Lords Sitting of 31 October 1996

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

Clerk of the Parliaments: Retirement of Sir Michael Wheeler-Booth, KCB; Appointment of Mr. Michael Davies
The Lord Privy Seal (Viscount Cranborne): My Lords, it is my duty to notify your Lordships that I have received the following letter from the Clerk of the Parliaments, Sir Michael Wheeler-Booth:
"Dear Leader of the House,
I write to ask you to convey to the House, after consultation with the Lord Chancellor and yourself, that I have asked the Prime Minister to submit to Her Majesty the Queen my resignation as Clerk of the Parliaments with effect from 4th January 1997, and that Her Majesty has been graciously pleased to accept it. I will have served six years in that office.
I take leave on the view that it is in the interests of the House that there should be continuity in the office during the coming months, with the certainty of a General Election and uncertainty about the House of Lords as now constituted thereafter. I am now sixty-two and will leave in the confidence that the Parliament Office is in a condition to give good service to the House and provide a satisfactory succession at the Table. By going now, it will give my successor an opportunity to establish himself fully before the Election.
I would be grateful if you would convey to the House my gratitude for the kindnesses received from all quarters. I have enjoyed my thirty-six years of service to the House, of which the last nearly six years as Clerk of the Parliaments have been especially memorable and enjoyable.
I cannot imagine a happier institution in which to work, which it has been my privilege to serve.
Yours ever,
Michael Wheeler-Booth."
It is my further duty to notify your Lordships that the Queen has been pleased to appoint Mr. Michael Davies to succeed Sir Michael Wheeler-Booth from 4th January next year.
Following that announcement it will, I am sure, be your Lordships' wish in due course to pay tribute to the services of Sir Michael in this House. I am advised that the proper manner of doing that is for the Leader of the House to table a Motion recording the House's appreciation of Sir Michael's services.
The noble and learned Lord the Lord Chancellor will in a few moments announce his appointments to the vacancies at the Table consequential upon Sir Michael's retirement. I should like to say for myself and on my noble and learned friend's behalf that extensive consultations have been held with representatives of all sides of the House over these important appointments. This is in accordance with undertakings given by my predecessors as Leader of the House and previous Lord Chancellors that appointments to the Table should be the subject of wide consultations. Those undertakings
432
have on this occasion been honoured to the full. I should also report to the House that the result of the consultations was unanimous.

Clerk Assistant: Mr. Paul Hayter, Reading Clerk: Mr. Michael Pownall
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I am pleased to confirm what the Leader of the House has said about the consultation process. This has resulted in the recommendations that Mr. Paul Hayter should succeed Mr. Davies as Clerk Assistant and that Mr. Michael Pownall should succeed Mr. Hayter as Reading Clerk. It is proposed that these appointments should take effect in the New Year following Sir Michael Wheeler-Booth's retirement, and I shall be inviting the House to approve the necessary Motions nearer the time.

Northern Ireland: Education Spending
3.5 p.m.
Lord Holme of Cheltenham Lord Holme of Cheltenham asked Her Majesty's Government:
Whether they believe this is the right time to be reducing education funding in Northern Ireland.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Baroness Denton of Wakefield): My Lords, education spending in Northern Ireland has increased in real terms by 9 per cent. since 1991–92 to its highest ever level in 1996–97.
Lord Holme of Cheltenham: My Lords, I thank the noble Baroness for that information about past levels of spending on education in Northern Ireland. Can she confirm that it is stated in Northern Ireland: Expenditure Plans and Priorities, published this year, that in the coming two years expenditure will be held static in nominal terms? That means of course a cut in real terms. Is she aware that the feeling which the Chairman of the Convocation at the University of Ulster describes as deep dismay is shared at every level of education in Northern Ireland: primary, secondary and university? Does she not agree that investment in education, particularly in Northern Ireland, is good for social stability and economic progress, and that spending cuts will send the wrong signal at the wrong time? Will the Government think again?
Baroness Denton of Wakefield: My Lords, I agree wholeheartedly with the noble Lord that investment in education is a crucial factor in social stability, and in particular, from my own point of view, in the economic growth of the Province. I think that the noble Lord looks at the question of money as opposed to the question of value for money. I believe that what we are doing for education in Northern Ireland is proved absolutely right by the fact that 41 per cent. of our young people go on to further education compared to 31 per cent. in Great Britain, and that the number of school leavers with two

433
or more A-levels rose in 10 years from 18 per cent. to 30 per cent. People in Northern Ireland are very proud of their education, and that pride shows in the results. As everyone knows, we are in a tough public expenditure round and it would not be for me to give speculative guarantees.
Lord Williams of Mostyn: My Lords, the Minister has correctly pointed out that more people from Northern Ireland go on to university education than in the rest of the United Kingdom. But is it not the fact that 40 per cent. of that higher proportion are obliged to leave Northern Ireland for a university education, and of that 40 per cent., 80 per cent. do not return? Have the Government any present plans for increasing the number of university places in Northern Ireland?
Baroness Denton of Wakefield: My Lords, I do not agree with the noble Lord, Lord Williams of Mostyn, that leaving Northern Ireland for a university education is necessarily a bad thing. The resultant gain in experience can only be to the benefit of Northern Ireland. The noble Lord asks whether the Government have any plans to encourage more of those who leave to return. One of the main planks of the inward investment programme is to provide more jobs for them to return to. The one thing that will ensure that they return with their families to Northern Ireland is success in the peace process.
Lord Beloff: My Lords, does my noble friend agree that the very high performance of school children in Northern Ireland in difficult circumstances deserves the congratulations of the House? Does she further agree that that high performance is largely due to the fact that Northern Ireland retained its grammar schools and was not subject to the so-called progressive education which caused such ravages in this country in the 1960s and 1970s?
Baroness Denton of Wakefield: My Lords, one of the great joys of being in your Lordships' House is that one can bow to expertise in a field way above one's own. I do so.

Great Lakes Region, Africa
3.10 p.m.
Lord Judd Lord Judd asked Her Majesty's Government:
What is their latest assessment of the humanitarian situation in the Great Lakes region of Africa, and what action they are taking in response, bilaterally and multilaterally and including action in the UN Security Council.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, there have been 1.7 million refugees in the region since 1994. Britain has provided over £130 million to help. The current insecurity in eastern Zaire has exacerbated an already critical
434
situation. Humanitarian agencies have sufficient stocks in the region to meet immediate needs but political and security difficulties are restricting delivery. The Government are supporting United Nations and European Union efforts to resolve this crisis and we are in contact with both Zaire and Rwanda to help defuse the situation.
Lord Judd: My Lords, does the Minister agree that unless the underlying tensions of the Great Lakes area are tackled there will never be any chance of lasting peace? Will that not involve accountability for genocide, strengthening the administration of justice, definition of citizenship, the screened return of refugees, economic regeneration and building democratic institutions? What external support is envisaged for any ceasefire that can be arranged? In the meantime, what is being done together with NGOs to ensure an integrated and disciplined international humanitarian relief operation with all necessary protections?
Baroness Chalker of Wallasey: My Lords, let me try as briefly as I can to give a flavour of the right answers to those many questions that the noble Lord asked. He is right to say that solving the underlying tensions in the area is absolutely critical. It is only when the warring factions within Zaire, let alone within Rwanda and Burundi, have decided that they wish to cease that we can be effective. Our experience over the past two years in Rwanda has been that once the fighting stopped we could help them—indeed we have helped them—to build up their administration of justice, to put their running of government in better order, to bring accountability for the genocide and to do the many things that he suggested.
But the real problem for all who want to help is that until the Banyamulenge—that is, the Zairean Tutsisand the Hutu Zairean troops come to some accommodation, it is almost impossible, however willing we may be, to give the humanitarian help that the people so desperately need. That is why, when I saw Prime Minister Kengo of Zaire last week and Foreign Minister Gasana of Rwanda this morning, I implored them—as Joan Burton, the president of the development council did just yesterday in Dublin—to bring about a ceasefire. With that ceasefire, not only will the humanitarian aid get through but we shall also be able to try to do some of the things that the noble Lord mentioned in his question.
Lord Avebury: My Lords, does the Minister agree that the crux of the problem is that the Zairean armed forces have repeatedly and systematically attacked the Banyamulenge, in league with elements within the refugee camps which the international community has failed to disarm? Would it be a good idea now to address the problem of the prevalence of weapons among the Hutus in the camps and the flow of weapons into the eastern Zaire region, which the United Nations was supposed to be having a look at some months ago?
Baroness Chalker of Wallasey: My Lords, I can assure the noble Lord that the UN and the UNHCR in

435
particular have been seeking to take action against the flow of weapons into the region. But weapons do not simply go over the border from one of the countries in East Africa into Zaire. There are many ways in which those weapons reach the Interahamwe, who indeed have been aided and abetted on many occasions by Zairean forces who are not under the full control of Kinshasa. Zaire is a huge country. It is quite clear from my own experience and discussions that it is exceedingly difficult for Zaire at its centre, Kinshasa, to have any control over what is going on in eastern Zaire. All these matters are being worked on by the UN envoy, the EU envoy and the presidents in the region. There is at least one good piece of news: the regional ministers are meeting today in Kampala to discuss the crisis and regional heads of state will meet in Nairobi next Tuesday to see what other progress can be made together with the help from the UN and the EU.
Lord Rea: My Lords, can the noble Baroness give us a progress report on the difficult task of detaining and bringing before Judge Goldstone's tribunal those who were guilty of instigating the genocidal activities in Rwanda in 1994? Is she aware of the information that some of the leaders of the Interahamwe are being given shelter in a Commonwealth country, namely, the Cameroon Republic? That is a fact that I believe she will be able to check quite soon.
Baroness Chalker of Wallasey: My Lords, I shall certainly check on the last piece of information that the noble Lord gave. So far as concerns the progress report on bringing to book the perpetrators of the genocide, I know that progress is being made. It is not so fast as one would like because it is exceedingly difficult to gather the information. Perhaps I may write to the noble Lord with some greater detail than I can give him from memory at this moment.
Lord Judd: My Lords, does the Minister agree that the lesson of the whole Great Lakes story so far has been that, by failing to take effective action in time, the expense has proved exorbitant? Is it not therefore now essential to gear up the international community to timely intervention before this conflict spreads into the worst chapter of an appalling story as conflict overtakes the region as a whole?
Baroness Chalker of Wallasey: My Lords, the noble Lord knows that I have every sympathy with taking preventive action where one can do so. But it is not enough for the neighbouring countries or the donor countries to take that action. It is only when the perpetrators of genocide and the mass killings that have taken place are prepared to work for peace and stop the killing that long-term success can be achieved. My officials are in daily contact with people on the ground. While there are large groups of people who want the ceasefire and an end to the killing, so long as the leaders of the groups are not stopped from the killing, however much help we give from outside—and my goodness, we have given it—the killing will not cease.
436
Two years ago at the height of the genocide in Rwanda I coined the phrase that people seemed to be "mad with killing fever". It is a kind of killing fever that sadly goes on in Zaire probably to a far greater extent than any of us have hitherto realised. We shall go on trying but we cannot do it without the governments and the people of those countries as well deciding to stop the killings.

Nuclear Weapons
3.18 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether they agree with the Opinion of the International Court of Justice that "in view of the unique characteristics of nuclear weapons, their destructive capacity and capacity to cause untold human suffering and damage for generations to come, their use in fact seems scarcely reconcilable with respect for the law applicable in armed conflict … the threat or use of nuclear weapons would generally be contrary to the rules of international law", and if so whether they will move a Motion to that effect in the United Nations.
Baroness Chalker of Wallasey: My Lords, we consider that the Opinion, taken as a whole, does not give rise to any new factors affecting the fundamentals of UK and NATO defence policies. Nuclear deterrence continues to be important in maintaining peace and stability in Europe.
Lord Jenkins of Putney: My Lords, is the noble Baroness aware that the Government are failing to move with a general feeling around the world that the time has come to be active in putting an end to the nuclear weapon? I am sure she is fully aware not only of the Opinion referred to in the Question but also of the Canberra Report on which we had some discussion. Is she aware that this country seems to be in the lead of immobility in this matter? Is it not time that we gave expression to the general feeling in the House that this is an opportunity that we ought to take to get rid of the nuclear weapon?
Baroness Chalker of Wallasey: My Lords, it is a nonsense to say that this country is in the lead of immobility. Let us examine what the issue is about. We have consistently argued that it is not suitable for judicial determination. As some noble Lords will know, it cannot be considered in isolation from the circumstances of any individual case. It was the court which emphasised that the Opinion should be read as a whole. There is no way that one can debate the details of that Opinion in a Starred Question. It is a long and complex document which needs to be looked at as a whole. We retain our deterrence at a minimum level consistent with our assessment of security requirements. We continue to believe that that is the way we should go and that the process of building new relationships with Russia and other central and eastern European

437
countries will be helped by maintaining the stability in Europe which comes from maintaining NATO's strategy of war prevention.
Lord Elton: My Lords, does my noble friend agree that rendering the use of nuclear weapons illegal would have no effect whatever on a power which wished to use them? Dictators do not look at the law to see how they should exploit a situation; they look at their interests. Hitler was not concerned with the legality of mustard gas. He was concerned with the fact that the allies had mustard gas as well, and it was not used.
Baroness Chalker of Wallasey: My Lords, my noble friend Lord Elton is absolutely right. When people try to say that there is an ICJ prescription outlawing the use of nuclear weapons, they are certainly wrong. A large majority-11 to three—found that in international law there is no comprehensive and universal prohibition of the threat or of the use of nuclear weapons as such. That is the basis of my response to the Question of the noble Lord, Lord Jenkins of Putney.
Lord Chalfont: My Lords, in responding to what seems to be the latest phase in the campaign for nuclear disarmament, will the Government bear in mind that the United Nations Special Commission charged with destroying the nuclear, chemical and biological weapons of Iraq recently reported to the Security Council that it is being systematically and consistently deceived by the Iraqis? The International Atomic Agency, also charged with the destruction of Iraq's nuclear potential, reports that Iraq is still receiving nuclear and missile equipment from abroad and that,
"the know how and expertise acquired could provide an adequate basis for reconstituting a nuclear weapons programme".
Would not this be a strange time for the rest of the world to be dismantling its deterrent capacity?
Baroness Chalker of Wallasey: My Lords, the noble Lord, Lord Chalfont, puts the position far better than I. As I mentioned on Monday in my contribution to the debate on the gracious Speech, there is deep concern about what is going on in Iraq. We now know that we must be aware that other countries are still not prepared to lay down weapons. The UK deterrent is not growing. Our deterrent has always been set at the minimum level necessary to secure our safety against current risks. As the noble Lord knows, we have already eliminated our maritime surface tactical nuclear capability and withdrawn our nuclear artillery advance missiles. We are moving in the right direction but it would be wrong to give up the deterrence we must have and which all members of NATO agree upon 100 per cent.
Lord Monkswell: My Lords, can the Minister advise the House who or what threatens this country and is deterred by our possession of nuclear weapons?
Baroness Chalker of Wallasey: My Lords, Iraq.
Lord Campbell of Alloway: My Lords, can my noble friend explain whether the Opinion referred to in the Question truly reflects a majority opinion? If it was not unanimous, to what degree was there dissent? Also, what was the substance of the dissent? In other words, is that view of the court a majority decision? If so, is it fairly reflected in the excerpt given?
Baroness Chalker of Wallasey: My Lords, the judgment is extremely complicated. On different aspects of the judgment different groups joined together. I mentioned the large majority which found that in international law there is no comprehensive and universal prohibition of the use or threat of nuclear weapons as such. I do not have the exact break-down of who divided which way on that. What is clear is what I said in my original Answer; that is, that the Opinion must be read as a whole. There is no way in which picking out the bits that appeal to one or other noble Lord or one country or another represents a proper use either of the ICJ or of proper judicial determination. Therefore, the Opinion as a whole must be judged. It is extremely varied, and it is right that this country should proceed in the manner I described in response to the noble Lord, Lord Chalfont.
Baroness Blackstone: My Lords, I was glad to hear the noble Baroness tell the House that the Government are not immobile on the matters raised by my noble friend. In that case, can she tell the House what initiatives they now intend to take to ban the production of fissile materials for nuclear weapons?
Baroness Chalker of Wallasey: My Lords, as the noble Baroness is aware, in order to ban the production of fissile materials one must have more of the sort of activity described as UNSCOM' s activity in Iraq or that of the International Atomic Energy Authority. Unfortunately, while we and many other nations support that activity, many nations do not. We shall continue working on that. Alas, it is clear that while we make every effort to achieve the goals established by the NPT, many other countries are not working in the same direction.
Baroness Blackstone: My Lords, I was aware of the fact that many countries are not doing so. However, there is a specific commitment in the Queen's Speech to work on the banning of the production of fissile material for nuclear weapons. I was asking the Minister to elaborate on the Government's plans to move that forward. I do not believe she has done so.
Baroness Chalker of Wallasey: My Lords, I have not done so because the detail has yet to come before Ministers. When the time is right I shall be only too willing to write to the noble Baroness.
Lord Skelmersdale: My Lords, are not those two questions very curious coming from the official spokesman of a party which apparently now backs Trident?
Baroness Chalker of Wallasey: My Lords, yes. I should perhaps have tried to embarrass the noble Baroness a little more. As far as I am concerned—this side of the House and most people agree—we have a minimum strategic nuclear deterrent in Trident. I have already said that we sought to bring down and succeeded in eliminating our maritime surface tactical nuclear capability. We are clear about what needs to be done and shall not lightly consider dismantling the stable and secure deterrence framework which we have. This Conservative Government will never do that.

Prisons Ombudsman
3.29 p.m.
Lord Taverne Lord Taverne asked Her Majesty's Government:
Whether they will consider enhancing the role of the prisons ombudsman.
The Minister of State, Home Office (Baroness Blatch): My Lords, the role of the prisons ombudsman is to consider grievances from prisoners who have failed to obtain satisfaction from the Prison Service's internal complaints system. The prisons ombudsman is performing this role effectively and the Government do not currently consider that the role needs to be enhanced.
Lord Taverne: My Lords, given the importance which is attached in the report of the noble and learned Lord, Lord Woolf, on Strangeways to the appointment of the prisons ombudsman, will the noble Baroness strongly urge the Home Secretary to access in full the recent recommendations of the House of Commons Select Committee? In particular, can she assure us that the prisons ombudsman, Sir Peter Woodhead, will have full access to the papers that he needs, which he says he has not always had, and that his brief will also allow him to question the administrative decisions of Ministers? Is it not particularly important that the ombudsman should be given full scope to perform his job properly at a time when the Home Secretary is determined to fill our prisons to bursting?
Baroness Blatch: My Lords, first, as the noble Lord knows, the report came out on 29th October, which was yesterday, and we shall be responding to it in due course. The noble Lord will then see the Government's response to it. As for access, the prisons ombudsman has unfettered access to papers relating to eligible complaints. The ombudsman has been asked on a number of occasions to produce the evidence for his allegations. To date, no evidence has been produced to support any allegation that the Prison Service removes documents from files other than those concerning advice to Ministers or deliberately obstructs the ombudsman by delaying the production of files.
The noble Lord's second point concerns ministerial scrutiny. It was never intended that the ombudsman should review decisions by Ministers. It would be quite
440
wrong for the ombudsman, a civil servant appointed by the Home Secretary, to review decisions by Ministers for which Ministers are accountable to Parliament. The decisions of Ministers may be challenged in the courts by way of judicial review or on grounds of maladministration by recourse to the parliamentary ombudsman. Ministers are constantly appearing before Select Committees, again as a form of accountability for their work.
Lord Molloy: My Lords, the prisons ombudsman and his staff perform a valuable role. Prison staff and inmates sing his praises and many Ministers have taken full advantage of his recommendations. All I ask is that the prisons ombudsman's points of view receive the full attention they deserve.
Baroness Blatch: My Lords, we very much value the work of the prisons ombudsman. We responded fully to the suggestion in the report of the noble and learned Lord, Lord Woolf, in 1990 that there should be an independent element to enhance and develop on the existing internal complaints system which he thought worked very well. We shall continue to do that. We shall also continue to consider seriously any criticism made by the ombudsman and reply to it. We have written a number of times asking for evidence of the criticisms that have been made. To date, no evidence has been produced to support the allegations. More than 90 per cent. of all recommendations made by the ombudsman in his findings have been accepted by the Prison Service. Only in a very few cases has there been any debate about his conclusions.
Lord Harris of Greenwich: My Lords, is the noble Baroness aware that in the report of the Select Committee for the Parliamentary Commissioner for Administration the committee came down on the side of the prisons ombudsman and not on the side of the Home Secretary? Is she further aware that in the course of the report it was said that Vice-Admiral Sir Peter Woodhead, appointed, of course, by the present Government as the ombudsman, warned of the effect of the changes that had been made on his independence and his reputation as an impartial investigator of grievances? Is that not a truly appalling situation?
Baroness Blatch: My Lords, as I said, the report has only just been published. We have had only a very quick read of it so far. We shall respond fully to it. We are aware that the Select Committee has taken the side of the ombudsman in some views. It is a free world. It came to its own conclusions as a Select Committee. But the concept of the ombudsman reviewing the administrative decisions of Ministers is not one which we readily recognise. Any decisions by Ministers are matters on which they are accountable—fully accountable—to Parliament. I have already said that they are accountable through judicial review in the courts, through the Parliamentary Commissioner, through the Select Committee process and, at the end of the day, as politicians, to the electorate.
Lord McIntosh of Haringey: My Lords, we are well aware that the Government are anxious to restrict the accountability of Ministers and to restrict the extent to which they take responsibility for their actions. But even on that restricted basis, is not the Minister's answer a travesty of what the ombudsmen were set up for and have been established for over the past 30 years? If they cannot question ministerial decisions, how are they keeping to their remit and to their obligations to society as a whole?
Baroness Blatch: My Lords, I find breathtaking what the noble Lord has just said. My right honourable friend the Home Secretary has been highly accountable in a very public way. He has been subject to judicial review—
Noble Lords: Oh!
Baroness Blatch: My Lords, noble Lords may scoff. All I can say is that Ministers of the Crown are accountable publicly in Parliament, as I am at this moment; they are publicly accountable in the courts of this land; they are publicly accountable to the Select Committee process; and, at the end of the day, as a personal responsibility, they are publicly accountable to the electorate. I do not find that a matter for fun. We have a highly democratic process in this country and therefore I do believe that we are accountable.
The noble Lord, Lord McIntosh, and I both come from the same stable in local government. He will know that the local government ombudsman can only look at the processes leading to the grievance of an individual. We have given power to the prisons ombudsman not only to look at the process which may find maladministration leading to a grievance but also to look at the merits of decisions taken by Prison Service staff. That is a power over and above all the other ombudsmen.

Police Bill [H.L.]
3.36 p.m.
Baroness Blatch: My Lords, I beg to introduce a Bill to make provision for the National Criminal Intelligence Service and the National Crime Squad; to make provision about entry on and interference with property and with wireless telegraphy in the course of the prevention or detection of serious crime; to make provision for the Police Information Technology Organisation; to provide for the issue of certificates about criminal records; to make provision about the administration and organisation of the police; to repeal certain enactments about rehabilitation of offenders; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Baroness Blatch.)
On Question, Bill read a first time, and to be printed.

Human Rights Bill [H.L.]
Lord Lester of Herne Hill: My Lords, I beg to introduce a Bill to incorporate Section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950 and the First Protocol to that convention into the law of the United Kingdom; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Lester of Herne Hill.)
On Question, Bill read a first time, and to be printed.

House of Lords Offices: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Select Committee on the House of Lords Offices be appointed and that as proposed by the Committee of Selection the following Lords together with the Chairman of Committees be named of the Committee:

V. Allenby of Megiddo,

L. Brabazon of Tara,

L. Brougham and Vaux,

L. Bruce of Donington,

V. Cranborne (L. Privy Seal),

L. Dean of Beswick,

V. Falkland,

E. Ferrers,

E. Gowrie,

L. Graham of Edmonton,

B. Hamwee,

L. Harris of Greenwich,

L. Jenkins of Hillhead,

L. Lane of Horsell,

L. McIntosh of Haringey,

L. Mackay of Clashfem (Lord Chancellor),

B. Nicol,

E. Northesk,

V. Oxfuird,

L. Peston,

L. Renfrew of Kaimsthorn,

L. Richard,

V. Slim,

Bp. Southwark,

L. Strathclyde,

L. Tordoff,

B. Turner of Camden,

V. Ullswater,

L. Weatherill.—(The Chairman of Committees.)

On Question, Motion agreed to.

Liaison: Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to advise the House on the resources required for Select Committee work and to allocate resources between Select Committees; to review the Select Committee work of the House; to consider requests for ad hoc committees and report to the House with recommendations; to ensure effective co-ordination between the two Houses; and to consider the availability of Lords to serve on committees;
That as proposed by the Committee of Selection the following Lords together with the Chairman of Committees be named of the Committee:

L. Allen of Abbeydale,

L. Belstead,

V. Cranborne (L. Privy Seal),

L. Dormand of Easington,

L. Jenkins of Hillhead,

L. Kimball,

L. Richard,

L. Weatherill;

That the Committee have leave to report from time to time;
That the Committee have power to appoint specialist advisers.—(The Chairman of Committees.)
On Question, Motion agreed to.

Channel Tunnel Rail Link Bill
3.37 p.m.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill. With the leave of the House, I should like to take this opportunity to thank the Select Committee which considered the Bill, and in particular the noble Lord, Lord Ampthill, for its very evident hard work, its thorough consideration of all the issues and indeed its great wisdom in scrutinising the Bill. Some 293 petitions were lodged against the Bill and the Select Committee sat for 31 days. The special report issued by the committee on 15th October is a model of thoroughness and clarity and is of enormous assistance to the House, promoters and petitioners. I am very grateful indeed for the hard work put in by the Select Committee and in particular for the chairmanship of the noble Lord, Lord Ampthill, which has enabled the Bill to reach this stage.
Moved, That the House do now resolve itself into Committee (on Recommitment).—(Viscount Goschen.)
Lord Clinton-Davis: My Lords, I would like to echo in every respect what the noble Viscount has just said. I suspect that we are going to agree quite a lot today—we often do! Certainly, the arduous and even zealous
444
efforts that were undertaken by the noble and learned Lord, Lord Donaldson, and his committee were exemplary and have had wide international as well as national implications. I too would like to join in thanking the noble Lord, Lord Ampthill, and his colleagues for the exemplary work that they also have done.
Lord Brougham and Vaux: My Lords, I would like to add my tribute to the noble Lord, Lord Ampthill, for the expeditious and courteous way he chaired our deliberations in the long hot days of June and July. When my noble friend the Chief Whip asked me to serve on the committee my reaction was to say yes. I asked, "Will the noble Lord, Lord Ampthill, be chairing the committee?". I had been under his guidance before. The reply from my noble friend was that they had asked him, but he was playing hard to get and that I had better do some arm twisting. The noble Lord said that he had been approached, but he thought that he was a bit past it; that the grey cells were not what they were and his memory was not as sharp as it was 10 years ago when he chaired the committee which dealt with the Channel Tunnel Bill. My reply was that, 10 years on, we all suffer the same problem to a degree. However, with a little pressure, but without any sedation, he agreed. Ten years ago, when my noble friend finished his travels from Calais to Folkestone, little did he realise that he would travel across the Garden of England, across the Thames and up to St. Pancras, the new London terminus for the Channel Tunnel trains.
With the noble Lord's great experience, we were able to complete our deliberations in 31 days, plus two days out. Some times we sat quite late into the early evening. We were ably guided by the Clerk, David Batt, who was able to advise us where any problems might arise or that certain petitions had been withdrawn or agreement had been reached. That was good news to our ears. David was also a very great help to us in our deliberations on Thursdays when we reviewed and considered the evidence that we had heard that week. Together with Brendan Keith, he was of valuable assistance and I offer our thanks to them both.
If it had not been for the very high-tech gizmos which Mr. Gambrill had, we would have been sitting much longer. At the push of a button he could display on the monitors in front of us any map or plan that the petitioners referred to. That saved us rummaging on the floor in the piles of paperwork to find the relevant document. From the outset we endeavoured to get the two parties to come to a consensus. Through our chairman, we tried to guide them to reach agreement. In a vast number of cases we succeeded.
The last thing we wanted to do was to dictate to either party. On a few occasions we had to but, overall, compromises were reached, sometimes at the last minute, in the corridors of your Lordships' House. As a result we were able to produce the unanimous report which is before your Lordships.
Until the Bill receives Royal Assent the promoters cannot get on to the ground to determine the best possible line within the limits of deviation. A lot of questions remain unanswered, but we have some secure

445
agreements from the promoters and they have gone a long way to satisfy the concerns of a lot of people. Once again, I would like to thank my noble friend, the chairman.
On Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [Construction and maintenance of scheduled works]:
Lord Thomson of Monifieth Lord Thomson of Monifieth moved Amendment No. 1:
Page 1, line 17, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 2, 3 and 4, which are grouped together. I apologise to the Committee for the state of my voice. I am very doubtful whether it will last the course. However, I join with the tributes that have been paid to the Select Committee and to the chairman, the noble Lord, Lord Ampthill, for the marathon task that they undertook with this Bill. I know, from being an occasional spectator, the wise and humane way in which they dealt with what was sometimes an intimidating experience for those who came before the committee from the many areas affected by the proposals in the Bill.
These amendments raise in one way a very simple issue which the Select Committee dealt with very thoroughly and reported on. It deals with that section of the line which runs through a particularly beautiful part of East Kent in the parish of Charing, where I live. The parish council is very concerned that the embankment on which the line is going to operate may be higher than it need be. It may be quite unsightly in terms of the overall environmental impact.
There would have been no need for these amendments if it had not been that, at the very end of the day and the final hearing of the committee on 3rd October, the promoters, in their reaction to the proposals of the Select Committee, simply repeated the point of view that they had put before Kent County Council at an earlier stage. They left a very real degree of ambiguity as to whether in fact, when it came to working out the designs, they really were making a commitment to lower the elevation of the line if it were practicable.
My amendments deal with that issue. One of them, in a sense, simply repeats what I found to be the very comforting words of the chairman, the noble Lord, Lord Ampthill, at the hearing. He said, on behalf of the committee and in support of the wording in the report itself, that he believed that if the lowering of the elevation proved practicable then it must be lowered; it was not an option. The purpose of these amendments is to try to ensure, as far as one can, that that is the final outcome, by writing that commitment on the face of the Bill.
There are two alternative propositions in the amendments that I have drafted. As I have said, one simply seeks to put into the Bill the position of the Select Committee itself. The second amendment tries to be more precise and to spell out an actual commitment as to what should be the maximum elevation of the embankment on which the line will run in that part of Kent. That is the purpose of the amendments. I thank the Committee for its patience in listening to such a croaking voice. I beg to move.
Lord Brougham and Vaux: The noble Lord, Lord Thompson of Monifieth, is quite correct as regards what the chairman of the Select Committee had to say on 3rd October. He also said to Lady Bain-Smith that the promoters must do that, if it is practicable. If it is not practicable, it is unreasonable of the Committee to demand that they do it, and that has to be conceded. We will have to wait for detailed drawings before the promoters can see whether it is practicable. With great respect to the noble Lord, I do not believe that we can write something into the Bill which is impractical.
Viscount Goschen: I sympathise with the noble Lord, Lord Thompson of Monifieth, for his affliction and for the brave way in which he moved his amendment. I believe that I can give the noble Lord comfort in terms of what will actually happen. However, it will be explained in the course of my remarks why I do not believe that it would be appropriate to accept his amendments. I thank my noble friend Lord Brougham and Vaux for his clarification of the issue.
Essentially, the issue of lowering the railway in the parish of Charing is not a new one. There is no dispute about the principle that the railway should be lowered at Charing if that proves to be a practicable proposition at the detailed design stage, as my noble friend said. An undertaking to that effect was given by the department to Kent County Council in May this year. The Select Committee then confirmed that it was its wish that the railway should be lowered at Charing if practicable. In response, the promoters reaffirmed their undertaking. On the last day of the Select Committee hearing the representative of Charing Parish Council sought clarification that the undertaking would result in the railway being lowered at Charing if practicable. She received confirmation that that was what the committee wished and that that is what the promoters had undertaken to do. I would say that the position could not be more clear.
The undertaking takes the form of a binding undertaking given by Kent County Council. Essentially, nearly 600 undertakings and assurances have been given in connection with this Bill. Rather than having large numbers of potentially complex amendments adding more thick schedules to the Bill, the route of binding

447
undertakings has been followed. I suggest that it is not sensible or practicable to single out for inclusion in the Bill this one undertaking on lowering the railway at Charing. In addition, the drafting is not straightforward because there cannot be certainty about how much lowering, if any, is feasible until detailed designs have been undertaken. I hope that that gives the noble Lord, Lord Thomson, some reassurance and that he will feel able to withdraw his amendment.
Lord Thomson of Monifieth: I am grateful for the Minister's explanation but I think he will understand the degree of distrust—I do not think that that is too strong a word—that still exists about whether the promoters and the nominated contractors will find that lowering the line is practicable when the decision on that matter is left to this late stage and the design arrangements are still in the future. That is why it would have been a very great reassurance to have had this commitment spelled out in the text of what will finally be an Act of Parliament. However, I shall consider carefully what the noble Viscount said and I am grateful to him for spelling out his views. I shall, of course, want to consult Charing Parish Council and I may want to return—
Lord Brougham and Vaux: Before the noble Lord withdraws his amendment, I think that I am right in saying—I believe that the chairman of the Select Committee will back me up—that if the promoters have given an assurance to the committee and do not honour it, they will be in great trouble.
Lord Thomson of Monifieth: I hope that that is so, but the truth of the matter is that the promoters' response to the Select Committee's interim or draft report (produced in July) did not go further than their earlier statement to Kent County Council. If I remember rightly, it referred to looking at the various options, and so on. I put it no higher than saying that there is a very real difference of emphasis between the enthusiasm of the promoters for dealing seriously with this matter, ensuring as far as is humanly possible that the lowering is practicable, and the desire of the people of that part of Kent to believe that if that lowering is practicable, "it must be done" to echo the words of the noble Lord, Lord Ampthill. However, I shall consider carefully what the Minster has said—
Lord Ampthill: Perhaps—
Lord Clinton-Davis: Perhaps I may raise a point which I believe will be relevant to the noble Lord, Lord Ampthill. The noble Lord, Lord Brougham and Vaux, said a moment ago that if the promoters were to fail to honour their "undertakings" they would be in great trouble. That theme runs right through the Bill. Is the so-called "undertaking" legally enforceable? At whose instance would such proceedings be brought? Would it be at the instance of the Government or at the instance of any third party alleging that some damage has been caused as a result of the breach of the undertaking?
448
The matter is not clear. With respect, I do not think that it is elaborated upon in any great detail in the report. When the Minister rises to say a word or two about what has been said perhaps he will comment on that point which I think is most important.
Lord Ampthill: If I may, I shall leave the Minister to answer the specific point which has just been made. The noble Lord, Lord Thomson of Monifieth, knows full well that the whole committee was on-side on this matter and that we went just as far as it was humanly possible to go in the light of the fact that we are not designing this particular railway line. It has to be left, reluctantly, to the experts. I think that it would have been ill-advised of the Select Committee to have gone any further on such a technical matter and, if I may be so bold, I think that it would be ill-advised of the House and this Committee to go any further.
Those responsible will lower this part of the line as far as they humanly can. It is an intrusion and could be as high as 10 metres above the surrounding land. It would be a very great pity if the promoters do not do what we have asked them to do. Indeed, I am quite certain that they will because I think that there is a degree of good will on the part of the promoters and the undertakers to do the job as well as it humanly can be done. I hope that the noble Lord will not feel that we let him down—I am sure that he does not. We went as far as we possibly could and I hope that the Committee will recognise that.
Lord Howie of Troon: I beg the Committee's pardon for intervening so late in the business, but I have been listening to the debate carefully. Speaking now as a civil engineer, perhaps I may say in response to the last comment that I do not believe that the Committee should leave this matter "reluctantly" to the experts. I think that we should leave it happily to the experts because they will do what needs to be done.
Lord Ampthill: I am very much in favour of what the noble Lord has just said, but I felt that for the sake of the pride of the House it might be better to put it that way round.
Lord Harris of Greenwich: I wonder whether the noble Viscount can help us on one matter which follows the point made by his noble friend and the noble Lord, Lord Clinton-Davis. What exactly happens if a binding undertaking is not honoured by the promoters? The question has been asked by the noble Lord, Lord Clinton-Davis. I am bound to say that I do not know the answer—no doubt I should—but it would be helpful if the Minister could assist us.
Lord Thomson of Monifieth: Before the Minister utters his final words on this matter I should like to reassure the noble Lord, Lord Ampthill, that I accept, of course, that the Select Committee went as far as it possibly could. We appreciate and recognise that fact. However, given the background, I am not sure that the Bill goes as far as it possibly could. That is the point I have been pressing.
Viscount Goschen: We have probably covered the ground in and out, in and out and even back again during our brief discussion on this amendment. The principles of binding, legal, contractual undertakings are fully understood in law—and these are contractual undertakings. If there are breaches of those contractual undertakings, the remedy will depend on what the breach is and who was responsible. Legal remedies are always available and the Secretary of State would no doubt avail himself of such remedies if he saw fit. The whole principle on which a Bill such as this is taken forward is on the basis of binding, legal, contractual arrangements such as these. I do not think that there is much more to be said. Nearly 600 such undertakings have been properly registered and they are legal, binding, contractual undertakings. They bind the parties to what they have undertaken to do.
Lord Thomson of Monifieth: On the basis of what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 4 not moved.]
Clause 1 agreed to.
4 p.m.
Lord Berkeley Lord Berkeley moved Amendment No. 5:
After Clause I, insert the following new clause—
RAIL FREIGHT TERMINAL
(". The nominated undertaker shall make available a site of not less than 12 hectares for use as a rail freight terminal on land held or to he acquired by it for the purposes of this Act at Temple Mills in Stratford.").
The noble Lord said: Before I introduce the amendment, I should like to declare an interest. I was concerned with Eurotunnel (my last day) and the piggyback consortium. I shall deal with the need for a rail freight terminal in east London"today. I have no desire to delay the Bill. I add my congratulations to those of other noble Lords as to the way that the Select Committee has undertaken its business.
I believe that it is the policy of the Government to encourage freight on rail. They have recently announced a most welcome increase in the environmental benefit calculation for freight facilities grants from 5p to 20p per mile. One is very pleased about that. The Channel Tunnel was seen as having great potential for long distance rail freight by BR. Old BR carried out many regional consultations and set up terminals around the country. Some were built and some were not. One was built in Stratford. It has never been used but has been mothballed. One or two have been committed but not built. Since then rail freight traffic has built up. Forty per cent. of unitised freight going to Italy now travels by rail.
UK rail freight was in decline but that was probably because it was not given investment, rates were hiked and reliability was poor. What has changed? Rail freight distribution is being privatised. English Welsh and Scottish Railway has brought in US and New Zealand experience and committed itself to a good deal of investment in growth potential. We also welcome the
450
introduction by the Government of a more flexible cross-Channel rail freight security regime. We are sure that it will help a great deal. There is general political encouragement given to rail freight. Because the motorways are clogged that is hardly surprising. In particular, English Welsh and Scottish Railway has restarted wagonload business by rail, even from the north of Scotland up to Wick. Fridges are made in the north of Scotland, which may seem strange, but it is a very successful business and much of it comes down by rail. There is also a widening of inter-modal services: containers, swap-bodies and, perhaps eventually, piggyback within the UK. There is an expectation that other operators will come in, Freightliner, RFD and perhaps others. Rail freight needs terminals. They do not have to be elaborate or expensive, but they have to compete with road. Those terminals need road access, obviously rail access and an acceptable planning environment. They can be private or open to all. However, if there are no terminals there will be no rail freight.
If one looks at the facilities available for public use in the Stratford and east London area, there was an RED terminal, as I have just mentioned. There is still a London international freight terminal for small operators. But they have all been given notice to quit and no real alternative location has been offered. They have been given notice to quit by Union Rail quite rightly because of the Channel Tunnel rail link development. They cannot develop their business anywhere unless they have security somewhere. EWS Railway believes that there is a business to be had in east London for rail freight. It is primarily a business within the UK. That is inter-modal and wagonload business. There may also be some small local cross-Channel business. It is very close to a fruit and vegetable wholesale warehouse in east London. They and others have looked round—as I have—for other suitable terminals that will fulfil those criteria. Willesden has been suggested, but that is not really in east London. Cricklewood certainly is not. Thurrock is a long way away but a good place, and Barking and Ripple Lane have been rejected by the Select Committee, quite rightly, as unsuitable.
One must accept that the square box in Stratford is required for development and is not suitable for rail freight, because one must encourage as much development there as possible. Where else does one go apart from Temple Mills which is a long, flat, wide strip of land just north of Stratford? I believe that the Select Committee located a rail freight refuelling depot there. There is a requirement to maintain Eurostars there and probably to provide stabling of domestic Channel Tunnel rail link trains. I have had discussions with London and Continental on the question whether there is a possibility of locating a small rail freight terminal in that area. I have received several different answers, but the latest one is that there is no space for it.
About 15 years ago I worked on the Channel Tunnel. If I had then been asked the question I would have given the same answer. Let us look at the Channel Tunnel

451
terminals. The French one is three times as big as the English terminal, but the English one was built. I believe that at this stage engineers can find solutions to any problem at minimal cost if they really want to. I accept that the design needs to be developed. I have suggested various different ways in which it can be done. I also asked whether it would be possible to allocate the whole of the Temple Mills area only for rail-related purposes. The answer that I received was no. That leads me to suspect that if it is not used for rail it will be used for property development. I believe that to be strategically unsound. I am sure that Stratford is to be allocated property development, and quite rightly too. Temple Mills is not the centre of a protected universe. It fulfils a useful need, but I believe that rail fright in east London is a strategic issue. I do not want to do anything that will hamper construction of the rail link or the construction site, but there are good strategic reasons for having a small rail freight terminal in east London.
Therefore, I seek some comfort from the Minister that he will ask London and Continental to develop the overall design for the site as quickly as possible and enter into negotiations with EWS and any other operator who wishes to go there—I would be happy to participate in it—say within the next three months, with the objective of seeking a solution acceptable to everyone to allow a little bit of rail freight in east London. I beg to move.
Viscount Goschen: If the Committee will permit it, I shall go straight to the direct consequences of the amendment tabled by the noble Lord, Lord Berkeley, although no doubt noble Lords have been very interested to hear his more general remarks about rail freight distribution in this country. It may assist if I explain the current position regarding Temple Mills Yard.
The site is part of the Stratford railway lands, ownership of which was transferred from BR to my right honourable friend the Secretary of State earlier this year because the land will be required for the CTRL project and related development. Most of the site is currently occupied by English Welsh & Scottish Railway (EWS) and the former BR southern track renewal unit now owned by Balfour Beatty. These occupations are under an agreement for lease with the Secretary of State in the case of EWS and a lease in the case of the STRU. Both of these provide for the current occupants to be relocated elsewhere in the London area at LCR's cost if Temple Mills is required by LCR for an alternative use. The intention is that EWS would be relocated to a site that it has identified at Cricklewood.
Under the development agreement between LCR and the Secretary of State, LCR has a number of options for the site. During the CTRL construction period it may well wish to use it as a major construction site for the London tunnels which will be bored from Stratford. In the longer term, part has to be reserved for stabling sidings for domestic passenger trains on the CTRL. LCR may wish to use the rest for an international passenger train maintenance depot as an additional facility to the existing North Pole depot at Old Oak Common in west London. It could retain the existing uses, either alone or together with EWS's Stratford traction maintenance
452
depot, which might need to be relocated from its present site, or it could use it for commercial or other development. The noble Lord's proposed amendment would mean that at least 12 hectares of the site would have to be made available for use as a rail freight terminal.
I do not believe that the amendment should be adopted for the following reasons. First, it could leave LCR in an impossible position. It may well be that there will simply not be enough space at Temple Mills for 12 hectares of land for freight if an international depot has to be provided there as well as the domestic sidings and the Leyton relief road. Secondly, it would not be right to constrain LCR's options in this way. LCR needs the maximum flexibility over the use of the Stratford railway lands in order to maximise the benefits from the project. It is only by safeguarding that flexibility that the regeneration opportunities which this project offers and of which the new international station will be a significant part can be maximised. As recognised by the noble Lord, the area has exciting regeneration opportunities and those now available enjoy wide support, both locally and nationally.
Thirdly, while there could be a loss of freight facilities on the Stratford Railway Lands, under the proposed arrangements there will be no overall loss of freight facilities in the London area because of the relocation provisions in the proposed and existing leases to EWS and the STRU respectively.
Fourthly, rejecting the proposed amendment would not necessarily rule out the development of a rail freight terminal at Temple Mills even if LCR does not wish to retain the current freight use. It would be for the promoters of such a terminal to approach LCR.
I hope that with that detailed explanation of the situation regarding this area of land the noble Lord, Lord Berkeley, will feel able to withdraw his amendment.
Lord Berkeley: I thank the Minister for those remarks which I shall study carefully. Before I withdraw the amendment I should like to point out that I was aware, of course, of the offer to relocate in Cricklewood, but Cricklewood is not in east London. It is quite a long way away. I hope that the Minister's words indicate that encouragement to LCR should be given to negotiate quite quickly on a rail freight terminal located somewhere there with continuity of operation. That is the critical thing. On that basis, I shall see how we get on, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 2 and 3 agreed to.
Clause 4 [Acquisition within limits shown on deposited plans]:
Lord Cornwallis Lord Cornwallis moved Amendment No.6:
Page 2, line 16, at beginning insert ("Subject to paragraph 12A of Schedule 4 to this Act,").
The noble Lord said: I shall speak also to Amendments Nos. 7, 22 and 25. Amendments Nos. 6, 7 and 22 are of course paving amendments. The guts of the amendment are in Amendment No. 25.
At the risk of stating the obvious, I should first point out that we are dealing with the construction of a railway. As such, it differs from the construction of a road or other works because the width of the permanent way is narrow and the contractor must use adjoining land for access, materials, equipment and other associated purposes. Partly for that reason, but also because of the precise route, the associated engineering works and other elements of the project have not been designed in detail. The land authorised to be acquired under the Bill is substantial.
The Bill as drafted, particularly Clause 4, will enable the promoters to enter upon and compulsorily acquire any or all of the land shown on the deposited plans as being within the limits of deviation of the proposed works.
The promoters have acknowledged on a number of occasions that they do not need to acquire permanently all, or anywhere near all, of that land, because a great deal of it will be required only temporarily during the construction period.
The amendments recognise that the current owners have the better long-term claim to the ownership of that land which is used only temporarily. The promoters have accepted in principle that they should not take permanently land which they need only temporarily, but the Bill fails, except to a very limited extent, to give effect to that principle.
The boundaries of the land which is required permanently for the engineering and associated works for the operation of the railway along much of its length are not known now and may not be known at the time that possession of the land is taken. Counsel for the promoters said that that would be the case when addressing the Select Committee on day 15 (page 43).
Since permanent acquisition would deprive the owner of his legitimate long-term interest, it would be better to provide that the land required by the promoters is available to them for all purposes at the outset, but to settle the boundaries of that land which is required permanently at the time that the permanent boundary becomes evident.
The purpose of the amendments is to enable the owner of the land, if he or she so desires, to counter the notice to treat for the permanent acquisition and to convert it to an irrevocable licence to occupy the land for the construction of the railway. If the landowner does serve notice in accordance with the amendment, that in no way affects the right of the promoters to occupy all of the land which they say they require for the purposes of constructing the line. The service of notice and counter-notice will create an irrevocable right to take possession of and use the land without any delay or further administrative problems. In fact those carrying out the work on the ground would have no need to be aware of the status under which they have the use of the land.
At the time the boundary of the land needed permanently for the railway and its associated engineering works becomes apparent, the promoters have the power to transfer the ownership of that land
454
to them, and, on production of the necessary documentation, the land will be conveyed to them—a procedure through which they would have to go in any case.
There are obvious advantages in the promoters being able to deal with the acquisition of the land on the basis of certain knowledge of what is required rather than guesstimates.
The occupation of the remaining land is temporary only, but it is available to the promoters until the work on the railway is finished and for a period of 12 months thereafter. The conditions for the occupation, restoration and return of the land are already included in Schedule 5 to the Bill as they may apply to certain specified areas. The same regime will apply to any other areas that may, on the service of a notice in accordance with the amendments by the owner, be used on a temporary basis.
There is a right within the amendment for both parties, if in dispute, to go to arbitration using the provisions which are already in the Bill. The effect of the whole amendment, as I stated earlier, is to establish an irrevocable right for the promoters to occupy any land that they require during the period of construction. There seems little reason therefore for the need to go to arbitration. Likewise, it seems extremely unlikely when the boundary lines of the completed project have been clearly drawn and fenced that there will be any difficulties with the owner of any land.
I know that the amendments appear complicated. When I first saw them I was somewhat aghast at having to propose them, but by introducing one piece of paper they bring certainty to the acquisition of the land. The Bill already requires a notice to be served specifying the land to be acquired and the normal processes then require that land to be conveyed.
I seek to interpose one piece of paper between those two stages to say, "Hang on". The promoters do not know what they need to own. So these amendments will give them the use of the land for the construction period. They will then be able to take permanently that land which they need permanently when the boundaries have been established. I beg to move.
Lord Stanley of Alderley: The noble Lord, Lord Cornwallis, has explained clearly why the amendment is so necessary. I therefore find it extremely difficult to understand why it is being resisted, bearing in mind that the Select Committee of this place supported such a position in its interim report of 25th July. That report was acknowledged by the promoters in their commentary published on 30th September which stated:
"The necessary machinery will be put in place so that those farmers whose land will definitely only be required on a temporary basis for the construction of the CTRL, and who would like to farm the land in question once the CTRL construction works have been completed will be given an opportunity to retain the freehold interest in the land with the necessary temporary occupation construction activities being carried out either under a tenancy, or under licence coupled where necessary with an option to purchase to protect the right to occupy against successors in title".
That sounds fine but, sadly, the promoters have not honoured that promise. Indeed, following that assurance in the first 10 lines there follows 11 lines of

455
gobbledegook, which allows the promoters to opt out of their assurances made in the first 10 lines. If my noble friend can persuade the Committee that I am wrong in my interpretation, so be it. But if he can, that gives all the more reason for accepting the amendment.
Therefore, I hope that the Committee will listen very carefully to how my noble friend answers my queries on the last 11 lines of the promoters' commentary, which backtrack on the first 10 lines. First, is it not a fact that the promoters have committed themselves only to discuss the use of the land taken temporarily? Secondly, is it right that in that discussion, if one can call it that, they can use the threat of compulsory purchase to aid their case? Thirdly, is it right that the use of the Crichel Down rules, if one can call them rules, carry little weight in this case? They are not binding; they are only a protocol. They carry no certainty, in particular as regards timing and price. And they have no relevance whatever to land required only temporarily, which is what we are talking about.
Fourthly, the promoters have stated that farmers whose land is definitely required only temporarily will be given the opportunity to retain the freehold. But the promoters have frequently stated that it is impossible for them to know definitely what land they want. Will my noble friend please tell me definitely what "definitely" means in this definite case? Fifthly, does my noble friend accept that the promoters have promised only to negotiate with the farmers to return the land, but that they, the promoters, will retain the power to retain the freehold if they decide they do not like the terms? Sixthly, will my noble friend tell the Committee what the promoters mean by "other interest or adverse rights in the land" and why that allows them to opt out of the principle of returning the land to the original owner? Seventhly, and finally, is not the Secretary of State acting as judge and jury in that he can determine whether a suitable tenancy, licence or option to purchase has been offered?
I have mentioned a few of the problems which could arise if the amendment is not included in the Bill. My noble friend might say that I should have a little more trust and faith in the promoters honouring the first 10 lines of their comment and forgetting the last 11. In any event, if they blatantly ignore the opinion of your Lordships' Select Committee—a point raised by the noble Lords, Lord Clinton-Davis and Lord Harris—I suppose that we could ask for a judicial review. I shudder at the thought of it!
While I am on the subject, perhaps your Lordships listened to the noble Lord, Lord Peston, yesterday, when he made a somewhat similar remark. He said:
"I hope that … the landowners will be dealt with fairly".— [Official Report, 30/10/96; col. 336.]
At the moment, neither I nor the noble Lord, Lord Cornwallis, believe that that is the case. Furthermore, I must remind my noble friend that the promoters have known about this amendment since 18th July and have raised no particular objection. Therefore, I cannot see that they can raise any particular substantial objection now.
456
Your Lordships have a duty to ensure that legislation is as clear and litigation-free as possible, and certainly as just and as fair as possible. Therefore, I hope that my noble friend will be able to accept the amendment so as to save your Lordships having to return to it on Report and at Third Reading.
Lord Ampthill: The noble Lords, Lord Cornwallis and Lord Stanley of Alderley, have been good enough to recognise that the Select Committee was once again on side as regards their wishes. We as a Select Committee went as far as we believed it was possible to go to meet their well founded wishes. I do not believe that it is possible to go further. While I accept that "gobbledegook" may be the appropriate word to apply to the last 11 lines of the commentary, I fear that it applies also to the amendment which is now proposed.
Lord Clinton-Davis: Perhaps I may speak at this stage in order to express my view in the context of two powerful speeches which certainly raise a case to be answered. Clearly, whether or not the amendment is in a suitable form is by the way. Neither noble Lord has the same facilities as the Government in preparing amendments. However, we are dealing with a principle rather than the detail. If the principle is accepted, the detail can be clarified later.
We are talking about the land to be taken or used in rural areas. We are talking about equity. We are talking about whether any doubt might be raised as to the bona fides—perhaps that is putting it too high and I shall substitute the word acceptability—in practical terms of the promoters' undertaking that they do not wish to acquire compulsorily more land than is needed.
The noble Lord, Lord Ampthill said that in his view it is not possible to find a solution beyond that which his committee concluded. That gives rise in vivid terms to the point that I made earlier because here we have an acceptance in principle. It does not amount to an undertaking. The great difficulty about that is that the undertaking which noble Lords require is one which is capable of being binding and enforceable. That acceptance in principle is vague. The purpose of an undertaking being precise is to enable it to be enforced. I am by no means certain that it is right to hold out the possibility of judicial review or any other legal redress where one has an imprecision of this character.
Perhaps the noble Viscount can persuade the Committee that the noble Lords, Lord Cornwallis and Lord Stanley of Alderley, and myself are wrong and that adequate redress is available to anyone who has been aggrieved. The documents before us and the amendment are complicated. The noble Lord, Lord Cornwallis, said that it was not quite so complicated but, despite his assurances, I find it extremely complicated. However, I am concerned about the question of enforceability.
Leaving that issue aside—and no doubt the Minister will return to it—we have the problem of equity, as I began by saying. The integration of the CTRL into the landscape will be a matter of very important consequence. Indeed, it was dealt with at considerable length in the environmental statement. That statement assesses the reference design and states that,

457
"the railway, with its permanent way, associated engineering works and permanent landscaping, will occupy about 350 hectares of agricultural land. A further 163 hectares are expected to be used during construction works and a further 345 hectares lie within the limits of land to be acquired or used but are not expected to be needed".
All that has been set out and I merely highlight what is set out in the documentation.
The environmental statement also makes it abundantly clear that the unused land will remain in agriculture. Much of the land which is disturbed or used will be returned to agriculture. If that is the case, why is it not right that the existing businesses, with their buildings and labour, should do that because it makes best sense? Surely it does. Of course, it can only be right for the existing owners and occupiers to have the right to resume their interest in the land when the promoters no longer have any need to use that land. The amendment is clear on that point. The promoters can take what they need and use it and the freehold of the land required for the permanent works can be taken at the outset or when the boundary is clear and they can occupy the remainder for as long as is needed. It must be right for the interests to be balanced in that way.
It is an important principle. As I said, I do not know whether legally the draftsman of the amendment has got it right. I am guilty of tabling many amendments which have been inadequately drafted. The Minister is quick to support that point of view. But during the course of the Railways Bill I did not introduce nearly as many amendments as the Government, because they got the drafting of the Bill wrong in the first place. There were 500 amendments. Therefore the Minister cannot be too cocksure about what the Government are doing.
Now we should concentrate not so much on the detail but on the principle, the principle to which my noble friend Lord Peston referred to briefly yesterday in the debate on the gracious Speech. As I said, I believe that there is a very strong case to answer.
4.30 p.m.
Lord Renton: In principle I agree with the noble Lords, Lord Cornwallis and Lord Clinton-Davis, and my noble friend Lord Stanley of Alderley. But we really must get it clear in the Bill that if land must be taken for construction works but is not needed when the works have been concluded, it should return to the owner and occupier.
The nearest that we get in the Bill to actually achieve that is in Clause 6, which is the shortest clause in the Bill. That refers merely to the fifth schedule. I invite attention to that schedule which deals in its heading with:
"Temporary repossession and use of land … Occupation and use for construction of works".
Having studied that schedule, which goes a long way in the direction which noble Lords so rightly require, I feel that that is the one at which we should be looking and the one which needs to be slightly amplified in order to cover the situation which has been described.
458
However, an amendment has been tabled by the noble Lord, Lord Cornwallis, to the fourth schedule. It seems to me that the fourth schedule deals with the acquisition of land permanently required. I twice read carefully Amendment No. 25 which purports to amend the fourth schedule in an elaborate way, as has been said, but I fail to find in it the kind of protection needed by owners and occupiers when having the land restored to them after the work has taken place; that is, land which is needed only temporarily.
Therefore, I hope that my noble friend Lord Goschen will have this very important matter considered between now and Report and that he will table an amendment to achieve that purpose. I say with all humility that I was not on the Select Committee which considered the Bill, but coming to it afresh that is the position as I see it. We need to extend and make clear the effect of Clause 6 and the fifth schedule.
Lord Ampthill: Has the noble Lord read the Select Committee's report?
Lord Renton: No, I have to confess that I have not. But when we come to the Committee (on Recommitment), we should look at the Bill and, as best I can, that is what I have done. I have listened carefully to the speeches which have been made so far on this matter.
Lord Northbourne: Perhaps I may ask the Minister for clarification at this stage as to what is actually meant by Clause 4(1)(b). Clause 4(1)(a) says that the Secretary of State may acquire compulsorily,
"so much of the land shown on the deposited plans within the limits of deviation for the scheduled works as may be required for or in connection with the works authorised by this Part of the Act".
Paragraph (b) refers to,
"so much of the land so shown within the limits of the land to be acquired or used as may be so required".
Like many Members of the Committee, I have been invited to the annual launch of the Plain English Campaign which is to take place shortly. I wonder whether the noble Viscount will allow me to use that as an entry.
Viscount Caldecote: I have no particular expertise in this matter but it seems to me that there is an important point of principle. It is a long established principle that compulsory purchase orders should be made only when they are absolutely essential in the national interest. As I understand it, the promoters have indicated that this amendment or something like it, if it is not in exactly the right form, would not interfere with the construction work on the project. Therefore, a CPO to take over all the land which is only temporarily required is clearly not needed.
Secondly, experience shows that when CPOs have been made and subsequently the land acquired is no longer required for the purpose for which the CPO was made, difficulties arise when the arrangements are made for transferring the land back to the original owner. Those difficulties include long and expensive legal

459
proceedings. Therefore, I hope that the Minister is prepared to reconsider what has been said in favour of this amendment which I support.
Viscount Goschen: It may be helpful if I comment at this stage. A number of Members of the Committee have asked me to reconsider matters but they have not yet heard what is my consideration in the first place. To a very great degree indeed I can reassure the Committee about the anxieties which have been expressed legitimately about compulsory purchase orders and the whole principle behind land acquisition contained within the Bill.
I do not believe that there is anything for Members of the Committee to be concerned about. This has been gone through in minute detail. I agree with the noble Lord on the Cross Benches who remarked on the complexity of legal drafting language. That probably applies to almost every Bill that I have ever read. They are written in precise terms using the most precise legal language available.
The fundamental point which I wish to stress in the course of my remarks is the absolute requirement for certainty. This group of amendments would alter fundamentally the basis of land entry arrangements in the Bill. It would deny the developer—London and Continental Railways—outright ownership of the land that it needs to build the railway and instead substitute a patchwork of licences which may at some later date be crystallised into freeholdings. It is that very question of not knowing at any one time exactly which land will be required temporarily and which land will be required permanently which causes the difficulty.
I fully share the view of the noble Lord, Lord Cornwallis, that the land which the developer will require only temporarily should not be purchased outright. The Bill already provides for temporary possession. However, no matter how well intentioned it may be, the amendment strikes at the very heart of the project. It would not be possible to raise the finance necessary to construct the railway without the Bill delivering to the developer the certainty of ownership of land.
The Bill already provides extensive safeguards for landowners. Land can only be acquired for authorised purposes—essentially the construction of the rail link. Under compulsory purchase arrangements vested in the Secretary of State, compensation will be paid to reflect the full, unblighted market value of the land.
I turn now to the point raised by the noble Lord, Lord Clinton-Davis. The Secretary of State would not set out to acquire more land than was absolutely needed. That would only cause disposal problems and unwarranted upheaval, with no essential advantage.
The promoter of the rail link must have some flexibility about precisely how much land will be required and over what period. Design details are bound to change on a project of this scale. I suggest that it will be wholly inappropriate for the promoter to be constrained from providing the most efficient and, indeed, environmentally acceptable design. Where land is found not to be permanently required post hoc it must
460
generally be offered back to the original owner in the first instance under the standard Crichel Down Rules. I believe that those rules are well understood. They have been around for some considerable time and they are the general principles which are used in such circumstances.
We are discussing a project of some considerable scale. Of course, it is a specific hybrid Bill with regard to its enactment. Nonetheless, it is similar to many other projects in that it is not possible at any one stage to ascertain what land will be permanently required and what land will be required temporarily. However, the provisions laid down in the Bill and the undertaking that has been given—that is, the legal binding undertaking—take the promoters as far as is practicable. I do not believe that a practicable alternative to what has been put forward by the promoters in terms of their undertaking is available or has been suggested.
4.45 p.m.
Lord Stanley of Alderley: I trust that my noble friend the Minister will allow me to intervene. I feel that I must do so because his remarks have confused me. Under our amendment the promoter can take whatever land he likes and do whatever he likes with it. Moreover, if, ultimately, he wants to acquire the land permanently and can show that he wants it permanently then, yes, he can purchase it. That is why I do not understand what my noble friend is saying. He said that we would be constraining the promoter, but we would not be constraining him one little bit.
Viscount Goschen: No, that is not true. The effect of my noble friend's amendment would be to do exactly the opposite of what he suggests. Indeed, it would provide a very bureaucratic, long-winded and uncertain process. As I said before, there must be certainty. There is an overwhelming desire in this country for the project to be built and there has been overwhelming support for the Bill. Taking away that certainty would strike at the very heart of the Bill in terms of allowing the promoters to raise money to build this link.
Lord Stanley of Alderley: I must apologise, once again, for interrupting my noble friend. As I understand it, I am right; but, as he understands it, he is right. If the amendment is incorrectly drafted as suggested by the noble Lord, Lord Clinton-Davis, we will of course redraft it. However, I must point out that it does not say what my noble friend outlined. I suggest that he re-reads the amendment.
Viscount Goschen: My noble friend may be interested to know that I have read the amendment and that I believe that the officials who advise me and who have been living and working with the Bill from the outset have read and understood it. Considerable pains were taken to ensure that the undertaking which was given to the Select Committee went as far as possible. That was examined in some detail by members of the Select Committee of your Lordships' House and they did not suggest in the report that they were not content with that undertaking.

461
I return now to my fundamental overriding concern; namely, that the development cannot rely on a process of agreement with landowners. I stress the word "rely" in absolute terms. This national flagship project cannot and must not be hamstrung by requiring proof, plot by plot and yard by yard, that the Secretary of State is using his powers of acquisition properly. That is essentially what my noble friend Lord Stanley is suggesting.
My noble friend has some concerns that the undertaking that was given by the promoters was contradictory in the first half as against the second half. While I much enjoyed my noble friend's remarks, I really do not believe that that is true. I draw the attention of Members of the Committee to paragraph 9 on page 25 of the special report. That paragraph sets out the general principle that the "nominated undertaker" will try to negotiate a lease or licence of land which turns out to be required temporarily rather than asking the Secretary of State to use his compulsory purchase powers.
However, the second part of paragraph 9 sets out the qualification to that general principle. There may be "other interests" in the land—for example, someone may have a sub-lease of the land or a lease of just part of it and the person holding that interest may refuse to co-operate with the nominated undertaker and the farmer. In such cases, the compulsory purchase order powers have to be available as a last resort. I must stress the fact that compulsory purchase powers are not taken lightly. They are the last resort here. The undertaking very clearly stresses the need to come forward and to negotiate with the landowner. However, in the ultimate eventuality, it is necessary to have the CPO powers in reserve.
I understand the strong feelings that have been expressed on the issue but I must stress, again, the need for the promoters to have certainty when taking forward the project. The noble Lord, Lord Clinton-Davis, asked why exactly what would happen on every occasion could not be written into the Bill. It could not be for the very reason that I gave; namely, that it is simply not possible to rely absolutely on those agreements. That is why the undertaking in paragraph 9 of the special report takes that form.
I hark back to the words of the noble Lord, Lord Ampthill, who chaired the Select Committee which considered the matter in such detail. I paraphrase the noble Lord's words and, should he disagree with me, I am sure that he will say so. Essentially the committee felt that the promoters had gone as far as they could have gone. I hope that Members of the Committee understand that sentiment.
Lord Renton: I share the doubts expressed by my noble friend the Minister regarding Amendment No. 25. However, bearing in mind that Schedule 5 deals with possession and use of land and occupation and use for construction of works, can my noble friend say to what extent he and those advising him consider that that fifth schedule goes towards fulfilling the principle which the noble Lord, Lord Cornwallis, stated? If it does not do so, will my noble friend consider between now and the
462
Report stage the application of that schedule because it seems to be a possible solution to what is obviously still a problem which causes much anxiety?
Viscount Goschen: I certainly accept that the matter causes anxiety to Members of the Committee. It also causes anxiety to various organisations which represent farmers and landowners. They have participated in long and detailed discussions and correspondence with my honourable friends in another place who are responsible for the policy behind this Bill. I believe that they fully understand the situation and the need for certainty. This matter has, of course, been fully discussed in another place. However, more importantly, it was discussed here in the fullest detail by the Select Committee of this Chamber. The Select Committee felt unable to recommend that this matter should be taken any further. I do not believe that there is the inconsistency to which my noble friend referred. Of course I shall study what he said extremely carefully and reconsider the matter as regards the specific point he made. However, my understanding is that the problem to which he refers does not arise.
Of course I understand that farmers would like more and more power and certainty as regards their side of the case. Of course I understand the natural desire for that. However, what we are talking about is the possibility of this major national flagship project being severely hindered and delayed. Ultimately this sort of amendment would remove certainty and would strike at the heart of the Bill.
Lord Clinton-Davis: With respect, what the Minister is saying is that we are right. In my view what is sought by the noble Lord, Lord Renton, is the right approach to take in this matter. I accept that the amendment could be wrong; there is that possibility. I am sure that we shall not divide the Committee on this matter today. It is not a matter on which we should divide on Report. However, we should be looking for reconciliation. The principle enunciated by Members of the Committee proposing the amendment is a clear one. In my view it is wholly in accord with paragraph 43 of the report. In that paragraph the committee stated in effect that it understood the case, that it was a good case, and that the promoters accepted the principle. However, that does nothing to enable people who have suffered some wrong—or some potential wrong, because it is not easy to identify what will happen—to seek redress. They should have redress. That is all that people are saying.
No one wishes to hold up the Bill. No one has suggested that. The Minister keeps asserting that that will be the effect of the measure, but he does not explain why that should be so. We should not prolong this discussion tonight to any extent. However, with respect, I believe the Minister should say, "Yes, I have listened to the discussion. I shall try to meet the points as best I can. At Report stage I shall indicate whether we can reconcile these ideas, having genuinely tried to do so." I do not believe the ideas are irreconcilable. That is all I am asking the Minister to do. I am not asking him to give an undertaking that he will return with amendments. What we are asking is that he should do

463
what the noble Lord, Lord Renton, indicated to the Committee; namely, to ponder the matter and to try to avoid a problem which could arise—wholly unnecessarily, in my view—at Report stage.
Viscount Goschen: I wish to emphasise again that this is not a new issue. It has been considered over and over again by the relevant parties in correspondence, in meetings, on the Floor of the House in another place and in the Select Committee in another place, on the Floor of this Chamber and in the Select Committee here, and in ongoing correspondence and meetings. I do not believe that between now and Report stage the fundamental points will change. What we are talking about is the balance of certainty here. It is not possible to please all of the people all of the time in terms of the certainty that every individual would like to have with regard to his or her land. We do not take these powers lightly. We think that the correct balance has been achieved. I read carefully the Select Committee's report. It examined this issue in the minutest possible detail and heard evidence from a number of petitioners. At this late stage in the Bill I do not think that we can move any closer on the issue.
Lord Renton: If my noble friend will allow me to say so, the Select Committee's report will not be part of the law; we have to look to the Bill.
Viscount Goschen: What comes out of the Select Committee's report are the undertakings which were given to satisfy the Select Committee. The Select Committee has indicated that it is satisfied with the undertakings that have been given. Those undertakings will be legally contractually binding.
Lord Clinton-Davis: With respect, what the Select Committee said is that the promoters have accepted a principle. The Select Committee has not said that the promoters have entered into any binding undertakings. That is the point.
Lord Ampthill: There are undertakings.
Lord Clinton-Davis: It is a complicated issue. The noble Lord, Lord Ampthill, says from a perfectly respectable sedentary position that there are undertakings. I believe that these undertakings are not sufficiently precise to be enforceable. However, I may be wrong. No doubt the noble Lord, Lord Ampthill, or the Minister can clarify the position. I believe the Minister may well try to do that in a moment or two, hence my standing continuously at this Dispatch Box to enable him to do so.
Lord Ampthill: Perhaps I may be allowed to fill the gap while the pigeon travels in the direction it is intended to go. I believe it has been established that the Select Committee was anxious to help in this situation. As has been said by the Minister, we went as far as we were able to go. I fully accept what the noble Lord, Lord Renton, said. Of course the most desirable solution is to have the measure written into the Bill. There are 600 or
464
so undertakings. The Bill runs to some 262 pages already. At the earliest possible stage of our hearings we were beseeched by counsel for the promoters not to enlarge that list more than we absolutely had to. However, there were certain matters which we felt we must address, and this was one of them. As the noble Lord has not had the benefit of reading this excellent report—which I commend to him—I shall quote from it. I wish to read six lines which the noble Lord is unaware of. The report states,
"With particular reference to the petition of D G Holt and Partners, we require that those farmers whose land is temporarily required for construction of the CTRL and who would like to farm land acquired for such purposes after the completion of works he allowed to retain the freehold of that land during construction and to transfer permanently only that land either necessary for the operation of the completed CTRL or use of which cannot be reasonably ascertained until the completion of the CTRL".
In other words, ownership remains with the farmer. Only the bit of land that is really absolutely necessarily required for the running of the railway line is what has to be handed over at the end and not the beginning of the period concerned.
Lord Renton: That is a splendid undertaking. We would all be grateful to the noble Lord if he would tell us where that is written into the Bill.
Lord Ampthill: I have already said that it is not written into the Bill but it is one of the 600 or so undertakings. If the noble Lord is interested, it is undertaking No. 0224 on the register of undertakings.
Lord Renton: But we are concerned with only one undertaking here, not with 600.
Lord Swinfen: What effect in law will those undertakings have because it is the Bill that would become law and not the undertaking to the Select Committee?
Viscount Goschen: This is an area where we can clarify the situation. With the greatest respect it would seem that a couple of Members of the Committee who have spoken are not familiar with the procedures that have been used on this sort of occasion. It has been understood that it is not possible, nor practicable, to put every single minor or major detailed technical undertaking into legislation. Therefore the procedure is that the undertakers give assurances which are registered in a registry of undertakings. Those are contractually binding. If the promoters do not comply with them, they can be enforced by the Secretary of State through the development agreement in the usual way. However, there is an additional safeguard. Compulsory purchase powers are vested in the Secretary of State. In exercising those powers, he will wish to be satisfied that the LCR has done everything reasonable to negotiate licences where they are feasible.
Essentially, the argument comes down to this. A number of Members of the Committee want to put the emphasis on the ability of the landowner to go through this matter plot by plot to determine whether the Secretary of State's compulsory purchase powers are

465
viable. To require the Secretary of State to prove on such a basis that land within the limits set out in the Bill is needed in the context of a Bill which has been the subject of extensive parliamentary scrutiny and which sets out in detail the extent of the land likely to be required, would be a serious procedure.
The noble Lord, Lord Stanley, did not agree with my assertion of the consequence: that until this issue was determined the Secretary of State would have powers only as a licensee to enter such land and carry out preliminary works. This would seem to be a recipe for uncertainty, confusion and potential conflict. The noble Lord, Lord Clinton-Davis, wanted absolute certainty. The whole point of the discussion over the past 50 minutes or so is that it is not possible to achieve that certainty. That is why we have taken a very strong undertaking, an assurance, that,
"where land is required only temporarily during the construction of the CTRL, the nominated undertaker will be willing to discuss the use of that land by agreement".
5 p.m.
Lord Renton: The word "willing" has practically no effect in law. The measure does not say that he will be required to do so.
Viscount Goschen: I do not believe that there is any other way for me to put it. I have explained over and again that it is simply not possible to "require". If you require, you are doing what has been put forward in the amendment. You remove totally the certainty that is available for the promoters of the project to take the CTRL forward. You remove their ability to raise finance to build this link because of the huge uncertainty that would therefore be introduced. It is for that reason, and not from any great desire for the Secretary of State for Transport to acquire land, that it has been realised after great consideration that this is the best way forward.
Lord Clinton-Davis: The Minister seems to be arguing at cross purposes with himself. On the one hand he says that you cannot have precision but you can have undertakings which are enforceable. However, to be enforceable an undertaking must be precise. There is no other way around it. Therefore there is a complete contradiction in what the Minister says.
Viscount Goschen: The noble Lord, I hope not deliberately, spreads confusion and misunderstands my words. I am not disputing the difference between an undertaking and legislation. We have been through that over and again. What I am saying is that it is not possible to state within the undertaking that that agreement must be reached. If that precision is put in, it will produce tremendous uncertainty in terms of delays and the ability for the project to be built.
Lord Clinton-Davis: I do not seek to create any more confusion than is absolutely necessary. The Minister referred to the undertaker as willing to do certain things. The noble Lord, Lord Renton—a distinguished leading counsel, he is a former Minister of
466
the Crown who dealt with legal matters persistently—shares my apprehension. The essence of an undertaking has to be specific; otherwise there is no value in the undertaking. That is the point that I made when I first rose this afternoon.
I urge the Minister to do this. We could go on battling over the issue to no real conclusion; no one wishes to continue indefinitely. With the greatest respect in the world, the Minister said that he is unlikely to be able to find a solution. So be it. Let him try. Let him spend the next seven days, or perhaps on Third Reading, seeking to find some way of reconciliation. We trust the Minister because he is an able and genuine guy. I am sure that the Minister will recognise the strength of feeling in the Chamber on all sides. I should have thought that he would do no harm to his position if he were to say at this stage, "I am not optimistic about the situation but I will do my best and we shall see how far we can go". I repeat that I do not believe that these are irreconcilable positions.
Viscount Mountgarret: I have listened with the greatest interest to what has been said on all sides of the Chamber. Something must be wrong somewhere when every speaker seems to have agreed with everyone else, including Members of the Committee on the opposite Benches, and only the Minister is out on his own. It is a customary habit, unfortunately, that once the Government have the bit between their teeth over the way that they wish to see the legislation drafted they will not be budged by amendments put down (if I may say so with the greatest respect to the movers) by mere Back-Benchers.
Speaking for myself and my noble friends, I am sure that we wish to help the Government in every way possible on many matters. To that extent it would surely be desirable for the Government to realise the strength of feeling not only on Benches opposite but also on these Benches about the desirability of establishing the basic principle that the noble Lord, Lord Cornwallis, seeks in the amendment.
If the Minister is unable to accept a point of principle that requires to be studied and considered openly and dispassionately, the movers of the amendment might find it necessary to force the Government to do so by dividing on the issue, writing the amendment—whether correctly or incorrectly drafted I know not—into the Bill and letting the Minister put his own amendments down. I believe that it is time for the Minister to take on board what is said and not to be quite so dogmatic.
Viscount Goschen: I take those strictures seriously. When one is criticised from one's own side of the House one must take it extremely seriously. I have no desire whatsoever to attempt to ride roughshod over the Chamber. However, I wish to make one point. This hybrid Bill—it is now into its second parliamentary Session of consideration—is a very complex piece of legislation. It has been the subject of detailed

467
parliamentary consideration through the hybrid Bill procedure, using the Select Committee route. For that reason, it is rather different from a public Bill, or from a private Peer's Bill. The work that has gone on through the Select Committee in the intervening months must be taken into account. I do not think that an hour's discussion on the Floor of the House is sufficient to consider in detail the representations and petitions that were made to the Select Committee. A study of the committee's proceedings and report and the undertakings that were given to it is essential to a full understanding of what is suggested in this Bill.
Having said that, I shall of course give careful consideration to what has been said. Between now and Report stage I shall read in detail the words that have been put forward by a number of noble Lords from all sides of the House. I recognise the expertise in land and planning matters that is represented within your Lordships' House. Having said that, I reiterate that this matter has been considered at great length over a long period between the protagonists, but we are some way apart. It is the contention of the Government and the promoters that accepting an amendment of this nature, which would allow the Secretary of State's powers to be examined plot by plot, piece by piece, would create such enormous uncertainty about the construction of what is a flagship project for this country that it would have very serious consequences indeed for the project. I am sure that that is not what the Chamber wants. I hope that between now and Report stage we can have further discussions. I should certainly be more than willing to meet any noble Lord to discuss the specific issues to see whether my ability to explain them could be enhanced.
Lord Renton: Perhaps I may venture to correct one misapprehension in the mind of my noble friend Lord Goschen by reminding him that public Bills, private Bills and hybrid Bills all have the same effect in law, however much detailed consideration has been given to them.
Lord Cornwallis: I am feeling exhausted and I should think the Minister probably is, too. I listened carefully to what he said. I believe there is a fatal misunderstanding about what the amendment sets out to achieve. We hear that its effect will be to delay the Bill and create bureaucracy. I believe it would do exactly the opposite. The Minister looks forward to the future, while those who move this amendment do so in the light of experience. Experience of the past in these matters does not necessarily lead one to feel trustful.
We have had an exhaustive discussion. I am most grateful to Members of the Committee who have supported the amendment and spoken at such length on it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Clause 5 [Acquisition outside limits shown on deposited plans]:
[Amendment No. 7 not moved.]
5.15 p.m.
Clause 5 agreed to.
Clauses 6 to 10 agreed to.
Clause 11 [Fees for planning applications]:
Viscount Goschen Viscount Goschen moved Amendment No. 8:
Page 6, line 32, leave out subsections (1) and (2) and insert—
(".—(1) The appropriate Ministers may by regulations make provision about fees for relevant planning applications.
(2) Regulations under subsection (1) above may, in particular—

(a) make provision for the payment to the authority to which a relevant planning application is made of a fee of a prescribed amount,

(b) make provision for the remission or refunding of a prescribed fee (in whole or part) in prescribed circumstances,

(c) make provision for a prescribed fee to be treated as paid in prescribed circumstances,

(d) make provision about the time 16r payment of a prescribed fee,

(e) make provision about the consequences of non-payment of a prescribed fee, including provision for the termination of the application concerned or any appeal against its refusal, and

(f) make provision for the resolution of disputes.

(2A) Regulations under subsection (1) above may—

(a) make such supplementary, incidental or consequential provision as the appropriate Ministers think fit, and

(b) make different provision for different cases.").

The noble Viscount said: I trust that this amendment will cause a little less heat than the preceding ones. With the leave of the Committee, I should like to speak at the same time to Amendments Nos. 9 and 32. This group of amendments is designed to increase the flexibility of the fee regulations contemplated by Clause 11 and to allow the Secretaries of State to make regulations to extend the time that the local planning authority has to determine a request for approval if necessary in the unlikely event that the cheque settling the fee has been dishonoured. I beg to move.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 9:
Page 6, line 42, leave out ("conferred by") and insert ("to make regulations under").
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Heritage]:
On Question, Whether Clause 12 shall stand part of the Bill?
Lord Cavendish of Furness: Those Members who have taken an interest in the heritage aspects of this Bill may recall that I spoke at Second Reading to express my concerns about the inadequate provisions which had been made to safeguard the future of St. Pancras Chambers, the remarkable listed gasholders and the unique steam locomotive waterpoint on the railway lands behind the station. At that time I declared an interest, being a Commissioner of English Heritage. I do so again this afternoon.

469
I was subsequently delighted to hear that the promoters, London and Continental Railways Ltd. (LCR), had addressed the concerns that I spoke of. A competition is to be held to select a developer for the Chambers and agreement has been reached between LCR and English Heritage on a plan to dismantle the listed gasholders and waterpoint for re-use elsewhere in the area. I am sure that noble Lords will share my pleasure at this news and wish to congratulate LCR on its helpful and responsible attitude to these important heritage issues.
My purpose in speaking today is to draw attention to a final but significant issue which has emerged in recent months and which would have very serious implications for the magnificent train shed at St. Pancras, a Grade I listed building, which is rightly regarded as a Victorian masterpiece of world significance.
Under the provisions of the Bill, conventional conservation legislation will be disapplied and, along with it, the normal safeguards for listed buildings. In its place are two key documents. One is the Planning and Heritage Minimum Requirements; the other is the Heritage Agreement for Camden, otherwise known as the draft Heritage Deed.
The minimum requirements is a useful but very general statement of broad intent which, like a planning brief, provides a loose framework of general constraints on change in the absence of any detailed scheme. It is helpful, as far as it goes, as a statement of broad aspirations.
The procedure for the consideration of the detailed proposals for St. Pancras is set out in the Heritage Agreement for Camden. It is this which I contend is seriously flawed and which raises a fundamental question of principle, not entirely unlike the last raft of agreement which attracted so much discussion.
In other recent railway Bills where normal listed building consent procedures have been disapplied, either full details of the impact of the scheme have been available for Parliament to consider or an adequate alternative mechanism has been in place, allowing for full agreement to be reached later with interested parties, such as English Heritage. That is not the case here. What is being proposed is wholly unprecedented, which is why it is a matter of such grave concern.
I read the sections of the Select Committee proceedings which applied. Here I should like to echo earlier remarks. Having been on such a committee myself, I am full of admiration for the work it has done and for its thoroughness. Perhaps I may quote two sentences from the Select Committee's report. The first is:
"throughout our consideration of the Bill we have been impressed with the promoters' handling of environmental matters and we have no reason to believe that they will act as Philistines when they come to St Pancras".
I take no issue with that; all the evidence is that the promoters are not Philistines. However, it has to be said that that is an opinion. It is based on things that the promoters have said and it does not guarantee anything for St. Pancras.
470
The second sentence that I quote is:
"The Committee has no doubt that the draft Heritage Deed meets the Interests of the petitioners".
English Heritage was a petitioner and I do not believe that statement to be valid.
Finally, I might be forgiven for feeling that in the Select Committee report there is a hint that heritage issues did not take a very prominent part in the thinking. I discovered only three or four paragraphs. But maybe that is unfair and I am glad that the noble Lord, Lord Ampthill, who could easily correct me, is in the Chamber.
Lord Ampthill: If I may immediately do so, I do so.
Lord Cavendish of Furness: I reiterate that I do not agree that the interests of the petitioners have been met. So we agree to disagree.
Under paragraph 4(1) of the Heritage Agreement, before commencing any works for the alteration or extension of any listed building, or for the demolition or partial demolition of any listed building, the nominated undertaker (LCR) shall seek to reach agreement with the local authority and English Heritage on the nature of the proposed works, the construction methods and the materials to be used. The paragraph also provides for LCR to seek to reach agreement in the same way over any mitigation measures to be taken and, except in the case of the demolition of the building, the preservation of particular features of the building and any restoration or reconstruction works where reasonably practicable. That is wholly uncontentious.
However, having put in place a reasonable system of checks and balances, the paragraph is qualified by paragraph 4(5), which states that the nominated undertaker shall not be required to seek to reach agreement with the local authority nor with English Heritage under paragraph 4(1), but shall only consult them on the alignment, position and overall dimensions of any works, other than essentially shops, and on the nature of the proposed works and construction methods and materials used where the works comprise a trackbed, tunnel, earthworks or anything in the nature of plant, machinery or equipment.
That creates a very large loophole, exempting virtually all the work from any form of effective control. LCR interprets the exemption in the broadest possible sense and has indicated that it covers not just permanent way or railway engineering works, which would be understandable, but ticketing and booking office facilities, platform screens, signs, seats, gantries, plant, signals etc.—indeed, everything other than shops. In short, it would give LCR carte blanche to do largely whatever it chooses within the splendid train shed.
Any noble Lord who is familiar with St. Pancras will understand from that list of things over which there are no controls, that that Grade I listed building could be radically altered in character. While I remain confident that LCR will do all that it can to adopt a responsible and sensitive approach in reconciling operational needs with heritage concerns, it simply cannot be right for the future of the train shed to be left simply to the good will

471
of LCR as the developer. As I said, it is quite without precedent and, if this issue is not addressed, it will leave St. Pancras, a Grade I building of outstanding importance—and here is the madness—far less protected than any other listed railway building in the country, including many which are far less distinguished. This is a matter of legitimate public concern. St. Pancras, once described as the "undisputed Queen Empress of railway stations", is simply too important to be allowed to be treated in that way.
LCR has already demonstrated its sensitivity to heritage concerns. In the Second Reading debate my noble friend Lord Goschen gave an assurance that the Government had no intention of riding roughshod over legitimate heritage interests. I ask him to assure the House that he will look again at this matter and try to find a solution to protect this most legitimate of heritage interests.
Lord Howie of Troon: The noble Lord, Lord Cavendish, said everything which needs to be said on this matter. I shall not repeat it. I merely wish to support him in general terms and nit-pick just a little. Like the noble Lord, Lord Renton, who spoke earlier, I am concerned with the Bill as it is written rather than with the excellent report which our fellow Members of the House produced.
Let me say right away that I desire this Bill to go through and this railway to be built. I believe that it should have been built long ago. As the House will know, I happen to think that it is on the wrong route. But now I no longer care—any route will do so far as I am concerned; let us get it built. That, however, is not the point.
The noble Viscount, Lord Goschen, spoke about precise legal language. In terms of a Bill, precise legal language is probably what we want rather than imprecise legal language, which lawyers may like. The clause under discussion refers to Schedule 7, which turns up on page 165 of the Bill. I notice that on page 168 the schedule is extremely precise. It tells us that in the Borough of Gravesham the parish boundary stone at Brewers Road is to be demolished. One can hardly be more precise than that. But I start to worry about the precision of the Bill. At the very beginning of the schedule, on page 165, column (2) lists "Buildings authorised to be demolished". In the London Borough of Camden the first one is "St Pancras Station and Chambers". It does not quite mean that, I know, because in column (3) it notes the limits of the authorised demolition. At this point I worry. The noble Lord, Lord Cavendish, said that there had been discussions, undertakings and no doubt agreements about what should or should not be done. But in column (3) on page 165 of Schedule 7 the Bill states that:
"Demolition of structures at ground and upper levels"—
and so on; and it goes on to say:
"and alterations and partial demolition elsewhere".
I want to ask: where is "elsewhere"? "Elsewhere" must be somewhere, presumably within the London Borough of Camden. But I should like to know just where "elsewhere" is so far as this Bill refers to it.
472
I know perfectly well that "elsewhere" in this respect could be identified on a drawing somewhere, in a schedule or in some written agreement which is signed and sealed, and so on. Is "elsewhere" so defined? Do we know where "elsewhere" is? Do we know where the demolitionists are forbidden to go? That is my point. I think that I am right in saying that the remarks of the noble Lord, Lord Cavendish, suggested that it was all rather vague. It certainly is rather vague to me. I should like to hear from the Minister. I do not want him to define "elsewhere". That would be going rather far and not even his department could rise to that. But can he tell me, if not right away then before the Bill reaches its Third Reading, just what are the limits of demolition in St. Pancras station? At the same time, perhaps he can tell me the limits of demolition of the Great Northern Hotel—I should rather like it to be demolished totally, but I shall leave that point aside—and the gymnasium and various other places to which the word "elsewhere" applies.
I just want to know, so that the hand of the demolitionist might be stayed a little and he will demolish only that which is necessary to be demolished, especially in St. Pancras station.
5.30 p.m.
Lord Crathorne: My noble friend drew attention to the risks being taken at St. Pancras itself. I should like to focus on the dangerous precedent that is involved. As my noble friend said, the Bill differs from previous railway Bills in disapplying established controls in the absence of any actual plans for the works at St. Pancras. Without plans we cannot judge the precise impact on historic buildings. Such a situation was not envisaged when safeguards for historic buildings affected by proposals in works private Bills were last discussed in your Lordships' House.
In March 1991, during the Third Reading of the London Underground Bill, the then Minister—my noble friend Lord Brabazon of Tara—assured the House that the Government were,
"concerned to safeguard English Heritage's position as expert advisers on conservation issues. That means in practice establishing a mechanism for English Heritage to contribute to the consideration of works private Bills by parliamentary committees so that they are in a position to make informed decisions about the listed building aspects of the proposed development".—[Official Report, 21/3/96; col. 785.]
In a letter to the chairman of London Underground the Secretary of State for Transport wrote that,
"even for schemes which are exceptional, the Parliamentary Committee considering the Bill will need to be as informed about the issues on which they have to make judgements as Ministers are when they decide on listed building consent applications relating to general planning proposals".
All that was before the private finance initiative and I accept that it is not now possible for schemes requiring parliamentary approval to be accompanied by the level of detail expected in 1991. But surely we now need to update the 1991 understanding, to allow Parliament to approve major projects, before detailed plans are produced while, at the same time, providing adequate

473
safeguards against avoidable and unnecessary damage to historic buildings which can only be judged when the designs are produced.
An entirely acceptable way forward was set out in the 1992 Transport and Works Act provisions for "schemes of national significance" which are subject to parliamentary approval. Those provisions allow for parliamentary approval of the principle of the scheme at an early stage and then for English Heritage to comment on detailed plans when they are covered in the public inquiry. Those provisions also give to the Government the power to make decisions on matters. So, for example, where proposals by English Heritage could be accepted without affecting the viability of the project, the Government can insist on the implementation of those proposals.
The model given by the Transport and Works Act has not been followed. Instead, as my noble friend said, we have two agreements; that is, the heritage agreement and the planning and heritage minimum requirements agreement. The latter, as part of a contract between the department and LCR, can only be enforced by civil action for breach of contract in the High Court. The department, by excluding so many vital areas of work from the need to seek to reach agreement and thus from appeal and determination by the Government, denies English Heritage its right to consider the impact of the works in a meaningful way and also denies the Government their power to protect buildings from unacceptable damage.
Never before have the Government given up their firm powers to make binding determinations on proposals for works affecting the character of historic buildings, relying instead on the uncertainties of High Court litigation. That sets a dangerous precedent for future parliamentary Bills. In 1988 the Joint Committee on Private Bill Procedure was concerned that works Bills should not be seen as,
"a soft option for those anxious to avoid the rigour—and the delays—of the planning system".
The Transport and Works Act closed that loophole with the introduction of sound procedures. The current proposal reopens that loophole, providing just such a soft option again. That will open up an easy path for promoters of schemes and for departments to gain approval for, and to carry out, projects which affect listed buildings without adequate controls. It is a precedent that should not be set. I therefore urge the Government to think again and look forward to what my noble friend on the Front Bench has to say on the matter.
Lord Kennet: I have little to add to what has been said by previous speakers, but that little I want to put with as much clarity as I can. The proposal in the Bill to exempt a large number of listed buildings from the protection accorded by statute law is, it has been asserted, unprecedented and I believe that is right. The proposal to compensate for that loss of protection by means of the "deed"—a document annexed by the committee in its report—is clearly not only insufficient, but also strangely inappropriate.
474
If it is correct in this case to suspend statute law and envisage the conclusion of contracts between the Government and those parties who may otherwise have been in breach of statute law in relation to the same matter, can one think of any reason for denying the same privilege for parties hitherto bound by statute law in any other case the government of the day may choose to think appropriate? We are not talking simply of the suspension of part of planning law; we are talking about suspensions of statute law in general for named parties for a certain purpose for a certain period of time. It seems to me that the justification for that must be an overpoweringly strong one. The mind turns to national interest, national emergency, and that sort of thing.
It is certainly desirable that the development should go ahead as rapidly as possible with as little bureaucracy as possible. At this point it may be right to make a distinction between the subject of the last amendment and the subject of this amendment. The last amendment was about the bureaucracy surrounding a compulsory purchase. Compulsory purchase is allowed by law if the law says so specifically; if not, it is not, in each case. This debate concerns the procedure to be followed in the suspension of statute law altogether, as it exists regularly for all citizens whenever they turn their minds to listed buildings.
The proposal to suspend listed building law is probably more deserving of parliamentary scrutiny and doubt even than the compulsory purchase proposal. Let us imagine that the developer—the railway company—goes through all the motions required by the deed. First, he consults not one, but two government departments. He has to consult the Department of the Environment, which is something one would expect in the case of a listed building; he will also have to consult the Department of Transport.
That is very nice, isn't it? They are guaranteed deadlock at governmental level to begin with, and that will take time to sort out between the departments. We can all imagine the course the discussions would take and what delay may be imposed. Let us suppose, at the end of the day, the Department of the Environment wins and is in a position to say to the developer, "No, you cannot do that"—whatever it is. The developer then signs a contract with the Department of the Environment or perhaps two contracts, another with the Department of Transport, in which he undertakes not to do something. Let us suppose that there is then a change of heart. I do not question the bona fides of the railway company at present, but let us suppose it falls into financial difficulty, comes under different management, takes a different direction, or is bought out; and then breaks the contract. The Government then have to examine a whole unprecedented area of law.
What does one do with a developer who breaks a contract into which he has entered about an aspect of planning law? Let us assume that the Government conclude that it is not only possible but advisable to bring suit against the developer in the High Court. I do not know what would happen next. Will any of the Law Lords be able to help us on this point? Would the Government have to prove that the breach of contract had cost them money? What form would the suit take?

475
What sanctions could the court impose upon the contract-breaking developer? Would it be able to say, "You have broken the contract: that is very wrong and now you must pay a £1 million fine to the Government and then you can go ahead with the demolition"? Or would it say, "No, because you have broken the contract, you are bound to unbreak it and refrain from demolishing"? Is that conceivable? I imagine that the Government would have to take new proceedings in the civil courts to obtain an injunction against the developer to prevent him doing what he intends to do—that is quite separate from the intrinsic damage of which they are complaining in the breach of contract. That would take just as long as complying with the law in the first place.
What I urge the noble Viscount the Minister to do at this stage is to consider this aspect of the matter. The precedent is grave indeed. Any developer at any time would be able to say, "Look at the Channel Tunnel Rail Link Bill. They evaded listed building law". The Minister is shaking his head. But one cannot prohibit anyone from using a precedent in pleading with the Government. That is within the law. Having considered that, they should then face up to the question, "Is it really certain that this procedure will save time?" Whether or not it will save time, I strongly urge the Government to think again about the procedure as such.
If they are uncertain that it will save time, perhaps the government departments concerned could turn their minds quickly—it would not take long—to some abbreviated form of obtaining listed building consent. It is reasonable to suppose that in doing this they would have the eager collaboration of the authorities involved; the local planning authorities, the listed building branch of the Department of the Environment and the Secretaries of State concerned. An accelerated procedure is not an evil of the same magnitude as the suspension of statute law. I do not expect the Government to say now that they will do that but I ask them to think about this and at the next stage to cast a friendly eye over any substantial amendment which may be put down by noble Lords.
5.45 p.m.
Lord Broadbridge: I wish to support this amendment with all the power and passion that my limited oratorical powers will allow. It is close to my heart and mind, first, as a national heritage issue, and, secondly, as a local issue in that I live about 1,000 yards from the site we are discussing, part of which lies in Islington. I am President of the Islington Society, one of whose objectives is the preservation of buildings and environments of historic and/or architectural merit. Thirdly, we all might be additionally interested in that the site is part of Somers Town, named after an antecedent of a Member of our House, Lord Somers.
As we have heard, an area is proposed in Clause 12 for de-listing followed by destruction. It is difficult to know where to begin in cataloguing the merits of what is there at present. I shall begin by repeating by way of encapsulation that the site is the last 19th century working class district left in London, with cobbled streets and untouched by development. It is the most
476
used film location in London and I need hardly remind your Lordships that British period films are shown worldwide and bring in a great deal of foreign exchange. The site was also used last year in about 80 television programmes, and the site appears in at least two or three fashion magazines each week, with similar benefits.
More specifically, the site, with St. Pancras and King's Cross, contains probably the finest collection of 19th century railway buildings in the world, including the Milk Dock, from which fresh milk was distributed all over London daily, and the old railway police station. There is Stanley Buildings, built in around 1848 to a design inspired by Prince Albert for ideal workers' homes. There is Culross Buildings, a completely innovative 1880s design for flats to give residential working class accommodation. There is the last German Gymnasium, as has already been mentioned, one of a large and international Victorian chain of great social importance, and incidentally said, in the environmental statement that accompanied the development lands agreement memorandum that went with London and Continental Railways contract, to be an empty building, whereas I understand that it had 13,000 visitors last year!
Finally, in this list I call your Lordships' attention to the gasholders, a group of five, plus two more. We are most of us familiar with the gasholders of our towns and cities, most of which have now gone. In the main they were aesthetically crude constructions, corroded in their slime green or battleship grey paint. But the St. Pancras gasholders are miracles of intricate Victorian ironwork, first built in the mid-1830s and enlarged in the 1860s. Freshly painted, they are marvellous combinations of the magnificent and the sublime, a rare combination. They uplift the spirit and are a marvellous foil to the spires and pinnacles of the neighbouring Midland Hotel which fronts St. Pancras station. And they have been, and are now still, in full use. Technically, decommissioning a gasholder is a highly risky business, and the ground for a considerable depth around and beneath them is highly toxic.
So, we have here a unique and much used micro environment proposed, maybe, for wholesale delisting and destruction, although, as an earlier speaker mentioned, it is referred to in the schedule simply as an area. The National Heritage Committee, in its third report ordered by the Commons to be printed on 3rd March 1994 and called Our Heritage: Preserving it and Prospering from it said, in paragraph 18, that our transport and military heritage were neglected areas of our national heritage, and recommended that the administrative structure of the Department of National Heritage should reflect this. In the question and answer section the Government's reply, in as much as I have read it several times, seems to have been a woolly fudge. In 1993, 69 per cent. of overseas visitors gave our heritage as their main reason for visiting London. The percentage for American visitors was higher. Closely connected with this is the statistic that 80 per cent. of British films are made in London, our period films are widely admired and distributed and some 20,000 technicians are employed in the field. As I have already mentioned, there are television and magazines to be

477
taken into account. It is therefore arguable—in fact it is indeed argued—that in the, as it were, profit and loss account, the value of this site is greatly understated.
I fear I have a suspicious mind and, upon looking into page 8 of the London and Continental Railways contract development lands agreement, note that after paying off certain costs, the anticipated greatly enhanced value of the site after the listing restrictions are lifted are to be shared by the Treasury and the developers, LCR. As Gilbert and Sullivan put it, "Here's a pretty kettle of fish". A rather nasty one, I think.
In conclusion, we have here an undervalued and unique microcosm of our social and transport heritage faced with possible destruction. It was there first. The Channel Tunnel rail link is a newcomer and an upstart. I believe upstarts should be made to fit in rather than be allowed to destroy unique and valuable things. I urge the Committee to support the noble Lord, Lord Cavendish, in opposing the Question that Clause 12 stand part of the Bill.
Lord Ampthill: Perhaps I may intervene at this stage. I say to the noble Lord, Lord Cavendish, that I am deeply upset that he should think that the Select Committee was not very concerned about environmental matters and St. Pancras station in particular. If I recollect his Second Reading speech correctly, he was then most concerned about gasholders, the water point and the chambers. All three of those matters have been satisfactorily resolved. The gasholders are to be pulled down and put together again; that is the three which are of the greatest concern because of the nature of the ironwork. They are to be reassembled and put to some use. I am doubtful as to what that use will turn out to be. The main thing is that he has got his way on that.
I hope the noble Lord feels satisfied—he did not mention it—about the arrangements which have been made for a competition as regards the chambers. There is a dearth of certain ideas as to what one can do with them. The Select Committee came to the conclusion that it could think of nothing better than an hotel, but we are hopeful that someone might come up with an even better use than that. However, they have to be put to active use. That is certainly the view of the Select Committee; otherwise the interiors will deteriorate beyond their present condition. The outside of the building has been very well restored by British Rail, but the inside, as I believe we say in our report, is a mess.
We now turn to the other matters concerning St. Pancras. It is the noble Lord's belief that we were not so interested as to give it all the time that it deserves. We gave it the whole day on 15th July. If the Committee will forgive me, perhaps I may read out a few excerpts from the evidence that was given, starting with Mr. Philip Davies, responsible for planning for London with English Heritage. He was a most excellent witness, as one would expect.
Very soon after he started his evidence, he said:
"I think if I can make one point very clear, Chairman, that is English Heritage is an enthusiastic supporter of CTRL and we welcome the contribution it will make to London as a world city. We have made strenuous efforts to resolve our understandable
478
concern by negotiation. Our sole concern relates to the future of the Chambers and the need for an adequate safety net for the buildings should LCR's current proposals not run according to plan. I hope in giving evidence I will be as brief as possible concentrating on that issue".
For the remainder of his evidence he spoke only about the chambers. We were therefore left with the belief that he felt that the negotiations which had been under way for many, many months with London Continental were bearing fruit. We were aware—although we were not shown it—that the Heritage Deed was in preparation.
I now turn to another paragraph, again taken from Mr. Davies' evidence. Counsel for English Heritage said:
"That we appreciate but Union Rail has been around for a long time and so have you"—
meaning the promoters—
"and you have been talking to each other and you have been talking in an agreeable way and have managed to resolve all the other problems".
That was counsel for English Heritage speaking to its witness, Mr. Davies, who agreed by saying, "Indeed". English Heritage did not seem that day to be concerned about anything except the chambers.
That evidence was followed by another witness, Dr. Filmer-Sankey, from the Victorian Society. Points were taken up which we would have expected English Heritage to make because it was deeply concerned about the station and the train shed in particular. Dr. Filmer-Sankey gave evidence for the whole of the afternoon. He was an admirable witness, as one would expect, and he is deeply concerned about what may transpire.
Perhaps I may once again read two or three paragraphs from his evidence. I refer to Question 247 on page 923 of the transcript. The witness was asked:
"There is no issue between us, as I understand it, that the regime described by the Planning Acts for listed building applications generally should be disapplied in this particular case provided an adequate replacement that is workable and effective can be devised?"
Dr. Filmer-Sankey replied, "Yes". He was further asked:
"It is further right that English Heritage did not petition against the inadequacy of the heritage agreement which was being offered, you have seen the petition and you know that, do you not?"
The witness replied,
"Yes, I have seen the petition".
Counsel then asked:
"So the plain fact of the matter is that you will have taken up the cudgels for the parties who are going to be parties to the agreement and who are apparently satisfied with it?".
Mr. Davies replied,
"As I have said earlier, we have discussed this particularly following the submission of the latest draft of the Heritage Agreement at 7.30 on Friday night, and we discussed this with English Heritage briefly at lunch, and with Camden, and we understand they would support the concerns we have expressed and the remedies we have suggested,".
I would now like to turn to the Heritage Agreement. This is a document which has been negotiated not only through our sittings but for many months before. I believe it is a document which, according to the understanding of the Select Committee, is all right as

479
far as English Heritage is concerned, with the exception of Section 4(5), where there is a bit of doubt as to the "consultation" that is being offered, which is a weaker word than "to seek agreement", which appears in the rest of the document. I believe that is all that English Heritage is presently worried about.
We felt that the promoters had gone as far as it was reasonable to go after those many months. The disappointment that the noble Lord expressed relates, I believe, to only those three or four words. About that he may wish to speak further to the Committee.
6 p.m.
Lord Clinton-Davis: I have listened with great interest to what the noble Lord, Lord Ampthill, has just said. This has been a very interesting and important debate. Leaving aside the definition of "elsewhere", living in Camden as I do, I hope that there is no intention to encroach on my home. I doubt that very much.
We are dealing here with two connected and very important issues. First, there is the protection of the historic parts of St. Pancras station, which is a Grade I listed building and a very beautiful one. The second point is that of conservation policy more generally as regards historic buildings which might be affected by projects which are organised under the PFI or, in the future I hope, under the public-private partnership schemes of the Labour Party.
The Government's attitude towards St. Pancras will, I am sure, establish a strong precedent—that is the point made by the noble Lord, Lord Cavendish—for relaxing statutory controls in a pretty drastic way. So these are issues of profound importance. The first question that arises is how far are the Government trying to relax conservation and other planning controls in order to assist the PFI.
The noble Lord, Lord Ampthill, said that English Heritage seemed to be satisfied with everything except Section 4(5) of the agreement. Representations have been made at least to me by English Heritage that that would raise a serious allegation. The Minister can put it in whatever perspective he thinks appropriate. The allegation is that the promoters can undertake any operational railway works at their discretion within the train shed without having to seek agreement with English Heritage or the London Borough of Camden.
That would involve all aspects of the scheme. I understand that that is what English Heritage is saying. In other words, a blanket exemption for any works affecting the train shed other than shops is being contemplated. Is that a fair and reasonable interpretation of the position? If it is, how is such a blanket exemption justified? Is there any precedent for such extensive powers for major works to Grade I listed buildings without any actual plans for the works having been disclosed? As and when London and Continental produce those plans, how is it possible to supervise, control and regulate their implementation? After all, the Bill disapplies statutory controls on demolition or alteration to any part of the station.
480
Apparently, the Government say—we shall hear from the Minister in a moment—"Don't worry about it. We can use a number of simplified streamlined actions, including design guidelines in the planning and heritage minimum requirement". Additionally, I believe that they will say that an agreement with English Heritage and the London Borough of Camden requires the promoters to reach agreement with them on certain aspects of the plans and that, failing agreement, there would be a right of appeal to the Government for a quick and binding decision. I stand to be corrected on that, but I understand from English Heritage that that is the substance of the Government's case. There is, however, an exemption clause in paragraph 4(5). The promoter would be under no duty to reach agreement and English Heritage and the London Borough of Camden would have no right of appeal.
I should like to ask the following questions. Do the Government and/or the promoters insist that any appeal procedure would constitute an unreasonable obstruction or an unreasonable delay? Would they not be in a position to do what my noble friend Lord Kennet argued and to have a streamlined right of appeal in any event of perhaps two or three months? Do not the Government have a sanction against the council if they deem that the council has been unreasonably obstructive?
There is an interesting parallel to this in principle in the case of CrossRail where the Government took a rather different decision. When the CrossRail Bill was before another place in 1993, it was then agreed that English Heritage should be allowed a right of appeal on any aspects of the actual plans and that the Government should be in a position to make a binding determination. What difference is there in principle between the CrossRail Bill and this Bill?
I turn now to the role of the Department of National Heritage. What consultation has taken place with that department? Is the Minister able to reveal the position of that department, if any? Why was not the position of that department made clear to the Select Committee? Is it not self-evident that proper advice from the Department of National Heritage should have been available, and, if not, why not?
I think that that will suffice for now because we have had an interesting debate. I have raised a number of questions and I hope that the Minister will be in a position to answer not only my questions but those raised by other noble Lords also.
Lord Annan: Perhaps I may make just a few general remarks in support of the noble Lord, Lord Ampthill, as, perfectly understandably, most of the speeches this evening have been rather hostile to the report from his committee—
Noble Lords: No!
Lord Annan: Well, the first thing that I was going to say was that I well remember protesting in this House 10 years ago against a proposed route which was to run through some unique working-class houses in Islington. When we were given the list of all those items of extreme importance in the environment of Islington,

481
I was not clear which were being positively threatened. It is not a question simply of arguing vaguely that it is an area of great historical interest and importance. One needs to point out whether some building is really being threatened and I have yet to have a reply on that point.
My second point is that, as usual, I greatly admired the speech of the noble Lord, Lord Kennet. He is always extremely well informed when he speaks on an issue and he has a highly intelligent mind which can breed objections with great skill. However, I felt that he tended to use the old argument that is used whenever someone opposes something: "This is the thin end of the wedge and once this happens, the floodgates are open". I wonder whether that is in fact the case.
I say that because this issue is rather different from the planning problems that we have faced in relation to Newbury and now Salisbury. Indeed, one could list a number of such planning disputes. They involve years of discussion, although the bypass or road is eventually built. We are prodigal in the way in which we use our planning laws to seek to satisfy objections from every quarter. Of course, one can never satisfy objections from every quarter, but we are unique in Europe in this respect. The point that I am trying to make is that this issue is slightly different from the question that confronted us at, say, Newbury or Salisbury. This is a question of an international rail link. That is why the Government are so keen that it should not be held up yet again.
My recollection is that our debates on those working-class houses took place at least 10 years ago. We have been at this for a long time and enormous changes have been made in the way in which we have handled this very difficult problem. I hope that we shall not delay on this. I notice that the noble Lord, Lord Howie of Troon, said that, although the route was different from the one that he had wanted, "Let's get on with it".
Lord Clinton-Davis: Before the Minister rises, perhaps I may correct an impression which the noble Lord, Lord Annan, seems to have conveyed. The gravamen of his charge is that this House is wasting time and that we should get on with things and not raise any questions—
Lord Annan: No! I must correct the noble Lord. I said no such thing. We must, of course, debate the matter, as this House always does.
Lord Clinton-Davis: That was not the impression that I gained from the noble Lord's remarks. There is a purpose in this because, although we admire the work of the Select Committee, it has not necessarily got everything right and nor have the Government. This is a complicated piece of legislation and this House has a duty to raise the questions that it thinks appropriate. I believe that the noble Lord, Lord Ampthill, fully accepts that.
It is not our intention to delay the Bill. It is our intention to discuss the Bill properly. It is not our intention to delay the proposal, but if people outside this
482
House and outside another place consider that points within it are causing them concern on a substantial scale and if this debate gives rise to such concern, it is wholly appropriate for us to express our point of view on behalf of those people and to listen carefully to what the Minister has to say. There is a purpose to such debates.
Viscount Goschen: This is—
Lord Kennet: If I may speak before the Minister, I promise not to say more than a sentence, but I should like to pick up something that my old friend the noble Lord, Lord Annan, has said. He accused me of fertility. That is a desperate charge. I am never fertile with ideas; I wish that I was. I seek only to put one idea before your Lordships' Committee—before one House of the British legislature. Do we want to suspend the operation of statute law in favour of one legal person?
Viscount Goschen: This has certainly been a fascinating debate on the interesting and important issue of heritage. All of us in the Chamber and outside are concerned about heritage matters and it is appropriate that we discuss them in some detail. They were, of course, discussed in some considerable detail by and before the Select Committee. I do not suppose that anyone suggests anything other than that.
I agree with the noble Lord, Lord Kennet, and the comments from his allegedly fertile mind (although he disagreed with that) that it would not be appropriate if all of the heritage procedures were disallowed and not replaced with a proper regime specific to CTRL. But that is not the case. A number of the points raised by the noble Lord, Lord Broadbridge, were either not relevant to the CTRL at all or were the subject of agreements a considerable time ago. I can reassure him on the subject of gasholders and St. Pancras Chambers.
The rail link is a scheme of national significance. The Bill has to provide all of the key powers necessary to undertake the project. CTRL has some unavoidable heritage impacts. In considering the Bill, Parliament has to decide whether in principle those impacts are acceptable. The means by which any Bill grants permission for or approves heritage impacts is by disapplying the need to apply for listed building consent. I can say specifically to the noble Lord, Lord Kennet, that there is nothing unusual about Clause 12. This has been standard practice for both private and hybrid Bills which have heritage impacts. There is no question of setting a new precedent. The Bill follows the procedures of other Bills and disallows the need for listed building consent in the circumstances set out in the Bill, but it has been adequately replaced by specific arrangements for this project.
As my noble friend Lord Cavendish recognised, we have no desire whatever to ride roughshod over heritage impacts. First, there is Parliament's own consideration of the heritage impacts. Secondly, there is a set of planning and heritage minimum requirements that applies to the St. Pancras terminus and LCR is obliged to follow. Thirdly, for a period of more than two years we have been negotiating with English Heritage and local authorities the terms of a deed concerning listed

483
buildings and buildings in conservation areas. The arguments put forward by my noble friend Lord Cavendish focused specifically on the requests of English Heritage for involvement in the specific articles to do with the operation of the railway. We talked about signalling and so forth. It is interesting to contrast that with the approach of the noble Lord, Lord Kennet, that this was outrageous and we were disallowing all of the proper listed building requirements without replacing them with a proper regime. I am sure that my noble friend Lord Cavendish will intervene if what I say is incorrect. It is not the position of English Heritage that a proper replacement regime has not been put in place. There are outstanding concerns over the details, but by and large English Heritage has participated in negotiations for a long time and is not opposed in principle to what the Bill proposes.
I return to the deed. The deed requires agreement to be sought from English Heritage and the appropriate local authorities on the nature of the proposed work to listed buildings, including the detailed design and the extent of the work. It also provides for consultation on railway works, such as track bed and tunnels. As I understand it, negotiations were progressing very well. We had expected that agreement would be reached quickly. However, I understand that at a fairly late stage English Heritage sought additional controls. These were the controls to which I referred a moment ago and to which my noble friend Lord Cavendish specifically referred in his opening remarks. I understand the current position to be that English Heritage accepts that it should not control the track and platforms, presumably because it recognises that those are essential for the success of the project. I see my noble friend nodding his head.
But there remains a point of difference. English Heritage wants to control matters such as signalling and ticketing facilities, as I understand it. Those items are just as important for the success of the project as the track and platforms. To try to deal with the key concern we have conceded control over catering and retailing but we cannot go as far as to concede control over signalling, power supply equipment, and passenger facilities such as ticketing. There should be consultation but not control over matters such as signalling. Although such controls would be subject to an appeals process, there would still be a very severe risk of delay and therefore substantial extra cost for the project.
It is also instructive to look at the track record of London and Continental Railways on heritage in the relatively short time since its appointment. I was pleased to hear the congratulations of my noble friend Lord Cavendish for LCR's helpful and responsible attitude on two key heritage issues at St. Pancras. To recap, a deal was struck on the possible relocation of the listed gasholders and water point which many had feared was an intractable position. Indeed, at Second Reading my noble friend Lord Cavendish placed considerable emphasis on those matters. We can all be very pleased that agreement has been reached on that difficult issue. LCR then announced its imaginative competition as a means of finding a use for St. Pancras Chambers, which
484
would be subject to the normal listed building controls. LCR is approaching the St. Pancras train shed issue with equal imagination, viewing heritage as a business asset.
The Select Committee took a considerable interest in heritage issues. It visited the train shed and the chambers and heard evidence from petitioners. It also considered whether the heritage deed ought to offer more control as opposed to consultation on railway works. We note the conclusion of the Select Committee that the Committee has already heard this evening:
"The Committee has no doubt that the draft Heritage Deed meets the interests of the petitioners".
We have heard arguments, notably from the noble Lord, Lord Kennet, and to a lesser degree from the noble Lord, Lord Clinton-Davis, that the whole regime is wrong because of the disallowance of the normal procedures. If those procedures had been disallowed without a proper regime being put in place to replace them for the specific circumstances, that would be the case. The fact is that proper arrangements have been made. All that remains at issue are some important details. The majority of the points at issue have been resolved. I do not believe that English Heritage feels that the whole approach of the Bill is wrong, as suggested by the noble Lord, Lord Kennet. I say to the noble Lord that he is not correct about the issue of precedence. This is the standard approach in circumstances where specific legislation is required for a purpose such as this.
With that explanation of the work that has gone into seeking agreement as far as possible on heritage matters and with the conclusion of the Select Committee, I commend the clause to the Committee.
Lord Clinton-Davis: Can the noble Viscount indicate why there appear to be differences of approach between Crossrail and this matter? I add in parenthesis that I never sought to display hostility to the report, as the noble Lord, Lord Annan, said. This is a matter of probing. We support what the Government seek to achieve on this occasion, but it is conceivable that mistakes can occur.
Viscount Goschen: I am sure the Committee recognises that the noble Lord does not attack the Select Committee. Indeed, he joined in the commendation of the work of that committee and its chairman. We all agree that it was a very thorough report, and that is not at issue. But it is important that the whole House discusses these issues, and that is exactly what we are doing.
The noble Lord, Lord Clinton-Davis, asked me about the CrossRail heritage agreement and the reasons for the difference there. The CrossRail agreement signed by English Heritage, London Underground and the British Railways Board provided for the agreement of English Heritage to be sought on each of the proposed works and construction methods to be used. It did not, however, specify what was meant by the nature of the proposed works. That was left for further debate.
Furthermore, unlike the draft CTRL Heritage Deed it did not cover agreement on mitigation measures, the preservation of particular features of the building or any

485
restoration and reconstruction work where reasonably practicable. It should also be remembered that the CTRL environmental statement is both qualitatively and quantitatively significantly improved compared with that for CrossRail. Nor did CrossRail have the safeguard of the St. Pancras planning and heritage minimum requirements. The nominated undertaker is required to meet those requirements irrespective of the final design that is chosen. They were negotiated with English Heritage and Camden over a two-year period and constrained the nominated undertaker on such matters as how works can be carried out to the train shed, booking hall and ticket office.
The heritage interests affected by the CTRL have considerably greater protection than those which were affected by CrossRail. I hope that the noble Lord will accept my explanation of the differences.
Lord Cavendish of Furness: I am grateful to all who have taken part in this debate. I should like, first, to make an apology to the noble Lord, Lord Ampthill, and to deny to the noble Lord, Lord Annan, that there was any hostility. If it appeared hostile, then I sincerely apologise. I admire the work enormously. When I was on a Select Committee we were shot at when we were examining a site, so perhaps it is an improvement on that.
However the fact remains, as I believe the noble Lord, Lord Ampthill, has said not once but twice, that the committee felt that the promoters had gone as far as they could in a certain direction. We are talking about a flagship project here of huge excitement and national importance, which has had support from all over this place. As noble Lords have said, there is no intention of delaying it. It seems to be rather sad when one cannot combine having a flagship project, something new and marvellous, with protecting one's past and one's heritage.
I thank my noble friend Lord Goschen for the thoughtful reply he gave to the various points raised. I think that he knows, and I know, that if there is a tricky situation it sometimes requires more imagination than Whitehall is likely usually to emerge with. We possibly need to encourage interested bodies such as English Heritage to feed in their ideas as to how one could achieve a speedy and simple agreement. What it came down to was that the delay would stumble the promoters, and might result in stalling this important flagship project.
What I, and anyone who admires and feels deeply for the heritage, which is a seamless state—it should come from the past and inform today's and future generations—cannot accept is that because a project is new and wonderful and of national importance one has therefore in any respect to disregard the past. I may come back to this at a later stage of the Bill, but for the time being I withdraw my opposition to Clause 12 stand part.
Clause 12 agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 10:
After Clause 12, insert the following new clause—
HERITAGE: RIGHTS OF ENTRY
(". Schedule (Heritage: rights of entry) to this Act (which makes provision about rights of entry for the Historic Buildings and Monuments Commission for England and the Royal Commission on the Historical Monuments of England) shall have effect.").
The noble Viscount said: It may be for the convenience of this Committee if I speak also to Amendment No. 35.
The amendments bring into the Bill rights of entry to scheduled monuments and listed buildings which have been subjects of negotiation on the terms of the Heritage Deed.
Paragraph 5 of Schedule 7 of the National Heritage Act 1983 already provides a right of entry for English Heritage to CTRL lands for recording purposes in relation to ancient monuments and historic buildings. The amendments widen the powers of entry.
English Heritage would have the right to enter land on which a scheduled monument or listed building is situated for the purposes specified in the schedule—variously observing, inspecting or advising—in relation to authorised works or preparatory investigations by the nominated undertaker. Also the Royal Commission on the Historical Monuments of England would have a period of eight weeks, other than in cases of emergency, in which to record listed buildings before they can be demolished under the powers in the Bill. The timing of entry by either organisation would be subject to health and safety considerations. I beg to move.
On Question, amendment agreed to.
Clauses 13 to 15 agreed to.
Clause 16 [Access agreements]:
Lord Berkeley Lord Berkeley moved Amendment No. 11:
Page 8, line 30, at end insert—
("(4A) Any access contract for use of a rail link facility may, with the consent of the Rail Regulator and the Director of Passenger Rail Franchising, provide for the carriage of passengers to or from any station in the United Kingdom.").
The noble Lord said: The drafting of this clause may seem at first sight to be slightly odd. It is designed to allow national passengers to travel on international trains. It could be that one could get on a Eurostar at Ashford and get out at Waterloo or, when the Eurostars start beyond London—probably next year—you could get on a train at Manchester and get off at Milton Keynes or Ashford or anywhere else.
I believe that this is an extremely important element, not only to ensure that the Eurostar trains start beyond London and continue to operate there, but it puts these railway services in line with what has been happening on the Continent for the past 50 years, ever since the last war. What is stopping that happening now? There are two main elements. The first is frontier control regimes, and the second is the existing commercial agreements arranged with the Franchising Director, the regulator and other operators.
I shall cover both of those reasons. I start with frontier controls and, under that, security. Let me first emphasise that I am not suggesting any relaxation of security, which must be paramount.
Let us look at what is happening on the Continent now. With the present Eurostars you can get on in Paris and get off at Calais; you can get on in Brussels and get off at Lille. You can do it in the other direction also. In the UK you cannot. Let us think what will happen when these services start beyond London. Let us take the Edinburgh to Paris service or the Manchester to Paris service. If you get on a train at Edinburgh, as I did a month or so ago, it is difficult to get a seat because the service is very popular. What will the passengers think if they see the train for London leave with standing room only, and then 10 minutes later the Eurostar comes in? You can only get on if you have a passport or a ticket to Paris, and you are spending rather a lot of money. That is illogical.
The connecting services that have been running for a couple of years from Manchester and Edinburgh to London Waterloo are 125s like any other InterCity trains. You cannot get on them without a passport, but you can still get off at Waterloo and go shopping, go to the Old Vic, or anything else you want to do. I am told that when that train goes through Crewe in the morning there is a member of staff at every door of the train to stop people getting on. That does not seem very sensible to me.
What is happening now is that London and Continental wants to start this service, but it has been—what shall we say?—encouraged, required, or whatever by the frontier control authorities to develop, design, and effectively construct large waiting-room pens at all the stations at which these trains will stop. I shall try to list them, but I shall probably forget a few. They are Milton Keynes, Rugby, Coventry, Birmingham (International), Birmingham, Wolverhampton, Stafford, Crewe, Manchester, Edinburgh, Newcastle, Durham, Darlington, York, Doncaster and Peterborough. I am sure that is enough for the Committee. There are about 15 of them. They will have to have all this equipment for international passengers only. When they have been through all this business, they are shepherded, by Heaven knows how many staff, through one door while the staff prevent other people from getting on by shooing them away or whatever. The consequences will be empty trains. There will be less revenue and, most seriously, less likelihood of the services surviving beyond London. On the east coast mainline there are times when three people occupy the same seat for different sections of the journey. However, the situation with the Eurostar makes it unlikely that that will survive for long without a change.
I also mentioned the need to reach agreement with the franchising director, the regulator, the existing operators on the east coast mainline and those who win the franchise on the west coast mainline. I have talked in principle to the franchising director's people and the regulator and both have said that it is perfectly possible to reach agreement. They can enforce it if they have to, but it is perfectly possible.
I believe that the key is to answer the question of whether there is a solution to the frontier control regime. I suggest that there is without affecting security. When going from north to south it is possible for security checks to be carried out on the train between the
488
enultimate stop, Milton Keynes or Peterborough, and Ashford. Officers would have two hours on the train and they could go through and clear all the passengers and get off at Ashford. If any passenger wished to get off at Ashford that would be fine because he or she would have been checked for security.
The frontier controls—that is, passport and immigration—could be carried out on the train after Ashford on the journey to Lille; there would be one hour in which to do that. I believe that that would be possible. If that were to happen between London and Ashford, passengers would have already gone through security at London before getting on the train.
Coming inwards, the process has already been done in France and Belgium. It means that passengers can get off where they like but once the train has been through the tunnel—we understand that that is the main threat—they can get on at Ashford and get off at Milton Keynes, Manchester or wherever. But this is turning a special Eurostar service into a train service which anyone can use. One can get on and get off anywhere; there will he better revenue for the operators; and there will be more flexibility. Trains are meant for people to use and if it is any consolation, the system of national passengers on international trains has been used throughout Europe since the war, even across the Iron Curtain during the worst years of the cold war. There is nothing new about it.
It is my belief that the frontier control authorities can come forward with a solution perhaps along the lines that I have suggested. They must recognise the commercial reality of what they are forcing London and Continental to do and the added operating costs which that will bring. I strongly urge the Government to look at the matter again for the benefit of the travelling public. I beg to move.
6.30 p.m.
Viscount Goschen: I am grateful to the noble Lord, Lord Berkeley, for his explanation of the purpose behind his amendment. I can be helpful to him, although not so helpful as to accept this amendment. I believe that what he wants is achievable and I hope that I shall be able to put him straight on some of the issues.
The drafting of the amendment is, as the noble Lord admitted, misconceived, as described in my brief. However, I believe that we can settle for "odd". As the Bill already stands, the nominated undertaker will be able to enter into an access contract with a person to enable that person to use the rail link for the carriage of passengers to or from London, Ebbsfleet or Ashford. Since the rail link will extend only from the Channel Tunnel to London, it is self-evident that an access contract in relation to the rail link cannot provide access to stations in the United Kingdom which are not on the rail link. Nor will the amendment affect purely domestic services which use the link as part of a longer journey.
However, this amendment seems to be intended to give the right, subject to the consent of the rail regulator and OPRAF, for any operator of international services using the new line for part of a journey in the UK to carry domestic passengers.

489
As the noble Lord, Lord Berkeley, agreed, there are security implications in carrying both domestic and international passengers on the same train; for example, carrying passengers from Edinburgh to Paris via the rail link on a train from which passengers are allowed to disembark in London. Once the train operator came forward with firm proposals to operate such a service and with security proposals, the security implications would need to be fully examined by my department's transport security division. Appropriate measures would need to be devised to ensure the security of the train and its passengers through the Channel Tunnel and directions would have to be given by the Secretary of State under the Channel Tunnel (Security) Order 1994.
In this country, if Eurostar or any other operator wanted to carry domestic passengers on international trains they would have to approach the Secretary of State with their security proposals before they could be considered.
What is under dispute is the precise effect of the amendment, which might be to remove any restrictions which the Secretary of State might impose on the operation of a combined international and domestic service. Restrictions have been put in place for sound security reasons.
I believe that the noble Lord and I are at one as regards a great deal of what is under discussion on the amendment. However, I believe that its drafting is misconceived. The intent behind it can be met so long as the necessary security arrangements can be devised and complied with. That is the point of agreement with us and the Bill does not preclude the carrying of domestic passengers on international services.
I hope that with that explanation, and the great accord between us on the thinking behind the amendment, the noble Lord will withdraw it.
Lord Berkeley: I am grateful to the Minister for those remarks. He is right about the quality of the drafting of my amendment. I and colleagues struggled with it, but it enabled us to raise the issue. I am the first to admit that it is defective in many ways.
I was pleased to hear what the Minister said about frontier controls, which he rightly said is the key to the issue. I shall study Hansard with great interest and look forward to seeing an application for an appropriate procedure from London and Continental, or whomever, to the Department of Transport. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 16 shall stand part of the Bill?
Lord Clinton-Davis: I wish to raise a short point in relation to Clause 16 about which I have given notice to the Minister. It relates to the adequacy of the provisions in the Bill to ensure access for disabled people in all trains running on the CTRL. Access requirements for fixed infrastructure and rolling stock for the new international and domestic services will comply with the present rail regulator's code of practice. That document
490
is essentially directed at piecemeal improvement of access on the existing rail network. Such a pragmatic approach to the costs of improvements may be understandable, although it is less than ideal.
Newham Council has raised the issues with me. It believes that the limited aims of the guidance are inappropriate in respect of the new CTRL investment. Each Eurostar train has only two places for people in wheelchairs. That is quite remarkable. In order to obtain such places one must book in advance and then wait at a pre-arranged point on the platform for a special ramp to be brought.
I do not suggest that the existing rolling stock should be modified. That would be wholly impractical. However, I seek the Minister's assurance that, as regards subsequent orders of new international and domestic rolling stock to be used on the route, the designs will ensure much greater accessibility to all passengers, in particular to disabled people.
A number of specific improvements to rolling stock design have been suggested; for example, six designated wheelchair spaces in new train sets from which bar and buffet facilities and wheelchair accessible toilets could be easily reached. Those seating places would incorporate space for the parking of wheelchairs and adjacent transfer seats. That is particularly important for those people who wish to transfer from their chairs to more comfortable seats. Those could be of standard design with removable sides and arm rests.
The interior design of carriages should also incorporate good quality colour contrast for partially sighted people. There should be audio and visual information and sufficient space at external doors to accommodate the turning circle of a powered wheelchair.
Therefore, I seek from the Minister this evening an indication of his general approach and some assurance that these matters will be looked at. I ask for wider consultation to be invited prior to the next round of rolling stock orders being placed. That would be viewed as a significant step forward. I await the Minister's reply with interest.
Viscount Goschen: The Motion that Clause 16 shall stand part of the Bill gives us a good opportunity to discuss disabled access issues which are clearly of key importance. I am extremely grateful to the noble Lord for giving me notice that he intended to raise this issue.
As noble Lords may be aware, under Section 70 of the Railways Act 1993 the rail regulator has a duty to prepare, revise, publish and encourage the adoption and implementation of the code of practice for protecting the interests of disabled railway passengers and station users. That duty operates in place of the usual Part M of the Building Regulations 1984 which do not apply to railway operational land.
The code of practice Meeting the Needs of Disabled Passengers was prepared in consultation with the Disabled Persons Transport Advisory Committee—DPTAC—and was published in 1994. It is a provision of the Government's minimum requirements for the CTRL project that the nominated undertaker for the CTRL

491
adopt and implement the disabled people's protection policy, having regard to the rail regulator's code of practice as though the nominated undertaker's activities were subject to regulation by the rail regulator.
Thus, in preparing its disabled people's protection policy, the nominated undertaker will be required to consult DPTAC. I am sure that that will greatly reassure the noble Lord in relation to LCR's consultation with interested parties, expert bodies and DPTAC, the body that was established as a statutory committee to advise the Secretary of State.
Lord Clinton-Davis: What does the acronym stand for?
Viscount Goschen: It is the Disabled Persons Transport Advisory Committee. I happen to have that at my fingertips. Indeed, I believe that I referred to it in my earlier remarks and I am sure that the Official Report will confirm that.
I assure the Committee that the CTRL will incorporate facilities for disabled people following the guidelines and the rail regulator's code of practice. Therefore, the disabled people's protection policy will apply to all of the nominated undertakers' passenger facilities provided under the Bill, including facilities at stations. Of course, the normal building regulations will apply to any development not authorised by the Bill. Therefore—to use an expression heard earlier this evening—there is seamless provision to ensure that the needs of disabled passengers are properly addressed.
Lord Clinton-Davis: I thought that that was a very good reply. It may be in sharp contrast to others, but that is unfair. The Minister has taken the point seriously and I am grateful to him.
Clause 16 agreed to.
Clause 17 agreed to.
Clause 18 [Railway administration orders]:
Viscount Goschen Viscount Goschen moved Amendment No. 12:
Page 10, line 14, leave out ("made by statutory instrument").
The noble Viscount said: In moving this amendment, I shall speak also to Amendments Nos. 13 and 14, 16 and 17 and 19.
These amendments have been tabled in response to the Delegated Powers Scrutiny Committee's report on the CTRL Bill. In its May 1996 report the committee highlighted three sets of provisions in the Bill that it had difficulty with, Clause 18, Clauses 22 to 24 and Clauses 32(4) and 32(5). The Bill currently provides for the various orders under these clauses to be made without being laid and thus subject to no further parliamentary scrutiny.
The committee felt that some parliamentary scrutiny was required and in each case suggested that the orders should be made subject to the negative resolution procedure. We have considered the committee's report very carefully indeed, and I am pleased to say←as Members of the Committee will see from the amendments before us—that we have been able to accept all of the committee's suggestions but one.
The suggestion that causes us difficulty is the one in relation to Clause 32(4), and I should like to explain to the Committee why we cannot make the amendment the committee sought. Clause 32(4) provides that the nomination order under Clause 32(1) may include "such supplementary, incidental, consequential or transitional provision as the Secretary of State considers necessary or expedient". Clause 32(1) is the provision in the Bill that will enable us to name London & Continental Railways as the "nominated undertaker" under the Bill, so that they can use the powers granted by the Act to build the CTRL.
Clause 32(4) is a common, catch-all provision that was intended to ensure that the need for any supplementary provision could be catered for at the time. In its report, the committee comment on, but do not explicitly criticise, the fact that the nomination order under Clause 32(1) does not require further parliamentary scrutiny but say that the "supplementary" power in Clause 32(4) ought to be made subject to the negative resolution procedure. However, Clause 32(4) is not a separate order-making power, but one linked to the power in Clause 32(1) setting out what an order under Clause 32(1) can contain.
With that somewhat detailed explanation, I hope that the Committee will accept that we did not feel it appropriate to bring forward an amendment with regard to that recommendation of the committee. We felt it entirely appropriate to bring forward other amendments implementing all the other recommendations of the committee. That is why we have brought forward Amendment No. 12 and the other amendments in this group. I beg to move.
6.45 p.m.
Lord Berkeley: From this side of the Committee, we are very pleased that the Government have taken notice of the committee's recommendations and have brought forward these amendments. That is every encouraging.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 13:
Page 10, line 15, at end insert—
("() The power conferred by subsection (8) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendment agreed to.
Clause 18, as amended, agreed to.
Clauses 19 to 21 agreed to.
Clause 22 [Restrictive trade practices]:
Viscount Goschen Viscount Goschen moved Amendment No. 14:
Page 12, line 18, leave out from ("and,") to end of line 21 and insert ("on the coming into force of an order made by virtue of this subsection, that Act shall be deemed not to have applied to the agreement concerned.").
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 15:
Page 12, line 39, leave out subsection (8).
The noble Viscount said: This is a technical amendment which removes Clause 22(8) from the Bill. We have concluded that the subsection is no longer necessary and that the public interest would now be better served if those agreements which would have been caught by this clause were to be handled using the normal procedures of the Restrictive Trade Practices Act 1976. I beg to move.
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clauses 23 and 24 agreed to.
Clause 25 [Sections 22 to 24: supplementary provisions]:
Viscount Goschen Viscount Goschen moved Amendments Nos. 16 and 17:
Page 14, line 5, after ("above") insert (", and orders made by virtue of section 22(4) above,").
Page 14, line 6, at end insert ("which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendments agreed to.
Clause 25, as amended, agreed to.
Clauses 26 to 31 agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 18:
After Clause 31, insert the following new clause—
UNDERTAKINGS WITH RESPECT TO FINANCIAL ASSISTANCE ETC
(".—(1) Any undertaking of the Secretary of State which—

(a) is given with respect to applications for assistance of a kind to which subsection (2) below applies, and

(b) is contained in a development agreement,

shall be effective notwithstanding that it fetters his discretion.
(2) This subsection applies to—

(a) any kind of financial or other assistance in relation to an existing railway line which might allow it to be used to provide a line speed in excess of 200 kilometres per hour before 31st December 2030, and

(b) any kind of financial or other assistance which before that date would enable or assist a person to provide services or facilities for international rail passenger services.").

The noble Viscount said: This new clause is aimed at giving legislative underpinning to the provisions of the development agreement which we signed with London and Continental Railways that set out the Secretary of State's contractual obligations to LCR in relation to the non-provision of financial assistance to a CTRL competitor. The clause seeks to achieve full consonance between the contractual position and the statutory position, and no more than that. I beg to move.
On Question, amendment agreed to.
Clause 32 [Holder of functions of nominated undertaker]:
Viscount Goschen Viscount Goschen moved Amendment No. 19:
Page 17, line 43, at end insert—
("() A statutory instrument containing an order under subsection (5) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Viscount said: The above amendment was spoken to when I moved Amendment No. 12. I beg to move.
On Question, amendment agreed to.
Clause 32, as amended, agreed to.
Clause 33 [Transfer of functions relating to works]:
Viscount Goschen Viscount Goschen moved Amendments Nos. 20 and 21:
Page 17, line 47, leave out ("to him").
Page 17, line 48, at end insert—

("(a) to him, or

(b) to a person specified under section 32 above.

(1A) The Secretary of State may by order provide for the further transfer—

(a) to him, or

(b) to a person specified under section 32 above,

of a power or duty transferred under subsection (1) above or this subsection.").
The noble Viscount said: These are purely drafting amendments designed to increase the flexibility of the clause as introduced in Select Committee. I beg to move.
On Question, amendments agreed to.
Clause 33, as amended, agreed to.
Clauses 34 to 41 agreed to.
Clause 42 [Acquisition of land]:
[Amendment No. 22 not moved.]
Clause 42 agreed to.
Clause 43 [Blight: compensation for pre-enactment acquisition]:
On Question, Whether Clause 43 shall stand part of the Bill?
Lord Clinton-Davis: Again, I have given the Minister notice of my intention to raise the issue of generalised blight. I do not wish to pursue the matter in any detail, but I should like to know what is happening so far as concerns the inter-departmental working party which has been convened. That arose as a result of a number of exchanges which took place in both Chambers, as no doubt the Minister will recall. It relates to the Government's initial decision to oppose the parliamentary ombudsman's findings which had been upheld by the Select Committee in the other place. If I may say so, a most sensible decision was then taken on 18th March to establish the inter-departmental working party to consider the problem of perceived blight. That was a recommendation of the Select Committee in another place.

495
Perhaps the Minister could give us a little further information on the matter. For example, is he able to indicate a date for the presentation of interim findings, if indeed it is the Government's intention to present such findings? Can the Minister give some idea as to when a final report is likely to be published? Finally—and this is most important in the context of the Bill—is the Minister in a position to confirm that any recommendations which the Government are able to adopt in relation to the matter will be applied to the legislation now before us?
Viscount Goschen: The issue of blight is clearly of major importance when dealing with any infrastructure projects. As the noble Lord raised the issue and the review is under way, I shall have to answer him in a small amount of detail in order to make the position absolutely clear.
As we know, the background is that the rail link route has been carefully selected, including extensive use of tunnelling so that very few homes have to be taken. In fact, there is an average of only one home being taken for every mile of route. For homes that are required to be taken for the rail link—that is, those that are the subject of statutory blight—voluntary purchase from Union Railways is available now at the request of the owner in terms of the unblighted market value of the property, as if the CTRL did not exist, plus all fees, disturbance and home loss payments.
Any homes required for the building of the rail link which have not been acquired voluntarily by the time of Royal Assent will be subject to compulsory purchase at that time on the same terms. For residential owner occupiers whose properties are close to the surface sections of the rail link but which are not actually taken, there is a discretionary purchase scheme operated by Union Railways. To qualify, home owners must demonstrate that their property is likely to be seriously affected by the construction or use of the CTRL resulting in loss of value and physical effects. The test is usually whether the property would qualify for noise insulation under the national railway regulations. There must also be proof of hardship arising from a pressing need to move. Illness, growing family and job move are indeed common grounds for hardship.
The Select Committee in another place was satisfied with the treatment of those with properties taken or seriously affected by the link. The committee's concern was that the blight that petitioners claimed spread further from the rail link, which we term "generalised blight". That is the subject of the government review. In response to the special report of the Select Committee of another place, the Government undertook to convene an inter-departmental working group to carry out a review of the scope, causes and effects of blight arising during the various stages of major infrastructure projects in order to ascertain whether any practical changes could be made to the existing national arrangements for property purchase and compensation.
The terms of reference of the working group were announced in a Written Answer in another place on 18th March. Those terms made clear that the review will focus on issues of perceived or generalised blight and
496
will consider in particular the nature of the problem, its causes and effects, including geographical and temporal extent, whether changes to procedures in the provision of infrastructure might reduce negative effects and options for compensation arrangements if appropriate.
I turn now to the noble Lord's specific question. A progress report will be available shortly which will set out the evidence which has been collected so far, including an analysis of the main points made in response to a discussion paper issued in June outlining the work in hand. The group expects to complete its work and submit its final report to Ministers by the end of the year. The timing will depend on whether any further issues are identified. We shall then wish to consider carefully the next steps. Any changes to the legislation that may be proposed would of course be the subject of formal public consultation. I believe that what I have said gives the flavour of what is happening with the review of generalised blight in terms of the inter-departmental working group.
I believe that there is a small amount of confusion in the noble Lord's mind—although perhaps I misheard him—in terms of his reference to the report of the Parliamentary Commissioner for Administration. That is a separate issue which I could go into now at some length, but I believe that the noble Lord's primary question was about the working group. I hope, therefore, that I satisfied him on that subject.
Lord Ampthill: The noble Lord, Lord Clinton-Davis, was quite right to raise the matter. It was indeed a matter which deeply concerned the Select Committee, as he will be aware from reading our report. Members of that committee were much comforted to know that the working group would report; indeed, we did exercise a degree of pressure in that respect. It has been promised that the report will be available by the end of the year, and that was a considerable relief to the Select Committee.
Lord Clinton-Davis: I am most grateful both to the Minister and to the noble Lord, Lord Ampthill. It is an important issue. I was simply probing in that respect and I think that the progress that is being made is encouraging.
On Question, Clause 43 agreed to.
Clauses 44 to 46 agreed to.
Clause 47 [Overhead lines]:
Viscount Goschen Viscount Goschen moved Amendment No. 23:
Page 24, line 9, at end insert—
("(2) Schedule (Overhead lines: consent) to this Act (which makes alternative provision for consent in relation to lines to which subsection (1) above applies) shall have effect.
(3) On the revocation or expiry of consent under Schedule (Overhead lines: consent) to this Act, the line to which the consent relates shall cease to be a line to which subsection (1) above applies.
(4) On granting consent under Schedule (Overhead lines: consent) to this Act to electricity undertakers, the appropriate Ministers may direct that planning permission shall be deemed to be granted for the carrying out of development to which the consent relates, subject to such conditions (if any) as may be specified in the direction.

497
(5) In subsection (4) above—

(a) "electricity undertakers" means the holder of a licence under section 6 of the Electricity Act 1989, and

(b) the reference to the appropriate Ministers is to the Secretary of State for Trade and Industry and the Secretary of State for Transport acting jointly.").

The noble Viscount said: In moving the above amendment I shall, with the leave of the Committee, speak also to Amendment No. 37. Despite the length of the amendments, I hope that they are essentially non-contentious as they represent a concession.
Under the Bill as currently drafted no further approval for the various overhead electric line diversions required for the CTRL would be needed once the Bill is passed. These amendments instead require a further consent to be obtained from the Secretaries of State, and the new schedule makes detailed provision in relation to publicity and consultation in certain cases. The provisions are modelled on the Electricity Act 1989 and the relevant regulations issued under it. I beg to move.
On Question, amendment agreed to.
Clause 47, as amended, agreed to.
Clauses 48 to 52 agreed to.
Clause 53 [Interpretation]:
7 p.m.
Viscount Goschen Viscount Goschen moved Amendment No. 24:
Page 27, line 17, after second ("agreement") insert ("(including one entered into before the passing of this Act)").
The noble Viscount said: This is a self-explanatory drafting amendment reflecting the fact that since the Bill was introduced we have signed a development agreement with London & Continental Railways. I beg to move.
On Question, amendment agreed to.
Clause 53, as amended, agreed to.
Clause 54 agreed to.
Schedules 1 to 3 agreed to.
Schedule 4 [Acquisition of land within limits shown on deposited plans]:
[Amendment No. 25 not moved].
Schedule 4 agreed to.
Schedule 5 agreed to.
Schedule 6 [Planning conditions]:
Viscount Goschen Viscount Goschen moved Amendment No. 26:
Page 161, line 15, at end insert—
("() An invitation under sub-paragraph (1) above shall specify the time limit for making representations.").
The noble Viscount said: In moving Amendment No. 26 I wish to speak also to Amendments Nos. 27 and 28. These are drafting amendments to paragraphs 27 to 29 of Schedule 6 to the Bill which make it clear that invitations to the various bodies concerned to make representations should specify the time within which representations are to be made. I beg to move.
Lord Clinton-Davis: I confess that I have not looked carefully at this matter but the time limit involved here is not specified. Of course the Minister is looking for
498
flexibility, but is he able to indicate the sort of general lines of thought as regards time limits that he has in mind?
Viscount Goschen: As I said, these amendments to paragraphs 27 to 29 of Schedule 6 to the Bill require various bodies—English Nature, English Heritage, the Countryside Commission, the Environment Agency and the Lee Valley Regional Park Authority—to be invited by planning authorities to make representations on relevant requests for approval submitted by the nominated undertaker. I understand that the various bodies have 21 days to make representations in response to any such invitation. To avoid there being any confusion as to the time limit for the various bodies to make representations—some of the bodies concerned, or the people dealing with the invitations, may not have copies of the Channel Tunnel Rail Link Act, as we hope it will become, readily to hand—the amendments simply provide for the invitation itself to specify the time within which representations need to be made. Therefore the noble Lord has nothing to fear.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendments Nos. 27 and 28:
Page 161, line 42, at end insert—
("() An invitation under sub-paragraph (1) above shall specify the time limit for making representations.").
Page 162, line 8, at end insert—
("() An invitation under sub-paragraph (1) above shall specify the time limit for making representations.").
The noble Viscount said: I have spoken to these amendments with a previous amendment. I beg to move Amendments Nos. 27 and 28 en bloc.
On Question, amendments agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 29:
Page 162, line 35, leave out ("in writing").
The noble Viscount said: In moving Amendment No. 29 I wish to speak also to Amendments Nos. 30, 31, 33 and 34. Essentially these amendments increase the flexibility of the Secretaries of State for the Environment and Transport to decide how planning appeals under the Bill should be determined, and provide for the appeal procedures to be set out in regulations. I beg to move.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendments Nos. 30 and 31:
Page 162, line 36, after ("appeal") insert ("in the prescribed form").
Page 162, leave out lines 42 to 48.
On Question, amendments agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 32:
Page 163, line 12, at end insert—
("(7) The appropriate Ministers may by regulations make provision for the extension of the appropriate period for the purposes of sub-paragraph (5) above in connection with the payment of fees by means of cheque.
(8) The power to make regulations under sub-paragraph (7) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Viscount said: This amendment was spoken to with Amendments Nos. 8 and 9. I beg to move.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendments Nos. 33 and 34:
Page 163, line 12, at end insert—
("() In this paragraph, "prescribed" means prescribed by regulations made by the appropriate Ministers.").
Page 163, line 16, at end insert—
("33A.—(1) Unless the appropriate Ministers direct otherwise, their functions in relation to the determination of an appeal under paragraph 32 above shall, instead of being carried out by them, be carried out by a person appointed by them for the purpose.
(2) The appropriate Ministers may by a further direction revoke a direction under sub-paragraph (1) above at any time before the determination of the appeal.
(3) A direction under sub-paragraph (1) or (2) above shall be served on the nominated undertaker and the planning authority whose decision is appealed against.
(4) At any time before the determination of an appeal by a person appointed for the purpose under this paragraph, the appropriate Ministers may revoke his appointment and appoint another person to determine the appeal instead.
(5) Where the function of determining an appeal under paragraph 32 above is transferred from one person to another, the person to whom the function is transferred shall consider the matter afresh, but the fact that the function is transferred shall not entitle any person to make fresh representations or to modify or withdraw any representations already made.
(6) If the appropriate Ministers determine an appeal which another person was previously appointed to determine, they may, in determining it, take into account any report made to them by that person.
33B. The decision of the person appointed under paragraph 33A above, or, as the case may be, of the appropriate Ministers, on an appeal under paragraph 32 above shall be final.
33C.—(1) An appeal under paragraph 32 above shall be dealt with on the basis of written representations, unless the person deciding the appeal directs otherwise.
(2) Subject to that, the appropriate Ministers may by regulations make such provision as they think fit about procedure in relation to appeals under paragraph 32 above.
(3) Regulations under sub-paragraph (2) above may, in particular—

(a) make provision for a time limit within which any person entitled to make representations must submit them in writing and any supporting documents,

(b) empower the person deciding an appeal to proceed to a decision taking into account only such written representations and supporting documents as were submitted within the time limit, and

(c) empower the person deciding an appeal, after giving written notice of his intention to do so to the nominated undertaker and the planning authority whose decision is appealed against, to proceed to a decision notwithstanding that no written representations were made within the time
500
limit, if it appears to him that he has sufficient material before him to enable him to reach a decision on the merits of the case.

(4) Regulations under sub-paragraph (2) above may, in relation to such a time limit as is mentioned in sub-paragraph (3)(a) above—

(a) prescribe the time limit in the regulations, or

(b) enable the appropriate Ministers to give directions setting the time limit in a particular case or class of case.

33D.—(1) Regulations under paragraph 32 or 33C above may make different provision for different cases.
(2) The power to make regulations under paragraph 32 or 33C shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Viscount said: These amendments were grouped with Amendment No. 29. I beg to move Amendments Nos. 33 and 34 en bloc.
On Question, amendments agreed to.
Schedule 6, as amended, agreed to.
Schedule 7 agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 35:
After Schedule 7, insert the following new schedule—
("SCHEDULE
HERITAGE: RIGHTS OF ENTRY
Historic Buildings and Monuments Commission for England
1.—(1) Any person duly authorised in writing by the Commission may at any reasonable time enter any land on which (or in or under which) a scheduled monument is situated—

(a) for the purpose of observing or advising upon the exercise in relation to the land of any of the powers conferred by paragraph 10(1) of Schedule 2 to this Act, or

(b) for the purpose of inspecting, observing or advising upon the carrying out of any works on the land in exercise of any of the other powers conferred by this Part of this Act.

(2) Any person duly authorised in writing by the Commission may at any reasonable time enter any land for the purpose of inspecting or observing the carrying out in relation to any building on the land of any decontrolled works.
(3) The right conferred by sub-paragraph (1) or (2) above shall not be exercisable at a time when the nominated undertaker reasonably considers that it is not safe to exercise it.
(4) A person exercising the right conferred by sub-paragraph (1) or (2) above shall comply with any directions given by the nominated undertaker for the purpose of securing compliance with relevant health and safety provisions.
Royal Commission on the Historical Monuments of England
2.—(1) The nominated undertaker shall not carry out any decontrolled works consisting of the demolition of a building unless—

(a) notice of the proposal to carry out the works has been given to the Royal Commission, and

(b) the appropriate period since the giving of the notice has elapsed.

(2) Subject to sub-paragraph (3) below, the appropriate period for the purposes of sub-paragraph (1)(b) above is 8 weeks or such longer period as may have been agreed between the nominated undertaker and the Royal Commission.
(3) In case of emergency, the appropriate period for the purposes of sub-paragraph (1)(b) above is such period as is reasonable in the circumstances.
(4) In determining whether the appropriate period for the purposes of sub-paragraph (1)(b) above has elapsed, there shall be disregarded any day on which entry to the building is refused under paragraph 3(2) below.

501
3.—(1) Following the giving of a notice under paragraph 2(1) above in relation to any building, any person duly authorised in writing by the Royal Commission may, at any reasonable time during the inspection period, enter the building for the purpose of recording it.
(2) The right conferred by sub-paragraph (1) above shall not be exercisable at a time when the nominated undertaker reasonably considers that it is not safe to exercise it.
(3) A person exercising the right conferred by sub-paragraph (1) above shall comply with any directions given by the nominated undertaker for the purpose of securing compliance with relevant health and safety provisions.
(4) For the purposes of sub-paragraph (1) above, the inspection period, in relation to a building which is the subject of a notice under paragraph 2(1) above, is the period beginning when the notice under that provision is given and ending when the prohibition under that provision ceases to apply to the building.
Interpretation
4. In this Schedule—
"the Commission" means the Historic Buildings and Monuments Commission for England;
"decontrolled works" means works to which section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 would apply, but for paragraph 1(1)(a) or (3) or 2(1)(a) of Schedule 7 to this Act;
"the Royal Commission" means the Royal Commission on the Historical Monuments of England;
"scheduled monument" has the same meaning as in the Ancient Monuments and Archaeological Areas Act 1979.").
The noble Viscount said: This amendment was grouped with Amendment No. 10. I beg to move.
On Question, amendment agreed to.
Schedule 8 agreed to.
Schedule 9 [Disapplication and modification of miscellaneous controls]:
Viscount Goschen Viscount Goschen moved Amendment No. 36:
Page 178, leave out lines 11 to 16 and insert—
(".—(1) This paragraph applies where an application for the issue of a permit under the London Lorry Ban Order is expressed to be made in connection with the carrying out of authorised works.
(2) The application shall be granted if the issue of a permit is reasonably required—

(a) for the purpose of enabling authorised works to be carried out in a timely, efficient and cost-effective manner, or

(b) for the purpose of enabling authorised works to be carried out in accordance with approved arrangements.

(3) If the application is granted, no condition may be imposed which is likely to obstruct the carrying out of authorised works—

(a) in a timely, efficient and cost-effective manner, or

(b) in accordance with approved arrangements.

(4) If the applicant is aggrieved by a decision under sub-paragraph (2) or (3) above, he may appeal to the Secretary of State by giving notice in writing of the appeal to him and the authority whose decision is appealed against within 28 days of notification of the decision.
(5) On an appeal under sub-paragraph (4) above, the Secretary of State may allow or dismiss the appeal or vary the decision of the authority whose decision is appealed against.
(6) If the authority to which the application is made does not notify the applicant of its decision before the end of the working day following the day on which the application is made, the application shall be deemed to have been granted unconditionally.
502
(7) In this paragraph—
"approved arrangements" means arrangements approved for the purposes of any of the following provisions of Schedule 6 to this Act—

(a) paragraph 7, so far as relating to item 1 or 6 in the table in that paragraph,

(b) paragraph 16, so far as relating to item 5 in the table in that paragraph,

(c) paragraph 23, so far as relating to item 5 in the table in that paragraph, and

(d) paragraph 25;

"authorised works" means works authorised by this Part of this Act;
"the London Lorry Ban Order" means the Greater London (Restriction of Goods Vehicles) Traffic Order 1985; and
"working day" means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.").
The noble Viscount said: Under the present wording of paragraph 9 of Schedule 9 to the Bill, Article 3 of the Greater London (Restriction of Goods Vehicles) Traffic Order 1985,—better known as the London lorry ban which prohibits lorries from using certain roads in London at certain times, unless a permit has been issued—is disapplied entirely in relation to vehicles being used for the purposes of or in connection with the CTRL works authorised by the Bill. That was because of the provisions of the planning regime established by Schedule 6 to the Bill, and the detailed provisions of the code of construction practice outside the Bill.
However, following a meeting with the London Boroughs Transport Scheme—which is the local authority organisation that administers the ban in a number of the London boroughs but not all of them—in June, the LBTS was offered an assurance that instead of disapplying the ban entirely we would modify its application in a way which reflected the national significance of the CTRL as well as the detailed planning approvals regime that the Bill establishes, which among other things gives qualifying local authorities control over the routing of construction lorries and hours of work.
The LBTS accepted that assurance and I understand that the matter was not raised before the Select Committee. We believe that the amendment before the Committee today honours that assurance. We are aware, however, that the LBTS feels that the amendment does not reflect what it believes was agreed in July and it has been in touch with the department about its concerns, which I understand contain essentially three aspects: the cost-effective provision in subparagraph (3); the time limit in subparagraph (6), and the fact that appeals under subparagraph (3) are to be referred to the Secretary of State in addition to appeals under subparagraph (2).
Perhaps I may deal with those points in turn. On the cost-effective provision in sub-paragraph (3), the LBTS feels that this would allow CTRL lorries to use minor roads or roads of residential areas if that were cost effective. That seems to be based on the assumption that London and Continental Railways would apply to use minor roads or roads of residential areas even where major roads or other suitable alternatives were available. If it did that it would surely expect to lose any appeal.
Secondly, on the time limit in sub-paragraph (6), the way in which the sub-paragraph is drafted gives the issuing authority at least 24 hours, and possibly as long as 48 hours, to deal with most applications. If the application were submitted first thing on a Monday, the issuing authority would have until close of business on Tuesday to notify the applicant of its decision before it were deemed to have been granted a permit unconditionally. That does not mean getting the permit to the applicant either by post or by hand. It means notifying the decision. That can be done over the telephone.
I know that the LBTS feel that such a timetable is not in the spirit of the agreement reached in July. But I must dissent from that view. The letters from officials in my department made it clear that the amendment on offer would mean that the issuing authority would be required immediately to issue a permit. For example, a week is clearly not immediately. Moreover, I am told that in emergencies the LBTS can and does issue permits over the telephone.
Thirdly, on appeals to the Secretary of State, I gather that that is the point on which perhaps the LBTS feels most aggrieved. The concern is that sub-paragraph (4) provides for appeals under sub-paragraphs (2) and (3) to be referred to the Secretary of State. That means that appeals against both an outright refusal of a permit and the adverse conditioning of a permit would come to the Secretary of State. It is the "and" that is important. The LBTS feels that that, too, goes against what was agreed in July. Yet its own letter makes it clear that appeals to the Secretary of State were to be allowed,
"where a permit had been refused for journeys"—
I emphasise the words "for journeys"—
"which the developers regard as necessary for the execution of CTRL work".
In other words, the amendment offered in July was that the Secretary of State would determine appeals in instances where a permit for a journey which was regarded as necessary had been refused. That clearly includes outright refusal of an application as well as the conditioning of the grant of a permit so as either to thwart the journey contemplated in the application or to load it with adverse conditions.
It would clearly be odd for there to be one appeal mechanism for an outright refusal and another for the adverse conditioning of a permit. The issuing authority would never refuse an application outright yet seek to do just that in effect by loading the permit with adverse conditions. It seems clear that the burden in the relevant paragraphs in our letters in July was not the refusal of a permit but the journey to which the application related.
With that explanation of the provisions that we have brought forward, I commend the amendment to the Committee. It is the result of negotiations with the London Boroughs Transport Scheme, the body that administers this ban. I hope that the Committee will welcome the amendment. I beg to move.
Lord Jenkin of Roding: My noble friend has spelt out the somewhat tortuous details of the source of disagreement that currently exists between the
504
promoters and the department on the one hand and the London Boroughs Transport Scheme, the people who run the lorry ban, on the other.
An important issue of principle is raised. I have read every word of the correspondence between my noble friend's department in July and the director of the London Boroughs Transport Scheme. The petition which was being presented by the London Borough of Newham on behalf of the scheme was withdrawn because clear undertakings were given in the correspondence in return for a concession by the London Boroughs Transport Scheme. The Committee should perhaps be aware that the normal appeal against a refusal of a permit is an appeal to the committee of the scheme. The department and the promoter felt very strongly that with a project as important as the CTRL it should not rest with the committee as to whether a lorry used the roads at night for the purposes of constructing the railway but that the final word should rest with the Secretary of State.
The scheme gave that concession. I shall not quote all the letters. However, it was made perfectly clear. The words is "refuse" a permit. What the draftsman and the department have done in clear breach of that understanding is to add that the Secretary of State must also have the right to hear appeals against the imposition of conditions. My noble friend has given two reasons for that, both of which, I have to say with the greatest respect to him, are entirely spurious. First, he says that it will be perfectly possible for the scheme to give a permit but to so hedge it about with conditions that it would be tantamount to a refusal. That is contrary to the regulations under which that scheme operates. That would be against the law. In any event, why would they want to do that?
Secondly, the Minister latched on to the word "journeys" because the letter used the words "a permit for journeys" as though somehow that made the position different from just issuing a permit. What on earth is the purpose of issuing a permit if it is not to allow a lorry to make a journey? It seems an entirely bogus reason for suggesting that somehow it is now perfectly all right to break the agreement, an agreement on the basis of which a petition against the Bill was withdrawn so that the committee chaired by my noble friend Lord Ampthill never heard the argument. We now have new conditions put into the schedule.
I must ask my noble friend to look at this issue again. It is a breach of faith on a matter—it may seem of minor importance against the billions of pounds that will have to be spent on the railway—which is of crucial importance. I speak as one who represented people in London. It is of crucial importance to the people who live in quiet streets and expect as a result of this scheme to be spared through the night the rumble of heavy traffic for construction.
There was no attempt to disapply the scheme for the Jubilee Line. There was no attempt to disapply the scheme for building the terminal at Waterloo, which was a huge project. The first attempt was simply to disapply the scheme altogether. My noble friend has properly said that in respect of the eight boroughs through which

505
the line will go there will be a separate scheme. But by disapplying the measure, what about the 25 other boroughs? Quite properly, therefore, the promoters and the department have agreed that it must stand. But it must stand on the conditions that were agreed in the correspondence in July, and on nothing more. My noble friend has allowed himself to be misled into imposing additional conditions in breach of faith. I am sure that my noble friend who is an honourable man would not wish to be charged with that. He has the opportunity between now and Report to put the matter right.
On the other two more minor matters, regarding the time limit it is no good telephoning someone to say, "You have a permit" You can telephone them to say that a permit is on its way to them but if a vehicle is not displaying a permit it is in breach of the law. The vehicle has to be displaying the permit; the permit has to reach the vehicle operator.
With regard to the time limit, the Minister said that it could be as long as 48 hours. That implies that it is done over the weekend or a public holiday. The time limit is in fact 24 hours, but that cannot be guaranteed, knowing the general level of efficiency of the Post Office. I have said to the London Boroughs Transport Scheme that couriers could be used. In fact, a very small modification would allow that to be done.
The question of unreasonable conditions and things being done in an efficient and timely manner, allowing lorry owners to argue that they should therefore be able to use residential streets rather than take a longer route, needs to be looked at again. The purpose of this scheme is to protect London's residents from being disturbed in the middle of the night. One understands that there will necessarily be some disturbance while this railway is built, but a balance must be held. There was an agreement in July and that is now being ratted on. I believe that my noble friend would not wish to carry that accusation on his shoulders.
Lord Clinton-Davis: I believe that the points that the noble Lord, Lord Jenkin, has made are worthy of further consideration. I will not elaborate on them because he made the points eloquently and comprehensively. He did not allude to the fact—perhaps he did not know—that discussions took place between the London Boroughs Transport Scheme and an official or officials at the Department of Transport on, I believe, 29th October. These arguments were rehearsed and the department's official took a similar line to that which the Minister has adopted today.
I do not propose to say anything more about the merits of the issue save to say that I have a good deal of sympathy with what the noble Lord, Lord Jenkin, said. However, I am advised that, far from reaching a conclusive determination in those discussions on 29th October, the official concerned agreed to consider the points which had been made. It seems to me that that is not a satisfactory way of trying to conclude the negotiation. These are points of great importance and substance.
506
Perhaps we can short-circuit the debate today, the points having been made. If the Minister were to agree to further consultations, perhaps directly with himself, on the three or four points raised by the noble Lord, the matter could proceed on that basis without further debate today. There is no point in rehearsing again what has already been said. I think that in that way the London Boroughs Transport Scheme would at least feel that it had had a fair crack of the whip. If no movement is achieved, it may come back and say that the negotiation has not been satisfactory and seek to encourage amendments to be made at a later stage, on Report or perhaps even later.
The whole matter has been discussed with a degree of haste, perhaps because of the timetable that we have had. I know that discussions about these matters were originally held in July. The point was made by the noble Lord, Lord Jenkin, about the scheme's feeling aggrieved that there has been a departure from what was agreed to be a matter of very important principle. The easiest way to deal with the matter would be for the negotiations to be reconvened.
Viscount Goschen: I have listened very carefully to what has been said this evening, particularly by my noble friend Lord Jenkin of Roding. I would not want the Government to be accused of any breach of faith. That is not what the Government intend. I believe that there is a misunderstanding. I understand what the noble Lord said about my emphasis on the word "journey", but the word "journey" would seem to imply more detail.
I do not want to go into detail on the question of legality of a permit with regard to possession of a permit rather than its having been issued but not being in the driver's hands. I shall take further advice on that matter. These days it is possible, with fax machines, for a facsimile to be transmitted very quickly. I shall take advice about the legality of that. Perhaps if we come back to these issues that will be one of the points on the table.
With this amendment we make progress over the situation that pertained previously. There are some details that remain outstanding but the bulk of this amendment is agreed and I think that it will provide considerable extra protection. There is no dispute that in this Chamber we are all very interested in the protection of Londoners from noise from heavy lorries. I believe that the best course of action is for the Committee to accept this amendment this evening and, without any commitment to bringing forward changes at Report stage, I will consider yet again the issues that have been highlighted by my noble friend Lord Jenkin.
Lord Clinton-Davis: Perhaps the Minister can go a little further. He has agreed to reconsider the matter. Would he agree to meet representatives of the London Boroughs Transport Scheme in order that further discussions can take place? Because of the seriousness of the matter, it would be preferable for the discussions to take place with him as well as with officials. I think

507
his involvement would be helpful so that the scheme could make representations at the level which it now feels is necessary.
Lord Jenkin of Roding: As we are in Committee, I should perhaps have made the point that I am a joint president with the noble Lord, Lord Graham of Edmonton, of the Association of London Government, in which capacity I have been asked to intervene in this debate tonight. I should be very happy to accompany the officials of the London Boroughs Transport Scheme to a meeting with my noble friend. I believe they will be most grateful if he will agree to meet us before the Report stage so that we can resolve these difficulties.
I was delighted to hear the Minister say that he had no wish to be charged with a breach of faith. That is what it looks like at the moment, and we need to put that right.
Viscount Goschen: I believe we have been over that point. I should like to reiterate that, of course, the department has acted in entirely good faith throughout. I should certainly be very happy to meet my noble friend and anyone whom he would care to bring with him before the next stage of this Bill.
On Question, amendment agreed to.
Schedule 9, as amended, agreed to.
Schedules 10 to 12 agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 37:
After Schedule 12, insert the following new schedule—
("SCHEDULE
OVERHEAD LINES: CONSENT
Scope of Schedule
1. This Schedule applies to any electric line to which section 37(1) of the Electricity Act 1989 would apply, but for section 47(1) above.
Consent requirement
2.—(1) An electric line to which this Schedule applies shall not be installed or kept installed above ground except in accordance with a consent granted by the appropriate Ministers.
(2) Any person who without reasonable excuse contravenes the provisions of sub-paragraph (1) above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(3) No proceedings shall be instituted in respect of an offence under this paragraph except by or on behalf of the Secretary of State.
Applications for consent
3.—(1) An application for consent under this Schedule shall be in writing and shall state—

(a) the length of the electric line to which it relates,

(b) the nominal voltage of that line, and

(c) whether the application to any extent relates to exercise of the power conferred by paragraph 3(1) of Schedule 2 to this Act.

(2) An application for consent under this Schedule shall be accompanied by a map showing—

(a) the land across which the electric line to which it relates is to be installed or kept installed, including details of the route of that line,

(b) the limits of deviation for the scheduled works and the limits of land to be acquired or used, so far as relevant to the application, and

508

(c) if the application to any extent relates to exercise of the power conferred by paragraph 3(1) of Schedule 2 to this Act, the extent to which it so relates.

4. An application for consent under this Schedule shall be supplemented, if the appropriate Ministers so direct in writing, by such additional information as may be specified in the direction.
Publicity
5.—(1) A person applying for consent under this Schedule shall publish notice of the application in two successive weeks in one or more local newspapers circulating in the area in which the land to which the application relates is situated (or in areas which together include that area).
(2) A notice under sub-paragraph (1) above shall—

(a) describe the route of the electric line to which the application relates,

(b) specify a place in the locality where a copy of the application may be inspected,

(c) state a time (not being less than 14 days from the date of publication) within which, and the manner in which, objections to the application may be made to the appropriate Ministers, and

(d) if it relates to an application by the nominated undertaker, explain the effect of paragraph 8(2)(b) below.

(3) Sub-paragraph (1) above shall not apply to an application for consent under this Schedule which relates only to exercise of the power conferred by paragraph 3(1) of Schedule 2 to this Act.
(4) If an application for consent under this Schedule relates partly to exercise of the power conferred by paragraph 3(1) of Schedule 2 to this Act, so much of the application as relates to exercise of that power shall be disregarded for the purposes of sub-paragraphs (1) and (2) above.
(5) If an application for consent under this Schedule is one in relation to which the applicant is subject to a duty under sub-paragraph (1) above, the appropriate Ministers shall not make any decision about the application until they are satisfied—

(a) that the applicant has performed his duty under that provision, and

(b) that the time allowed by the notice under that provision for making objections to the application has expired.

Consultation
6.—(1) Within 14 days of receiving an application for consent under this Schedule, the appropriate Ministers shall invite the relevant planning authority to make representations and shall not make any decision about the application until—

(a) they have received representations from the authority about it,

(b) they have been informed by the authority that it does not wish to make any representations about it, or

(c) 28 days have elapsed since the date of the invitation.

(2) An invitation under sub-paragraph (1) above shall specify the time limit for making representations.
(3) For the purposes of this paragraph, the relevant planning authority is—

(a) in the case of a line in Greater London, the local planning authority, and

(b) in the case of a line in Essex or Kent, the district planning authority.

7.—(1) If the appropriate Ministers consider that an application for consent under this Schedule relates to matters which may affect—

(a) nature conservation,

(b) the conservation of the natural beauty or amenity of the countryside, or

(c) a site of archaeological or historic interest,

they shall, within 14 days of receiving the application, also invite the appropriate body or bodies to make representations.

509
(2) Where under sub-paragraph (1) above the appropriate Ministers have invited a body to make representations about an application for consent under this Schedule, they shall not make any decision about the application until—

(a) they have received representations from the body about the request,

(b) they have been informed by the body that it does not wish to make any representations about the request, or

(c) 14 days have elapsed since the date of the invitation.

(3) An invitation under sub-paragraph (1) above shall specify the time limit for making representations.
(4) For the purposes of this paragraph, the following are appropriate bodies in relation to the following matters—

Matter

Body

Nature conservation.

The Nature Conservancy Council for England.

Conservation of the natural beauty or amenity of the countryside.

The Countryside Commission.

Sites of archaeological or historic interest.

The Historic Buildings and Monuments Commission for England.

Grant of consent
8.—(1) This paragraph applies to an application for consent under this Schedule by the nominated undertaker.
(2) An application to which this paragraph applies may only be refused—

(a) to the extent that it relates to exercise of the power conferred by paragraph 3(1) of Schedule 2 to this Act. on the ground that the electric line ought to, and could reasonably, be installed elsewhere within the limits specified, in relation to the diversion concerned, in the third column of the table in paragraph 3(1) of Schedule 2 to this Act, and

(b) to the extent that it does not relate to exercise of that power, on the ground that the electric line ought to, and could reasonably, be installed elsewhere within the limits of deviation for the scheduled works or within the limits of land to be acquired or used.

9. A consent under this Schedule may include such conditions (including conditions as to the ownership and operation of the electric line to which it relates) as appear to the appropriate Ministers to be appropriate.
Variation and revocation of consent
10.—(1) A consent under this Schedule may be varied or revoked by the Secretary of State at any time after the end of such period as may be specified in the consent.
(2) The period which may be specified under sub-paragraph (1) above shall not be less than 10 years from the date of installation of the electric line to which the consent relates.
Duration of consent
11. Subject to paragraph 10 above, a consent under this Schedule shall continue in force for such period as may be specified in or determined by or under the consent.
Anticipatory applications
12.—(1) This paragraph applies where—

(a) an application to the appropriate Ministers has been made in anticipation of the coming into force of this Schedule,

(b) the application was made on or after 31st October 1996, and

(c) the person by, or on whose behalf, the application was made—

(i) is specified under section 32(1) above for purposes consisting of or including the construction of any works,

510

(ii) is a member of the same group as a person who is so specified, or

(iii) is the holder of a licence under section 6 of the Electricity Act 1989.

(2) In that case—

(a) the application,

(b) any notice of the application published by the applicant.

(c) any objections to the application made in response to any such notice,

(d) any invitation by the appropriate Ministers to make representations about the application, and

(e) any representations about the application, or statement about the wish to make representations about it, made in response to any such invitation,

shall have effect as if this Schedule had been in force at all material times.
(3) In sub-paragraph (1)(c)(ii) above, "group" means a body corporate and all other bodies corporate which are its subsidiaries within the meaning of the Companies Act 1985.
Interpretation
13. In this Schedule, references to the appropriate Ministers are to the Secretary of State for Trade and Industry and the Secretary of State for Transport acting jointly.").
The noble Viscount said: I beg to move Amendment No. 37. This was spoken to in the group with Amendment No. 23.
On Question, amendment agreed to.
Schedule 13 [Protective provisions]:
Viscount Goschen Viscount Goschen moved Amendment No. 38:
Page 206, line 49, after ("shall") insert ("(except in the case of works of repair or renewal required in an emergency)").
The noble Viscount said: In moving Amendment No. 38, I shall speak at the same time to Amendment No. 39. These are detailed amendments to the provisions of the Bill that provide for the protection of the various utilities affected by the CTRL. The first is a concession agreed with the utilities last week; the second is an amendment consequential on the first. I beg to move.
On Question, amendment agreed to.
Viscount Goschen Viscount Goschen moved Amendment No. 39:
Page 206, line 52, leave out ("such work") and insert ("work in respect of which the undertakers are subject to an obligation under sub-paragraph (1) above").
On Question amendment agreed to.
On Question, Whether Schedule 13 shall be agreed to?
Lord Ampthill: With the leave of the Committee, as this is the last matter to be debated, if it is to be debated, perhaps I may be allowed to say thank you on behalf of the Select Committee for the extremely kind remarks made at the beginning of this afternoon's proceedings. I wished to rise to my feet to say that at that time, but the Chairman of Committees moved the proceedings with such speed that it was impossible to do so.
I am very grateful not only for the generous remarks that were made about the committee and its work—and the gross exaggerations which were personal to myself.

511
Perhaps I may also say how much I enjoyed this afternoon's proceedings in which matters have been looked at which needed to be looked at. I look forward to the next stages of the Bill when no doubt we shall hear further from farmers and probably from English Heritage. Thank you so much.
Schedule 13, as amended, agreed to.
House resumed: Bill reported with amendments.

Open-Ended Investment Companies (Investment Companies with Variable Capital) Regulations 1996
7.31 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish) rose to move, That the draft regulations laid before the House on 17th July be approved [28th Report from the Joint Committee—Session 1995–96].
The noble Lord said: My Lords, these regulations are being introduced under the European Communities Act 1972 to provide for the establishment in Great Britain of a new type of body corporate falling within the scope of an EU directive. Separate regulations will be introduced to enable the formation of open-ended investment companies in Northern Ireland.
The EU directive in this case is the 1985 directive co-ordinating the provisions relating to undertakings for collective investment in transferable securities, usually known as the UCITS directive. It may assist noble Lords if I explain briefly its purpose and effect. It is a single market directive for schemes (known as collective investment schemes) in which investors' money is pooled and invested in a way which spreads risk. Although the directive provides that schemes may take the form of open-ended investment companies, the only UK-based schemes able to take advantage of the marketing passport so far have been authorised unit trust schemes. This is because there is currently no provision in UK law for open-ended investment companies.
Much business has been lost to Luxembourg and Dublin because of difficulties of marketing unit trusts offshore. One of the main reasons for the regulations before us this evening is to enable British investment companies to catch up with their offshore competitors by enabling them to compete on a level playing field with the rest of Europe.
There has been a long and thorough period of consultation about these regulations for open-ended investment companies. I hope that your Lordships will forgive me if I refer to them from now on by the rather inelegant title of OEICs—not in the usual meaning of "oiks" but with a different meaning. It may not be particularly elegant but it is a good deal easier to say than repeating the long handled version every time I—and all of us—have to mention them this evening.
The Treasury first consulted with policy proposals in 1994 and followed this with further consultations about draft regulations in 1995. The investment fund industry has responded most constructively with comments and
512
the Government are most grateful for its thorough and careful consideration of the issues. A number of adjustments to the original proposals have been made to reflect messages from those consultations. I will mention some of those in the course of my speech today.
The regulations for OEICs establish the main elements of a separate corporate code for the new type of investment company. These regulations are the first part of a package of measures to allow the formation of OEICs in Great Britain. OEICs will not be formed under the Companies Acts because the Government do not consider this traditional route to be appropriate for what will be regulated collective investment schemes. However, a number of familiar concepts of company law are contained in the OEICs code, blended together with other features from unit trusts.
Like the authorised unit trust, the OEIC will be authorised and regulated by the Securities and Investments Board (or SIB for short) under powers granted to it in the European Communities Act regulations. These powers are similar to those in the Financial Services Act 1986 under which SIB regulates unit trusts. SIB regulations for OEICs will be the second part of the package of measures I have mentioned and will supplement the ECA regulations to complete the code of OEICs. A near final draft of SIB's regulations was published for consultation on 22nd October.
The third part of the package will be tax regulations to be introduced shortly by the Inland Revenue. The tax regime for OEICs will be broadly similar to that for authorised unit trusts. The tax regulations will also provide some relief from stamp duty and stamp duty reserve tax for authorised unit trusts which convert to OEICs. In addition, the Government have already announced that the next Finance Bill will introduce relief from stamp duty for other mergers of authorised unit trusts for a period of some two years.
So what is an open-ended investment company? It is in fact exactly what its full title suggests. It is a type of company whose business is investment in securities such as shares of other companies. It will issue shares to its investors and its capital may go up or down as shares are issued or cancelled. Hence the "open-ended" in the title.
The assets of an OEIC—the shares which its owns—will be held by a depositary which must be authorised under the FSA. The depositary plays a key role, similar to that of the unit trust trustee, and must be legally independent of the directors of the OEIC. That independence requirement is an important feature of investor protection and reflects a clear message from virtually the whole of the investment fund industry during the consultations.
I turn briefly to the corporate structure of the OEIC which has been the subject of some debate. Each OEIC will have a board which may consist of a sole authorised corporate director or a number of directors. Promoters of OEICs will therefore have a choice. This important element of flexibility was introduced following consultation. The Government believe that an OEIC with a sole corporate director can be effective, just like the unit trust with its fund manager. At the same time,

513
many OEICs and indeed many investors may see advantages in a board with a number of directors, some of whom might be non-executives. Where a board has more than one director, SIB regulations will require one to be an authorised corporate director.
I have mentioned the element of flexibility in the regulations. This is balanced by the robust framework of protection for investors within which OEICs must operate. All the activities of the OEIC will be supervised by the regulators and the OEIC itself and its key players must be authorised under the FSA. It is unfortunately the case that no system of regulation can entirely rule out the possibility of fraud or mismanagement, but it is important to set high standards of protection for investors. That is what the Government propose for OEICs, as is already the case for authorised unit trusts.
I hope that my remarks have given your Lordships an indication of the main features of the OEIC. It will be a modern, flexible and transparent investment product, and it will be regulated.
Investors in this country will find a new product which is simple to understand, with key features disclosed more clearly than ever before. And they will have an opportunity to widen their ownership of shares without the burden of managing a diverse portfolio. Its corporate form will make it attractive to overseas investors too.
Promoters will benefit from the additional flexibility which is possible when backed by full and clear disclosure. Costs generally are likely to be more or less neutral when compared with unit trusts and there may be some economies of scale from using an umbrella structure.
The Government have been careful throughout to maintain a balance between flexibility and a high standard of protection for investors. These regulations for OEICs introduce a new and forward-looking stimulus to collective investment schemes in this country, and I believe that they will enhance the City of London's reputation as a centre for excellence in financial services. I commend them to your Lordships. I beg to move.
Moved, That the draft regulations laid before the House on 17th July be approved [28th Report from the Joint Committee—Session 1995–96].—(Lord Mackay of Ardbrecknish.)
7.40 p.m.
Lord Eatwell: My Lords, I am grateful to the noble Lord, Lord Mackay of Ardbrecknish, for introducing this complex piece of legislation so clearly. As I am going to make some critical remarks, I should make clear at the beginning that the Labour Party is supportive of the introduction of open-ended investment companies as a flexible investment vehicle which will not only increase investment choice but also enable the British investment industry to compete more effectively with other investment centres in the European economic area, notably Dublin and Luxembourg.
514
While I welcome the intention to introduce open-ended investment companies, I am not content with the manner in which the legislation is presented to Parliament, nor indeed with some of the content of the regulations in the order. I am also disturbed to hear this evening that we have only part of the legislation with respect to open-ended companies before us. A package of SIB measures has just been published and we are asked this evening to approve a regulation which has fiscal implications when the Inland Revenue regulations have not yet been published. That is not the right way to proceed.
Before moving on to detail, let me reflect for a moment on the environment in which the legislation is being introduced; namely, at a time when we are all acutely aware of the problems that are being encountered in the unit trust business of Morgan Grenfell. Those problems raised serious questions about the conduct and regulation of collective investment institutions. Noble Lords will be aware that if it were not the case that the financial strength of Deutschebank stood behind Morgan Grenfell and that Deutschebank has been prepared to cover potential losses in the Morgan Grenfell business, then the individual purchasers of trust units would have suffered substantial losses.
In those circumstances, before we have all the facts of the Morgan Grenfell case before us, it seems unwise—to say the least—to introduce an entirely new form of retail product by means of an order. While it is true that there has been extensive consultation on this matter, that consultation took place prior to the Morgan Grenfell case and could not have taken that case into account.
The Association of Unit Trusts & Investment Funds, in a briefing prepared for this debate, argued that the problems at Morgan Grenfell,
"seem to have related more to controls and the application of regulations rather than to the product regulations themselves".
That may be so; we do not know as yet. But, if it is so, it raises serious questions in relation to some of the regulations in this order as they apply to open-ended investment companies. For example, can the Minister explain why, oddly, in these regulations—Regulation 10(4)—the company must have at least one director? The Minister referred to this point. Why only one?
I accept that in the case of there being only one director Regulation 10(6) states that the director must be a body corporate. Can the Minister explain why the usual Companies Act condition that there should be at least two directors does not apply in this case? The Minister referred in his remarks to the blending of unit trust and company legislation. Surely in this regard the blend has turned distinctly sour. It is an illegitimate extrapolation of trust law.
As I said, under the Companies Act there must be at least two directors of a company. The reason for that requirement is to protect the shareholders against impropriety. Surely in the circumstances of an open-ended investment company the same requirement should apply. It is worth noting that under the Financial Services Act—Clause 77—a unit trust scheme must have a manager and a trustee, who shall be different

515
persons. Why are the conditions in this regulation so different? Why is a similar statement to that in unit trust law not made here?
Furthermore, given that the Morgan Grenfell case raised serious questions of controls within financial companies, why is there no requirement that there should be non-executive directors? The legislation seems to be going in exactly the opposite direction from that which has become customary in Britain in recent years, when there has been an emphasis on the need for more non-executive directors to play a vital monitoring role. Is it not even more the case that there should be non-executive directors in a retail financial business where the care of public savings is involved?
In continuing the theme of responsible control, I should like to ask the Minister some questions in relation to the role of the depositary. Regulation 10(8)(d) states that the depositary must be an authorised person; but it nowhere defines who is an authorised person. Can the Minister tell us? More importantly, Regulation 5(2)(b) states that nothing shall prevent the depositary from,
"entrusting to a third party all or some of the assets in its safekeeping; or … authorising the third party to entrust all or some of those assets to other specified persons".
Are those third parties or even fourth parties authorised persons in terms of the regulation? If so, why does it not say so? Is the Minister content that by permitting these depositary chains, the consumer is being adequately protected by the regulations? Will the widows and orphans investing in these schemes know who is the depositary who is holding their assets? Will SIB know as the third and fourth elements in the chain are passed on?
Finally, I turn to that part of the regulation which is at one and the same time innovative and, I believe, most disturbing. The Minister did not mention it in his introduction. It was the dog that did not bark. I have given the Minister notice of my worries on this point. I refer to Regulation 42, which permits the introduction of bearer shares; that is, shares, the ownership of which is defined purely by their being in the possession of the bearer and of whose ownership, as Schedule 4, Clause 1(2) makes clear, no record is kept in the share register.
I am aware that bearer shares are common in many European countries and are not unknown in this country, particularly in some pre-war legislation. But their use was discontinued in this country, not least because they were a potent means of tax evasion. Introducing them into the heart of the financial services industry is contrary to the entire thrust of British companies and financial legislation for the past 50 years. It introduces a clear and present danger to the integrity both of financial institutions involved and of the fiscal system. The Minster should reflect on some of the dangers.
The ability to issue bearer shares means that the situation can arise in which no one will know who owns the company in which they are investing and will have no means of finding out. A major proportion of the shares might be owned by Mr. Nick Leeson or by an investor of the integrity of Mr. Robert Maxwell so far as anybody would know. Is the Minister content with
516
that? Equally, it is not clear from the regulations how the company law with respect to mergers and takeovers will apply in a situation where the actual holders of shares are not on the register. If no one knows who owns the shares, how can the usual conditions of proportions and holdings in takeover regulation possibly operate? Will the Minister explain how that is to be done?
On a technical matter, in Regulation 42 it is stated that a company may issue bearer shares,
"evidenced by a share certificate, or by any other documentary evidence of title for which provision is made in the instrument of incorporation".
Will the Minister explain what is meant by that? What do the Government have in mind? Will the Minister also tell the House what steps have been taken by the Inland Revenue to ensure that bearer shares do not become a means of tax evasion? As I said earlier, it was for that reason that their use in Britain was discontinued. Why are the Government willing to introduce that well-known evasion device now?
The introduction of bearer shares into British financial institutions, particularly retail financial institutions, is a grave step. It is entirely inappropriate that this remarkable change to British financial custom and practice should be introduced in an order. This House has had no opportunity to discuss the full implications of the innovation in Committee or to introduce amendments. I ask the Minister seriously to consider whether he should proceed this evening with an order containing Regulation 42.
This is an extraordinary statutory instrument. It contains 75 clauses or regulations and eight associated schedules. The Minister told us this evening that there are two more batches of legislation to come. This is not merely amending or developing financial legislation which has been considered in detail on previous occasions—the Minister and I have dealt with such orders on many occasions; orders which amend trivial or limited parts of financial legislation—this is something completely different.
This order introduces into British financial law an entirely new sort of investment vehicle making substantial innovations in the form in which collective investment companies are organised in this country. More seriously, it introduces bearer shares into British financial practice, from which they had been banished. In other words, this is a Bill masquerading as an order and it is entirely improper that it should be introduced in this manner. I am particularly disturbed, given our support for the overall form of open-ended investment institutions, that the Government have decided to proceed in this way. I would once again ask the Minister to consider whether this important legislation should proceed this evening in this form.
7.50 p.m.
Lord Alexander of Weedon: My Lords, I rise to give a welcome to these regulations and I hope very much that my noble friend the Minister will say this evening that the regulations will go ahead. I speak in two capacities and therefore probably disclose two interests: first, in my capacity as chairman of NatWest, which has

517
an interest as a financial institution and will potentially be able to market OEICs, and, secondly, as deputy chairman of the Securities and Investments Board. I should like to say just a few words in both capacities.
Speaking as a banker, I greatly welcome the new opportunity which the introduction of OEICs and these regulations will provide to our financial services industry. Investment management is at the moment an area of competitive advantage for the United Kingdom. We need to capitalise on City expertise. Perhaps I may give our own position purely by way of example. In the NatWest group we have a unit trust management company operating trust funds under management. In the shape of Coutts, we also have one of the small number of authorised unit trust trustees acting as a custodian for trusts. With these companies at the moment we can manage, market and protect only unit trusts and it may well be we will wish to develop new vehicles of the kind envisaged in the regulations. If we do decide to go ahead, that will be because of the additional flexibility, simplicity and competitiveness which these new vehicles will offer if the regulations are approved. I say that by way of example because I know that other investment houses will be considering exactly the same opportunity. I very much welcome the fact that the noble Lord, Lord Eatwell, has indicated that the Labour Party is supportive of the principle of open-ended investment companies.
Perhaps I may be permitted to add a few words in my other capacity as a regulator. The Securities and Investments Board has been working closely with the Treasury on open-ended investment companies for some three years now; indeed, during the whole period of my association with the SIB. We are fully satisfied that the project should go ahead as presently designed. We have taken a great deal of care to ensure an equivalent level of investor protection to that available to investors in unit trusts. We have sought to provide a flexible vehicle for the benefit of the industry and investors alike, simplifying the new product wherever possible.
One example of this simplicity may suffice. These new vehicles will be priced on a single pricing basis with the preliminary charge shown separately. This should make for much greater transparency for those buying and selling the shares and should enable some worthwhile economies in the administration of the investment vehicle.
I shall obviously leave my noble friend the Minister to respond on the issue of bearer shares but my understanding is that bearer shares are very popular in continental Europe. It was felt that without them United Kingdom competitors for that marketplace would be at a disadvantage. Their use in many European states is well-established, but we do not in practice expect them to be used much in the domestic market. I also understand that concerns about potential money laundering were carefully addressed during consultation, but there was a consciousness of the protection provided by the money laundering regulations which are in place.
So, wearing my two hats, I think it is important that the United Kingdom should take advantage of the opportunity to expand our own stable of collective
518
investment vehicles to include the corporate vehicle that has been so successful in Luxembourg, Dublin and the Channel Islands. And although there was an invitation from the noble Lord, Lord Eatwell, to say, "OEICs, OEICs, go away, come again another day", I hope very much that that will not be acceded to. I agree with him that every Member of your Lordships' House will be well aware of the problems that have recently come to light in the Morgan Grenfell case.
Obviously it will come as no surprise that industry and regulators are both giving intensive thoughts to the lessons to be learnt from the case. The SIB, for instance, is urgently reviewing the limits on investment in unlisted securities, on the valuation of unlisted securities and the relevant responsibilities of the manager and trustee, including obligations to report to the regulator. Our preliminary conclusion—I underline the word "preliminary"—is that no major changes are required to the product regulations for unit trusts. But if some changes are to be made in the areas I have mentioned, I understand that those amendments would be carried over to SIB's regulations for OEICs at more or less the same time. Any additional protection needed for unit trusts generally can be extended to OEICs. So I hope we will not postpone the envisaged arrival of the new vehicle which has an important future in the United Kingdom. I believe that these regulations provide us with a solid start. If improvements can be made later, we should all welcome that. But there is no need to wait for that to happen.
As has been indicated from both sides of the House, the City thrives on innovation. I believe it will suffer if we withhold or postpone tonight our approval to this welcome new vehicle, however difficult we find it to come to terms with the name.
7.56 p.m.
Lord Mackay of Ardbrecknish: My Lords, I am grateful to my friend Lord Alexander and to the noble Lord, Lord Eatwell, for their welcome of the regulations and of the advent of the OEIC, despite its name. I am particularly grateful to my noble friend Lord Alexander, who, with his wide background of knowledge in the City and as a regulator, was able, I hope, to allay some of the fears of the noble Lord, Lord Eatwell.
Perhaps I may take one at a time the four main points which the noble Lord raised with me. He asked me about Morgan Grenfell and suggested that we should hold our hand until we had discovered a little more about what had led up to that and whether there were any lessons to be learnt. I am sure the noble Lord will understand, as will the House, that, while IMRO's investigations continue, it is impossible for me to say anything of the details of those problems. But what I can say is that, as a result of IMRO's monitoring of unit trusts run by other fund management firms, this was an isolated incident. The recent problems are unusual and perhaps even unique and they have undoubtedly caused other firms offering unit trusts to the public to consider carefully whether their own internal controls and management procedures are adequate. As we have just heard, SIB is considering whether there might be value in adjusting its regulation in certain technical areas. But,

519
conscious of the costs and dangers of over-regulation, SIB is planning to consult about a number of possible minor changes to its unit trust regulations. Against that background we feel that we can be comfortable with using unit trusts as the model for investor protection standards for the OEIC.
Yesterday there was a thoughtful speech by the chairman of SIB outlining a programme of work on the responsibilities of senior managers of investment firms in order to underline their role in delivering proper compliance with the regulations. I am sure your Lordships would be interested in reading what the chairman of SIB said. SIB will report early next year.
Your Lordships will also notice, and the Government welcome, the AUTIF's recent proposals for voluntary self-restraint on the holding of pre-listed securities, as mentioned by my noble friend Lord Alexander. That is a good sign. It shows us that the fund management industry is moving to reassure investors who may find it worrying that all of a collective investment scheme can be invested in securities which are expected to list within a year. I hope that AUTIF members will respond positively.
The noble Lord, Lord Eatwell, was concerned about the timetable. I assure him that the regulations do not come into force until 6th January, by which time SIB regulations which are now out will have been fully examined through consultation, and also the tax regulations, which I have mentioned will be available. The tax regulations are subject to negative resolution. So without being too hopeful that the noble Lord will respond, he will always have the opportunity to discuss them if he wishes when they come before us.
The noble Lord asked me why only one director and not two. I am sure that the noble Lord appreciates that OEICs may have non-executive directors if they wish. They may have more than one director, but it is not mandatory. If there is to be a sole director then that director has to be a corporate director. He must be an authorised person and he will be responsible for all aspects of the management of the company. If there is more than one director then SIB' s regulations will require all OEICs to have one corporate director and that must be an authorised person. The SIB regulations set out the responsibilities of that authorised corporate director. Some of these are the responsibilities of the authorised corporate director alone. In such cases the other directors are required to exercise reasonable care to satisfy themselves that the ACD undertakes those functions in a competent manner. In other areas SIB regulations require the ACD to act with the agreement of the board. The activities for which the ACD alone is responsible include investment decisions, pricing and ensuring compliance with ECA regulations, which impose obligations on the company. I hope that explains the position.
The noble Lord asked me what were the responsibilities and duties of an OEIC depositary. The SIB regulations set out the details. The assets of the OEIC must be entrusted to the depository, which is in fact a UCITS term for safekeeping. The depositary will be responsible for ensuring that the OEIC complies with
520
SIB regulations on pricing, investment and borrowing powers and income allocation. The depositary also has a duty of oversight over the authorised corporate director to ensure compliance with the regulations which relate to the protection of the investors. The depositary of an OEIC will count as an investment business and a depositary will have to be authorised under the Financial Services Act. When the ECA regulations are made, and before they come into force on 6th January, the Treasury will lay an order extending the scope of the Financial Services Act to add the activity of the depositary of an OEIC to those activities which require authorisation.
I am grateful to the noble Lord, Lord Eatwell, for giving me notice that he would ask about bearer shares. Bearer shares are very popular in continental Europe. It was felt that, without them, UK competitors would be at a disadvantage. Their use in many European states is well established and is in fact the norm more often than not.
Unit trusts may issue bearer units in the United Kingdom now and the Government wish to allow parity between OEICs and unit trusts where possible. In practice, bearer units are very rarely used and we do not expect bearer shares in OEICs to be much used in the domestic market either.
During the consultation there were indeed concerns about potential tax evasion, as raised by the noble Lord, Lord Eatwell. Payment of interest distributions without deduction of tax is already permitted for authorised unit trusts provided investors can be clearly identified as satisfying the relevant residence requirements. The same rules will apply to investors in OEICs.
I do not believe that it is actually a question of who owns the OEICs because the bearer shareholders will be people who will be other shareholders, the same as any other person who decides to take out shares in an OEIC. I therefore do not believe that the danger is as considerable as the noble Lord, Lord Eatwell, suggested.
He asked how bearer shareholders are to be found in the event of a takeover or merger. I am sure that people who become bearer shareholders know that they have to keep an eye on advertisements and so on addressed to bearer shareholders. That is how they pick up that information currently.
On a more general point, the noble Lord, Lord Eatwell, drew our attention quite rightly to the fact that this is a considerable body of regulation. In choosing the secondary legislation route we were especially conscious of the need for full consultation about the proposals. There were two rounds of very detailed public consultation in 1994 and 1995. That gave the investment industry an opportunity to comment on every aspect of the proposed regulations. We listened carefully to the views expressed and we made certain adjustments to the proposed structure in the light of advice from the industry.
I hope that I have answered the main points raised by the noble Lord. I commend the regulations to the House.
On Question, Motion agreed to.
House adjourned at six minutes past eight o'clock.