LORDS AMENDMENT (Hansard, 4 July 1994)

§ Lord Strathclyde
My Lords, I beg to move that the House do not insist on their Amendment No. 1 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 1A in lieu thereof.
As I made clear when we discussed the matter of British Coal's obligations and liabilities at the Third Reading of this Bill, the Government are sympathetic to the concerns which lay behind the amendment to Clause 12 which was passed by this House. We have given a clear assurance that we could not consider using the restructuring powers to make a transfer to a body we considered was not likely to be able to meet its obligations.
Where the transfers include mining licences, the Secretary of State will clearly be obliged to take into account the duties of the Coal Authority set out in Clause 2. Those duties include a test of financial security of mining companies. However, the drafting of the amendment which was passed by this House could have given rise to serious problems. The obligation it imposed on the Secretary of State was very wide and it would have been difficult in practice to be sure that it had been properly discharged. There would therefore have been great scope for judicial review and this would have created great uncertainty for all concerned.
As I said, the Government fully recognise the need to exercise the powers in this Bill responsibly and to protect the interests of third parties. An amendment was therefore brought forward in the other place. Like the noble Lords' amendment, this applies to transfers to bodies outside the Crown. It places a clear obligation on the Secretary of State, before he makes a restructuring scheme, to have regard to the fact that it would not be appropriate to transfer liabilities to a body which cannot reasonably be expected to be able to pay for their discharge. The Secretary of State will have to satisfy himself that the transferee would, on the basis of all the information available at that time, be in a sufficiently robust financial position to meet its obligations in the future.
995 I very much hope that the House will agree with the other place on this matter. I commend Amendment No. 1A to your Lordships' House.

§ Lord Renton
My Lords, the noble Lord, Lord Northbourne, is unable to be here this afternoon. He has asked me to apologise to your Lordships for his absence and to express his appreciation—to which I would like to add mine—to my noble friend Lord Strathclyde for the trouble which he has taken to consider this matter. We were very anxious that, when under the restructuring scheme the transferee was given the opportunities which the scheme would afford, he should also accept the liabilities. The amendment was not drafted by the noble Lord, Lord Northbourne, or by me. However, I accept the explanation which my noble friend has given. I believe that your Lordships will readily accept the alternative which he has now put forward.

§ Lord Morris of Castle Morris
My Lords, even to the very last gasp of this benighted Bill, the Opposition, in both Houses, and of all parties and of none, has attempted to persuade the Government to place somewhere, anywhere, on the face of the Bill, some clear statement about liabilities. But all to no avail. I yield to no one in my admiration for the skill with which the noble Lord the Minister has ducked, weaved, slipped, evaded or countered every effort we have made, every chance that we have offered, to come to some accommodation with us on this issue.
I now read, with deepening gloom but rising understanding, the final words of his right honourable friend who described the debate in another place as, a re-run of a re-run of a re-run of a re-run of previous debates". — [Official Report, Commons, 28/6/94; col. 699] The fact is that nothing that anyone, anywhere, ever, could or might have said was going to alter his invincible opinion that on the question of liabilities he had, from the very beginning, got it right. This nation has had many rulers, through many centuries, and some few have achieved the immortality of a cognomen. We have had Edward the Confessor, Aethelred the Unready, and to these we may now add Eggar the Intransigent.
To the very end, in col. 700 of the Official Report, he was reiterating that the situation was so translucent, so simple that an unweaned child could comprehend it. Yet he still refused to include any statement whatever on this central issue on the face of the Bill, and sought refuge in the generality of Clause 7(3), which, by the way, appears in the Official Report as Clause 73, and which gave me a momentary pause—I nearly said "a heart attack"—because I thought that I knew my way round this Bill by now. It seemed to me to end round about Clause 65.
We have given the Government every chance to get the question of liability right. They have declined to do so. We believe in the ultimate supremacy of the elected Chamber over the Chamber, which is not elected and 996 which is, as yet, unreformed. Therefore we shall not continue to oppose the position which the Government have refused to desert. Liabilities must continue to be a matter of vague promises and ministerial statements and! guidelines; they will be written not in tablets of stone but, like John Keats's epitaph, in water, and the successor companies will have to sort it out as best they can. So be it.