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Mr. Cash: I am intrigued that new clause 12(1)(b), as drafted for the Government by parliamentary counsel, refers to "Chapter 4" while the 1993 Act contains "Chapter IV". The point may seem trivial, but can the Minister explain that? Chapter IV contains important provisions, and if amendments are being made to it in such a way, who is to say that they may not contain other similar mistakes?

Ms Keeble: I do not have the 1993 Act in front of me, but I shall ensure that that point is checked and give the hon. Gentleman an answer shortly.

Mr. Cash: On a point of order, Mr. Deputy Speaker. I am surprised to hear the Minister say that she does not have the 1993 Act in front of her. I do not want to make a meal of the point, but it is impossible for her to give the explanation that I have asked for unless she has the 1993 Act. Indeed, the Minister has not explained the point, except by a vague reference to reasonableness. We cannot

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possibly carry on trying to extract explanations from a Minister who does not have with her even the Act that she would amend.

Mr. Deputy Speaker (Sir Alan Haselhurst): The hon. Gentleman is experienced enough to know that that verges on the matters for debate and is not a point of order for me. I can recall, however, that we have managed, with greater disability, to debate matters in the past.

Ms Keeble: I am grateful, Mr. Deputy Speaker. If I had to have with me every piece of legislation to which the Bill refers, the Table would be entirely covered.

The hon. Member for Stone probably knows much better than I do the different arrangements made in different Acts for enfranchisement. I shall ensure that his point of detail is dealt with.

Amendment No. 35 is necessary to ensure that our proposals do not have unintended consequences. We want to ensure that it continues to be possible to request consent for the making of an application for the approval of an estate management scheme. With that explanation, I urge the House to support the Government new clause and amendment, and I ask those who tabled the new clause 4 and amendment No. 25 to withdraw them.

Mr. Cash rose

Mr. Deputy Speaker: Order. The hon. Gentleman cannot speak again.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Mr. Cash: On a point of order, Mr. Deputy Speaker. Having relatively recently come to the Front Bench, I wonder whether I might be able to speak on new clause stand part?

Mr. Deputy Speaker: The hon. Gentleman has been a Member of the House for long enough to appreciate that we do not have stand part debates on consideration. They are a feature only of deliberations in Committee.

Sue Doughty: Further to that point of order, Mr. Deputy Speaker. The Minister invited me to withdraw new clause 4. Should I be given the opportunity to respond to that request?

Mr. Deputy Speaker: No. What the Minister said was unnecessary. We were dealing with the lead new clause in the group—new clause 12—and new clause 4 fell when that was decided.

New Clause 13

Premises including railway track

'In section 4 of the 1993 Act (premises in the case of which right does not apply) insert at the end—
"(5) This Chapter does not apply to premises falling within section 3(1) if the freehold of the premises includes track of an operational railway; and for the purposes of this subsection—
(a) "track" includes any land or other property comprising the permanent way of a railway (whether or not it is also used for other purposes) and includes any bridge, tunnel, culvert, retaining wall or other structure used for the support of, or otherwise in connection with, track,

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(b) "operational" means not disused, and
(c) "railway" has the same meaning as in any provision of Part 1 of the Railways Act 1993 (c.43) for the purposes of which that term is stated to have its wider meaning.".'.—[Ms Keeble.]

Brought up, and read the First time.

Ms Keeble: I beg to move, That the clause be read a Second time.

I hope that this new clause will prove luckier than the last.

We have already had a long and detailed debate with many references to clauses and subsections. The aim of presenting new clauses is also to give hon. Members some idea of our general intent, and this new clause is intended to deal with a pressing and practical problem—what to do about railway tracks and properties.

It has recently been brought to our attention that the Leasehold Reform, Housing and Urban Development Act 1993 did not adequately provide for cases in which flats are built over a railway track, such as the case in which a block has been built on top of a bridge or tunnel under which the railway runs. Nothing in existing law prevents leaseholders living in such flats from buying their freeholds. Freeholders have the right to take out 999-year leases on the commercial parts of the building when leaseholders buy their freeholds, but there is reason to doubt whether that would apply to land over which a railway runs, as that does not form part of the block itself. That could clearly lead to serious difficulties.

The new exemption would prevent leaseholders from exercising their right to enfranchise if the freeholds that they would otherwise be entitled to buy would include land over which a railway track runs or where it would include structures used for the support of the railway. It would ensure that the right to enfranchise cannot be exercised under circumstances in which it could seriously hinder the continued operation of a railway. That is a practical amendment.

Mr. Cash: I have no doubt that the Minister regards the new clause as extremely important. On the face of it, it seems to cover many matters of considerable interest to those affected by chapter I of the 1993 Act. The new clause states:

However, section 4 of the Act refers to premises excluded from right.

8 pm

Why does the new clause not describe section 4 of the Act? It is certainly not the same description as the one in my copy of the Act. For some reason the words have been changed. "Premises excluded from right" is not the same as

That is extremely curious and no doubt the Minister will want to explain.

That is the second point that I have had to raise as regards the drafting. My points may seem trivial but there seems no reason for the changes. At the very least, the drafting is sloppy. That is not the way to legislate. It is extraordinary that although parliamentary counsel and the

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Department's solicitors must have been involved, we have ended up with no more than a semantic difference. That does not seem necessary.

We have not even received a minimal explanation of the new clause. The new clause provides that chapter I of the Act—headed "Collective Enfranchisement in Case of Tenants of Flats"—

That section is headed

but those words are not included in the new clause. That is an important point. The new clause states:

That is a new definition of "track" and it raises several questions. The sentence continues:

The words

are very curious, because they refer back to the attempt to define track at the beginning of sub-paragraph (a). It seems to me that those words need to be distinguished from the definition of "track" at the beginning. At best, that is a curious way to set out such an important provision.

Furthermore, the words

are not a self-contained definition, as


The word "other" is used twice and I am sure that the Minister will have heard that, as a matter of statutory interpretation, where the word "other" appears it has to be taken ejusdem generis with the other words.

There is thus a double problem. The first is that the word "track" is apparently defined as including "land or other property" and we do not know what that other property might be, because property ejusdem generis with land cannot refer to any property that is not land. The second problem involves the use of the word "track". It is used twice; it is defined in one case but not in the other.

That raises some serious questions. For example, to introduce a substantive issue, there might be a difficulty as regards the Railway Clauses Consolidation Act 1845. That Act contained rights of pre-emption with which I am extremely familiar, because for many years I had to examine such questions. The Act also contains provisions on surplus lands.

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The rights of pre-emption and the problems of surplus lands are extremely contentious. They are directly relevant to the new clause because it states that track

If, according to the law, those surplus lands are part of the permanent way of a railway, so be it. However, that may not be the case. The existing legislation gives rise to serious questions.

I was involved in the passage of the British Railways Act 1968 and we held some extremely difficult discussions with people who had acquired land and subsequently wanted to develop it to increase its value. That was an extremely contentious issue. Much of the problem turned on the question of whether the land was subject to rights of pre-emption or surplus land.

The railwayland developments were considered important because they increased the value of the property available to British Rail, but unfortunately they gave rise to a great deal of litigation. Under the rights of pre-emption and of surplus land, it became necessary to determine who owned the land, which introduced the difficult question of the limits of deviation. The railways were provided for under enactments going back to about 1830, and the question of who owns land, including the land within the limits of variation, is directly linked to the determination of what comprises the permanent way of a railway.

The new clause says:

That gives rise to a real problem. In the light of the 1845 provisions, it will be very hard to determine what comprises the track of an operational railway—defined as in the new clause—including

I do not pray in aid any special knowledge, other than to say that my great-great-grandfather founded the London-Brighton railway. No doubt, those involved had to pay well over the odds in the early 1830s in determining whether they would be able to acquire the land that they needed for the permanent way.

The permanent way can in fact go much wider than the track, within the limits of deviation, to take in land that has now become very valuable because properties have been built on it. Because in those days there was no land registration and no clear way of knowing what the limits of deviation were, other than looking at the maps and plans deposited in Parliament, it was hard for conveyancers to determine what was within the land management of the railway system. Properties built along railway lines could well fall within the estate management scheme in the Bill.

The new clause says that "operational" means "not disused". I do not know whether my hon. Friends are with me on this—

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