord Tordoff, in a situation in which the difference between us is undetectable. I merely asked the Minister to justify certain aspects of the amendments, which have been thrust on us very late in the day. As I understand it, there was no suggestion in another place that this was necessary. I may be wrong about that, and I stand to be corrected; but it seems extremely late in the day. I posed a question to the Minister, to which he did not reply. Why was this omitted from the original Bill? Why was it not raised earlier in the debates which have taken place? According to the Minister, it is a matter of great substance. The Minister did not respond to a question from his noble friend Lord Boyd-Carpenter as to why this should be done in the case of the railways and not in the case of buses. However, perhaps there is a specific technical argument in relation to that point.

I am not raising any issue of principle with the Minister. It is right that much of this should be done; but I question some of the detail being imposed on the Committee at so late a stage. We shall certainly want to reserve our position so that we can reflect on the sort of questions which troubled the noble Lord, Lord Tordoff, and which trouble me.

The Minister did not deal with the points which I raised specifically. I asked him a perfectly reasonable question: is it contemplated by the Government that they will use private security firms to undertake some of these duties, particularly in relation to subsection (3) (g)? The Minister did not respond to that question. It is important that the Committee should know who is to be obliged to undertake these very important obligations, which affect the operation and enforcement of the criminal law in very sensitive circumstances. We are contemplating potential acts of terrorism.

The Minister did not answer the point which I raised in relation to subsection (7). There is no point in introducing into legislation that which already exists or is perfectly obvious. Therefore, I ask whether it is necessary to refer to rolling stock in use in the police service or the armed forces of the Crown. That seems to me to be otiose.

Perhaps the Minister will be kind enough to deal with those points.

5.15 p.m.

The Earl of Caithness

It is true that the amendments were riot tabled as soon as we would have liked. The precise arrangements had to be considered carefully, although there was the precedent of the Aviation and Maritime Security Act. We also had to await and consider the full implications of the determination of the safety responsibilities and the full role of Rail track.

The noble Lord asked who would undertake this work. That is a very general question. I do not want to duck giving the answer; but it depends on the context in which the noble Lord poses that question. When I moved the amendment, I alluded to some of the people who would be involved. It is possible that in certain circumstances the private sector could be involved, just as the private sector is involved in security in aviation and the maritime world, which are the two areas of the department which I know best. However, when one is dealing with an issue such as this, I would need to have a specific case in mind in order to give the noble Lord a specific reply.

As regards the points he raised, I too query from time to time why certain things are necessary in legislation. The noble Lord is a lawyer. He will often understand the necessity far more clearly than I will.

Lord Clinton-Davis

I thank the Minister for seeking to go into the issues further. I take it that he is a little puzzled about subsection (7). If he is not puzzled by it, he ought to be. I should like to know why he does not think that it is otiose.

That is not the real substance of the points I am seeking to raise. The Minister placed the burden on me —which I thought rather strange—to produce a specific case to suggest that it would be inappropriate to use subsection (3) (g). I ask him a simple question. In what context would the Minister expect trained staff—and he said that it might be necessary to use private security firms—to be used in this area? Are we to see private security firms deployed on our railway stations in future to carry out security checks? At present security checks, so far as they are carried out at all, are undertaken by the British Transport Police.

I believe that when one is dealing with the particular circumstances of the railways, and with people using the railways, it is appropriate that that is where the obligation should rest. Unless the Minister is able to justify it, I should not like to see a situation whereby we could have a Group 4, or whoever, carrying out searches on members of the public. It is difficult to contemplate the same situation applying on the railways as applies to our airports. If the Minister asks, "Why", one has only to go to any railway station to see the vast number of people assembled in railway stations at any given time. It is difficult to consider the issue in those terms.

I do not complain about the matter at this stage. I merely ask the Minister to provide us with further and better particulars. Perhaps he will indicate with a shake of the head "yea" or "nay". I understand that he can go further today. I shall let him do so.

The Earl of Caithness

Further I shall go. The noble Lord said that I should be concerned about subsection (7). I do not understand why I should be concerned about subsection (7). I am perturbed that the noble Lord is so concerned. Perhaps the police or the armed forces might charter their own train. If they do so, they would have their own security arrangements. They are answerable to the Secretary of State for Defence or the Home Secretary. Therefore there is no need to extend the powers of the Secretary of State under those provisions to cover the police and military services. That seems absolutely logical.

Lord Tordoff

The feeling underlying the discussion is not necessarily that private security forces are bad in themselves, although they have a poor record at present. However, with the breaking up of the British Transport Police as the network of security in our railway system, quite naturally we all have worries about the introduction of outside bodies into that network and about how such matters will be co-ordinated.

The Earl of Caithness

If I heard the noble Lord correctly, I believe that he referred to the breaking up of the British Transport Police.

Lord Tordoff

Perhaps I may rephrase that. referred to the fact that the British Transport Police will not necessarily cover the whole field in the future. Private firms may come into individual franchisee's operations. I understand that the British Transport Police will not be broken up. Nevertheless, the cohesion of the activities carried out by the British Transport Police in association with police forces throughout the country will be in a different situation once the regulations come into effect.

Lord Clinton-Davis

British Rail has found it unnecessary, so far as I know, to use private security firms on railways in the past. Presumably that is found to be impracticable. The British Transport Police, backed presumably by other police forces in a situation of emergency, has been found to be the best organisation to undertake those tasks. I am sorry that the Minister seems to move away from that proposition or to indicate the possibility that under the new regime that will no longer wholly prevail. There may be something to be said for private security firms. If Group 4 in particular operates, certainly our trains will escape on time! Perhaps that is all that one can say.

The Earl of Caithness

We are going around in circles. I believe that we all seek to get to the same place. Let us hope that we can get on to the right track and straighten out the bend on which we seem to have become stuck. I am sorry to see that the noble Lord, Lord Carmichael, dislikes that form of words.

Perhaps I may say this to the noble Lord, Lord Tordoff. Nothing that we shall do will affect the British Transport Police. There will be no change. It will stay as a unified force with the same role, but in the future advising Railtrack. It is important to be absolutely clear on that.

The reason that I tried to elucidate more from the noble Lord, Lord Clinton-Davis, is this. Given that that is the British Transport Police's main role, there are various other roles for which the private sector firms could be brought in. For instance, at present they are brought in on London Underground. It might be appropriate to search a train before it leaves the station. It might be better to do that by using the private sector than by using the police force. The same job can be done, but the British Transport Police will have, and will continue to have, a very important role in the future.

I do not believe that the argument used by the noble Lord, Lord Clinton-Davis, about the difference between Heathrow and a railway station stands up to any scrutiny. Private security is used at Heathrow. It can be used extremely effectively. However, the important issue is that the British Transport Police will continue to stay a unified force.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 125AS: After Clause 111, insert the following new clause:

Security: enforcement notices

(".—(1) Where it appears to the Secretary of State that a person upon whom an instruction has been served has failed, is failing or is likely to fail to comply with that instruction, he may serve on that person a notice (in this section referred to as an "enforcement notice") containing such provision as the Secretary of State may consider requisite for the purpose of ensuring that the person complies with the instruction and specifying, in particular—

1. (a) the things, or the description of things, which the person is required to do, or refrain from doing, in order to comply with the instruction;
2. (b) the time within which, or after which, the person must do, or refrain from doing, those things; and
3. (c) the period during which the person is to do, or refrain from doing, those things.

(2) The Secretary of State may vary or revoke an enforcement notice, and any reference in this section to an enforcement notice includes a reference to such a notice as varied under this subsection. (3) Where the Secretary of State varies or revokes an enforcement notice under subsection (2) above he shall serve notice of the variation or revocation on the person on whom the enforcement notice in question was served. (4) A person who without reasonable excuse fails to do anything required of him by an enforcement notice is guilty of an offence and shall be liable—

1. (a) on summary conviction, to a fine not exceeding the statutory maximum; or
2. (b) on conviction on indictment, to a fine or to a term of imprisonment not exceeding two years, or to both.

(5) No proceedings shall be instituted in England and Wales in respect of an offence under subsection (4) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions. (6) Section (Security: power of Secretary of State to give instructions)(8) above shall have effect in relation to an enforcement notice as it has effect in relation to an instruction. (7) Expressions used in this section and in section (Security: power of Secretary of State to give instructions) above have the same meaning in this section as they have in that section.").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 125AT: After Clause 111, insert the following new clause:

Security: inspections

(".—(1) For the purpose of enabling the Secretary of State to determine whether to give an instruction to any person, or of ascertaining whether any instruction or enforcement notice is being or has been complied with, a person authorised for the purpose by the Secretary of State in writing (in this section referred to as "an authorised person") shall have power, on production (if required) of his credentials, to inspect any relevant asset. (2) An authorised person inspecting a relevant asset under subsection (1) above shall have power—

1. (a) to subject any property found by him on or in the relevant asset, or any apparatus or equipment installed in the relevant asset, to such tests as he considers necessary for the purpose for which the inspection is carried out;
2. (b) to take such steps as he considers necessary for that purpose—
   1. (i) to ascertain what practices or procedures are being followed in relation to security; or
   2. (ii) to test the effectiveness of any practice or procedure relating to security; or
3. (c) to require the owner or operator of the relevant asset to furnish to him such information as the authorised person considers necessary for that purpose;

but nothing in paragraph (a) above shall entitle an authorised person to subject any rolling stock, or any part of any rolling stock, to any test. (3) An authorised person, for the purpose of exercising any power conferred on him by subsection (1) or (2) above in relation to any relevant asset, shall have power—

1. (a) to board any rolling stock and to take all such steps as are necessary to ensure that it is not moved; or
2. (b) to enter any land or other property comprised either in any track or in a network, station or light maintenance depot;

but nothing in this subsection authorises any use of force. (4) A person is guilty of an offence if he—

1. (a) intentionally obstructs an authorised person acting in the exercise of any power conferred on him by this section;
2. (b) fails, without reasonable excuse, to comply with a requirement imposed on him under paragraph (c) of subsection (2) above to furnish information to an authorised person; or
3. (c) in furnishing any information required under that paragraph, makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular.

(5) A person guilty of an offence under subsection (4) above shall be liable—

1. (a) on summary conviction, to a fine not exceeding the statutory maximum;
2. (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

(6) No proceedings shall be instituted in England and Wales in respect of an offence under subsection (5) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions. (7) Expressions used in this section and in section (Security: power of Secretary of State to give instructions) or ( Security: enforcement notices) above have the same meaning in this section as they have in that section.")

On Question, amendment agreed to.

[Amendment No. 125B had been withdrawn from the Marshalled List.]

Clause 112 [Carriage of mail by railway]:

[Amendment No. 125C not moved.]

Clause 112 agreed to.

Clause 113 [Railway heritage]:

Lord Carmichael of Kelvingrove moved Amendment No. 125CA: Page 112, line 41, leave out ("A publicly owned railway company") and insert ("Any company which is the operator of a railway asset").

The noble Lord said: Amendments Nos. 125CA to 125CC deal with railway heritage and in particular, although not exclusively, the National Railway Museum at York. The National Railway Museum at York was established about 10 or 15 years ago because the British Railways Board believed that its job was to provide railway services and not museums, although it was willing to help a great deal. In fact the railways gave the two excellent roundhouses in York for the museum. Because of what the British Railways Board believed, and because of the importance of railways to the history of the country in the past 150 years, it was considered that the museum should be taken over as a national museum. It was taken over by the National Museum of Science and Industry to give a comprehensive insight into the development of railways in the United Kingdom with items from primitive railways predicting the first public railways covering all periods through to the Channel Tunnel and CharterRail multi-modal freight vehicles.

York was almost the perfect place for the museum. It was originally the heart of the railway industry. The industry began in the York area. Anyone who has visited the museum will realise how far back its history goes and what is meant by primitive railways.

The Bill provides for publicly-owned railway companies to submit records and artefacts to the collection. It is silent on the private sector. If the Government's hopes are fulfilled, it must be expected that important developments in railways in the future are more likely to arise in the private sector than in the public sector.

Therefore the proposed amendments do two things. First, they redefine the companies that must offer historic material for preservation to include all owners of railway assets, whether items connected with networks, trains or depots, which may have significance for heritage purposes. Secondly, to avoid conflicts of interest, the amendments transfer responsibility for the committee which will guide the selection of items for preservation from the board to the Secretary of State. That is simply because of the widening of scope to include the private sector.

The private sector has made many crucial contributions to the National Railway Museum and other collections, including railway artefacts. The basis of the national collection was established by private railway companies preserving locomotives, rolling stock and other items for their own purposes from the mid-19th century onwards. Nearly all of them have now been brought together, and the most significant parts have been brought together in the National Railway Museum in York. Some prototype locomotives manufactured for demonstration purposes by private builders have been preserved. It is interesting that the Deltic Diesel in the Science Museum at Kensington is, I believe, one such gift. Private companies have been generous supporters of the railway preservation movement through donations of surplus items or by making these available for acquisition on reasonable terms. Therefore, there is nothing new in the principle that the private sector should contribute to railway heritage.

There are also locomotives and rolling stock running on British Rail tracks that are already in private ownership, and which may be judged to have significant historical interest. Foster Yeoman Limited have imported locomotives built in America which, because of their radically different style of manufacture to British locomotives, may well he worthy of preservation in due course. Many modern freight wagons are privately owned and all will be so if this Bill is passed. The Channel Tunnel display at the National Railway Museum has already been mentioned. This includes a complete ring of the tunnel lining and a mock-up of the Eurostar train.

I must emphasise that nothing in Clause 113 precludes fair terms being agreed between the owners of the artefacts designated by the committee for preservation and the museum or other preservation bodies. It is difficult, therefore, to understand why the Government have hitherto resisted including private owners and operators within the. terms of the clause. Restricting its application to the public sector threatens the continued work and effectiveness of the National Railway Museum and related collections. We are suggesting that there should be some body equivalent to that which decides whether works of art should be sent abroad. When there is so much railway heritage and so much material on the origin of the railways in this country, we feel that the committee should be given first refusal. I hope that we shall continue to build on this important heritage. I beg to move.

5.30 p.m.

The Earl of Caithness

As so often on this Bill, I have sympathy with what the amendrnents moved by the noble Lord, Lord Carmichael, are seeking to achieve. We all want to ensure that our railway heritage continues to be preserved, and I am very pleased to be able to pay tribute to the fine work of the National Railway Museum, in particular, in safeguarding our railway history and presenting it to the public.

As the clause stands, it would extend the ability of the heritage committee to claim, for no consideration, items which are entirely privately owned and have never been in the public sector. Unless such items are excluded, or unless suitable provision is made for their owners to be properly compensated, I could not accept such a widening of the provisions.

Clause 113 at present only applies to disposals of items which are firmly in the public sector. We are considering how we can extend its scope to items which are currently in the public sector, but which will be transferred to the private sector as privatisation progresses. In considering how to do that, we have concluded that there must be provision for them to receive fair compensation. Unless compensation is available in such circumstances, the provisions could amount to confiscatory legislation and may therefore be in breach of European human rights provisions.

Officials of my department and of the Department of National Heritage had discussions on 14th July with the head of the National Railway Museum to explain the Government's position and to discuss how the interests of the National Railway Museum can now best be advanced. In conjunction with the NRM, we will do all that we can to make provision which is as favourable as possible to the museum, but the Committee will understand that the provisions of this Bill must respect legitimate rights to private property. My right honourable friend the Minister for Public Transport will be writing formally to the National Railway Museum as soon as the position is clearer, and I shall of course arrange for a copy of that letter to be available to Members of the Committee and for a copy to be put in the Library.

In essence, the noble Lord, Lord Carmichael of Kelvingrove, and the Government are on the same side. We would like to see as many assets as possible go to the museums. Our difficulty with this amendment is that, by insisting on the private sector, one has confiscatory legislation. That is the problem that we are trying to overcome; namely, that assets which are at present in public ownership will be transferred into private ownership. I hope that the noble Lord will bear with us while we try to solve this matter to the satisfaction of all the parties concerned. We are all heading in the same direction and want to get to the right solution. I shall of course keep the noble Lord informed.

Lord Carmichael of Kelvingrove

Obviously, I can see the dilemma that the Minster feels he is in. I had hoped that he would at least suggest that the first refusal would be given to the national museums and that there should be some way of ensuring that would happen. I also said that there was no question of confiscation; a fair price would be offered by some form of adjudication. But I am pleased to the extent that the Minister is obviously as concerned as is possible about such important heritage items being kept in this country. Therefore, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 125CB and 125CC not moved.]

Lord Lyell moved Amendment No. 125D: Page 113, line 8, at end insert ("or any franchise operator").

The noble Lord said: In moving this amendment I should also like to speak to Amendment No. 125E, which is also in my name. Both amendments cover the same point. At the outset of his reply to the noble Lord, Lord Carmichael, on previous amendments, I noticed the Minister looking in my direction. I should have been pleased to take part in one debate, but I am sure that the Minister will appreciate that when we received the agreed groupings I was a little apprehensive that possibly, had I joined in, it might have spoiled my noble friend's replies. Certainly, if he wishes to make only a very brief reply, I would he more than happy, since most of the points have been very handsomely answered by my noble friend and I am very grateful for that.

I should like to refer to one point that was raised by the noble Lord, Lord Carmichael, in his amendments —both of us are speaking virtually to the same end, and I am certainly concentrating my remarks on the National Railway Museum in York. I believe that the noble Lord hoped that there would be some method whereby artefacts, documents and other records could be kept. So far as I am aware, in Clause 113, certainly in subsections (2), (3), (4) and (5), there is both a committee and a scheme which would seek to preserve these records, documents and artefacts, which are at present held by the British Railways Board and their wholly owned subsidiary. That would safeguard the position of these artefacts and records whereby the National Railway Museum, or perhaps the National Museum of Science and Industry, would receive first call when these artefacts or records are to be disposed of.

I believe that Clause 113 in the Bill goes back to Section 144 of the Transport Act 1968. Indeed, when the noble Lord, Lord Carmichael, was speaking, it occurred to me that perhaps the Transport Act 1968 might have been part of the noble Lord's previous activities in another place. I am not too sure about that, but certainly Clause 144 of the 1968 Act relates to the, Transfer and disposal of historical records and relics". It gave the National Railway Museum first claim, at no cost to these records, artefacts and relics. It would seem that in subsection (1) sub-paragraphs (a) and (b) gave the then Science Museum certain powers, which I now understand have been derogated to the National Railway Museum.

I am grateful that my noble friend pointed to the fine relationship with the records officer of the British Railways Board and the National Railway Museum in York. That relationship has resulted in 90 per cent. of the records, drawings and artefacts acquired by the York museum going to that museum free of charge without any problem. Indeed, the museum is most grateful and very proud of the collection. The remaining 10 per cent. of the objects acquired by the museum since 1975 have been acquired by gift or purchase from private owners.

Section 144 of the 1968 Act mentions four times the Secretary of State for Education and Science. I do not see that provision set out in Clause 113 of the Bill. That is the main thrust of Amendments Nos. 125D and 125E, to which I briefly speak. The main object is that there should be no impingement on any private rights by amendments to Clause 113. We seek to establish that position and the safeguards in Section 144 of the 1968 Act on the face of the Bill so far as possible.

I am grateful for the immense help that was given to the National Railway Museum by officials of my noble friend's department, as he mentioned last week (I believe it was on 14th July). I should be more than happy to take up what my noble friend said and, if it is permissible, take part in discussions with him and the noble Lord, Lord Carmichael, together with the National Railway Museum. If my noble friend has nothing further to say on the matter, I shall withdraw the amendment. At this stage I beg to move.

The Earl of Caithness

My noble friend was right. I turned to him on the last amendment and wondered whether he would be interested in joining the discussion. Let me reassure him that if he had joined us, he certainly would not have spoiled the discussion between the noble Lord, Lord Carmichael of Kelvingrove, and myself. Indeed, when my noble friend joins in, it enhances the discussions that we have on this matter.

I cannot add greatly to the position that I set out to the noble Lord, Lord Carmichael, as my noble friend will understand. I shall keep him also in touch with the discussions that are taking place and all the work that is being undertaken to find a satisfactory resolution to this problem.

Section 144 of the 1968 Act, which my noble friend mentioned, gave rights not to the museum but to the Secretary of State. Let me assure my noble friend that the new clause will also be overseen by the Secretary of State for National Heritage.

Although my answer is brief, in essence it is the same as that given to the noble Lord, Lord Carmichael of Kelvingrove. We are still working on this problem but, like my noble friend, we also wish to see a satisfactory resolution to it.

Lord Lyell

I am grateful to my noble friend. I recall that in an earlier incarnation I had singular problems when noble Lords did not adhere to the grouping on the list. I do apologise. I am grateful for my noble friend's answer. Before I withdraw the amendment, perhaps he could give me advice—write to me or point me in the right direction—on one matter. At the bottom of page 113 of the Bill, in lines 48 to 50 I was fascinated to see mentioned: the Public Records (Scotland) Act 1937 as records belonging to Her Majesty". The same provision occurs in Section 144 of the 1968 Act. Perhaps I should direct my remarks at another department—the Scottish Office or my noble and learned friend the Lord Advocate. But I wonder whether my noble friend has anything in his notes on this point and, if so, perhaps he would write to me later, certainly not tonight. I thought it an interesting arid curious point. Having made that point, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 125DA and 125E not moved.]

5.45 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 125F: Page 113, line 26, leave out ("the Board with the approval of").

The noble Lord said: This clause concerns the artefacts for a national museum. We want a committee that has power, but I believe that the most effective way to achieve that would be for the Secretary of State to be the person who appoints the people to it. This is a great national museum. Much of it was established by the Government. The noble Lord, Lord Lyell, was quite correct in that I was very much involved with it and received a great deal of help from the Minister for the Arts at that time, Jenny Lee. She was very enthusiastic about it. There was a lair amount of difficulty with the London people in getting the museum away from Clapham (which, incidentally, was a totally unsuitable place for it) and moving it up to York. That is one of the reasons why I feel that it would be better for the Secretary of State to be the person who picks people from all over the country for appointment to the committee rather than the board itself.

I should like the Minister's opinion on the proposal. Perhaps he can say why he believes it important that the members should be appointed by the board, with the approval of the Secretary of State". Obviously the Secretary of State will consult the board, but I should like to put the emphasis in the other direction. That is the purpose of the amendment. I beg to move.

The Earl of Caithness

I listened with care to what the noble Lord, Lord Carmichael, said on this amendment. I believe that he has a point. I hope that he will let me go away and think about the matter. We are thinking about heritage matters in general at the moment and it is an area that we. want to get right. In want to study with care what the noble Lord said and perhaps discuss the matter with him between now and another stage in order to get an agreement that suits us all.

Lord Carmichael of Kelvingrove

I am most grateful to the Minister for his suggestion to take away the amendment and consider it further. I know too well that Ministers do not accept amendments except in very special circumstances. In view of his goodwill, I am pleased to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125G not moved.

Clause 113 agreed to.

Clause 114 agreed to.

Clause 115 [Power of the Board to provide business support services for other operators]:

Lord Carmichael of Kelvingrove moved Amendment No. 125H: Page 115, leave out lines 20 to 34.

The noble Lord said: The purpose of the amendment is to debate the continuance of the board's role in providing national technical standards and services both in the context of the British Railways Board's ability to bid for franchises and of privatising a key asset closely linked to safety. We hope that the Minister will be able to give the Committee a definition of what is meant by "desirable" in line 23 on page 115. To me it is confusing. Can the Minister tell the Committee under what circumstances the Government regard it as no longer desirable that the board should provide any business support services of any class or description.

To many people subsection (3) (b) could be seen as a provision which has more to do with dogma than with logic and safe running of the railways. Much has already been said about the importance of safety. We all accept that safety is of vital importance to any transport industry and particularly the railways. It should be made clear that there must be some sort of general transfer of information backwards and forwards, rather than to say that the possibility of having such information transferred backwards and forwards may not any longer be desirable, and for the board to have the power to provide the wherewithal for it. I beg to move.

Viscount Goschen

It may help the Committee for me to begin by briefly explaining the purpose of Clause 115. It is intended to allow British Rail to provide business support services to other operators in the transitional period during which BR's businesses will be transferred to the private sector. It might be beneficial to, say, a franchisee or a private sector freight operator to buy certain business support services from BR, either before he makes his own arrangements or before the relevant part of BR is sold to the private sector. We wish to allow that. Indeed, we intend to bring forward amendments on Report which will widen the number of railway operators to whom the board will be able to sell such services.

Amendment No. 125H would remove the Secretary of State's power, by order, to remove BR's power to supply business support services, either in full or in part. Subsections (3) and (4) of Clause 115 are intended to ensure that the Secretary of State can remove powers when their use is no longer needed. That is perfectly sensible. Once the private sector is supplying services in a satisfactory manner, there will be no need for British Rail to continue doing so, or for it to have a reserve power to re-enter that market in future.

Those services, while they generally have a railways component to them, are not central to the running of a railway. There is no reason why the private sector should not be able, very quickly, to provide services to railway operators in areas such as marketing, property management or business information systems. Equally, there is no reason why the relevant businesses within BR should not operate in the private sector, where they will have the freedom to diversify into non-railway activities.

We think it is sensible to allow the Secretary of State to reduce, and finally to remove, the board's power to supply business support services as and when it becomes apparent that the power is no longer needed.

Finally, the amendment would also delete subsection (5) of the clause. That applies to Clause 115, the definitions of "railways" and "railway services" used in Part I of the Bill. Its deletion would leave those expressions open to interpretation, thus causing unnecessary confusion. I am sure that that was not the noble Lord's intention.

The noble Lord asked about the specifics of the definition of the word "desirable". We do not envisage that a future Secretary of State will need to make use of the expression "no longer desirable" in subsection 3(b). It will generally be evident that the power to supply any specific support services may not be necessary. In the light of my explanation, I ask the noble Lord to withdraw the amendment.

Lord Tordoff

I do not understand why, if the need is going to wither on the vine, it will be necessary to take positive action to order the board to cease to use the power. On the one hand, one is understandably saying that it will no longer be necessary over a period of time; but then it is said that it must be ordered to stop. That is where the "no longer desirable" part comes in. At what point does the Secretary of State say that it has gone on long enough and must stop? How can we be sure that the necessity has disappeared at that stage? What criteria will the Secretary of State use?

Lord Carmichael of Kelvingrove

I am grateful to the noble Lord, Lord Tordoff. At one point the Minister said in his reply that he did not want to introduce any more confusion. However, I found a fair amount of confusion in his response.

The Minister said also—if I heard him correctly —that he would introduce some amendments to clear up the position or to elaborate on the intention. As the noble Lord, Lord Tordoff, said, if the Government are so convinced that the private sector will ultimately use all its own machinery, it would appear to be unnecessary to put this sledgehammer in to stop it doing so or to decide that the British Railways Board is no longer able to participate.

Unless the Minister wishes to add to what he has already said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 115 agreed to.

Clause 116 [Bye-laws]:

Lord Clinton-Davis moved Amendment No. 125J: Page 115, line 35, after ("operator") insert ("in consultation with the Regulator").

The noble Lord said: In moving Amendment No. 125J I shall speak also to Amendment No. 125K. These amendments seek to achieve a measure of uniformity in establishing by-laws. When we are dealing with a proliferation of franchisees, some commonality in that regard is necessary. Under the new regime we could have a large number of different rules prevailing in regard to different portions of the track. Different rules could affect smoking, penalty fares, the carriage of bicycles and so forth. In order to achieve some measure of understanding on the part of the ordinary customer as to what can happen, it is important for there to be a provision for consultation with the regulator prior to railway operators introducing their own by-laws.

If the amendment were agreed, the regulator—who has a national remit in dealing with the franchise director and franchisees—would have to be consulted over by-laws. In that way we could look forward to achieving some measure of consistency throughout the system. In terms of practice, one knows that with the destaffing of stations, for example, more and more passengers will riot be able to buy tickets on the stations. Customers may board a train in one part of the country owned by a station operator having a ticket vending machine which is out of operation and honestly intending to pay the fare when they arrive at their destination. But when they arrive they may find themselves charged with some kind of penalty fare because another train operator is running that route. The whole system would be not only confusing but also thrown into disrepute.

I am referring to a natural corollary of the fact that we are introducing a fragmented railway system instead of a national network. At present by-laws are introduced by British Rail. There is total uniformity because there is only one set of by-laws. That is a much more sensible position than to have a lack of conformity as would arise under the new system. Effectively. I am suggesting that there should be a single organisation responsible for by-laws for the whole network, regardless of the ownership of specific parts of it. I beg to move.

Lord Tordoff

There must be some mechanism for setting up model by-laws in this situation; otherwise, as the noble Lord, Lord Clinton-Davis, suggested, there could be all kinds of anomalies.

I notice that in Clause 116(2) (d) the operator may make by-laws for the receipt and delivery of goods. Perhaps the Minister could explain what is meant by that. Presumably it will not always follow that the person who receives the goods and the person who delivers them are in the same part of the network; in other words, one may have two separate by-laws dealing with the transport of the same goods. Basically, there does not appear to be any provision to achieve consistency among by-laws. I believe that the suggestion contained in the amendment of the noble Lord, Lord Clinton-Davis, is a worthy one. If it is not acceptable, perhaps the Government can tell us how they intend to produce some kind of, not necessarily uniformity, but perhaps continuity in the by-laws. If people are operating on the railways today, they know that there are by-laws. They very rarely read them. They would probably be horrified if they did read them. The truth is that there is one set of by-laws for British railways across the length and breadth of the country. If we are to have different by-laws every time we pass from one section of the new system to another, we will all be in big trouble.

Earl Attlee

It never occurred to me that the operators would have their own by-laws. I assume that the regulator would himself be making by-laws.

Lord Tordoff

If the noble Lord looks at Clause 116 it says quite clearly that an independent railway operator may make by-laws regulating a number of separate things. Presumably, that means that any independent operator can make his own by-laws in whichever part of the system he is working.

Earl Attlee

I quite agree. I am amazed that the operator can do it. I had read it incorrectly.

Viscount Goschen

As the noble Lord, Lord Clinton-Davis, has stated, these amendments would introduce a requirement on any independent railway operator wishing to make by-laws under this clause to consult the regulator. We do not believe that this is a necessary requirement. Subsections (4) and (5) of this clause apply subsections (3) to (12) of the Transport Act 1962. That will have the effect of imposing requirements on the operator to give public notice of his intention to seek confirmation of by-laws at least 28 days before doing so; to make available copies of proposed by-laws for public inspection; and to supply copies on request. Further, it gives persons affected the right to make representations to the Minister, who may confirm or modify the by-laws or refuse to confirm them.

These are well-established procedures which ensure appropriate advance publicity and opportunity for affected parties to make representations. In so far as the regulator has an interest in such matters, it will be open to him to keep himself informed by this means. But we do not see a formal role for the regulator there. The regulator has no evident locus in by-laws, which are primarily concerned with regulating the conduct of railway passengers. It is for the Secretary of State to confirm the by-laws and to ensure consistency of approach, as necessary, across the railway.

A number of noble Lords across the Chamber raised the question of consistency. I emphasise that this is provided by the Secretary of State who has to approve all of these by-laws. In the light of that explanation, I urge the noble Lord to withdraw his amendment.

Lord Clinton-Davis

I find that explanation less than satisfactory, to say the least. with great respect, to talk in terms of a well-established practice in what is a totally new scenario is inaccurate.

Viscount Goschen

When I referred to well-established procedures I was talking about the actual procedures by which notice of by-laws had to be given.

Lord Clinton-Davis

En this situation it will be possible to have proliferation of different draft by-laws submitted to the Secretary of State. As a consequence, an enormous burden of bureaucracy will fall upon him. That encapsulates the absurdity of the whole system of fragmentation upon which the Government are embarking. We will have perhaps 50, 60, 70 or 80 different franchisees, each capable of applying for their own by-laws according to the new system. The clause provides: (1) An independent rail operator may make bye-laws regulating…the use and working of, and travel on or by means of, any relevant assets … the maintenance of order … and … the conduct of all persons while on any relevant assets". I illustrated in the few examples that I gave how there might be a lack of conformity. As I understand it, the burden falls upon the Secretary of State to ensure conformity of practice. It seems to me to he an absurdly complicated and bureaucratic way of going about it. If that is the best that the Government can do because of the situation that they have decided to impose upon us, I suppose that we must put up with it. I believe that the Minister has to concede that this is potentially a thoroughly unsatisfactory state of affairs. I do not believe that commonsense could dictate that a situation of this kind should prevail, but in this Bill commonsense has been thrown out of the window.

Lord Tordoff

Perhaps I may press the Minister on the question of having a model set of by-laws. It seems to me that whoever is to do it—whether it be the regulator or Secretary of State—there ought to be a model against which the new by-laws can be judged. Surely, it ought to be possible for the Secretary of State at least to consider that possibility.

Lord Boyd-Carpenter

Before the Minister replies, perhaps I may ask what harm will be done by incorporating a provision for consultation with the regulator. Might that not save the Secretary of State some trouble?

Earl Attlee

Perhaps the Minister could also say why there should not be just one set of by-laws. A passenger, if he was so minded, could read one set of by-laws and know exactly where he stood throughout the network.

Viscount Goschen

To answer the question raised by my noble friend Lord Boyd-Carpenter, the point is that it is not really within the locus of the regulator. There is not really a role for him in this procedure. I have already stated that there is a double-pronged approach in that there are the established notice and consultation procedures. There is also the double back-up of being able to go to the Secretary of State. In answer to the noble Lord, Lord Tordoff, and the noble Earl, Lord Attlee, most of the operators will be taking over BR's existing by-laws. We will therefore consider by-laws modelled on the existing BR situation.

Lord Clinton-Davis

With respect, the noble Viscount has not satisfactorily answered the point as to what harm will be done if the suggestion we have made is adopted. It is a constructive suggestion that is designed to avoid unnecessary bureaucracy, upon which apparently the Minister seems to have embarked. I hope that he will avoid the suggestion in the brief to resist and instead say to the Committee that he is prepared to consider it further. I believe that it is worth giving further consideration to what is a perfectly practical proposition to avoid an unconscionable amount of bureaucracy.

Viscount Goschen

Of course we are prepared to look at this matter further in the light of what has been said in Committee this afternoon. Nevertheless, the involvement of the regulator will mean more rather than less bureaucracy at another stage. I reaffirm to my noble friend Lord Boyd-Carpenter that the regulator's duties are clearly set out in Clause 4 of the Bill (which was debated at an earlier stage) and this is not one of them.

Lord Tordoff

When the noble Viscount says that he is prepared to look at the matter again, is he perhaps touching on the question of model by-laws.

Viscount Goschen

Indeed. However, in saying that we will look at it again, we do so with no firm commitment.

Lord Clinton-Davis

I accept that there is no firm commitment, but I am grateful to the Minister for saying that he will review the position. It is desirable to review it. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125K not moved.]

Clause 116 agreed to.

Clause 117 agreed to.

Clause 118 [Restrictive Trade Practices Act 1976 not to apply to certain agreements]:

Viscount Goschen moved Amendment No. 125L: Leave out Clause 118 and insert the following new clause: Modification of Restrictive Trade Practices Act 1976 in relation to certain agreements relating to the provision of railway services .—(1) The Restrictive Trade Practices Act 1976 (the "1976 Act") shall not apply to an agreement relating to the provision of railway services if the making of the agreement, and the inclusion in it of each provision by virtue of which the 1976 Act would (apart from this subsection) apply to the agreement, is required or approved—

1. (a) by the Secretary of State or the Regulator, in pursuance of any function assigned or transferred to him under or by virtue of any provision of this Act (other than this section);
2. (b) by or under any agreement the making of which is required or approved by the Secretary of State or the Regulator in pursuance of any such function; or
3. (c) by or under a licence granted under Part I above.

(2) In subsection (3) below, "relevant agreement" means an agreement—

1. (a) which relates to the provision of railway services; and
2. (b) to which (notwithstanding the provisions of subsection (1) above) the 1976 Act applies.

(3) If it appears to the Secretary of State—

1. (a) that those provisions of a relevant agreement, or of relevant agreements of some particular class or description, by virtue of which the 1976 Act applies to that agreement or those agreements do not have, and are not intended or likely to have, to any significant extent the effect of restricting, distorting or preventing competition, or
2. (b) that all or any of those provisions have, or are intended or likely to have, that effect to a significant extent, but that the effect is not greater than is necessary for—
   1. (i) the protection of the interests of users of railway services,
   2. (ii) the promotion of the use of any railway network in Great Britain or elsewhere for the carriage of passengers and goods or the development of any such railway network,
   3. (iii) the promotion of efficiency and economy on the part of persons providing railway services, or
   4. (iv) the promotion of measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator,

he may give a direction to the Director requiring him not to make an application to the Restrictive Practices Court under Part I of the 1976 Act in respect of that relevant agreement or, as the case may be, any relevant agreement of that class or description. (4) The Secretary of State may vary or revoke any direction given under subsection (3) above if he is satisfied that there has been a material change of circumstances such that—

1. (a) the grounds for the direction have ceased to exist; or
2. (b) there are grounds for giving a different direction; and where the Secretary of State so varies or revokes any direction, he shall give notice of the variation or revocation to the Director.

(5) In this section "agreement" has the same meaning as in the 1976 Act; and, subject to that, expressions which are used in this section and in Part I above have the same meaning in this section as they have in that Part.").

The noble Viscount said: This new clause replaces the existing Clause 118 on restrictive trade practices. Under the new structure of the railway industry there will inevitably be a considerable number of agreements between the players, and some of these could well have effects on competition and thus be subject to the Restrictive Trade Practices Act. We do not want to find that agreements which are necessary to the proper running of the industry—for example, agreements about through ticketing or other network benefits—are at risk of being found to be illegal.

The purpose of this new clause is to make rather more specific provision on restrictive trade practices, setting out some criteria for exempting agreements. In particular, we do not want the Restrictive Trade Practices Act to apply to agreements which are approved or required, either directly or indirectly, by the regulator or Secretary of State in pursuance of any of their functions under the Bill. The new clause therefore helps to avoid double jeopardy for those agreements; it would not be sensible if an agreement which had been approved or required by the regulator —one of whose duties is the promotion of competition —could then be subject to separate scrutiny by the competition authorities under the Restrictive Trade Practices Act.

However, not all agreements within the railway industry will necessarily be approved or required by the regulator or Secretary of State. Subsection (3) of the new clause therefore provides that the Secretary of State may give directions to the Director-General of Fair Trading not to take particular agreements or classes of agreement to the Restrictive Practices Court, which could declare the relevant restrictions to be against the public interest and therefore void. The agreements or categories of agreement which can be treated in this way are those which either do not have any significant effect on competition, or if they do affect competition significantly, which do so only to the extent necessary to meet one of the objectives set out in subsection (3) (b) of the new clause. As the Committee will see, these objectives are closely based on the duties of the Secretary of State and the regulator in Clause 4(1) (a), (b), (c) and (e) of the Bill.

I hope the Committee will agree that, by providing a more detailed set of criteria for excluding agreements from the scope of the 1976 Act, the new clause is a helpful way of proceeding. I beg to move.

Lord Clinton-Davis

Again I must ask the Minister why the Government have had second thoughts about this issue at so late a stage in our Committee proceedings. Is it that they have had substantial representations? Is it wholly due or almost entirely due to the problems that were raised on these Benches about through ticketing and the impact that this might have as far as concerns the Restrictive Trade Practices Act? The Minister has not explained how it came about that the Government changed their thinking about this. I think that it would be helpful for the Committee if he were so to do.

Am I to understand that it is the Secretary of State who will determine what is and what is riot in the public interest with regard to all these issues? He is to have the first and last word about it. Is it suggested that the Secretary of State is without a vested interest in these matters in that he can provide a better and more independent judgment than the Office of Fair Trading? I simply do not understand what has caused the Government to change their mind. Perhaps the Minister would be kind enough to give us an indication.

Viscount Goschen

Perhaps I may clarify the position. The new clause was brought in as a replacement to the old Clause 118 to make the issue absolutely clear. It is more specific than was previously the case. The added benefit of having a more specific clause basically means that the law will be made clearer and there will be less of an element of doubt. The original clause was too wide-ranging in its application. The present revision reflects further detailed discussions with the competition authorities and with the Department of Trade and Industry.

In answer to the noble Lord's question, it will be the Secretary of State who will have to form a view using his duties under Clause 4.

Lord Clinton-Davis

I should like to know when the Government became alerted to the problem. Was this drawn to their attention by the Director-General of Fair Trading? Who was responsible for causing the Government to have second thoughts about tits, because second thoughts they have certainly had? There can be no questioning that. While I perceive a problem as far as concerns the Restrictive Trade Practices Act in relation to the issue that I raised earlier, I wonder whether it is appropriate to give the Secretary of State these very wide-ranging powers. As I have indicated, he is not exactly an independent person in relation to this matter. He has a clear vested interest. The Director-General of Fair Trading, on the other hand, is an independent and objective person.

What the Secretary of State does under these provisions is to give a direction to the director-general which effectively excludes any competence that he may have in dealing with these various issues. Having regard to the fact that it is so wide in its effects, can it really be something that should commend itself so promptly to the Government? And 'why at such a late stage?

6.15 p.m.

Viscount Goschen

The new clause improves the Bill. I must restate the answer that I gave earlier. The revision under discussion reflects the further detailed discussions with the specific competition authorities and with the Department of Trade and Industry. I should also add that the approach in subsection (3) is based on a precedent in Section 127 of the Financial Services Act 1986. The effect is not to exclude the agreements under consideration from the Restrictive Trade Practices Act, but to remove them from the scrutiny of the court under Part I of that Act. The requirement for registration still applies in these cases.

Lord Clinton-Davis

We shall want to reflect further on these provisions and on the observations that the Minister has made.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 125M: After Clause 118, insert the following new clause: ("Permitted Development . For the purposes of section A.I(c) of Class A in Part 17 of the Town and Country Planning General Development Order 1988, franchise rail operators and owners or franchise operators of railway stations and other structures on operational railway, who are not concerned with the movement of traffic by rail, shall not be deemed to have permitted development rights for the construction or erection of any structure as part of or within that station or structure.").

The noble Lord said: With the leave of the Committee it may be convenient if I speak at the same time to Amendment No. 125N. While the extent to which the public service implications of permitted development rights should be transferred to new owners of competitive privatised utilities has always been a matter of debate, the way in which the operational parts of British Rail are proposed to be privatised may lead to considerable confusion about which bodies should assume the existing transport undertaking rights. Some of these companies may not actually touch trains, yet they will be involved in servicing the needs of rail customers, or other companies involved in rail operations. A clear statement by Ministers, and preferably something in legislation, would be required to ensure that all doubt and uncertainty are removed.

The Government are keen on competition in the long term. If franchises for operational and other current BR activities are to be for relatively short periods, it is vital that franchisees should not be permitted to erect or demolish structures which may affect adversely the plans or viability of future franchisees, or impact on the viability of the wider network; for instance, block potential through track space.

Presumably, Railtrack will be given some control and will have to be asked by franchisees for permission to change the structure of rail buildings. The situation could be prevented by application of the normal planning processes which of course have an appeal mechanism as a safety valve.

That leads to Amendment No. 125N which concerns consultation on method and timing of work. By their very nature and history, railways go right into the heart of urban areas where so many people and representative bodies become involved with them. When one considers some of our older cities it is quite inconceivable that railways would be built now as they were originally—for example, I am referring to the way that the track swings round at roof height in many cases and much closer to domestic and commercial residences. That would never be permitted in respect of the construction of roads.

So planning is required for these measures and also consultation with local people. There can be considerable nuisance because railways tend to involve fairly heavy civil engineering. There is nuisance, noise, lighting at all times of night, and road traffic to the site because, presumably, while certain repairs are taking place the railways will not be able to be used. There may be bridges and tunnels, level crossings and embankments, consolidation and pile-driving and things of that nature. Therefore, there is no doubt that there will need to be some control over the work which is done.

I do not know whether the Minister will be able to tell us whether planning permission from local authorities is not now essential. Can the Minister say whether that will come under ordinary planning law? If planning permission is not essential, it is vital that there is consultation with the local authorities and the others specified in Amendment No. 125N. Railway development is quite different from other types of development such as ordinary buildings. Railways tend to be much heavier in their structure in any case because of the historic need for it. I hope that the Minister can give us some help in consoling the people who will be affected by these measures and that at least they will have some rights before the work is commenced. I beg to move.

The Earl of Caithness

I am grateful to the noble Lord, Lord Carmichael of Kelvingrove, for explaining these amendments. Perhaps I may deal with Amendment No. 125N first and associate with that the matter of Section 16 of the Railway Clauses Consolidation Act 1845 which is also involved in this matter.

Most of the national rail network has been constructed under powers contained in private Acts of Parliament, including Section 16 of the 1845 Act, as incorporated into those Acts. That provision is still relied upon for repair and maintenance works on the railway. Indeed, most buildings that adjoin the railway post-date its construction. One may have some sympathy with regard to the disturbance that residents of adjoining premises may suffer from this, particularly as maintenance work may have to take place at unsocial hours, to limit disruption to railway services. But householders and other occupiers of property adjoining the railway must surely take this into account in deciding where to live and locate. It can hardly be reasonable to introduce severe restrictions on the railway operators, who were not only there first, but also there by the authority of Parliament.

As regards new railway construction, we now have the Transport and Works Act 1992, which provides for the authorisation of new railway works by Ministerial order, and establishes procedures to ensure that any who may be affected by the proposals have a fair opportunity to make representations. The Secretary of State, in approving an order, may include conditions dealing with working practices during construction, including, where appropriate, conditions relating to, for example, the carrying out of works at night. Furthermore, there is a model clause prescribed under the 1992 Act which is designed to provide a modern substitute for the 1845 Act provision.

Amendment No. 125M would seem to limit the extent to which bodies involved in the future railway can benefit from permitted development rights under the general development order. I can give the Committee an assurance that the absence of anything on the face of the Bill does not mean that these matters have been overlooked. We recognise that some consequential changes may be needed to the town and country planning legislation, in the light of this Bill. My officials are in discussion with their opposite numbers in the Department of the Environment about the most appropriate way forward.

The present position is that British Rail, as a statutory undertaker within the meaning of the town and country planning Acts, enjoys permitted development rights under Class A (railway or light railway undertakings) of Part 17 of Schedule 2 to the 1988 general development order. This is consistent with the well-established practice of allowing statutory undertakers to carry out certain minor and routine development without the need to apply for a specific planning permission in every case. These concessions are already fairly limited: they do not extend, for example, to the actual construction of a railway, or to the erection of a station or bridge. Nor do they permit the construction or erection of offices, shops, car parks etc. otherwise than wholly within a railway station. For all such development, normal planning procedures apply. The permitted development rights are further limited to development on operational land, and to development required in connection with the movement of traffic by rail.

In short, the main use made by BR of permitted development rights is in connection with development such as the erection of gantries for signalling and electrification, other lineside equipment and minor station development within the limitations described earlier; and with repair and maintenance works of the kind we have discussed under Amendment No. 125N. Even in such circumstances, statutory undertakers have agreed to follow the procedures recommended by the Department of the Environment for advance publicity or consultation. (Circular 15/92). There is no need to alter the broad principles of the present arrangements.

Future arrangements will need to reflect the fact that we intend the ownership of railway track and infrastructure, including stations, to be vested in Railtrack. Railtrack will therefore be the natural inheritor of these powers. Franchisees will not normally he owning track or infrastructure and it may therefore he inappropriate for them generally to have access to permitted development rights. The Government are looking carefully at that point.

I hope that the noble Lord, Lord Carmichael of Kelvingrove, will agree that what I have said is sufficient to reassure him in terms of our intentions. Any consequential amendments that are needed—for example, amendments to the definition of "statutory undertaker" in the Town and Country Planning .Act 1990 to ensure its application to Railtrack—can be made by order under Clause 139. Consequential amendments to the general development order would probably also be needed. These matters can, we believe, safely he left to secondary legislation.

Lord Carmichael of Kelvingrove

The Minister seemed to be in agreement with me in spirit and I am grateful for that. The explanations were very long and full. They will certainly bear examination before the next stage of the Bill. A responsible body like British Rail inherited much of its feeling of responsibility to the local community and that is all right. What we are concerned about is people who are frequently described as "cowboys" who could come in and, relative to British Rail, would be much less responsible. Perhaps they would try to make a quick buck by jumping in and making certain developments. The Minister conveyed the idea that it is unlikely that anyone would be able to do that because of the power that Railtrack will have ultimately. For that I am grateful. We are grateful for his warm and basically helpful answer which needs studying as regards the amendments that we have put forward. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125N not moved.]

6.30 p.m.

Clause 119 [Schemes .for the organisation etc. of transport police]:

Lord Clinton-Davis moved Amendment No. 125NA: Page 121, line 10, at end insert: ("() Operators of railway services shall be required to co-operate with the transport police in the provision of services set out in any agreement with any operator of railway services entered into by virtue of subsection (3) above.").

The noble Lord said: In moving this amendment., I should like to speak also to Amendment No. 125N B. These amendments relate to the British Transport Police. We are concerned about the provision in the Bill suggesting that separate companies might employ, or might not employ, British Transport Police as they wish. That provision requires further clarification from the Government. We think that it is desirable to include a provision for a requirement to use the British Transport Police and for the franchisees to co-operate with them. A fraud inquiry relating to ticket evasion might cross the interests of a number of franchisees. Difficulties could arise if one operator was somewhat reluctant to co-operate. Furthermore, vandalism and hooliganism are undertaken by people who, by definition of the activities that they carry out, are not encumbered by distinctions of whose territories they are on. The British Transport Police need to be mobile and able to travel to incidents. I believe that the power to provide such cover should be enshrined in the Bill and should not be left simply to Government undertakings.

Perhaps I may turn to a number of other matters which also relate to the amendments. I understand from our previous debate that the Government are not proposing that the British Transport Police should have a monopoly in matters such as security guard duties and cash security. I do not object to such provisions for cash security matters although I have some reservations about wider security duties being undertaken. Clearly, the British Transport Police should not be involved in any way as a private force to counter terrorism. Security relating to terrorism should, in my view, be outside the BTP's remit.

I believe that a police committee is to be established. I should be grateful if the Minister could say something about it. I understand that the chief constable would report to that committee, but who would appoint its members? Would they be recommended entirely by the regulator or would the Secretary of State have responsibility for their appointment or for the appointment of some of them? These matters are of considerable importance but the situation is far from clear at the moment. It is for that reason and to probe the Government's intentions that we have tabled this amendment. I beg to move.

The Earl of Caithness

I am grateful to the noble Lord, Lord Clinton-Davis, for tabling this amendment because it gives me the opportunity to state that the spirit of these amendments is close to our stated intention that operators be required to use the services of the British Transport Police for law and order purposes. It is important to have that on the record, and I am grateful to the noble Lord for allowing me to state that. It will be a condition of operators' licences that they should be compelled to enter into an agreement and there will be levels of policing laid down which operators will be required to provide.

We return to a position we have encountered many times in connection with this Bill. We agree that this is an important point. There is nothing between us on that. However, noble Lords opposite seek to put such provisions on the face of the Bill while we believe that the right place is in a licence. Many such matters will need to he included in licences—and it is important to make it clear that they will be in the licences. However, I am sure that much as Members of the Committee have enjoyed discussing this Bill, the Committee would feel that the extra time that would be involved in discussing each and every such provision if it had to be included on the face of the Bill might wear the patience of even the noble Lord, Lord Clinton-Davis, a little thin. As I said, I think that we are at one on that point and I can reassure him about the licences.

We consider that the British Transport Police is an efficient and effective police force. We have no plans to end the arrangements whereby the BTP is responsible for law and order on the railways. However, if it is to continue to be effective, the BTP will need to adapt to the new structure of the rail industry. We recently sought the views of interested parties and the public on the way forward and will publish our conclusions once we have considered all the representations that have been made.

Lord Clinton-Davis

While thanking the Minister for that reply, may I ask him to say whether he hopes to be able to publish those conclusions before we have completed our deliberations on the Bill in this House? We probably have until December or January to do that. I ask that because I am enjoying these debates almost as much as I enjoyed the Maastricht debates.

The Minister has been very helpful. There is, indeed, an area of disagreement but on these issues, at least, we are absolutely ad idem. That is useful. I am not entirely convinced that all such provisions should be in a licence, but I should like to consider that point further. I agree with the Minister that some should be in a licence although I think that there may be areas which ought to be in a statute. However, I shall return to that later. I believe that the Minister wants to say something else.

The Earl of Caithness

Although the noble Lord would like to continue discussing this until January next year, perhaps I may reassure my noble friend Lord Boyd-Carpenter and the noble Lord, Lord Tordoff, that I hope to get the results of our consultation to your Lordships well before then so that we can terminate such discussions.

Lord Clinton-Davis

I suppose that late November will suffice. In the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 125NB not moved.]

Clause 119 agreed to.

Schedule 9 agreed to.

Clause 120 agreed to.

Viscount Goschen

I beg to move that the House be now resumed.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.