Lord Parkinson of Whitley Bay:

Moved by Lord Parkinson of Whitley Bay

126: After Clause 54, insert the following new Clause—“Chapter 4Industrial undertakingsRestriction on the employment of children in industrial undertakingsIn section 1 of the Employment of Women, Young Persons, and Children Act 1920 (restrictions on the employment of women, young persons, and children in industrial undertakings), at the end of subsection (1) insert “(but voluntary work on a heritage railway or heritage tramway is not employment in an industrial undertaking)”.”

My Lords, Amendment 126 stands in my name and the names of the noble Lords, Lord Faulkner of Worcester and Lord Palmer of Childs Hill, and the noble Earl, Lord Clancarty. The amendment is identical to one which the noble Lord, Lord Faulkner, and I proposed in Committee, although noble Lords may have noticed that we have swapped round: whereas he served as the driver in Committee and I took on the role of fireman, shovelling extra fuel into the firebox, we have now swapped places, and a more diligent and experienced secondman I could not hope for. We are very glad to have support from the Liberal Democrat Benches and the Cross Benches as well, from the noble Lord, Lord Palmer, and the noble Earl, Lord Clancarty. The Minister very kindly arranged a helpful meeting with us following the debate we had in Committee, and we are very grateful to him and to his officials, as well as to colleagues from the Health and Safety Executive and the Office of Rail and Road, for the time they gave us.

Our helpful discussion highlighted the very good relationship that the heritage railway sector has with its regulators. The Heritage Railway Association, for instance, works closely with the ORR to produce guidance and examples of best practice for its members across the country. As we set out in Committee, this is a sector that takes its responsibilities to its staff, its volunteers and its visitors very seriously, and which is scrupulous in following the Laws and regulations that govern it. That brings us to the problem that our amendment seeks to remedy. While there have been helpful assurances from the regulators that they would not rely on outdated legislation as the basis for a prosecution regarding the use of young volunteers, the statute book says otherwise, thanks to a law passed more than a century ago seeking to protect women and children in the decimated workforce that the country found in the aftermath of the First World War.

Let me briefly restate the problem. The Employment of Women, Young Persons, and Children Act 1920 makes it unlawful to employ young people under the age of 16 on the railways. That 1920 Act was passed more than 30 years before the first preserved railway started operation with the aid of volunteers, but by slightly confused extension through later legislation, the work the Act prohibits includes unpaid work by volunteers—far from what the original Act envisaged. This has had a chilling effect on the responsible law-abiding businesses and charitable organisations that look after this important part of our national heritage. So concerned were they that in 2015, the Heritage Railway Association sought counsel’s opinion, which confirmed that the 1920 Act remained in force and that it was unlawful to allow volunteers under 16 to undertake voluntary work on a heritage railway or tramway.

For the past decade, the noble Lord, Lord Faulkner, has been seeking to put that right. The Private Member’s Bill that he brought in during the last Parliament passed all its stages in your Lordships’ House without amendment, but was regrettably not taken up in Another place, so did not become law. It did, however, win some important and helpful reassurances from the regulators, but these do not have statutory force and do not cover the threat of civil action or of prosecution by other public authorities. I stress that nobody in the sector wants to be accused of misapplying the law. If the law is unclear, it is our duty to clarify it, rather than asking voluntary organisations to spend many hours and many thousands of pounds trying to disentangle the confusion that legislators have caused.

The amendment that the noble Lords and I have brought is deliberately very narrowly framed. It seeks to make it clear that voluntary work on a heritage railway or tramway is not to be considered

“employment in an industrial undertaking” for the purposes of the 1920 Act. It leaves that Act on the statute book. The Minister mentioned in Committee a case some 16 years ago in which the Act was used in connection with the illegal employment of a child in a factory. We can see its importance in such cases, but these are a world away from the volunteering that we want to encourage in young people in our heritage sector. The benefits of such volunteering are manifold. It helps young people to gain valuable experience and life skills, which will help them in their future employment. It brings people together across the generations and from diverse backgrounds to celebrate our shared heritage and to keep it alive for the benefit of future generations. It is an essential boost to the organisations that look after that shared heritage, which operate on very tight margins and in the face of many other challenges.

On Friday, I had the great pleasure of visiting, along with the noble Lord, Lord Hendy of Richmond Hill, the touring exhibition “Inspiration”, which is travelling the length and breadth of Britain by rail throughout this anniversary year, when we mark the bicentenary of the first passenger rail journey. Over two days at Waterloo this weekend alone, it welcomed more than 1,400 people, not just telling them the proud story of our industrial past but showing how they can get involved in the future of our railways, as coders, camera operators, ecologists, weather analysts and so much more, and how they can help to write the next exciting chapter of our railways. The exhibition in those carriages is brilliantly targeted at schoolchildren in school years 7 to 9—the time when they are choosing the subjects that will steer them towards their future careers. These are exactly the young people whose passion our heritage railways want to ignite, to help them in whatever direction life takes them.

The unintended consequence of this Act of Parliament, passed more than a century ago, stands in the way of unleashing that potential. The noble Lord, Lord Faulkner of Worcester, has campaigned long and hard for it to be remedied. I do hope that his noble friend the Minister is able to help do that today. I beg to move.

My Lords, I am very grateful to the noble Lord, Lord Parkinson of Whitley Bay, for making an excellent speech which I could very easily have made myself—there was nothing in it with which I disagreed. He rightly referred to the fact that he and I tabled an identical Amendment in Committee. We have come back tonight because this issue really has to be settled one way or another. I have previously declared my interest as president of the Heritage Railway Association. I should also say that I am the sponsor each year of an HRA award for young volunteers, to encourage a continued influx of young people to learn the skills and enjoy the satisfaction that working on a steam railway brings.

Last month, in my role as president of the HRA and co-chair of the All-Party Group on Heritage Rail, I was fortunate enough to take part in the 70th anniversary celebrations of the Ffestiniog Railway in north Wales, which was brilliantly organised and fitted in admirably with National Rail’s Railway 200 programme. It involved a cavalcade of every steam locomotive that the railway possesses, in procession on the Cob in Porthmadog, and it was a very fine tribute to the railway’s history and its contribution to the economy of north Wales. I met many young people who are keen to join the railway but are prevented from doing so because of their age, and I took the opportunity also to talk to older volunteers who are now part of the very successful team on the Ffestiniog. Almost without exception, those older volunteers started at ages as young as 13, back in the 1970s, in blissful ignorance of the Employment of Women, Young Persons, and Children Act 1920—an Act which, frankly, had disappeared from public consciousness. Indeed, many were involved in the hard physical labour of building the deviation that some of your Lordships may know, which allowed the railway to be carried above the waterline of a new reservoir to reach the northern terminus of Blaenau Ffestiniog.

As the noble Lord, Lord Parkinson, said, once the HRA received the wholly unwelcome advice that the 1920 Act had been interpreted to extend to under-16s and included volunteering as well as paid work, things changed. The safety regulators have made it clear that they would not prosecute under the 1920 Act and would maintain safety and safeguarding under more recent and appropriate legislation; but if that is so, I have to ask why this anachronistic legislation is still on the statute book.

I am most grateful to the Minister, my noble friend Lord Katz, for the discussions he initiated with the noble Lord, Lord Parkinson, and me on this, and I know how sympathetic he is to the points we have been making. I understand that the possibility of further guidance from the safety regulators remains, but that guidance must be reinforced by statutory force, because while the 1920 Act is in force, responsible Heritage Railway managers will not wish to break it. Even if the ORR would not prosecute, what is to stop a local authority or a parent doing so? It is time to make things clear and simple by removing this outdated restriction that is holding heritage railways back from encouraging the next generation, preventing them enjoying the opportunities that so many leading figures in the railway heritage movement had as youngsters.

My Lords, I will be exceedingly brief. I put my name to this Amendment in the spirit of support for our heritage, of which our heritage railways are a significant part. We need to do everything we can to allow young people who wish to do so to work as volunteers in this area. I hope that the Government will look favourably on this amendment.

My Lords, I have played no part in this Bill, but I have come in especially for this Amendment—although I voted on an earlier one. However, my elder brother was a passionate railway supporter, and he would have been horrified if he had realised that any support that he could give would have been illegal. Respectfully, it is no use the Minister saying that guidance shows that they will not prosecute. The fact is that the law forbids it. Speaking as a former lawyer, if the law forbids it, no respectable organisation should allow it to go forward.

It does not matter that the advice is that you will not be prosecuted. If, in the future, a 13 year-old is a passionate supporter and a different member of the organisation who looks after this says, “We must prosecute”, the fact that they have been told they would not be prosecuted would not be the slightest defence in a court of law. This is the important thing. It is anachronistic, as has been said, and it is time it was changed. I hope the Minister is not going to offer the bromide that it does not matter because it will not happen. The law has to be obeyed, and we cannot have government departments saying that you can shut your eyes to a piece of law.

My Lords, I support this Amendment wholeheartedly. I have attended many meetings of the heritage rail group, and I congratulate my noble friend on the way he has taken it forward.

One thing we have not mentioned is the quite regular reports from members who run the small railways about the fear of breaking the law and the effect it could have if there are legal cases and they run out of money. Most of them are very short of money, and they rely on as much voluntary work as they possibly can. The thought of being taken to court—whether it is by the regulator, which is unlikely, as my noble friend says, or others—really puts them off welcoming younger people. It is the fear of legal action against a voluntary organisation which is the most serious part of this debate.

My Lords, the incredible thing about this Amendment is that it has signatures and support from the Conservative Benches, the Labour Benches, the Liberal Democrat Benches and the Cross Benches. It is something the Government should take into account. It is not some weird idea from one part of this House, it is across the House. I applaud the initiative which started with my old friend, the noble Lord, Lord Faulkner—if he would allow me to say that. The principle here is to try to stop unintended consequences. The law is as it is, and it cannot be ignored. We have an opportunity to tweak the employment rights legislation to put that right.

We are dealing with young people who are doing voluntary work on the railways. There was an incredible programme on television recently—which I referred to in a previous speech—where the young people were doing all the jobs on this heritage railway, except running the engine, which was dangerous and they were not allowed to do; they were the porters, the inspectors, et cetera. We all gain from it: the young people gain from it and the community gains from it. However, there is a possibility that someone could be prosecuted because the law says what it does.

We are not talking about one small heritage railway. As the noble Lord, Lord Faulkner, said, there are many; he mentioned the Ffestiniog Railway—if I pronounced that correctly. There is also the North Yorkshire Moors Railway, the Bluebell Railway, the West Somerset Railway, the Middleton Railway, the Spa Valley Railway, and many others. There is a long list.

This is a very understated thing. People have asked me why I signed the amendment from the noble Lords, Lord Faulkner and Lord Parkinson; I told them it was because we are dealing with real matters of the moment in the employment rights legislation. This is an opportunity to put right a small error in history. I invite everybody, if we go to a vote, to support this.

My Lords, I rise briefly to support my noble friend Lord Parkinson of Whitley Bay’s Amendment, supported as it has been by very effective speeches from the noble Lords, Lord Faulkner of Worcester, Lord Berkeley and Lord Palmer of Childs Hill, the noble Earl, Lord Clancarty, and the noble and learned Baroness, Lady Butler-Sloss.

It is a sensible measure that recognises the value of voluntary work on heritage railways and tramways, especially for young people. The current statutory framework treats such activity as though it were employment in a heavy industrial setting, when in reality it is community-based, educational and often intergenerational. These are voluntary efforts undertaken not for profit but for preservation, learning and public enjoyment. To continue to classify this as if it were unsafe or exploitive is to misunderstand both the activity and its value. This amendment corrects that without undermining the original protections of the 1920 Act. My noble friends deserve support, and I hope the Government are about to respond positively.

My Lords, it was going so well, then it hit the buffers. I am trying to make that not the last of the rail-related jokes—noble Lords will note the groans from behind me. I thank noble Lords for a stimulating debate—as we had in Committee—and, as several speakers have pointed out, it was a debate on a subject that inspires support from across the House, which is fairly unique in this piece of legislation. It is good to see and is obviously because so many in your Lordships’ House—like those in the rest of the country—enjoy and revel in our industrial heritage, as seen through heritage railways.

I thank the noble Lord, Lord Parkinson of Whitley Bay, for bringing the Amendment back for further discussion. I think it was the noble Lord himself who outed me as a bit of a rail nerd in Committee, so noble Lords will know that heritage railways is an issue I am familiar with and fully support. It is an issue close to many hearts here in your Lordships’ house and it is great to see the interest we saw in the impassioned debate—it says here, and I agree—repeated here on Report.

In addition to the noble Lord, Lord Parkinson of Whitley Bay, I thank my noble friends Lord Faulkner of Worcester and Lord Berkeley, the noble Lord, Lord Palmer of Childs Hill, and the noble Earl, Lord Clancarty. I particularly thank the noble and learned Baroness, Lady Butler-Sloss, for making a little detour from her usual route to call by our station here tonight.

The UK heritage rail sector encompasses more than 170 operational railways, running trains over nearly 600 miles of track and operating between some 460 stations. It creates jobs and greatly supports local economies. I pay tribute to all those who run and maintain those railways; they not only preserve our heritage but contribute greatly to their local tourist economies. I mention this because it is notwithstanding the issues identified by this amendment.

The heritage railways are incredibly successful; they go from strength to strength, notwithstanding the issue the amendment raises about the Heritage Railway Association’s concerns. The benefits to all volunteers cannot be overestimated. However, as many speakers have said, it is particularly good for young people, and I wholeheartedly support efforts to encourage young people to take advantage of the volunteering opportunities that heritage railways offer, with their emphasis on teamwork, communication and helping to bring science and engineering topics to life.

It is vital that any work or volunteering is carried out safely and should be appropriate to the age and experience of the volunteer. It is also important to recognise that additional measures, such as effective supervision, need to be in place for young people, particularly those aged 14 to 16. Health and safety law requires heritage railway operators to protect a young person’s health and safety, taking account of their age, lack of experience and levels of maturity. Of course, not all work is suitable for young people; dangerous or high-risk work activities should not be carried out. Health and safety risk assessments help heritage railway operators to determine what work activity should be carried out and how to make sure it is done safely. After all, we want to preserve and revive heritage railways, not heritage employment practices. While the Health and Safety Executive and the Office of Rail and Road provide general guidance, it is for the Heritage Railway Association to support its operators with detailed guidance about suitable activities for young people.

Now over a century old, the 1920 Act is intended to protect young people from working in dangerous or high-risk industrial settings. To accept the noble Lord’s amendment, which exempts only heritage railways as an industrial setting, would not remove all the employment restrictions for young people. There are many other pieces of legislation and local authority by-Laws that interact with, or depend on, the 1920 Act. The Children and Young Persons Act 1933 prohibits child employment under the age of 14 and restricts any work to “light work”. The Children and Young Persons (Scotland) Act 1937 and the Children and Young Persons Act (Northern Ireland) 1967 make similar provisions.

In addition, there are nearly 400 local authorities and councils throughout the United Kingdom and each one may make individual by-laws in relation to employment of children over the age of 13. In most cases, councils have a common approach, prohibiting a variety of roles, such as delivering milk or working in a commercial kitchen or licensed betting shop. However, there can be differences. An example can be seen in two neighbouring councils, Liverpool City Council and Sefton Borough Council, in which employment as an assistant in a fairground amusement arcade is specifically listed as prohibited in one, whereas, in the other council, it is not.

I raise this simply to point out that there is a very complex landscape at play and dealing with simply the 1920 Act will not necessarily be a cure-all. To resolve all this will need a thorough cross-government review and it will have to be fully considered in the case of any impact this amendment would unintentionally or inadvertently have on the legislative framework for the protection of children from unsuitable work. In order to ensure that there are no undesirable or unintended consequences, any power would need to be a wide Henry VIII power to allow at least the 1933 Act, and its equivalents in Scotland and Northern Ireland, to be amended, together with any by-laws that had been made by local authorities—otherwise, the other effects of the substantive provisions that remain in the 1933 Act would continue.

There is some misunderstanding that the 1920 Act makes it wholly unlawful for young people to volunteer on heritage railways or tramways. While it prevents young people undertaking higher-risk work, such as railway construction or maintenance activities, it does not preclude them from all volunteering roles within a heritage railway. To be clear, the 1920 Act does not prevent young people volunteering if they are carrying out appropriate activities.

As the noble Lord, Lord Parkinson of Whitley Bay, said, the Office of Rail and Road already works with the Heritage Railway Association to make sure that effective health and safety risk assessments are in place. They behave responsibly and it is fair to say that this amendment comes from a place of good stewardship and good intention on their part. In fact, I understand there are already many heritage railways that are excellent examples of running youth volunteer schemes very successfully. Last year, the Talyllyn railway in north Wales won the Heritage Railway Association team of the year award for its work with families and young volunteers. The volunteers are known as “Tracksiders” and work in supervised groups on projects such as painting, fencing, clearing undergrowth, building and maintaining footpaths and supporting events held on the railway.

Tracksiders are not involved in the operating of any trains or higher-risk workshop activities, and they all have regular safety briefings. Talyllyn also has a development scheme aimed at 14 to 16 year-olds, in preparation for when they can carry out more difficult tasks. The scheme includes training on preparing a steam locomotive and passenger carriages, being taught how to light up an engine, learning the route, signals and personal track safety. Another good example is the Sygnets youth volunteering group at Swanage railway. Established in 1997, this group has seen generations of young volunteers gain valuable skills and experience. In other words, the existence of the 1920 Act has not in the past—and, I hazard, will not in the future—prevent such schemes being run in the heritage railways sector.

This is not a new issue and I know my noble friend Lord Faulkner has championed this for a number of years, particularly through proposing Private Members’ Bills on a number of occasions to repeal or amend the 1920 Act. The last time, in 2022, the Bill received much support from this House and, although it did not progress further, there was a commitment from the Government to support the Heritage Railway Association in refreshing its guidance. Despite that offer being made, as far as we can tell, the Heritage Railway Association has not yet taken it up.

Although there is strong dialogue between the Heritage Railway Association and the regulators, let me be clear to your Lordships’ House that the Office of Rail and Road and the Health and Safety Executive remain willing to support the Heritage Railway Association and help heritage railway operators fully understand the risk assessment process and what activities are suitable for young people. I reiterate that I believe this is the best way to resolve the matter before trying to unravel the complex and long-standing legislation. Our position remains fully in support of volunteering on heritage railways and of growing the sector, but we are respectfully of the view that this amendment is not necessary—so I ask the noble Lord to withdraw Amendment 126.

My Lords, I am very grateful to all noble Lords who spoke in this short but important debate, particularly to the noble and learned Baroness, Lady Butler-Sloss, who spoke with great clarity and authority about the legal problem that we are trying to fix. No responsible director or trustee wants to be put in the position of breaking the law, even if regulators or Ministers say that they will look the other way.

The Minister shares the passion of all noble Lords who spoke for the heritage rail sector. We saw that in our helpful meeting and in the first part of his speech today. He suggested in his closing remarks that it is for organisations such as the Heritage Railway Association to do the work: provide the guidance, take the risk and tell their members what to do. But the statutory problem remains. I stress that the Heritage Railway Association has a very good working relationship with the regulators. They have met since the letter that the Minister mentioned and they provide guidance. However, leaving this untidy situation on the statute book leaves them open to risk by civil action and prosecution by other local authorities, and in the invidious position of having to break the law, or appear to do so.

The Minister rightly mentioned other pieces of legislation which it may be important to look at, and said that we need a thorough cross-government review. This problem has been looked at for a decade by the noble Lord, Lord Faulkner, the Heritage Railway Association and others, and there have been efforts to get that thorough cross-government review—under successive Governments, I admit. So I suggest that we put the noble Lord’s very modest Amendment in the Bill and seek to expedite that work. I know that, with his great interest and passion in this area, the Minister can help us reach a happy solution. However, it is important that we get started and I would like to test the opinion of the House on this matter.

Ayes 216, Noes 143.

Amendment 126 agreed.

Consideration on Report adjourned until not before 8.28 pm.