Sitting of 28 February 2005

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

The Lord Chancellor: Leave of Absence
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, before business begins, may I take the opportunity to inform the House that I am to undertake a ministerial visit to Bristol on Tuesday 1 March? Accordingly, I trust that the House will grant me leave of absence.

Road Safety: Seat Belts
2.35 p.m.
Lord Janner of Braunstoneasked Her Majesty's Government:
In the last year for which figures are available, how many and what percentage of people killed or injured in road traffic accidents involving passenger vehicles in the United Kingdom were not wearing seat belts.
Lord Davies of Oldham: My Lords, road collision reports produced by the police do not record seat-belt use. However, we estimate that some 4,900 people, about 28 per cent of those killed or seriously injured in cars or vans in Great Britain during 2003, were not wearing seat belts. Those estimates are calculated using observed seat-belt wearing rates and, therefore, are not available for larger vehicles.
Lord Janner of Braunstone: My Lords, does my noble friend agree that, if we are to deal with deaths on
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roads, it is vital to have precise statistics? The Minister has just told the House that there are none. Surely we should know how many and what percentage of people on our roads do not wear seat belts, whether in the front or rear of vehicles, and how many and what percentage of drivers and front-seat passengers have been killed or injured in recent years by impact from unbelted rear-seat passengers. We should know the facts so that we can take the required action.
Lord Davies of Oldham: My Lords, as I indicated in my earlier Answer, there are some difficulties about acquiring such figures as the police are not necessarily the first on the scene of an accident, so there is no accurate evidence. The police do not record whether seat belts had been worn and one cannot always tell. My noble friend is absolutely right that the wearing of seat belts saves lives. As many as 15 front-seat occupants were killed last year by unbelted rear-seat passengers colliding with them. It is important that rear seat belts are worn, but, as I have mentioned to my noble friend, there is a difficulty about statistics.
Baroness Gardner of Parkes: My Lords, is the Minister aware that many more people now suffer injuries, particularly facial and dental injuries. but that many of those people would have died if they had not been wearing seat belts? That rather distorts the injury figures.
Lord Davies of Oldham: My Lords, that is certainly the case. People now survive accidents in which they would have died had they not been wearing seat belts. We have police estimates of seat-belt usage and we know that there is a very high degree of compliance by front-seat passengers, but the problem is that only about two—thirds of rear-seat passengers wear seat belts, with the resulting consequence of injury and death.
Lord Bradshaw: My Lords, does the Minister agree that the Government give mixed messages as, on the one hand, they say that seat belts must be used and that

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mobile phones must not be used but, on the other hand, they somehow give the impression that the penalties for such offences will not be enforced too strongly? Will the Minister send out a message to chief constables that such offences are serious and that the penalties will be enforced? Will he pay attention to the fact that traffic police, who should enforce them, are consistently reduced in number and effectiveness?
Lord Davies of Oldham: My Lords, the Government spend £1.5 million a year on publicising campaigns on the wearing of seat belts. Senior police officers are only too well aware of the Government's drive towards improving seat-belt usage. I do not believe that the Government send out mixed messages, but the House will recognise that compliance with certain aspects of motoring law—drink driving is the most obvious example—is bound to be taken much more seriously by the police than is seat-belt compliance. Nevertheless, quite clearly the Government want to encourage the use of seat belts as much as possible.
Lord Monson: My Lords, is the Minister aware that New Hampshire, the only American state without some form of compulsory seat-belt legislation, has a road traffic fatality rate that is 24 per cent below the national average?
Lord Davies of Oldham: My Lords, New Hampshire is an atypical American state in so many respects that I am not at all fazed by the fact that it is exceptional in that respect. We know from our own evidence that seat-belt wearing reduces injuries in accidents. For a number of years it has been the law of the land and we have seen the effect in the consequences of road accidents. That is the basis on which we seek as much compliance as possible.
Lord Davies of Coity: My Lords, I agree with my noble friend that the wearing of seat belts is not recorded as it should be. Can he advise the House, and particularly me, of the number of accidents resulting in injury and death that occur involving public services' vehicles, such as buses, taxis, ambulances, fire engines and more importantly police cars?
Lord Davies of Oldham: My Lords, I do not have that range of figures. But I think that my noble friend has lighted upon another important aspect of compliance, which is that it is not mandatory for coaches at present. Nevertheless, the use of seat belts in coaches helps to reduce accidents. We are eager to bring that to the attention of all people who use coaches.
Baroness Trumpington: My Lords, what is the betting that nine out of 10 noble Lords in this Chamber right this minute do not wear seat belts in taxis, although they are offered them?
Lord Davies of Oldham: My Lords, the noble Baroness is probably offering fairly short odds. Taxies provide seat belts. As the distance from the passenger seat to the back
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of the driver's compartment is so extensive, accidents in taxies can be very serious indeed when they occur. The reason they are relatively low in overall statistics is because taxi drivers are professionals and, as the House will recognise, are excellent drivers.
Lord Dubs: My Lords, I accept the difficulty of collecting statistics as regards the wearing of seat belts by people involved in fatal or serious accidents. Would it not be worth going to a little trouble and expense to try to get such information because it would underpin significantly the Government's efforts to encourage the wearing of seat belts? If people know the likelihood of surviving an accident with a seat belt compared to the consequences without one, surely that would help in furthering the Government's policy.
Lord Davies of Oldham: My Lords, we publish estimates and we are aware through surveys of the compliance with regard to seat-belt usage. So we can say with some degree of confidence that 94 per cent of drivers and front-seat passengers wear seat belts; 93 per cent of children are restrained when sitting in the back; but that only 65 per cent of adults sitting in the back wear them.
My noble friend is right. If we were able to establish fully accurate statistics in correlation with accidents, it would strengthen our case. Let me assure the House that it would not in any way emphasise more the Government's commitment to the wearing of seat belts because we are already involved in substantial publicity drives on these issues.

Fuel Poverty
2.45 p.m.
Baroness Miller of Chilthorne Domer: My Lords, in the absence of my noble friend Lord Ezra and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what has been the effect of rising energy prices on the level of fuel poverty.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, analysis of the effects of changes in energy prices and of incomes suggests that the number of vulnerable households in fuel poverty could rise overall by up to 200,000 in England between 2003 and 2005. That estimate does not take account of improvements in the energy efficiency of the housing stock and should be seen in the context of the substantial reduction between 1996 and 2002 when the number of vulnerable fuel-poor households in England fell by 1.8 million.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply, although his figures seem to be slightly lower than those I have estimated on the index devised by the DTI. On that index, a total of nearly 3 million people would be in fuel poverty by the end of 2005 if prices continue to rise in the estimated way; that is, by about 10 per cent on 2003 prices.
In those circumstances, should not additional measures be taken through the Warm Front programme and in other ways to offset this substantial increase in fuel poverty, bearing in mind that the UK still suffers from the highest excess mortality rate in western Europe due to cold-related illnesses?
Lord Whitty: My Lords, any difference in figures is not a difference of opinion between ourselves and the DTI: we are at one on this matter. There is a difference between UK and England figures. I was quoting the England figures for vulnerable households.
As to doing more, the noble Baroness is absolutely right: we need to do more and more has been set in train. The Warm Front programme is being substantially expanded with additional resources allocated through this spending round by the Treasury. We can now provide central heating for all eligible households. We have increased the level of the grant and better targeted the early activity of Warm Front.
On the income side of the equation, the providers of Warm Front are also engaging in benefit checks. There is, as the noble Baroness is aware, a higher target for the energy efficiency commitment, which also has a benefit for fuel poverty.
Lord Skelmersdale: My Lords, does the Minister accept that the poorest pensioners are the most likely to suffer from fuel poverty? Well over 1.5 million pensioners do not claim the pension credit to which they are entitled. What are the Government going to do about that?
Lord Whitty: My Lords, as I have just said, the providers of Warm Front will supplement the efforts of the DWP to identify and improve the take-up of benefit.
The noble Lord is correct to say that pensioners are among the most vulnerable, although other households are also vulnerable in this respect. The gearing of Warm Front's activity and that under the energy efficiency commitment and the improvements in social housing take account of the fact that pensioners are more likely to be found in the categories identified in those programmes.
Lord Corbett of Castle Vale: My Lords, will my noble friend remind the House which party put VAT on fuel? Will he also explain why, when there are adequate supplies of gas—evidence that some supplies are being held back—the price has rocketed to an extent that makes BP's and other big companies' profits look obscene?
Lord Whitty: My Lords, the economists will give us a number of reasons for the rise in gas prices, including the
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slightly odd link to oil prices. The fact that we are moving from being a net exporter to a net importer of gas means that there is some pressure in the short term on gas prices, although the belief is that gas prices will come down in subsequent years.
With regard to my noble friend's first question, the Conservative Party imposed VAT on fuel. There was a point—perhaps noble Lords opposite would like to clarify this—when the Conservative Party was in favour of abolishing the Warm Front programme, which has done so much to reduce fuel poverty among vulnerable households.
Lord Maclennan of Rogart: My Lords, given the number of wind farms in Scotland, with higher generating prices reflected in higher tariffs, how do the Government propose to protect the Scots from fuel poverty?
Lord Whitty: My Lords, the Scots have a strong and active programme for tackling fuel poverty themselves. Fuel poverty measures are a devolved matter. As for the noble Lord's question on wind farms, the Government are clearly committed to achieving 10 per cent of our energy generated by renewable energies of all sorts by 2010. Wind farms in Scotland and elsewhere will make a significant contribution towards that total and that is taken account of in our assessment of future energy prices.
Lord Barnett: My Lords—
Baroness Greengross: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, let us hear from the Cross Benches.
Baroness Greengross: My Lords, does the Minister concede that it is now time for us to have a national strategy to stop the dreadful number of cold-related deaths every winter? That strategy should measure the number of people who die and ensure that the targets are not set according to means but simply reflect the number of people who die each winter, along the lines of the French strategy set up when half the number of people who die each year in this country every year died as a result of the heat a couple of summers ago. The deaths are a disgrace and must be tackled as a matter of immediate concern.
Lord Whitty: My Lords, it is a matter of immediate concern and we have a strong, robust national strategy to eliminate fuel poverty entirely by 2016–18 and for vulnerable households by 2010 in England. There must be some sense of priority here. As I said, the Government have both increased resources for the Warm Front programme and doubled the commitment under the energy efficiency scheme. Together with action on social housing, that will improve the position of exactly those vulnerable households to which the noble Baroness, Lady Greengross, refers. Of course, she is well aware that there is already a strategy in place, which is being pursued vigorously by all departments involved and the industry.

Climate Change
2.52 p.m.
Lord Hunt of Chestertonasked Her Majesty's Government:
What practical conclusions they have drawn from the climate change conferences in Exeter and in Houston, Texas, and how these conclusions will influence their climate change policy and G8 diplomacy in 2005.
Lord Whitty: My Lords, both the Exeter and Houston conferences demonstrated a growing consensus of opinion on the science surrounding climate change. Both conferences highlighted the serious global risk expected as a result of climate change and the need to adapt to those changes and to reduce emissions to avoid dangerous climate change. Those results give further weight to our work in the G8 aiming to promote an international consensus on the need for further action.
Lord Hunt of Chesterton: My Lords, I thank my noble friend for that reply. What new, imaginative plans for the G8 countries are being proposed this year, from big business to householders, to reduce carbon emissions? Will best practice in the G8 countries be publicised? Will government and industry make more use of displays in shopping centres and museums of science and technology? In one museum in Florida, they have a Disasterville. How about us having a Climateville or Sustainville to show everyone what needs to be done?
Lord Whitty: My Lords, part of the output of various events taking place, including the Exeter conference and the meeting of environment and energy Ministers taking place later this month, will be to share best practice and the best means to educate and inform the public and business of the problem of climate change and what individuals can do about it. It is clear that there is a general level of awareness, but not sufficient change in behaviour in either commerce or households. Defra has just announced a £12 million package to improve education and information schemes for individuals so that each of us can better understand what we can do to help to tackle that problem.
Lord Livsey of Talgarth: My Lords, in the light of the Exeter and Houston conferences, can the Minister reassure the House that the UK's national allocation plan for a reduction in CO2 emissions has now been accepted by the European Commission? Has it been resubmitted?
Lord Whitty: My Lords, the noble Lord will know that the original plan was accepted by the Commission, but we have needed to revise that plan in the light of later information. There has been very misleading commentary on the Government's position in that respect. As I said in our debate on climate change last week, the Government have taken the latest figures—the
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best, most up-to-date information. The requirement to meet our targets, based on that information, although at a higher absolute level, is a bigger demand on industry than was our original plan and is considerably more ambitious than that of any other state in the European Union.
Lord Marlesford: My Lords, has any Minister studied the predictions of Mr Charles T Maxwell, who is, perhaps, the leading energy analyst in the United States, who believes that, taking everything into account, world oil production will peak between 2020 and 2025, by which time demand will have increased hugely, so there will be a great gap? Does the Minister recognise that that will just give the Government time to restart the nuclear programme, which would help to protect the poor in this country from rising energy prices and contribute to reduced CO2 production?
Lord Whitty: My Lords, Mr Maxwell's estimates are not universally accepted, but they suggest that if we continue to increase demand for fossil fuels, we will create a serious problem of climate change and begin to run out of fossil-based fuels and, in the interim, significantly increase their cost. That is why it is important that we consider all low-carbon technologies, including wind power, tidal power and wave power, as well as the nuclear option, which we have kept open, on the understanding—the next Question touches on this matter—that for nuclear power to play a major role in future, we will need to resolve the issue of radioactive waste.
Baroness Miller of Chilthorne Domer: My Lords, we have often talked in the House about the necessity of insulating our homes to save on heating bills, but what predictions has the department made about the increased use of air conditioning to cool domestic homes? I understand that that is estimated to grow by about 6 per cent a year for the next 10 years—which, as the Minister will know, comes to 60 per cent. That would eliminate many of the savings made by more efficient heating systems.
Lord Whitty: My Lords, there is and will be increased demand for cooling systems, but whether there will be a proportionate demand on fossil fuels depends on how they are sourced and run. It is important that energy efficiency and improvements in the use of renewables in sourcing that energy apply to air conditioning systems as much as to heating and other uses of energy.
Baroness Billingham: My Lords, do the Government have plans further to publicise the potential benefits of hybrid cars? Those benefits are enormous. Not only are those cars much more neutral in carbon consumption, they have tax breaks and, in London, do not incur the congestion charge. That is not widely known and the Government really ought to publicise it more fully.
Lord Whitty: My Lords, I am strongly in favour of all forms of low-carbon vehicles, including hybrid

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cars, which make a positive contribution. As my noble friend will know, from this September, all new cars will be graded according to the amount of carbon dioxide that they emit. The cleanest cars will get a dark green label and the absolutely nil-carbon cars gain various other exemptions, as my noble friend said, whereas the dirtiest and least fuel-efficient will get a red card. Following the improvements in consumer choice of white goods, we hope that consumers will also follow that guidance in their choice of car.
The Countess of Mar: My Lords, has the noble Lord ever looked across London at night and seen the millions of lights that are on in unoccupied buildings, which must also happen in almost every city in the world? Would it not be a good idea to have a campaign saying "If it is not in use or if you don't need it, switch it off"?
Lord Whitty: My Lords, yes. There are a number of companies and government departments attempting that, although it is not universal, as has been shown by our newspapers not long ago. I therefore urge all colleagues and all private sector owners of buildings to follow that. Failing that, I will consider the noble Countess as one of the wardens to go around saying, "Turn out that light".

Radioactive Waste Management
3 p.m.
Lord Jenkin of Rodingasked Her Majesty's Government:
When they will publish their response to the report of the House of Lords Select Committee on Science and Technology on Radioactive Waste Management (5th Report, Session 2003–04, HL Paper 200).
Lord Whitty: My Lords, the Government's response to the report of the House of Lords Select Committee on Science and Technology on Radioactive Waste Management was sent to the committee on 23 February. The response addresses specifically each of the Select Committee's conclusions, and I hope is in a manner that will be helpful and informative.
Lord Jenkin of Roding: My Lords, is the noble Lord aware that in rejecting the committee's strictures on the lack of expertise on the Committee on Radioactive Waste Management (COR WM), the Government's response, at paragraph 22, specifically refers to,
"members with long and distinguished careers in areas such as nuclear health and safety … and risk assessment".
Why, then, has one member, Dr Keith Baverstock, an expert on nuclear health and safety who was formerly at the World Health Organisation, been suspended by Ministers from the committee? Why has another member, Professor David Ball, an expert in risk assessment, decided to withdraw co-operation in sympathy? What is going on? Is there not a risk that
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COR WM, in which Ministers have invested so much political capital, is now coming to pieces in their hands?
Lord Whitty: My Lords, I do not think that the work of COR WM is coming to pieces. It is unfortunate that we have had to consider the position of Dr Baverstock. Ministers have jointly agreed to commission a review of Dr Baverstock's position in the light of representations received from the chair of CoR WM, Gordon MacKerron, and from Dr Baverstock. That review is being carried out now with an independent assessor. I hope that the noble Lord will understand that there is not much more that I can say on that.
My understanding is that Professor David Ball voluntarily suspended himself from the committee. The review is therefore in the process of being carried out. But CoR WM's work is going on and will meet its timetable.
Baroness Miller of Chilthorne Domer: My Lords, the Minister will know, because I have sent him a number of Written Questions on the subject which he has kindly answered, that there is still a great deal of nuclear waste—both spent plutonium and depleted uranium—and that, as yet, it is undecided whether it is waste or an asset. The Government have given me both answers; that is, sometimes it is an asset and sometimes it is waste. In order that committees such as this can effectively deal with the size of the waste mountain, is it not time far the Government finally to decide whether it is waste or an asset?
Lord Whitty: My Lords, it depends on how it is generated and for what it might subsequently be used. Therefore, there is not quite such a clear-cut answer to the noble Baroness's question, which I suspect she already knows. Certainly, the issue of how we deal with radioactive waste of all kinds and, in particular, high-level radioactive waste, which CoR WM is addressing, needs resolution. It needs resolution before we can take any longer-term decisions on the future of nuclear power.
Earl Attlee: My Lords, does the Minister think that solving the waste problem and new build should be concurrent or consecutive activities?
Lord Whitty: My Lords, setting us on the course to resolve the problem of radioactive waste is essential for any consideration of nuclear power's role in the future. Subsequent to that, questions of energy provision and the economics of nuclear power, as against other possible sources, would obviously bear on whether there was any new build in that area or others.
Lord Dixon-Smith: My Lords, does the noble Lord expect CoR WM to report on time, despite the present hiatus? Can the Minister also explain why we need that

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report before we can take any further decision relating to nuclear power when, to my shame, governments of all parties have prevaricated on this matter for 30 years? The nature of the problem has not changed in its essential essence, nor has the basic knowledge which is required to take a decision.
Lord Whitty: My Lords, there is not a hiatus in CoR WM's activity, as I said in response to the noble Lord, Lord Jenkin. The work is continuing and CoR WM will soon be reporting on its shortlist of options for dealing with radioactive waste, following which it will make its detailed recommendations. It was necessary for CoR WM to assess all feasible, and some not very feasible, options that were put to it and to consider how we deal with the issue in relation to public opinion, which, as the noble Lord will recognise, is a very delicate issue.
Lord Tombs: My Lords, is the noble Lord aware that there is widespread scepticism about CoR WM, evidenced in the Select Committee report, which will not be remedied by the situation described by the noble Lord, Lord Jenkin? Will the noble Lord undertake to publish the results of that inquiry in an effort to re-establish any degree of public confidence that may remain in the activity to which, as the noble Lord, Lord Jenkin, said, the Government have committed a great deal of their own political capital?
Lord Whitty: My Lords, the position of Dr Baverstock as one member of the committee does not in any way undermine the confidence in the totality of the committee. I will not commit myself to publishing the report of the assessor since it will involve some very personal issues, on which I am not sure that it would be sensible for a Minister to give such a commitment.
Lord Hunt of Chesterton: My Lords, CoR WM should be looking at the whole range of science and technology issues. Can the Minister comment on how much the scientific community is being involved? Some of the issues, for example, of connecting fusion and fission power and dealing with wastes are being considered in Russia and the United States. We have no such long-range and wide-ranging programmes in the UK, about which there is a great urgency for the Government to talk to their colleagues in the OST. Does the Minister agree?
Lord Whitty: My Lords, the Government keep in touch with all the developing technologies. The role of CoR WM relates specifically to what to do with radioactive waste, much of which exists already, as we have said earlier, irrespective of any further decision on nuclear power. As the noble Lord will know, we are in touch, through the various nuclear authorities, including the Nuclear Decommissioning Agency, with developments internationally and, at research level, with development internationally on fusion as well as current technologies.

Business of the House: Unstarred Question
3.7 p.m.
Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the following Unstarred Question be referred to a Grand Committee—
The Earl Attlee—To ask Her Majesty's Government whether, in order to reduce tax and duty evasion, H M Customs and Excise have determined the feasibility of requiring all heavy goods vehicles leaving Great Britain to do so with a nearly full tank of fuel.—(Baroness Amos.)
On Question, Motion agreed to.

International Organisations Bill [H.L.]
Read a third time.
Clause 1 [Commonwealth Secretariat]:
[Amendment not moved.]
An amendment (privilege) made.
Baroness Crawley: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass—(Baroness Crawley.)
Lord Pearson of Rannoch: My Lords, I trust that it is for the convenience of the House that my noble friend Lord Stoddart and I did not table any amendments at this Third Reading, which might have taken up quite a lot more of your Lordships' time than will the briefest of comments as the Bill leaves your Lordships' House.
In common, I suspect, with most people in this country who do not form part of the growing political and bureaucratic élite, which is taking over more control of our daily lives, I do not think that this Bill should pass.
I suppose that the Bill does one useful thing. By granting new and entirely unnecessary privileges and immunities to a swathe of international bodies and those who are fortunate enough to work for them, it at least makes us sit up and take notice of the wide range of bodies which already enjoy the special status of the new apparat. Let us hope that some good may come of that awareness.
However, I leave the Bill with the comment that the Government have not come near to justifying this extension of diplomatic immunity, designed for mutual protection between sovereign states, to a large number of bodies and people who clearly neither deserve it nor need it. At earlier stages of the Bill, I pressed the Government on the fundamental question of why the bodies and their servants needed these privileges, so I shall not repeat it now. But I fear that the Government have not been able to answer the question at all satisfactorily. They simply assert that the bodies and their servants need these privileges and immunities to function, but they have been unable to say why they need them or why they could not function without them.

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That is the point I would like to leave with your Lordships as the Bill proceeds to another place. I hope that the question may be pursued there and that the process of reversing these unnecessary and divisive privileges may therefore at last begin. In the mean time,I thank the government spokesmen on the Bill, the noble Baronesses, Lady Symons and Lady Crawley, and the noble Lord, Lord Triesman, for their unfailing courtesy and attention throughout our proceedings. They have been trying to justify the unjustifiable, but at least they have done it very politely, and I thank them for that.
Lord Stoddart of Swindon: My Lords, I shall say a few words in support of the noble Lord, Lord Pearson of Rannoch. I also join him in thanking and congratulating all those noble Lords on the Government side, and indeed those on the Opposition side, who took part in interesting Committee and Report stages.
I support the noble Lord, Lord Pearson, in being concerned about the proliferation of bodies that are being given immunity. The noble Lord, Lord Wallace of Saltaire, first raised the question of a growing élite in the Diplomatic Service and other organisations outside it. He said that it would eventually cause great concern among the public because they would believe that there was one law for a given set of people—an élite—and another law for others.
As the Bill passed through Committee and Report stages, where it received a pretty good airing and was certainly subjected to critical analysis, noble Lords tried to throw some light on what was actually happening. I hope, therefore, that, when the Government take the Bill to another place, they will have taken note of the opinions of this House. If they do that, perhaps they will be a little more careful about granting any future immunities than they have been on this occasion.
Baroness Crawley: My Lords, while I thank the noble Lords, Lord Pearson of Rannoch and Lord Stoddart, for their kind remarks about the Government Front Bench, their points have been raised at all stages of the Bill and have been responded to—obviously not to their satisfaction. I leave them with the thought that I have certainly articulated in my responses; namely, that privileges and immunities are conferred on organisations to ensure that they are able to carry out their functions unimpeded.
On Question, Bill passed and sent to the Commons.

Inquiries Bill [H.L.]
3.14 p.m.
Read a third time.
Lord Kingslandmoved Amendment No. l:
After Clause 6, insert the following new clause—
"INQUIRIES WHERE MINISTERIAL MISCONDUCT IN ISSUE
(1) This section applies where—

(a) a Minister proposes to cause an inquiry to be held, and

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(b) it appears from the proposed terms of reference that the events in question relate wholly or primarily to alleged ministerial misconduct.

(2) The Minster may, if he sees fit, move a motion before the relevant Parliament or Assembly for a resolution approving—

(a) his proposal to cause the inquiry to be held, and

(b) his proposals as to the inquiry's terms of reference and the identity of the chairman;
but an inquiry is not invalidated by the absence of such a resolution.

(3) Section 6(1) does not apply in any case in which the Minister has moved a motion in pursuance of this section.
(4) In this section "ministerial misconduct" means misconduct by—

(a) the holder of a Ministerial office specified in Schedule 1 to the Ministerial and other Salaries Act 1975 (c. 27),

(b) a member of the Scottish Executive,

(c) the Assembly First Secretary elected by the National Assembly for Wales, or any Assembly Secretary appointed by him, or

(d) the First Minister, deputy First Minister or any other Northern Ireland Minister."

The noble Lord said: My Lords, I have tested the patience of your Lordships' House on several occasions at earlier stages of the Bill's progress with respect to the theme that underlies the amendment. I shall on this occasion, therefore, be exceedingly telegraphic.
The Bill is silent on the most constitutionally important form of public inquiry—an inquiry that investigates the misdemeanour of a Minister. I suspect that the reason for that is not difficult to discern. Prime Ministers prefer to set up such inquiries under the Royal prerogative, giving them maximum discretion with respect to the procedures that are used in particular cases.
We take a different view. Ministers are supposed to be accountable to Parliament. The committees that investigate ministerial misdemeanours should be committees of Parliament. At Second Reading and at later stages, we set out a proposal that, normally, such committees should be composed of five Members, three from another place and two from your Lordships' House. The three from another place would be representatives of each of the three main political parties, and the two from your Lordships' House would be Cross-Benchers.
Between Committee and Report, the Select Committee on Public Administration in another place published its report. It had devised a scheme that was almost identical to that suggested from the Opposition Benches. On Report, the noble Lord, Lord Goodhart, and I set out, in terms, the amendment that the Public Administration Select Committee recommended should be tabled when the Bill reached another place.
On mature consideration, the noble Lord, Lord Goodhart, felt that he could not support the same amendment at Third Reading. As a result of discussions that the noble Lord and I have had, we have come up with a joint amendment that is more flexible than I would have liked but nevertheless ought to give something to those in another place who take a great interest in such matters.

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The noble Lord, Lord Goodhart, and I are exceedingly keen to know what the noble Baroness's reaction to our proposals will be. I beg to move.
Lord Goodhart: My Lords, as the noble Lord, Lord Kingsland, said, my name is also on the amendment.
We would welcome the principle of parliamentary involvement in the setting up of an inquiry into ministerial misconduct. We would certainly welcome some procedure by which an inquiry could be set up by Parliament without it being initiated by the Government. Possibly the best solution would be for a Select Committee of either House to conduct such inquiries on its own initiative. That would not require statutory authority and is, therefore, not appropriate for inclusion in the Bill. Also, it must be said that a forensic inquiry of such a kind would need to be conducted by counsel for the committee and not under the normal procedure, with each member of the committee asking questions in turn. That would be unworkable. Unfortunately, it seems that the chairmen of the Select Committees in the other place are not particularly receptive to that idea.
On Report, we supported the draft amendment annexed to the report of the Public Administration Select Committee. However, on further consideration of it—it was published only 24 hours before we had to table the amendment—I concluded that there were serious defects in it. First, if a parliamentary procedure were mandatory for an inquiry involving ministerial misconduct, it would be necessary to draw a line between inquiries according to whether they did or did not involve ministerial misconduct. That could be difficult. It could well turn out that, during the course of an inquiry that was not originally thought to involve ministerial misconduct, it did in fact involve such misconduct.
Secondly, the PASC amendment would lead to the Government using the non-statutory inquiry whenever the occasion arose, in order to avoid having to use the parliamentary procedure. The new version of this amendment, by making it optional for the Government to use the parliamentary procedure in misconduct cases, would avoid both these defects.
A government might well think it appropriate to use the parliamentary procedure in high-profile cases, to meet public concerns about the independence of the inquiry. They would not be tied down by any requirement to use that procedure in any particular case. This seems something that ought to be welcomed by the Government, since it would give it a degree of flexibility that it does not have under the present Bill. We are, therefore, happy to support this amendment.
Lord Borrie: My Lords, the noble Lords, Lord Kingsland and Lord Goodhart, have at various stages of the Bill proposed—up to now, separately—different amendments to try and involve the two Houses of Parliament in some way in the setting up of an inquiry.
16
They referred to the Tribunals of Inquiry (Evidence) Act 1921, which involved resolutions of both Houses of Parliament.
What is before us today is, to some extent, without being unduly rude, a watered-down version of amendments that have been proposed by the two noble Lords at previous stages of this Bill. On Report, they were fortified—certainly I thought that the noble Lord, Lord Kingsland, felt he was fortified—by the report of the Select Committee on Public Administration favouring a parliamentary inquiry, or parliamentary involvement, or a parliamentary commission, as the Select Committee referred to it. The noble Lord, Lord Kingsland, liberally quoted from that report.
In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, are not directly pursuing the idea of a parliamentary inquiry, though from what the noble Lord, Lord Kingsland, said, he was perhaps indicating an element of encouragement to the other House to insert something appropriate along those lines, as and when they get the Bill. As has been said previously, at any stage either House of Parliament is free to call for and arrange an inquiry—for example, into ministerial conduct—without a Minister necessarily being the prime mover.
In this amendment the noble Lords, Lord Kingsland and Lord Goodhart, want a resolution of Parliament approving a ministerial proposal to hold an inquiry whenever the terms of reference "relate wholly or partially" to events involving "alleged ministerial misconduct". I notice that the Minister is given a discretion. The amendment says that he may act "if he sees fit"—presumably sometimes he may not see fit to move such a resolution. The amendment expressly states that the
"inquiry is not invalidated by the absence of such a resolution".
It strikes me, subject only to the element of encouragement to the other House when it gets this Bill, that there is not much left of what the noble Lords have been putting to the House at various stages of this Bill about getting Parliament involved. We have a somewhat inchoate resolution that may or may not be passed and, whether it is or is not, it does not make any difference to the ministerial determination to have an inquiry.
Therefore, whatever view one takes about the need for parliamentary involvement in setting up an inquiry when ministerial conduct is involved, I am not sure of the value of the amendment. I am not sure that this does much either for the arguments that I have heard noble Lords opposite giving at earlier stages or otherwise.
Lord Laming: My Lords, I briefly support the noble Lord, Lord Borrie, in his well argued concerns about this amendment.
As indicated, we have discussed these matters at earlier stages, seeking a way to improve on the current position. We need to be cautious about moving away from what I would consider the basic principles: that the appointment of a Minister is in the gift of the Prime Minister. Ministers have to perform to the satisfaction

17
of the Prime Minister, but also within the established ministerial code. Of course, a Minister can be removed by the Prime Minister at any time.
When it comes to ministerial misconduct, we need to exercise some caution against cutting across the machinery already in place in another place to deal with concerns about ministerial conduct or indeed the conduct of any other Member of the House. I would suggest that this amendment does not add anything that is not already in place in the other place.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I begin by saying to the noble Lords, Lord Kingsland and Lord Goodhart, that I am grateful for their taking on board some of the issues that I raised when we previously discussed the principle behind this amendment and for the time that they gave me last week when we discussed outside your Lordships' House the issues that are raised here. Like other noble Lords, I intend to be reasonably brief, because we have dealt with the issues during the passage of the Bill.
The Government cannot accept this amendment. There are a number of reasons that I wish to allude to briefly in describing why, some of which have been mentioned by my noble friend Lord Borrie and others by the noble Lord, Lord Laming.
The first is, as the noble Lord, Lord Laming, said, that the ministerial code sets out the standards that the Prime Minister expects Ministers to uphold. The Prime Minister's foreword to that code makes clear that he expects all Ministers to work with the letter and the spirit of the code, to undertake their official duties in a way that upholds the highest standards of propriety. The Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and of the appropriate consequences of a breach of those standards.
Secondly, although we recognise that this is an optional amendment, we believe that, if it were part of the Bill, there would be enormous pressure if it were not used on every occasion somehow making the inquiry substandard. There is a genuine political point there. The reality, as the noble Lords must be aware, is that the Prime Minister and others would always be expected to use it.
That brings us to the real concern that I have about the definition of "misconduct".
Lord Goodhart: My Lords, does the Minister agree that although the Tribunal of Inquiry Act procedure is available now, it has rarely been used in cases of ministerial conduct? Many cases, such as the Hutton inquiry or the Hammond inquiry, have been conducted by non-statutory inquiries.
Baroness Ashton of Upholland: My Lords, of course the noble Lord is correct. However, I contend that, if this amendment were to go through, there would be political pressure for the Prime Minister to seek a vote in both Houses on all occasions in issues of misconduct. That is a reality. I accept that the current position may be different, just as I accept that there are
18
already powers within Parliament to do other things, as I will come on to. None the less, it would be there to give the Minister or Prime Minister a greater ability to set up an inquiry in a particular way and to give those parties, whether they are inside or outside your Lordships' House or another place, the opportunity to push for that, to give credence to the inquiry. I do not believe that we can get away from that—it is political life, and we have to accept it.
That brings me on to the issue of defining misconduct, which we have discussed. When one reads the report from the Public Administration Committee, Sir Michael Bichard in his the evidence talked about the continuum. The difficulty is in defining ministerial misconduct. The noble Lords who tabled the amendment will, I am sure, have a clear picture in their own minds of what they would include in that. The Bill is about events of real importance; it is designed to deal with the kind of inquiries that we have seen on the Victoria Climbié tragedy, Alder Hey, Bristol hospital and so on. That is really its prime purpose. There is a real concern that you can look at any inquiry and find, if you wish, an issue of ministerial misconduct—whether because, if funding had been better in a particular aspect of public life, the tragedy might not have happened, or whatever. So there is a problem in defining when ministerial misconduct has taken place.
Although noble Lords and Members of another place may feel very clear about what they or we mean, I would argue that outside the Houses of Parliament those who are victims of a tragedy may say, "Actually, the government are at fault here—we believe this is a real issue of misconduct in the government, because these events would not have taken place if the government hadn't acted in that way". So I have a real difficulty in drawing the line on ministerial misconduct. Although noble Lords may have a very clear view in their own minds, many people outside your Lordships' House would feel very passionately that issues such as funding would come under the term, and pressure would result from that.
Above anything else, this Bill is about the need to ensure that when we conduct inquiries into matters of real public concern, there is confidence in the system. Anything that we do that undermines that confidence in any way is to the detriment of our society. I would argue that if we included in the Bill something that said that in certain circumstances it was a very good idea for the Prime Minister to put this forward and then said that it would not matter if he did not—and then have victims of the tragedy saying that in their view, the matter was absolutely about misconduct, even if the noble Lords, Lord Kingsland and Lord Goodhart, and I would say that it was not—we would undermine public confidence. I am very reluctant to do that.
I, too, have had the privilege of discussing the issues with the chairman of the Public Administration Committee and I, too, have put lots of ideas to him. I recognise that there is a genuine desire to discuss the

19
issues. Of course, as it was a committee appointed by another place, my ambition was that there would be a full debate in another place—hence my halving that time available in the timetable to reply to the Public Administration Committee, so that by Second Reading our response would be out and there could be a full and proper debate in another place. As I pointed out, and as noble Lords know, the Select Committee process could be a means of dealing with these issues. Indeed, there is nothing to prevent Parliament deciding on a procedure.
I do not deny the need for a debate, but in the end I believe that this is the wrong amendment. As the Minister responsible for this Bill, it is not my contention that we should send this Bill to the Commons with such a proposal attached to it, for the reasons that I have given. I really hope that noble Lords will accept that we want a full and proper debate on the committee report in another place, on the basis of what I have said about the issues, and that they will have the benefit of that debate in their deliberations if the Bill comes back to this House. I hope that noble Lords will feel able to withdraw their amendments, to ensure that public confidence is at the heart of this Bill.
Lord Kingsland: My Lords, I thank the Minister for her reply.
The noble Lord, Lord Borrie, is right in observing that the amendment resiles from the muscularity of the amendment that the noble Lord, Lord Goodhart, and I tabled on Report. As the noble Lord, Lord Goodhart, said, we had sight of the report from another place only 24 hours before we had to table amendments, which gave neither of us time properly to examine all the implications of the Public Administration Committee's draft.
However, I do not believe that the noble Lord, Lord Goodhart, would mind my saying that as a result of a period of further reflection, while I remain attracted to the amendment that we tabled on Report, he had certain reservations which he expressed, very fairly; therefore, in the spirit of compromise, we devised the amendment currently before your Lordships. I believe that it is also fair to say that, in the course of devising the amendment, we had a number of discussions with the Minister in the hope that we might find a draft of sufficient allure to change the Minister's view. As your Lordships have heard from the Minister's comments at the Dispatch Box, that was not to be.
I have listened carefully to what noble Lords have said about our amendment. I was rather puzzled by the views expressed by the noble Lord, Lord Laming, for whom I have the greatest possible respect, as has the whole House. It seems to me that constitutionally a Minister is accountable not to the Prime Minister but to Parliament. The whole logic of our constitution is that Ministers are responsible to Parliament. Therefore, in my submission, the fundamental responsibility to make Ministers live up to the standards which they ought to live up to reposes in Parliament. In my view, the amendment that we have tabled seeks to achieve precisely that.
20
The Minister feared that, if the amendment was included in the Bill, Parliament might be tempted to use it. That was the whole purpose for which the noble Lord, Lord Goodhart, and I tabled it in the first place. If we cannot robustly protect the position of Parliament in relation to a Minister's conduct, I wonder what we are all for. I should like to test the opinion of the House.
3.37 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 137; Not-Contents, 130.

Division No. 1

CONTENTS

Ackner, L.

Howell of Guildford, L.

Addington, L.

Hurd of Westwell, L.

Alton of Liverpool, L.

Jenkin of Roding, L.

Ampthill, L.

Jopling, L.

Anelay of St Johns, B.

Kimball, L.

Astor, V.

Kingsland, L.

Astor of Hever, L.

Kirkham, L.

Attlee, E.

Laing of Dunphail, L.

Avebury, L.

Lane of Horsell, L.

Baker of Dorking, L.

Liverpool, E.

Beaumont of Whitley, L.

Livsey of Talgarth, L.

Blaker, L.

Luke, L.

Bonham-Carter of Yarnbury, B.

Lyell, L.

Bowness, L.

McColl of Dulwich, L.

Bradshaw, L.

Macfarlane of Bearsden, L.

Brougham and Vaux, L.

MacGregor of Pulham Market,

Campbell of Alloway, L.

L.

Colwyn, L.

Mackay of Clashfern, L.

Cope of Berkeley, L.

Mackie of Benshie, L.

Cox, B.

McNally, L.

Craigavon, V.

Mar, C.

Cumberlege, B.

Mar and Kellie, E.

Denham, L.

Marlesford, L.

Derby, Bp.

Mayhew of Twysden, L.

Dholakia, L.

Miller of Chilthorne Domer, B.

Dixon-Smith, L.

Molyneaux of Killead, L.

Donaldson of Lymington, L.

Monson, L.

Dykes, L.

Montrose, D.

Eden of Winton, L.

Morris of Bolton, B.

Elliott of Morpeth, L.

Mowbray and Stourton, L.

Elton, L.

Murton of Lindisfarne, L.

Erroll, E.

Naseby, L.

Falkner of Margravine, B.

Neill of Bladen, L.

Fearn, L.

Neuberger, B.

Feldman, L.

Noakes, B.

Fookes, B.

Northesk, E.

Fowler, L.

Northover, B.

Garden, L.

Oppenheim-Barnes, B.

Gardner of Parkes, B.

Park of Monmouth, B.

Geddes, L.

Patten, L.

Gilmour of Craigmillar, L.

Peel, E.

Glentoran, L.

Perry of Southwark, B.

Goodhart, L. [Teller]

Plumb, L.

Goschen, V.

Quinton, L.

Hamwee, B.

Redesdale, L.

Hanham, B.

Rees-Mogg, L.

Hanningfield, L.

Rennard, L.

Harris of Richmond, B.

Renton, L.

Higgins, L.

Roberts of Conwy, L.

Hodgson of Astley Abbotts, L.

Roberts of Llandudno, L.

Howe, E.

Rodgers of Quarry Bank, L.

Howe of Aberavon, L.

Roper, L.

Howe of Idlicote, B.

Rotherwick, L.

21

Ryder of Wensum, L.

Taverne, L.

Saltoun of Abernethy, Ly.

Tebbit, L.

Sandberg, L.

Thatcher, B.

Scott of Needham Market, B.

Thomas of Gresford, L.

Seccombe, B. [Teller]

Thomas of Walliswood, B.

Sharp of Guildford, B.

Thomson of Monifieth, L.

Shaw of Northstead, L.

Tope, L.

Shutt of Greetland, L.

Tordoff, L.

Skelmersdale, L.

Trenchard, V.

Slim, V.

Trumpington, B.

Smith of Clifton, L.

Waddington, L.

Soulsby of Swaffham Prior, L.

Walker of Worcester, L.

Stewartby, L.

Walmsley, B.

Stoddart of Swindon, L.

Watson of Richmond, L.

Strathclyde, L.

Weatherill, L.

Swinfen, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Griffiths of Burry port, L.

Ahmed, L.

Grocott, L. [Teller]

Allenby of Megiddo, V.

Harrison, L.

Alli, L.

Hart of Chilton, L.

Amos, B. (Lord President of the

Haskel, L.

Council)

Haworth, L.

Andrews, B.

Hilton of Eggardon, B.

Archer of Sandwell, L.

Hollis of Heigham, B.

Ashton of Upholland, B.

Howarth of Breckland, B.

Bach, L.

Howie of Troon, L.

Barnett, L.

Hoyle, L.

Bassam of Brighton, L.

Hughes of Woodside, L.

Berkeley, L.

Hunt of Chesterton, L.

Bernstein of Craigweil, L.

Hunt of Kings Heath, L.

Billingham, B.

Irvine of Lairg, L.

Bledisloe, V.

Janner of Braunstone, L.

Borrie, L.

Jones, L.

Brooke of Alverthorpe, L.

Jordan, L.

Brookman, L.

Laming, L.

Burlison, L.

Lea of Crondall, L.

Campbell-Savours, L.

Leitch, L.

Carter, L.

Lipsey, L.

Chorley, L.

Listowel, E.

Christopher, L.

Lofthouse of Pontefract, L.

Clarke of Hampstead, L.

Macdonald of Tradeston, L.

Clinton-Davis, L.

McIntosh of Haringey, L.

Condon, L.

McIntosh of Hudnall, B.

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Crawley, B.

McKenzie of Luton, L.

Darcy de Knayth, B.

Marsh, L.

David, B.

Masham of Ilton, B.

Davies of Coity, L.

Mason of Barnsley, L.

Davies of Oldham, L.

Maxton, L.

Dean of Thornton-le-Fylde, B.

Merlyn-Rees, L.

Desai, L.

Mitchell, L.

Dixon, L.

Morgan, L.

Drayson, L.

Morgan of Drefelin, B.

Dubs, L.

Morris of Aberavon, L.

Elder, L.

Murphy, B.

Evans of Temple Guiting, L.

Nicol, B.

[Teller]

Ouseley, L.

Falconer of Thoroton, L. (Lord

Palmer, L.

Chancellor)

Pendry, L.

Farrington of Ribbleton, B.

Plant of Highfield, L.

Faulkner of Worcester, L.

Radice, L.

Filkin, L.

Rendell of Bebergh, B.

Fyfe of Fairfield, L.

Richardson of Calow, B.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Rosser, L.

Giddens, L.

Rowlands, L.

Golding, B.

Royall of Blaisdon, B.

Goldsmith, L.

Sainsbury of Turville, L.

Gordon of Strathblane, L.

Scotland of Asthal, B.

Goudie, B.

Sheldon, L.

Gould of Potternewton, B.

Simon, V.

Graham of Edmonton, L.

Snape, L.

Gregson, L.

Stone of Blackheath, L.

22

Strabolgi, L.

Uddin, B.

Symons of Vernham Dean, B.

Wall of New Barnet, B.

Taylor of Blackburn, L.

Walpole, L.

Tenby, V.

Warnock, B.

Thornton, B.

Wedderburn of Charlton, L.

Triesman, L.

Whitaker, B.

Truscott, L.

Williamson of Horton, L.

Tunnicliffe, L.

Winston, L.

Turner of Camden, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.48 p.m.
Clause 10 [Appointment of judge as panel member]:
Lord Goodhartmoved Amendment No. 2:
Page 4, line 14, leave out "first consult" and insert "obtain the consent to that appointment of"
The noble Lord said: My Lords, Clause 10 provides that if a Minister wants to appoint a judge as a member of an inquiry panel, he or she must consult the appropriate judge. The appropriate judge is the senior Law Lord for serving Law Lords. No doubt if and when the Constitutional Reform Bill is enacted, for justices of the Supreme Court the appropriate judge would be the President of the Supreme Court. The appropriate judge for the judiciary of England and Wales is the Lord Chief Justice of England and Wales; for the judiciary of Scotland it is the Lord President of the Court of Session; and for the judiciary of Northern Ireland it is the Lord Chief Justice of Northern Ireland.
The purpose of the amendment, which is very simple, is to require the consent of the appropriate judge instead of simply a requirement to consult him or her. I moved a similar amendment on Report. The main speeches on that occasion in favour of this amendment came from the Lord President, the noble and learned Lord, Lord Cullen of Whitekirk, and the Lord Chief Justice, the noble and learned Lord, Lord Woolf. I was, and remain, happy to adopt both their speeches.
To summarise briefly, as this is a Third Reading debate, judges cannot always be spared from their job. That is especially true in the Appellate Committee of your Lordships' House, which has only 12 members, and it has been deprived of the services of one of them—the noble and learned Lord, Lord Saville—for the past seven years. There may also be circumstances where it is inappropriate for any judge to chair a particular inquiry. There is a danger if the issues are too political, because the involvement of a judge may be seen as harmful to judicial independence; or the subject matter may be inappropriate for a judge to act as chair. One possible example of that was the inquiry chaired by Lord Wilberforce, many years ago, into the dock labour system. He produced a report that was widely regarded as not being the high point of his otherwise extremely prestigious career.
As the noble and learned Lord, Lord Cullen, said, it is difficult for a judge to turn down an approach from the government to chair an inquiry. In England and Wales

23
up to now, the Lord Chancellor has been the head of the judiciary. It is fairly obvious that he could hardly ask himself for his own consent to the appointment of a particular judge to chair an inquiry. But the forthcoming enactment of the Constitutional Reform Bill will change that, and the Lord Chief Justice will be head of the judiciary and, under the concordat that accompanies the Constitutional Reform Bill, he will be responsible for judicial deployment. We believe that it is appropriate that his consent should be required. The noble and learned Lord, Lord Woolf, argued the case very strongly on Report. He is unable to be here today because he has to chair a meeting of the Judges' Council, but he has told me that his views remain unaltered since he expressed them on Report.
I believe that the arguments apply a fortiori to the smaller judicial bodies in the Appellate Committee, in Scotland and in Northern Ireland. It is in the interests of everyone, including the Government, that if a judge is to be appointed to an inquiry he should be appointed by the joint agreement of the Minister and the appropriate senior judge. I believe that this is a significant amendment. I beg to move.
Lord Kingsland: My Lords, we tabled a similar amendment on Report, to which I spoke at great length. That amendment is now amalgamated with that of the noble Lord, Lord Goodhart, with whose speech I wholly agree.
Viscount Bledisloe: My Lords, if the Minister does not agree to this amendment, can she explain to us what is meant to happen? For example, she wants Lord Justice Bloggs to chair an inquiry. She asks the Lord Chief Justice, who says, "No, I can't spare Lord Justice Bloggs, and anyhow this is a wholly unsuitable matter for a judge to hear". She is unconvinced by the Lord Chief Justice, so she goes off to Lord Justice Bloggs and says, "I want you to chair this inquiry. I should point out that your boss, the Lord Chief Justice, doesn't want you to do it, but I want you to". How on earth is the poor man meant to make up his mind? Is he meant to kick the Government or the Lord Chief Justice in the teeth?
In practice, if the Lord Chief Justice says, "No. I am sorry", it is impractical to go to the judge himself and say, "Although the Lord Chief Justice says he can't spare you, I want you to do this. It is your public duty. You do it, and forget what the Lord Chief Justice says". That is impractical. The Minister must bend to the inevitable and accept that this amendment recognises what the position will be in reality.
Lord Ackner: My Lords, if one is to call a spade a spade, it is arrogant for the Government to say that they will be the sole arbiter of when a judge should be appointed and which judge it should be. The point has already been made that, under the concordat, deployment is a function of the judiciary. It is important that the Lord Chief Justice is in a position to estimate, having regard to the nature of the inquiry, to what extent—since there is likely to be a dissatisfied
24
opposite party whichever way he decides—it will reflect on the standing of the judge when he returns to do his ordinary duties. And, to go one stage further, the Lord Chief Justice can, having regard to the controversial nature of the decision, estimate to what extent it might reflect on the standing of the whole judiciary. This is essentially a matter for the Lord Chief Justice to bear in mind. This refusal to concede the point makes the Government look very shabby.
Lord Donaldson of Lymington: My Lords, I entirely agree with the noble Viscount, Lord Bledisloe. He is absolutely right. I shall add one thing: in the Arbitration Act 1979, it is provided that a judge can act as a judge-arbitrator, with different systems of appeals as a consequence, but before accepting that appointment, the Lord Chief Justice has to consider whether the ordinary course of business will be held up by not having that judge. That is peculiarly a matter for the judiciary, which is an independent estate of the realm. I shall not use the word "arrogant", which was used by my noble and learned friend, but, accepting, as I thought they did, the independence of the judiciary as a separate estate of the realm, I cannot understand how the Government can resist this amendment.
Lord Laming: My Lords, your Lordships will, no doubt, think that by this stage I ought to have learnt to exercise some discretion rather than valour, surrounded as I am by distinguished lawyers—in front of me, behind me and to the right of me—but I think that this amendment goes too far. Distinguished judges are capable of knowing whether an inquiry would be appropriate for them and whether it is timely. It is entirely right to consult the Lord Chief Justice, but this amendment pushes that to an unreasonable point. The object of the Bill is to achieve a proper balance and to ensure that sensible people can arrange business in a sensible way. I hope that this amendment will not be pushed to such a degree.
Lord Mackay of Clashfern: My Lords, I agree that a person who has been appointed as one of Her Majesty's judges—whether in England and Wales, Scotland or Northern Ireland—will be able to have a view about whether it is appropriate for him or her to take an individual inquiry. But the question of judicial resources is not a matter for an individual judge. He or she is deployed by the head of the judiciary in his or her jurisdiction to take trials as and when required. The individual judge has no responsibility, as I understand it, for making sure that the resources available to the judiciary are adequate to discharge the responsibilities the judiciary has in particular cases. The head of the judiciary in the jurisdiction has that responsibility.
It is extraordinary that the Government should think that they ought to be able to invite to preside over an inquiry someone who has responsibilities in an area over which, for example, the Lord Chief Justice in England and Wales has control and responsibility without being able to secure the consent of the Chief Justice to that person being taken out of that area of deployment and deployed on something completely

25
different, which is bound adversely to affect the total manpower—or perhaps I should say judge-power—available to the Chief Justice to employ in discharging his or her resources. I also cannot understand how the position referred to would be resolved in practice. My main point is that the proposal would fudge the responsibility of the senior judge for adequately securing judicial resources for the task to which he or she has been called.
4 p.m.
Baroness Ashton of Upholland: My Lords, it is neither arrogance nor shabbiness that drives this Minister to take a different view from all those, apart from the noble Lord, Lord Laming, who have spoken. Being a non-lawyer, I may have approached the issue from a slightly different direction.
In Clause 10 we have tried to recognise judicial independence, and to be clear about our understanding of it. We take seriously our responsibility to consult the Lord Chief Justice. Indeed, we are required, having put it in the Bill. to take note of what the Lord Chief Justice has said, and to take the issues he or she has raised into account. However, the responsibility for deciding whether to take on an inquiry rests with the individual judge. The notion of "boss" was used to describe the relationship between the Lord Chief Justice and an individual judge. I do not consider that to be the traditional relationship between a boss and an individual judge, but there are issues about a judge being allowed to make that decision.
The question of resources is important. On the one hand, one could argue strongly, as noble Lords have done, that the Lord Chief Justice would be particularly minded to consider that question; I accept that. I am sure that the present Lord Chief Justice, and any future one, would take that extremely seriously. However, the purpose of the Bill is to deal with events of such importance—it is hard to indicate what they might be—that have shaken public confidence, when there are real concerns about what has happened to an individual, or to a system within government, that need to be considered carefully and investigated properly. Noble Lords on all sides have talked about the important role that judges, senior or otherwise, can play in that regard, and I agree with them.
The issue of resources has to be weighed by someone against the need for the issue to be investigated thoroughly and properly. It could be argued that asking any distinguished person to chair an inquiry, be they a senior member of the medical profession or of another organisation, will have resource implications, which should be taken seriously. In the overall scheme of things, considering the seriousness of the inquiry being undertaken, I contend that sometimes an issue is so serious that it is crucial that someone with great standing looks at it, and does so quickly, and that we should have the ability to say that that overrides issues of resources. That is the critical dividing line between us; it is not arrogance or shabbiness.
26
We believe it is right to consult the Lord Chief Justice or the other senior judges within the Bill; that it is right and proper to take on board their concerns and considerations, and for them to make their concerns known, as they will, to Lord Justice Bloggs, to quote the noble Viscount, Lord Bledisloe. Notwithstanding those important issues—which perhaps might be resolved in other ways—it is still right and proper that the Minister should be able to say, "I believe that this is the right person to give us the public confidence we need, and I would like to ask them". It is then for that individual of standing to weigh up the considerations between the issues that have been put forward by the Lord Chief Justice and the Minister, as I have absolute confidence that our judges would do, and say yes or no. It is that issue that divides us, and no other.
Ultimately the question is who has to decide that an inquiry is so important that someone of stature and standing is needed. Even though there will he resource issues for that person's profession—in this case, it happens to be the legal profession, but there are several others it could be—I believe I should be able to go and ask them, and they should have the right to say no. It is for that reason that I cannot accept the amendment.
Lord Mackay of Clashfern: My Lords, with great respect, before the Minister sits down, what is at issue here is the resources not of the legal profession but of the courts, which are part of the judicial arm of Government. The Lord Chief Justice for England and Wales, not a Minister of the Crown, has been charged with the responsibility for that. Surely it cannot be right for the Minister in the executive government to be able to overrule the decision of the Lord Chief Justice upon whether a person can be spared from his judicial strength in order to perform a particular act. Of course, there are always possibilities for negotiation. For example, the consent of the Lord Chief Justice might be secured by the executive asking that vital question.
Baroness Ashton of Upholland: My Lords, I am sorry if I misspoke. I am not a lawyer, so I am afraid I do not always use the right terminology. The noble and learned Lord will just have to forgive me for that.
Negotiation is important, and it is there in the consultation process in the Bill. The Lord Chief Justice will make representations on the issues, and the Minister will consult. I doubt there would be many circumstances under which, if the Lord Chief Justice felt strongly, the Minister would be minded to do anything other. However, within legislation, one has to consider the absolute positions. It is our view that if it was felt that it was in the national interest, regardless of the resource question—and there would be an equal issue regarding the use of resources in any area of life—one must nevertheless be able at least to say to the senior person one is looking for, "In the context of this incredibly important event that has taken place, where public confidence in a particular aspect of public life

27
has been rocked, I would like you to take this on because in the eyes of the government you would be the right person". It is only that that divides us.
Lord Laming: My Lords, before the Minister sits down, does she agree that this section of the Bill, as now stated, does nothing different to the judiciary than to any organisation from which someone may be drawn to chair an inquiry? In other words, there has to be discussion and negotiation.
Baroness Ashton of Upholland: My Lords, discussion and negotiation are a critical part of the process. As we have indicated, we have specifically put within Clause 10 the consultation with the Lord Chief Justice and the other appropriate senior Law Lords, and so on, to ensure that we have covered that point. The Government's contention is that when there are issues of such national importance, we must be able at least to ask the individual. The resource issue is, in a sense, to be played into that equation, but not to be the overriding factor, for the reasons I have said, about any other profession we might be looking to bring in to chair an inquiry.
Lord Goodhart: My Lords, I am most grateful to all Members of your Lordships' House who have spoken in the debate, and for the considerable weight of support that the amendment received. I am not disturbed by the fact that both speakers on the other side were the only two speakers who were not lawyers—the noble Lord, Lord Laming, and the Minister. I am particularly grateful to the noble and learned Lord, Lord Mackay of Clashfern, who speaks from remarkable experience—as a former head of the Scottish judiciary as Lord President, a Cabinet Minister as Lord Chancellor, and the former head of the judiciary in England and Wales as Lord Chancellor.
It has been suggested that the decision should rest with the individual judges, but I do not think that correct. After all, the judiciary is one of the three branches of the constitution, and a Minister, as a member of the Executive, should not have the right to call on an individual judge to act as chairman of an inquiry. Whether a particular judge is released to take part as chairman of an inquiry is properly a decision for the judiciary as a body, expressed through the Lord Chief Justice as its head. Constitutionally, it is absolutely correct that the decision should be taken jointly by the Minister and the Lord Chief Justice.
As the noble Viscount, Lord Bledisloe, said, it is in any case difficult to imagine a judge accepting an appointment to chair an inquiry if he or she knows that the Lord Chief Justice, although consulted, has not agreed. The Minister said that the issue may be critical. There may be critical issues but, if it is true and appropriate that a judge should be selected to chair a particular inquiry, I cannot imagine that a Lord Chief Justice would refuse to make a judge available for that purpose.
The amendment seems important, and I wish to test the opinion of the House on it.
4.11 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 149; Not-Contents, 131.

Division No. 2

CONTENTS

Ackner, L.

Laing of Dunphail, L.

Addington, L.

Lane of Horsell, L.

Alton of Liverpool, L.

Lindsay, E.

Ampthill, L.

Listowel, E.

Anelay of St Johns, B.

Liverpool, E.

Astor, V.

Livsey of Talgarth, L.

Astor of Hever, L.

Luke, L.

Attlee, E.

Lyell, L.

Avebury, L.

McColl of Dulwich, L.

Baker of Dorking, L.

Macfarlane of Bearsden, L.

Barker, B.

MacGregor of Pulham Market,

Beaumont of Whitley, L.

L.

Blaker, L.

Mackay of Clashfern, L.

Bledisloe, V.

Mackie of Benshie, L.

Bonham-Carter of Yarnbury, B.

Maclennan of Rogart, L.

Bowness, L.

McNally, L.

Bradshaw, L.

Manchester, Bp.

Brougham and Vaux, L.

Mancroft, L.

Buscombe, B.

Mar, C.

Campbell of Alloway, L.

Mar and Kellie, E.

Clement-Jones, L.

Marlesford, L.

Colwyn, L.

Mayhew of Twysden, L.

Condon, L.

Michie of Gallanach, B.

Cope of Berkeley, L.

Miller of Chilthorne Domer, B.

Craigavon, V.

Miller of Hendon, B.

Dahrendorf, L.

Montrose, D.

Darcy de Knayth, B.

Morris of Bolton, B.

Denham, L.

Mowbray and stourton, L.

Derby, Bp.

Moynihan, L.

Dholakia, L.

Murton of Lindisfarne, L.

Dixon-Smith, L.

Naseby, L.

Donaldson of Lymington, L.

Neill of Bladen, L.

Dykes, L.

Neuberger, B.

Eden of Winton, L.

Newton of Braintree, L.

Elliott of Morpeth, L.

Noakes, B.

Elton, L.

Northesk, E.

Erroll, E.

Northover, B.

Falkner of Margravine, B.

Onslow, E.

Fearn, L.

Oppenheim-Barnes, B.

Feldman, L.

Park of Monmouth, B.

Fookes, B.

Patten, L.

Fowler, L.

Peel, E.

Garden, L.

Perry of Southwark, B.

Gardner of Parkes, B.

Plumb, L.

Geddes, L.

Quinton, L.

Glentoran, L.

Reay, L.

Goodhart, L.

Redesdale, L.

Goschen, V.

Rees-Mogg, L.

Greenway, L.

Rennard, L.

Hamwee, B.

Renton, L.

Hanham, B.

Roberts of Conwy, L.

Hannay of Chiswick, L.

Roberts of Llandudno, L.

Harris of Richmond, B.

Rodgers of Quarry Bank, L.

Higgins, L.

Roper, L.[Teller]

Hodgson of Astley Abbotts, L.

Rotherwick, L.

Hooson, L.

Ryder of Wensum, L.

Howe, E.

St John of Fawsley, L.

Howe of Aberavon, L.

Saltoun of Abernethy, Ly

Howe of Idlicote, B.

Sandberg, L.

Hutton, L.

Scott of Needham Market, B.

Jenkin of Roding, L.

Seccombe, B. [Teller]

Jopling, L.

Sharp of Guildford, B.

Kimball, L.

Shaw of Northstead, L.

Kingsland, L.

Shutt of Greetland, L.

29

Skelmersdale, L.

Tope, L.

Slim, V.

Tordoff, L.

Smith of Clifton, L.

Trenchard, V.

Stewartby, L.

Trumpington, B.

Swinfen, L.

Waddington, L.

Taverne, L.

Walker of Worcester, L.

Tebbit, L.

Walmsley B.

Thatcher, B.

Warnock, B.

Thomas of Gresford, L.

Weatherill, L.

Thomas of Walliswood, B.

Williamson of Horton, L.

Thomson of Monifieth. L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Harrison, L.

Ahmed, L.

Hart of Chilton, L.

Allenby of Megiddo. V.

Haskel, L.

Alli, L.

Haskins, L.

Amos, B. (Lord President of the

Haworth, L.

Council)

Hilton of Eggardon, B.

Andrews, B.

Hogg of Cumbernauld, L.

Archer of Sandwell, L.

Hollis of Heigham, B.

Ashley of Stoke, L.

Howells of St. Davids, B.

Ashton of Upholland, B.

Howie of Troon, L.

Bach, L.

Hoyle, L.

Barnett, L.

Hughes of Woodside, L.

Bassam of Brighton, L.

Hunt of Chesterton, L.

Berkeley, L.

Hunt of Kings Heath, L.

Bernstein of Craigweil, L.

Irvine of Lairg, L.

Billingham, B.

Jones, L.

Borrie. L.

Jordan, L.

Bragg, L.

Laming, L.

Brooke of Alverthorpe, L.

Lea of Crondall, L.

Brookman, L.

Leitch, L.

Burlison, L.

Lipsey, L.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Carter, L.

Macdonald of Tradeston, L.

Carter of Coles, L.

McIntosh of Haringey, L.

Chorley, L.

McIntosh of Hudnall, B.

Christopher, L.

MacKenzie of Culkein, L.

Clark of Windermere, L.

McKenzie of Luton, L.

Clarke of Hampstead, L.

Marsh, L.

Clinton-Davis, L.

Masham of Ilton, B.

Cohen of Pimlico, B.

Mason of Barnsley, L.

Corbett of Castle Vale, L.

Maxton, L.

Crawley, B.

Merlyn-Rees, L.

David, B.

Mitchell, L.

Davies of Coity, L.

Morgan, L.

Davies of Oldham, L.

Morgan of Drefelin, B.

Dean of Thornton-le-Fylde, B.

Morris of Aberavon, L.

Desai, L.

Murphy, B.

Dixon, L.

Nicol, B.

Drayson, L.

Palmer, L.

Dubs, L.

Pendry, L.

Elder, L.

Pitkeathley, B.

Evans of Temple Guiting, L.

Plant of Highfield, L.

[Teller]

Radice, L.

Falconer of Thoroton, L. (Lord

Ramsay of Cartvale, B.

Chancellor)

Randall of St. Budeaux, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Rooker, L.

Filkin, L.

Rosser, L.

Fyfe of Fairfield, L.

Rowlands, L.

Gale, B.

Royall of Blaisdon, B.

Gibson of Market Rasen, B.

Sainsbury of Turville, L.

Giddens, L.

Scotland of Asthal, B.

Golding, B.

Sheldon, L.

Goldsmith, L.

Simon, V.

Gordon of Strathblane, L.

Snape, L.

Goudie, B.

Stone of Blackheath, L.

Gould of Potternewton, B.

Strabolgi, L.

Graham of Edmonton. L.

Taylor of Blackburn, L.

Gregson, L.

Tenby, V.

Grenfell, L.

Thornton, B.

Griffiths of Burry Port, L.

Triesman, L.

Grocott, L. [Teller]

Truscott, L.

30

Tunnicliffe, L.

Whitaker, B.

Turner of Camden, B.

Whitty, L.

Uddin, B.

Wilkins, B.

Wall of New Barnet, B.

Woolmer of Leeds, L.

Walpole, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.23 p.m.
Lord Goodhartmoved Amendment No. 3:
Page 4, line 16, leave out "to he consulted" and insert "whose consent must be obtained"
On Question, amendment agreed to.
Clause 12 [Duration of appointment of members of inquiry panel]:
Lord Kingslandmoved Amendment No. 4:
Page 5, line 32, leave out "consult" and insert "secure the agreement of"
The noble Lord said: My Lords, though they are not grouped together, Amendments Nos. 4 and 5 and Amendments Nos. 13 to 16 raise essentially the same issue. In our view, the Government have allowed the Minister too much freedom to interfere with an inquiry once it has been set up. Too much freedom to change the composition of the inquiry, to determine when the inquiry will terminate, to interfere on matters of evidence and privacy and over the publication of the final report.
Were my view on all of these issues shared by the noble Lord, Lord Goodhart, and the Liberal Democrat Benches, I would be asking your Lordships' House to vote on all of these amendments. However, for reasons which the noble Lord has explained, the Liberal Democrats take a different view. Therefore, I shall speak to these amendments but not put them to the vote.
Let me first take Amendment No. 4. The provision allows the Minister only to consult the chairman of a committee when deciding whether or not to change its composition. In our view, the circumstances in which this can be done are cast so widely as to allow a Minister who was embarrassed by the direction that a public inquiry was taking to insist on the removal of a member of the panel for the wrong reasons. The Minister disagrees with me on that, saying that the terms are sufficiently tight—and that, at any rate, it would be inconceivable that circumstances would arise in which a Minister could behave so improperly. The Minister is again being too complacent about that and ought to reflect further, before she insists on coming to the same conclusion. I beg to move.
Baroness Ashton of Upholland: My Lords, I think that the noble Lord, Lord Kingsland, would accept that I have striven—successfully or otherwise—to understand noble Lords' concerns on all of the amendments being put forward. Indeed, in talking both to officials and to those, far greater than myself, who draft the amendments, we have striven to ensure that we have covered what are valid and important points.
The noble Lord and I agree that it would be inappropriate to have a widely cast power enabling the Minister to remove somebody on a whim, for the

31
reasons given. The noble Lord has indicated to me that the concern comes down to the phrase within the Bill: "any other reason". If I have read the noble Lord's issues properly, he is concerned that the phrase is very wide. Perhaps "any other reason" could mean "because I do not like the look of you", or "because you are causing me a bit of a problem".
I understand that concern—and have checked carefully with officials to ensure that the language in which the phrase is couched is indeed a standard legislative phrase. It has to be interpreted in the context of other reasons listed. So, if I may quote the Bill, it allows the Minister to do so, if:
"for any other reason, the member is unable to carry out the duties of a member of the inquiry panel".
So the Minister cannot decide to sack somebody for no good reason, because the member would still be able to carry out their duties. That is the constraint within the provision; the only grounds on which the Minister can do so are if the person is unable to carry out their duties as a member of the panel.
We have talked at previous stages about physical or perhaps, sadly, mental illness. The provision is intended to capture any similar reasons that we have been unable to predict, but can only be used on the grounds that members are not able to carry out their duties—not because the Minister has an alternative view. While not being complacent, because I am confident that is what it means, I think that we have captured what the noble Lord, Lord Kingsland, seeks to achieve regarding the right context. For that reason alone, I hope that the noble Lord will accept that I—having checked and been very clear what it relates to
have done my job and that he will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful to the Minister for her response. The Minister has said that she has striven to meet my requirements. I remember that once, in the late 1980s, I had the privilege of a meeting with the noble Baroness, Lady Thatcher, who said in the course of our discussion that "trying is not enough". The Minister may have striven but striving is not enough. Nevertheless, I accept that she has given this her full attention and, even though, in my submission, the Minister has not achieved the necessary security in the Bill, I do not intend to press the amendment this afternoon, for the reasons that I have given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.30 p.m.
Clause 14 [End of Inquiry]:
Lord Kingslandmoved Amendment No. 5:
Page 6, line 32, leave out "consult" and insert "secure the agreement of"
The noble Lord said: My Lords, I am sure that historians will describe this amendment as the noble Lord, Lord Evans of Temple Guiting, amendment because it featured a number of exchanges between
32
noble Lords on the Floor of your Lordships' House in the course of which the noble Lord always sought to be helpful and, during which, he retained his legendary sense of humour.
The amendment raises, in starker terms than the previous amendment, the danger of ministerial interference. Clause 14 (1) states:
"For the purposes of this Act an inquiry comes to an end—

(a) on the date, after the delivery of the report of the inquiry, on which the chairman notifies the Minister that the inquiry has fulfilled its terms of reference, or

(b) on any earlier date specified in a notice given to the chairman by the Minister".

Clause 14 (3) states:
"Before exercising his power under subsection (1)(b), the Minister must consult the chairman.
Our amendment would require the Minister not only to consult the chairman, but also to obtain the chairman's approval. I readily accept that there is another approach to constraining the excessive power given to the Minister by this clause, which would be to recast subsection (1)(b) in a way that substantially reduces the unfettered discretion that it gives to the Minister. We would be happy with one or other of those solutions.
The Minister, thoughtful and thorough as ever, kindly sent me a letter about this matter and I greatly appreciated that she did so. She has clearly given considerable thought to the issue and, although she has been unable to conclude in my favour, I salute her for the efforts that she has made. Because I have had the advantage of reading the letter that the Minister sent me, I think that I can anticipate what she is likely to say in response. I beg to move.
Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Kingsland. I have striven again in this amendment to see what we might do. I appreciate the work done by my noble friend Lord Evans, with his beautiful good humour, to ensure that we did what the noble Lord, Lord Kingsland, wanted, which was to look again. I considered this in the context of the amendments that we moved at Report to make sure that we had considered the issues properly, and we have included the obligation to consult the chairman, which was not there before.
I have said on a number of occasions that one of the issues is, "Where does the buck stop?" and I believe that, at the end of the day in an inquiry, the buck must stop with the Minister. The Minister sets up the inquiry and, as we discussed earlier, it is the Minister who is accountable to Parliament—something that I readily accept as being of critical importance in our democracy.
I must tell the noble Lord, Lord Kingsland, that we did think about a general form of words along the suggestion that:
"The inquiry can be brought to an end when it serves no further useful purpose",
for example. Although we recognise that it is easy to capture a general intention in everyday language, it is extremely difficult, as noble Lords with experience of

33
this will know, to draft into statute something that conveys what the noble Lord is trying to say, because an inquiry's purpose is not defined in statute.
Some may seek to argue that the inquiry will serve some purpose, even if its benefits will not, in the view of the Minister, be worth the cost to the taxpayer. Such a test will inevitably always be subjective, and I suspect that it could lead to greater arguments without providing the safeguard that the noble Lord is searching for. I commit formally in your Lordships' House to ensuring that the Explanatory Notes give a much clearer guide to the types of situations in which the power might be required. In those notes, we will set out the examples that will illustrate the point of the provision, which I hope will be helpful in this context. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful once again for the Minister's response, although I am naturally disappointed that she is unable to meet the terms of my amendment or the suggested alternative. I am reassured by her undertaking to tighten up the wording in the Explanatory Notes so that they express the limited intention that she has stated to your Lordships' House that the clause would have. In those circumstances, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Evidence and procedure]:
Baroness Ashton of Uphollandmoved Amendment No. 6:
Page 8, line 11, leave out "have regard" and insert "act with fairness and with regard also"
The noble Baroness said: My Lords, in the annals of history, I hope that this amendment will go down as the amendment of the noble and learned Lord, Lord Howe. I am very grateful to the noble and learned Lord, who has shared his concern with me on a number of occasions. He has given me the benefit of reading some of the articles that he has written and pointed me in the general direction of looking very carefully at some of the issues that I know he feels strongly about from his own experience.
The amendment that I move today underlines the existing duty in common law to act fairly. It makes absolutely clear that the chairman must follow fair procedures. Although safeguarding costs is an important element in conducting inquiries it must not compromise fairness. The amendment would enshrine that balance. One of the duties placed on the chairman to ensure that he is acting fairly will be to assess whether certain participants should be granted some form of legal representation or advice. That duty will be supplemented by rules under Clause 41 which will ensure fair procedures. I beg to move.
Lord Howe of Aberavon: My Lords, I would like to express my appreciation not just for the kind words that the noble Baroness has just uttered hut, more
34
widely, for my appreciation of the manifest care and attention that she has given to this question in the meetings that she has had with me. I thank her a thousand-fold if she has really read my articles as thoroughly as they deserve. I accept warmly this important and valuable concession. As always, one would like to have had the whole cake, but I would certainly not want to see the best becoming the enemy of the good.
Clearly, the Minister has been striving on this topic and striving with success. If my noble friend Lord Kingsland might give her three—or even, because of his generosity, four—out of 10 for striving. I would readily give her eight or even nine out of 10. I have been more fortunate on this occasion than he has been.
I also appreciate what she had to say about the extent to which this will be governed by the rules made under this Act. I hope that the debates that we have had at each stage of this legislation will help to focus those rules and that, in light of the way in which she has finally dealt with this, care will be taken to avoid any kind of presumption against the concept of representation. Fortunately, over the past 10 years or so, there has been a great deal of distillation of wisdom on this matter starting under the commitment to the Council on Tribunals by my noble and learned friend Lord Mackay of all these questions following the Scott inquiry.
There has emerged, not least as a result of this legislation, the existence of a well-informed unit at the heart of government. I like to think that will nestle in what may be the Lord Chancellor's Department, and that it will be consulted regularly. Whatever we may say in these debates, in the final analysis the management of these inquiries—their composition and terms of reference—depends above all on judgment. The concentration of that judgment and experience in a unit of experienced people in this department would mean that there will always be proper consultation—"Have we got the right guy to chair this? Have we got the right group to support him?" All those questions deserve fuller examination than they have received on some occasions. If these debates serve to fortify that commitment, then I am even more pleased to step up my award to nine, lurching towards 10. I thank the Minister very much for what she has managed to achieve.
Lord Goodhart: My Lords, briefly, while we were unable to support the amendment in the form in which the noble and learned Lord, Lord Howe of Aberavon, introduced it in Committee, we always felt that he had raised a serious issue and that his concerns were justified. It is clearly right that the chairman should be encouraged to ensure that fairness rules the day in deciding whether representation should be allowed to people involved in inquiries. For that reason, we are glad that an amendment has been produced that is acceptable to the noble and learned Lord.
Baroness Ashton of Upholland: My Lords, I thank the noble and learned Lord, Lord Howe of Aberavon, for his comments. I will continue to strive to achieve a

35
10 out of 10 from somebody, although I fear it may never happen. I hope that noble Lords will feel able to support this amendment.
On Question, amendment agreed to.
Viscount Goschenmoved Amendment No. 7:
Page 8, line 12, at end insert ", and must within one month of the setting-up date publish an estimate of the likely cost of the inquiry"
The noble Viscount said: My Lords, during the passage of the Bill, we have returned again and again to the issue of costs. One of my main concerns has been the lack of transparency about the budgeting process. My Amendment No. 7 would require the chairman to publish an estimate of the likely costs of the inquiry within one month of the setting-up date. This would be in line with the conclusion of the House of Commons Select Committee on Public Administration in its recommendation in paragraph 127.
Without a budget there can be no real hope of proper cost control. Having an estimate on the public record at the outset would be a very powerful tool in ensuring that the minds of the chairman and the commissioning Ministers were focused on the issue of costs. I accept that this would be a difficult estimate to make. Similarly, however, it is difficult to estimate the cost of constructing a building, for example. The Scottish Parliament building springs neatly to mind. That does not mean that the budgeting process should not take place. It should take place, and its conclusions should be made public.
I have repeatedly asked what estimate was made of the costs of the Bloody Sunday inquiry before it began. I ask the Minister again, in the hope that she has those figures to hand. It is clear that had the noble and learned Lord, Lord Saville, announced that something north of £150 million would be spent on the inquiry, then there would have been an outcry. Action would have been taken before the money was spent.
I understand that the Minister is similarly exercised about the issue of costs, and is supportive of having the estimate published in principle. I have taken on board the Minister's concern, expressed on Report, that the chairman must be given time to consider how the inquiry should be taken forward in detail before the estimate is made. My current amendment, therefore, specifies a period of one month for this to take place. I beg to move.
4.45 p.m.
Lord Kingsland: My Lords, briefly, we on the Front Bench of the noble Viscount, Lord Goschen, entirely support his amendment. It is an extremely constructive contribution to the discussion of the Bill. It reflects foursquare one of the key objectives that the Government are trying to achieve. I hope that the Minister will receive it generously.
Lord Donaldson of Lymington: My Lords, I appear on behalf of the as yet unformed trade union representing chairmen. I have, post-retirement from the Bench,
36
conducted four inquiries for government. Before I became a judge, I served as part of the Crown team in two 1921 Act inquiries. I am absolutely confident that if you had asked the noble and learned chairmen of the two 1921 Act inquiries what it was going to cost, they would have looked at you in astonishment and said, "How can we possibly tell?"
Furthermore, of course chairmen avoid unnecessary costs. A conflict between an estimate, which they certainly should not have given, and how the inquiry is to be resolved should not be allowed to arise.
My main objection is that it is quite impossible to know. Possibly Ministers may know, but I am quite certain that nobody knew when the Saville inquiry started. What, then, would be the point of this exercise, even if it could be undertaken?
Lord Laming: My Lords, I follow on from the noble and learned Lord, Lord Donaldson of Lymington. I have a great deal of sympathy with the main intention of this amendment. My concern is solely about its practicability.
I have very limited experience, but I shall draw on it for a moment. When I was persuaded to take on the Victoria Climbié inquiry, the best estimate that Ministers had—bearing in mind that this little girl had only been alive in this country for ten months—was that it would be necessary to see something like 30 witnesses. We had to
secure the files from four social services departments, three housing departments, two specialist child protection teams of the police service, two hospitals, and so on. It was very difficult to get all the files. We had to use powers to secure the range of documentation. From studying those files over many months, we came to the conclusion that we would need to get witness statements from 277 people. Furthermore, it was not possible to predict what witnesses would say in their oral evidence. That led to other people being identified as possible witnesses to the inquiry.
I share the concern of the noble Viscount, Lord Goschen, about the cost of some inquiries. That cost, out of the public purse, in effect deprives public services of their proper development. I am concerned, however, that there would be an expectation of a chairman to give an estimate within a month. In the Victoria Climbié inquiry, we were well into it before it was possible for me to give the department any indication of what the final figure would be. I know that that is only one inquiry, and one limited experience. I hope, however, that the noble Viscount will accept that we should be wary about binding chairmen into an impossible situation.
Lord Howe of Aberavon: My Lords, I will add one or two syllables of advice, responding sympathetically to the point raised by my noble friend Lord Goschen. I suggest that the management of the inquiry may well be more economical if some time is taken before it gets stuck into its work.
I invoke one experience: the Aberfan inquiry started very quickly and understandably spent a great deal of time listening to all the evidence about ancient footpaths

37
over the mountain slopes, the location of tips, and so on. It took some weeks and months to discover the availability of a mass of aerial photographs taken decades before the accident happened, which enabled one to see, as a matter of fact, the answers to the questions about which ancient citizens had been giving conflicting oral evidence. More haste less speed is one piece of advice that is worth putting in.
Harking back to my more youthful days, another piece of advice is that it certainly is not necessary for representatives at inquiries of this kind to be double-barrelled, senior Queen's Counsel, supported by juniors on a varied and open scale. Much of the work can and should be done, not by novices, but by people who earnestly seek to advance their cause and their career. Those are two pieces of very practical advice that may go some way towards meeting the objectives of my noble friend. I apologise for taking up so much time to utter them.
Baroness Ashton of Upholland: My Lords, I believe that we are all of one mind in believing that the good management of costs is an important part of an inquiry. To the noble Viscount I say that the procedure rules are a critical part of that. If we want to ensure that we keep down final costs—I use the word "down" advisedly because we also want to ensure that inquiries have the resources that they need to carry out the jobs they are asked to do—there needs to be sensible control of expenditure during the proceedings.
There are merits in publishing cost estimates, and I am very glad that the noble Viscount took into account the matters that we raised about allowing the panel to get to grips with the job, as the noble and learned Lord, Lord Howe, said. The noble Lord, Lord Laming, indicated that from his experience it can take time before one is fully appraised of the situation and fully able to determine the costs.
The noble Viscount knows that I am reluctant to put such a provision on the face of the Bill. There are two reasons: first, I believe that the place for such a provision is in rules because I would want to have further conversations about whether four, five or six weeks is the appropriate time. From what the noble and learned Lord, Lord Howe, said, four weeks may be rather too soon for an initial estimate to be made. I do not know, but there are issues in relation to that.
The second reason is that I would like to undertake more than a simple exercise into the cost estimate; for example, I would want to see whether we could have updates on the progress against the estimates, or whether the estimates or figures should be broken down. To meet the point raised by the noble and learned Lord, Lord Donaldson, one could consider what one thinks the cost might be and one could reflect on the costs as the inquiry develops. As the noble Lord, Lord Laming, said, when one moves from 30 witnesses to 277 witnesses there are implications for the public purse, but those are appropriate implications. Those points are important and estimates should not simply
38
be set in stone to the point where one cannot reflect on them subsequently, which I know is not what the noble Viscount wants anyway.
I am very keen to have this matter dealt with in rules. When we publish the rules I intend to cover estimates of costs, and I see updates on progress against those estimates and so on as being particularly relevant. The noble Viscount knows that I must consult on the rules, as I have already indicated that I will, because of the other concerns. I can reassure the noble Viscount that we shall cover this point in rules.
I apologise to the noble Viscount that I did not answer the question on original costs of an inquiry properly. There is not an official figure, but I have a figure of £15 million which was the original thinking, as it was put to me—a guess that is on the file. There was not a formal estimate and that is why I have not been able to give a figure, but I am happy to put that in the public domain because I believe that the noble Viscount will be content that that is as close as I can get to an official estimate.
I intend to put in rules the fact that we need to consider having an estimate and we need to consider how we look at the estimate against progress. We also need to consider ways in which we might break down the estimate so that we can look, for example, as the noble and learned Lord, Lord Howe, has said. at issues of representation and so on. The noble Viscount can be reassured that I feel very strongly that this is an important issue. I hope that he will take heart from that and feel able to withdraw his amendment.
Viscount Goschen: My Lords, I thank the noble Baroness for that response. There now seems to be very little between us. I am not wedded to the fact that the point has to be on the face of the Bill. I want to ensure that such an estimate is made. The Minister has made her view clear that an estimate should be made and that she will consult on the best way to do that. On the timetable, I am not wedded to four weeks or six weeks, but to an appropriate period. I am happy to accept the Minister's undertaking that she will consult on the issue of an estimate.
However, I cannot accept the point made by the noble and learned Lord, Lord Donaldson, for whom I have great respect and who is very experienced in this area, particularly on maritime inquiries, a matter on which we have had many dealings with each other. No longer do I believe that there is an area of public expenditure where very substantial sums of public money can be used without at least a budgeting process taking place. I believe we are now past that point. However, I thank the Minister for her response and I am happy to accept her undertaking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Restrictions on public access etc]:
Lord Acknermoved Amendment No. 8:
Page 9, line 2, leave out "at any time before the end of the inquiry" and insert "in the instrument appointing the Chairman"

39
The noble and learned Lord said: My Lords, perhaps I might adopt and slightly adapt the words of Chorus just before the curtain goes up on Shakespeare's "Henry V":
"On your imaginary forces work. Think—when Lord
Ackner speaks you see Lord Saville of Newdigate".
Those of your Lordships who read the article in Friday's Times and the first leader in Saturday's edition will be aware of the issue between him and the Government: should the Executive have the power, after a public inquiry has commenced, to exclude the public and/or evidence before such an inquiry?
As a sitting Law Lord—a Lord of Appeal in Ordinary—the noble and learned Lord, Lord Saville, is party to the current decision of the Law Lords not to take part in the legislative process. I, with little other than alphabetical merit in this matter, have been asked to be the fall guy—hence my appearance before your Lordships.
In a sentence, the point of the noble and learned Lord, Lord Saville, is that the power given to the Minister under Clause 19 will fatally compromise the independence of the inquiry and damage public confidence in the independence of that inquiry and in its decision. Extensive correspondence was initiated by the noble and learned Lord, Lord Saville, between him and the noble Baroness, Lady Ashton, which commenced last January and ended today. Last Friday, I caused copies of that correspondence, with the exception of today's letter, which has been dealt with by the noble Baroness, Lady Ashton, to be placed in the Library.
I can sum up the rival contentions in that correspondence briefly. I begin with the letter of the noble and learned Lord, Lord Saville, of 26 January. He says:
"There is … one matter that seems to me to be of such importance that I should write to you. This concerns the present provisions of Clause 17"—
which is now Clause 19—
"of the Bill, giving the relevant Minister the power to impose restrictions at any time before the end of the inquiry on attendance at the inquiry, or on the disclosure or publication of any evidence or documents given to the inquiry".
He continued:
"I take the view that this provision makes a very serious inroad into the independence of any Inquiry; and is likely to damage or destroy public confidence in the inquiry and its findings, especially in any case where the conduct of the authorities may be in question".
He added that he,
"would not be prepared to be appointed as a member of an inquiry that was subject to a provision of this kind".
He took the view that,
"it is for the inquiry panel itself to determine these matters, subject of course to the right of those concerned to challenge in court any ruling",
or finding that the panel might make or refuse to make.
40
5 p.m.
The noble and learned Lord, Lord Saville, pointed out that his panel colleagues—namely, William Hoyt, formerly Chief Justice of the Canadian province of New Brunswick, and John Toohey, formerly a justice of the High Court of Australia—both told him that they too would not be prepared to accept an appointment to an inquiry that was subject to a provision of this kind for the reasons which he gave.
The noble and learned Lord considered whether there would be a basis for asking the chairman whether he might find it acceptable, as no longer interfering with the independence of the inquiry, if there was a discussion first before any decision was made. That issue has been raised on a number of occasions. But the Bloody Sunday inquiry examined security services and public interest immunity applications on the basis of an application being made to the panel and heard in the usual way. The same could apply equally to the Minister.
Virtually at the end of his letter the noble and learned Lord said that any inquiry must be, and must be seen to be, acting independently and impartially. He sent a copy of the letter to the Lord Chief Justice and the senior Law Lord.
The Lord Chief Justice wrote to the noble Baroness in these terms:
"I thought it would be of assistance to you to know that I support the views that he [the noble and learned Lord, Lord Saville] expresses. As I understand it those views do not mean that, in appropriate circumstances, the Inquiry would not take steps to ensure the protection of the public interest.
"If there are likely to be problems involving disclosure, the answer is to appoint Inquiry members who have sufficient experience and ability to deal with those problems".
The Minister replied on 1 February and I can briefly take her response. She said that it was quite wrong to think that the actual work of the inquiry would be restricted at all and that the independence and impartiality of its report would not be compromised in anyway.
The noble Baroness said that Ministers being able to restrict public access to an inquiry was not a new idea and that it had occurred in a number of recent inquiries, which she itemised. She pointed out that for certain reasons Ministers decided that recent health inquiries should be held on a partially private basis.
The Minister stated:
"The purpose of the restriction notice procedure set out in clauses 17 and 18 [now Clauses 19 and 20] … is to provide a menu of options, starting from fully public which is recognised as the aim to be achieved where possible, and allowing suitable degrees of privacy to be specified for any part of the proceedings".
On the concern that the giving of a restriction notice might damage or destroy public confidence in the inquiry and its findings, she accepted that that raised,
"a very real issue and it is for this specific reason that the provisions in the Bill require the Minister to weigh the impact on public concern that a notice would have against the risk of harm or damage, or reduced effectiveness".

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On the question whether it might be possible for the chairman to make restriction orders which could have exactly the same impact as restriction notices, the noble Baroness said that the criteria for issue of orders and notices were identical. She accepted that,
"cases can arise in which the quantity of information which requires restriction of public access is so great that the PII [public immunity interest] approach could not be adopted".
She agreed that,
"restriction notices should be subject to the consent of the chairman or panel".
She could see the point that while that had some attractions,
"it would result in the panel becoming formally associated with the Minister's decisions".
I do not think that I need go further into the various other matters in the Minister's letter, which the noble Baroness will bring out if she thinks I have unduly shortened them.
The reply to that letter was on 23 February. From that I will quote a very small part. The noble and learned Lord, Lord Saville, pointed out that the noble Baroness suggested that a restriction notice issued by a Minister would be incapable of restricting,
""the actual work of the inquiry' or compromising the independence and impartiality of its report".
The noble and learned Lord said that,
"the difficulty is that the imposition of restrictions by a Minister is likely in many instances to have a seriously damaging effect on public confidence in the independence of the inquiry, which in turn could lead to interested parties or witnesses withholding their co-operation, thereby distorting the evidence or submissions available to the inquiry and thus both diminishing the ability of the inquiry to reach unbiased conclusions and damaging the credibility of those conclusions".
The noble and learned Lord readily accepted that,
"there are situations in which it is reasonable to set up an inquiry on a private or partly private basis. Should a Minister decide to take this course, then it will be for that Minister to seek to explain (if the decision proves controversial) why this is preferable to a fully public inquiry. Those invited to sit on the panel will know the terms on which the Minister proposes to set up for the inquiry and if dissatisfied with those terms, will have the opportunity to decline appointment. However, Clause 19 is not concerned (or solely concerned) with the stage of setting up the inquiry, but as drafted enables the Minister to impose restrictions at any stage during the life of the inquiry. Thus the Minister could establish an inquiry on an apparently public basis, and then alter that basis".
I think that I have summarised sufficient of that letter. Today's letter essentially joins issue with that of the noble and learned Lord, Lord Saville. In thanking the Minister for her courtesy in replying in such detail to deal with his concerns, the noble and learned Lord stated:
"Sadly, they remain and accordingly I have decided to make them public".
That is how the articles came to be written in the Times on Friday and Saturday.
I submit that Clause 19 typifies the Executive's relentless drive to impose and extend their control over Parliament and the judiciary. The amendments, which
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are self-explanatory, are an important but relatively modest way to rein in the Executive. Accordingly, I beg to move.
Lord Kingsland: My Lords, the issue of restriction notices was dealt with in terms at Report. Indeed, so exercised were we on these Benches by the inclusion of restriction notices in the Bill that we asked the House to vote on the matter. The Government won the day. I regret that I was unaware of the views of the noble and learned Lord, Lord Saville of Newdigate, on these notices at the time of that debate. If I had been, I am sure that I would have cited them in support of my amendments, which were rather more radical than those tabled by the noble and learned Lord, Lord Ackner.
As always, I listened with great interest to the noble and learned Lord's speech. I support everything that he said. Indeed, that must follow from my speeches on the issue at Second Reading, in Committee and at Report. That is part of our more general concern that the Government have given themselves too much power to intervene in the whole process of inquiries. Our view remains that the Government should have the power, through parliamentary approval, to establish the inquiry, to select the members of the inquiry committee and to determine its terms of reference. Thereafter, it ought to be over to the chairman and his team to deal with the matter exclusively until the final report is published.
Lord Goodhart: My Lords, I have seen the correspondence to which the noble and learned Lord, Lord Ackner, referred. His amendment moved in response to that correspondence is, as the noble Lord, Lord Kingsland, pointed out, similar to an amendment moved by the noble Lord that was debated and voted on at Report. We on these Benches voted against that amendment.
There is a difference between the amendment of the noble and learned Lord, Lord Ackner, and that of the noble Lord, Lord Kingsland, and I accept that the difference is important. The noble and learned Lord's amendment would permit a restriction notice to be made by a Minister on the setting up of the inquiry, but not during its course; the amendment of the noble Lord, Lord Kingsland, would have eliminated the power to make a restriction notice altogether. However, that difference is insufficient to alter our attitude.
At Report, in response to a speech of my noble friend Lord Lester of Herne Hill, the Minister accepted that a restriction notice would be subject to Article 10 of the European Convention on Human Rights and would therefore be lawful only if it were necessary for one of the purposes specified in Article 10.
5.15 p.m.
I think that everyone would accept that some inquiries should be wholly or partly private—for example, the Alder Hey inquiry into body parts of dead babies. That can sometimes be foreseen and covered when the terms of reference are fixed, but not always. In practice, of course, a chairman would

43
always be consulted on the making of a restriction notice and any objections by the chairman would hardly be overridden. A chairman could always say at the start that he or she would take the appointment only on the basis that the Minister would not issue any restriction notice. If such an undertaking is not sought or given, the chairman always has the nuclear option of resignation if he or she disagrees with the Minister's decision to impose a restriction notice. No government would want to face that.
On the other hand, I can also foresee circumstances where a chairman who is not a part of the political mainstream could be faced with a difficult decision and could say to the Minister, "I am prepared to accept your decision if you wish to make a restriction notice, but you are the politician; it is your responsibility; and you must carry the can". In many cases, it is appropriate for that decision to be taken by someone who is accountable to Parliament.
Given the constraints on ministerial action of Article 10, we do not see a danger in allowing the Minister to decide whether a restriction notice should be made. In reaching that conclusion, we bear in mind that any such decision will be subject to judicial review. We also note that the Government have accepted by amendments adopted at Report that the restriction notice will last only until the end of an inquiry. After that, restricted information will be subject to disclosure under the Freedom of Information Act, subject, of course, to the usual statutory exemptions. We welcome the fact that, as we originally proposed, the Bill disapplies the absolute ban on disclosure of inquiry documents that previously existed under Section 32(2) of the Freedom of Information Act.
In the circumstances, I must say that I think that the noble and learned Lord, Lord Saville, is being alarmist. I regret the fact that that argument was raised only at such a late stage of our proceedings. We will therefore be unable to support the amendments of the noble and learned Lord, Lord Ackner.
Lord Laming: My Lords, briefly, I wholly support the documents advanced by the noble Lord, Lord Goodhart. I will not cover similar ground, because he has covered it very much better than I could hope to do. I think that some of the points raised in the newspaper article were misleading and would have benefited by being raised during our earlier deliberations. I am more familiar with inquiries that take place in the health service or in cases such as that of child abuse in social care.
The restriction orders proposed in this clause set out, as the noble and learned Lord, Lord Ackner, fairly said, a menu to be used appropriately in different and peculiar situations. Having been previously subjected to a judicial review alongside a Secretary of State who made decisions thought to be unreasonable—indeed the court found that he had behaved unreasonably; and me alongside him, which
44
was a great shock to the system—I have to say that the safeguards in the Bill are sufficiently strong and I agree absolutely with the noble Lord, Lord Goodhart.
Baroness Ashton of Upholland: My Lords, this has been an interesting debate. As the noble and learned Lord, Lord Ackner, said—he quoted from it—I have been corresponding with the noble and learned Lord, Lord Saville, on this point. I placed a copy of my full reply in the Library this morning. I understand that the amendments were drafted by the solicitor to the inquiry of the noble and learned Lord, Lord Saville, and reflect the noble and learned Lord's view.
I have sought to correct the inaccuracies in a leader in the Times in particular by sending a letter to the Times over the weekend. Sadly, it was not published this morning as I had hoped. I wish to make it clear to your Lordships that the Bill does not give Ministers any power to decide what evidence an inquiry should hear: on the contrary; it gives inquiries full powers to collect and use all the evidence needed to establish the truth. I hasten to add that I am not suggesting that the noble and learned Lord, Lord Saville, does not understand that point, but the Times did not appear to.
The Bill makes it clear that an inquiry should be public unless either the Minister who sets it up or the inquiry chairman specifies otherwise. Noble Lords have referred in the course of the debate to particular instances; not least the Alder Hay inquiry where the relatives of children whose body parts have been kept asked that the inquiry be private.
The grounds on which either the Minister or the chairman can specify privacy are clearly set out in the Bill. That ministerial power is not new but the safeguards on its use are, which is important. We discussed the issue thoroughly when we debated the amendments in the name of the noble Lord, Lord Kingsland, on Report. On Division the House accepted the principle of the position, including the power to give notices during the course of the inquiry, to which the noble Lord had drawn the House's attention as his prime concern—if my reading of Hansard is correct.
I shall briefly explain the issues again. We know that as part of setting up the overall form of inquiry the Minister needs to make decisions about public access before it starts. We are all agreed that that is appropriate. However, as the noble Lord, Lord Goodhart, said, it is not always possible to predict what is going to come up. As the inquiry panel pursues its task it may encounter areas of evidence or evidence may be forthcoming that it had not anticipated when the inquiry began.
The chairman will often issue restrictions needed during the inquiry. If it comes across an unexpected area that it had not considered when the panel was appointed, it is possible that the chairman will not have the expertise or experience to measure the risk to national security or the impact on the economy or international relations, or whatever the issue is. Sometimes it would not be fair to expect the chairman to do so.
As the noble and learned Lord, Lord Ackner, indicated, the amendments are drafted in such a way that any restriction notice could be served at the time

45
that the chairman is appointed under Clause 4 before the inquiry is set up in Clause 5. At that early stage the range of evidence that the inquiry needs to consider may be not at all well defined. It may not be possible to define well enough what degree of restriction on public access is the minimum necessary in the public interest, taking account of the criteria that I have indicated are set out for the first time in legislation in Clause 19.
One of the duties of Ministers is to protect public interest. That duty does not disappear when an inquiry gets underway. If they have set up an inquiry they are ultimately accountable both to Parliament and to the European Court of Human Rights for any damage that might result from it. If a person—heaven forefend—should die as a result of information being disclosed, the government not the chairman will be taken to court in Strasbourg for a breach of Article 2.
I agree that it is important that public confidence in the impartiality of an inquiry panel is not compromised. It has been one of the consistent themes of our debates on the Bill. But the risk of not issuing a restriction notice might also be great. I make it clear that the restriction is only about who can be in the room and what they might say about what they have heard. It does not restrict what witnesses say in or when they leave the room. It is purely about who is in the room and what they say about it.
It would be wrong to leave the legislation without allowing Ministers in unusual circumstances to be able to prevent such harm. It should require Ministers to weigh up the factors, which it does in Clause 19(4). In each case, there is determination of where the public interest lies. That is a longstop power, but an important one. I hope on that basis and not least because I have described the impact of the amendment before us and—I hope the noble Lord, Lord Kingsland, will not mind me saying so—because we debated the issue fully before the vote last time, the noble and learned Lord will be able to withdraw the amendment.
Although the noble and learned Lord, Lord Ackner, said that my correspondence was at an end, I am happy to continue to talk to the noble and learned Lord, Lord Saville, and to meet him and discuss the issues further as the Bill continues its progress. I have no hesitation in putting that offer on the table. I hope that on that basis the noble and learned Lord will be able to withdraw the amendment.
Lord Ackner: My Lords, I would like to stress how important the distinction is between the amendment that I have put before the House and the one that was previously voted on. The suggestion that this issue has already been decided by implication is wrong. We are concerned with the chairman's ability to maintain public confidence in the inquiry over which he and his panel are presiding.
There is no chairman who has had as long and as difficult as experience of manning an inquiry as my noble and learned friend Lord Saville. In the course he has achieved an ability to assess what the situation
46
would have been in his highly sensitive inquiry if the Minister had at any stage intervened in order to control the privacy or the extent of the evidence.
Baroness Ashton of Upholland: My Lords, I am sorry to interrupt the noble and learned Lord, but I was specific that the only restriction that the Minister can have is on public access and what the public who attend can say about the evidence that they have heard. There is no ability in the Bill for the Minister to restrict what the witness says or the evidence that comes to the inquiry; it is quite the opposite.
Lord Ackner: My Lords, I am grateful to the Minister for her correction. Even with the Minister's limited ability, my noble and learned friend Lord Saville was able to say that if the Minister had used those powers in relation to his inquiry, public confidence, which he and his panel had managed to maintain, would have drained away. There is the assessment by a chairman now of vast experience as to what would happen if the Minister intervened as she Minister would wish to do.
The Minister remains like any other individual perfectly capable of making an application with regard to the form and nature of the type of restriction that he would like to see imposed. He like any other member of the public can make that application; and if discontented with the result, proceed to judicial review, as has happened in other cases in the past.
There is a world of difference between outlining at the outset the terms and extent of the inquiry and the powers of the chairman and his panel; and interfering at a later stage without defining that situation. My noble and learned friend Lord Saville would not have accepted the appointment had he known that the Minister was to have those powers. That, in my respectful submission, says everything that needs to be said. I would like to test the opinion of the House.
5.30 p.m.
The Deputy Speaker (Lord Lyell): My Lords, the Question is that Amendment No. 8 shall be agreed to. As many as are of that opinion will say, "Content". To the contrary, "Not-Content". I think that the "Contents" have it. Clear the Bar.
Division called.
Tellers for the "Contents" have not been appointed pursuant to Standing Order 54. Therefore, a Division cannot take place and I declare that the "Not-Contents" have it.
Amendment negatived.
Clause 20 [Further provisions about restriction notices and orders]:
[Amendments Nos. 9 to 12 not moved.]
Clause 25 [Publication of reports]:
Lord Kingslandmoved Amendment No. 13:
Page 12, line 9, leave out "Minister, or the chairman if subsection (2) applies," and insert "chairman"

47
The noble Lord said: My Lords, I can deal with this group of amendments quite speedily. The issues have been extensively discussed in all earlier phases of the Bill. They deal with whether the Minister should have control over the publication of a report. The amendments would remove any role that a Minister might have in the publication of the report and would leave both the report's substance and the timing of its publication to the chairman.
The reason behind the amendment is exactly the same as that behind several earlier amendments concerning the balance of power in the inquiry process between a Minister and a chairman. It is wholly inappropriate that the Minister should be able to influence either the content or the timing of a report of an inquiry. I beg to move.
Baroness Ashton of Upholland: My Lords, as the noble Lord, Lord Kingsland, has said, we discussed the amendments in great detail in Committee and at Report, so I shall be brief. The clause introduces a new general obligation to publish reports. It reflects past practice by making publication generally a matter for the Minister—who will also lay the published report before Parliament under new Clause 26—but allowing for the chairman to publish it if that is more appropriate.
The person publishing the report has limited powers to withhold information, which is very important. As I have already indicated, Ministers have a duty to protect national security and the economy, and to protect individuals' rights under the European Convention on Human Rights. They have to be able to fulfil that duty.
Ministers, of course, will have access to the expertise to determine whether the disclosure of particular information is likely to cause damage. I know that noble Lords have concerns about the powers for the person publishing the report to withhold that information, but those powers are very limited Information can be withheld only if it is required by law or necessary in the public interest.
Clause 25 makes very clear that the reasons for withholding information "in the public interest" are very limited—for example, a risk of damage to national security or the economy, or a breach of a confidentiality agreement. Those risks have to be weighed against the extent to which withholding that material would inhibit the allaying of public concern.
We have introduced new subsection (7), which ensures that the powers to withhold information cannot override the requirements of the Freedom of Information Act. A person therefore could make a request under the Act for any information that had been withheld from a report, with a right of appeal to the Information Commissioner.
We believe that we have the balance right, especially with the introduction of new subsection (7). On that basis, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kingsland: My Lords, I am most grateful to the noble Baroness, as always, for her thoughtful reply.
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She has rightly identified the kernel of our concerns in Clause 25(4)(b), where the degree of discretion that is given to the Minister to withhold material is too wide; namely,
"as the person considers to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (5)".
It is true that the matters set out in subsection (5) are reasonably constraining, but they are not a conclusive list of what has to be considered. In our view, the discretion of the Minister is not sufficiently hedged about.
However, I am aware that my noble friend Lord Goodhart does not take the same view about this clause as I do. In those circumstances, I see no useful purpose served in seeking to test the opinion of your Lordships' House. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 14 to 16 not moved.]
Clause 35 [Offences]:
Baroness Ashton of Uphollandmoved Amendment No. 17:
Page 18, line 10, after "do" insert "—

(a) by the inquiry panel, or

(b) "

The noble Baroness said: My Lords, on behalf of my noble and learned friend Lord Falconer, I move a minor and technical amendment. It will ensure that offences of distorting or suppressing evidence do not cover actions that are authorised by the inquiry panel. I am grateful to the noble and learned Lord, Lord Saville, for bringing the issue to my attention. For example, the amendment will ensure that it will not be an offence to conduct forensic testing of a piece of evidence where the panel has so directed. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made.
Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
On Question, Bill passed, and sent to the Commons.

Disability Discrimination Bill [H.L.]
5.41 p.m.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Disability Discrimination Bill, has consented to place her Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 2 [Discrimination by public authorities]:
Baroness Hollis of Heighammoved Amendment No. 1.
Page 4, line 22, leave out "subsection (8)" and insert "subsections (8) and (9)"
The noble Baroness said: My Lords, in moving Amendment No. 1, I shall address also Amendments Nos. 2, 3 and 21. The amendments fulfil the promise which I made on Report to ensure that our policy intention is fully realised in respect of public office holders. Debate in the House about public office holders prompted me to revisit the exact drafting of Clause 2. In the process, I realised that although the clause covered appointments, it did not necessarily provide full coverage of duties.
We had intended to protect public office holders not already covered by the DDA, or elsewhere in the Bill, through the provisions in Clause 2 relating to public functions. However, as I have said, the Bill covered only the function of appointing an office holder. The treatment of an office holder once in post was not covered, nor were the arrangements of a public authority for holding elections for some office holders such as parent governors of schools. The amendment would put those omissions right.
New Section 21B(8) of the 1995 Act will be amended to ensure that a public authority's acts vis-à-vis an office holder in post are covered. The amendment will achieve that by ensuring that posts not already covered under Sections 4C to 4F of the DDA will come under new Section 21B through Clause 2. The intended subsection (9) resolves the issue of protection of office holders who are elected.
I repeat that the inserted subsection (9) will ensure that a public authority cannot discriminate against an elected disabled office holder once he or she is in post. The process of election remains not covered. MPs, Peers, MSPs and Members of the Welsh Assembly are excluded. Our revised or supplementary approach to public office holders is warmly supported by the DRC. I am confident that it will have the full support of your Lordships. I beg to move.
Lord Skelmersdale: My Lords, the House will be extremely grateful to the Minister for following up the rather thorny question of who in public office will be protected from discrimination under the DDA. As drafted, the Bill did not make that at all clear. As the Minister told us on Report, she concluded that public office holders would not be covered as comprehensively as the Government had intended, as the Bill did not cover a person holding a post, only the appointment to that post.
The amendments will correct the oversight and are yet another example, should one be needed, of how your Lordships' House, in reviewing the legislation presented to it, corrects a flaw and moves on. Long may it continue to do so, and long may it be allowed to continue to do so.
On Question, amendment agreed to.
Baroness Hollis of Heighammoved Amendments Nos. 2 and 3:
Page 4, line 26, after "to" insert ", and in relation to a public authority's functions with respect to a person as holder of,"
Page 4, line 30, at end insert—
"(9) Subsection (1) does apply in relation to a public authority's functions with respect to a person as candidate or prospective candidate for election to, and in relation to a public authority's functions with respect to a person as elected holder of, an office or post if—

(a) the office or post is not membership of a House of Parliament, the Scottish Parliament, the National Assembly for Wales or an authority mentioned in section 15A(1);

(b) none of the conditions specified in section 4C(3) is satisfied in relation to the office or post; and

(c) sections 4D and 4E would apply in relation to an appointment to the office or post if—

(i) any of those conditions was satisfied, and

(ii) section 4F(1) (but not section 4C(5)) was omitted.

(10) Subsections (8) and (9)—

(a) shall not be taken to prejudice the generality of subsection (1), but

(b) are subject to section 21C(5)."

On Question, amendments agreed to.
Clause 3 [Duties of public authorities]:
Lord Rixmoved Amendment No. 4:
Page 8, line 22, at end insert—
"( ) In determining their duty under subsection (1), public authorities which provide health care services shall pay particular attention to the need to eliminate discrimination against persons with a learning disability."
The noble Lord said: My Lords, the amendment follows on from a recent exchange of letters between the Minister and me. It is an opportunity for her to put on the record the Government's desire to tackle the inequalities faced by people with a learning disability when trying to get access to healthcare. The Minister will know that research shows that preventable mortality for people with a learning disability is four times that of the population at large.
In my recent letter to the Minister, I summarised the case of Victoria, who has severe and profound learning disabilities. Victoria is one of many people who featured in Mencap's Treat me right! report, which highlighted the often appalling treatment faced by many people with a learning disability when trying to access healthcare services. Victoria's mother overheard a doctor saying about her daughter, "That's not coming into my room. It will destroy the equipment". For so many people with a learning disability, that is the terrible and shocking reality.
There is no doubt that the NHS systematically fails people with a learning disability. The Disability Rights Commission is, of course, listening carefully to this short debate. I hope that the Minister's response will

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give it as clear a steer as possible, as it writes its healthcare codes of practice. The issue must be an urgent priority. The current inequalities in healthcare outcomes for people with a learning disability must be tackled. I beg to move.
Lord Skelmersdale: My Lords, the noble Lord, Lord Rix, has made an important point, in highlighting this problem. In this area, I take his words—I think that we all do—as gospel.
With regard to the duty of public authorities, there is a clear need for employees to be trained to recognise and work with those with learning difficulties and to have the care, consideration and patience to do so. Clearly, that was not the case in the example that the noble Lord just gave.
I question the amendment on a technical point: the definition of "learning disability". One wonders whether it includes those with mild dyslexia or only those at the Asperger's end of the scale.
Be that as it may, the noble Baroness may well tell us that the necessity for a public authority to pay particular attention to the need to eliminate discrimination in its health service provision to those with a learning disability is already covered. The original Disability Discrimination Act contained provisions to ensure that adequate safeguards were in place to prevent discrimination against disabled people in the provision of hospital services, and I hope that the Minister will assure us that health services provided by public authorities are also covered by Clause 3. As I understand it, the powers to impose a duty regarding local health services and learning disabilities is covered by new Section 49D, although that duty is not spelt out in the Bill.
Will the noble Baroness assure us that the power in new Section 49D will be used to ensure that public authorities will, in running their health services, social services and other services, take into account not only those with learning disabilities but also all disabilities to be covered by this Bill?
Lord Addington: My Lords, I speak briefly to emphasise the point made by the noble Lord, Lord Skelmersdale. I hope that the Minister will be able to tell us that such things are already covered. If any group is excluded because it is deemed to be slightly too difficult or inconvenient, that will reveal a hole in the Bill that I had not thought to be there. We need an assurance from the Minister that the amendment is not needed.
If groups of people with a different aspect of disability come into play and there is no wheelchair to be seen, people panic. I hope that the Government are sure that they have mended this potential hole in the road.
Baroness Hollis of Heigham: My Lords, I hope that I am able to give the assurances asked of me and that, therefore, the noble Lord, Lord Rix—I will call him my noble friend— will withdraw his amendment. We
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all pay tribute to his work and I think he was anxious to have a government statement in Hansard today, so that the situation is unambiguous.
I fully agree with your Lordships that the purpose of the Bill and of this duty are to make a difference to the lives of disabled people, whether they have a learning disability or any other impairment. It is a sad fact of life that learning disabled people still experience institutional discrimination when they interact with public services. The health sector is no different.
For example, one study that I was reading over the weekend has found that learning disabled people are 58 times more likely to die before the age of 50 than non-disabled people. The statistic is due not to their impairments but to their access to suitable health care. It also gave the example that although 75 per cent of non-learning disabled women take up mammography, only about 25 per cent of learning disabled people do so.
Such figures illustrate why it is so important that the duty to promote equality is implemented effectively in the health sector as in other parts of public life. It is precisely this type of discrimination that the Bill seeks to address.
The Government will be working closely with the DRC to ensure that the duty is implemented effectively. As your Lordships will be aware, we published draft regulations recently that could be made under powers granted by clause 3. Our consultation document, Delivering Equality for Disabled People, made it clear that the duties will be applied widely across the health sector.
The DRC has already published its draft code of practice on the duty. I am glad that the consultation on the code will include events particularly focused on health issues. I am also sure that the DRC's formal investigation into the health inequalities experienced by learning disabled people and people experiencing mental distress will also be fruitful in informing the development of guidance and best practice.
I hope therefore that your Lordships will accept that we are meeting the spirit of what the noble Lord, Lord Rix, asks for and that he will withdraw his amendment.
Lord Rix: My Lords, I thank the opposition Benches for joining this short debate and, in effect, supporting me. Obviously I am not going to press this amendment to further debate or to a Division. I am exceedingly grateful to the Minister for her warmhearted and fully fleshed-out response. It is exactly what I was hoping for. We now have a statement in Hansard, which the Disability Rights Commission will be able to consult when they issue their codes of practice.
I also thank the Minister. I have had occasions to thank her on many occasions in this House. The first time was over the question of SERPS, but that is going back rather a long time. I think SERPS is coming up again later today—but there we are. I shall not be here to hear what goes on.

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I welcome this truly excellent Bill and the manner in which the Minister has listened to the advice, which all sides of the House have offered, and considerably improved what is already an extremely good Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Higginsmoved Amendment No. 5:
After Clause 5, insert the following new clause—
"SCHOOL BUSES
In the 1995 Act, after section 47 there is inserted—
"47N SCHOOL BUSES
The provision of this Act and the regulations made under them shall apply equally to school buses regardless of whether they are provided by local authorities or privately.""
The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Skelmersdale. The provisions of the Bill and regulations made under it should apply equally to school buses, regardless of whether they are provided by local authorities or privately.
We raised this matter at earlier stages. The noble Lord, Lord Davies of Oldham, kindly wrote to me following those debates and dealing with this matter. There are still one or two points that seem to be remarkably obscure. Perhaps the noble Baroness, Lady Hollis, could clarify the position for us.
In his letter, the noble Lord said that the Disability Discrimination Act 1995 allows for accessibility regulations to be made for other services and for smaller vehicles—22 passengers or fewer—but such regulations have not yet been introduced. It is of course 10 years since the passage of the Act. Is it the Government's intention to do anything about that?
The remainder of my remarks will be confined to those buses that carry more than 22 people. If it is operated by a local authority and providing no one pays, it would seem that it is exempt. I am not clear to what extent such local authority buses, while exempt, will meet the provisions of the Bill.
The other matter that I am still uncertain about is the situation for school buses provided by parents. Again, the noble Lord said in his letter that a group of parents using a minibus that they own or have leased or chartered to carry, provided that the cost is divided, would probably not be within the scope of the Bill. That is certainly so, because he has introduced the question of a minibus again, but I am not clear what the position is for a bus operated by a group of parents who have clubbed together for their children. The crucial issue would seem to be whether it is operated for hire or reward; that is the point we are not clear about. If they club together and, presumably, contribute equally to chartering the bus, is it obliged to provide adequate
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facilities for disabled children going to school? Perhaps the Minister could clarify that, since there seems to be some uncertainty in the letter. I beg to move.
Baroness Hollis of Heigham: My Lords, I apologise for my noble friend Lord Davies, who would wish to be here, but is at the moment handling the Railways Bill.
Lord Higgins: My Lords, we commiserate with him.
Baroness Hollis of Heigham: My Lords, my noble friend might also commiserate with me, because in his absence I am taking on the transport amendments of this Bill, which previously I have been able to depend on my noble friend to deliver for me.
As the noble Lord, Lord Higgins, acknowledged, my noble friend Lord Davies wrote to him. Let me be clear: school buses are already required to comply with accessibility regulations under the DDA 1995 if they are operated as public service vehicles, regardless of whether they are operated by local authorities or privately.
The noble Lord was right about what a public service vehicle is. It is defined in the Public Passenger Vehicles Act 1981 by whether it is carrying passengers in return for payment. The term used in the Act, as the noble Lord identified, is "hire or reward". Accessibility regulations can be made to apply to PSVs—public service vehicles—of a prescribed description and used in prescribed circumstances.
The existing public service vehicle accessibility regulations apply to new vehicles used on local or scheduled services on or after 31 December 2000 with a carrying capacity of more than 22 passengers. Local services and scheduled services both include in their definition a requirement that passengers are carried as separate fares. Any such PSV used on a school service, where hire or reward is taking place, is already caught by accessibility regulations. Whether the service is provided by a local authority or a private operator makes no difference. What does make a difference is whether any passengers are carried as separate fares, which includes payment for the right to travel as part of a larger payment.
The first question of the noble Lord, Lord Higgins, was about when regulations would be made for smaller vehicles. The first point is that a vehicle comes within the framework of accessibility is if it has more than 22 seats. If the answer to that is no, the accessibility requirements do not apply; if there are over 22 seats, they do. We have no timetable in place, but we have said that we would consult further on any future extension of the regulations before we did so. Although that was done 10 years ago, we do not believe that it has yet been deemed appropriate to proceed with extending the regulations to vehicles with fewer than 22 seats.
6 p.m.
The first question to ask about school buses and the degree to which the requirements apply to them is, "Are there more than 22 seats?". If there are not, they

55
are exempt; if there are, we go to the next question, which is, "Is the vehicle operated for hire and reward?". The operators of such vehicles will normally require some form of operating licence or permit. On a bus provided by the local authority or bus operator, provided that a fare is paid, even if only by some of the students, when others are entitled to free transport, the vehicle would be a PSV.
We then go on to the third question, which is "What happens when the bus is provided by parents?" The situation is then more complex. A bus with a driver which was chartered by a group of parents from a third party would be a PSV, because the bus has been chartered for the hire and reward of the bus driver and bus company. However—and this may be the situation that the noble Lord had in mind—a group of parents who use a vehicle owned, leased or chartered by them jointly to carry their own children would probably not be regarded as a PSV, provided that the cost is divided equally among them, and one of the parents drives, because no hire or reward is taking place. In practice, in my experience, many of those vehicles have fewer than 22 or even 16 seats and would be exempt in any case. The situation would be different, however-subject to the size of the vehicle—if one parent owned the bus and other parents paid for their children to be carried. In those circumstances, the vehicle would clearly be operated for hire or reward and would be a PSV.
For buses provided by a state school, provided that the passengers made no contribution to the cost of travel and no contribution was made on their behalf, no hire or reward is taking place and the vehicle is not a PSV. When contributions are made for travel, it is a PSV. Since private schools charge pupils fees for the whole of the education service that they provide, they would probably be regarded always as operating buses for hire or reward, because the transport service is part of the overall service by which the fees are charged.
Lord Higgins: My Lords, the Minister says "probably". Can she clarify that?
Baroness Hollis of Heigham: My Lords, the problem is in defining what is covered by the fees for the education service. On the assumption that a private school will do nothing for free, because everything is part of the fee paid by the parents and included in its fees package, either explicitly or generally, it would be covered by the regulations. The closer a school bus arrangement in either the private or state sector comes to the equivalent of car share, the more likely it is to be exempt. The clearer it comes to the convention of PSV, which states that some parties are paying for some passengers, either directly or indirectly, it is on the PSV side. But behind all that lies the dividing line of whether the vehicle has 22 seats or more.
The first question is size and the second is, "Is it a PSV, and what are the tests for a PSV?". The test is hire or reward; if there is hire or reward, it does not matter whether the provider is a local authority, a state school or a private school as long as people are paying. The closer the situation is to a car share, the less likely it is
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that the vehicle qualifies as a PSV; the more it is clear that some or all are paying, the likely it is that it will be a PSV, subject to there being more than 22 seats.
I do not know whether that helps the noble Lord. I am slightly departing from my brief, but I am confident that my explanation is accurate. I hope that with my comments, the noble Lord will feel able to withdraw his amendment.
Lord Higgins: My Lords, I am most grateful to the Minister, who is always more lucid when she departs from her brief. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Rail vehicles: application of accessibility regulations]:
Baroness Hollis of Heighammoved Amendment No. 6:
Page 13, line 2, after "regulations)," insert "before subsection (5) there is inserted—
(4A) The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on and after I st January 2020 every rail vehicle is a regulated rail vehicle, but this does not affect the powers conferred by subsection (5) or section 47(1) or 67(2)."
( ) In that section,"
The noble Baroness said: My Lords, these amendments have been divided into two sets on a major concern, not so much for the Government but for noble Lords on the Opposition Benches. I do not believe that I need to discuss in any great detail two of the government amendments, unless your Lordships wish me to. I have a speech of 15 or 20 pages, but I do not propose to repeat what I believe is agreed by all sides—first, that there should be a cut-off point for rail vehicles of 2020 and, secondly, that there should be annual reports on the workings of the procedure. I take it that that is common ground between us.
As far as I can judge, having been a spectator at previous debates, we have built agreement around those two items. The area on which there was disagreement was whether the Government's case that they will need power to make exemptions beyond 2020 is legitimate. If your Lordships agree, I shall concentrate on that area alone, but I shall try to answer wider questions if they arise. But it seems silly to repeat arguments that noble Lords have already discussed, far more expeditiously, with my noble friend Lord Davies of Oldham at previous stages.
Lord Higgins: My Lords, the group is very much wider than the Minister suggests, since it includes the proposals for affirmative resolution and annual reports. It is an unfortunate grouping, but that is how the Government grouped it.
Baroness Hollis of Heigham: My Lords, again I shall depart from my brief. I had thought that there was consent around the notion of the annual report, which is why I assumed that that was accepted. I was assuming, too, that we all accepted that there should be a terminal date of 2020 for rail vehicles.

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Perhaps I should enlarge on the process that we are suggesting before 2020. First, there will be a set of framework regulations for the period before 2020 which would lay out what exemptions before 2020 needed to come to your Lordships' House under the affirmative procedure and what could be handled under the negative procedure. We have given assurances that those draft regulations setting out the framework would be affirmative. I am very happy to circulate those in advance, so that we can consider the provisions, whether on issues of cost or time or whatever.
What I judged to be the main concern, however, was whether 2020 should be absolute as a line that we draw and therefore whether exemptions should be tolerated or permitted beyond that time. If the noble Lord would like me to expand any further on the period before 2020, I am happy to do so. We have set up by agreement a two-step process, which will I hope satisfy your Lordships. The core of our disagreement is found in the question, "Why do the Government believe that we need a power to make exemptions beyond 2020?". That is the core issue to address today.
There are four questions that noble Lords may wish to put to me, and I shall try to answer. First, why are any exemptions needed at all? Some of the ground will be familiar but, if we do not have exemptions, vehicles used on systems such as the London and Glasgow undergrounds are unlikely ever to be able to meet the full requirements of the accessibility regulations by virtue of their infrastructure—for example, the tunnels and so on. There is general agreement that in the case of Glasgow, it would be impossible for the vehicles to meet the requirements of the regulations in relation to wheelchair accommodation.
Similarly, with regard to the London Underground, the size of the tunnels on the Victoria Line restricts the use of vehicles. In turn, that means that if the vehicles used on that line were to be fitted with RVARcompliant handrails in the doorway area, they would pose a serious head-strike hazard to many passengers. We are trying to balance one requirement against the other. So the first point is why the exemptions are needed at all. There will be some situations, such as with the London and Glasgow undergrounds, in which we judge that the vehicles can never be fully compliant. It is necessary to provide exemptions for those systems, in the event that they remain legally operational beyond 2020.
The second question is, "Why not list those exemptions?". I believe that was proposed at an earlier stage. Exemptions may be listed in primary legislation—why should we not do that? Well, we would not want to exempt the rail vehicles used on such systems from all the requirements of the rail vehicle accessibility regulations. While the Glasgow underground may not be able to meet all of the requirements for wheelchair access, there is no reason why it should be exempt from all of the other requirements, for example, on colour and tonal contrast. On London Underground, while on vehicles used on certain lines, such as the Victoria Line, there may be difficulty in meeting the regulations in full, there will be other lines, such as the District Line, where the vehicles could be made fully compliant. We could not accept a
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broad exemption in the Bill, for the reasons that I have outlined. We must be much more discriminating than that to ensure that disabled people enjoy the fullest possible rights.
Lord Oakeshott of Seagrove Bay: My Lords, I am grateful to the noble Baroness for giving way. We discussed this issue at considerable length with officials and with her noble friend Lord Davies. I am pleased to hear that the lines are the Glasgow underground and possibly one line of the London Underground. Is it possible to list an exemption and say from which elements they are exempt? I understand her point that we would not want a blanket exemption, but why not focus that now? We are talking about 15 years ahead. Would that not meet our point?
Baroness Hollis of Heigham: My Lords, I genuinely do not know. Others here have expertise on transport that I do not have. For example, with some of the proposed lines for London, I do not know whether the infrastructure proposed will in the future permit the sort of regulations, and the degree of exemptions, that we may wish to see. I cannot foresee that; I do not know. I am talking here largely about infrastructure issues where it would not be reasonable to seek to impose things that would effectively close those lines down. Given that none of us can foresee what the underground systems may look like by 2020, I certainly do not know the infrastructure constraints that may operate.
That is one explanation that was given to me about why it is better to do what your Lordships wish by exempting, in detail if need be, rather than having it in the Bill and having to qualify in regulations which parts continue to be included under the accessibility regulations and which do not. That must be a more clumsy way of doing it than the way proposed by the Government. It has the same effect; but the solution offered by the noble Lords, Lord Oakeshott and Lord Higgins, seems to be clumsier, and were it to be pursued it could be manipulated to the disadvantage of disabled people.
Exemption orders could be used to impose conditions on the operator to assist disabled people by negating some of the problems arising from non-compliance. For example, vehicles fitted with a flexible table, which at its lowest point is non-compliant with the RVAR, are exempted only on the condition that a member of staff is available to adjust the table. Blanket exemptions in the primary legislation would prevent the imposition of such conditions and would lessen the quality of services for disabled people. We cannot predict what will happen with future designs for wheelchairs, or what other systems may fall foul of those regulatory requirements. We have tried to future-proof as much as we can, but it is not possible.
Again, I look to my noble friends Lady Wilkins and Lady Masham. It is not inconceivable that wheelchairs will continue to develop. I hope that they will—for the very few months that I was in a wheelchair, I could never manage stairs or kerbs, because I could not get the tilt right without falling over. It may well be that wheelchair

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designs will become much more effective in dealing with that hazard. That may in turn have physical space constraints that we have not anticipated, and if necessary we would like to be able to revisit that. Take for example the proposed ULTra system for Cardiff Bay. The vehicles used on that system would be subject to the RVAR, but as each vehicle can carry only four people it would require a number of exemptions to enable it to operate. We cannot foresee where we may be four years, or even 15 years, down the line.
6.15 p.m.
It is not only for systems that I would regret trying to scrap the exemption power. Experience of working with the RVAR since 1998 has shown that because of the rapid and ongoing advance in rail vehicle technology it is not possible to produce regulations at any time that will cater for all future developments in vehicles. I was given an example of where we may grant an exemption for two years to allow a new system using LED displays to be used to demarcate the floor between the vestibule and the passenger saloon. A two-year exemption period would provide sufficient time for it to be tested and for appropriate research to be carried out. If the first question that I am seeking to address is, do we need them at all? The answer is yes, for the Glasgow and London undergrounds, and for all I know maybe for Crossrail, and maybe for Cardiff ULTra.
Secondly, why can we not list them in the Bill? Because we need to be much more discriminating, specific and detailed. We get the same effect, but with greater coverage for disabled people by doing it through the exemption procedure. Thirdly, why not simply change the regulations, rather than doing it through exemptions? Does that give greater control over the process? No, because if you have regulations they must apply across the board.
The two big issues with rail transport accessibility are wheelchair access and public information services. Some 90 per cent of trains will be compliant with wheelchair regulations; public information services are harder. What blind or visually impaired people may wish for is not always what those people with hearing difficulties may need. Therefore, you must have a multiplicity of systems. We are proposing, as part of the regulations, that there be visual displays in carriages showing where you are. They must be 35 millimetres in height. It is conceivable that some way down the line an operator might wish to do what Virgin has done with its planes and put those screens on the back of seats so that you are much closer to them and you are better able to read them. We would not know whether that represented an improvement in service until after the experiment, the consultation and the feedback had taken place. It might not be regarded as an improvement to the service. If we were to operate through regulations, all vehicle services would come within the remit of regulations, whereas we would be seeking through exemptions to tie it only to the experimental vehicles. That is my third argument.
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Finally, there is a fear, which was forcefully expressed by the noble Lord, Lord Addington, that without this proposal 2020 would not be 2020, and the rail operators would drive a coach and horses through the legislation—to use an old phrase—or take disabled people for a ride—to use a more contemporary phrase—and as a result disabled people would continue to find that 2020 is not a real date, but that companies are forever edging us beyond that to suit their commercial convenience. That is the fourth argument that was put in Committee and on Report. I put it to noble Lords that, given what I have said, up until 2020 any exemptions would come within the framework of either affirmative or negative regulations according to the import of those regulations. After 2020, the government amendment proposes that any exemptions would come by affirmative regulations; any and every request for exemption would come by affirmative regulations.
Which railway manufacturing company—most of which as I understand it are either financed or owned by banks—would take the risk of an investment of maybe
hundreds and hundreds of thousands of pounds on guaranteeing that they would get parliamentary support under the affirmative resolution procedure? It would be commercially daft to do that. We have already had cases where banks have insisted that companies withdraw some of their manufacturing components and retool and respecify at high cost, to be absolutely sure that they meet the accessibility regulations. No company will take a lottery on an investment of half a million pounds or more on whether this House or the other House agrees that they may have an exemption a month or two before they are due to come into service. It is mind-boggling to think that they would. It defies everything that we know about how commercial considerations work. That would not be a lottery; it would be Russian roulette. No one would play that with that kind of money. We are proposing here that for any exemptions up to 2020, there would be a two-stage framework of draft regulations, framework regulations, which will determine which come under negative and which come under affirmative resolution. I hope that your Lordships will be content with that.
The Government will need a degree of flexibility for those situations after 2020 dealing with infrastructure. I am talking about being able to specify detailed problems that might not yet have been foreseen, and on which it is reasonable and possible to encourage experimentation, without allowing that to go across the whole system before we know whether it offers a useful improvement in service to disabled people. It is a modest degree of exemptions; we do not expect many of them. The Disability Rights Commission has welcomed the Government's approach.
The consultation and the affirmative regulation procedure were built into the Government's approach. Future Houses of Commons or Lords will not thank your Lordships if in 2019 or 2020 they have a situation in which emergency primary legislation is needed to avoid the possibility of a rail line being taken out of service because of a last minute failure to comply on a modest matter that could be handled by exemption. That would be batty. None of your Lordships would want to see that situation.

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We have to give that modest degree of headspace. I believe that, with the assurances that I have given about affirmative regulations and the like, there can be no exploitation of the situation. This is recognition that we cannot safeguard against future contingencies that we cannot foresee. I hope that, with that, noble Lords will accept the Government's amendments and not seek to move their own.
Lord Higgins: My Lords—
Baroness Hollis of Heigham: My Lords, I beg to move.
Lord Higginsmoved, as an amendment to Amendment No. 6, Amendment No. 7:
Line 4, leave out from "vehicle" to end of line 6.
The noble Lord said: My Lords, I am always troubled by false starts. Nowadays, one gets disqualified after just one.
The Minister was too modest: this group of amendments is very large and groups together three somewhat separate issues. The first is the question of whether exemption orders between now and 2020 should be made by affirmative resolution. Those noble Lords who have been involved in the Bill from the beginning will know that we have made a great deal of progress. When we started, they could be dealt with by diktat, effectively. The Scrutiny Committee and the Merits Committee came down against that, and it was agreed that exemption orders should be made by negative resolution. Then the Minister, in her usual flexible way, agreed that, in some cases, it would be more appropriate for orders to be made by affirmative resolution, because we all know that there are many negative resolutions and they are unlikely to get the attention that they deserve on matters such as this.
The Minister has now come up with Amendment No. 9, which proposes a two-stage procedure. As she said, an order that sets out the conditions in which one method will apply rather than the other will be made by affirmative resolution. We had a great deal of discussion on that, together with the Liberal Democrat Party. I am grateful to officials and to the Minister for those discussions. At one stage, we thought that the right answer was to have affirmative resolutions if the exemptions are important. That was the purpose of my Amendment No. 10. But I think that I am now persuaded that the procedure that the Government are proposing is a great deal better than that in the original Bill and, indeed, than that in the Bill at earlier stages. That is something about which we can all be satisfied. I thank the Minister for producing the amendment with regard to the procedures in your Lordships' House and the other place.
The other subject which arose was annual reports. That is dealt with in Amendment No. 11 and we—and, I think, the Liberal Democrat Party—are glad that those proposals are made.
We then come to the more difficult issue, which the Minister spent most of her time dealing with. We all agree that the Bill must not be endangered in any way
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by the proceedings in either House and that it should receive Royal Assent as soon as possible, consistent with us looking at the detail in the right way. This is the main outstanding item on the transport agenda.
The amendments are a little complicated. The Minister tabled the government amendments after we had tabled ours because we were not sure what was going to happen. I feel bound to say that, on reflection, we came to the view that the Government's Amendment No. 6 is not satisfactory because it will effectively create a situation after 2020 that is the same as that before 2020. Therefore, 2020 does not become, in any realistic sense, a deadline. We—and, I think, the Liberal Democrat Party—are anxious to have a genuine deadline so the rail industry knows that that is it and that further exemptions will not be granted. The problem is that, as it stands, the Government's amendment enables them to go on making exemptions exactly as before 2020. Given the considerable air of suspicion that has been generated outside about the way in which the rail industry has complied in the past, it seems to us that that is a dangerous way of proceeding.
The Minister put forward two arguments about why it would be necessary to continue to have exemptions after 2020. One of them is a very strange argument although, as she said, the Disability Rights Commission and some other organisations appear to have accepted it. It is the strange argument that it is necessary to have exemptions in case technology for making provision for the disabled improves. I asked for specific examples and the only one that they could come up with was the example of the Gatwick Express where exemption was granted for two years so that the company could discover whether a better system of enabling the disabled to see various steps and so on could be devised. But that was based on the fact that the situation was not already compliant. It was necessary to make an exemption so that the experiment could be carried out. But if the situation is already compliant, there is nothing stopping the industry or organisations for the disabled putting forward new proposals. An exemption is not necessary to do that.
Baroness Hollis of Heigham: My Lords, I gave the example of a company seeking to have back-of-seat displays instead of a common denominator board, electrically illuminated with a 35mm display, in each carriage. It would not be compliant if it did not do that. A company cannot be asked to have the common denominator board and back-of-seat displays when it is introducing new vehicles to see whether that is an improvement in service. Therefore, the company would not already be compliant. It is not just a question of upgrading compliance; it is that the company would not be compliant without an exemption. If the pilot scheme is successful, it might improve facilities for disabled people across the board and be adopted for future new vehicles.
Lord Higgins: My Lords, an exemption is not necessary. If there is a situation where, for example, the Jubilee Line annunciator system is in existence and is compliant and the company then wants to introduce a system in the back of seats, there is no reason why it should no do so. It does not need an exemption in order to do so. That is the situation.

63
While some outside bodies seem to be persuaded, it seems to me that this is a dud argument. I do not know why the department is going on about it. In all events, it is dangerous to say that after 2020 the Government can go on with the same powers to make exemptions as they have, or will have after the Bill goes through. In that context, incidentally, the Minister said that, if the Government procedures went forward, any exemptions after 2020 would be by affirmative resolution. I cannot find that anywhere in the amendments she mentions but, if the Government's view prevails, no doubt she can clarify that—although I hope their view does not prevail.
6.30 p.m.
The only other argument is that the exemptions may be needed after 2020 because some of the railway tunnels are too small to enable compliance. If that is so, because this is what might be called a permanent exemption, I see no reason why the regulations that decide what compliance means should not be adjusted. The Minister says that is a "clumsy" way of doing it, but it is no clumsier than any other system. In fact, it is to avoid any "clumsiness" that the Government will retain the right to make exemptions after 2020.
We have said all along in the course of these debates that either we can settle for an early date such as 2017 and then have exemptions, or we can set the date of 2020 as a genuine deadline. We do not find—nor, I think, so the Liberal Democrats—that we can support the Government's arguments for maintaining exemptions after 2020. Maintaining them has considerable dangers. The industry, as the time gets nearer, will say, "Don't worry. We don't need primary legislation to make any difference here. We will be able to do this by exemption, because look what they passed back in 2005—they gave the Government just the same power to make exemptions after 2020 as before. Why won't they go and make some changes?".
That being so, there are two sets of amendments that would bring out what I believe ought to be done: Amendment No. 7, which leaves out the tail end of the government amendment, and Amendment No. 12. On balance, if we come to a vote—unless the Minister suddenly produces some new argument by which we are all astonished—Amendment No. 7 is probably the better of the two. I beg to move.
Lord Addington: My Lords, we have gone through a long process on transport exemptions. It started when we were hacking through the 1995 Bill. Although it took a brave step forward, the Bill failed because long lead-in times meant inactivity, which meant nothing, which meant concessions could then be got from the government in the form of a negative resolution.
I ran headlong into this as a member of the Merits Committee. It was then, because of my interest in the field, and with the encouragement of that committee that I brought forward the idea that concessions should not be granted in that way. It was the first time
64
I had been challenged in a long while. To put it bluntly, it was like being the forlorn hope in an infantry charge. I ran into the government, who did not want to play, and a train lobby that did not want anything to do with the idea.
The Minister has said a lot about the fact that Parliament would be able to give force to the legislation. In 15 years' time it is probable that no one who is involved in this issue, or who is interested, will be in Parliament. This entire Chamber, we are told, awaits the axe. We have to get a whole new group of people interested, excited and prepared to stand their ground on this matter. After a great period of comparative silence, we will run into this issue again. The regulations will be there to be picked off. The lobby outside will have moved on. It is just not going to happen—or at least I am not prepared to take a chance on it happening.
We are really in trouble here if we continue like this, because we are creating something that is not strong enough to stand up. I must thank the Government for Amendments Nos. 9 and 11, which help. However, we would not even have got them without the attention and political heat we have generated. The clauses they amend would just have gone through. A degree of interest has to be created, and we will almost certainly not have that in a few years' time.
I have a nagging suspicion that many train operating companies and banks will reckon that if they get a few good lawyers involved, and if they have a good track record of getting exemptions, they will be able to do so—and they probably will. That will not be as easy as it has been, but after the first two or three exemptions we will find that it just carries on. That is one of my principal objections to the idea that this practice can be extended. I know from practical experience that trying to get enough interest in Parliament to ensure you can stop something that has government and lobby group backing is a "big ask", as all those who have been involved know.
The Government have 15 years to get secondary legislation right. That might be clumsy, but at least it will work. There are no points for elegance in this game. I suggest that the Government get something firm on the ground. If there have to be one or two exemptions, let them be made separately. Anything that will upset the idea of the firm target, however, will not work.
Let us face it—2020 was not the first date chosen or desired by those of us who were involved. We thought it was too far away, while the Government were proposing 2025. Given their track record of putting this issue off for someone else's Budget, I suggest that the amendment spoken to by the noble Lord, Lord Higgins, is essential.
Lord Carter: My Lords, this has been an interesting debate. I thank the noble Lord, Lord Addington, for observing that the Government have 15 years to get this right. I am delighted he thinks a Labour government will still be in power in 2020.
We have had a series of debates in Committee and on Report. Your Lordships will remember that the Joint Select Committee that I chair recommended that the consultation on the setting of the end-date was begun

65
immediately. There was no justification for further delay. That has happened, because we now have the Government's acceptance of 2020. The report said,
"The Committee's analysis of the evidence we have received, together with the Department of Transport's own data, leads us to suggest an end-date of the end of 2017. We conclude that this, together with a limited exemption system which would itself expire in 2025, would be an appropriate compromise between the needs of disabled people and the industry's current replacement programme".
Your Lordships will note that we have moved on since then, and I think we all accepted that what we wanted was 2020 on the face of the Bill, which we have, and a robust exemption procedure when we get to 2020, but an exemption procedure implies that there will be exemptions. It seems the whole argument is turning on the robustness or otherwise of the exemption procedure that will be available in 2020. We now have the annual report, which is a good step forward, and the need for any change after 2020 to be dealt with through the affirmative procedure.
Let me remind your Lordships that in the Joint Committee report, the figures we had from the Department for Transport indicated that, under the procedure as it was then, in 2020 there would be 2,080 rail vehicles not regulated. That number has changed slightly since then, as the numbers have been updated. The government amendment clearly states:
"The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on or after 1st January 2020 every rail vehicle is a regulated rail vehicle".
If I read that correctly, it means that the 2,080 vehicles that would otherwise have been exempt will not be, except for the robust exemptions procedure. The argument simply turns on whether there should be any exemptions after 2020.
The Minister referred to the Disability Rights Commission, which understands the situation. We have all seen its briefing, but it is worth reminding ourselves of what it says. Under a heading about amendments to prevent any exemptions from RVAR after 2020, the commission says that it cannot support them, as it accepts that there may need to be some exemptions after 2020 in exceptional circumstances. In particular, the DRC is concerned that such amendments could inadvertently prevent short-term exemptions geared towards testing important innovations in rail vehicle access, with a view to later amendments of the RVAR to incorporate innovations which work well for disabled people. That is a clearly expressed view of the Disability Rights Commission, which I am sure has discussed it with the DPTAC. In any event, the DRC would expect the Government to use provisional procedures to ensure that exemptions which are not considered beyond 2020 are dealt with by the affirmative procedure.
We have gone a long way and persuaded the Government to accept a number of substantial changes. The matter turns on whether you feel that in 2020 there will be very limited and robust exemption procedures—from all that we have heard, it seems that there will be. There will also be the double lock. We will not have to wait until 2020 to find out whether the rail companies have expensive lawyers to gain themselves exemptions, as
66
an annual report will tell us what is happening every year. It will be presented to Parliament and I am sure can be debated, which will show how well everyone is performing.
If I understand matters correctly, the Government have moved towards accepting 2020 as a firm end-date in the Bill. By doing so, they are substantially reducing the number of exempt vehicles that would otherwise have been there in 2020. The question turns on whether you feel that the exemption procedure in 2020 will be robust enough to ensure—through the affirmative procedure and the annual report—that for a couple of years things will work. The operating companies will be taking a very big chance if they go in for expensive changes without knowing whether they can get an exemption after 2020. The Minister made that point.
We have achieved a great deal from the Government and made progress. I take their word and argument on the exemptions procedure. If it comes to a vote, we should reject Amendment No. 7, which suggests that the exemption procedure in 2020 will not work, and accept the Government's amendment.
Lord Ashley of Stoke: My Lords, I have been as critical of the Government throughout the progress of the Bill as anyone, and certainly have been critical of the Bill. I have also been very suspicious of the railway industry. On Report, the noble Lord, Lord Davies, disagreed with me about the industry, indicating in no uncertain manner that I was too cynical about and critical of it. He defended it.
Having said that, and although the argument has been finely balanced and well argued on both sides tonight, I must say that my noble friend Lady Hollis wins the argument hands down. I do not say that in a debating sense, but my impression from the words spoken, the facts adduced and the arguments put forward is that we are in danger of overlooking the fact that we have 2020 in the Bill. That is a considerable step forward. It sends two key messages. One is to disabled people that the Bill lays down the law in no uncertain manner for progress at that time. The second is to the railway industry to get on with things, which it has not done so far.
In a very well argued speech, the noble Lord, Lord Higgins, was concerned about the exemption procedure. Frankly, at first I was against all exemptions, because I was suspicious of them. The danger is that they could be exploited. The Minister has given the explanation that the exemption procedure is very strictly limited. There is no possibility of the railway industry sticking its neck out and campaigning ardently for such a procedure. It is unrealistic.
My next point is about realism. Both sides have done very well. At this stage of the Bill, we will not get major changes. We need to accept what we have achieved so far and what the Government have given; the Government have given a very great deal.

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My last word is that the noble Baroness, Lady Hollis, has been marvellous on the Bill. She has accredited herself greatly, and I congratulate her on her work.
6.45 p.m.
Baroness Hollis of Heigham: My Lords, I am delighted to respond to that. I thank your Lordships for a well informed, good tempered and interesting debate. I am delighted that my noble friend Lord Ashley, who has so much experience in these matters, is very clearly behind the Government's case.
My noble friend was right to say that the real question was whether the proposals for any exemptions for 2020 were sufficiently robust to be in the best interests of disabled people. Is there adequate scrutiny to ensure that any exemptions are robust? Yes. As he said, 2020 is not only in the Bill, but the procedure is affirmative. Government may propose; Parliament will determine—Parliament, not government. The noble Lord, Lord Higgins, kept talking about government, but it is Parliament which will determine by the affirmative procedure.
The second question is whether the matter can be handled in any other way, so that we do not stifle innovation, close down heritage lines or have problems with charter services—they will be eliminated if the opposition amendments go through. No, it cannot.
Thirdly, do the Government have consent for what we are doing? I have certainly not been lobbied by any railway company, but by the DRC—cited extensively by my noble friend Lord Carter—the Disability Charities Commission, and the members and supporters of the New Spirit Coalition. That coalition comprises some 30 organisations, ranging from the Black Disabled People's Foundation, John Grooms, Arthritis Care, Habinteg, the Stroke Association, the Muscular Dystrophy Campaign, the National Centre for Independent Living, the Guide Dogs for the Blind Association, the Disability Alliance, Mencap—I could go on and on, listing dozens of organisations which support the Government's position.
I invite Members of the Opposition to name one organisation of or for disabled people which supports the opposition amendments. One will do. I wait. I do not doubt that there has been telephoning around, so are the Opposition saying that no disability organisation supports their case? I can list almost every major player in the area as supporting the Government's position, as described by my noble friend.
Lord Addington: My Lords, the simple reason is that I had thought we had decided this. Experience tells me that the organisations have accepted a deal from outside. I thought the basis on which they bought the deal was wrong.
Baroness Hollis of Heigham: My Lords, the noble Lord is pitting his judgment against the accumulated experience of all the disability organisations. As my noble friend said, they feel happy with 2020 in the
68
Bill and a robust exemption procedure to deal with unforeseen situations—as well as those that are foreseen, such as the London Underground, the Glasgow underground, the heritage lines and the charter service. All that will be imperilled if the opposition amendments go through.
Surely Opposition Peers cannot be so confident in their judgment that they would risk closing down all those lines, risk challenging access to the Underground and the like because we will not be able to specify it, and risk what they would do to charter services. They would do that flying absolutely in the face of what the disability world wants, knowing that as parliamentarians they not only have an annual report, as my noble friend said, but have a second bite every time a proposed exemption comes before them.
Why are the Opposition so afraid to trust our judgment or that of those who succeed us in five, 10 or 15 years on whether an exemption is robust? Why are they saying, "We know best what they may or may not be called on to judge in 2020"? That is an extraordinary statement to make about future parliamentarians. I certainly do not agree with it. Given that the disability world is behind us on the matter, that this is the appropriate way to go forward, and that Parliament will have full opportunities for scrutiny, I hope that noble Lords will accept the Government's position and not pursue that advanced by the Opposition.
Lord Higgins: My Lords, I have moved an amendment to the government amendment which effectively means that there will not be powers to create exemptions after 2020. I spelt out in considerable detail why I believed that it was the right way to proceed. I stress again that, if this amendment is not carried, the situation with regard to the Government having powers to make exemptions will, after 2020, be precisely the same as before then.
Baroness Hollis of Heigham: My Lords, I repeat that the Government will not have the power to make exemptions: Parliament will.
Lord Higgins: Fine, my Lords, Parliament will. Yet the government of the day in Parliament will still have the power to make exemptions—in exactly the same way as the Government themselves can, at present, put proposals to Parliament for making exemptions. The effect is quite clearly that 2020 is not a deadline on which we can rely.
The Minister referred to various outside organisations which have, throughout these proceedings, been immensely helpful. I agree entirely with the points made from the Liberal Democrat Benches. We have made huge progress in improving the Bill. However, there is also a strong feeling that this is probably the most important individual issue in the Bill. We need to be certain of having a deadline which will be a real one. Otherwise, as 2020 approaches, Parliament will be told that while there are, of course, powers in the Bill to make these exemptions, there are one or two things which need to be sorted out and that those will take a bit longer to sort out, and so on. While powers remain to put the case

69
for exemptions to Parliament—and, of course, I was not for one moment suggesting that the Government are absolute—that may be the case.
With great respect to the outside organisations, they have not fully understood the implications of having no real and effective deadline. It means that, as the noble Lord, Lord Addington, has pointed out, the situation will continue to drift—whereas, if there is to be certainty on these matters, it is important that we should establish it. There is no reason at all not to do so. No doubt, in 2020, further views will prevail. However, at all events, we will have set a firm framework, which the various interests will know cannot be altered merely by a statutory instrument. Therefore, I with to test the opinion of the House.
6.53 p.m.
On question, Whether Amendment No. 7, as an amendment to Amendment No. 6, shall be agreed to?
Their Lordships divided: Contents, 118; Not Contents, 122.

Division No. 3

CONTENTS

Addington, L.[Teller]

Howe of Idlicote, B.

Anelay of St Johns, B.

Hunt of Wirral, L.

Astor, V.

Jenkin of Roding, L.

Astor of Hever, L.

Jopling, L.

Attlee, E.

kalms, L.

Barker, B.

Kimball, L.

Beaumont of Whitley, L

Kingsland, L.

Blaker, L.

Laidlaw, L.

Bonham-Carter of Yanrnbury, B.

Laing of Dunphail, L.

Bradshaw, L.

Lindsay, E.

Bridgeman, V.

Liverpool, E.

Brooke of Sutton Mandeville, L.

Livsey of Talgarth, L.

Brougham and Vaux, L.

Luke, L.

Busbombe, B.

Lyell, L.

Campbell of Alloway, L.

McCall of Dulwich, L.

Clement-Jones, L.

MacGregor of Pulham Market,

Colwyn, L.

L.

Cope of Berkeley, L.

Mackie of Benshie, L.

Courtown, E.

McNally, L.

Denham, L.

Maddock, B.

Dholakia, L.

Mancroft, L.

Dixon-Smith, L.

Mar, C.

Dykes, L.

Mayhew of Twysden, L.

Eden of Winton, L.

Miller of Chilthorne Domer, B.

Elles, B.

Miller of Hendon, B.

Elton, L.

Morris of Bolton, B.

Falkner, of Margravine, B.

Moynihan, L.

Fearn, L.

Murton of Lindisfarne, L.

Ferrers, E.

Naseby, L.

Fookes, B.

Neuberger, B.

Fowler, L.

Newby, L.

Freeman, L.

Newton of Braintree, L.

Garden, L.

Northbrook, L.

Gardner of Parkes, B.

Northesk, E.

Glentoran, L.

Oakeshott of Seagrove Bay, L.

Goodhart, L.

Onslow, E.

Hamwee, B.

Park of Monmouth, B.

Harris of Richmond, B.

Patten, L.

Higgins, L.

Phillips of sudbury, L.

Hopper, B.

Powell of Bayswater, L.

Hooson, L.

Quinton, L.

Howe, E.

Razzall, L.

Howe of Aberavon, L.

Reay, L.

70

Redesdale, L.

Skidelsky, L.

Rees, L.

Smith of Clifton, L.

Rennard, L.

Stewartby, L.

Renton, L.

Tebbit, L.

Roberts of Llandudno, L.

Thatcher, B.

Rodgers of Quarry Bank, L.

Thomas of Gresford, L.

Roper, L.

Thomas of Swynnerton, L.

Rotherwick, L.

Thomas of Walliswood, B.

Sandberg, L.

Tordoff, L.

Scott of Needham Market, B.

Trefgarne, L.

Seccombe, B. [Teller]

Trenchard, V.

Sharp of Guildford, B.

Trumpington, B.

Shaw of Northstead, L.

Waddington, L.

Shutt of Greetland, L.

Walmsley, B.

Skelmersdale, L.

Windlesham, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Hilton of Eggardon, B.

Ahmed, L.

Hogg of Cumbernauld, L.

Alton of Liverpool, L.

Hollis of Heigham, B.

Amos, B. (Lord President of the

Howells of St. Davids, B.

Council)

Hoyle, L.

Andrews, B.

Hughes of Woodside, L.

Archer of Sandwall, L.

Hunt of Kings Health, L.

Ashely of Stoke, L.

Irvine of Lairg, L.

Ashton of Upholland, B.

Jones, L.

Bach, L.

Jordon, L.

Barnett, L.

Kilclooney, L.

Bassam of Brighton, L.

King of West Bromwich, L.

Berkeley, L.

Kirkhill, L.

Borrie, L.

Layard, L.

Brooke of Alverthorpe, L.

Lea of Crondall, L.

Brookman, L.

Leith, L.

Burlison, L.

Listowel, E.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Carter, L.

McDonagh, B.

Carter of Coles, L.

Macdonald of Tradeston, L.

Christopher, L.

McIntosh of Haringey, L.

Clark of Windermere, L.

McIntosh of Hudnall, B.

Clarke of Hampstead, L.

MacKenzie of Culkein, L.

Clinton-Davis, L.

McKenzie of Luton, L.

Colville of Culross, V.

Masham of Ilton, B.

Corbett, of Castle Vale, L.

Mason of Barnsley, L.

Craig of Radly, L.

Maxton, L.

Crawley, B.

Merlyn-Rees, L.

Davies, of Oldham L.

Mitchell, L.

Dean of Thornton-le-Flyde, B.

Monson, L.

Desai, L.

Morgan of Drefelin, B.

Dixon, L.

Morris of Aberavon, L.

Dyayson, L.

Pendry L.

Dubs, L.

Pitkeathley, B.

Elder, L.

Plant of Highfield, L.

Evans of Temple Guiting, L.

Ramsay of Cartvale, B.

[Teller]

Randall of St. Budeaux, L.

Farrington, of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Robertson of Port Ellen, L.

Filkin, L.

Rooker, L.

Fyfe of Fairfield, L.

Rosser, L.

Gale, B.

Rowlands, L.

Gibson of Market Rasen, B.

Royall of Blaisdon, B.

Giddens, L.

Sawyer, L.

Golding, B.

Scotland of Asthal, B.

Goldsmith, L.

Sheldon, L.

Goudie, B.

Simon, V.

Graham of Edmonton, L.

Snape, L.

Groctt, L. [Teller]

Stone of Blackheath, L.

Harris of Haringey, L.

Taylor of Blackburn, L.

Harrison, L.

Tenby, V.

Hart of Chilton, L.

Thornton, B.

Haskel, L.

Treisman, L.

Haworth, L.

Truscott, L.

Hayman, B.

Tunnicliffe, L.

Henig, B.

Turnberg, L.

71

Wall of New Barnet, B.

Wilkins, B.

Walpole, L.

Williams of Elvel, L.

Warwick of Undercliffe, B.

Williamson of Horton, L.

Whitaker, B.

Woolmer of Leeds, L.

Whitty, L.

Young of Norwood Green, L.

Resolved in the negative, and Amendment No. 7, as an amendment to Amendment No. 6, disagreed to accordingly.
On question, Amendment No.6 agreed to.
7.2p.m.
[Amendment No. 8 not moved.]
Baroness Hollis of Heighammoved Amendment No,9:
Page 13, line 24, at end insert—
"(2A) In the 1995 Act, after section 67 there is inserted—
"67A EXERCISE OF DISCRETION UNDER SECTION 67(5A)
(1) Before the Secretary of State decides which of the parliamentary procedures available under section 67(5A) is to be adopted in connection with the making of any particular order under section 47(1), he must consult the Disabled Persons Transport Advisory Committee.
(2) An order under section 47(1) may be made without a draft of the instrument that contains it having been laid before, and approved by a resolution of, each House of Parliament only if—

(a) regulations under subsection (3) are in force, and

(b) the making of the order without such laying and approval is in accordance with the regulations.

(3) Regulations may set out the basis on which the Secretary of State, when he comes to make an order under section 47(1), will decide which of the parliamentary procedures available under section 67(5A) is to be adopted in connection with the making of the order.
(4) Before making regulations under subsection (3), the Secretary of State must consult—

(a) the Disabled Persons Transport Advisory Committee, and

(b) such other persons as he considers appropriate.""

[Amendment No. 10, as an amendment to Amendment No. 9, not moved.]
On Question, amendment agreed to.
Baroness Hollis of Heighammoved Amendment No. 11.
Page 13, line 24, at end insert—
"( ) In the 1995 Act, after section 67A (which is inserted by subsection (2A)) there is inserted—
"67B ANNUAL REPORT ON RAIL VEHICLE EXEMPTION ORDERS
(1) The Secretary of State must after each 31st December prepare, in respect of the year that ended with that day, a report on

(a) the exercise in that year of the power to make orders under section 47(1); and

(b) the exercise in that year of the discretion under section 67(5A).

72
(2) A report under subsection (1) must (in particular) contain—

(a) details of each order made under section 47(1) in the year in respect of which the report is made; and

(b) details of consultation carried out under sections 47(3) and 67A(1) in connection with orders made in that year under section 47(1).

(3) The Secretary of State must lay before each House of Parliament each report that he prepares under this section.""
On Question, amendment agreed to.
Lord Higginsmoved Amendment No. 12:
Page 13, line 24, at end insert—
"(1B) All orders made under subsection (1)(a) or (b) shall expire on 1st January 2020.
(IC) No order shall be made under subsection (1)(a) or (b) after 1st January 2020.
(1D) This section does not apply to heritage rail.""
The noble Lord said: My Lords, in moving this amendment, it will also be convenient to discuss Amendment No. 13. There is uncertainty now that the government amendment has been carried because the latter part gives the Government continued powers to make exemptions after 2020 so the deadline is nowhere near as firm as we would have liked to have seen it. However, of course we accept the opinion of the House in that respect.
I move this amendment to ask the Government two questions. First, as far as concerns the situation after 2020, is it the Government's intention that exemptions made before 2020—which are in operation when that date arrives—all have a limit of 1 January 2020? Alternatively, under the procedures that they have now carried, could the Government continue to make exemptions—for example, in November 2019—that could run on for five years after that date?
It would be helpful to know whether the Government intend—no doubt the Minister can assure us—that all exemptions shall not run beyond 2020, in the sense that they may have been granted in 2019 for a five-year period, or something of that sort. Am I right in assuming that it is the Government's intention that they should not do so?
The second part of this amendment is concerned, as indeed is Amendment No. 13, with the position of heritage railways. In the light of the Government's amendment having been carried, I presume that it is their intention to continue seeking exemptions for heritage railways. To that extent, my Amendment No. 13 would not be necessary. However, as far as concerns what one might call "running exemptions", it is important to establish whether they will stop in 2020 or whether they could be granted before 2020 for a period that expires after that time. I beg to move.
Baroness Masham of Ilton: My Lords, as the noble Lord, Lord Higgins, feels so strongly about these

73
exemptions, will the Minister tell us what they are, because many people in your Lordships' House have queried that?
Lord Carter: My Lords, I would like to ask a few questions while information is being obtained. Amendment No. 6 states:
"The Secretary of State shall exercise the power to make rail vehicle accessibility regulations so as to secure that on and after 1st January 2020 every rail vehicle is a regulated rail vehicle".
That is quite clear:
"every rail vehicle is a regulated rail vehicle",
except—obviously—for those that are exempt. The noble Lord has a point. He wants the matter to be clarified. How long do the exemptions that are granted in 2018 or 2019 run for?
It is a fair point to ask, but the intention of Amendment No. 6 is that every vehicle will be regulated except those that are exempt. The House has now accepted the Government's argument that the exemption procedure will be very limited, but the noble Lord has asked a fair point to which I believe my noble friend the Minister now has an answer, so I can sit down.
Baroness Hollis of Heigham: Not quite my Lords; I am still pursuing the answer. The noble Lord, Lord Higgins, has indeed wrong-footed me on his first question. I agree that it is an entirely proper one and criticise myself for not having pursued the matter.
To go back a step, we certainly all agree that heritage railways should be exempt—that is the Government's intention—so that they will continue to be exempt from the RVAR and the power to do that already exists. By not moving Amendment No. 13, I think that the noble Lord recognises that.
The noble Baroness, Lady Masham, asked what exemptions we are talking about. They are a combination of things. Obviously, I do not want to repeat the previous discussion that we had and I am sure that the noble Baroness would not want me to, but exemptions would include heritage vehicles, or where vehicles on the Glasgow underground or the Victoria Line could not be made fully compliant because of the infrastructure.
There could also be issues of possible innovation; for example, you want to pilot something and the vehicle involved may temporarily not be covered, and so forth. Perhaps a handrail is a millimetre out—a fault that can be corrected but only over a period of time. The carriages would be called in and an exemption order would be needed to allow the correction to be made. I was making the point that all such exemptions beyond 2020 would have to have the affirmative approval of the House. If the House thought they were not reasonable, it would not agree to them.
As for the regulations after 2020, the Government would propose that any exemptions which start before 2020 and which would run beyond 2020 would be subject to the affirmative procedure by virtue of the regulations we would make under Amendment No. 9. If, for example, one introduced regulations for an exemption in 2018, it would, in my judgment, have to
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specify an end date if it were to run beyond 2020, such that Parliament would decide whether it was acceptable. Otherwise, a fresh set of regulations would have to be introduced.
Baroness Masham of Ilton: My Lords, I am worried about heritage because English Heritage has been most unhelpful towards disabled people. They have made this an excuse on many things, making various places inaccessible. I know that churches have had to pay out millions because of English Heritage.
Baroness Hollis of Heigham: My Lords, obviously there is an issue for English Heritage because making a building fully accessible undermines, contradicts or subverts some of the heritage planning laws of this country. There is a tension there, and I think we are all aware of it.
We are not dealing with English Heritage here, however. We are dealing with Cairngorm lines, north Wales lines and so on. They may be narrow lines. They could include the "Orient Express". They are not modern InterCity or service lines which are part of the normal operating arrangements. They are heritage lines in the sense that they have a tourist appeal, or an additional premium because they are in a particular part of the country and use old stock which is attractive to its users. It would clearly be inappropriate to try to make the "Orient Express", for example, fully compliant for wheelchair access because, by virtue of its physical structure, you might no longer have the "Orient Express".
"Heritage railways" has a very specific meaning. There are about 300 of them, which is why they are not listed on the face of the Bill or in a schedule. I am very happy to send a copy of the list to the noble Baroness, Lady Masham of Ilton, if she thinks it would be helpful.
Lord Higgins: My Lords, one is never quite sure what is going to happen next in your Lordships' House. I was somewhat surprised at the answer the Minister has given. The Government have succeeded in retaining the power to make exemptions beyond 2020, with the consequences which I set out in my previous speech. It now emerges that they are also proposing to create—indeed, have created—a situation in which they can make exemptions in 2018 which could go on until 2222 or 2225, or whenever.
Baroness Hollis of Heigham: My Lords, it is no different from making those same exemptions in 2020. If they were that significant, they would have to have affirmative approval and Parliament would therefore decide. It is not a different issue from the one on which the House has already judged.
Lord Higgins: My Lords, it is a very different issue. It turns on whether there will be exemptions after 2020—it is increasingly apparent that there are likely to be. At any rate, the Government will have the power to achieve that objective, rather than having anything on the face of the Bill to prevent them.

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There are other important issues to be debated, on health and so on, so I am not going to divide the House on this. However, what the Minister said is worrying. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
7.15 p.m.
Clause 13 [Discrimination in relation to letting of premises]:
Baroness Hollis of Heighammoved Amendment No. 14:
Page 31, line 15, leave out "which would involve" and insert "consisting of, or including,"
The noble Baroness said: My Lords, we now return to the issue of making alterations to demised premises. This group of amendments fulfils the commitment I made on Report to improve the way the law works.
I think everybody would accept the complexity of landlord and tenant law. I would like to throw bouquets at the officials and parliamentary counsel for working so expeditiously to meet the very clear views of the House in Committee and on Report. Given that complexity, in which the officials have been trying build upon the 1927 Act and the 1980 and 1985 Acts, they have done a splendid job. I hope that your Lordships will warmly welcome what we are seeking to do.
We were concerned throughout our discussion to ensure that the need of a disabled person to live in suitable accommodation is protected while, on the other hand, the landlord's investment in his property is protected. As our debates have shown, this is not an easy task. We have now got that balance right.
These new provisions will do more to ensure that, where a lease entitles a tenant to make improvements with a landlord's consent, landlords cannot unreasonably refuse consent if a tenant wants to make a disability-related alteration to residential premises. They apply to premises that are occupied by a disabled person as their only or principal home, and to disability-related alterations to the let premises themselves, not the common parts. They do this by building upon existing rights provided in landlord and tenant and housing legislation, making them more responsive to the needs of disabled people.
As I have explained in previous debates, non-disabled tenants are able to make improvements to rented premises where the lease allows them to do so. Where the lease says that the landlord's consent is required, the Landlord and Tenant Act 1927 ensures that that consent cannot be withheld unreasonably. We had believed that that Act was sufficient to give disabled tenants the same right to make adaptations as non-disabled tenants apparently have. It was clear from the concerns in your Lordships' House, however, that it was felt that either it was not being exercised properly or that those rights were hard to achieve. Although subsequent legislation has improved on the
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1927 Act, in the form of the Housing Acts of 1980 and 1985; those Acts are somewhat limited in the tenancies to which they apply—tenants of local authorities and Rent Act tenants.
We are doing three things with these amendments. First, we are ensuring that the right of a disabled tenant to make adaptations which the landlord may not unreasonably refuse is analogous to the rights that non-disabled tenants currently have. Secondly, we are extending those to the tenants of all landlords, not just socially rented housing and Rent Act tenants—in other words, to assured shorthold tenancies. Thirdly, we are bringing the Disability Rights Commission into play. At the moment, the DRC cannot provide help or guidance to tenants or landlords. We believe this is necessary.
In future, the DRC will be able to provide a conciliation service in relation to disputes about disability-related improvements, whether they arise under new Section 49(g) or in any other context—for example, under existing housing and landlord tenant legislation. They will issue a code of practice. They will assist tenants in any legal proceedings where the issue is whether it was unreasonable for a landlord to withhold consent to a tenant carrying out a disability-related improvement, or similar matters. The situation is not overridden in any sense by the concerns of the noble Lord, Lord Skelmersdale, about what happens to private homes. That is still protected under a different section of the Bill.
Where alterations are permitted, the Government expect the scale of the landlord's operation to be a relevant factor. For example, 40 per cent of private landlords have only one rental property. Others may have many more. That would be a question of what is reasonable. The DRC's code of practice should give guidance on that.
There is also the situation where the lease itself does not confer any right to make alterations at all. For example, assured shorthold tenancies, which are now the majority of tenancies in the private sector, generally contain a prohibition against the tenants making improvements of any sort, whether they are disabled or not. A tenant who wishes to make a disability-related alteration to those premises must get over this hurdle before he can rely on the provisions of Section 49(g). We think they should be able to do this by invoking the reasonable adjustment duties already contained in Clause 13 of the Bill, as slightly amended by Amendment No. 14.
Subject to meeting the various conditions in new Sections 24A to 24F, in particular that the prohibition on making alterations makes it impossible or unreasonably difficult for a disabled person to enjoy the rented premises, the tenant will be able to use the new reasonable adjustment provisions to seek a change in the terms of the letting, and then go on to make the physical adaptations to the property. In turn, the landlord can make conditions about improving the specification for works, reinstatement and so on.

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We shall be bringing forward regulations under the powers in Section 24L to assist landlords and tenants in using the new duties in this way. The regulations will, for example, set out the circumstances in which it is always reasonable for a landlord to have to modify or waive a term in a lease prohibiting the making of any alterations where that term makes it impossible or unreasonably difficult for a disabled person to enjoy the premises or to make use of an associated benefit. We shall need to discuss those proposals with representative bodies. I believe I have covered the point raised by the noble Lord, Lord Skelmersdale, about someone's own home.
Finally, what counts as reasonableness? This is an objective and not a subjective test. What might be considered reasonable in relation to rented premises? What, for example, would happen if the landlord thought that an improvement might make it more difficult to rent out a property in future? That is the "minor niggle/major consideration" issue that we discussed before.
That would be relevant when deciding the reasonableness of giving consent. But, of course, the landlord would have to be sure and be able to demonstrate that the improvement would genuinely make it more difficult to rent out the property again. Many improvements for disabled people—doubleglazing, better lighting, central heating—might actually improve the property and the landlord would have absolutely no ground for refusing consent under those circumstances, I would guess.
A landlord might make it a condition of giving his consent that the tenant has to reinstate the premises when he leaves and the landlord might ask for a security deposit to cover reinstatement costs. But we know that many people using disabled facilities grants to make alterations are elderly and on low incomes. If the tenant is unable to pay a reasonable deposit that the landlord requests, or is unable to provide realistic guarantees that the improvements will be reinstated, where it is legitimate for the landlord to believe that the property has become less attractive for the rental market, then it may not be unreasonable for the landlord to refuse his consent to the improvements. So the reinstatement issue becomes part of the test of reasonableness, which I believe applies across the employment area and the like.
As I said earlier, the DRC will be preparing guidance in a statutory code of practice on reasonableness, which will have to be taken into account in court cases where relevant. The DRC is aware of that and will consult fully. The code will also have to be approved by the Secretary of State and laid before Parliament.
I have cut down my explanation a little but I am happy to write to noble Lords. We are dealing with possibly the most complex area of legislation, which is trying to address landlord and tenant law, reflected in three previous pieces of legislation, and make that apply to disabled tenants by bringing the law of discrimination into housing legislation. I believe that the officials and parliamentary counsel have done it.
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The test of reasonableness will still apply, thus protecting the landlord's financial investment in his property, but that, in turn, will be shaped by the DRC's capacity to issue statutory codes of guidance which, of course, can be prayed in aid in court and, in turn, to assist tenants, if necessary, in any court action that follows.
I hope your Lordships will agree that on individual premises—not common parts—we have met the wishes and aspirations of your Lordships' House. l beg to move.
Lord Carter: My Lords, I am extremely grateful to the Government for tabling this amendment. My noble friend will remember that at an earlier stage of the Bill I said that I was keeping score of the number of recommendations of the Joint Committee that were turned down in the government response but which were later introduced into the Bill. This is another one.
Baroness Wilkins: My Lords, I am extremely grateful to my noble friend for having responded so comprehensively to our concerns about the needs of disabled tenants who require adaptations to their homes. I warmly endorse her congratulations on the very expeditious work carried out by the officials and by parliamentary counsel. As she has made clear. this is an extremely complex issue.
I also add the thanks of the noble Baroness, Lady Darcy, who, unfortunately was unable to stay for this debate. She wanted me to add her thanks for the amendment and to add the hope that the committee set up to come up with a solution to the communal areas will also come to a similarly satisfactory conclusion. This was a key commitment from the Disability Rights Task Force which will do much to increase the independent living of disabled people. I extend my grateful thanks to the Minister for all her hard work on this issue.
Lord Ashley of Stoke: My Lords, I too welcome this group of amendments. The noble Baroness, Lady Wilkins, has just mentioned independent living. As the House may know, I have been pressing very strongly for this new clause on independent living. These amendments go a long way towards helping independent living for disabled people. I particularly welcome the amendments, especially Amendment No. 16, because it would have been incredible that any landlord could unreasonably refuse alterations to premises for a disabled person. There is no argument for that. By any stretch of the imagination that would be quite incredible. These amendments correct that gross injustice. I regard them as some of the most important parts of the Bill. I congratulate the Government.
Lord Skelmersdale: My Lords, I can tell the Minister that this is a far, far better thing that she does now than she has done before.
Lord Addington: My Lords, we shall forgive the little dispute when we were so close to agreeing and when we had to settle the matter with a Division. On this point, we thank the Government.
Baroness Masham of Ilton: My Lords, I want to add my thanks. It is practical to have more suitable accommodation because we have a growing elderly population, many of whom are disabled. As my noble friend has said, if severely disabled people are to survive in the community, we need more help in the community.
On Question, amendment agreed to.
Baroness Hollis of Heighammoved Amendments Nos. 15 and 16:
Page 33, line 39, leave out "which would involve" and insert "consisting of, or including,"
After Clause 15, insert the following new clause—
"IMPROVEMENTS TO LET DWELLING HOUSES
(1) In the 1995 Act, after Part 5A (which is inserted by section 3 of this Act) there is inserted—
"PART 5B
IMPROVEMENTS TO DWELLING HOUSES
49G IMPROVEMENTS TO LET DWELLING HOUSES
(1) This section applies in relation to a lease of a dwelling house if—

(a) the tenancy is not a protected tenancy, a statutory tenancy or a secure tenancy,

(b) the tenant or any other person who lawfully occupies or is intended lawfully to occupy the premises is a disabled person,

(c) the person mentioned in paragraph (b) occupies or is intended to occupy the premises as his only or principal home,

(d) the tenant is entitled under the lease to make improvements to the premises with the consent of the landlord, and

(e) the tenant applies to the landlord for his consent to make a relevant improvement.

(2) If the consent of the landlord is unreasonably withheld it must be taken to have been given.
(3) Where the tenant applies in writing for the consent—

(a) if the landlord refuses to give consent, he must give the tenant a written statement of the reason why the consent was withheld;

(b) if the landlord neither gives nor refuses to give consent within a reasonable time, consent must be taken to have been withheld.

(4) If the landlord gives consent to the making of an improvement subject to a condition which is unreasonable, the consent must be taken to have been unreasonably withheld.
(5) In any question as to whether—

(a) the consent of the landlord was unreasonably withheld, or

(b) a condition imposed by the landlord is unreasonable,

it is for the landlord to show that it was not.
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(6) If the tenant fails to comply with a reasonable condition imposed by the landlord on the making of a relevant improvement, the failure is to be treated as a breach by the tenant of an obligation of his tenancy.
(7) An improvement to premises is a relevant improvement if, having regard to the disability which the disabled person mentioned in subsection (1)(b) has, it is likely to facilitate his enjoyment of the premises.
(8) Subsections (2) to (6) apply to a lease only to the extent that provision of a like nature is not made by the lease.
(9) In this section—
"improvement" means any alteration in or addition to premises and includes—
(a) any addition to or alteration in landlord's fittings and fixtures,
(b) any addition or alteration connected with the provision of services to the premises,
(c) the erection of a wireless or television aerial, and
(d) the carrying out of external decoration;
"lease" includes a sub-lease or other tenancy, and "landlord" and "tenant" must be construed accordingly;
"protected tenancy" has the same meaning as in section 1 of the Rent Act 1977;
"statutory tenancy" must be construed in accordance with section 2 of that Act;
"secure tenancy" has the same meaning as in section 79 of the Housing Act 1985.
49H CONCILIATION OF DISPUTES
(1) The Disability Rights Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to a dispute of any description concerning the question whether it is unreasonable for a landlord to withhold consent to the making of a relevant improvement to a dwelling house.
(2) Subsections (2) to (8) of section 28 apply for the purposes of this section as they apply for the purposes of that section and for that purpose a reference in that section to—

(a) a dispute arising under Part 3 must be construed as a reference to a dispute mentioned in subsection (1) above;

(b) arrangements under that section must be construed as a reference to arrangements under this section.

(3) "Relevant improvement" has the same meaning as in section 49G."
(2) In section 53A of the 1995 Act (codes of practice), after subsection (1C) there is inserted—
"(1D) The Commission may prepare and issue codes of practice giving practical guidance to landlords and tenants as to—

(a) circumstances in which a tenant requires the consent of his landlord for making a relevant improvement to a dwelling house;

(b) circumstances in which it is unreasonable to withhold such consent;

(c) the application of the improvement provisions in relation to relevant improvements to dwelling houses.

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(1E) In subsection (ID) the improvement provisions are—

(a) section 19(2) of the Landlord and Tenant Act 1927;

(b) sections 81 to 85 of the Housing Act 1980;

(c) sections 97 to 99 of the Housing Act 1985;

(d) section 49G above."

(3) In section 7 of the Disability Rights Commission Act 1999 (provision of assistance in relation to proceedings)—
(a) in subsection (1), after paragraph (a) there is inserted—
"(aa) proceedings of any description to the extent that the question whether it is unreasonable for a landlord to withhold consent to the making of a relevant improvement to a dwelling house falls to be considered in the proceedings;", and.
(b) after subsection (4) there is inserted—
"(4A) A relevant improvement is an improvement (within the meaning of section 49G(9) of the 1995 Act) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.""
On Question, amendments agreed to.
Clause 17 [Meaning of "disability"]:
Lord Skelmersdalemoved Amendment No. 17:
Page 42, line 43, leave out "sub-paragraph (2)" and insert "sub-paragraphs (2) and (4)"
The noble Lord said: My Lords, Amendment No. 17 is a paving amendment to part of Amendment No. 19. A vast proportion of your Lordships and all the disability groups to which I have spoken during the passage of this Bill through your Lordships' House have welcomed the Government's intention to include cancer among the diseases that are deemed to be disabling. As the Bill puts it,
"a person who has cancer … is to be deemed to have a disability".
As the noble Lord, Lord Ashley of Stoke, said on Report:
"In my experience, people still are as terrified of cancer, and it is still as much of a bombshell of a word that stops all thought, all arguments, and raises fear and apprehension among anyone who is told".—[Official Report, 8/2/05; col. 684.]
I most certainly agree, adding that it is not only—perhaps even not so much—a fear for oneself, but also a fear for one's loved ones and relatives, which is not necessarily the same thing. It is, after all, this country's largest single cause of death, accounting for just over a quarter of all deaths in 2003.
New paragraph 6A(1) of Schedule 1, in Clause 17, is therefore a good thing. Major worries have been expressed regarding sub-paragraph (2) which allows the Government to exclude cancers. Again, I quote from the Bill:
"in the case of a person who has cancer if he has cancer of a prescribed description".
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Both in Committee and on Report attempts were made to persuade the Minister that that was the wrong thing to do. However, she was adamant that there are cancers that are non-invasive, resulting in one-off interventions, which are not disabling, and therefore ought not to be included as causes of disability.
7.30 p.m.
It is, however, somewhat of an anachronism that a Bill which is anti-discriminatory, itself discriminates between different types of cancer. That gave rise in my mind to the question of whether it is right to discriminate in this area—in other words, when is a cancer basically not a cancer?
The answer was given partly by the Disability Rights Task Force, which talked in paragraph 11 of its report about benign cancers and some skin cancers that require minor treatment, and partly by the noble Lord, Lord Walton of Detchant—to whom I am extremely grateful—who, with all his experience, pointed out that there are cancers which do not metastasise. He gave as an example rodent ulcers.
I accept that on balance it is right to exclude minor cancers where disability does not arise, though others are not as sanguine as I am in that regard. We know that the Government are currently consulting on which cancers to exclude.
I hope that the Government will take careful note of the words of the Macmillan skin cancer specialist nurse who was reported as saying in a briefing that many of us received last week:
"Unfortunately patients and the general public hear only the word cancer, and opinions form from there. Cancer is often the only word a patient will remember in a consultation, it's often the only word a relative will hear. The word cancer is frightening, confusing and opinions are drawn".
I would underline this last sentence:
"This should be remembered when making exclusions to something as important as the Disability Discrimination Bill".
That nurse had it spot on. That is exactly why many Members of your Lordships' House have been pressing the noble Baroness on this ever since the Bill arrived here.
I believe that, as a result of our discussions on Report, it is the general feeling of the House that, first, cancers should only be put on an excluded list by affirmative instrument—and I am delighted that the Government have conceded that point—and, secondly, that there should be wide consultation before such an instrument is prepared.
I shall not repeat the various arguments I adduced on Report about why such a need for consultation should go on the face of the Bill. At this time of night I think that it would be an error to repeat them, so I beg to move.
Lord Ashley of Stoke: My Lords, although many things have changed, the public's perception of cancer has not. That is why it is so important to make these advances spelled out in the amendments. The word

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"cancer" is a bombshell. It stops all rational thought. Therefore, people with any kind of cancer suffer discrimination. It is almost automatic discrimination.
I welcome the steps forward by the Government: first, the affirmative procedure already referred to; and, secondly, the regulations that restrict coverage. I am pleased that the Government have moved on this issue. We all favour the regulations to some extent. This means that any attempt to bring in new regulations will be debated in Parliament, which is our safeguard against any kind of distortion. So I welcome the amendments.
Lord Oakeshott of Seagrove Bay: My Lords, I make it clear from these Benches—as I did on Report, so I do not propose to repeat my remarks—that we agree with the Government's approach of saying that not all cancers should automatically result in a person who suffers from them being deemed to be disabled. Again, giving my own experience of rodent ulcers, it does not feel right that I—for example—should be treated as disabled for the purposes of the Bill, shortly to become the Act.
We would none the less support Amendment No. 19. It seems to me, as the noble Lord, Lord Skelmersdale, made clear, that the widest possible consultation would be appropriate before deciding which cancers to include or exclude. But, in general, as I said, we think that the Government are taking a reasonable and balanced approach on this.
Lord Carter: My Lords, we covered the subject at length at a previous stage so there is no need to go into it in great detail. To pick up on a word we used on earlier amendments, we are debating the "robustness" of the prescription procedure—whether there will be sufficient consultation. We now have Amendment No. 25, which means that the prescription must be done by affirmative order.
I had an earlier amendment which required the Government to be satisfied in prescribing any cancer that there was no chance of it producing discrimination. I was advised that that would not work because the words I used were much too tight and would have made every prescription subject to judicial review, which of course was not the intention.
It would perhaps have been easier if Amendments Nos. 17, 18, 19 and 25 had been in the same group. We could then have had a single debate. I am not sure what the noble Lord, Lord Skelmersdale, intends to do with Amendment No. 18, which removes the prescriptive procedure altogether.
I think that I am correct in saying this. Suppose my noble friend the Minister gives sufficient assurance in the House in Hansard that there will be full consultation and she sets out what would happen if there were a prescription for cancer. If it could be shown that the consultation did not meet the requirements that my noble friend sets for the Government in her reply, that would be subject to judicial review.
Baroness Howe of Idlicote: My Lords, I was one of those who spoke in favour of the amendment on a
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previous occasion. Obviously, there has been some movement and clearly people are very grateful for that. I also feel that if an assurance can be given as far as concerns Amendment No. 19, perhaps that would meet the test. I would prefer it to be on the face of the Bill.
Baroness Hollis of Heigham: My Lords, I am very glad that the extent to which the Government have moved, which I think has been considerable, has been welcomed all round the House. We have reached a position in which most people feel that if there is a case for excluding those cancers we will have that evidence. If there is a case for including those cancers in the coverage of the DDA then we will be able to examine that evidence. That seems to me to be a sound and proper basis on which to proceed.
I shall not rehearse all the arguments that we explored at great length in Committee and on Report any more than your Lordships have done, but I will deal with the specific points. First, the amendments ask for full and fair consultation involving outside organisations such as the DRC. We are doing that. I gave an undertaking about that. That review is under way. We had a preliminary meeting on Friday, 25 February between officials and the DRC. We are pressing ahead with the review. We hope to invite all the leading cancer charities and other organisations, which we and the DRC might consider have evidence, to a meeting shortly.
Our aim is to complete the review in time for the results to be considered with the results of the main consultation which is currently under way and ends on 18 March. We hope that as a result we will be able to proceed with the coverage for HIV and the other cancers and so on as expeditiously as we can, and certainly by the end of the year.
So the substance of what the noble Lord, Lord Skelmersdale, is asking for has already begun to take place. The only problem with using the word "formal" consultation is that you have to meet Cabinet requirements about three months' consultation, timetables and so on, which might result in delay. But I can promise him that the spirit of what he is asking for has already been met as a statement of good faith. We are having full and fairer consultation involving outside organisations, including Macmillan's and any other organisation that it and others feels are appropriate.
Secondly, the affirmative procedure will apply to any regulations subsequently before your Lordships. Again, that is a check on the Government's position. If there is evidence that these cancers should be excluded, as is the view of the noble Lord, Lord Oakeshott, that view obviously would weigh with the Government. However, if new evidence emerges, either from the organisations or in the future, those cancers can come within the coverage of the DDA.
The DRC has welcomed our proposal for a further review of the evidence. It has welcomed our amendment to subject these regulations to the affirmative procedure. Its view is that this matter can now be resolved without further amendment to the Bill. That is also the view of the

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Disability Charities Consortium and the noble Baroness, Lady Darcy de Knayth, empowered me to say that, subject to my comments on consultation, that would now also be her view. She apologised for not being able to give it in person.
In the light of those assurances, which I genuinely believe meet the spirit of the concern of the noble Lord, Lord Skelmersdale, I hope that he will feel able to withdraw his amendments, knowing that the Government are making progress on the consultation issues that he raised and that we will have the backstop of affirmative regulation for your Lordships' House.
Lord Skelmersdale: My Lords, the noble Baroness has made it perfectly clear, and I accept that the Government are currently consulting. That is beyond doubt. However, the problem is that that consultation is about only a small list. I have no doubt that with advances in medical science, which occur fairly regularly, that list will have to be changed from time to time. When that happens, there is nothing in the Bill to keep a future government up to the mark on consultation. Unless we make it beyond peradventure that consultation will always happen in such circumstances, we will be failing in our duty.
Baroness Hollis of Heigham: My Lords, to be clear, if there are to be affirmative regulations, there will be consultation on the draft regulations, so the noble Lord's apprehensions are possibly not well founded.
Lord Skelmersdale: My Lords, I am grateful for that, but it rather worries me. Of course the Government can commit themselves, as they just have, and one assumes that the draft regulations will be issued by the government of the day after the election. Those draft regulations will almost certainly be consulted on. What worries me is, if any further regulations are necessary, whether the commitment to consultation will cover those as well.
Baroness Hollis of Heigham: Yes, my Lords.
Lord Skelmersdale: My Lords, the noble Baroness says that it will. I am still extremely unhappy but, given what we heard from the noble Lord, Lord Oakeshott, and the noble Lord, Lord Ashley of Stoke, I am not inclined to press the amendment tonight.
I think that the noble Lord, Lord Carter, was referring to what would happen under judicial review. Judicial review is sparked, to a great extent, by application for it, which is a rather uncertain procedure and may well be turned down. Nor, as I said previously, do I believe that Pepper v Hart would come into play. None the less, it would not now be proper for me to test the opinion of the House and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 and 19 not moved.]
Clause 19 [Short title, interpretation, commencement and extent]:
Baroness Hollis of Heighammoved Amendment No. 20:
Page 43, line 37, at end insert—
"( ) Section (Improvements to let dwelling houses) also extends only to England and Wales."
On Question, amendment agreed to.
Schedule 1 [Minor and consequential amendments]:
Baroness Hollis of Heighammoved Amendments Nos. 21 to 24:
Page 45, line 31, at end insert—
"In section 4C(2) (provisions whose application to an office or post prevents sections 4D and 4E applying), for "and section 14C" there is substituted ", section 14C and section 15B(3)( b)"."
Page 52, line 36, after "5A" insert ", or any proceedings relating to a relevant improvement,"
Page 52, line 36, at end insert—
"( ) In subsection (9), after the definition of "40 day period" there is inserted—
""relevant improvement" means an improvement (within the meaning of section 49G(9) above) to premises which, having regard to the disability which a disabled person who lawfully occupies or is intended lawfully to occupy the premises has, is likely to facilitate his enjoyment of the premises.""
Page 54, line 29, at end insert—
"(g) regulations under section 67A(3)."
On Question, amendments agreed to.
Baroness Hollis of Heighammoved Amendment No. 25:
Page 54, line 29, at end insert—
"(h) regulations under paragraph 6A(2) of Schedule 1."
The noble Baroness said: My Lords, this amendment does what I have just promised the House that we will do: it adds regulations made under paragraph 6A(2) to the list of regulations that are subject under the Act to affirmative resolution. I beg to move.
Lord Skelmersdale: My Lords, I said in passing in my modified diatribe on Amendment No. 17 that I welcomed this amendment. While I am on my feet, I very much welcome the attitude with which the noble Baroness has conducted proceedings on this Bill. It has been an exemplary performance.
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Baroness Hollis of Heighammoved Amendments Nos. 27 to 30:
Page 55, line 17, after "3(9)," insert "47(1),"
Page 55, line 20, at end insert—
"(5A) A statutory instrument that contains an order under section 47(1), if made without a draft having been laid before, and approved by a resolution of, each House of Parliament, shall be

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subject to annulment in pursuance of a resolution of either House, but the exercise of the discretion conferred by this subsection is subject to section 67A."
Page 56, line 32, at end insert—
"In section 70(5A) (certain provisions extend to England and Wales only), for "and 7B" there is substituted "7B, 49G, 49H and 53A(1D) and (1E)"."
Page 65, line 2, at end insert—
"( ) In section 16 (short title, commencement and extent), after subsection (3) there is inserted—
"(3A) Section 7(1)(aa) and (4A) extend only to England and Wales.""
On Question, amendments agreed to.
An Amendment (privilege) made.
Baroness Hollis of Heigham: My Lords, I beg to move that this Bill do now pass. We have established a convention that there are no final speeches, but I endorse what the noble Lord, Lord Skelmersdale, said about the scrutiny of the House and the extent to which, as a result, in most respects—perhaps bar one—the Bill has been substantially improved in ways that persuaded the Government, as opposed to by simple votes in the House. If I may put it this way, the amendments are therefore more likely to have staying power and robustness. I thank your Lordships and, especially, officials, who have worked very expeditiously to produce amendments to meet the spirit of your Lordships' concern at Report.
Moved, That the Bill do now pass.—(Baroness Hollis of Heigham.)
On Question, Bill passed and sent to the Commons.

Child Support (Miscellaneous Amendments) Regulations 2005
7.46 p.m.
Baroness Hollis of Heighamrose to move, That the draft regulations laid before the House on 2 February be approved [8th Report from the Joint Committed].
The noble Baroness said: My Lords, we move from the sublime to something, but I am not quite sure what.
The regulations before us today amend several regulations that provide for the old and new child support schemes. We have provided a quasi-Keeling schedule. Some of the amendments are purely technical. If your Lordships will allow, I shall give a brief explanation of the more significant changes. I shall be as brief as I can.
Regulation 2 inserts a new Regulation 8A into the maintenance arrangements and jurisdiction regulations. In the new scheme, parents who have a court order made on or after 3 March 2003 can apply for a maintenance calculation once the order has been in force for a year. In those cases, maintenance liability starts two months and two days after the date of the application and the order then ceases. Where we do not calculate child support maintenance within that time, the new regulation provides that payments made under the order after liability starts are treated as payments of child support
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maintenance. In other words, basically, where we have failed to make a maintenance calculation in time, the court order payments can run on and be taken into account. That seems common sense, and that is what people plan.
Regulation 3 amends Regulation 23 of the maintenance procedure regulations. It applies where there is a maintenance assessment and one qualifying child leaves the household of the person with care but other qualifying children remain. It provides that the maintenance assessment is superseded with effect from the first day of the maintenance period in which the child left the household. It also ensures that in those cases, or where one of the children ceases to be a qualifying child—for example, all on his or her 19th birthday—the tolerance rule will not apply.
As your Lordships will know, the tolerance rule means that if any assessment results in a change of maintenance of less than £10, it is not acted on because it is regarded as relatively minor and below the threshold. However, where a child no longer qualifies, that disregard, so to speak, because of the tolerance rules, should not be applied and the maintenance would therefore be adjusted even if otherwise, the change would fall below the threshold.
Regulation 4 amends the maintenance assessments in special cases regulations. One amendment clarifies the policy intention. That is as the result of some question marks thrown over our proceedings by the child support commissioner. This is a difficult area. When determining the amount of tax-free earnings in calculating the income tax of a self-employed person, it should be based on the standard personal allowances generally applied to a person in the individual circumstances, rather than his individual tax code.
Further amendments take account of the Armed Forces compensation scheme and provision of financial support under the Adoption and Children Act 2002, generally maintaining parity with treatment under existing schemes. Again, there is no significant challenge under that Act.
Regulation 6 amends the maintenance calculations and special cases regulations. The amendments in Regulation 6(2) ensure that non-resident parents receiving payments under the Armed Forces compensation scheme will have flat-rate liability in the same way as those receiving payments under the war pensions scheme.
In the new scheme, special treatment applies to a non-resident parent who supports other non-qualifying children; for example, any who live abroad. The treatment produces a lower child support liability than otherwise would apply. Currently the provision applies only if the child maintenance is paid under a maintenance order, which covers orders made in Great Britain.
Regulation 6(4) extends that provision so that it applies also where the support is given either under the terms of an order made by a court outside Great Britain or under a legislative scheme of a jurisdiction

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outside the UK. Regulation 6(5) mirrors for the new scheme the amendments to regulation 4 relating to income tax and earnings from self-employment.
Regulation 7 amends the transitional regulations. Paragraph (3) amends regulation 27 of those. It clarifies how the rules on amounts to be paid are to be applied where a change is to be made during the phase-in period. That is where a non-resident parent who previously had a liability to more than one person with care now has a liability to only one.
Regulation 8, which applies to the new scheme, makes amendments to the variations regulations. A variation can be allowed where a non-resident parent has special expenses because of the costs of looking after a child with a long-term illness or disability. In considering an application, any financial assistance, including DLA paid to the non-resident parent to help with those costs, is taken into account. The amendment at 8(3) expands that provision to cover where those payments are made to anyone in the nonresident parent's household.
The next change has been made in response to a number of representations. That point was raised by Mr Webb, the honourable friend of the noble Lord, Lord Oakeshott, about what was seen as an unfair manipulation of the rules as they stand. That is possibly the most significant of all the regulations that we are talking about today.
The way in which some non-resident parents receive their income is reducing their liability for maintenance in the new scheme by an unacceptable degree. Regulation 8 inserts a new regulation, 19(1A), which extends the existing ground whereby a parent with care may seek a variation relating to income not taken into account. It will apply to cases where the non-resident parent has the ability to control the income he receives from a business or company. It covers cases where the Secretary of State is satisfied that the non-resident parent is receiving such income that would otherwise not count as income in maintenance calculations; for example, a company director who receives his income in dividends.
I have had representations from various members in the other place about the manipulation of income artificially to reduce the liability for maintenance. The amount of income received in that way will be added to the non-resident parent's net weekly income and used to calculate his or her liability.
Paragraph (5)(b) substitutes the existing threshold position. It limits the new variation to cases where the income that I have described is over £100 per week or an aggregate of over £100 where a combination of existing and new provisions applies.
Paragraph (5)(c) provides for a variation where that type of income is diverted to other persons or for other purposes; for example, invested in the company. It also removes the provision that allows a variation on the
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grounds of diversion of income to be given only where the diversion has taken place in order to reduce child support liability.
In conclusion, the regulations before us make amendments to ensure that new and old schemes operate as fairly and effectively as possible. Most of those regulations are in direct response to issues raised either by MPs or the Child Support Commissioner, suggesting that there was some ambiguity in our proceedings. They underpin our continuing commitment to making sure that child support produces the intentions of Parliament. I am satisfied that the regulations are compatible with the European Convention on Human Rights and I commend them to the House.
Moved, That the draft regulations laid before the House on 2 February be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, this can best be described as a "fiddling while Rome burns" regulation. It is extraordinary that the Government should come forward with these proposals when we do not even know who is in charge of the Child Support Agency. On 17 November Mr Alan Johnson, the Secretary of State, announced to the Work and Pensions Select Committee,
"I should tell you that Doug has decided that now is the time to stand aside and to allow a new chief executive to tackle the challenges ahead".
Yet apparently as of 17 February he was still in place. It is all very well to describe people in charming and informal "Doug" terms, but what is happening with regard to the head of the Child Support Agency? We cannot judge whether the proposals in the regulations are going to do anything to reduce rather than increase the general confusion and chaos in the Child Support Agency.
If one looks at the latest figures, there is still confusion between the old and new schemes. We still do not have any clear indication from the Government when those on the old scheme are going to switch over to the new scheme. In all events, of the 478,000 applications for the new scheme since April 2003, only 61,000 non-resident parents have made the first payment; that is only 13 per cent.
Baroness Hollis of Heigham: My Lords, the noble Lord is looking at clearances not including closures. He must look at the total picture. A large proportion of parents, even when the parent with care has made an application for maintenance, go on then to reconcile and obviously no such payment of maintenance goes on to mature. He should not blame on the CSA something that in his private capacity I am sure he would welcome: reconciliation of parents with children to support.
Lord Higgins: My Lords, the noble Baroness has debated the CSA on many occasions. I admitted right at the beginning in 1997 or 1998 that the situation was difficult. That is a long time ago. I am happy to look at the matter in the broader picture, but the CSA's annual report for 2003–04 has an outstanding debt of

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£720 million, of which £140-odd million is from new scheme cases that date from March 2003. A further £947 million is classified as "uncollectable".
Apparently 25 per cent of single parents failed to receive a penny in child maintenance. That is an appalling situation. The Commons Work and Pensions Select Committee published its report recently. It says,
"Whether measured by official targets or any other criteria the CSA has failed; levels of complaint continue to increase, unrecoverable debts rise, the level of staff turnover is going up, the management information to monitor progress is not available and, it is clear that at present the two sectors of the public it is intended to serve treat it either with despair or contempt".
That is an All-Party Committee of the House of Commons. We have this order before us, but we should have, in government time, a serious debate on the appalling situation that is recognised by the Select Committee.
I come again to the main point about the order. Is it going to add to the confusion or improve it? Looking at the length of the Explanatory Memorandum I am reminded of a remark by the late Barbara Castle shortly before she died, when she was having trouble with her eyesight. She said, "I asked my secretary to read out a clause and I replied, 'I don't understand a word of it; read out the Explanatory Memorandum'. My secretary said, 'That was the Explanatory Memorandum'.".
While the situation is collapsing the Government find it necessary to bring in further proposals. One does not know to what extent they improve the situation or make it worse. In all events it is clear that the situation is extremely bad. The Government should soon give us some idea when they think the switch from the old to the new scheme is coming in and what their contingency plan is, if after a reasonable further period of time the matter is not resolved, and we are in a difficult situation in knowing whether one should approve such an order.
8 p.m.
Lord Oakeshott of Seagrove Bay: My Lords, on behalf of my honourable friend the Member for Northavon, perhaps I may thank the noble Baroness for the way in which she explained the specific concerns on that part of the order. In general, we on these Benches have serious concerns about the general operation of the Child Support Agency. Of course, the noble Baroness will be only too aware of that as she has been the responsible Minister since 1997. But this is not the time or the place to go into detail. There will be other opportunities that we will pursue.
As regards this order, perhaps I may ask the idiot question. As a result of these regulations and the switch to the new system, will children or resident parents be worse off? If so, in which cases and why?
Baroness Hollis of Heigham: My Lords, like the noble Lord, Lord Oakeshott, at this time of night, I am reluctant to get into too wide a debate on the CSA. I
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have two broad points to make before trying to deal with specific issues in response to the noble Lord, Lord Higgins.
There are two major problems, a fact that we should all respect. First, we have the CSA because too many non-resident parents, who are mostly fathers but occasionally are mothers—which is not a gender point, although fathers make up 92 per cent of non-resident parents—fail voluntarily to support their children. If they supported their children, the CSA could act like a building society. It might not always be as efficient, but it could act like one.
The CSA exists, with the difficulties that it has, because the lone parent with care is unable to extract money from the non-resident parent for the support of their mutual children when their relationship breaks up. Usually, the situation has resulted in acrimony, hostility and bitterness, and sometimes violence and lying. Our staff, who have done an heroic job and to whom I want to pay tribute, are in the middle of two warring parties, one of whom—the non-resident parent (NRP)—seeks all of the time to walk away from his responsibilities as a father and to dump them on other fathers, called taxpayers. If they were willing to pay and accepted their responsibilities, the core of our problem would not arise, including debt arrears, compliance and enforcement.
However, there is a second problem, which your Lordships are right to criticise. We introduced a new computer system—a new formula—after extensive consultation, which had very widespread support. It was very simple, using the 15, 20, 25 per cent rule. But to do so we had to develop a new computer system, which has not produced the successful and speedy development of applications that it should.
Therefore, in direct response to the question asked by the noble Lord, Lord Higgins, about when we will move the old cases to the new system, we will do that when we are confident that the new computer is robust enough. Perhaps we may remind ourselves that the old system, with all its faults, is working fairly decently: between 75 and 80 per cent of cash and compliance orders are made. Money continues to flow. Were we to bring those cases, parents and children, to the new system and—as with other major computer systems in both the public and the private sector—the system crashed, the money would stop. At the moment, money flows.
I would not be party to bringing people across from the old system to the new system unless I was completely confident that the new system would be able properly to cope. So I cannot give the noble Lord the answer. I wish that I could. If I knew it, I would give it to him. I would emphasise that in the past six months to a year or so, the work with EDS has improved very substantially. It has given us far more in the resources of senior management and has been working far more with us to resolve our problems. We are making steady improvements on the new system.
Of those people on the new system, nearly all private cases receive their money as efficiently as under the old system. It is lone parents on benefit who are not. They

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are not getting the £10 premium, which I very much regret. But they are getting their full benefits. Therefore, they are in the same position as if they had come into the old system from the beginning and had not come in under the new system. While, certainly, the computer has failed to be sufficiently robust yet to bring the new cases over, none the less, people under the old system are continuing to get their money. I do not think that anyone would wish to jeopardise that.
The noble Lord, Lord Higgins, asked about the chief executive, Doug Smith, who has been a civil servant for more than 40 years. In the normal course, he would have moved on or stood down from his existing post many months back, given that most senior posts revolve after three to four years. He has always made it clear that after three to four years in the post, with more than 40 years in the Civil Service, he would expect to retire.
Currently, we are recruiting a replacement. It would be absurd for Doug Smith to go until there is a replacement in place. We are looking at a wide range of people inside and outside government service, which takes time, notice and so forth. But I hope to report that we have someone in post by early spring. While that new replacement is being appointed Doug Smith remains in post and does, I know, a first-rate job.
But the core of the problem remains. If people refuse to pay and there is not an effective computer system that allows you to expedite the payment system, the enforcement and collection, we are obviously dealing with a very difficult situation.
The noble Lord, Lord Oakeshott, asked why we are making these amendments. Most of these regulations are technical, but where they are not we are responding to concerns raised by Members of the other House and, in some cases, the commissioners, where some non-resident parents have avoided payment by manipulating their income. It is right to correct that situation.
Finally, the noble Lord, Lord Oakeshott, asked which children will gain and which will lose. That varies by amendment. On looking at manipulation of income, which I was concerned about, children should gain because there should be a fairer assessment of the income in the NRP's household. Where, however, for example, we are dealing with children in the second household, some of the disability considerations will come into play, which will handle the situation more fairly.
As regards the tolerance rules, if a child is 18 years old, he or she is not due to be supported anyway and the tolerance rules do not come into play. For the most part, the thrust of the regulations is to ensure that there should be no manipulation or avoidance by the NRP in the support that he should give his children. In that sense, so far as the regulations are effectively applied, children should be the gainers within a context of greater fairness.
With that explanation, I hope that your Lordships will be able to accept these regulations.
On Question, Motion agreed to.

Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2005
8.8 p.m.
Baroness Hollis of Heighamrose to move, That the draft regulations laid before the House on 26 January be approved [7th Report from the Joint Committee].
The noble Baroness said: My Lords, in moving the regulations, I confirm my view that they are compatible with the European Convention on Human Rights. The regulations are being made under the Pneumoconiosis etc. (Workers' Compensation) Act of 1979. They simply increase by 3.1 per cent the compensation paid to people who first satisfy all the conditions for payment on or after 1 April 2005. The increase is in line with the general increase in RPI. It is the same as the increase being applied to the general uprating order for other social security benefits.
The scheme pays compensation to people who are suffering mainly from certain dust-related diseases where the relevant employer is no longer in business. More than 70 per cent of the compensation payments made are for people suffering from the particularly fast-acting disease, mesothelioma, which is a terminal lung cancer caused by asbestos fibres. I think I am right in saying that of 6,500 deaths from industrial diseases last year, more than 50 per cent were asbestos-related. Asbestos is a fast killer.
An increasing number of people are now successfully claiming under the scheme. The scheme makes a major contribution to the support provided to people suffering from these dreadful diseases. In an ideal world, the matter would be addressed in primary legislation, and this would be part of the uprating statement. That it is not is due to the fact that we would need primary powers to do it. Therefore, I bring the matter before. your Lordships separately. However, the regulations seek merely to uprate payments in line with RPI. I beg to move.
Moved, that the draft regulations laid before the House on 26 January be approved [7th Report from the Joint Committed.]—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, the Minister is right in saying that the diseases covered by the regulations are terrible. Of the eight orders and regulations that we are debating, this is the only one which has already been debated in the Commons—on 22 February. An extensive debate took place, and it received an appropriate ministerial reply, which dealt with nearly all the main issues involved.
It was pointed out during that debate that an undertaking was given last year that the various payments—I do not say "benefits"—that are made to this tragic group would be uprated year by year. The regulations fulfil that undertaking, and I most certainly welcome them.
As the Minister mentioned, one of the most unfortunate groups of workers comprises those who suffer from mesothelioma. The tragedy is that the

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number of people who are dying from this disease, with absolutely no hope of reprieve, is likely to go on increasing for many years.
It is intended that the increase in payments should offset inflation. I am not entirely clear on two points. First, does the uprating cover all cases of people suffering from these diseases? In one case of which I have personal knowledge, the person concerned was unaware of where the illness had been acquired. There was no specific occupation in which it was thought he might have picked up the disease, although various occupations where he might have done so were considered. Do the regulations cover everyone, or do they depend on the disease being related to some previous occupation?
I turn to my second point. The payments have been increased by 3.1 per cent and rounded to the nearest pound, and so on. Will they be means-tested and will they be taxable? If they are either of those, the extent to which they compensate for inflation will be correspondingly diminished. Has that point been considered? I believe that one can isolate work-related diseases from many of the other problems of health and social security with which we contend.
Lord Oakeshott of Seagrove Bay: My Lords, these are terrible and inexorable diseases. I do not propose to duplicate the debate in the other place, particularly the perceptive and moving remarks of my honourable friend the Member for the ex-mining area of Chesterfield, who talked about his grandfather, a miner who suffered from diseases of this kind. In general, we support the uprating and thank the Minister for her explanation.
Baroness Hollis of Heigham: My Lords, while on the subject of moving remarks, I was rereading the debate that was introduced by the noble Earl, Lord Onslow, a couple of years ago in which he spoke about white asbestos as opposed to blue and brown. I recall Lord Walker of Doncaster observing that, while the noble Earl, Lord Onslow, talked about asbestos in his barns, he had asbestos in his lungs. He held the House in his hand while he spoke.
The noble Lord, Lord Higgins, asked whether the regulations covered all cases. The trigger for the payments is that one is already receiving industrial injuries benefit. Eligibility is related, first, to work which, conventionally, has been in slate-related industriesa—lthough it increasingly applies to the construction industry, which is probably the biggest single cause of new cases coming through—and where the employer is no longer in business. In other words, it is a substitute in instances where the person involved cannot go after the employer, usually because, as the noble Lord will know, these are diseases with long a latency—40 years, 60 years. Many of the firms involved have long been out of business.
That is why we have this rather special scheme. However, to get access to it, first you have to have acquired the disease at work and, secondly, the employer is no longer in business. Therefore, you have no other form of compensation or additional financial
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support. This was a decent thing that was done as the clock ticked in 1979, in the last months before a general election. It was done by a Labour government, and the following government did not seek to overturn it. There was consent.
Secondly, the noble Lord asked me whether payments count against income support. Yes, they do count against income support, but it would be rare for somebody to be on income support if he qualified for this scheme. Normally, someone would, for example, get industrial injuries benefit. They might get additional incapacity benefit. They might well get DLA and so on, and then some money in addition as well.
Someone might be on income support, in which case it would count against income support. The way that these incomes build up, one would be talking about incomes of anywhere between £10,000 and £12,000 a year through disability benefits, and then a payment depending on the extent of the disability.
I do not think that the noble Lord, Lord Oakeshott, did anything other than say than he welcomed our approach, so, with those responses, I hope your Lordships will accept these regulations.
On Question, Motion agreed to.

Social Security (Inherited SERPS) (Amendment) Regulations 2005
8.16 p.m.
Baroness Hollis of Heighamrose to move, That the draft regulations laid before the House on 31 January be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, I can be very brief, or take a little longer. Let me try being very brief and see if that is enough, and if necessary I could return to the matter in a wind-up.
Under the Pensions Act we are introducing a lump sum as an alternative to increments. This set of regulations applies the same option to those with inherited SERPS rights. That is all. I can go into the regulations more fully, but that is all they do—they apply to SERPS what your Lordships have already agreed will apply to the basic state pension. This will now apply to the additional pension as well. I beg to move.
Moved, That the draft regulations laid before the House on 31 January be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
Lord Higgins: As far as inherited SERPS is concerned, the topical statement is "Been there, done that". I do not propose to go over it again in any detail.
As I understand it, the effect of this order is to increase choice. The Conservative Party is in favour of choice. We are in favour of this particular proposal.
Lord Oakeshott of Seagrove Bay: My Lords, I am in favour of this proposal in so far as I understand it.
On Question, Motion agreed to.

Social Security (Intensive Activity Period 50 to 59 Pilot) Regulations 2005
8.17 p.m.
Baroness Hollis of Heighamrose to move, That the draft regulations laid before the House on 2 February be approved. [8th Report from the Joint Committee].
The noble Baroness said: My Lords, again, I can be equally brief or more extended, as your Lordships wish.
Basically, we are running pilots to ensure, as far as we can, that men and women in the age group 50 to 59 remain within the labour market by increasing what we call their intensive activity. We brought regulations for pilots to the House a year ago. We are dealing with small numbers. As we said at the time, we need to run these pilot schemes for two years to see whether the intensive activity style that we are introducing is as effective as we hope it will be at keeping people within the labour market. Regulations could be made for only one year at a time, therefore we need your Lordships' consent to extend those same powers for a further year. I beg to move.
Moved, That the draft regulations laid before the House on 2 February be approved [8th Report from the Joint Committee].—(Baroness Hollis of Heigham.)
Lord Higgins: My Lords, I have only one query. It is actually two orders that we are debating under this heading and, despite intensive scrutiny, I could not distinguish the difference between the two. Perhaps the noble Baroness can tell us.
Baroness Hollis of Heigham: My Lords, there was similar confusion when I introduced the two regulations the first time.
The two regulations start at different times. Some pilots started three months ahead of the other pilots. We needed two regulations then to continue for 12 months and we need two regulations now to continue for a further 12 months.
Lord Oakeshott of Seagrove Bay: My Lords, "intensive" seems to be the mot de jour, or mot de soir in this case.
Let me make it clear that we support the general principle behind the intensive activity period for 50 to 59 year-olds, but we have reservations about the imposition of a mandatory system. Reports published by the DWP show the negative impact of benefit sanctions. There is even a recent University College, London study showing a link between claimants disappearing off the register due to sanctions and a small increase in crime. The key for us is that increased support for the over-50s to get back to work should be matched by a much stronger pension system so that that age group is not driven into work by fear of poverty in retirement.
Baroness Hollis of Heigham: My Lords, I entirely agree with that. The best way in which to ensure that people do not carry poverty through into their old age
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is to keep them in the labour market as long as possible—and we are doing that. The noble Lord asked about sanctions. He is obviously right: we would be failing if at the end of the day we did not work with the grain of what most people believe is decent and sensible. Something like 800 people have been involved in the pilot so far, and only three have had to be sanctioned because they failed to turn up. I hope that the noble Lord will accept that we are working with informed choice, which, as he said, is something that we are all in favour of.
On Question, Motion agreed to.

Social Security (Intensive Activity Period 50 to 59 Pilot) (No. 2) Regulations 2005
8.21 p.m.
Baroness Hollis of Heigham: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 2 February be approved [8th report from the Joint Committee].—(Baroness Hollis of Heigham.)
On Question, Motion agreed to.

Tax Credits Up-rating Regulations 2005
8.21 p.m.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey)The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey) rose to move, That the draft regulations laid before the House on 31 January be approved [8th report from the Joint Committee].
The noble Lord said: My Lords, with the universal agreement of the hordes of noble Lords present on this occasion, I shall speak to the two subsequent orders on the Order Paper. In my view, the regulations and order are compatible with the European Convention on Human Rights.
Tax credits, together with child benefit, deliver support to virtually all families with children in the UK. The regulations and the order put into effect the next stage of our commitment to tackle child poverty, in particular through increases in the child tax credit. So I am pleased to introduce these regulations which increase certain elements and thresholds of tax credits and to introduce the order, which raises the main rates of child benefit and guardian's allowance.
From 6 April 2005, the child element of child tax credit will rise to £1,690 a year, an increase of £65 in line with earnings. That represents an increase of £245 since its introduction in April 2003, benefiting 6.65 million children. In addition, the regulations increase the disabled child elements of child tax credit in line with inflation. From 6 April 2005, the regulations increase the elements of working tax credit in line with inflation.
Alongside the child tax credit, the working tax credit provides support to low income working people including people who do not have children. The Child Benefit and Guardian's Allowance Up-rating Order 2005 will increase rates in line with inflation for 2005–06. From 11 April 2005, child benefit will be worth?£17 a week for the first child and £11.40 for subsequent children. For the first child, that represents a 25 per cent increase in real terms since 1997.
We estimate that the full-year cost of up-rating child tax credits alone to be £700 million; the full-year cost of up-rating child benefit and guardian's allowance is in the region of £304 million. As a result of this new investment, the Government are on track to meet their PSA target to reduce by a quarter the number of children in low income households by 2004–05 on a before-housing-costs basis. Some 3.5 million families and 6.65 million children will benefit from the increases in the child element of child tax credit—approximately half of all families with children in the UK. Some 7 million families will benefit from the increases in child benefit.
Overall, 5.9 million families are benefiting from tax credits; the take-up of tax credits is a great success, and they are reaching the families whom they are meant to help. With the increases affected by the instruments that we are now considering, we will be delivering more support next year. I commend the tax credits regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 31 January be approved [8th report from the Joint Committee].—(Lord McIntosh of Haringey.)
Lord Higgins: My Lords, although effectively the regulations deal with what are really social security problems, we have a change of batting. The noble Baroness, Lady Hollis of Heigham, retired on 100 not out. There was rather a bad referee's decision earlier, after the Division, but other than that she did admirably throughout a very long session. That change of batting reflects the extent to which, since 1997, the Chancellor of the Exchequer and the Treasury have taken over many aspects of social security under the Chancellor's obsession with tax credits of various kinds.
Many people are now extremely confused about what is happening on tax credits. In his opening remarks, the noble Lord seemed to underestimate the amount of confusion about tax credits and overestimate the extent to which the credits are taken up. Since 1999—this is all related to the child credit or the tax credit regulations that we are debating—we have seen the abolition of the family credit; the introduction of the working families tax credit; the introduction of the disabled person's tax credit; the introduction of the child care tax credit; the introduction of an employment credit; the introduction of a children's tax credit; and the introduction of a baby tax credit. Then the Government abolished the working families tax credit; the disabled person's tax credit; the children's tax credit; and the baby tax credit. They introduced a child tax credit; abolished the employment
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tax credit; they introduced the working tax credit; and finally they introduced a pensions credit. It is not surprising that people are a little confused, and it is not surprising that many people do not take up the benefits to which they are entitled.
Under these orders, they will be up-rated. To what extent does the Minister expect that this increased amount will be taken up, together with the amount that was previously being paid? It seems that a high percentage of people are not claiming the benefits to which they are entitled. As the noble Lord will know, the Government assume to a large extent that many of those benefits will not be taken up.
It is worth mentioning that we are concerned here with the child tax credit. Part of the problem with the administration of the child tax credit is that the Chancellor has tended to take over one aspect after another of the social security framework, with very little resistance from the three Secretaries of State who one after another did not really fight their corner on this. At least the new Secretary of State seems to he taking a more abrasive attitude, which suggests that the obsession with tax credits might be open to some qualification at present.
The other problem is that the administration of the child tax credit was taken over by the Inland Revenue. The Inland Revenue is, on the whole, remarkably efficient at collecting money. It came as no great surprise that it turned out to be rather inefficient at disbursing money, something for which historically it has not been renowned. The result is that the Revenue has allegedly disbursed a considerable amount of child tax credit to people who, after the event, it has decided are not entitled to it. What is the Revenue now going to do? It is going to collect it back. That is having a serious effect on a significant number of people.
As the noble Lord rightly pointed out, the child tax credit is designed to help many people on low incomes. If the Revenue suddenly pays out money to which it subsequently decides the recipients are not entitled. and then in its usual rather draconian way tries to get it back, a considerable amount of hardship may be caused to a significant number of people. Having no doubt spent the money, because they are hard up, there is little action that people can take to put the matter right. That is why my right honourable friend the shadow Secretary of State announced a little while ago that as far as the Conservative Party is concerned there should be an amnesty, unless it can be shown that the overpayment was caused by fraud on the part of the claimant.
This is a serious problem that affects individuals. While the increases under this order will be welcomed, the take-up and the problems faced by those who have suffered from the way in which tax credits have been administered by the Inland Revenue are very significant matters for concern. We do not wish to oppose the order, but these are serious issues that reflect the complexity produced by the Chancellor's obsession with every conceivable tax credit and that give us considerable disquiet. No doubt that is something that we will have to tackle when we come into government.
8.30 p.m.
Lord Oakeshott of Seagrove Bay: My Lords, I shall follow the noble Lord's cricketing analogy and am happy to come on to bowl from the other Opposition end. again unchanged from the previous match.
I do not propose to follow my friend in the other place, the Member for Northavon, who, I believe, used the opportunity of these orders to go into some detail about the principles of how social security benefits should be fixed or paid. We support the uprating, but what was the take-up, on the most recent figures available, for each of the benefits that is now being uprated? I quite understand that the Minister may not have the figures at his fingertips, but if he does not, can he please write to me and not refer me to a website, which may or may not be decipherable?
Lord McIntosh of Haringey: My Lords, I have to start by apologising that an Answer I gave to the noble Lord, Lord Oakeshott, at the beginning of the month gave the wrong website. I have asked him to apologise to his researcher, who had particular difficulty finding it, as did the noble Lord. I hope that it has now been corrected and I apologise to the noble Lord, Lord Oakeshott, and to his researcher.
Lord Oakeshott of Seagrove Bay: My Lords, as that point has been raised, it is a totally unacceptable way to answer a parliamentary Question, whether or not the website is accessible. That is being taken up and I hope that we will get a proper Written Answer on that point, which is why I made it.
Lord McIntosh of Haringey: My Lords, I shall look at that Question with due care when it comes to me. I understand the point. When matters are on the website, it is very convenient to hope that that is an acceptable way of answering. My position is that if it is not acceptable, we must print it out. Most people receiving Answers that refer to websites do not have the same difficulty as the noble Lord, Lord Oakeshott.
The noble Lord, Lord Higgins, raised three issues. First, the issue of the complexity of tax credits; secondly, the issue of take-up; and thirdly, what he described as the inefficient way that the Inland Revenue disburses money.
I do not accept that tax credits are complex. I accept that the history of tax credits over the past eight years has involved a number of introductions, and relaunches, so to speak, with the consequent abolition of some credits. But the movement has been in the direction of simplicity rather than greater complexity. We now have a system that replaces several earlier strands of support with different rules. Tax credits now are designed to be responsive to the changes that families experience as they happen: changes in the number of children in the family, in working hours, in child costs and family income. Now an annual assessment is made, which can be corrected by the recipient if it is clear that one or more of the bases of the assessment is wrong, and can be altered if the recipient notifies during the year that there has been a change in one of the bases for the assessment. There is
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no longer a compulsory requirement, as there used to be in some cases, for continual reassessment and substantial bureaucracy. If there have been changes during the year, the amount the family will receive should change to reflect that. At year end, we balance the books and pay out any extra amount due, or say how we propose to recover any amount that is overpaid. That, of course, was another complaint of the noble Lord, Lord Higgins—the "draconian" way we approach overpayment.
I contest that claim as well. Tax credit award notices show claimants the amount of tax credit they are due, together with the basic information. They are asked to check that the information is correct, and to call the helpline if the details are wrong. Overpayments from 2003–04 will be recovered from continuing 2004–05 payments wherever possible. To prevent hardship, there are limits on the amounts that will be corrected from payments. Code of practice No. 26 concerns recovery of overpayments, and is available both on the website and as a leaflet. A copy has also been placed in the Library.
People should get the tax credits they are entitled to and no more, but tax credits are designed so that the firs 2,500 of a rise in income in the current year does not affect the tax credits to which families are entitled for that year. That helps to prevent people being overpaid, and reduces any overpayment they may receive. The scales are clearly tipped in the recipients' favour.
There are two kinds of overpayment. The first kind is because of a mistake by the Revenue, where the recipient could reasonably have thought their payments were correct. Under those circumstances, the Revenue will not pursue the debt. The second kind, however, is an overpayment that could have been identified, or is a result of a mistake by the recipient, and in those cases the code of practice applies. An amnesty on overpayments would not therefore be right. We would be failing to protect the public purse, and it would be unfair on those families who did notify their changes in time, or who had their award adjusted during the year to avoid overpayment at year end.
The second point the noble Lord, Lord Higgins, made was on the subject of take-up. We do not have the take-up rates for 2003–04 because we do not have the survey data for that period. They will not be available until spring of this year, which, I guess, is some time after today. I certainly would not wish, however, to be challenged on when spring ends. This question arises annually, and it is unfortunate that we happen to be debating it.
Some 5.9 million families benefit from the scheme when, if we take the likelihood that nine out of 10 families with children are eligible, 6.5 million families should be doing so. The comparison is misleading, though, as it would be unrealistic to expect 100 per cent take-up. Even child benefit, which has been in existence for decades, does not achieve that. We have far higher take-up levels than were anticipated when these credits were first introduced.

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To conclude on the points made by the noble Lord, Lord Higgins, I cannot accept that the Inland Revenue is inefficient at disbursing money. There are clearly bad cases; I have read about them in the paper, as the noble Lord has. However, we have a system that is as light on requirements for reporting as it conceivably can be, and that is humane in dealing with any of the rough edges that are inevitable if you have an annual assessment rather than a more frequent one.
Lord Higgins: My Lords, apparently even the Revenue admits that 455,000 families were overpaid in 2003–04, to the tune of £93 million. That is not a very efficient way of going on. Is that figure correct? What is the overall scale of the extent to which the Revenue has overpaid?
Lord McIntosh of Haringey: My Lords, I am not in a position to deny that figure by searching through my papers at the moment, so I will not deny it. However, we are talking about 10 per cent of claims involving overpayments. That is not a very surprising figure if you take account of the fact that the assessment is made only once a year, and that quite a number of the things that I detailed are capable of change in the course of the year. It clearly is undesirable to have that level of overpayment, but it is the price that we pay for putting less of a burden on claimants.
I am now able to say that the 455,000 cases of people who received excess payments of tax credits were specifically due to a computer error in April and May 2003. It is a small figure compared to the number of families benefiting from tax credits, and is the result of
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a particular glitch or series of glitches in those two months. It should not be taken as a permanent feature of tax credits.
The noble Lord, Lord Oakeshott, joined in some of the comments of the noble Lord, Lord Higgins, so my response to him would be similar—apart from my apologies for our disagreement about websites.
On Question, Motion agreed to.

Child Benefit and Guardian's Allowance Up-rating Order 2005
Lord McIntosh of Haringey: My Lords, I beg to move.
Moved, That the draft order laid before the House on 31 January be approved [8th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.

Child Benefit and Guardian's Allowance Up-rating (Northern Ireland) Order 2005
Lord McIntosh of Haringey: My Lords, 1 beg to move.
Moved, That the draft order laid before the House on 31 January be approved [8th Report from the Joint Committee].—(Lord McIntosh of Haringey.)
On Question, Motion agreed to.
House adjourned at seventeen minutes before nine o'clock.

Official Report of the Grand Committee on theRailways Bill
(First Day)
Monday, 28 February 2005.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Viscount Allenby of Megiddo) in the Chair.]
The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before I put the Question that the Title be postponed, perhaps I may remind your Lordships of the procedure for today's Committee stage. Noble Lords must speak standing; and the House has agreed that there will be no Divisions in the Grand Committee. Unless an amendment is likely to be agreed to, it should be withdrawn.
If there is a Division in the Chamber while we are sitting, and I believe that that is likely to be the case today, the Committee will adjourn as soon as the Division Bell is rung and will resume after 10 minutes.
Over recent weeks there have been some failures in the sound system. If they should recur, we shall have to suspend the Sitting until it is mended.
Title postponed.
Clause 1 agreed to.
Schedule 1 [Transfer etc. of functions of the Strategic Rail Authority]:
Lord Rotherwickmoved Amendment No. 1:
Page 69, line 23, at end insert "and substitute the words "and otherwise encourage the adoption and implementation of" with the words "together with a timetable for implementation""
The noble Lord said: This amendment would require the Secretary of State to publish a timetable for implementation whenever he publishes the code of practice covering Train & Station Services for Disabled People, or a revision thereto. We also welcome the introduction of a power for Scottish Ministers to prepare and revise a code of practice on protecting the interests of disabled persons. However, we believe that it is imperative to learn the lessons of the SRA code of practice, Train & Station Services for Disabled People.
The code is not enforced, despite Section 6.5 of the Government's 10 Year Plan for transport which requires that no money be spent on public transport infrastructure that is not accessible for disabled people. Section 70(1)(b) of the Railways Act 1993 requires the SRA to,
"publish and otherwise encourage the adoption and implementation of … codes of practice",
for the promotion of rail users who are disabled. Paragraph 29(1) of Schedule 1 transfers this duty to the Secretary of State. However, this has not worked and
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we suggest that an approach similar to that adopted by Section 142 of the Greater London Authority Act 1999 is used instead. The relevant paragraph states that the Mayor's transport strategy shall contain the Mayor's,
"proposals for the provision of transport which is accessible to persons with mobility problems".
It also states that the Mayor's transport strategy has to contain a timetable for the implementation of the proposals designed to make transport more accessible for disabled people.
Moving on to Amendment No. 82, we welcome the requirement that the Disabled Persons Transport Advisory Committee, known as the DPTAC, be consulted, but believe that it is essential that its Scottish equivalent, the Mobility and Access Committee for Scotland, the MACS, with whom the DPTAC works quite closely, should also be consulted.
While we cannot accept the Minister's assertion on Report in another place that to sort out the whole of the devolution issue relating to MACS and DPTAC would be complicated, it is illogical that the DPTAC, but not the MACS, be consulted by the Scottish Minister on a code of practice applying only to Scotland. I beg to move.
Lord Davies of Oldham: I am grateful to the noble Lord for moving the amendment so clearly, and it goes without saying that we are totally in agreement with the sentiments lying behind it; namely, that we should do all we can to promote the interests of the disabled in relation to use of the railway. The noble Lord will recognise that in a very short time in the Chamber the Government intend to do exactly that in relation to the disabled in a further stage of the Disability Discrimination Bill.
Protecting the interests of people who are disabled is important on the railways, just as it is in all aspects of life. An opportunity to strengthen that protection looks like an opportunity which should be taken. I am sorry therefore not to be able to accept this amendment, but I have a fundamental problem with it, which is that I do not believe it strengthens the provision. In fact it would risk diluting what we already have in place.
First, it requires the Secretary of State to publish a timetable for implementation of the code along with the code itself. I do not think that is necessary or desirable, because the Secretary of State's code, as with the SRA's current code, will bite immediately and will be enforceable through licence obligations. Therefore, no timetable is necessary. In fact, any timetable, if it had such force, would delay what we are already giving effect to. The code covers both standards of service and physical standards.
Passenger train operators and station operators must take account of the code from the outset by providing appropriate standards of service for disabled passengers. For example, under the current code, all licensed operators must arrange for designated staff to have disability awareness or equality training. Likewise, operators must participate in a reservation system that provides effective assistance for disabled passengers at all

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stages of their rail journey. These are not matters to be implemented according to a government timetable. The requirements apply at this moment and will continue to do so.
The timetable for applying the physical standards in the code will be clear from the code itself. Under the existing code, it is expected that all new stations will meet the mandatory or recommended technical standards. Station operators will also be expected to ensure that existing stations meet these standards when facilities are renewed or enhanced, within the constraints of the site environment. So, for example, as part of any major refurbishment of a booking office in the future, if it has only one ticket window that must be designed so that wheelchair users can use it as easily as everyone else. Of course, it is not always necessary for access improvements to wait until assets are refurbished or renewed.
The SRA will be consulting shortly on a strategy for making the railway more accessible through both physical and customer service improvements. This strategy will be wide-ranging and will include proposed revisions to the SRA's code of practice.
As I say, I totally accept the well intentioned sentiments behind this amendment, but for the reasons I have given I honestly believe that the Bill is better without it. I can assure your Lordships that the Government will, of course, take this aspect of their new responsibilities for rail very seriously indeed because accessibility is a vital issue. As I attest in evidence, the Bill that is going through—
The Deputy Chairman of Committees: I am sorry to interrupt but a Division has been called in the Chamber. The time is 3.36 p.m. We shall reassemble at 3.46 p.m.
[The Sitting was suspended for a Division in the House from 3.36 to 3.46 p.m.]
Lord Davies of Oldham: I was interrupted by the Division on a very constructive note. I was saying how much I appreciate the good intentions behind the amendment but also expressing the view that I did not think we could accept it. However, I was able to reassure the Committee that the Government take this aspect of their responsibilities for rail very seriously indeed.
I have some sympathy with the principle behind Amendment No. 82. A similar amendment was debated in the other place, and appreciation was expressed at the important role of the Mobility and Access Committee for Scotland, which I shall now refer to as MACS. However, the amendment was resisted by the Government on the grounds that it is not really necessary. The Government continue to hold that view and I shall seek to sustain it today, although I understand why Members of the Committee would wish to ensure that MACS was mentioned in the Bill.
In Scotland, MACS fulfils a similar role to the Disabled Persons Transport Advisory Committee, which we usually refer to as DPTAC. However, equal opportunities law, including the Disability Discrimination Act 1995,—the Act that established
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DPTAC—is reserved to Westminster, so DPTAC does not have a role in Scotland. However, it works very closely with MACS; arrangements are in place to ensure that the work of the two bodies is complementary. While DPTAC will deal with issues which are reserved to Westminster, MACS will deal with issues that are devolved to the Scottish Parliament. Existing arrangements should ensure that DPTAC involves MACS, or that MACS takes the lead where devolved matters are concerned.
I am sure that when the Scottish Executive consults on the code of practice, it will involve as wide an audience as necessary. That will include MACS as the body that its Parliament set up to represent disabled people's interests in Scotland. A duty for the Scottish Ministers to consult DPTAC but not MACS should not adversely affect the existing role of MACS or the interests of disabled rail users in Scotland.
In the light of the assurances I have given concerning the operation of the provisions relating to codes of practice for Great Britain as a whole and for Scotland in particular, and understanding the legitimate concerns expressed by the noble Lord who moved the amendment, I hope that he will recognise that we share common objectives in this respect and will feel able to withdraw his amendment.
Viscount Astor: Perhaps I could ask the Minister a couple of questions while my noble friend decides how to respond. My noble friend's amendment was intended to be helpful, as, indeed, are all our amendments to the Bill. Whether the Minister thinks them helpful or not, of course, is a matter for him.
Clause 47 refers to the code of practice for disabled rail users in Scotland. It refers to Scottish Ministers with respect to revising and publishing a code of practice, and consulting before doing so. If I heard the Minister right, he said that the Disabled Persons Transport Advisory Committee deals with reserved matters and is an English institution. Here we fall down the hole in the middle of devolved government. Under the Bill, the Scottish Parliament is being asked to consult a Westminster body before preparing or revising a code that is relevant only in Scotland. It is being asked to do that when there is a perfectly acceptable equivalent Scottish body—that is, as the Minister said, the Mobility and Access Committee Scotland.
This does not make sense and the Minister has not addressed the issue. If MACS is responsible for these matters in Scotland, it is not good enough to say, "Well, I am sure the Scottish Parliament will talk to that body", if it does not say so on the face of the Bill. If it is to talk only to the body responsible for England, it makes a total mess of devolved government.
This is a complicated issue, as we know, because part of the Bill devolves certain responsibilities for the rail network to Scotland. It seems to me that if we are to do that, we ought to do it properly. Perhaps the

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Minister will address that concern and think the issue through a little further before he responds to my noble friend.
Lord Davies of Oldham: I always respond to an invitation to think an issue through a little further. I recognise the noble Viscount's wish to be helpful and, as I have indicated, the amendments to which he gives his support have been expressed in constructive terms.
The point we are seeking to establish is that the Scottish Executive would be consulting on the same issues as their English and Welsh equivalents—namely, what is best practice in meeting the needs of the disabled. DPTAC will be consulted on these issues and will be able to reflect its views on what ought to be best practice across Great Britain.
Of course MACS will have a role but, in this respect, direct consultation with MACS would merely add to what DPTAC will be doing in relation to the whole of the country. I am seeking to emphasise, as the noble Lord will recognise, that the real thrust of the amendments to which we object is that they would introduce a timetable and restriction, whereas we have a code in place in which consultations regularly take place and in which DPTAC has a statutory position, as identified accurately by the noble Lord, under Clause 47(3). The issues with which MACS would be concerned would be derivative from that experience.
I am not rebutting the amendment and suggesting that it does not contain a contribution to the debate on how to assist the disabled. But we have a code in place, an ongoing structure in which, quite clearly, there is a process for ensuring that the interests of the disabled are fully consulted upon. On that basis, I hope noble Lords opposite will recognise that they can safely not press the amendments.
Lord Rotherwick: I thank the noble Lord for that helpful answer to the first amendment. I naturally accept what he said. As to the second amendment, his reply seemed rather complicated and I am not quite there yet. I should like to take the matter away, read carefully what the Minister said and come back to it at a later time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Schedule 2 [Transfer schemes]:
Lord Berkeleymoved Amendment No. 2:
Page 74, line 7, at end insert—
"( ) A scheme may not transfer any property, rights or liabilities of or vested in BRB (Residuary) Limited."
The noble Lord said: Before speaking to the amendment, I declare an interest as chairman of the Rail Freight Group. I hope that that will suffice for today's sitting. This is a probing amendment to try to find out what will happen to former British Railways land that is currently administered by the Strategic Rail Authority on behalf of BRB (Residuary) Ltd.
Perhaps I need to go back a few years to privatisation, where BR land was divided between operational and non-operational land. The operational land was
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allocated to Network Rail and the non-operational land remained with BRB (Residuary). The theory was that BRB (Residuary) could then do what it liked with that land, because it had no further railway use. whereas Network Rail would look after the land that it received, as part of its regulated activities. Six or seven years ago we found a problem when the split was made between the two recipients of land. Unsurprisingly, in the haste, a few mistakes were made. It was discovered that a number of the sites that had remained with BRB (Residuary) were actually useful for rail use: possibly for a rail freight terminal, an extension car park at a station or anything like that.
The matter came to a head when we discovered one Christmas that British Rail was selling off a prime city centre site for aggregate receipt to the Battersea Dogs Home. I made the point that dogs did not need to be rail connected, whereas aggregates did. No one thought that that was funny, least of all the Daily Mail, and, of course, the sale went to the dogs' home, which offered a higher price than anyone else. Everyone in the SRA thought that that was sad and should not be repeated, so they set up a property advisory group, of which I had the honour to be a member.
Over two or three years we visited every site that the property board owned and marked them as either useful for railways in the future or no use at all. They included railway sites in the middle of nowhere that were not connected to any railway that would ever open again and were a liability, rather than an asset. Some land is still held by the Strategic Rail Authority on behalf of BRB (Residuary).
The sort of period for which we looked ahead in the property advisory group was 20 years. We said that a site should be retained by BRB (Residuary) Ltd if there was a likelihood that within that period it might be required for passengers, freight, maintenance or anything else to do with a railway. Network Rail also started selling off land when it should not have done and the regulator made it institute a procedure for consultation which is still used today and works well.
Can my noble friend say what will happen to such land when the SRA is no more? I can see two options: one is that the Secretary of State will keep hold of BRB (Residuary), in which case I hope that he will see his way to preserving the land that could be of use in future, in a similar way to the SRA, and issue some guidance to that effect; or, secondly, to transfer the land to Network Rail as part of its regulated—and I do mean, regulated—land holdings.
I have no preference either way. But if the whole lot was disposed of—as could happen, if I have read Schedule 2(2) correctly—that would be a great shame, because there are still some sites which could be of use in the future. I beg to move.
4 p.m.
Lord Bradshaw: I support the amendment and shall await the Minister's response with interest. Railways are a long-term business: you are not in it today and out in two or three years; you are looking to the future, which often is not easy to predict. To take an example

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local to me, a lot of land beside the railway going north of Oxford, part of which has been sold, is now possibly required for a guided bus way. There is just about enough land left—only just, because so much has been sold for housing—on the site of a coal-yard, which had appeared to be redundant. As congestion changes and the demand for access to cities changes, people's view of transport in the round changes as well.
I am most anxious that nothing is disposed of which might be of future use. I well understand the motives that guide people whose job is to sell things off. They see things in very short-run terms, because their task is to get some money to satisfy this year's budget. In fact, if you are engaged in any way in strategic planning, you realise that the decisions that you take today affect your children and grandchildren, and you ought to be very careful in sacrificing any opportunities to use, particularly corridors and especially those into large cities, and sites in cities that might serve as distribution depots in the future, when we might be short of oil and will need them.
We need to act very cautiously and preserve the opportunity to consider each case very carefully on its merits before somebody, guided by short-term motives or perhaps his end-of-year bonus, acts rashly.
The Earl of Mar and Kellie: I remind the Committee that there is a very good example of such a shortcoming at Marylebone station, which was reduced to four platforms from six. Two westerly platforms were built on and now two more are to be rebuilt but further out, so passengers will have to walk further. That in itself may not be too had for passengers, as they are going to sit on a train, but it is a good example of where an asset was lost.
Lord Davies of Oldham: I understand the motivation behind the amendment and recognise the point that the noble Lord, Lord Bradshaw, emphasised: these are long-term decisions affecting the railway and should therefore get proper consideration.
My noble friend proposed two possible solutions; we are taking the first one. The policy intention is to transfer ownership of BRB(R) from the Strategic Rail Authority to the Secretary of State without any alteration to its portfolio. BRB(R) would continue with its estate management and disposal role under its new ownership. It has disposed of land at a steady but not rapid rate since privatisation, and only after due consideration of a potential future transport use has been taken into account.
Once it comes into the Secretary of State's ownership we shall want to reassess the rate of disposal to see whether it can be speeded up when it is clear that disposal would be the right course to pursue. But we will not change the basic policy that the railway has first call on those landholdings where any possible need is foreseen. By "railway" I mean not just passenger transport but, to reassure my noble friend, freight interests also, both in the short and longer term.
I can give the assurance that the interests of all rail users, not least the interests of rail freight, will be protected in this important area. That will apply just as
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much when considering the use or disposal of land as it would in any other area. It will continue to be our policy not to dispose of land until the possibility of future use for transport purposes has been fully considered, while appropriate consultation will of course continue to be part of that process.
I hope that my noble friend is assured that we intend to follow the first solution he put forward.
Viscount Astor: Perhaps I may put some questions to the Minister. Many stations in this country have had money spent on them, but just as many have not. The latter are in a pretty poor state and need investment, and some car parks need to be improved, expanded and made secure if we are to encourage people to use trains. Insecure car parks make it very difficult to use the train because one's car will be broken into if it is left overnight.
Accepting what the Minister said about disposals, I believe it will effectively be the Secretary of State and the Department for Transport which will decide. He said that they will consult. It would be helpful to the Committee if he could specify with whom they will consult. Will it be the train operating companies or with other bodies?
The Minister said that if they decide that certain land is not necessary, after due consideration they will decide whether it might be sold. But what will happen to the proceeds now that a government body is helping in this? Will the proceeds automatically go back to the Treasury? Will the department have to make a call on it under a separate request, or will it automatically be there for reinvestment in stations, car parks or whatever? It would be helpful if the Minister could tell us.
If the money is to be raised by sales, we will all be concerned that it does not disappear into the Treasury, which will undoubtedly put forward a scheme. It is important to know whether we will have—not substitution, but another word which I shall think of in a minute.
Lord Berkeley: Hypothecation.
Viscount Astor: Exactly; I am grateful to the noble Lord.
It would be helpful if the Minister could answer those questions. I did not intervene earlier because it was important first to hear what the Minister had to say. I believe that the noble Lord, Lord Bradshaw, also has some questions.
Lord Bradshaw: When the noble Lord, Lord Berkeley, introduced the amendment, he said that there were two types of property, the first of which is with Network Rail and is regulated. Does anyone regulate the Secretary of State, or is he in fact a free merchant? We are talking about the "secretary of state" in small letters, not about Alistair Darling. Will a future Secretary of State have the right to act of his own volition, without regulation?
Lord Davies of Oldham: The answer to the last question is that the Secretary of State is answerable to the House of Commons for the actions he takes. He

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can be challenged on any of these decisions. Members have not previously been remiss in raising these issues when they disagree with the Government, or criticised an issue for which the Government are directly responsible.
On the more general issue, as I tried to indicate, the actual structure and operation of BRB(R) will not change under the new framework; it will continue its current practices. It will consult with operators and all other interests as before on the disposal of any assets. As has rightly been emphasised, the main criteria to be adopted in analysing these issues are the present, future and far future needs of the railways.
Proceeds will be taken into account in setting rail budgets, as they are now. Nothing will change in those terms. There is no appropriation of rail assets to raise money that will go elsewhere. They will be part of the general budgetary process for the allocation of resources to rail.
Viscount Astor: So the Minister is saying that the money would go back into the general transport budget and would not be ring-fenced or used only for improvements to the rail system.
Lord Davies of Oldham: It is not ring-fenced in quite those terms. The basis of my reply to the amendment and to the speech of my noble friend is my reassurance that although BRB (Residuary) comes under new ownership, as it were, its procedures, its processes and the way in which it goes about its actions will not change.
Lord Berkeley: I am very grateful to my noble friend for that response. Knowing that it will go to the Secretary of State is very helpful. I am tempted to suggest that it would be useful to have a short guidance note on how BRB (Residuary) is to operate in the future. Although it has consulted well, it has not always been able to arrange to sell land to the railways because it could not agree on the price. It might be helpful to look at issues such as price, how the land is sold, and the issues raised by the noble Viscount, Lord Astor, on where the money goes before we come back.
Lord Davies of Oldham: If my noble friend will allow me, I shall clear that up now. We would be quite prepared to see such a document developed so that people could see the transparency within which the framework of the BRB(R) is operating. I hope that my noble friend will recognise that this reflects past practice and will continue into the future.
Viscount Astor: Will BRB (Residuary) Ltd remain a limited company under the control of the Secretary of State or will only the assets be transferred to the Secretary of State?
Lord Davies of Oldham: It will be a limited company.
Lord Bradshaw: Will the Minister bear one thing in mind? If the assets pass to the Secretary of State I think that under Treasury guidance any value of the land will be discounted at the discount rate. That is at variance with long-term strategies because the discount rate
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quickly evaporates after about eight or nine years. Unless you can say that you will develop the asset within a reasonable time, it is sold because the value of having the cash in hand outweighs its future value. That is a very serious problem for transport planners.
The Deputy Chairman of Committees: A Division has been called.
[The sitting was suspended for a Division in the House from 4.12 to 4.20 p.m.]
The Deputy Chairman of Committees: I think we can continue.
Lord Bradshaw: The point I was making is that the Treasury and, indeed, the Department for Transport, will be motivated by the discount rate, which generally means that people have very short-term views. Usually the discount rate runs out after about eight years, which certainly does not take account of the long-term transport uses of a site.
The second point I wish to stress is that, as far as I can see, the land in the stewardship of Network Rail is subject to regulation by the independent regulator, whereas land in the stewardship of the Secretary of State is at the pleasure of the Secretary of State, whomsoever he may be. While I cast no aspersions on the present incumbent, there could be malevolent Secretaries of State in future and it is our duty as a Parliament to secure these assets from such a person.
Lord Berkeley: Before I withdraw the amendment, perhaps I may clarify for the noble Lord, Lord Bradshaw, that Network Rail has two plots of land: one is operational and regulated; the other is non-operational—it probably came about as the result of a property deal for an office block—and it can do what it likes with that.
My noble friend suggested that if we wanted to take this further we should draft guidance ourselves. Some Members of the Committee may get together before the next stage to consider what we can do in that respect. I am grateful for his response and, on that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 2 agreed to.
Clause 2 agreed to.
Schedule 3 [Transfer of safety functions]:
Lord Berkeleymoved Amendment No. 3:
Page 81, line 12, at end insert—
"( ) The limits of responsibilities of the Office of Rail Regulation are the railway boundary fence lines and station buildings but excluding depots.
( ) The Office of Rail Regulation shall publish detailed descriptions of where such boundaries are located."
The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendments 4, 5 and 10. The amendments relate to safety and the consequences of the welcome transfer of responsibility for railway safety from the Health and Safety Executive to the Office of Rail Regulation.

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As to Amendment No. 3, I thought it might be helpful if the Committee knew the physical limits of the responsibility of the Office of Rail Regulation in regard to railway safety. Outside the stations, is it the fence lines and so far outside the bridges? What will happen with stations? In other words, are stations, the platforms and the buildings part of the regulator's new responsibility or not? Clearly when this is decided it would be nice if everyone knew the answer.
I remind the Committee that there is still a lot of baggage surrounding this issue. The last time the firemen went on strike, or would not provide cover, at Oxford station the passenger lift was closed because the firemen would not be able to provide rescue services if the lift broke down. I remember telling Ministers at the time that if the lift had been in a multi-storey car park it would have continued to work.
Someone produced a regulation saying that it is much better that people with mobility problems who could not get up the stairs should not catch the train, rather than taking the slight risk of being stuck in a lift. I know that a lift is quite warm, has nice glass windows and that there is nothing wrong with being stuck in it for an hour until some one comes —probably—but it would be nice to know the limits of the regulation.
On Amendment No. 4, there has been a lot of correspondence between the rail regulator, the Department for Transport and a few others about the organisation of the Office of Rail Regulation (ORR) as it takes on its new responsibility, and the relationship between its economic regulation and its safety regulation. The Minister wrote a letter to the chairman of Commons Standing Committee A, on 11 January, saying that Her Majesty's Railway Inspectorate (HMRI) will be kept as a separate organisation. The chairman of the ORR also wrote to the Secretary of State in December about that.
A lot is happening. My concern is to make sure that the original purpose of the move is achieved: to ensure that economic considerations were also taken into account when reaching safety decisions. Notwithstanding the organisation that has been proposed, it is important that the bodies are brought together so that any safety decision is taken on the basis of economics as well. We shall come on to more about that later.
Amendment No. 5 is a little different. On page 81, Schedule 3(2) provides that the Office of Rail Regulation can carry out research. I wonder how many other railway industry bodies will carry out research at the expense of either the taxpayer or the train operators, which ends up a taxpayer's expense as well. It is very nice to have research but sometimes it is perhaps a little self-perpetuating. Recently I was invited to attend a half-day seminar on the societal considerations in decision-making. Research has also been done on whether there should be seat belts on trains. You could continue researching such subjects for ever, but I do not believe that the bus or air industries spend too much time on some of those things. The Rail Safety and Standards Board carries out research, so why does the regulator also need to carry out research into safety?
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Amendment No. 10 addresses the issue of value of preventable fatality. When we discussed the Railways and Transport Safety Bill in this room a couple of years ago, my noble friend Lord McIntosh of Haringey very helpfully made an important policy statement. He said that the value of preventable fatality should be the same for road and rail, and the same per individual hurt, killed or seriously injured, regardless of whether there was a single fatality or multiple fatalities. That was very welcome, as clearly the Government recognised the importance of having one common standard. Whether you are killed by a car or a train, sadly the end result is the same. It is ridiculous to have two or more separate values, because it is a mechanism for saying "If that accident can be avoided by spending up to a certain value then the money should be spent, but if it cannot be avoided by spending that value, as it is a much higher value, then it probably should not be spent". That was a very valuable statement.
Since then, there have been many ministerial statements about how the railways are short of money and how much more the taxpayers have to put into it. It behoves the whole industry to look at the matter and say, "It might be nice to have but can we afford it?" if whatever is being considered is above the value of preventable fatality. I should like my noble friend to restate these values. I should hope that the industry would take heed of them and look upon them as a kind of comfort, because if it has done what it has been told and invested anything that was needed up to that value, that should be all right. But if the industry has not done something because the value was £5 million or £10 million or something, it would have a perfectly good defence if something subsequently happened.
4.30 p.m.
I want to refer briefly to the document published in February by the Rail Safety and Standards Board, How Safe is Safe Enough? My noble friend Lord Tunnicliffe is chairman of that body. Page 14 refers to the value of preventing a fatality and summarises the comments that I have made. It then puts a caveat on that by stating the value, but then saying:
"Explicit consideration of ethical responsibilities is a more appropriate way for dealing with these concerns".
I am worried, because you can talk about ethics until you are blue in the face and ask for even more money from government, which might not be justified. So I hope that my noble friend will clarify this matter and give comfort to the industry by saying that if it complies with that it should be all right. I beg to move.
Lord Tunnicliffe: I follow my noble friend Lord Berkeley by declaring my interest and hoping that that will suffice for the rest of the day. I am, as he kindly pointed out, chairman of the Rail Safety and Standards Board and am thus employed in the safety area of the railway industry.
I have no doubt that the intent of these amendments is an honourable attempt to address a big subject—regulation in industry and the conflict between the wider needs of society and the restraints and costs that industry bears. This is an important subject which we

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must debate at length. I have to ask my noble friend whether these clauses in this less than easy to manage piece of legislation are the right places to address that. The authors of the Bill are clear in the Explanatory Notes that the clauses concern the transfer of safety functions under the Health and Safety at Work etc. Act 1974. I do not believe that it is the Bill's intention to change or modify that Act. If that is the Minister's intention, I should be grateful if he would tell us.
Further on in the Explanatory Notes, paragraph 39, relating to Clause 3, makes it clear that the Office of Rail Regulation, in its dealings, will have a distinction between its general balancing function under its economic duties and its duties under the 1974 Act, which require it to discharge its safety duties in accordance with the provisions of that Act. I am not clear whether Amendment No. 4 is intended to diminish that clear division of duties, or whether it is meant to require the ORR to modify its overall supervision of the Act.
The 1974 Health and Safety at Work etc. Act, a much—derided piece of legislation, has in fact served this country well. In recent years it has come under stress and that needs to be addressed—not just in the railway industry. Certainly there has been regulatory creep in this area, as in many other areas of regulation. Getting to the bottom of where that regulatory creep comes from is difficult, and countering it is difficult.
Amendment No. 10 is a specific way of managing the 1974 Act which would be quite unique anywhere else. The intent of the Act—an honourable intent—is to reduce risk to exposed groups to as low as reasonably practical. It is the responsibility of those who own the risk to judge what level that should be. It is then their responsibility, if necessary, to defend that decision in court.
The situation would be changed in a very major way by this modification. It would transfer the responsibility for that judgment from the owners of the risk—which is what happens in all other industries—to the Secretary of State. It would be a big change in the way in which the 1974 Act is used, and I do not see it as the intent of the Bill to make that big change.
My noble friend Lord Berkeley has partly answered my next question, but we need to be clear. I think he is saying that the impact of the amendment would be to give individuals a defence in court. That is quite a big impact; it would be a defence to say, "I did not do this because the figure advised by the Secretary of State would have been exceeded". The present law is much less clear, asking the owner of the risk to take into account wider issues. In particular, present usage of the law takes the view that wider societal concerns are part of living in a society, and you must take account of them in interpreting the law.
What would this mean in practice? My noble friend does not give a figure in Amendment No. 10 or even, as far as I can see, hint at one, but he has hinted at one of less than £5 million to £10 million. Could he be a bit more specific about what sort of figure he would expect the Secretary of State to come up with, what implications that figure would have for safety activity
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and what the impact might be in terms of both cost and risk? Either we should address this complex list of issues and come to a series of conclusions or we should recognise that this debate is fundamental to a much wider issue about the management of safety in the United Kingdom and address it under those headings.
Viscount Astor: I rise—
Lord Bradshaw: I rise—
Lord Berkeley: Noblesse oblige.
Viscount Astor: If it will help the Committee, I shall degroup Amendment No. 85. I do not think that the noble Lord, Lord Berkeley, spoke to Amendment No. 87.
Lord Berkeley: I asked this morning for Amendments Nos. 85 and 87 to be degrouped, and they have been.
Lord Bradshaw: The noble Lord, Lord Berkeley, has raised some very interesting and fundamental points, as the noble Lord, Lord Tunnicliffe, has said. However, the speech we have just heard is the speech of somebody in the safety rather than the railway industry, and should be regarded as such.
Whether we like it or not, safety has a cost. That cost, as the noble Lord, Lord Berkeley, rightly said, in the case of the railway industry, is mostly visited, one way or the other, on the taxpayer. While I think we could accept that there may be a reason for expecting people making journeys by train to pay more money, because they expect a greater standard of safety, I do not believe, as the noble Lord, Lord Tunnicliffe, has said, that there is an open-ended and undefinable amount of money which, somehow, somebody will find out of thin air. It does not come out of thin air; it comes out of your pockets and mine.
The noble Lord, Lord Berkeley, is right to try to establish from the Minister—we shall no doubt hear from him in a moment—where the limits of the duties of the Office of the Rail Regulator lie and whether they cover station buildings, depots and so on. It is also extremely important that we take account of his duties as economic regulator.
That does not mean to say that we should disregard safety altogether and it does not mean to say that we should necessarily put it on a par with anything else. The noble Lord, Lord Tunnicliffe, should bear in mind that every day on the M 1 and the A34 people are tailgated by 44-tonne lorries. These lorries seem to be totally unregulated—if one of them were to smash into you no one would come to your help—whereas we seek to shackle the railway industry with a stranglehold of safety which circumscribes what it can do.
Even though it may be uncomfortable for the Minister, I am anxious for him to put some figures on what should be spent on railway safety and to give some justification for anything over and above that level which is spent anywhere else. This is a fundamental issue on which the rail regulator himself will need guidance. He is not a part of the safety

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industry; he is an economist. I have the greatest respect for him as a person who is capable of moving this debate on.
It is all very well for the noble Lord, Lord Tunnicliffe, to talk about "as low as reasonably practical", but, when you analyse them, what do the words mean? They are as long as a piece of string and they are interpreted by different people in different ways. They give no guidance at all to the people who spend the money.
I warmly support the amendments of the noble Lord, Lord Berkeley, and I hope the Minister will give us some comfort.
Lord Snape: I had not intended originally to speak to this group of amendments. I am provoked to do so by some of the contributions that have been made, particularly that of my noble friend Lord Tunnicliffe.
I start by declaring an interest. I work for the National Express group and, before entering Parliament in another place many years ago, I worked in the railway industry. I endorse what my noble friend Lord Berkeley said—which was repeated by the noble Lord opposite—that when it comes to the railway industry, apparently, no expenditure is too great. That is partly the result, I suspect, of the attitude of the British press, which is irresponsible in these matters as in most others. It always demands action on the rare occasion of a railway accident. This is partly as a result of politicians of both major parties which have formed governments in my lifetime responding to such calls.
My former colleague the Deputy Prime Minister said after one particularly serious railway accident that money was no object in preventing something similar happening again. I was his number two for many years. Had I still been his number two his comment would have provoked one of the enormous rows that occasionally punctuated our largely amicable relationship. No matter how deep the tragedy, it is not sensible to respond in such a way.
I listened with interest to my noble friend Lord Tunnicliffe and I pay tribute to his work as chairman of the Rail Safety and Standards Board. But, again, as indicated by the noble Lord, Lord Bradshaw, standards of safety in the railway industry already far exceed, on a day-to-day basis, the standards appertaining to virtually any other mode of transport. Since 1974—and again I refer to what my noble friend Lord Tunnicliffe said—and the passage of the Health and Safety at Work etc. Act, and the inclusion of the railway industry under the provisions of that Act, we have got ourselves into a situation where it is cheaper not to run trains and, in some cases, to direct passengers on to other modes of transport.
The noble Lord, Lord Bradshaw, referred to the A34 and the motorway and being tailgated by a juggernaut. It is difficult to say exactly which organisation could do very much about that, but, when we compare railway safety with coach safety a couple of miles away from here, every single day continental coaches on Park Lane disgorge their
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passengers into the middle lane of a three-lane highway. Evidently that is perfectly acceptable. I am not sure how many of them have been run over over the years because they were looking the wrong way when they got off the coach.
That situation seems to be perfectly acceptable whereas we do not run trains in some areas because the platforms are shorter than the trains themselves and someone might inadvertently open the door and fall out. We have stopped running trains on some lines at night because we have not yet found the money or wherewithal to put up lights on platforms. It is inconceivable—and I speak as a former chairman of a bus company; I do not think that that is an interest that I need to declare—that we would stop running buses because the bus stop was, for example, not illuminated. Although certain members of the Health and Safety Executive might have wished that we stopped running them in those conditions, we declined to do so.
I think that the Minister should give us assurances on these amendments that an element of common sense will at last be introduced into the whole area of railway safety. I hope that he will also assure us that, on railway safety, the new regime will operate with a little more common sense than the previous one.
4.45 p.m.
On Amendment No. 10, I conclude by asking what other form of transport would subject itself to a regime that effectively says, "It doesn't matter how much it costs: we will prevent every single fatality"? It does not make sense. It means that rather than spending money on sensible things in the railway industry, it is cheaper not to run trains.
The Government have decided in other clauses in the Bill to encourage people not to run trains, although I am not suggesting for a moment that they are doing so for the same reasons. There will be a completely different debate when we reach those amendments. I suspect, however, that all Members of the Committee share the feeling that the combination of the excesses of safety and the Government's desire to save money mean that, under this legislation, the railway industry's future will be shared at least partly by Her Majesty's Treasury. That means that if we do not get some common sense particularly on amendments such as this one, we will not get any trains.
The Earl of Mar and Kellie: Continuing on this theme, my conclusion is that the duty of care placed on the railways is very much greater than that placed on the roads. Indeed, that is anticipated. During the early stages of the Stirling-Alloa-Kincardine Railway which is now being reconstructed, residents in Clackmannan were coming out with, "If any child is killed on the railway it must be closed". I noticed and pointed out to them—they were not amused—that they were not placing the same requirements on the road into Clackmannan—that the road should be closed if anyone was killed on it.

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I see new railway fences running past my house, whereas we do not expect the road to be fenced off. Somehow or other we need to get it firmly into everyone's minds that if they expect a higher duty of care from the railways, we must expect more money somehow to be made available for that care to be discharged.
Lord Tunnicliffe: Having been misquoted so extensively, I need to repeat one or two points. First, I would claim a unique record in fighting back the excesses of safety. I became managing director of London Underground in 1988. We were landed with the Fennell report and a cheque for £260 million to implement it. We rapidly worked out that we were spending money at the rate of about £10 million-plus a head. We fought back over 12 years to bring rationality to the industry and to London Underground in its safety expenditure, and I would claim that we succeeded. We created systems that proved accessible to the HSE. We spent money where it gave value for money and we did not spend it where it was not value for money.
No one feels more strongly than I that public money misspent on safety is money wasted. Every serious practitioner working under the Health and Safety at Work Act—which applies to virtually all employees in this country—applies exactly the same test as that of the railway. The significant exceptions are roads and aviation. Professional workers in the health and safety field are all committed to working within what is reasonable, practicable and value for money, not seeking an open chequebook for safety provision.
I opened my remarks by saying that I commend the thrust of these amendments in the overall debate about the proportionate response to safety issues. That debate is needed throughout our society. What I am saying is that the Bill states that it will uphold the Health and Safety at Work Act 1974 and I put it to the Minister that he will have to support that and not introduce in this Bill a politician who acts as a limiter. Otherwise we will need a railway safety Act to take account of the issues raised in this debate, which must include appropriate provisions to maintain public confidence in the safety of railway operations just as much as the public expects confidence in other areas.
Taking the roads as a particular example, and the apparent belief that buses are significantly more dangerous than railways, in fact, public confidence in bus travel is high because bus passenger safety rates are about the same as those for rail. At the moment we have a fairly universal standard of safety in the Act. I believe that there has been significant misapplication in many areas, and certainly one of those areas of misapplication has been the railways. The board of which I am chairman is just as committed to delivering value for money as it is to delivering safety. This whole issue should be addressed because I do not think that a single, limiting clause that seeks to bring in a politician where we need a broader debate is the appropriate way forward.
Viscount Astor: I start from the principle that it is much more dangerous to drive one's car to the local
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railway station than is the journey on the train. Anything that causes the train not to function so that people have to drive to work is not a good idea. Trains are a much safer form of transport. However, underlying this debate are the concerns of many noble Lords who spoke at Second Reading that, in the past, the Health and Safety Executive has been too heavy-handed when it comes to safety. It has been too nitpicking without having a clear overall strategy—or if there has been such a strategy, the executive has certainly not managed to disseminate it to the wider public.
I believe that, on rail safety, there are two issues to consider. The first is the track and the environment of the track, such as railway stations, while the second is the train operating companies. It would be helpful if the Minister could explain how safety will be dealt with by those two separate areas. Although I am no expert, I understand that the terrible disasters we have seen have been due in the main to track or signalling failures, and so it is in those areas that most concern has been expressed.
I turn to the amendments before us. I am a little confused by Amendment No. 3 in the name of the noble Lord, Lord Berkeley, because it excludes depots. I am not sure why it should do so. Perhaps he will explain the point when he winds up our short debate. His amendment later provides that:
"The Office of Rail Regulation shall publish detailed descriptions of where such boundaries are located".
I am not entirely sure of the point of doing that. Again, perhaps the noble Lord will address my query.
Amendment No. 4 is difficult because one understands and sympathises with the point he is making. The noble Lord, Lord Snape, had it right when he said that we should be looking for a bit of common sense here. As we all know, while we love all our Ministers, it is at times difficult to get them to act in a way that makes sense to everyone else. That is why we have legislation: it seeks to impose common sense on Ministers and officials. I do not know whether
the wording,
"taking into account his duties as economic regulator",
is right, but I am sympathetic to the thrust of the amendment.
Amendment No. 5 concerns research. I do not know what kind of research it is intended that the Office of Rail Regulation should undertake and I am not sure why research has to be dealt with in a special subsection. Is this something new? Perhaps the Minister could tell us what has happened in this area in the past. I assume that any regulator must have access to what is happening in the industry and would therefore automatically receive the results of research. Indeed, the regulator might commission research by another body or carry it out itself. As I say, I am not clear why it is necessary to provide in paragraph 2(2)(a) of Schedule 2 for the Office of Rail Regulation,
"to make such arrangements as it considers appropriate for the carrying out of research in connection with railway safely purposes".
I should have thought that that could be taken as read.

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The next amendment in the group covers the issue of maximum value for preventable fatalities. This is a very difficult issue and I do not know the answer because I have not thought it through as clearly as perhaps I might. How can the value be defined? The maximum value in such areas is something that we have left to the courts to define. We have tried to assume that the operator has made adequate safety provision and is therefore, in the light of that evidence, not culpable of anything. Perhaps it would be best to leave it that way. I have to say that I am nervous of allowing the Secretary of State to calculate,
"the maximum value for preventable fatalities".
The concept is difficult. The Minister may respond by saying that it is a very easy concept and that the Secretary of State wants to reach such a decision. I do not know and I await with interest the Government's explanation. None the less, I am not convinced by the noble Lord's amendment.
Health and safety matters are important. The noble Lord, Lord Tunnicliffe, was encouraged to his feet to defend the record in front of his noble friends, but of course he did refer to a "significant misapplication". I agree with him, and that has been a point of concern for us all. By and large, rail travel in this country is safe and it is the duty of us all to ensure that this Bill and the Government's proposals give the public the confidence to travel by rail without imposing such burdens on the industry that it is unable to fulfil its commitments.
Lord Berkeley: I rise briefly to respond. We have had an interesting debate—
The Deputy Chairman of Committees: The Minister has not yet responded.
Lord Berkeley: I am sorry, but I have not finished yet. I seek to respond briefly to the matters of fact that have been put to me. Of course I have not forgotten the Minister.
The noble Viscount, Lord Astor, asked first why I have sought to exclude depots in Amendment No. 3. The general feeling is that depots are like any other factory and do not form part of a railway. Given that, they should remain under the ambit of the health and safety authorities. Secondly, if a boundary is to be set up between the responsibilities of the health and safety authorities and the ORR, we need to know what it is and therefore it should be published.
I shall respond very briefly to my noble friend Lord Tunnicliffe. He asked what maximum value for a preventable fatality I would propose. Two years ago, in this room, my noble friend Lord McIntosh of Haringey proposed a figure of £1·25 million per fatality. However, I also quoted from my noble friend's own publication, How safe is safe enough? Allowing for inflation, the figure has now risen to £1·36 million. All I am asking my noble friend to do is to confirm what was stated in the Moses Room about two years ago.
5 p.m.
Lord Davies of Oldham: I was struggling for the Latin tag which says that out of the division of its enemies comes the safety of the state. I thought that out of the division of my noble friends comes the safety of the Minister. However, my Latin was not quite up to it. I appreciate that a very interesting debate has taken place on this side of the Committee with regard to safety issues, which we all recognise are of the greatest significance. They have been a major feature in the development of the railways over recent years. They have always been an important feature; that is why the railways have enjoyed the safety record that they have. However, we are also conscious of the fact that, since Hatfield, safety issues have conditioned the railways in a very pronounced way indeed.
I intend to deal in turn with each of the amendments in the group. By doing so I hope to retain some coherence in the debate, if only in terms of numerical order. I wish to address the significance of the points that were made.
I was grateful to my noble friend Lord Tunnicliffe for emphasising the importance of the Health and Safety at Work Act. We shall make all regulations under it and will continue to apply it to the railways. The Act is the foundation stone of safety. However, we recognise that changes in the railway structure now require us to address the issue of how the railway is to be rendered safe and the mechanisms by which that is done. I am grateful to my noble friend for emphasising that point.
We have started to work with the Office of Rail Regulation and the Health and Safety Executive on defining the Office of Rail Regulation's enforcement responsibilities. Our aim is to make the boundary of enforcement responsibilities as clear and straightforward as possible, retaining where we can the current split of responsibilities between Her Majesty's Rail Inspectorate and the rest of HSE. We hope soon to begin discussions with the industry on the drafting of these regulations so that we can take the rail industry's view into account from the start, and we aim to consult the industry on draft regulations this summer.
My noble friend Lord Berkeley is right to pick up on this as an important issue and one that needs serious consideration—which, indeed, it is receiving. However, as I believe my noble friend Lord Tunnicliffe emphasised, this is not a matter for the Railways Bill and an amendment to the Bill in this respect would not be appropriate as we shall be governed by the application of the Health and Safety at Work Act.
Amendment No. 4 concerns taking economic considerations into account in the exercise of safety duty. The effect of this amendment would be to require the Office of Rail Regulation to take into account its duties as an economic regulator in the exercise of its general safety duty to do such things and to make such arrangements as it considers appropriate for railway safety purposes.
Clause 3 of the Railways Bill specifically amends Section 4 of the Railways Act 1993 to provide that the Office of Rail Regulation's Section 4 duties do not

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apply in the exercise of its new safety functions. I believe that is the nub of the point my noble friend sought to make. It reflects the need to ensure that the transferred safety functions are not compromised in the pursuit of the Office of Rail Regulation's other duties, and to meet our requirements under EC legislation ( both the European Framework Directive on worker safety and the European railway safety directive) to ensure that existing safety standards are maintained. That is the absolutely cardinal point of the provision.
However, as the independent safety regulator, it will be for the Office of Rail Regulation to exercise its discretion in deciding how to enforce health and safety on the railway within this legislative framework. It is not the legislative framework of amendments to this Bill that my noble friend canvasses but, of course, the issue in relation to the Health and Safety at Work Act.
Amendment No. 5 concerns removing the research duty. A great deal of research is available to the Office of Rail Regulation. It will apprise itself of the benefits of that work, as it has done in the past. We believe that the duty to carry out research is essential to ensuring the ongoing development of independent safety research within the industry, and allows continuing developments in the field of rail safety to be given due consideration. It will be an important dimension of the work of the Office of Rail Regulation. The duty gives the ORR discretion over the research undertaken, which could be used to tackle issues such as how best to achieve safety improvements at minimal cost. On all sides of the Committee there is obvious concern to get the balance right as regards safety—on which we pride ourselves with regard to the railways, and where we want to reach the highest standards—and achieving that within a framework of appropriate and reasonable costs. As the independent safety regulator, we believe that the Office of Rail Regulation is best placed to make these decisions on the research which is necessary. That is why we have this provision in the Bill.
The principal railway safety functions of the ORR are set out in paragraph 2 of Schedule 3. These functions largely replicate those of the Health and Safety Commission in Part I of the Health and Safety at Work Act. We see absolutely no reason why the railway safety functions of the Office of Rail Regulation in this respect should be different in any way from the equivalent safety functions of the Health and Safety Commission. It could cause unnecessary and avoidable confusion. That is the basis and the framework within which research is to be considered.
The value of preventable fatality goes right to the heart of the balance between resource allocation and the safety standards to be met. I want to say how much we missed my noble friend Lord Snape at Second Reading and how delighted we are to see him back here in full form. When my noble friend prays for a little common sense I can only do my level best to respond to that, emphasising the "little" rather than the "common" in that respect. I have no doubt that he will upbraid me for that later.
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I think it is recognised that the Department for Transport, the Strategic Rail Authority and the Health and Safety Executive all presently use the same value for preventing a fatality (VPF) when assessing rail schemes. The same value is used by the department and the Highways Agency when assessing road schemes and road safety measures. The value itself is set each year by the department's highways economists and for this year—I believe that my noble friend Lord Berkeley referred to the very minor degree of inflation at the most marginal edge of the inflationary scale that occurs even under a Labour government—is £1.36 million.
The rail industry's own body, the Rail Safety and Standards Board, in its Railway Strategic Plan 2005 recommends that its member companies in the industry also use the £1.36 million value.
The Office of Rail Regulation does not presently have an official VPF figure, but accepts that it will need one given its wider responsibilities. I believe that the noble Lord, Lord Bradshaw, emphasised that point in a very cogent and effective way. The ORR is an independent body and should be free to set the value it considers appropriate. The ORR will discuss with the department how it will appraise rail schemes. What VPF figure to use will form part of those discussions. I expect the Office of Rail Regulation to appraise ORR schemes on the same or similar basis to the department and therefore that the same VPF is used. However, although I expect the ORR to use the same VPF figure as the department, I do not think that it would be right to constrain the ORR's discretion by setting out in statute that it must do so. There will be very strong reasons why a similar figure should be used. However, writing that in the Bill would make an absolutely mandatory requirement on an independent body rather than leaving it to reach a judgment on the matter after it had carried out full consultation. That is the basis of our position on that matter.
This has been a fairly wide-ranging debate and I may not have met each and every point but I hope that I have at least met the main arguments behind the lour amendments in the group that we are considering. I hope that my noble friend will feel able to withdraw his amendment.
The Earl of Mar and Kellie: The Minister referred to parity of VPF between road and rail within the Department for Transport. Is it the Government's intention to retain that parity or is it just an accident that there is parity?
Lord Davies of Oldham: It is not an accident that the same figure applies. However, I withdraw the phrase, "It is not an accident". That is exactly the wrong phrase to use in this context, but the noble Lord will understand what I mean.
Lord Bradshaw: Clause 3(4) discusses the Office of Rail Regulation and the need for it to take into account advice from the HSE. I believe that many of us had hoped that this Bill would be the vehicle to set railway regulation a little freer as regards the bureaucracy of the Health and Safety Executive. In a

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previous incarnation at Oxford University I did a great deal of research into compliance. I discovered that the industries which sought compliance through agreement were much more successful in gaining that compliance than those who sought to prosecute quickly. In fact, the quicker one was to prosecute, the less likely one was to secure compliance.
I believe that many of us wanted a rational basis for decision-making rather than the "shoot from the hip" kind of enforcement which we have. However, I am grateful for the explanations that have been given.
Lord Berkeley: I follow that intervention from the noble Lord, Lord Bradshaw, with a supplementary question to my noble friend on the same subject. It is my understanding that the Health and Safety at Work Act applies to the railways, as we know, but that it is administered by the Office of Rail Regulation. A few months or weeks ago there was a fear that the HSE would still wish to give guidance or directions to the ORR. However, my understanding is that that is not the case and the HSE, or the HSC itself, will have no role to play in any of the railway activities, including prosecutions in connection with the Health and Safety at Work Act, which we may discuss later.
Lord Davies of Oldham: I can reassure my noble friend on that matter. Of course, the HSE has extensive obligations but it will have no obligations specific to the rail industry, which is the point that my noble friend makes.
Lord Berkeley: In that case I am very grateful for my noble friend's responses, which I believe have answered all my questions. I feel not exactly comfortable but as comfortable as I would have expected to be. I should like to thank other noble Lords for their interesting contributions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
Schedule 3 agreed to.
5.15 p.m.
Lord Bradshawmoved Amendment No. 6:
Before Clause 3, insert the following new clause—
"RAILWAY STRATEGY
(1) The Secretary of State shall formulate and keep under review strategies for the railway including—

(a) the resources available for the operation, maintenance and expansion of the services of the passenger railway in England and Wales, including investment plans;

(b) the resources available for the operation, maintenance and expansion of the services of the freight railway in England and Wales, including investment plans;

(c) a signalling and telecommunications strategy;

(d) a rolling stock strategy;

(e) a strategy relating to the shape, duration and other criteria for letting franchises for the passenger railway; and

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(f) a strategy relating to passenger services designated as community railways, which shall include plans for their maintenance, development and possible closure or substitution of any part of these by buses.

(2) To fulfil the duties of the Secretary of State set out in section 4 of the 1993 Act (general duties of the Secretary of State and the Office of Rail Regulation) these strategies shall be subject to public consultation and shall be presented to both Houses of Parliament before the end of the session after that in which this Act receives Royal Assent and must be subject to a resolution of both Houses.
(3) The strategies will be subject to an annual update and to the approval process laid out in subsection (2) on an annual basis."
The noble Lord said: I regret that I was not present for the debate at Second Reading, and I do not intend to make a Second Reading speech. However, I believe that this amendment goes to the heart of the Bill. Its purpose is, first, to oblige the Secretary of State to formulate a strategy for the railways that tells us both what the railways are supposed to be doing and what they should be aiming for; secondly, to inform Parliament of what he is telling the railways to do, and to do so regularly; and, thirdly, to submit himself to a parliamentary process. The House would then have the opportunity, perhaps once a year, to debate the strategy put forward and to make comments on it.
I have set out in the amendment the sort of areas I would expect to be covered in a strategy. Obviously they would include the resources available to the industry. That would cover the resources for passenger services and those for freight. The strategy would cover signalling and telecommunications, which is desperately needed. It would cover rolling stock, which is necessary because we appear to be entering a phase in which we have a lot of suitable rolling stock standing in sidings around the country, some of which I believe is not being used. Such stock is extremely expensive to store. Modern rolling stock is equipped with so many sophisticated bits and pieces that trains cannot just be stuck in a siding in the hope that, when they come to be used, they will work, because they jolly well will not. Such stock has to be maintained in warm storage.
That kind of thing would not have happened if the railways had been kept together, but such a strategy is now necessary so that we know what we intend to do with our rolling stock. In my view it is an absolute nonsense that people are using overcrowded, ancient trains while the modern ones are sat elsewhere in sidings because the leasing structure of the industry is such that it does not suit the owners to lease them out at affordable rates. The position is now an appalling mish-mash. We are no longer ordering new rolling stock, those who build it are being laid off and works are being closed, and yet in a short while we shall need new capacity.
It is a similar situation in signalling and telecommunications. People are being laid off and works are being closed, but we know that in a few years' time we shall need new equipment because our railway signalling stock will otherwise fall to pieces.
My views on the,
"shape, duration and other criteria for letting franchises for the passenger railway",

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are well known. I believe in long franchises. Taking Chiltern Railways as an example, if you let a long franchise, the franchisee feels sufficiently confident to invest its own resources in the railways. As a result we have seen the development of Marylebone station, to which my noble friend referred, and we see plans for new services and new rolling stock. However, as my noble friend Lady Scott of Needham Market pointed out in her speech at Second Reading, we can contrast that with the case of the Northern franchise. It has been let for too short a duration to allow new rolling stock to be considered. If I were able to invite the Minister to come with me to Leeds, he would see passengers riding in acute discomfort in what can only be described as clapped out, old trains with no prospect for years ahead of them being replaced. I would challenge him that if he were to inflict such conditions on people living in London and the south-east, they would be marching on his office, if not on Downing Street itself.
I believe that the public have a right to know what is being planned for their railway by way of a strategy for the future development of engineering resources and rolling stock resources, as well as a justification of the way in which rail franchises are being let.
I take as an example the recent two-year extension to the First Great Western franchise when it took over Thames Trains. However, a two-year extension means that the franchisee has only two or three months to change the train timetable because that process is now so lengthy and convoluted that by the time the next timetable revision comes along, someone else may be running the franchise. That cannot be what anyone had intended.
When we had the British Railways Board and the Strategic Rail Authority, they were under a duty to publish reports and plans. In the case of the Strategic Rail Authority, some of those plans were not very good, although those produced by the British Railways Board were clear on what it was doing with the money at its disposal. Many of the reports complained about how little money was available, but the board did make clear both what it was doing and what it was planning to do.
I know that this Government have scant regard for Parliament. The Bill was rushed through the first Chamber and has had very little scrutiny. It has now come to this Chamber and we are attempting to scrutinise it properly because that is our job. While I am not talking about Alistair Darling but about the post of Secretary of State in a future government, I am very bleak about conferring all these powers on one individual. The chance of future parliamentary scrutiny is very small unless something is put in the Bill at this stage. Along with a number of other noble Lords, I feel strongly about this. We believe that parliamentary scrutiny is an essential part of the process. Opportunity has to be given for people to ask questions, to say what they think and to make suggestions which may or may not be taken into account. The thought that the Executive can ride roughshod over Parliament by taking powers away from elected representatives is quite alien to our way
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of government. This goes to the heart of the Bill and Members on the Liberal Democrat Benches intend to stand firm on it. I beg to move.
Lord Berkeley: I rise to speak only to the amendment moved by the noble Lord, Lord Bradshaw, and not to the amendments grouped with it. I certainly agree with the need to produce strategies to cover the issues that he described to us. We might even have been able to combine our amendments if we had been able to get together, but that was not possible. However, they say much the same thing.
It is worth reminding ourselves of the purpose of a strategy. The main purpose is to provide a basis on which industry and local and regional government can plan for the future. It also behoves the Government, when they are putting something like £6 billion a year into the railways, to articulate their policies.
Freight operates in the private sector and is therefore exposed to full commercial risk. It needs to know what the Government are thinking about for the rest of the railway system. But given the current greater regionalisation of many more decision-making processes, I know that regional authorities, whatever form they take, need to be given strategies to influence what they put in their own ones. If there is nothing coming from central government the railways will be the worse for it.
Let me give an example. The Strategic Rail Authority had nine strategies, which are still extant, about which I received a Written Answer on 4 February. Clearly I am interested most in the one that affects freight, but there are strategies for the West Coast Main Line, network utilisation, network output and rolling stock. We may not have thought they were ideal—some Members of the Committee criticised them at the time—but at least they were strategies.
There are nine strategies. The Community Rail Development Strategy has been welcomed on all sides—I am sure we will discuss it again in the future—but what worries me is that suddenly at Royal Assent all these matters get chucked in the bin. That is why I suggest in Amendment No. 11 that until the Government produce their own strategy the SRA strategies should continue. I have tried to take the wording from either the 1993 Act or the 2000 Act and to put it in the place that I believe is most appropriate.
Another letter from the Minister for Transport to David Amess, the chairman of Standing Committee A, on 21 December suggests that the Government do not need strategies because they will develop anyway. The letter continues:
"one has to be careful about laying duties on the Secretary of State in respect of a single transport mode, given the importance of an integrated transport policy".
He may be right, but it is interesting that on 22 February, Mr David Jamieson, in a Commons Written Statement, announced a national motorcycling strategy. If we can have a national motorcycling strategy, why can we not have a national railway strategy? We either have strategies or we do not have them. So, unless someone in the Department for Transport has done a complete

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U-turn, I suggest that if we can have a motorcycling strategy we can have one for the railways. Preferably we should have many of them, as the noble Lord, Lord Bradshaw, said.
It is also interesting that the rail regulator takes into account strategies when someone is making a Section 17 application. For those who do not know the details, it means that if you want to run a rail service and Network Rail will not respond or will not give you a reasonable path or price, Section 17 is a means of requiring it to do so through regulator action. The regulator is required to take into account policy statements by the SRA. So the regulator needs a strategy as well, for many good reasons.
Amendments Nos. 35 and 36 relate to Scotland. It is interesting that Scotland "may" produce strategies; it does not have to. I believe that it should. Amendment No. 36, the last one in the group, requires Scottish Ministers to consult and to produce a strategy rather than "may".
To recap, strategies are not unique to rail. They are necessary for others to know the Government's policy, to influence investment and to avoid the stop-go process that has been so disastrous for railways and investors. We should not forget that £1.5 billion has been invested in rail freight since privatisation and we all want that to continue. We do not want stop-go year in, year out. I shall say more about that when we come to the issue of rail freight grants.
In the Minister's response to the Second Reading debate he said that strategies were a good thing but he seemed unwilling to write them down. I suggest that it might be better if they were, and I invite him to be courageous and to write them down. In the mean time, perhaps he will find a way of keeping the SRA strategies until his friend gets round to writing down his own.
5.30 p.m.
Lord Marsh: I should like to follow up a comment by the noble Lord, Lord Berkeley, at the beginning of the debate on this amendment, as I am slightly ambivalent on this. When I first looked at the amendment it made obvious sense; a strategic policy is obviously needed. The noble Lord, Lord Berkeley, asked what the purpose of the strategy was; that was fine, but it immediately crossed my mind: what is the purpose of a Parliament? Would anybody actually choose to have 1,500 parliamentarians discuss each year this strategic policy? Of course they would never finish the first strategy so we would be saved that. That worries me.
I had the distinction—if that is what it was—of moving directly from being Minister of Transport responsible for the railways to become chairman of the British Rail Board, reporting to Ministers. That was a very schizophrenic thing to do. But I spent six years with British Rail, and during that time—
The Deputy Chairman of Committees (Baroness Thomas of Walliswood): here is a Division in the Chamber. I am sorry to interrupt the noble Lord in full flow but I think that we should adjourn temporarily during the vote.
[The Sitting was suspendedfor a Division in the House from 5.31 to 5.33 p.m.]
The Deputy Chairman of Committees: With the Committee's agreement, I think that we might continue the sitting.
Lord Marsh: I am grateful to whoever it was who spiked the vote.
As I was saying, in the course of six years, we had seven changes in the investment policy, virtually all of them downwards. In six years I had five different Ministers, who came from two different governments, because there was an election in the middle.
Intervention into a massive organisation's guts—the strategy is the guts of the entire business—by Ministers has always been a problem. Morrison dealt with it by introducing for the state-owned industries the proposition of the general directive: you could give an order to an official of a nationalised industry only in terms of a general directive. Nobody ever discovered anything that was both general and worth doing, with the result that we left that, and because we are a very creative country we developed what was known as the "lunch-table directive". The Minister invited you to lunch, you both had your secretaries there because you did not trust the other one to report what you were saying honestly, and at the end the Minister said, "Come on, let's be sensible about the realities of this", and one then reached some sort of agreement.
It would be very dangerous to get to a situation—I am not quite sure whether it is intended—whereby parliamentarians and Ministers are involved in the running of the business as such. I am totally aware that it is crucial for any government to know where they are going in detail and to be able to talk to, and argue with, the management with whom they are dealing. It would be disastrous if they then started feeling that they must change things. To call for the production of such a very large strategic document and then present it to both Houses of Parliament to be debated every year, after it had been put out to the public also, would take up so much time and effort as to be pretty disastrous. I look forward to hearing the answer to that point.
Yes, the Government must know. No passenger railway system anywhere in the world makes a profit—or at least a big one—so government will have to go on picking up the tab. Government need to know what sort of trouble they are moving into. But they must not manage because if they do that nobody within the industry can be held accountable—that is another key objective. I seek an explanation.
Lord Snape: When I read both groups of amendments I thought that it would have been sensible for them to be tabled together, as my noble friend said earlier. Their aim and intention is the same, even if the wording is different, although I understand why it was

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not possible. As the Minister reminded me, I was not present at Second Reading. Members of the Committee will be relieved to know that, like the noble Lord, Lord Bradshaw, I have no intention of making a Second Reading speech—
Lord Berkeley: Because you all went on holiday.
Lord Snape: I shall ignore that interjection. I had arranged to attend a family function at the other side of the world. It was a choice between offending the Whips or Lady Snape, and there was only ever going to be one winner.
One of the problems of your Lordships' House is that listening to the debates does not half confuse you about your intentions—of course there are no such problems down the corridor. I must admit that I had intended to say how much I supported the thrust of the amendments. Indeed, in legislation appertaining to the railway industry, going back to the 1947 Act, although one did not use such avant-garde words as "strategy" in those days, it was the Secretary of State's duty to report regularly to Parliament about the direction of the industry.
As one of those who lobbied the noble Lord, Lord Marsh, during his term of office as the chairman of the British Rail Board, I can understand his view that the less Parliament has to do with the running of the industry the better. He will not remember this, but at one time, after I had thanked him with my, I hope, customary courtesy for giving us his time, he said, "Oh, I have another lot coming in an hour". I hope that including the sentiment of amendments such as this will relieve the noble Lord's successors of this non-stop trail of Back Benchers and occasionally Front-Bench Members of both Houses going to see about the 8.08 from East Grinstead or whatever.
I fear that, unless my noble friend accepts at least the sentiments behind these amendments, instead of going to see his successor chairman of the rail board, people will go to see either my noble friend or the Ministers in the department. I am not sure whether he looks forward to that immensely, although I know that he is a very affable type. He and the Secretary of State accept the responsibilities inherent in this legislation, but unless he is prepared to go along at least with the sentiment behind these amendments, he might find himself with a very worn-out carpet.
Again, the clincher is the argument used by the noble Lord, Lord Bradshaw: with an industry such as the railways, although it may sometimes be unpalatable to those responsible for running the industry, and although its day-to-day running should not he subject to parliamentary scrutiny, at least regularly—perhaps not annually, as suggested by the
noble Lord, Lord Marsh, as that would be too often, but every three years—it should be the Secretary of State's responsibility to produce a report for both Houses of Parliament to debate.
The Earl of Mar and Kellie: At Second Reading I think I committed an error in determining that we should not discuss anything at all about how the
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railways should operate in Scotland after the passage of the Bill. I was reminded on Saturday, when I met people from the Strathclyde Passenger Transport Executive, that the Bill is an example of executive devolution to Scottish Ministers rather than the ceding of parliamentary powers to the Scottish Parliament as a modification of Schedule 5. Therefore, I suspect that we may have slightly more right to talk about how Scottish Ministers should perform in the future than I originally stated. I have ordered a substantial slice of humble pie for later on to make up for that.
I am interested in Clause 5. Whereas Ministers have said until now that they were not certain about having a strategy and that they definitely did not want to publish one, Clause 5 states that:
"The Scottish Ministers may prepare a strategy for carrying out their functions".
Subsection (3) states:
"Where the Scottish Ministers prepare or revise such a strategy, they must publish the strategy".
That seems unfair—to use a good Scots word. Should we really be imposing that duty on them when it is not a duty in the rest of the United Kingdom?
Viscount Astor: My name is attached to the amendment because I thought that it was a good idea, for a number of reasons. First, the Government have published, almost annually, a new strategy or had a review of their rail policy. Let us not forget that the Government that created the SRA are abolishing it a few years later. That is not unique; previous Conservative governments have always reviewed rail, but this Government seem constantly to be reviewing it.
So it is a good idea that they should publish what they are doing. I am sure that the Minister will regard that with a degree of horror, because it means that they will have to think more closely about their three-year spending plan and how much money the Treasury will give—it should not be forgotten that the Bill is all about giving control of rail spending to the Treasury. They will have to concentrate a bit harder on their plans, which governments do not like doing; they do not like being tied down. Of course, the Minister will say that they have published their 10-year plan and will publish an annual report. But we are asking for something more than an annual report, because this is such an important industry and such a large responsibility.
I am afraid that the Government will have to publish, because they brought it in hand. If they had left responsibility with the SRA, they would not have needed to do that. They wanted to accept responsibility for it, so that means accepting full responsibility, and that means publishing. I listened closely to the noble Lord, Lord Marsh. I have sympathy for his point that such a report should be laid before Parliament and debated. I am not sure that it is necessary, looking with hindsight at the amendment tabled by the noble Lord, Lord Bradshaw. But the House, at the next stage, should insist on a report being published so that it can be subject to parliamentary scrutiny if it wishes. That is important.

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The noble Earl, Lord Mar and Kellie, made an interesting point about Scotland. I should be very interested to see what the Minister says about it. The noble Earl is absolutely right that Scottish Ministers can,
"prepare or revise such a strategy",
and that,
"they must publish the strategy or revised strategy".
It is extraordinary that we are imposing a policy on Scotland that the Government are not prepared to accept themselves. I think that that is a clinching point.
5.45 p.m.
I do not think that the amendment as it stands is quite right, but I think that the intention behind it is absolutely right. We will certainly support the noble Lord should he come back with an amendment at another stage. However, I am always prepared to listen with care to what the Minister says when he replies. I hope that he takes the point that support for the amendment comes from all sides of the Committee.
Lord Davies of Oldham: It certainly has not escaped my attention that support for it comes from all sides. In fact, in my other duties, I was already doing some numerical calculations. Nevertheless, that may not mean that the argument is as persuasive as has been contended on all sides. I shall try to identify why I have reservations about it.
I think that all the arguments have been along the line that the Secretary of State should be under an obligation to produce and publish strategies, and that line looks persuasive. After all, the Strategic Rail Authority was under such a duty. As my noble friend indicated when he referred to the Parliamentary Answer, there were eight strategies between May 2001 and November 2004. The SRA was under a duty to prepare those. As the Secretary of State is taking over the SRA's strategic role, there seems a certain logic in placing the Secretary of State under a similar duty. I think that that is the burden of the main thrust of the argument being presented to the Committee.
There are, however, some very real differences between the position of the Strategic Rail Authority and that of the Secretary of State. The first and obvious difference is that the Secretary of State regularly produces strategies. What does the Committee think the aviation White Paper was if not a strategy for airport expansion and flights? We have a cycling strategy, to which the noble Lord, Lord Berkeley, I think, referred.
Lord Faulkner of Worcester: There is a motorcycling strategy.
Lord Davies of Oldham: Yes. I recall meeting the motorcycling group when it was so insistent that we should produce such a strategy. Strategies have their role to play, and the Secretary of State would not be discharging his responsibility if in crucial areas of transport policy he did not develop strategies. However, he is different from the Strategic Rail
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Authority, which is a creature of statute. The Secretary of State is not in that position. He is responsible for. national transport policy—for devising it, promulgating it and endeavouring to ensure that it is followed. Ensuring that the policy is strategic should, of course, be part of that role.
The Secretary of State's role occasionally requires him to produce a strategy for a certain part of his responsibilities. He could not discharge his role without taking a strategic approach and making that strategy known. He is answerable to Parliament and the electorate for the way in which he addresses strategic issues. One of the major planks of the reforms proposed in the White Paper on rail last July was that the Government should take a direct strategic lead on rail matters. Much in the Bill is necessary to enable that function to be carried out. If it were not for that intention, we would not be debating these provisions today.
The Bill contains only what is essential. There is no need to place a duty on the Secretary of State to be strategic because that is at the very heart of the Government's intention. He cannot fulfil his responsibilities unless he thinks strategically and occasionally develops strategies in respect of all his functions, including rail.
The SRA existed solely for rail issues. The Secretary of State covers all modes of transport. The Government have not been slow to produce strategies on various areas of transport. I think the Committee will recognise that our strategic approach to rail must sit within the wider context of our multi-modal strategy. The Secretary of State's ability to achieve that must not be constrained. He has to look at the relationship between one dimension of transport and another.
I challenge perhaps those Members of the Committee who are most assertive in these matters, who will no doubt have an opportunity of contributing again, by saying that I do not think there is a precedent for a legislative requirements for the Secretary of State to publish national strategies on such an extensive part of his responsibilities. The reason why there is no precedent is that we do not need to instruct a Secretary of State to take a strategic look at his responsibilities. He cannot be fulfilling them unless he does exactly that. Saying that the Secretary of State shall have a strategy is tantamount to saying, "The Secretary of State shall do his job". I recognise that there may be many occasions when Members of the Committee feel unable to resist the opportunity to take that stance. However, it should not be placed in legislation.
The rail industry does not need glossy strategies but a strategic direction. The Bill provides for the Secretary of State to give that clear strategic direction when it is most needed—in the run-up to an access charges review. Schedule 4 to the Bill requires the Secretary of State at that stage to give notice to the Office of Rail Regulation of what he wants the industry to achieve and the funding which he is able to make available over the review period to achieve those ends. That is the culmination of every other aspect of the Secretary of State's strategic role. Whatever else he

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does—of his own volition or because he is required to do so by the Bill—must not cut across that crucial element of his role.
I recognise that noble Lords will say, "Five years is not enough". If we conceive, as we do, that there is a clear strategic commitment in the Bill over a five-year period, although that may be a reasonable norm for setting charges, it is a rather short time for some aspects of industry planning for the railway. There is a strong case for setting the specification in a longer-term context. There could also be a case for explaining the implications of that specification to a wider audience. That could be of value to local authorities and others as a basis for looking ahead.
I am prepared to commit that when the high-level output specification is set out, the Government will also explain clearly to everyone—those in the industry, in Parliament and the wider public—the implications of the specification and the Government's long-term strategy for the railway. I readily accept that that would be useful and of interest to a wide audience. But whatever we produce must be clearly related to the high-level output specification. We cannot have conflicting messages between our long-term strategy and the specification for the charges. That is my general case on the issue of strategy.
I turn to the detail of the amendments, which have been moved in detail.
Viscount Astor: I am very grateful to the Minister for giving way. Before he goes into the detail, perhaps he could answer the point made by the noble Earl, Lord Mar and Kellie, about Scotland. Under Clause 5(3) Scottish Ministers,
"must publish the strategy or revised strategy in such manner as they consider appropriate for bringing it to the attention of those likely to be affected by it".
Why is it necessary to place that duty on a Scottish Minister when the Secretary of State does not have such a duty? I would be very grateful for an explanation.
Lord Davies of Oldham: Of course I accept the obligation to address those remarks, but I said I would deal with the detail of the amendments which cover this aspect. I merely sought to assure the Committee that I would deal with all those points.
The first amendment sets down the need for detailed and precise strategies which the Secretary of State ought to produce. I see no need to set that down in the Bill in the topics that must be covered by government strategies. That would only restrict the Secretary of State rather than being a commitment to developing the strategies, which we all recognise is an important part of his role.
The amendment tabled by my noble friend Lord Berkeley would preserve the Strategic Rail Authority strategies until new ones are prepared. In the Bill there are a number of places where a transitional provision has been included to ensure the transfer of responsibility from the SRA to its successors. Obviously we are obliged to do that.
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The reforms that we are putting in place are about a new approach to the planning and management of the railways. That does not mean that every policy will change overnight but it means that there must be flexibility to make changes without a requirement to produce a string of new strategies just to cancel out what was previously in place. Surely that would be bureaucracy gone mad. I assure my noble friend that we recognise the importance of continuing strategic thought on railways, but he will recognise that we expect some flexibility and that the Bill needs the flexibility of merely continuing what has occurred thus far.
The question of consultation arises in both amendments. It is not necessary to include a requirement for consultation about strategies on the face of the Bill. Obviously the Government would seek to take pride in the degree to which they consult on such issues and on the preparation of strategy, or any aspect of the Government's role, we will consult those with whom it is appropriate to consult. It might be the devolved administrations, to which I shall refer in a few moments in response to the contribution of the noble Earl, Lord Mar and Kellie. It might also be other funding bodies, such as Transport for London and the PTEs, the travelling public or all of those. We will continue to have consultation processes; we just do not need to spell that out in the Bill.
I take sustenance from the contribution of the noble Lord, Lord Marsh. He indicated that, with the greatest respect to this House and the other place, there is a great danger that the amendments would produce a straitjacket that would be very restrictive. There would be obvious constraints on parliamentary time. The noble Lord was emphatic in highlighting the problem of potentially 659 contributions to such a strategy; I am more concerned about how much parliamentary time it might take for 659 views to be expressed.
Closely linked with that question is the issue of the annual report. The concept of an annual review is not really appropriate to the production of a strategy. On the one hand, a strategy should always be under review so that it can be amended but, on the other hand, the aim of the strategy should surely be to look to the longer term. One would not expect that it will require frequent revision, which seems to be implied by the concept of an annual report. The great danger is that it would lead us into the very short-termism against which we have been counselled on all sides in terms of the argument for an effective strategy.
The noble Viscount, Lord Astor, was rightly eager that I address the Scottish position. The amendment tabled by my noble friend Lord Berkeley would place on the Scottish Ministers a duty to prepare a railway strategy for Scotland and to consult appropriate people when doing so. The Bill gives Scottish Ministers the power to prepare such a strategy. Under the amendments, the SRA's strategies would continue to be in force as an interim measure. Of course it is important that Scottish Ministers should have a power to prepare the strategy, but it seems a little odd that we should constrain them first by the Strategic Rail Authority's strategies being continued, whether they

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would or not. We want to give them the power, but, in the spirit of devolution, we also want them to make up their minds about how they employ this power.
I do not think that we are miles apart on this issue; the noble Earl, Lord Mar and Kellie, made direct reference to this. It is a matter of whether Scottish Ministers should have the flexibility to decide when it is right to prepare a strategy or whether we should compel them to prepare one. The Bill opts for the former position, while the amendment of my noble friend opts for the latter.
6 p.m.
The Earl of Mar and Kellie: I am not complaining about the idea that Scottish Ministers may prepare a railway strategy. That is eminently sensible. However, I am complaining about the fact that they must publish it when the Secretary of State is not taking that duty upon himself in the rest of the United Kingdom.
Lord Davies of Oldham: If the Secretary of State develops a strategy, he will publish it. We are merely extending the principle that if and when a strategy is prepared by Scottish Ministers, it must be publicly available. I hear the noble Earl's comment that this looks like an added demand upon Scottish Ministers, and I shall bear in mind his strong representation on that. But if I am to defend as strongly as I can the strategic role of the Secretary of State, the noble Earl will accept that I recognise some differences regarding the dimension of the work which my right honourable friend is obliged to deal with, the extent of the railway for which he is responsible, and the devolved position as far as Scottish Ministers are concerned.
I have listened carefully to the debate. No one is conceivably against the necessity for strategic thinking with regard to the railway. The crucial issue is the extent to which we write on the face of the Bill that degree of rigidity when I maintain that the Secretary of State could not conceivably fulfil his responsibilities to the industry, the travelling public and the nation as a whole if he did not have strategic concepts and was prepared to produce a strategy—eminently debatable and discussed in Parliament—at the appropriate time.
Lord Berkeley: Before the noble Lord, Lord Bradshaw, decides what he will do with the amendment, I should like to ask my noble friend a couple of questions for clarification. He has argued long and hard that the Department for Transport does not need a strategy for the railways because it is a strategic authority. Which other parts of its responsibility in transport have strategies? We have discussed air, motorcycles and buses; I believe there was to be one of walking, but I cannot remember whether it was ever published. If we can have strategies on all those, why cannot we have one on the railway?
My noble friend said that when the Bill gets Royal Assent, the Strategic Rail Authority's strategies will be taken up by the transition grouping in the department. He did not say whether they would continue until the transition grouping had decided what to do with them.
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I understand from the rail regulator's office that the high-level output specification is not actually required until 2008. That is four years away. I can see a four-year gap without any strategies, with local authorities, investors and so on, not knowing whether the SRA's existing strategies are still in force or whether the transition people will come up with a new one. And what will the high-level output specification contain when it comes? A lot of questions need resolving to ensure continuity over the change process.
Lord Bradshaw: I thank Members of the Committee who have taken part in this debate.
Lord Berkeley: The Minister has to respond first.
Lord Davies of Oldham: I am quite happy to respond. My first response to my noble friend is a reiteration of points I have already made. We have a strategy for aviation; which Act of Parliament requires the Secretary of State to produce it? We have a strategy for buses and for walking; where is the legislation that compels those strategies to be produced? Of course there is no legislative compulsion. It is a question of the Secretary of State responding to the needs of the community and recognising that we cannot develop transport policy without making quite clear our strategic position and long-term objectives. I am in no way, shape or form against the concept of the strategy. I am merely saying that it is not necessary to put such a requirement in the Bill, and it is not helpful for us to add to the Bill that which is unnecessary.
Lord Bradshaw: Again, I thank Members of the Committee who took part in this debate.
The Minister says that we have a strategy for aviation and for motorcycling. The difference is that we put lots of money into the railways; we do not put lots of money into the airlines and into motorcycling. Putting £4 billion a year into the railways is, in my view, quite a lot of cash—a lot more than goes into the other industries. The same could be said of the bus industry, which is largely self-financing.
Ministers are like rabbits dazzled in a pair of headlights—the bright one says "survival" and the strategy one is rather dim. What motivates people is questions such as "When is the election?" and "What do people think of me?". Those questions are foremost in their minds.
Let us turn our attention to the industries involved. If you are a manufacturer of rolling stock or signalling equipment, or if you are going to make a commitment to large-scale investment, you need something against which to make your decisions. I take entirely the point of the noble Lord, Lord Marsh, that during his time—and during mine—changes of policy were frequent. I have also been a recipient of the lunchtime directive. Often the reasons you were being asked to do things were nothing to do with strategy and everything to do with survival.
A lot of public money is spent on the railways. We, as taxpayers, and as representatives of taxpayers, have some responsibility to debate the way in which it is proposed to spend that money. I take the point of the

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noble Lord, Lord Marsh, that an annual debate might be too frequent but there should be an obligation to provide strategies. The supply industry, regional government and the PTEs need strategies. The freight industry needs strategies, because it needs to know the background against which it is putting cash in. I believe there is a need because the Secretary of State is taking these powers unto himself. There is no intermediate body which can produce these strategies and it should be incumbent on him to produce them.
I will take counsel with the noble Lords, Lord Marsh and Lord Berkeley, and the noble Viscount, Lord Astor, and others, but I should point out to the Minister that this is a point of principle. There is a point in each Bill where the Government come up against the massed forces of Parliament saying, "We are not prepared to put up with this. You are taking powers to control vast amounts of expenditure by a Secretary of State". It is like going into a grand hotel and running up a huge bill—but the Secretary of State is not even required to produce one. We have reached a very important point in the Bill and it is one to which we will return.
I give an assurance to all noble Lords that I have taken careful note of what has been said and I will seek to bring about as large a consensus as possible. But, as a responsible Parliament, we should not pass over the expenditure of all this money to a Secretary of State—and I stress "a" Secretary of State—without some kind of comeback on how that money is spent. As the Minister said, these strategies may come this year, next year. three years down the line—we do not know—and so there is no compulsion whatever.
I will withdraw the amendment for the time being—it is up to the noble Lord, Lord Berkeley, what he wishes to do with his—and return to it at another stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [General duties under s.4 of the 1993 Act]:
Lord Berkeleymoved Amendment No. 7:
Page 3, line 3, leave out from "in" to end of line 6 and insert "the performance of services for the carriage of goods or passengers by rail;
(a) otherwise to protect the interests of users of services for the carriage of goods or passengers by rail;"
The noble Lord said: In moving Amendment No. 7, I shall speak also to Amendments Nos. 8 and 12. To some extent, due to the vagaries in the way in which the Bill has been produced, I feel that we are taking a step backwards and upwards because the duties as originally in the 1993 Act probably come before strategies.
My reasons for bringing forward the amendments go back to the 1993 Act, where the rail freight industry fought very hard to have the words "and freight" included in the duties. It is a part of the reason why rail freight has been so successful in the past 10 years. However, 10 years on, a great deal of education is still necessary within bodies such as Network Rail—or Railtrack, as it was—OPRAF, which became the SRA,
the rail regulator and sometimes the Department for Transport to enable them to understand that freight is
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different. It is in the private sector, it only goes when the customer wants it to, it is extremely reliable—only 5 per cent of delays to passenger trains are caused by freight—and, most importantly, it is fully exposed to commercial risk. So it needs the continuing protection that these duties and my amendments provide.
Amendment No. 8 seeks to go a little further than the two previous Bills, reflecting the fundamental change that is proposed for the railways, with tighter government control of both passenger services and of Network Rail. The White Paper recognised this in July last year. It stated:
"The Government will therefore ensure that long-term access agreements are put in place to provide the stability needed to secure commercial contracts",
for rail freight. An enormous amount of good work is being done in Department for Transport working groups, and I have the honour of being a member of a number of those.
Strategies come up many times in the Bill covering different areas such as closures, what is to happen when the network is reduced and so forth. That is because the Government have two roles: those of specifying and of funding the network. We have already talked about specifying a high-level output for passengers and freight and I shall come back to that in a moment. However, the Government also prepare a passenger strategy themselves, so we must ensure that the way the freight strategy is prepared is compatible and given equal weight.
As a slight aside, there has been a lot of debate about whether the 43 references to "railways services" in the Bill apply to both passengers and freight. I am advised that the expression applies to passengers and freight because of Clause 57(2), which states:
"An expression which is given a meaning by any provision of the 1993 Act for the purpose [either] of that Act … has the same meaning in this Act".
It therefore covers the carriages of passengers, goods, light maintenance, station services and network services. Thus freight is included. That is why I have tabled later amendments to exclude freight because it does not seem appropriate.
I turn briefly to the amendments. It is a bit odd that the only duty the Government are giving themselves is to make the trains run on time. That is a good thing, although freight already runs on time. But is that sufficient? I prefer the old duties and that is why I have set them out in Amendment No. 7. It is important to have the phrase,
"the performance of services for the carriage of goods or passengers by rail",
in the Bill.
6.15 p.m.
Amendment No. 8 has been tabled because it is important to strike a balance between those who carry goods and those who carry passengers outwith a franchise agreement, because passenger franchisees are protected. Paragraph (ii) provides for open access passenger operators. Some of them have been quite successful—they would not be around otherwise since

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they receive no subsidy—and they too need some protection. Paragraph (iii) covers "investors or likely investors" who, as I quoted from the White Paper, need the comfort of knowing that they will have access to the tracks in order to realise their investment.
Given the proposed new structure of the railways, I think that these amendments are important. While I have no problem with the structure, freight has to be seen as independent and fully exposed in the private sector, as should open access passenger operators.
The final amendment in the group, Amendment No. 12, is very small. Given my definition of "railway services", which I hope my noble friend will confirm is correct, it seems odd to have the words,
"after the definition of 'the passenger transport market' insert … 'railway service performance",
followed by a list of other provisions that clearly refer to passengers. I suggest, therefore, that the word "passenger" should be inserted. If my noble friend says that I am wrong about that, I am sure that he will correct me. I beg to move.
Lord Bradshaw: I support the amendment in so far as it would help to protect the interests of those carrying freight on the railway. I feel that the Government are somewhat in thrall to the operators of heavy lorries. That was demonstrated during the fuel crisis and by several things since then. Those operators are possibly enjoying a rather easy ride when compared with rail freight, but I believe that most people who drive motor cars or use the roads would dearly love to see more freight moved by rail. Indeed, that is one of the most popular statements a politician can make, especially at a time when politicians are finding it difficult to find anything popular to say. It is important that the interests of freight are borne very much in mind and not subjected to the Government's possible financial priorities for giving preference to the interests of passenger service operators.
I want to draw the Minister's attention to some information provided by the North Staffordshire Rail Promotion Group. While I shall not burden the Committee by reading out the whole document, it is clear that the small stations represented by this group have had their rail services completely thrown to the wind in order to meet the requirements of Network Rail on the one hand and Virgin's West Coast Main Line on the other. Trains have been withdrawn and bus services provided in their place. Statements were issued to the effect that train services would be restored, but that has not happened. Large service gaps have appeared that have lasted for months and, lo and behold, no one uses the railway any more. Following that, the SRA has issued a statement saying that the bus services seem to be a fair substitution. At one station even the footbridge to the far platform has been taken away, so it is no wonder that people are not using the railway.
What most presses Ministers when trying to reduce costs, to get engineering work done and to make the franchises attractive should not be allowed to badly
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affect rail freight, which is very important and is already suffering a lot of disadvantage when compared with road freight.
Lord Davies of Oldham: I agree with a great deal of what the noble Lord, Lord Bradshaw, has said about ensuring that there is no unfair discrimination against rail freight and that it should be encouraged. Moreover, my noble friend who moved the amendment is a doughty champion of the industry. Let me give him the obvious assurance that the Government recognise that rail freight has a vital role to play and must be able to do so more effectively.
In considering his strategy for the railway and the desired outputs which he will notify to the Office of Rail Regulation prior to an access review, the Secretary of State will of course take into account the needs of freight operators and of all passenger operators, franchised and otherwise. The freight and passenger operators use the same tracks and it would be extremely foolish for the Secretary of State to imagine that he could specify for the one without due consideration of the other. Officials in the department are currently discussing with the rail freight industry how best to feed information on its requirements into this process. I know that my noble friend is aware of those developments.
The rail freight strategy must develop from rail planning processes, the result of which will be a clearly defined role for freight set in the context of the Government and the industry's long-term plans and drawing on the industry's own planning and assessment of its needs. That is what the rail freight industry wants and we intend to see that that is what it gets.
My noble friend half conceded the point in moving his amendment, but when the Bill refers to the interests of users of rail services, it refers to all users: passenger operators, freight operators and their customers. I shall address a little later the point where it appears that only passengers are in mind, when I shall give him a specific response. First, however, I want to emphasise that we recognise the important role played by rail freight and confirm that it lies within the framework of users as defined in the Bill.
The second amendment tends to take us over some of the same ground as the first. The effect would be to spell out the need for the Office of Rail Regulation and the Secretary of State to balance the interests of all rail users. Of course we intend to do that. We cannot plan sensibly for passenger railway services without giving due consideration to the requirements of the freight railway. The fact that the Bill does not spell out the requirement to strike this balance does not mean that it will not be struck—quite the opposite. I want to give an assurance that it will.
I am conscious that my noble friend's third amendment identifies what look like the specifications solely or chiefly related to passenger transport. When one refers to performance in securing reliability, including punctuality, and journey times being as short as possible, it may look as if one has the

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passenger in mind, but my noble friend is better placed than anyone to recognise how freight would also benefit from both of those objectives being realised.
I recognise that the reference to overcrowding refers, by definition, only to passengers.
Lord Berkeley: That would rather depend on whether the passengers think that they are in cattle trucks or not.
Lord Davies of Oldham: I have heard one or two passengers indicate that they have not noticed the difference between themselves and freight, but I always thought that that was rhetorical exaggeration, as they were breathing into my left ear and I was trying to establish contact with my right. We all know the problems of overcrowding on suburban services at times.
I want to reassure my noble friend that the list, which includes the word "overcrowding" is not exhaustive. One should not take this reference as an indication that the only concept is that of passengers. Freight is included as well.
I want to reassure my noble friend about the Government's commitment to rail freight. I am happy to emphasise the assurances I have given that the interests of rail freight will be fully taken into account alongside those of the passenger railway. They are subscribed to by all in government concerned with the future of the railway. On that basis, I hope that he will withdraw his amendment.
Lord Berkeley: I am very grateful to my noble friend. He has given some good assurances with which I am content. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 8 not moved.]
Lord Berkeleymoved Amendment No. 9:
Page 3, line 34, at end insert—
"( ) The Secretary of State shall publish in support of his strategies a common appraisal methodology covering road and rail passenger and freight transport to form the basis for prioritising investment and operations of the railway.
( ) Before publishing his appraisal methodology, the Secretary of State shall consult those persons who appear to him to be representative of investors, operators or customers of the railways.
( ) The Secretary of State shall publish annually forecasts of passenger demand."
The noble Lord said: It is clear that appraisals of different modes of transport—road, rail, maybe air, passenger and freight—will have a much higher profile in the new structure of the railways. This is a probing amendment to see how the Government envisage taking it forward.
Clearly, it is down to the Government to carry out appraisals and produce methodologies which I hope the whole industry will support. As this will be applied so widely, whether it is to do with priority between different types of passenger train, between passengers and freight. whether it concerns grants or even how the regulator decides to close which part of the network—
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I am sure we shall come to that later—it is important to have an appraisal methodology which covers all aspects of the transport we are talking about and in which everybody must have confidence. It will make life much easier.
I have a few worries about the current situation. I have had one or two disagreements with the Strategic Rail Authority over the years about how it appraises passenger and freight, whether it uses user benefits or non-user benefits, and the values it applies. The discussion has started and I am looking for some comfort from my noble friend that it is intended to take this forward, to complete it and to consult as widely as possible so that there is something everyone can buy into. I beg to move.
6.30 p.m.
Lord Tunnicliffe: Will my noble friend Lord Berkeley confirm what I think I heard him say; namely, that the common methodology would apply to railway closures as well'?
Lord Berkeley: I believe that it could apply to railway closures. I have not looked into it in any great detail, but it is something that surely should apply to railway closures and to railway re-openings as well; in fact, to everything. My noble friend has made a very good suggestion which perhaps needs further discussion. It exemplifies an even wider use for this methodology than I had thought of, so I am every grateful.
Lord Davies of Oldham: I have some sympathy with the amendment and the intent behind it. I can give my noble friend the assurances he seeks. The department has already published guidance, known as the New Approach to Appraisal, set out on the department's website. This document provides generic appraisal guidance covering all forms of transport and was widely consulted on prior to publication. It is subject to regular review and incorporates the latest developments and discussions in this field. We regard it as a document that could benefit from re-evaluation in the context of the points made by my noble friend.
I assure my noble friend that the department is very serious about appraisal methodology aimed at producing good quality value for money assessments to help prioritise spending decisions. In addition to the generic multi-modal guidance set out in WebTag, rail-specific appraisal issues are currently addressed by the SRA Appraisal Criteria. The passenger and freight constituent elements of this document were subject to consultation before its publication. We recognise that some updating and further work are required, but I assure my noble friend that the matter is in hand.
Lord Berkeley: I am very grateful to my noble friend and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 10 to 12 not moved.]
Clause 3 agreed to.
[Amendment No. 13 not moved.]
Lord Berkeleymoved Amendment No. 14:
After Clause 3, insert the following new clause—
"NETWORK RAIL'S DUTIES AND OBLIGATIONS
The Secretary of State or Scottish Ministers as appropriate shall ensure that the content of section 3 of the Railways Act 2005 shall be included in any agreement between the Secretary of State or Scottish Ministers and infrastructure managers in respect of purposes and compliance with strategies."
The noble Lord said: This is an amendment to probe how the Government think they will get Network Rail to do what they want it to do. There is to be something that we are told is called a binding agreement. We have to wait to see whether it is binding and whether it is an agreement. It will be interesting to see what is in it. However, we must recognise that Network Rail has many more responsibilities. We need some assurance that Network Rail will comply with the spirit and letter of the duties and strategies—whether or not we have them—to be provided.
Network Rail is in the private sector and therefore I understand that Ministers will not answer Written Questions on it. However, it is the monopoly supplier of infrastructure. At present its performance is very variable. I give an example mentioned at a meeting I hosted in Telford last week. A big slate company run by McAlpine wants to remove waste from a tip at Blaenau Ffestiniog—it is horrible waste comprising hundreds of millions of tonnes—and take it to Manchester and Birmingham as secondary aggregates. It has been trying for seven years to get permission to run trains down the Conwy Valley line. Network Rail's estimate for returning that line to freight use—it carried nuclear waste trains until about 10 years ago—has varied from £6 million to £256 million and has gone down to £20 million and up to £66 million. Apart from indicating appalling estimation, it also suggests that Network Rail does not know what work has to be done on the line and whether it is for it or someone else to pay. But here is a customer who has been waiting to use rail freight for seven years and still cannot get an answer.
In addition to the regulator's work and the constraints that he can put on Network Rail, I would like to see something in the binding agreement which requires Network Rail to do what it is funded by the Government to do. The amendment probably is not correct, but I should like my noble friend to explain what will be in the agreement, when we are going to see it—I assume that we are going to see it—and what the Government will do if Network Rail does not perform in accordance with the agreement. I beg to move.
Lord Bradshaw: This is an appropriate amendment because Network Rail will be spending a very large part of the taxpayers' money to which we have referred. Some of us were naïve enough to believe that we would see a diminution in the activities of Network Rail following Hatfield, when large amounts of new rail were wheeled into position, when it received machines to measure the quality of track and high-output track re-laying machines which took a great
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deal of the muscle work out of laying track. However, there seem to be more and more occupations of the railways. The ability to travel at weekends is now severely restricted and people making any kind of journey find themselves on a bus for a considerable part of it.
Having taken Network Rail into their ownership, the Government definitely owe people a statement as to when things will get better. We may have to wait a little longer but it would be nice to know that we are not in for years and years of line closures. These are not the kind of occupations of the track that I was used to when I was a railway manager and had to allow the paper trains through on a Saturday night and put in 10 hours or so to do what you could before you had to operate with passengers again. Now, we shut the railway on Saturday morning and we are jolly lucky if it is open on Monday morning.
These so-called high-productivity machines, working in absolute occupation of both tracks—if staff are not at risk there is no need to protect them—do not seem to be delivering the results that I would expect if I were a Minister and footing the bill or if I were a general manager and responsible to my customers on the railway.
There is a great disjoint between what the customer wants and what Network Rail is providing, and both passengers and freight suffer as a consequence. The inability of freight and passenger operators to offer a reliable service severely impacts on the results of their business; you find that people who are unable to travel often do not come back. It is important to find out from the Secretary of State what Network Rail will do and what we can expect in the future.
Viscount Astor: I have one question for the Minister arising from what the noble Lord, Lord Berkeley, said about the responsibilities of Network Rail.
The noble Lord, Lord Berkeley, implied that the Secretary of State would not be directly answerable for the performance of Network Rail. As I understand it, the Bill will abolish the SRA and, therefore, that Network Rail will, in effect, come under the direct responsibility of the Secretary of State.
I have no idea how it is going to work. I think it would be helpful to the Committee if the Minister could say whether it will be the Secretary of State who answers questions in Parliament on the performance of Network Rail and any details about Network Rail. There is certainly some confusion. I should be grateful if the Minister could cast a light on it.
Lord Berkeley: I apologise to the Committee. I omitted to speak to Amendment No. 15, which is very short.
It may or may not be known that the Strategic Rail Authority is one of 116 members of Network Rail—not of the board, but of Network Rail. The seat is currently occupied by the chairman of the SRA, David Quarmby. When he gets abolished with the SRA, I would like to know who will take his place. Will it be Mr Darling, Mr McNulty or my noble friend Lord Davies of Oldham? Is the person who

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will sit on that board of 116 people—I am one of them; I declare an interest—supposed to hold Network Rail's corporate governance to account? This amendment seeks elucidation from my noble friend.
Lord Davies of Oldham: If I may, I shall deal with the second amendment first. It is a slightly easier one.
The SRA's right to special membership of Network Rail passes to its successors in title—in this case, the Secretary of State, who will be appointing a special member.
Lord Berkeley: Then it will be Mr Darling.
Lord Davies of Oldham: The noble Lord may make such a comment from a sedentary position; I could not possibly do so.
I turn to the more substantial point which I think is in Amendment No. 14. The combined effect of Clause 4 and Schedule 4 is to ensure that strategies are given effect through access charges reviews. The delivery of what the Secretary of State and Scottish Ministers want to be achieved by railway activities during an access charges review period, and what they are prepared to fund, will be linked to the infrastructure manager's licence which is reviewed and enforced by the Office of Rail Regulation. So we think we have a structure that renders this amendment unnecessary.
I think that my noble friend was indicating that this is a probing amendment. I think that the noble Viscount, Lord Astor, also said that he would welcome greater elucidation on this. I begin by saying that the binding arrangement will be a combination of regulatory requirements imposed, monitored and enforced by the Office of Rail Regulation and a reporting requirement. The great majority of the binding arrangement will be in the form of a regulatory regime which is very much like the current processes.
At the outset of a periodic or interim review, the Government will decide the high-level outputs they wish to buy. The Office of Rail Regulation will determine the consequent intermediate outputs that Network Rail will be obliged to deliver and the income that it needs to do that. The intermediate outputs and their delivery will form part of the Secretary of State's reasonable requirements, and that is a reasonable requirement under condition 7 of Network Rail's licence enforceable by the Office of Rail Regulation.
So of course the actors have changed; that is what the Bill is about. However, I think that my noble friend will also recognise that certain aspects of this follow on from what is currently in place. As the noble Viscount, Lord Astor, would speedily emphasise if I did not cover that point, Network Rail is a private company and the Government cannot direct it. But it is, of course, regulated by the Office of Rail Regulation, mainly through the conditions of its licence. These will be changed to reflect Network Rail's enhanced role and the licence will require it to deliver the Secretary of State's reasonable requirements for the rail industry through the process I have identified. I hope that satisfies the Committee.
6.45 p.m.
Viscount Astor: Perhaps I may press the Minister a little further. He said that Network Rail will be a limited company. However, in effect, the Government will be the shareholder. Therefore the Government will have 100 per cent of the votes and will be able to appoint or elect, whichever way one wishes to describe it, the board. The noble Lord wishes to intervene.
Lord Berkeley: Perhaps I may clarify this matter. According to a Written Answer I received about six months ago, the Government are not the shareholder. The owners of Network Rail are the 116 members—the number varies but it is about 116—and the key issue is that their liability is capped at £1.
Viscount Astor: I am grateful. So, in effect, the Government accept the liabilities of Network Rail, I believe is the correct way of putting it. Therefore, if they accept the liabilities of Network Rail, they must also accept the responsibilities for it. I was trying to elucidate from the Minister whether, by accepting those liabilities on to their books, the Government are responsible for Network Rail and feel that they must be accountable in Parliament for its performance and answer any questions about it.
That is the point I was seeking to make. I apologise if I was somewhat opaque in my question and I am grateful to the noble Lord, Lord Berkeley, for his help.
Lord Bradshaw: I found the Minister's answer absolutely incredible in regard to the outcome of the regulatory review. When I was a manager on the railway, I had regulatory reviews at 9 o'clock on Monday morning and if the issues were not resolved by Wednesday I was out of a job. That is how it was run. Are we going to wait four years for the outcome of a regulatory review to clear up the present mess? That really is quite incredible.
The Government may not have liked railway privatisation but they have had eight years to get to grips with it. The situation which now occurs every weekend on the railway is really quite intolerable. The Government have got to get to grips with this. You can construct all kinds of fancy words about what will happen in 2008 or whenever, but the passengers want something to happen now.
I have got no time for the fiction about Network Rail being in the private sector when it is in fact funded by the public. The Minister has got to do better because the customers want better. The railway I ran actually considered the importance of its customers. The Evening Standard did not let you exist as a divisional manager at Liverpool Street if for about three successive days there was chaos; you had to do something about it. It seems that now the urgency has gone; the business just drifts on and on to years in the future.
I found the answer of the Secretary of State extremely disappointing. We have got to have a mechanism for holding to account the people in Network Rail for the railway they are producing. It really is not good enough for its customers, The

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Minister will no doubt tell me that people are using the railway in greater numbers. But that is because the roads are so congested that they have no alternative; it is not because the rail services are so good.
Lord Davies of Oldham: I will be brief. I listened very carefully to the challenge laid down by the noble Lord. However, I emphasise that we are dealing with a Bill and with the structure envisaged by it. I hear what the noble Lord says about the failings, as he sees them, of the proposal. But he will recognise that many of the conditions that will operate as regards the future of Network Rail's work are not in the Bill because they do not require legislative change. They require what I think the noble Lord is driving at: clarification of the relationship and the demands made upon them.
That is an important debate. There will be many occasions on which we can have it but I hope that noble Lords will forgive me if today I confine myself to the amendments tabled, to which my response was, I hope, satisfactory. However, I recognise the strength of feeling of the noble Lord opposite.
Lord Berkeley: I am grateful to all Members of the Committee who have spoken on this group of amendments. We have had a good debate; although we have not answered the question there has been a lot of food for thought. I am certainly grateful to know that my right honourable friend Mr Darling will be sitting around the table with Network Rail and listening to all those lovely votes that we have. I am grateful to my noble friend for his response and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Viscount Astor: I oppose the Question that Clause 4 stand part of the Bill because this issue is extremely important to us and it is one to which we shall return. I have taken this approach because I want to hear the Government's response before we decide what amendment to table.
Clause 4 is one of the smallest clauses in the Bill. It is perhaps one of the most contentious and could be one of the most objectionable. The reason is that it concerns the jurisdiction of the Office of the Rail Regulator rather than the independence of the regulatory authority.
Independence is all very well but what matters just as much is the jurisdiction of the authority—what it actually does. The Secretary of State has insisted that the Office of the Rail Regulator will remain independent. We accept that; it is not an issue. Of course we know that, after the possibly unlawful decision of the previous Secretary of State to apply for Railtrack to be put into administration in October 2001—and, indeed, the threats made to the previous rail regulator in relation to his independence—the independence of the economic regulation of the railways is not now in dispute but, rather, its jurisdiction.
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Its jurisdiction is undermined by the Bill to the jeopardy of private investment in the rail industry and, indeed, of investment in other independently regulated industries. That affects the reputation of the British Government in their dealings with the private sector. So I hope that the Minister can say how she intends to square what the Government are doing with the Statement that the Secretary of State made to Parliament in February last year.
The Deputy Chairman of Committees (Viscount Simon): A Division has been called in the House. The Committee will adjourn for 10 minutes and resume at three minutes past seven.
[The Sitting was suspended for a Division in the House from 6.53 to 7.03 p.m.
Viscount Astor: This is about the power to carry out an access charges review—an assessment of the financial needs of Network Rail for the confident and efficient stewardship of the network. It is the regulatory authority's most important function. It gives Network Rail, the freight and passenger train operators, the rolling stock lessors and suppliers and the infrastructure maintenance and renewal companies the necessary certainty and security that the provider of the national infrastructure, Network Rail, will have enough money for the competent and efficient operation, maintenance and renewal of the infrastructure for five or more years at a time.
In carrying out an access charges review, the Office of Rail Regulation is required to apply an important list of statutory criteria, such as the promotion of efficiency and economy in the industry, the interests of freight and passenger users of the railway and the growth and development of the industry. Importantly, it is not allowed to apply political criteria—I accept that—as it is recognised that the application of short-
term political considerations are detrimental to private sector confidence and the medium and long-term needs of the railway.
Indeed, it is the establishment of independent economic regulation, free of political controls, that in every privatised industry, including railways, is essential to private sector confidence and investment, which finally assures the industry and its investors that there is an acceptable future. The Government have accepted the principle of the independence of the Bank of England, but they are not prepared to do so in the case of the railways with the regulator, because, under this legislation, the Office of Rail Regulation and the rail regulator which it replaces had the right to make that assessment and set access charges accordingly. Under the franchise agreements between the agent of the Government, the SRA, and the private sector passenger train operators, the train operators were entitled to indemnities from the Government against any increase in access charges which may be determined by the independent regulatory authority.
Those indemnities are extremely important parts of the bargain which the state made with the private sector; they are not limited in amount and they provide that the state will keep the risk associated with the

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uncertain condition of the assets of Network Rail. It was on the basis of that indemnity that the private sector came into the railway industry and it is a fundamental part of the relationship between the Government and the private sector. It should not lightly be interfered with.
When, in December 2003, the last rail regulator decided on a £7.4 billion increase in Network Rail's income for 2004 to 2009, the Secretary of State publicly welcomed his decision and confirmed, as he had to, that the Government would honour the indemnities in its contracts with the private sector companies. But the Treasury was not happy about the fact that the decision of the regulator in an access charges review flowed straight back to it; in essence, the Treasury was not pleased about the fact that the SRA inherited from its predecessor indemnities which committed the state to pay to private sector operators amounts which are determined by an independent authority. Nor is the Treasury happy with the fact that the same SRA has continued its policy of full and unlimited indemnification of private sector operators.
So what do the Government now propose to do? Of course they cannot and would not dishonour their contracts of indemnity with the private sector operators, as these are enforceable by law. The Government are doing the next best thing, to limit the jurisdiction of the independent regulatory authority—in effect, to cap the indemnities by legislation—and that is what Schedule 4, subparagraph 1G seeks to do. It provides that the ORR may raise access charges at an access charges review only to the limit imposed by the Government—by the Treasury, in effect.
The limit is stated to be the public financial resources available, as defined in subparagraph 1D(11). That is a serious interference in the contracts which the state has made with the private sector—a unilateral watering down of a valuable provision which the Government now find uncomfortable. It is a change without compensation to private sector operators whose contracts are being interfered with. Therefore, it could be a breach of Article I of Protocol 1 of the human rights convention. The Secretary of State has stated that the Bill conforms with that convention.
The Government are prepared to interfere with private contracts to which they are a party and that raise serious issues, not just for railways, but for any other contract with government, because the state has voluntarily made a contract with the private sector and undertaken to pay money in certain defined future circumstances. The Government are seeking to change that.
After the Secretary of State announced the rail review on 19 January 2004, which is to be implemented by the Bill, he gave assurances in another place that,
"the Government also rules out any change to the rights of third parties, which will be protected. There is no question of weakening the effectiveness of economic regulation".
He continued:
"maintaining fully effective and independent economic regulation is critical for retaining investor confidence".
And he promised:
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"There will be no diminution in the regulatory protection of the private sector investors in the railway".—[0fficial Report, Commons, 9/2/04; cols. 1237–38W.]
Our concern is that Schedule 4 does not respect the principles or honour the assurances. It interferes in the jurisdiction of the Office of the Rail Regulator by diminishing the rights of private sector operators. This is of concern to those in the industry and must be a concern to others who have contracts with the Government.
While the independence of the Office of the Rail Regulator is not compromised by the Bill, his jurisdiction is compromised because, in effect, he is subject to a cap on government expenditure. That concern flows through the Bill. We need to address it and get some clear answers from the Government. We have an independent regulator who, in effect, has an expenditure cap which will influence his decisions. I accept that there will not be a political influence on his decisions, but the Government will be an economic and financial influence.
We are concerned about what Clause 4 and Schedule 4 do in funding the industry and its relation to private sector contracts.
Lord Bradshaw: The noble Viscount, Lord Astor, has put his finger on the core of the Bill—that is, what happens when there is not enough money to fund the railway. You have contracts with various people and the rail regulator could be put in a position of saying that if there is not enough money to go around, who will suffer? Will it be the private investor, who is expecting to do something but will not be able to because there is not enough money to pay for it? Will it be the passenger, who will ultimately be deprived of service? There will be a great lottery regarding that. It will probably not be the person who least deserves the service; it will be the customer of the next franchise to be let. The noose will tighten where it is most expedient, so it will tighten on the person who is next in line.
Then there are decisions about closures or bus substitutions. Or will we have a railway which is underinvested? That is the alternative—to say to the industry that there is not enough money, therefore you will not carry out the renewals or you will run the service down in some other way. There is a real problem here, arising mainly because of Network Rail's failure to get to grips with costs. I know that the Government want Network Rail to do that, but, as I said in the previous debate, we have yet to see evidence of it happening. I would dearly love to see evidence of it, but I do not.
The situation is not getting better—indeed, it is probably getting worse. While one can talk about decades of underinvestment, we have to remind ourselves that in 1993 the railway was in reasonably good order. The West Coast Main Line had no speed restrictions when it was handed over. To talk about decades of underinvestment and to repeat the newspaper headlines is no substitute for the truth.
It will be a real problem if the rail regulator is constrained financially. Where is the shoe going to pinch and what parliamentary accountability is there?

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Will somebody just decide that a certain service will be degraded or subject to bus substitution? Is this at the heart of the Bill? I think it is.
The Minister owes a further explanation, not just to us in the House but to a large proportion of the public who have not had that explanation because the matter was so inadequately debated in the other place.
7.15 p.m.
Lord Snape: The Minister will have to satisfy some very real fears, specifically in the railway community, about the future. This clause should be sub-headed "The Treasury's Revenge". The Treasury has never forgiven the previous regulator for demanding as he did: "This is the amount of money needed to run the railways and therefore you will produce it". The Treasury was determined that such a situation would not arise in the future.
Much of the concern about the financial straitjacket in which the industry may well be placed has been expressed with reference to the future of fairly lightly used branch lines, but in many ways the situation is much worse. I suspect that the corset, if you like—the pressure—will be applied right across the industry. It will perhaps be late-night services during the week, on which a small minority depends but which are nevertheless essential from those passengers' point of view, that will be marginalised and eventually withdrawn completely. Under Clause 4, nobody can do much about the situation.
The noble Lord, Lord Bradshaw, mentioned that the mantra expressed by people in the railway industry—some of whom should perhaps know better—and outside it is that we are talking about decades of underinvestment. In certain areas we are, but, as the noble Lord said, we are also talking about a few years' mistaken investment by Network Rail and its immediate predecessor, Railtrack.
I do not wish to detain Members of the Committee or bore them with stories of my time in railway signal boxes; I am sure that my colleagues would not forgive me if I did. But on Saturday I passed through my home town of Stockport, where over the past five years the line has been closed repeatedly at weekends, sometimes for up to four months. That is not a little-known branch line; it is part of the West Coast Main Line connecting London and Manchester. After new signals and points had been put in it was decided that they had been put in the wrong place and that the transposition of the line envisaged at that time was inherently dangerous. Those new points have now been removed. Unfortunately, now that the line has reverted to its traditional direction of travel, the old points have not been replaced.
We have the ludicrous situation of having spent literally millions of pounds and caused enormous dislocation to the lives of people living in the south Manchester area. Trains leaving Manchester stay on the up fast line once they have passed Slade Lane junction, some five miles from Stockport—I am sorry; I knew that I would come down to anecdotal
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material—regardless of what else happens, because the points that would have transferred them to another line have been taken away some years ago. That is all paid for by public money; it is vastly expensive.
A new signal box whose interior was designed by Ansaldo is being built to control the Stockport area. Unfortunately, because of the rethink, it does not control the area and will not do for some years, so signal boxes built by London North Western Railway in the 1880s have been refurbished and are located right next to the brand new signalling centre. This expensive new infrastructure controls one junction, at Cheadle Hulme, which used to be controlled by 25 levers, installed by the London and North Western Railway. Across the track, within spitting distance, if one wants to put it crudely, is a brand new signalling centre that does not work.
There is no point in people complaining to the Treasury about underinvestment when all of us who know anything about the industry, or have been involved in it, know full well that a lot of money has been wasted. To that extent, I am not helping my noble friend. I started off on one tack and now have convinced myself that I am barking up the wrong tree.
There is a serious long-term problem. The clause enables the Treasury to run the railway. I suspect that, in their hearts, many noble Lords on these Benches have no wish to go back to the days of operating a railway at the behest of the Treasury, which in itself never comes under any public scrutiny so far as concerns its efficiency and suitability to operate the railway.
I hope that my noble friend the Minister can reassure us. If she can, I shall have her promoted instantly.
Lord Berkeley: I cannot equal the view of my noble friend Lord Snape about the signalling at Stockport, except to say that I have it on good authority that every engineer carrying out the re-signalling work—the third one—was supervised by a Bechtel engineer. The waste of money was terrible. It is an issue that we have debated before.
The schedule is a serious matter and the noble Viscount, Lord Astor, has done well to raise it. If we do not accept that the schedule should remain in the Bill, it will not be necessary to move the next three groups of amendments.
The noble Viscount alluded to the fact that the Government and the regulator together can change the shape of a railway in such a way that those operating on it can lose a great deal of money because inefficiencies are brought in. Branch lines may be closed and there may be permanent 50 miles per hour speed limits on the West Coast Main Line, the Great Western and the Great North Eastern, for example. Would not that be fun? Politicians here would have a lovely time. However, the regulator could decide to do that and it would be no different to the previous occasion when Mr Winsor was blamed for everything.

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If that happens and an operator—a freight operator, an open access operator or anyone else—suffers consequentially, at the moment there is no provision for compensation. One of my amendments will provide for that and I shall discuss it in more detail when we get to it.
I thought it would be interesting to refer noble Lords to the Crossrail Bill, which was published last week. I have a copy here. I remind the Committee that compensation is payable by the Government to those affected by Crossrail. If it cannot run its trains in accordance with its contractual rights, they receive compensation. The Crossrail Bill will need a great deal of scrutiny but compensation is not a dirty word when it comes to allowing Crossrail trains to run. The issue of compensation being on the face of the Bill in Schedule 4—if the schedule remains—will need to be considered.
Viscount Astor: I should say to the noble Lord, who has great experience of these matters, that it is not a matter of looking forward to compensation. I contend—I wonder whether he agrees—that the current indemnities available to the industry under Clause 4 and its schedule could fall and there would be nothing the operators could do about it.
Lord Berkeley: I agree with the noble Viscount. That is exactly my point. Now is not the time to rehearse it in detail, but there need to be indemnities and, whatever we think of the future and whether the costs will come down, we have to think the worst. People and companies could lose a lot of money and there need to be indemnities and some methodology whereby once the regulator has made his final decision or recommendation, it is passed back to the Secretary of State to take the political decision about which lines should close. It is unfair that an independent regulator should be asked to say, "I close the West Coast Main Line and not the East Coast Main Line", or whatever, but that is a debate for another day. I apologise for not being in my place at the start of the noble Viscount's speech but I support the general tenor of his remarks.
Baroness Crawley: I thank noble Lords for their contributions. In answer to my noble friend Lord Snape, I should say that I fear my promotion could be a long way off.
Let me go through the points raised by noble Lords, starting with the noble Viscount, Lord Astor, who was very exercised by the issue of jurisdiction. The jurisdiction is not being changed because the Office of Rail Regulation continues to perform the same functions. The Secretary of State is entitled to specify high level outputs and the money that he has available. He has always had the right to provide guidance to the ORR. The Bill ensures that that happens without fail. The ORR will have a clear statement for each review of access charges of what the Secretary of State wants delivered. The ORR then performs its independent function of undertaking the review looking at the issue of jurisdiction and the whole issue of the access charge reviews being free of political control.
Every regulated industry needs to take account of public policy established by government, for example, environmental objectives in the energy sector. For rail,
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the level of public subsidy—which we have discussed this afternoon—makes it even more important that Ministers give a very clear statement of what they want achieved in the public interest. This does not in any way undermine private participation and investment in the industry.
Concerns were raised about the capping of public investment. It has never been the case that an independent regulator has the function to determine public expenditure; that is Parliament's function. The access charge review process ensures that the ORR sets charges independently, taking account of the cost of contractual commitments. The new process adds to the current arrangement, adding in the stage that makes it more transparent and more accountable.
The noble Viscount, Lord Astor, mentioned breaking contract with the private sector. Both Network Rail and the Association of Train Operating Companies have welcomed the Bill. I shall not delay the Committee now but I have copious quotes from both regarding their welcome of the Bill.
The private sector likes the new structure for industry. My noble friends Lord Snape and Lord Berkeley—
Viscount Astor: Before the noble Baroness leaves that point, I am sure that many in industry welcome parts of the Bill, rather like the curate's egg. However, my question concerned indemnities given to train operating companies and whether, through the capping of funding, those indemnities could be changed. It would be very helpful if the noble Baroness could give the Committee a clear statement on that. I accept that I may have read the Bill wrongly—I am no expert on reading Bills—but it would be very helpful to know exactly what the position is.
Lord Berkeley: While my noble friend is considering her response to the noble Viscount, Lord Astor, I wish to refer to open access passenger operators. Freight operators are very concerned about this point for the reason that the noble Viscount, Lord Astor, mentioned. There is no indemnity and there is no compensation. They do not want the network to be reduced in scope or anything like that, but if it is they consider that they have a justified need for reimbursement unless Network Rail can find an alternative solution. Network Rail and ATOC may have welcomed the Bill but they are all effectively in the public sector anyway so they would welcome it as they would get compensation. However, I am afraid that the private sector does not feel that way.
Baroness Crawley: I shall write to the noble Viscount, Lord Astor, but I am assured by the officials that companies' contractual rights will be maintained. However, I am very happy to write to the noble Viscount in more detail on the specific point to which he referred.
I say to my noble friend Lord Berkeley that ATOC states in its press release:
"Train operators want to move to the new streamlined arrangements as quickly as possible which will make it easier for the whole rail industry to progress the many things which need to be done to continue the improvement in punctuality and customer service".
7.30 p.m.
Lord Berkeley: I think my noble friend is referring to ATOC members.
Baroness Crawley: Yes.
Lord Berkeley: Freight companies are not members of ATOC in that respect. I think that that is where the misunderstanding has occurred.
Baroness Crawley: I accept that. Both my noble friends Lord Berkeley and Lord Snape talked about the revenge of the Treasury. There is no hidden agenda for cuts—
Noble Lords: Oh!
Baroness Crawley: I repeat: there is no hidden agenda for cuts in the railways. Decisions by Ministers on what can be afforded and the implications of potential service reductions will always be difficult. The provisions in the Bill do not make it easier or more probable that there will be cuts in subsidy or service.
Regarding freight rights, the ORR has made clear—and a letter has been copied to my noble friend Lord Berkeley—that it will take account of compensation and litigation required in freight companies' contracts. With that, I hope that noble Lords will withdraw their objection to Clause 4.
Viscount Astor: The noble Baroness has gallantly stepped into the breach left by the noble Lord, Lord Davies, who has gone off to do more important things this evening. We are grateful for her further response and for her offer to write to me on some of the issues that she was not able to cover in full. I quite understand her difficulties. One matter on which I agree with her is that there is no hidden agenda by the Treasury. It is too obvious to hide.
Indemnities are an important issue and we need to consider that train operating companies are indemnified against actions for which they are not responsible that affect the track and their operating ability and capacity. We need to know whether that will be continued by those existing indemnities. Perhaps that is one of the issues that she can write to me about.
The difference in the response from the noble Baroness to an earlier response by the noble Lord, Lord Davies, was interesting. On page 93 of the Bill, new paragraph 1G(1) states:
"The Office of Rail Regulation must conduct an access charges review in the manner that it considers is most likely to secure that the implementation of the review will make the best and most practicable contribution to the achievement of … what the Secretary of State wants to be achieved by railway activities in Great Britain as a whole".
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It then moves on to Scotland. In other words, at one point the Secretary of State will have to put pen to paper and tell the Office of Rail Regulation what he wants. That is the very thing that, in an earlier amendment, we were asking him to publish. He is prepared to give it to the rail regulator, but not to us.
Can the noble Baroness write to me to say by what method the ORR will know what the Secretary of State wants? Will there be a nice cosy meeting, such as those that the noble Lord, Lord Marsh, had when he ran the railways? Will it be an interview without coffee, as they say in the City, when you know that you are not going to get very much? How will it work? Will it be a lengthy proposal? Will it be a series of negotiations? Will it be published? How will we know the criteria on which it will be judged? Those are issues that we need to understand more clearly before we move forward.
I am not asking for answers from the noble Baroness now; I am grateful for the response that she has given as far as she could give one. However, it would help if she could write to me on these issues, with copies to the Committee, before Report. That would give us a better understanding of how the interface will work. This is one of the crucial issues of the Bill. It is linked with publishing the Secretary of State's criterion for the future. The crucial issue facing the railway industry is defined by Clause 4 and Schedule 4.
I hope that noble Lords opposite who have supported me at least in principle will continue to do so in the future. Of course, they have rather good experience of being able to do so, after the great fights over dumping Clause 4. It may be something that they will find easier to do in the future. I am grateful to them for their support.
Lord Bradshaw: When the noble Baroness replies, will she let us know what the guidance will be? There are two sorts of guidance: there is a specific sort that says, "I want this much of that and that much of that", so that you actually know what they want, and then there is a vague sort that says, "So much money is to be cut, but you are not to cut any services", which will lead to a general decline. It is very difficult to cope with indemnities, which are actually very slight declines; they cause loss to your business but do not amount to real action.
Clause 4 agreed to.
Baroness Crawley: This may be a convenient moment—I hope it is—to adjourn until Thursday at 3.15 p.m.
The Deputy Chairman of Committees: The Committee stands adjourned until Thursday at 3.15 p.m.
The Committee adjourned at twenty-three minutes before eight o'clock.

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