Railways and Transport Safety Bill

Public Bill Committee, 27 February 2003.

Standing Committee D

Clause 65 - Offences

Anne McIntosh (Conservative, Vale of York)

It is a great pleasure to see members of the Committee reassembled, and I welcome you back to the Chair, Mr. Hood.

The Police Act 1996 has been on the statute book for some considerable time, and I wish to put some questions to the Minister of State. He will agree that the Bill and the 1996 Act apply to offences against police officers, but do they also relate to a person who comes to the aid of a police officer, or is that covered by a separate offence? We obviously want to encourage civilians to assist the British Transport police in cases of hot pursuit.

The 1996 Act deals with a person who assaults a policeman in the exercise of his duty or, indeed, a person who assists a constable, so the answer is already there and we can move on. A person found guilty of an offence in that case shall be liable on conviction to a term of six months or more. That serious offence has been on the statute book since 1964.

Have any incidents relating to the British Transport police been a cause of concern? That is especially important in view of the new powers given to the British Transport police by the Anti-Terrorism, Crime and Security Act 2001 and the increasing security problems that our country faces.

Other provisions relate to the equally serious crime of impersonation of a police officer. Under section 90(1) of the 1996 Act:

''Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence''.

Clause 65 of the Bill refers to section 90 of the 1996 Act, which raises the question why special constables are not specifically mentioned. One would hope that the offence of an assault on a constable or any person assisting or seeking to assist a constable would by definition include special constables and cadets in the British Transport police. Now is a good opportunity to ask about that.

How many offences have there been against the British Transport police in respect of impersonating and assaulting a police officer in performance of his duty? Clearly, sections 89 and 90 of the 1996 Act also take effect in Scotland. It would be interesting to hear a breakdown of the incidence of those two offences

against British Transport police officers to see whether it is higher or lower in Scotland than in England and Wales.

The clause appears straightforward. I hope that wasting police time will also be regarded as an offence. Are the offences the same as in the 1996 Act, or are they by implication to be read through the clause? We support the clause, but we should be interested to know the incidence of the offences and the implications of the new police powers under the 2001 Act. In particular, we should like to know why the special constables are referred to in section 90 of the 1996 Act but not in section 89.

John Spellar (Labour, Warley)

The purpose of the clause is to harmonise procedures wherever possible. Under the Police Act 1996, which extends only to England and Wales, it is an offence to impersonate or to assault a police constable. The clause confirms that it is an offence to assault both full-time and special British Transport police constables, and that that is the case in England and Wales and in Scotland. The hon. Member for Vale of York (Miss McIntosh) asked how many assaults resulted in cases for British Police constables. There were 260 cases in 2000–01 and 258 in 2001–02. In Scotland, there were 49 cases in 2000–01 and 49 in 2001–02. Fortunately, the numbers are not rising but they are still far too high. Obviously we deplore that and are taking whatever action we can to reduce them.

The offence of impersonating a constable was extended to the British Transport police by the Anti-terrorism, Crime and Security Act 2001. The clause confirms that it is an offence to impersonate a British Transport police officer and that that is the case throughout Great Britain, as opposed to just in England and Wales. The hon. Lady rightly points out that the clause is slightly narrower than section 89 of the Police Act 1996 in that it does not make it an offence to assault a person assisting a British Transport police constable, although the offence of assault would still apply. I do not know whether the hon. Lady wants to press the matter. We may need to give it further consideration.

Anne McIntosh (Conservative, Vale of York)

I am grateful to the Minister for those helpful comments. My concern is that we must take this opportunity to give the British Transport police the powers and the confidence that they need to do their job. Perhaps not making the offence a similar one is simply a drafting error. As someone who is not terribly large, I would be put off going to the assistance of a British Police constable if I knew that the would-be assailant could be prosecuted for assaulting a British Transport police constable but not for assaulting me. We will wish to return to this matter. Will the Minister tell us the philosophy behind the proposal? Has there been a deliberate omission or merely a drafting error?

I am confused about why the offence in clause 89 relates only to England and Wales, when a similar offence pertains in Scotland for regular constables. I hope that the Bill will contain an offence of assault on a constable of the British Transport police in the execution of his duty, with the corollary that there

should be a similar offence in respect of anyone coming to the assistance of that constable in Scotland, too.

I am told that mens rea—the mental element required to prove that a person was wilfully and deliberately committing an offence, which goes to the heart of a successful prosecution—applies in clause 89 and, presumably, in clause 90, too.

On the matter of football offences, the Liberal Democrats are wedded to vandalism, but we want to consider hooliganism in connection with football matches. In view of the figures that the Minister quoted earlier, it could be difficult to prove mens rea in the case of a football supporter—I hesitate to say a drunken supporter—who has had more than a few alcoholic drinks on the day of a football match. Nevertheless, we are told that the accused's reasonable and honest ignorance of a constable's status will entitle acquittal, which would put the constable in a difficult position.

Were the figures quoted by the Minister for offences committed or for those that were successfully prosecuted? It would be in our interests to take this opportunity to tighten up the provisions and remove the need for mens rea.

I listened with great care to the Minister but did not hear him say that special constables are included in section 89 of the 1996 Act and, by implication, in clause 65. The section does not refer to special constables. However, section 90 of the 1996 Act refers to the impersonation of a member of the police force or a special constable.

I appreciate that in most circumstances British Transport police are not issued with a firearm, but by virtue of firearm legislation, it is an offence for a person to make, or to attempt to make, any use of a firearm or imitation firearm with intent to resist or prevent the lawful arrest or detention of himself or another. Although it is not in the Bill, I hope that it will continue by implication to be an offence.

We have not considered the offence of corruptly offering or agreeing to give any inducement or reward to a constable for doing or forbearing to do any act or showing or forbearing to favour or disfavour any person in connection with the discharge of the constable's responsibilities, or the knowingly giving of any receipt or other document containing a statement that is false or any material particular to a constable with the intent to deceive, which is likely to constitute an offence. Hon. Members will be aware that that offence dates back to the Prevention of Corruption Act 1906. Will the Minister confirm that it will continue to be an offence under the new provisions? Is there an omission or a drafting error? I would prefer the provision to extend to specials.

There was also a specific reference to Scotland. Section 89(3) of the 1996 Act states:

''This section also applies to a constable who is a member of a police force maintained in Scotland or Northern Ireland when he is executing a warrant, or otherwise acting in England or Wales, by

virtue of any enactment conferring powers on him in England and Wales.''

Why does it not state that that section applies in Scotland? Is there a separate Act for Scotland? I cannot find one.

Have the Government given any thought to removing the need for mens rea? I believe that it weakens the offence whereby reasonable and honest ignorance of the constable's status on the part of the accused will entitle him to acquittal. To put it crudely, if an offender is blind drunk and says that he thought that he was assaulting a hospital porter, that might lead to a separate charge of a common or other assault under a different statute, but it should not lead to acquittal under the new provisions. I hope that the Government might seek to reverse that.

John Spellar (Labour, Warley)

If we have much more of this, the hon. Member for Westbury (Dr. Murrison) will not only be awaiting his call-up papers to go to the middle east, but will be nipping down to Portsmouth to demand to be admitted.

The question of football supporters is a touchy one for Liberal Democrats. The hon. Member for Bath (Mr. Foster) will recall that one of his colleagues lost his seat by falling out with football supporters who ran a fringe candidate whose votes exceeded the majority of the successful Conservative Member.

Don Foster (Liberal Democrat, Bath)

Just so that the Minister's information is totally up to date, may I tell him that the said gentleman is currently my agent.

John Spellar (Labour, Warley)

It can only go downhill from there.

Anne McIntosh (Conservative, Vale of York)

That may be why the Liberal Democrats prefer to focus more on vandalism than hooliganism.

John Spellar (Labour, Warley)

I cannot possibly comment on the motivation of Liberal Democrats.

I shall clarify several points raised by the hon. Member for Vale of York, which she could have ascertained for herself from reading the Bill. On the Bill's application to Scotland, I refer the hon. Lady to clause 65(3), which states:

''In their application in relation to the Police Force by virtue of this section, sections 89 and 90 of that Act shall have effect throughout England and Wales and Scotland.''

On special constables, clause 24(5), which we already discussed, states that ''constable'' includes special constables. That ensures that they are covered.

I can also inform the hon. Lady that the British Transport police will continue to be covered by existing offences that apply to the force, such as bribery and firearms. She asked about the figures that I gave on assaults. I understand that those are the figures for offences committed.

I also understand that mens rea—the mental element—does not extend to whether someone knew that the person was a constable. What matters is the fact that the person is a constable. Having indicated to the hon. Lady that we will consider the question of assault on a person assisting a constable, I commend the clause to the Committee.

Anne McIntosh (Conservative, Vale of York)

That is all very interesting—particularly what we learned about the Liberal Democrat agent, although I will leave that point with the hon. Member for Bath.

I specifically asked whether there had been a drafting error, and the Minister has been good enough to say that the Government will return to that. However, as the Government have already tabled a number of amendments, they had the opportunity to table an amendment on that issue. We would like to see a reference to assault on a person assisting a constable included in the Bill, and will consider returning to the matter later.

I heard what the Minister said about special constables. However, whereas section 90 of the Police Act 1996 refers to a police constable and a special constable for the purpose of the offence of impersonation, section 89 does not specify that a special constable is also included. I am trying to be helpful to the Minister, because I believe that any bright lawyer would be able to poke a number of holes in the Bill, because of earlier references to a special constable. If the Government are satisfied with the drafting and want to put it to the test in the courts, then so be it. However, this might have been an opportunity for the Government to clarify that.

I understand what the Minister said about mens rea, but we in the 1981 case of Annan v. Tait in the Scottish courts—I am sure that there has been a similar case in the English courts—it was said that

''a reasonable and honest belief in the ignorance of the constable's status as a constable by the accused will entitle an acquittal.''

I believe that that weakens the whole purpose of the provision on assault. As I said at the outset, we should at the earliest opportunity include a reference to anyone coming to help a British Transport police constable or a special constable in the course of their duties.

Question put and agreed to.

Clause 65 ordered to stand part of the Bill.

Jimmy Hood (Labour, Clydesdale)

Order. May I remind members that the knife falls at 11.25 am today in respect of new clauses and new schedules relating to part 3?Clause 66 Part III of the Road Traffic Offenders Act 1988 (c. 53)

Clause 66 - Part III of the Road Traffic Offenders Act 1988 (c. 53)

Anne McIntosh (Conservative, Vale of York)

How do the responsibilities of the British Transport police relate to the Road Traffic Offenders Act 1988? I would have thought that the main responsibilities of the British Transport police related to railways and the underground.

John Spellar (Labour, Warley)

The provision is primarily to enable the British Transport police to deal more effectively with routine motoring offences, and particularly those committed at level crossings.

Anne McIntosh (Conservative, Vale of York)

That is helpful. That raises the question of what proportion of their time the British

Transport police spend on traffic duties and what proportion on general duties. Obviously the imposition of fines on people at level crossings falls rightfully within their purview. I could imagine a situation in which they might be asked, if they were close to the scene of an incident, to assist the regular traffic police. What proportion of their time does that involve?

Incidentally, I was delighted to find in the Library that Wilkinson is still the authority on road traffic offences. It has been the leading authority for some considerable time. I simply want to use this little debate to ask not only about the interrelationship with level crossings, but about the role of the British Transport police in wider traffic duties and the proportion of its time that it spends on such duties.

John Spellar (Labour, Warley)

That does not take a great part of the British Transport police's time, but the BTP is concerned about level crossings and, in particular, deterring motorists from committing offences. In 2001–02, there were 27 recorded train incidents at level crossings and three fatalities when trains struck road vehicles. There are some 8,100 level crossings on the national rail network, and 725 of them are in Scotland.

In early 2000, Network Rail in Scotland, together with the BTP, introduced red light enforcement cameras at eight level crossings. One crossing camera alone was activated 1,191 times in the 15 months after it was installed. Some 83 per cent. of camera activations have resulted in prosecutions. The good news is that there has been a rapid decrease in the initially high figure for the number of activations at that site. Other areas in the vicinity of stations are also covered by cameras.

The prime purpose of the clause is to enable the BTP and to regularise its position with regard to the level crossings that provide the interface between the road network and the rail network, for which the BTP is responsible.

Anne McIntosh (Conservative, Vale of York)

That was a staggeringly high number. The Minister used the expression ''in the vicinity of ''. My understanding was that that was used generally, so we tried to write it into the Bill, but the Government were not minded to allow that. Is the Minister saying that by implication there is a common law acceptance that ''in the vicinity of'' will remain?

The Selby rail crash involved a huge amount of police resources from the North Yorkshire force. In that incident, a Land Rover came off the road at a bridge and crashed on to the line in the path of an oncoming train, causing devastation. I understand that for the most part it was the regular North Yorkshire police who were involved in the investigation, but I should have thought that there was a specific call to involve the British Transport police as well.

What is the relationship between two forces in such circumstances? Am I correct in assuming that the local force would take the lead in bringing a prosecution? That is slightly bizarre, because although the Selby incident involved a road vehicle, the devastation was caused on the rail track. Obviously, it was a train on

the track that caused all the fatalities and the huge number of injuries. I imagine that that would have been an opportunity for the British Transport police to take the lead. In normal circumstances, what would be the relationship between the British Transport police and the local police?

John Spellar (Labour, Warley)

The British Transport police co-operated fully with the North Yorkshire police in the investigation of the Selby accident. That shows the very good general relationship between county forces and the BTP, and particularly the relationship in regard to road accidents.

Question put and agreed to.

Clause 66 ordered to stand part of the Bill.

Clause 67 - International assistance

Anne McIntosh (Conservative, Vale of York)

Under the clause, the authority is given a discretionary power to provide advice or assistance or to arrange for the British Transport police to provide advice or assistance to a body that has responsibilities in relation to the policing of a railway outside Great Britain. We discussed the policing of Eurotunnel. I wondered in the event of a major incident whether they would be seconded as provided for under clause 67(2) or whether they would be invited to assist for a short time.

My understanding is that secondment would be for a matter of months; three months, six months or more. But if there were a major incident—God forbid—in Eurotunnel—[Interruption.] I keep saying Eurotunnel, but I mean the channel tunnel. Having shares in Eurotunnel, one grows blinkered and hopes that it will do better, although it has done quite well recently.

I refer to the British Transport police being called to help with an incident in the channel tunnel. Would that be for a short period of time or for a longer period, such as a secondment? If it were a secondment, would British Transport police officers continue to be paid out of their funds or would they be paid by those to whom they were seconded?

Since the treaty on European Union was signed at Maastricht in February 1992, with the close co-operation of European member states on justice and home affairs, there is now much greater provision for police to co-operate with each other. That is done formally through the EU-wide system of exchanging information within the European Police Office, known as Europol. I am not completely up to date on this point; will the Minister say where Europol's office is based? I thought it was going to have an office in Strasbourg, but I am not sure whether that came about and whether we have reached the right stage in the Bill for me to ask.

As it is now 11 years since that co-operation agreement was signed in the treaty of European Union, it would be of great assistance to us to know

the extent to which we are formally co-operating. The TREVI group was the forerunner of Europol.

When I was a Member of the European Parliament I invited a group of Essex police officers to Brussels for a briefing from the internal officers of the Commission. I am playing for time to help the Minister find the information I asked for. Among the officers was a very nice gentleman, the head of the Criminal Investigation Department in the Essex force, whose name was Mr. Crook—obviously, it was easy to remember. To my chagrin—it was the first time it had ever happened—he had his rather nice Italian raincoat stolen while we were in the restaurant of the European Parliament building. They went on a tour to see the red light district of Brussels, on which I accompanied them out of my own interest. They then went on to the red light district of Holland to see how the different—

Jimmy Hood (Labour, Clydesdale)

Order. I am being generous to the hon. Lady, but must remind her to return to the clause stand part debate.

Anne McIntosh (Conservative, Vale of York)

That brings me right back to saying that if the TREVI group was the forerunner and if Europol now exists, I need to know where its office is, when it was set up, what is the existing relationship of the British Transport police to Europol and what it is intended to be under clause 67. I am aware that there are vice squads in other national police forces elsewhere in the European Union. The Opposition side of the Committee would also be interested to know whether Europol co-operates with the equivalent of the British Transport police. How many other European countries have special police forces?

I understand that member states are under a duty to co-ordinate action by collaborating through relevant Departments—presumably the Home Office and the Department for Transport. Will the Minister confirm that, for the purposes of clause 67, the Secretary of State for Transport is responsible for co-ordination? Will the co-operation envisaged in the clause take the form of emergency scenarios, such as the resilience policy developed by the civil contingencies secretariat in the Cabinet Office? It would be useful to have annually or every second year some such incident—and perhaps you, Mr. Hood, could be the VIP to volunteer. Is that the sort of co-operation envisaged?

Will the Minister confirm that member states agreed to examine measures designed to enhance co-operation and, if so, what specific measures? I understand that providing support for national criminal investigations, the creation of databases, the development of central analysis, the assessment of information, the furthering of training and research, forensic matters and criminal records are all envisaged. To what extent is it already happening and to what extent will the clause develop it further?

Will the Minister explain the position regarding hot pursuit? If the British Transport police are chasing a person accused of a serious crime and that person boards a Eurostar train or a car travelling through the Channel tunnel to another EU country, does the clause grant the police the right to hot pursuit under the Maastricht treaty, or would they have to cease

their jurisdiction and rely on other forces? I had hoped that Europol's provisions and those of the Maastricht treaty would allow hot pursuit. Equally, what is the corollary responsibility of the British Transport police's equivalent? Will French police come in hot pursuit of their accused in the other direction or the Belgian police board a ferry to come over here? Will the Minister clarify how far the co-operation already in force under the Maastricht treaty will be furthered by clause 67?

The most alarming development for policing with the greatest potential negative impact is the European convention on human rights. That convention was written into the Human Rights Act 1998, so it would be interesting to know how often evidence has been prevented from coming before the courts or the privacy of an individual prevented from being invaded. Do the Government envisage pooling their collective knowledge and experience under the European convention on human rights? Could it have a negative impact on policing with their European counterparts? I understand that the arrest or detention of individuals is regulated by article 5 of the convention, although that does not affect short periods of detention in order to permit the questioning of suspects, which do not fall within the scope of the guarantee in that article.

The Minister might like to comment on the fact that for deprivation of liberty to be lawful, it must be prescribed by domestic law, which it now is, and to fall in one of the six categories listed. We have serious reservations about the impact of the Human Rights Act on policing in this country. Has the Minister had any opportunity to discuss with his ministerial counterparts the impact that that Act will have on the British Transport police? That knowledge would be most useful if, for example, other police forces or an inspector of an equivalent investigative branch are prevented from entering a private dwelling of an individual to take evidence. It would be interesting to know how often article 5 has been used in this country and in others.

We broadly welcome the opportunities to provide international assistance, but want to know how the clause can facilitate that and to hear how wedded the Government are to that concept, given that it is 13 years since the Maastricht treaty came into effect. We also want to record our concern that the implications of article 5 could have a negative impact on policing. Has the police's mind been put at rest by talking to their opposite numbers in other European countries?

John Spellar (Labour, Warley)

I wondered when the Conservative Opposition would get around to discussing Europe. One can take a Member out of Europe, but one cannot take Europe out of the Member. The hon. Lady's remarks were all very interesting, but have nothing to do with the clause, which relates to the ability of the British Transport police to provide advice and assistance to a body that has responsibilities for the policing of the railway outside the United Kingdom. It provides the mechanism by which that can happen, and deals with the funding that relates to that. The Police Act 1996, to which we continually refer, also

allows Home Office police forces to provide assistance to overseas police forces. As hon. Members will know, that advice and assistance is usually co-ordinated by the Foreign Office when nations are in urgent need of them. In a previous incarnation as the Minister for the Armed Forces, I worked with the Ministry of Defence police and several other police forces to help to stabilise the situation in Kosovo. Central Government funding is often available in certain circumstances.

John Randall (Conservative, Uxbridge)

The Minister referred to a railway outside the UK. I notice that the clause says ''Great Britain''. Is there a legal difference, or is it just a nicety?

John Spellar (Labour, Warley)

It is a nicety. As the hon. Gentleman knows, the provisions do not apply in Northern Ireland.

The funding of seconded BTP officers will be a matter for the BTP authority and receiving police force. Subsection (2)(b) allows for payment arrangements as agreed. The hon. Lady made a sensible point about whether an immediate incident in the channel tunnel would involve secondment. It would not, but it might well be sensible to have a secondment for a longer term investigation after the appropriate bodies that govern the channel tunnel had decided on jurisdiction.

On the other matters raised about extradition, hot pursuit and so on, the general provisions that apply to all police forces will apply. Nothing in the clause changes that; it deals only with administrative arrangements to provide welcome assistance to other police forces when required.

Anne McIntosh (Conservative, Vale of York)

That is all very interesting, but the Minister's dismissal of my points is not a proper reflection of his ability. If he and his Department do not know where Europol is based, why does he not admit that? That question clearly relates to international assistance. An international co-operation agreement was signed under the 1992 Maastricht treaty, and it is proper for us to question the Minister about that. If he were humble and honest enough to say that he does not know but that he will drop me a line for my interest, that would be fine. However, it is wrong to dismiss the point as irrelevant when it is clearly relevant. The legal base for the co-operation has moved on. As I explained, the United Kingdom will be under a duty, and the Minister may be the lead Minister. We want to know how many other European countries have transport police forces with which it would be in our interests to liaise. Is Europol up and running and if not, why not? Is that because the British Government will not co-operate or provide the resources to do its job? We demand an answer.

The Minister referred to the application of the clause. It seems to involve the railway police outside Great Britain, so does that include Northern Ireland? What is the relationship of clause 67 with Northern Ireland? I omitted to ask that earlier in my excitement about the theme. Furthermore, will the discretionary power have to be approved by an affirmative consent of the Secretary of State? That is how I read clause

67(3); I should be grateful if the Minister would confirm that.

If the Minister does not know the answers to my questions on Europol, we would accept a little letter from him. However, the Opposition would take a serious view if he just dismissed the questions as irrelevant. I repeat for the record that we shall monitor carefully how article 5 of the European convention on human rights, provided for in the Human Rights Act 1998, will be applied, particularly with regard to earlier clauses.

John Spellar (Labour, Warley)

Apart from the question about Northern Ireland, to which the answer is that clause 67 will allow the British Transport police to assist in Northern Ireland subject to the Secretary of State's consent, none of that was relevant either to the Bill or the clause.

Question put and agreed to.

Clause 67 ordered to stand part of the Bill.

Clause 68 - Exercise of functions by Secretary of State

Anne McIntosh (Conservative, Vale of York)

I wish to pull together several strands that relate to part 3 on the British Transport police. Many representations have been made to us—I cannot believe that they have not been made to the Government—and we share the concerns expressed in them. We would deplore any centralisation of control to Government in the exercise of the Secretary of State's powers in clause 68. The British Transport police should operate with full autonomy as far as possible. Clauses 55, 48, 40 and 33 offer the Secretary of State a whole raft of opportunities to be a little heavier handed than his predecessors.

My hon. Friend the Member for Uxbridge (Mr. Randall) pointed out that this is the first time that the Department for Transport will assume responsibilities in this regard. We now have a more concentrated Department focusing exclusively on transport issues. That is welcome. We just want to put down a marker that it should be for the British Transport police primarily to determine the most efficient and effective way for them to operate. They obviously work under the auspices of the British Transport police authority. They will be paid by the industry and as we have seen there will be extensive consultation between members of the authority, the police and other interested parties. The British Transport police feel very strongly, as do the Royal National Institute of the Blind and a number of other organisations that have made forceful representations, about the exercise of the functions of the Secretary of State. I hope that the Under-Secretary can reassure us that the Secretary of State and the Department do not intend to micromanage the British Transport police.

We record again, for the sake of clarity, our deep appreciation of the work of the British Transport

police as a whole and its individual officers, constables, specials and cadets. We cannot pay them enough tribute. They work in very difficult circumstances for a lot of the time and see some horrendous incidents and crimes. I hope that the Under-Secretary will take the opportunity yet again to confirm that the Department and the Secretary of State will take a light touch in this regard.

I am still a little concerned how the Department will assume that role when the Bill comes into force, bearing in mind that it does not intend to appoint any new members of staff but will simply redistribute the responsibilities around its excellent officials. It would help to know how it will be structured and how it will organise itself in this regard. Unlike some Departments, it is still not the most transparent of bodies. It is significant that we will have an annual railways policing plan, a three-year strategy plan and annual reports by the chief constable and the British Transport police authority. We stress our concern that the Secretary of State's ability to set performance targets might contradict the efficiency and effectiveness of the authority in exercising its duty. We wait with great interest to hear whether the Under-Secretary can put our minds at rest.

David Jamieson (Labour, Plymouth, Devonport)

I am grateful to the hon. Lady for giving me this opportunity to explain briefly one or two matters relevant to the clause. The Bill provides the Secretary of State for Transport, Local Government and the Regions with a number of functions and duties regarding the British Transport police, the proposed authority and the policing of the railways.

The clause places a statutory duty on the Secretary of State to exercise these functions,

''for the purpose of promoting the efficiency and effectiveness of the Police Force''.

As we found in our previous deliberations, it is equivalent to section 36 of the Police Act 1996, which places the same requirement on the Home Secretary regarding local police forces. I assure the hon. Lady that this is not about centralisation or micromanagement of the British Transport police. I do not know whether she has noticed, but the Department has one or two other matters to attend to from time to time. There is no ambition to be involved in more detail than necessary with the British Transport police.

The clause merely provides that where the Secretary of State has a function in part 3, he must use it to promote the efficiency and effectiveness of the British Transport police. That could be done in a number of ways: by the appointment of members; supporting the authority outside and so on. All the Secretary of State's powers regarding the British Transport police either exist already—for example, the arbitration under clause 33—or are modelled on the powers that the Home Secretary has for local police forces—for example, clause 48 is modelled on section 37 of the Police Act 1996.

For the avoidance of doubt, the Department has been responsible for the British Transport police for

many years, so this will not be an entirely new function for the Department. The hon. Lady also alluded to the annual plans and reports and the three-year strategy; all those already happen. I hope with that explanation we can move to the vote on the clause.

Anne McIntosh (Conservative, Vale of York)

That is all very interesting. The Under-Secretary will be aware that under section 36 of the 1996 Act there is no residual power for the Secretary of State to take over the running of a police force that is failing in its duties. However, it establishes a general duty on the Secretary of State to exercise his powers in a manner to promote efficiency and effectiveness. I do not envisage it being the case, but if the British Transport police ever reached a stage where they were deemed to be failing in their duties, what would the Department's reaction be? What are its powers under existing legislation and is it envisaged that it would ever take on an increased role?

I am slightly disappointed by the Under-Secretary's reaction to the serious representations made throughout the responses to the consultation paper on this part of the Bill, which related to the policing aspect alone. The theme in those responses was that while those duties have already been exercised hitherto, as the Under-Secretary explained, the Bill goes much further. We have analysed individual clauses where that is the case, given the Secretary of State's new potential powers for centralising. The representations that we have read and have some sympathy with arise from alarm bells ringing among organisations, but they appear to have fallen on deaf ears. How does the Under-Secretary respond to those concerns?

David Jamieson (Labour, Plymouth, Devonport)

I have nothing more to add to the debate. The procedures are well set out and we have clearly explained the purpose of the clause. Clauses 62 and 63 allow the Secretary of State to require remedial action and to make action plans, if required. Our debates in earlier sittings comprehensively covered the necessary procedure should there be any failure of the British Transport police.

Question put and agreed to.

Clause 68 ordered to stand part of the Bill.

Clause 69 - Crown application

Anne McIntosh (Conservative, Vale of York)

Will the Minister state the philosophy behind the clause and say how it would apply to the transport of nuclear fuels, for example?

David Jamieson (Labour, Plymouth, Devonport)

The clause is fairly clear. The national railway network crosses Crown land, and to ensure that British Transport police have full jurisdiction over matters relating to the railways, the Bill must confirm that they can cross that land. The clause extends the provision, for which Crown consent has been obtained, to railways crossing Crown land.

Whatever the substance, materials, people or goods involved, they are not affected by the clause.

John Randall (Conservative, Uxbridge)

If a railway crosses Crown land, is it owned by the Crown or by the company?

David Jamieson (Labour, Plymouth, Devonport)

The clause gives jurisdiction over the land, whoever owns it, to the British Transport police and gives its officers the ability to pursue a person who has committed an offence on to Crown land.

John Randall (Conservative, Uxbridge)

For clarification, does the Crown own any railways?

David Jamieson (Labour, Plymouth, Devonport)

I understand that the Crown does not own any railways.

Question put and agreed to.

Clause 69 ordered to stand part of the Bill.

Clause 70 - Consequential, transitional and incidental provision

Anne McIntosh (Conservative, Vale of York)

How long will the transitional period be for provisions to be made under the clause? Subsection (3) states:

''Transitional provision . . . may, in particular, make provision in connection with the abolition of the police force comprising constables appointed under section 53 of the British Transport Commission Act 1949''.

Presumably, those provisions are no longer applicable. I thank the Under-Secretary for his note setting out the definitions of the bodies concerned for the purposes of the Bill, which was very helpful in preparing for the Committee stage. Before the Bill goes to the other place, I urge the hon. Gentleman to make a declaration of the relationship between the Strategic Rail Authority and the other bodies.

Subsection (3) states that

''provision may include, in particular, provision—

(b) for the transfer to the Authority of property held (whether by the Strategic Rail Authority or by another person)''.

Could that be Network Rail? Does that apply purely to the old transport police or is it intended to apply in respect of the new framework that the Bill sets up for the British Transport police?

Paragraph 25 of schedule 7 to the Anti-terrorism, Crime and Security Act 2001, which itself amends section 90 of the Police Act 1996, will cease to have effect, although it has been in force for less than two years. Will the Minister explain the impact of the proposal?

We have expressed concern in debates on this part and throughout the proceedings on parts 1 and 2 about the inter-relationship between the various bodies. It would have been opportune to have a schedule, rather than relying on protocols and framework agreements, which are made outside the confines of the Bill. It would have been helpful for all concerned—members of the Committee, the industry and partners and parties involved—if the relationship

between the bodies and the framework agreements had been set out in the Bill.

John Randall (Conservative, Uxbridge)

I have a couple of questions, but first I want to say that as there has been much legal talk in the debate I am pleased that the simple phrase ''the old transport police'' will be understood by lay people.

Subsection (3) states that the provision ''may'' include certain worthy things—employment to be treated as continuous and so on—and provision for dealing with

''(i) the termination of agreements made in respect of the old transport police;

(ii) the treatment of rights and liabilities''.

I am slightly worried about the word ''may'' in that respect, which might allow some of the rights and liabilities, which include important matters such as employment being treated as continuous and so on, to be negated at a later stage. Presumably, the Minister will assure the Committee that all rights and liabilities under the old transport police shall be transferred to the new body.

David Jamieson (Labour, Plymouth, Devonport)

The Bill will place the British Transport police on a proper statutory footing by establishing a police authority to maintain the force. As part of the process, the role of employer of the force will transfer to the authority, which will also undertake the statutory functions currently undertaken by the British Transport police committee and the Strategic Rail Authority in respect of the force.

In reply to the hon. Member for Vale of York, as part of the process it will be necessary to transport the British Transport Police constables, civilian staff and property liabilities to the authority, and clause 70 will allow that process to be undertaken by statutory instrument. It also makes provision for other references on the statute book to the Strategic Rail Authority and the British Transport police committee to be amended by order as a consequence of the Bill, so that in future the reference is to the British Transport police authority.

The consequential powers are to make provision by order to deal with the changes needed to legislation as a consequence of the Bill. Those are set out. The hon. Lady asked how long the transition process would take. It could take up to two years; no definite period has been fixed. It depends on how long the changes take.

The hon. Member for Uxbridge asked about the phrase ''may include''. I anticipate that most of the matters listed would almost certainly be included. For example, clause 70(3)(k) refers to

''the continuity of legal proceedings''.

However, if there were no legal proceedings, such continuity would not be needed. Those matters may be included if that is appropriate.

Anne McIntosh (Conservative, Vale of York)

That was very interesting. My hon. Friend the Member for Uxbridge also raised, as I did, the reference to ''the old transport police''. I repeat that reassurance is needed that the old transport police

have gone and we are dealing with the new transport police.

The Minister seemed reluctant to rely on the excellent explanatory notes, to which we often refer. These state:

''Clause 70 includes powers under subsections (3)(e) to (g), to make transitional provision to a relevant pension scheme to ensure continuity following the establishment of the Authority, whilst recognising the direct relationship between the new Authority and the Secretary of State. For example, subsection (3)(g) would enable modifications to be made to the procedural or structural arrangements of staff pension schemes (excluding benefit/contribution/funding structures) as a consequence of the new relationship. Subsection (3)(f) would enable existing enactments about pension schemes to have immediate effect, e.g. to apply the provisions of Section 16 of the 1995 Pensions Act covering pension members' rights to select trustees.''

There we have it.

We are told that the proposals in the Bill could have a significant adverse effect on the pension rights of members of the British Transport police superannuation fund, because of the following. It is proposed that the railways pension trustee company will no longer be the trustee. We should like to know why that is the case. In introducing clause 70, the Under-Secretary indicated that it was an innocent little clause that just gave effect to the setting up of the British Transport police force on a statutory basis. Why are the Government doing that at this time? Why are they introducing that change to the pension scheme? That does not seem to enjoy the support of the British Transport police. Does it mean that the British Transport police will or will not remain with that provider of pension schemes? As I have asked, why will the railways pension trustee company no longer be the trustee?

We understand that there will be an impact on the current investment arrangements, which are part of the pooled fund for investment purposes. It is not certain whether the British Transport police could remain with that. I also understand that the proposal would probably lead to significantly increased costs. That raises a second question. First, why make the change at all? Secondly, why make it if it will lead to increased costs?

Clearly, many pension schemes and many superannuated pension contributors are currently in turmoil. We are a special case. It is incumbent on us to show an interest in the plight of others who do not enjoy the privileged position that we in the House enjoy—although we do not necessarily have security of tenure in our positions. I repeat: why will the railways pension trustee company no longer be a trustee, and why will that lead to a significant increase in costs?

Clause 70 proposes that the Secretary of State would need to consent to changes to the scheme with reference to general police officers' pension benefits. The British Transport police scheme is funded and therefore totally different from the Home Office police scheme—I presume that the Under-Secretary is aware of that. Improvements in the scheme have traditionally been made without reference to the Home Office scheme, so why is the decoupling happening and would that be curtailed by the Secretary of State?

Pension arrangements for the administration of staff effectively remain unchanged. I am sure that, like us, the British Transport police want to know why the Government have proposed such widespread changes to the British Transport police scheme. Why has the Under-Secretary not been upfront in sharing that information with us? He said that the purposes of clause 70 are purely innocent, but it would appear to make substantial changes. Even if the British Transport police have been consulted, they do not agree with the changes.

I want to draw the Under-Secretary's attention to schedule 5, which is on page 63. Paragraph 3 says paragraph 25 of schedule 7 to the Anti-terrorism, Crime and Security Act—

Jimmy Hood (Labour, Clydesdale)

Order. The hon. Lady is rushing ahead. Will she keep to the stand part debate? We will discuss schedule 5 when we come to it.

Anne McIntosh (Conservative, Vale of York)

I was going ahead of myself. We shall stick to pensions.

David Jamieson (Labour, Plymouth, Devonport)

The hon. Lady asked why we did not share the information with the Committee. If she had asked me in her opening remarks to do so, I would have done so.

I understand the concerns that have been expressed about what people see as a detrimental impact on members of both pension schemes by the establishment of the new police authority, and I hope that I can assuage some of those concerns. I stress that the clause will have no major effects on the current arrangements of providing retirement benefits for the relevant police officers and support staff. The arrangements need to recognise the changed relationship between the Department for Transport and the new police authority once the Strategic Rail Authority is no longer the relevant employer. That is precisely the intention of the clause.

The hon. Lady may know that a working group was set up recently. It includes representatives of all the interested parties, and I understand that they are broadly content with the proposals as outlined. A few issues remain to be resolved, including the trustee structure and the investment of assets. However, I emphasise that those issues are not a direct result of setting up the new police authority, but the result of proposed changes to the current pensions legislation as highlighted in the recent pensions Green Paper. The establishment of the new police authority has provided an ideal opportunity for the issues to be considered, and no action will be taken until the working group has discussed all the relevant options.

I want to clarify that the establishment of the new police authority will not cause the British Transport police's budget to be diverted to pension funds. There will be no undue interference by the Secretary of State in the running of the schemes, as his powers in relation to the schemes is limited.

Don Foster (Liberal Democrat, Bath)

Will the Under-Secretary give way?

David Jamieson (Labour, Plymouth, Devonport)

I want just to finish my point. There are no proposals to change the structure of the existing pension schemes along the lines of the Home Office

schemes. I hope that that has clarified the points raised by the hon. Lady.

Don Foster (Liberal Democrat, Bath)

I have listened with great interest to the debate and did not want to intervene until I heard the Under-Secretary say that there would be no undue interference from the Secretary of State. I want to ask a simple question. Will the Under-Secretary give an absolute assurance that neither the authority nor the Secretary of State will seek through any means, regulation or otherwise, to influence entitlement to benefit under the pensions scheme? That is a straightforward question.

David Jamieson (Labour, Plymouth, Devonport)

What many of the clauses do is give the Secretary of State certain powers in certain circumstances. I have made it clear that it is not the Secretary of State's role to interfere in the pension scheme—

Don Foster (Liberal Democrat, Bath)

Specifically in relation to benefit entitlement, can the Minister assure me that the Secretary of State will not seek to intervene? Will he have regard to the Government's own consultation document, which clearly stated that that would not happen? I want the Minister to say it again.

David Jamieson (Labour, Plymouth, Devonport)

That is, in fact, the case and I hope that my firmer assurance helps the hon. Gentleman.

The hon. Member for Vale of York spoke about the need for change. The existing trustee, the railways pension trustee company, has nothing to do with the setting up of this particular authority. Current pensions legislation dictates that, by 6 April 2007, existing arrangements will cease, so alternatives will have to be made that comply with member nomination of trustees, general pensions legislation and the pensions protection provisions of the Railways Act 1993. However, establishing the police authority provides an opportunity to decide whether the trustee of the scheme should be changed at the same time.

John Randall (Conservative, Uxbridge)

If I find one thing even more confusing than legal terms, it is pensions. I believe that I understand the reason for the changes, although I am a little suspicious about whether something else might lie behind them. Will the Minister give a categorical assurance that existing members of the pension scheme will experience no detrimental effect on their pensions and that those who come into the new scheme will not experience less advantageous benefits than under the current one? I would be happy to receive such an assurance.

David Jamieson (Labour, Plymouth, Devonport)

Historically, two tiers of benefit are available, but I can assure the hon. Gentleman of no detrimental effect on future pensions.

John Randall (Conservative, Uxbridge)

And existing members?

David Jamieson (Labour, Plymouth, Devonport)

And on existing members.

Anne McIntosh (Conservative, Vale of York)

I want to quote from pages 42 and 43 of the excellent Library research paper of 22 January 2003:

''The pension scheme arrangements for the BTP are materially different from those of the Home Office police forces. The BTP scheme is a funded, trust based scheme under which substantial powers vest in independent trustees, whereas the scheme for the main

police forces is an unfunded public service scheme subject to traditional scheme regulation by the Home Office. Due to these differences the consultation document stated that it would not be appropriate for the Authority or the secretary of state to make regulations regarding emerging benefit entitlements under the pension scheme trust deed and rules (e.g. on ill-health retirement where the discretion on awards rests with the scheme's trustees). Different circumstances apply for early severance terms, where any compensation costs fall to the Authority rather than the pension fund. Clause 70 and schedule 5 include powers to make transitional provision to a relevant pension scheme to ensure continuity following the establishment of the Authority.''

I hear what the Minister says—that the Government are simply transferring the employer from the Strategic Rail Authority to the British Transport police authority. In common with my hon. Friend the Member for Uxbridge, I sometimes find pensions confusing and the subject becomes more alarming the closer to pensionable age one becomes.

I am not sure that changing the arrangements under the Bill will be allowed under the Transfer of Undertakings (Protection of Employment) Regulations 1981 and it could have a serious effect on the force's morale. Will the Minister assure us that the scheme will be funded as it was in the past? I did not hear the Minister say whether the changes will lead to a significant increase in costs, or why the Government are so in favour of making them. I do not understand why the railways pension trustee company could not continue to be the trustee. The concern seems to be that there will be an increased cost and a change of trustee to no apparent advantage. We should not make light of that. The figures for the BTP show that not as many retired BTP officers are being paid out of operational funds as—

John Randall (Conservative, Uxbridge)

Out of which budget will the increased costs to which my hon. Friend refers come, or will they come out of the pension scheme?

Anne McIntosh (Conservative, Vale of York)

I would love to be able to help my hon. Friend, but I do not have the answer. The total annual budget for the BTP is £130 million. We identified that there will be an increased administration cost of £50,000 a year by increasing the size of the police authority from nine to 13 members, but we look to the Under-Secretary for the answer.

We seek assurance that the BTP scheme is a funded scheme and will continue to be so, and that it will continue to be fundamentally different from the Home Office scheme. I listened carefully to the Under-Secretary's answer to the hon. Member for Bath, but did not hear him give the hon. Gentleman any such assurance.

Don Foster (Liberal Democrat, Bath)

Obviously, it is always helpful for the Under-Secretary to repeat any assurance, but I received a categorical assurance after I pushed him to do so. Perhaps he can reassure me that neither the authority nor the Secretary of State will interfere in the benefit entitlement to those who should benefit from the pension scheme. If the hon. Lady wants to hear that assurance again, so be it.

Anne McIntosh (Conservative, Vale of York)

I am happy to read the record, and hope that it will speak for itself.

I hope that the Under-Secretary will put our minds at rest that the fundamental differences between the BTP scheme and the Home Office scheme will continue. If there are to be significant increased costs, will the Under-Secretary tell us, in answer to a question asked by my hon. Friend the Member for Uxbridge, out of which budget they will be paid? Will he also explain why there is an attempt to remove the railways pension trustee company as trustee?

David Jamieson (Labour, Plymouth, Devonport)

I thought that I had made it clear why there will have to be a change. It is because of the new pension arrangements that will come into effect in 2007. All that the provisions do is ensure that there is the ability to make those changes at the appropriate time.

The hon. Lady asked about TUPE. TUPE does not cover occupational pensions, and there are no issues relating to it in the Bill. She also asked whether the scheme would continue to be funded as before. It will. There is no intention to change the BTP scheme to the Home Office scheme under the provisions.

The hon. Member for Bath asked in a roundabout way about the Secretary of State's ability to interfere. [Interruption.] He is saying that he is satisfied, but I can again give an assurance that the Secretary of State will not interfere in the benefits. I hope that that dispels all doubt about the matter.

The hon. Lady talked about increased costs. If there are any increased costs, those might relate to changes in investment of the assets of the fund. However, as I said earlier, the investment issues are currently under discussion. Again, for the avoidance of doubt, because the hon. Lady mentioned the issue several times, I confirm that the difference will remain between the Home Office scheme and the British Transport police scheme.

Question put and agreed to.

Clause 70, as amended, ordered to stand part of the Bill.

Schedule 5 - British Transport Police:

Anne McIntosh (Conservative, Vale of York)

At this point, I should like to raise the issue of the Anti-terrorism, Crime and Security Act 2001, and ask the Under-Secretary why the Government have provided in schedule 5 that paragraph 25 of schedule 7 to the 2001 Act should cease to have effect, such a short time after it passed on

to the statute book. Moreover, section 64 of the Disability Discrimination Act 1995 will have implications for the railways in general. Will the Under-Secretary share with us what the implications of that Act are for the Bill?

There is one glaring omission in the enactments referred to in paragraph 4(2) and in the rest of the schedule: the Human Rights Act 1998, which will have far-reaching consequences for the British Transport police in carrying out their duties. The British Transport police provisions of the Bill are considered to be compatible with the convention, but, for the purposes of the schedule, the convention should have been referred to.

Will the Under-Secretary take the opportunity to put our minds at rest that the jurisdiction and responsibility of the British Transport police will not be frustrated by the 1998 Act? Although British Transport police constables will be given the right to enter railway properties such as railway stations and rail vehicles, and that would engage the guarantee of the right to a private life given in article 8 of the convention and the right to peaceful enjoyment of possessions given by article 1 of the first protocol, the Government consider that any such interference is justified.

The Government consider that the exercise of the power is limited to defined railway property, and that the power is available to the British Transport police constables so that they can ensure public safety and prevent crime and disorder. How can the Under-Secretary square the guarantees given by article 8 and article 1 with the new powers for the British Transport police that enable a constable or a rail accident investigation branch officer to enter a private dwelling and to take away personal property of an individual for the purposes of an investigation by the British Transport police?

Don Foster (Liberal Democrat, Bath)

I am delighted that the hon. Lady is raising this point. She will recall that we had a similar discussion on the first day of our deliberations. Does she share my view that it would be more appropriate for the British Transport police to obtain a warrant to enter an employee's property, as would be the case for a Home Office police force?

Anne McIntosh (Conservative, Vale of York)

The hon. Gentleman tempts me down a dangerous path. I do not recall his supporting our amendment at the time. However, I fear that you will call me out of order, Mr. Hood, because the schedule that we are discussing refers to the British Transport police. I do not wish to be unhelpful—

Jimmy Hood (Labour, Clydesdale)

Order. I will not call the hon. Lady out of order. I admire her self-discipline in keeping herself in order.

Anne McIntosh (Conservative, Vale of York)

I am grateful Mr. Hood. You are too generous.

We argued, and we will continue to argue, that we would prefer that any rail accident investigation branch inspector or investigator be accompanied by a British Transport police officer at every opportunity.

Don Foster (Liberal Democrat, Bath)

Does the hon. Lady agree that I was entirely in order, as I would otherwise have been ruled out of order for my intervention? I referred specifically to the British Transport police. I repeat my question: does she agree that it would be more appropriate in those circumstances for the British Transport police to obtain a warrant before entering an employee's property? In my view, that would be in accordance with her interpretation of the European convention on human rights.

Anne McIntosh (Conservative, Vale of York)

The hon. Gentleman is simply repeating what I said at our first sitting. I said that we would prefer that the inspector or investigator be accompanied by a police constable and that a warrant or a summons be issued.

Don Foster (Liberal Democrat, Bath)

That is not the same.

Anne McIntosh (Conservative, Vale of York)

We referred back to the existing legislation—

Jimmy Hood (Labour, Clydesdale)

Order. The hon. Lady tempts me to judge her repetitive. Could she move on?

Anne McIntosh (Conservative, Vale of York)

Moving rapidly on, may I continue with my arguments? Train companies will be required by order to enter into police service agreements with the new British Transport police authority. That again engages article 1 of the first protocol to the convention, which protects the economic interest of a person running a business. How can the Government justify any interference that the obligation causes in that right on the grounds that it is in the general interest that the railways are policed and that if the British Transport police authority were not funded, it could not make provision for a police force for the railway?

I am playing devil's advocate because it is entirely possible that the purposes of the Bill could be frustrated by the provisions of the Human Rights Act. I imagine that the Under-Secretary will confirm that is not the intention, particularly in view of wide-ranging provisions on which the hon. Member for Bath and I agree. As part of an investigation, a police officer or an inspector or investigator of the rail accident investigation branch will be allowed to enter any property or to enter a private dwelling, whether owned by an employee or by an individual not connected with the rail company, Network Rail or any other body. They will even be able to take away personal possessions as evidence.

We want to help the Government to advance the intended effects of the Bill. We hope that their intention will not be thwarted by the Human Rights Act. Now that the European convention on human rights is part of our national law, action taken by a police officer that breaches its guarantees may be deemed to violate that law. That may happen even when the behaviour that is complained about is authorised elsewhere in domestic law—for example, in the provisions of the Bill. I refer in particular to article 5 of the convention, which regulates the arrest and retention of individuals. It may be argued in court that the deprivation of liberty involved breaches the Human Rights Act 1998.

I want to give the Under-Secretary the opportunity to show that the Government have given careful thought to the effect of the Human Rights Act 1998. Why has reference to that Act been omitted from schedule 5? Was that a deliberate error to which the Government hoped that no one would draw attention? The new powers and responsibilities to be enjoyed by the rail accident investigation branch—particularly those under the Anti-terrorism, Crime and Security Act 2001 and the power to enter a dwelling property without a warrant, summons or the presence of a British chief constable—may be challenged in the courts under the Human Rights Act. Why will paragraph 25 of schedule 7 to the 2001 Act cease to have effect so soon, especially given that it was an amendment of section 90 of the 1996 Act?

David Jamieson (Labour, Plymouth, Devonport)

Schedule 5 ensures that references to existing legislation on the British Transport police will refer to the British Transport police force as established in clause 3. It is intended that the roles of bodies such as the Strategic Rail Authority and British Transport police committee in respect of the British Transport police should also pass to the authority. Consequential orders under clause 70 will deal with references to those roles.

The hon. Lady's first point was to ask why paragraph 25 of schedule 7 to the Anti-terrorism, Crime and Security Act 2001 will be repealed. Clause 65(1) and (3) make new provision to replace that paragraph so that a single provision will cover the British Transport police throughout Great Britain in relation to the impersonation of a constable, as opposed to our having provision in both the Police Act 1996 and the Police (Scotland) Act 1967. The new provision will also extend the impersonation offence to British Transport police special constables. I hope that that is helpful.

The hon. Lady asked whether we had given careful thought to the Human Rights Act 1998 and whether we had not included a reference to it in the hope that no one would notice. It is rather improbable that if we had left it out, Parliament would have nodded it through without anyone noticing. I assure the hon. Lady that the schedule does not need to refer to the Human Rights Act, as it replaces references to the old British Transport police with references to the new British Transport police. The Human Rights Act contains no references to the British Transport police.

The British Transport police will continue to operate as a police force under the Human Rights Act, and the Bill will have no impact on their operation in that respect. They will have the full current and future police powers to enter property as per the Home Office police forces, subject to legal restrictions. Jurisdiction provisions will allow the British Transport police to continue to police public railway property just as they do today. The hon. Member for Bath said that the police powers apply to Home Office constables in exactly the way that they do to British Transport police constables in nearly all cases. There will be some tiny exceptions.

Part 3 says nothing about entering property apart from railway property, which is mentioned in clause 29, and it says nothing about employee property. Part 1 spoke about the ability of the rail accident investigation branch to enter property. That was comprehensively discussed in a previous debate. I can confirm that a British Transport police constable has no power to enter a private house.

Don Foster (Liberal Democrat, Bath)

Let us say that the property is owned, for example, by the train operating company or Network Rail, but is occupied, as a dwelling place, by an employee. Is the Under-Secretary saying that the British Transport police would still require a warrant to enter it?

David Jamieson (Labour, Plymouth, Devonport)

In those circumstances, if I understand what the hon. Gentleman has said, I think that that is the case.

Anne McIntosh (Conservative, Vale of York)

I hope that the Under-Secretary's words will not come back to haunt him, because any self-respecting solicitor or counsel defending a client to the best of his ability will seek to use the Human Rights Act. I just place that point on the record.

It remains the position of the official Opposition—I am delighted that this has gained increasing support from the Liberal Democrats—that on any occasion on which someone acts under the legislation, whether it is a British transport police force constable or a member of the rail accident investigation branch, we would prefer that person to be in possession of a summons or warrant. I cannot believe that that would lead to severe delay. Any person seeking the authority to enter a private dwelling and possibly to remove a personal possession for the purposes of the legislation should do so in the usual way, and warrants and summons should be issued.

We hope that, where possible, the Government would see fit to insist that an investigating branch officer or investigator should be accompanied by a police officer. We have not had confirmation of that at any stage, but it would enhance the provisions of the Bill and lead to an earlier prosecution than might otherwise have been the case.

We have previously discussed impersonation of a constable, and I am mildly surprised that we are getting the answer now to the question that we posed then. The Under-Secretary's answer raises another question. If the Bill creates the offence, what has happened in the intervening period? In Scotland, it has always been an offence to impersonate a constable. Perhaps I have misunderstood what the Under-Secretary said, but it appears that there has been a hiatus for a number of years in which it has not been an offence to impersonate a British Transport police officer. Perhaps he will put my mind at rest on that.

With regard to impersonation of a constable, the Under-Secretary's comments as to why we need to remove paragraph 25 of schedule 7 to the 2001 Act were helpful. We again invite him to consider that it would be appropriate for any British Transport police force constable to seek a summons or warrant, not under his own hand, but from the appropriate authorities in the usual way before entering a dwelling or seeking to remove any personal items

from that private dwelling. Will he also consider that it would be equally appropriate to seek a summons and a warrant in the same way not under his own hand for an investigating officer under the rail accident investigation branch?

David Jamieson (Labour, Plymouth, Devonport)

I made it clear in response to the intervention by the hon. Member for Bath intervention that a British Transport police officer in the circumstances the hon. Lady outlined would still need a warrant.

Question put and agreed to.

Schedule 5, as amended, agreed to.

Clause 71 - Regulations and orders

Anne McIntosh (Conservative, Vale of York)

As we have said on numerous occasions, in connection with the Bill and at every available opportunity, we regret the tendency for the power of regulations and orders under successive Bills to be made subsequent to the Bill's passing. We hope that here they will be made by an affirmative order of each House, as clause 71 indicates, and that there will be opportunities for any statutory instrument to be debated by each House of Parliament.

For the record we repeat that we would prefer most of the powers to be exercised under the Bill to be written into it rather than left to implementation by statutory order. One need only look at the issuing of statutory orders in the Library and those laid before Parliament to see how many there are. This is an increasing tendency, particularly over the past five and a half years, and it is one that we regret. We hope as far as possible to have an opportunity to scrutinise the orders made under the Bill. We invite the Secretary of State and the Department to make a self-denying order rather than an increasing flood of statutory instruments. I hope that the Under-Secretary will take the opportunity to confirm that that is the Government's wish.

David Jamieson (Labour, Plymouth, Devonport)

When handling any primary legislation, we regularly have this discussion about which powers are taken by secondary legislation. This clause provides the procedure for making regulations and orders under this part of the Bill. In general, all orders and regulations will be subject to the negative procedure. That means that they will be laid before the House and can be annulled by a resolution. As the majority of regulations in this part will be based on Home Office precedents, affirmative resolution instruments would be unnecessary.

Orders under clause 70 would amend other enactments to allow the transfer of the existing British Transport police to the new authority. They would therefore involve the taking of so-called Henry VIII powers. The orders will include employment issues, and it is therefore appropriate that they receive Parliament's approval via the affirmative procedure. At the appropriate time, the House will have an opportunity to discuss them.

Anne McIntosh (Conservative, Vale of York)

I am extremely disappointed by that honest but unsatisfactory answer. I repeat as vigorously as I can that while we welcome the opportunity to follow the affirmative procedure in regard to what the Under-Secretary referred to as the Henry VIII orders, we deplore the fact that other orders will be laid before the House by negative procedure. To us, that is an entirely unsatisfactory procedure, and the Opposition will remain vigilant as ever in ensuring that any order, regulation or statutory instrument laid before the House which we feel is inappropriate will be prayed against.

David Jamieson (Labour, Plymouth, Devonport)

I assure the hon. Lady that the practice is exactly as it was before 1997, when her Government were in power—[Interruption.]

Anne McIntosh (Conservative, Vale of York)

I shall not mention the aside made by my hon. Friend the Member for Uxbridge. The tendency since 1997 is borne out by the numbers, which demonstrate a wholly unacceptable increase in the use of orders. The order-making power in clause 70, particularly in respect of employment conditions, is appropriate and welcome. Will the Minister confirm that pension provisions are also included and will be dealt with through the affirmative procedure? We have expressed on behalf of the British Transport police serious concerns about the pension provisions.

David Jamieson (Labour, Plymouth, Devonport)

Just to give the hon. Lady the ability to curtail her comments, I can assure her that matters relating to employment and pensions will pass through the affirmative procedure.

Anne McIntosh (Conservative, Vale of York)

I am grateful to the Under-Secretary for that confirmation. We shall pray against every conceivable order that we believe to be inappropriate and laid through the negative procedure. The Bill provides an opportune moment for the Department and the Government to break with tradition in that respect. On coming to power, the Government's motto was ''new Labour'', so I invite them to introduce a new procedure to ensure that all regulations and orders, particularly those passed under clause 71, are in future laid through the affirmative procedure.

Question put and agreed to.

Clause 71 ordered to stand part of the Bill.

Clause 72 - Interpretation

Anne McIntosh (Conservative, Vale of York)

I am grateful for the Under-Secretary's clarification following an earlier debate. I should like to confirm it and have it written into the record. The clause deals with interpretation and offers several definitions. I recall our interesting discussion on the trolley bus, which could impact on interpretation. I also recall asking about light railway trams and trolley buses, which I classed as a sub-group of railways. I apologise; for the record, that classification appeared in the Under-Secretary's reply to my question:

''That is a sub-group of railways and as such it has no defined separate legal meaning.''—[Official Report, Standing Committee D, 13 February 2003; c. 194.]

I was grateful for that clarification. However, it is important to place on the record the fact that that formulation, as reported in Hansard, introduced—in the Under-Secretary's words, not mine—''a factual error''. As the Under-Secretary intended to clarify, light railways are sub-divisions of railways, but in the official record, his clarification suggested that trolley buses are also sub-groups of railways with no defined separate legal meaning. However, he wanted to assure me that that is incorrect.

Clause 1 is based on the Transport and Works Act 1992, which defined tramways and trolley buses in detail. The Under-Secretary helpfully made it clear that his point applied solely to light railways. We had a light-hearted aside at the time, and I am grateful that the matter has been clarified. We have a strong tradition of trolley buses, and although I do not think that we are now a nation of trolley buses, it is important to get the definition correct and to put it on the record.

Kelvin Hopkins (Labour, Luton North)

According to the hon. Lady's information, are there any trolley buses in Britain at the moment and are we ever likely to have any?

Anne McIntosh (Conservative, Vale of York)

I can say with some authority that we do not have any trolley buses in the Vale of York, but I do not know whether that is repeated across the realm. Legal definitions are important, though, because there may be applications for trolley buses in the future.

John Randall (Conservative, Uxbridge)

We are talking about trolley buses now, but a few years ago we might have been having a similar conversation about trams. We thought that trams were a thing of the past, but now they are the future.

Anne McIntosh (Conservative, Vale of York)

That leads me neatly on to my second point on why clause 72 is deficient. My first point was that, as we might use a wrong definition in any amendment, the Under-Secretary should clarify the definition of ''trolley bus''. My second point is that clause 72 is deficient because of the point about trams. The Committee seems to agree that we cannot think of a trolley bus operating in the United Kingdom, but I would hate to exclude the prospect of trolley buses returning, as they would undoubtedly be environmentally friendly and energy efficient.

This is a good opportunity to clarify the position of the tram. I know that it is on the record, but it would be good to have it in the Bill. I was taken by the Under-Secretary's clear explanation of the difference between a tram and a trolley bus. If I remember correctly, a tram runs with overhead wires on tracks and is deemed to be a railway for the purposes of the Bill, whereas a trolley bus runs with overhead wires on the road and is deemed to be a road vehicle.

John Randall (Conservative, Uxbridge)

I hate to go into this further, but clause 72(3) defines railway property as including, in paragraph (e),

''a railway vehicle on a network or tramway''

and, in paragraph (h),

''a vehicle used on a tramway''

My hon. Friend may be able to find out whether either definition means a tram. What is the difference between a railway vehicle on a tramway and a vehicle on a tramway?

Anne McIntosh (Conservative, Vale of York)

As ever, my hon. Friend puts the point much more eloquently than I do. I am trying to elicit the difference between a tram and a trolley bus for the purposes of the Bill. When is a vehicle a railway vehicle, and when is it a road vehicle? Will the Under-Secretary give us a clearer definition of the difference between the definitions in paragraphs (e) and (h)? Otherwise, the clause will lead to great confusion.

Don Foster (Liberal Democrat, Bath)

As you will undoubtedly have observed, Mr. Hood, it is not my custom or style to stand up for every clause and give it the detailed forensic examination that we have grown used to from the hon. Member for Vale of York. I am sure that the Committee is grateful to her for that, but I find myself disappointed with her contribution on clause 72. She rightly asked several questions, and we will look to the Minister for the answers, but I do not believe that she has gone far enough. You more than most, Mr. Hood, will be able to cast your mind back to 4 February to the very first sitting on clause 1, which covers issues of definition in relation to part 1, in which there is a requirement to define railway property. We are now dealing with part 3, and rightly there is a need for clause 72 to give definitions of railway property.

I am confused about why there are so many significant differences between the definitions of railway property in part 1 and those given in part 3. Will the Minister help me by explaining the differences? I see no reference to property being defined in clause 1 in part 1 as it is defined in clause 72(3)(e) and (h) in part 3:

''a railway vehicle on a network or tramway . . . a vehicle used on a tramway.''

Do those differences imply that parts of property are likely to be investigated that could not be investigated by the RAIB because they are covered by the British Transport police? That does not make much sense. However, I thought that I had found the answer to my own dilemma. I looked back, as I do—I try to prepare thoroughly for these enjoyable sittings of our Committee, which will come to an end all too soon—[Hon. Members: ''No!''] I am delighted to hear those demands around the Room for an extension so that we may hear more contributions from the hon. Member for Vale of York.

I diligently re-read the words of the Under-Secretary—we often like to read them—and those of the Minister for Transport, who told us:

''The rail accident investigation branch will investigate accidents and incidents relevant to the operation of the railway. The definition of railway property is drafted to reflect the places where a railway accident or incident would occur that could be the subject of an RAIB investigation.''

He continued:

''Extending the definition would mean that the RAIB had a duty to investigate accidents in a railway station back office, for example, which are more properly the responsibility of the Health and Safety Executive.''—[Official Report, Standing Committee D, 4 February 2003; c. 6.]

It would appear that there are different definitions of railway property in parts 1 and 3. The definitions in part 1 cover those parts of property that the RAIB might investigate, but in part 3 we have a definition of railway property where the British Transport police might properly investigate; presumably, a crime could take place in a railway station back office. There is therefore a good reason for the difference, but will the Minister say where those differences are to be found? What is the difference between the definitions that we have here? We have exactly the same definitions, but in part 3 we have added properties, although there is no specific reference, for example, to a railway station back office. Can the Minister tell us whether the definitions are intended to be the same in both cases, in which case why are some items added to the list in part 3 but not included in part 1, or are they meant to be different in the way in which the Minister of State has said that they are different—relating, for example, to railway station back offices? If they are meant to be different for that purpose, can he explain how the definitions before us achieve that?

John Randall (Conservative, Uxbridge)

I return briefly to the point about trams, not because of a pedantic interest but because, as the Minister will know, there is an advanced scheme to run a tramway from Uxbridge to Shepherd's Bush, roughly along the route of the 207 bus. That is broadly welcomed in my constituency, but closer to London, along the Uxbridge road, it becomes more contentious. However, it will almost certainly run, so, for the sake of my constituents, it is important for me to know the exact definitions for tramways and trams, and for what vehicles are used on a tramway and whether they are motorised. I must press the Minister for an answer.

Kelvin Hopkins (Labour, Luton North)

Before my hon. Friend the Minister clarifies all this confusion in his usual crisp and clear way, can I ask him to bear in mind the problems of guided bus ways? In Luton, we are likely to have a guided bus way on a railway line, which is to be converted. I am sure that he will be able to deal with that. I raise it now so that no confusion arises from further questions.

David Jamieson (Labour, Plymouth, Devonport)

This innocent little clause has occasioned an enormous amount of interest. I shall endeavour to answer briefly the points that have been made. The clause defines the terms used in this part of the Bill. Primarily, existing statutory definitions are used from the Transport and Works Act 1992 and the Railways Act 1993. Railway services and railway property are also defined in relation to standard statutory terms. In an intervention, the hon. Member for Vale of York became exercised by trolley buses. She did not know whether there was a trolley bus in the United Kingdom, but never mind, she asked for a definition anyway.

Anne McIntosh (Conservative, Vale of York)

Will the hon. Gentleman give way?

David Jamieson (Labour, Plymouth, Devonport)

I was about to give the hon. Lady a definition, but if she wants to intervene, I shall happily give way.

Anne McIntosh (Conservative, Vale of York)

I want to put the hon. Gentleman's mind at rest. There are no trams in Scotland, yet the Bill will apply to trams. On the same basis, there are no trolley buses at this time in England. However, I am sure that the Government would not wish to preclude the possibility of their return.

David Jamieson (Labour, Plymouth, Devonport)

Indeed not. The provision exists in anticipation that the Scots may wish to provide trams in Scotland.

Let us move to the point about the trolley vehicle system. That means, according to section 67 of the Transport and Works Act 1992,

''a system of transport by vehicles constructed or adapted for use on roads without rails under electric power transmitted to them by overhead wires (whether or not there is in addition a source of power on board the vehicles);''

I hope that that is helpful to the hon. Lady. I assure her that British Transport police will not cover trolley vehicles because they do not travel on rails; they are buses. The guided bus referred to by my hon. Friend the Member for Luton, North is also in the same category—bus, not rail.

John Randall (Conservative, Uxbridge)

Would that last point about the guided bus not come under subsection (3)(f), which refers to

''rolling stock on a network or tramway'',

or subsection (3)(h), which refers to

''a vehicle used on a tramway''?

What is the difference between a tramway and a railway?

David Jamieson (Labour, Plymouth, Devonport)

The difference is that the tramway has a rail, and the guided bus does not run on a rail. That is the simple answer to that.

The hon. Member for Uxbridge wanted precise definitions of each category. They could be read into the record, but it would take a long time and would be rather boring. The categories have all been set out, and if members of the Committee want precise definitions of all terminology, I will be happy to provide a note rather than go through them now.

Clause 72 defines terms used in the jurisdiction of the British Transport police, including public policing and public areas of railways. Clause 1 provides the areas where rail accident investigators have jurisdiction. The Bill describes the meaning of railway property clearly in two places. The list contained in part 3 goes a little wider to make it clear that railway property covers wider scenarios and in respect of which persons could be required to enter into an agreement under clause 31.

Don Foster (Liberal Democrat, Bath)

I listed three items: a railway vehicle on a network or tramway, a train used on a network and a vehicle used on a tramway. If part 3 goes wider, does that mean that the RAIB would not carry out investigations in relation to that property, whereas the British Transport police can carry out investigations in respect of alleged crimes on such property?

David Jamieson (Labour, Plymouth, Devonport)

I hope that I have understood the hon. Gentleman's question. The RAIB's area of jurisdiction was set out in part 1. Part 3 sets out the responsibilities of the British Transport police. I thought that that was fairly clear. The hon. Member mentioned particular railway vehicles or tramways, but, as far as I understand it, those would be identical.

John Randall (Conservative, Uxbridge)

I want to elicit from the Minister whether the other matters that the hon. Member for Bath mentioned are inside or outside the jurisdiction of the RAIB.

David Jamieson (Labour, Plymouth, Devonport)

On the two points that the hon. Member for Bath made, the RAIB would investigate if there were accidents on such vehicles. The hon. Member for Uxbridge mentioned railway property and asked about clause 72(3)(e) and (h). Paragraph (e) mentions

''a railway vehicle on a network or tramway''.

In other words, the railway vehicle could be used on either. Paragraph (h) mentions

''a vehicle used on a tramway''—

that is, the vehicle used only on a tramway. The intention is to cover the two circumstances where some vehicles can be used on both and some can only be used on a tram network. I hope that that has covered those important points.

Anne McIntosh (Conservative, Vale of York)

Clearly, it has not. We will have to return to this issue. I invite the Government to come up with a much clearer definition than is currently in the Bill because there will be enormous problems in establishing the precise jurisdiction of the RAIB. Although we discussed it in a very light-hearted fashion, that is precisely why I drew attention to the difference between a trolley bus and a tram. It is obviously important with regard this issue, too.

Subsection (5)(a) refers to a ''light maintenance depot''. It is interesting that the subsection refers not to a locomotive, but to a train. The corresponding section 83(1) of the Railways Act 1993, which is mentioned for these purposes, gives a definition of a locomotive. Is that because we are all now meant to know what a locomotive is as opposed to a train? The list of definitions is not comprehensive. We are trying to help the Government—[Interruption.] We differ and oppose the Government on some issues, but here we want to help by ensuring that the definitions are so clear that endless debates and court cases about the jurisdiction of the rail accident investigation branch can be avoided. Subsection (5) refers to both a light maintenance depot and a train, but I wonder why it does not also refer to a locomotive. Network is also mentioned, so why not locomotive?

Don Foster (Liberal Democrat, Bath)

Never let it be thought that anyone should seek to delay our proceedings so that we deal with alcohol after lunch, but I suspect that that is happening. I agree with the hon. Member for Vale of York that anyone listening to our deliberations might think that we are off our trolleys. [Interruption.] I just thought it up.

The Minister of State, Department of Transport stated on the record that the definitions of railway

property in part 1 are specifically drawn. More precisely, he said that the definition

''is drafted to reflect the places where a railway accident or incident would occur that could be the subject of an RAIB investigation.''

He continued:

''Extending the definition would mean that the RAIB had a duty to investigate accidents in a railway station back office, for example''.—[Official Report, Standing Committee D, 4 February 2003; c.6.]

I refer to it again because the Minister has not answered the question why the definitions of railway property in part 3 include several examples of property that are not included earlier. In responding to the hon. Member for Vale of York, he said that the RAIB would investigate an accident if, for example, it occurred on a train used on a network. Why is that formulation not included in part 1? We have received no clear answer to that, which is disappointing. As the hon. Lady said, we will at least have an opportunity to return to these matters later.

Question put and agreed to.

Clause 72 ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74 - Extent

Anne McIntosh (Conservative, Vale of York)

We referred earlier to a tramway in Scotland. It is right and proper to recognise that Scotland has no trams at the moment, but it may well in future. Equally, we want to allow for the possibility of the return of trolley buses. As we said in respect of clause 72, we urge the Government to table appropriate definitions before the Bill leaves this place.

David Jamieson (Labour, Plymouth, Devonport)

May I say a few words about this brief clause? It establishes the current territorial extent of this part of the Bill. It applies to Great Britain, but tramways—even though they do not yet exist in Scotland—are excluded as a devolved matter. If a tramway were to come into operation in Scotland, it would be for the Scottish Parliament to determine appropriate arrangements for its policing. The British Transport police currently operate throughout England, Scotland and Wales, but not in Northern Ireland. The clause does not change that.

Question put and agreed to.

Clause 74 ordered to stand part of the Bill.

Clause 75 - Professional staff on duty

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 85, in

clause 75, page 31, line 7, after 'to', insert

'any person employed in any capacity aboard a vessel, including'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss amendment No. 76, in

clause 75, page 31, line 10, at end insert—

'(d) a person whose primary and main function is the command of a vessel carrying passengers for a fee.'.

Anne McIntosh (Conservative, Vale of York)

I am delighted that the Committee is moving on to a perhaps more controversial part of the Bill, although we are not necessarily in disagreement with the Government. The provisions are a response to a gap in the law whereby there is no legislation to regulate alcohol consumption in the maritime industry, other than a general provision in section 58 of the Merchant Shipping Act 1995. Clauses 75 and 77 define the respective persons covered by the Bill. We believe that the clause should be more specific and we wish to probe the Minister on whether he would see fit to extend the definition.

The amendment relates to subsection (1), which limits the definition to

''(a) a professional master of a ship''—

I think that we all recognise who a professional master of a ship is—

''(b) a professional pilot of a ship, and

(c) a professional seaman in a ship while on duty.''

We heard from the Government on Second Reading that, in relation to, I think, pilots of ships, they could imagine circumstances whereby a professional mariner may not be on duty, but may be required to be on duty—they may be second on call, or whatever. How widely will the phrase ''while on duty'' be defined? Will the definition be exclusive or will it include those about to go on duty within a certain number of hours?

I shall confine my comments now to the amendment. It has been put to us that perhaps a

clearer definition of a professional mariner or professional staff on duty would be

''any person employed in any capacity aboard a vessel, including'',

and then the definition continues. The amendment is a probing amendment. We hope to have an indication from the Minister as to how widely the provisions will be interpreted. Similarly, amendment No. 76 would add a subsection (1)(d) that would refer to

''a person whose primary and main function is the command of a vessel carrying passengers for a fee.''

There is some concern in the industry that the current definition does not cover every potential category of those who should be covered.

As drafted, the title of the clause is ''Professional staff on duty'', whereas we had, I think, an indication from the Secretary of State that the provisions would apply to those who were about to go on duty. It might be of some assistance if the Minister gave some thought as to how such matters could be defined. Does the Minister intend to consider the rota for those first on call or those second on call?

We shall, I hope, have a broader debate on part 4 later, and we recognise the background.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee D

Clause 75 - Professional staff on duty

Jimmy Hood (Labour, Clydesdale)

I remind the Committee that with this we are discussing amendment No. 76, in

clause 75, page 31, line 10, at end insert—

'(d) a person whose primary and main function is the command of a vessel carrying passengers for a fee.'.

Anne McIntosh (Conservative, Vale of York)

Welcome back to the Committee, Mr. Hood.

When we finished this morning, I was referring to comments made by the Secretary of State on Second Reading. He said:

''Off-duty professional mariners are included as well if they are on the vessel and they might be needed in an emergency to protect passenger safety.''—[Official Report, 28 January 2003; Vol. 398, c. 773.]

The Committee will note that we have not at this stage sought to clarify that remark through a probing amendment, subject to what the Minister has to say. I think I enjoy a warm relationship with the Under-Secretary—

John Spellar (Labour, Warley)

That's no good; I'm replying.

Anne McIntosh (Conservative, Vale of York)

The Minister will benefit from any assistance that our relationship may bring.

I have only a summary analysis of comments made on the consultation paper. I am sure that the Committee would expect any Minister to meet with industry representatives regularly in preparing for the Bill. I meet with representatives of the National Union of Marine, Aviation and Shipping Transport Officers fairly regularly. So it came as some surprise to me to learn that the Secretary of State met them last September and it is almost a year since the Under-Secretary last met them.

Several kind invitations have been extended to meet the executive council of the Chamber of Shipping. Unfortunately, those appear not to have been convenient, and I record our disappointment that the clause appears to have been drafted against that backdrop. Perhaps the Minister of State can come to the Under-Secretary's assistance. Had there been more regular meetings, we might not have needed the clarification that we seek with the amendments.

We should pause to ask how the Government propose to define a professional seaman on a ship while on duty. The Secretary of State said that the

alcohol testing provisions would apply to those who might be needed in an emergency to protect passenger safety. In the spirit of helpfulness and co-operation, perhaps the Minister has come up with some easy formula about a first on duty, a second on duty of those who find themselves on a ship and who may need to be called upon in an emergency. I hope that the Minister will find that our definitions are helpful. The addition of the words

''any person employed in any capacity aboard a vessel, including''

before the words

''a professional master of a ship, a professional pilot of a ship, and a professional seaman in a ship while on duty''

will clarify the definition. I also hope that the definition of

''a person whose primary and main function is the command of a vessel carrying passengers for a fee''

will differentiate between professional and non-professional members of staff.

John Randall (Conservative, Uxbridge)

I have a few queries, which I am sure that the Minister will be able to clarify, apart from those put forward by my hon. Friend. Presumably, ''professional'' means somebody who is paid. Does it mean somebody with qualifications or does it cover anybody? I must say to my hon. Friend that although our probing amendment serves a useful purpose, I am concerned that if we were to press it to a vote, in which we were successful through the strength of our arguments—[Interruption.]—the definition of any person employed in any capacity aboard a vessel might be too wide-ranging. If one considers a cruise ship, for example, there might be lecturers or entertainments officers. [Interruption.]

Jimmy Hood (Labour, Clydesdale)

Order. The Chairman is having difficulty listening to the hon. Gentleman because hon. Members are chattering.

John Randall (Conservative, Uxbridge)

Thank you, Mr. Hood.

We want to ascertain exactly whom the definition would encompass. Although no one would recommend that anybody on board a ship should be the worse for wear, we may be talking about people whose positions do not involve safety. We should wait to hear what the Minister has to say, but I should like clarification whether the key issue is being paid or having qualifications.

John Spellar (Labour, Warley)

It is some time since I was an Opposition Whip, and I am surprised to hear the Opposition Whip speaking today—times have changed since I was a lad. Given the short numbers of Conservative Members, I suppose that necessity has driven that process.

In spite of that change in the role of Whips, I was pleased to hear the intervention by the hon. Member for Uxbridge (Mr. Randall) because it was the proper voice of conservatism. I found it strange to hear the Conservative Opposition trying to be more restrictive than is required by the circumstances. It is obviously right, and not only because of public inquiries, that people who are critical to safety should be able to give their best performance at the appropriate time, but I find it strange that a Conservative Opposition should

press us to be more restrictive than is necessary. I am not sure whether that is another side of the emerging split inside the Conservative party, but I am sure that that point will be clarified.

I do not understand why the comedian on board a cruise ship should be denied more than a couple of drinks while he is not entertaining the assembled company. It is important that those people who have a job to do—their position is defined in the legislation—and who are critical to safety fully understand that, either from the point of view of their fellow crew members or if they are off-duty but have a safety role to play in the event of an incident. I find it strange that other crew members might be put into that position.

On commercial ships, particularly on long voyages, the ship constitutes home for its crew. In modern shipping, the ship often stays in port for a short period, then moves off. It would be excessively onerous and an unreasonable burden on the crew if the prescribed alcohol limits were applied to all crew members at all times while a vessel is at sea. It is right when they are on duty. ''On duty'' begins when someone is at the beginning of a watch or a roster.

That is why we deliberately distinguish between professionals who are or should be considered to be on duty and those who are not. That is clear in the legislation. It is a common-sense, practical approach that was well put by the hon. Member for Uxbridge.

Don Foster (Liberal Democrat, Bath)

The Minister makes a powerful case for the categorisation that has been selected and included. He specifically referred to the crucial importance of the safety-critical nature of the jobs involved. I wonder whether the Department has considered other safety-critical posts that may not be on board ship. I wonder, for example, whether the Government have considered harbourmasters. If not, why have they rejected the inclusion of harbourmasters?

John Spellar (Labour, Warley)

I await clarification on that. Subject to that clarification, if a harbourmaster is on a ship, he will be a potential master of the ship. He would also be acting in the role of crew—

Don Foster (Liberal Democrat, Bath)

He's not on the ship.

John Spellar (Labour, Warley)

Ah! It would depend whether someone was on duty. The crucial issue is whether someone would be liable to be engaged on duty. This is exactly the right procedure to adopt: to consider where a role is and is not safety-critical. We hope we have defined that issue. We are certain that the amendment does not cover it adequately.

Don Foster (Liberal Democrat, Bath)

I understand what the Minister says. However, the heading of this clause relates to shipping and is about the protection of passengers and so on. Clearly a number of people other than those on board at any one time will nevertheless, while off the ship, have posts that are critical to the safety of shipping. I gave the example of harbourmasters, who would not be on the ship but would have specific responsibility for ships entering a particular harbour or port. I could have given the example of staff on duty in lighthouses.

I am merely asking why a number of other categories of persons who have responsibility in respect of shipping are not included in the legislation.

John Spellar (Labour, Warley)

Quite simply, they will be covered by health and safety or ports legislation where relevant. This provision deals with ships and the transport side. If for any reason they were involved or engaged in any form of navigation, they would be covered by the Bill. Those who are land-side will be covered by the appropriate ports or health and safety legislation.

Anne McIntosh (Conservative, Vale of York)

I am taken by the example given by the hon. Member for Bath (Mr. Foster) because, in certain cases, particularly ''in an emergency''—the precise words used by the Secretary of State on Second Reading on 28 January, I would have thought that the harbourmaster could be deemed to have a safety-critical role. In a new piece of legislation it would make sense for those matters to be codified in one piece of legislation. That would help both the Committee, and those who will work with the legislation.

Don Foster (Liberal Democrat, Bath)

The hon. Lady will be aware that existing legislation covering those working on board ship already addresses the issue of their not being under the influence of alcohol and drugs. The Bill adds prescribed alcohol limits to that legislation.

There is one point that I hoped that the Minister might have addressed; the hon. Lady may also like to comment on it. The Minister is right that legislation already covers harbourmasters and those who operate lighthouses, but I do not believe that prescribed alcohol limits have been added to it. Since we are discussing that matter in the Bill, there could be an opportunity also to update those other pieces of legislation.

Anne McIntosh (Conservative, Vale of York)

The hon. Gentleman and I are as one on the issue. We are specifically addressing the question of alcohol and any excess of alcohol in those who are charged with the safe operation of a ship or the safe passage of a ship. I do not know whether the Minister's lack of response to the points raised by the hon. Member for Bath was wilful or accidental, but there is still time for him to respond.

I should like explore further the point made by my hon. Friend the Member for Uxbridge about whether a professional mariner should be identified by someone who has qualifications to sail. It could also be said that a professional mariner is a person employed or engaged in any capacity aboard a vessel, whereas a non-professional mariner—presumably a recreational mariner—would be an individual driving a vessel used for sport or leisure purposes. I should like to elicit from the Minister the difference in emphasis between a professional member of staff and a non-professional. It is a little silly of the Minister to say that we are looking to extend the provisions of this clause to a comedian or a lecturer on board a ship. We want to identify those who fall under the Bill and whose responsibilities and duties may be impaired through drink or drugs. Most of us would accept that a comedian's responsibilities and duties will be enhanced by the intake of alcohol, but I hope that none of us would expect a comedian or a lecturer

on board a ship to undertake any safety-critical functions.

Andrew Murrison (Conservative, Westbury)

I tend to agree with my hon. Friend that entertainers cannot possibly be regarded as professional seamen, but presumably the contract under which they were employed would reflect that. I imagine that such a contract would differ substantially from that of a professional seaman.

The crux of the matter is, however, the definition of a professional seaman. Would the hon. Lady agree with me that a steward, for example, should be included in that definition? I was, briefly, a steward in the Merchant Navy, and I would have regarded myself as being a professional seaman, because in an emergency I would have been required to steward passengers to lifeboats. Does the hon. Lady agree that we need more clarification?

Anne McIntosh (Conservative, Vale of York)

I am most grateful to my hon. Friend for that intervention. I think that the Committee will benefit from the experience that he has brought to bear in that regard. That is the reason why we tabled the amendment; it would make the definition more precise. If the Minister is not minded to accommodate the amendment now, we shall return to it at a later stage. We offered assistance with the proposal that a professional person is someone carrying passengers for a fee. We did not hear whether it was fruitful.

The bad news for the Under-Secretary is that the Minister chose not to come to his defence about the serious allegation that he has not met the august body NUMAST, its members, or its executive council for nigh on a year. The Bill was drafted during that period, in a not fully comprehensive and satisfactory form.

Don Foster (Liberal Democrat, Bath)

I hope that the hon. Lady will dwell at more length on the point made by her hon. Friend the Member for Westbury (Dr. Murrison), who said that his job while on board ship might have included taking action for passenger safety in the event of an accident. The hon. Lady will be well aware that the recommendations of the Hayes report on the proposal, which she will have read in great detail, specifically referred to that issue and talked about any member of the crew, including bar and catering staff, being called to assist in an emergency.

Anne McIntosh (Conservative, Vale of York)

I am most grateful for the hon. Gentleman's assistance, but his remarks did not hit the target, which was to persuade the Government to elucidate on the measure. We were told on Second Reading that off-duty professional mariners will be included if they are on the vessel, as stewards most surely are. They may be needed in an emergency to ensure passenger safety.

It may help the Committee to know that I take pride in the fact that I served very briefly—six days—as a lieutenant commander on HMS Cumberland in the Gulf.

I understood that the role of a steward in the Merchant Navy was similar to that of a guard on a train: in the event of an accident or a disaster, the

guard on a train or the steward on a ship, is called upon to attend to the passengers.

I hope that the Minister will see the logic of the amendments in seeking to differentiate between ''professional'' in clause 75 and ''non-professional'' in clause 77. A comedian and a lecturer clearly fall within clause 77, although that is subject to the debate on that, which I do not want to pre-empt. Opposition Members, including the Liberal Democrats, agree that the Hayes report and the recommendations of Justice Clarke and the words of the Secretary of State on Second Reading all point to the clause being defective. In the most helpful way, we seek to assist the Government in that regard. We will not press the amendment to a Division as we shall return to the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 48, in

clause 75, page 31, line 19, leave out 'fishing vessel' and insert 'ship'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss amendment No. 49, in

clause 76, page 31, line 36, at end add—

'(5) Where a person is charged with an offence under this section in respect of the effect of a drug on his ability to carry out duties on a ship, it is a defence for him to show that—

(a) he took the drug for a medicinal purpose on, and in accordance with, medical advice, or

(b) he took the drug for a medical purpose and had no reason to believe that it would impair his ability to carry out his duties.'.

Anne McIntosh (Conservative, Vale of York)

Clause 75 includes the defence for a person on a fishing vessel that

''he took the drug for medical purposes on, and in accordance with, medical advice, and . . . had no reason to believe that it would impair his ability to carry out his duties.''

We believe that that defence should be available regardless of the type of vessel. The amendment is intended to probe why a fishing vessel has been singled out and whether the Government intend that the defence will still stand. I do not think that that is a natural shadow of what is happening in the sporting world, but do the Government intend the defence to pertain to other vessels?

Amendment No. 49 is consequential and self-evident. It would clarify the situation, on which we felt that the Bill was unnecessarily silent. It raises the question of what type of drug and alcohol testing will be used. Will the Minister share with us the Government's conclusions about the most efficient way of testing? He will be aware that a large debate is taking place in all transport sectors about whether urine or blood testing is the most efficient. A sample of oral fluid—saliva for example—collected on a swab cannot be divided into two so that the donor can challenge the result by having the stored half reanalysed. What method have the Government deemed the most efficient in drug and alcohol testing?

By way of probing amendments, we seek first some justification for why a fishing vessel is specifically referred to. Does that mean that a fishing vessel is not deemed to be a vessel for the purposes for the other

subsections of clause 75? Secondly, we want confirmation that the traditional defence will still stand, which is set out in amendment No. 49.

John Spellar (Labour, Warley)

Section 117 of the Merchant Shipping Act 1995 is repealed by schedule 7 of the Bill. That section currently makes it an offence for a seaman employed or engaged in a United Kingdom fishing vessel to be under the influence of drink or drugs while on board the vessel if his capacity to fulfil his responsibility to the vessel or carry out the duties of his employment or engagement is impaired. The section allows fishermen a defence if they have taken a drug for medicinal purposes. We want them to keep the defence, and clause 75(5) preserves the existing situation without adding to it. The amendments would extend the medicinal defence to on-duty professional mariners as a whole, which we view as unnecessary.

Commercial vessels whose time at sea is comparable to that of deep sea fishing vessels are likely to have larger crews. That would enable another crew member to take over the duties of anyone affected by a medicinal drug. Commercial vessels with smaller crews are likely to be operated on shorter voyages. In those circumstances, crew members who are unwell but still working should be able to wait until going ashore before taking medication that they know will impair their performance. Not doing so would risk not only their own health, but the safety of the vessel. In that light, I hope that the hon. Lady will withdraw the amendment.

John Randall (Conservative, Uxbridge)

I am not certain that I heard the Minister correctly. Did he say that someone should wait before going ashore if they had reason to believe that it would impair their ability to do their job? Let us deal with fishing vessels first and move on to others later. The key point is what happens if someone does not realise that his ability will be impaired? The defence would be that the person taking the drug for medicinal purposes might not have been aware of any effect. Some medicines state, ''Caution, may cause drowsiness: do not drive or use machinery''. The person taking such a drug would have to prove that they did not know about its detrimental effects.

I do not understand why the provision should apply specifically to fishing vessels. I understand the importance of the size, but some vessels might have a crew comparable to that of a fishing vessel, so is it not unfair that a person cannot use that defence simply because he has not gone fishing. I am making the point rather crudely, but it seems odd that a defence for someone on a fishing vessel does not apply elsewhere. The person taking the drug might not be aware of its effect. Such is my main concern, which has not yet been fully dealt with.

Jimmy Hood (Labour, Clydesdale)

Order. I am reluctant to interrupt the hon. Gentleman, but interventions should be interventions and therefore brief.

John Randall (Conservative, Uxbridge)

Sorry, I thought that the Minister had sat down.

John Spellar (Labour, Warley)

No, I was taking a worthwhile intervention from the hon. Gentleman. I thought that I had explained the key issue, but I am happy to reiterate it. The crew on shipping vessels tend, by nature of their employment, to be away for longer than crews of other vessels of comparable size. That is the difference. Vessels undertaking long-distance journeys are likely to have larger crews and will be able to alternate watches and duties to help those requiring medicines. Other vessels of comparable size might operate in coastal waters on shorter journeys, which is why with good reason we retained the exemption for fishing vessels and carried it through into the Bill rather than extending it further.

John Randall (Conservative, Uxbridge)

I understand what the Minister is saying, but if a pleasure craft is on a short journey for a couple of hours around a harbour and a crew member feeling unwell takes some cough mixture without realising that it will have an effect on him, why should he be discriminated against to a greater extent than someone on a fishing vessel? As I said, the defence would be that it was not done intentionally.

John Spellar (Labour, Warley)

The defence is in two parts—either he took a drug for medicinal purposes on and in accordance with medical advice, or he took the drug and had no reason to believe that it would impair his ability. I take the point that the situation is different. It is right to have a defence for those with limited crews who might be away for some time and whose members, if they were medically impaired, would pose a risk to other crew members because they might be unable to perform their roles. That is a practical example of why it is right and desirable the follow the existing legislation, which makes a sensible differentiation, rather extending it further.

Don Foster (Liberal Democrat, Bath)

Is the Minister implying that anyone who operates in a safety-critical position on a small-crewed vessel other than a fishing vessel should not, under any circumstances, take any drug? In the vast majority of cases, the second defence is critical—the person takes the drug having no reason to believe that it will impair ability. From what the Minister has said, nobody should take anything whatsoever when they are in such situations, regardless of their medical conditions.

John Spellar (Labour, Warley)

No, the Bill does not say that at all. It might be a common medicinal drug that the individual has taken many times and he is fully aware of any impact, or it could be one for which it is clear what any side effects will be. The hon. Gentleman could be right in that there might be a narrow grey area such as the one that applies in the sporting field. Where there is uncertainty, prudence is the best guide. There must be a number of drugs whose side effects—or lack of them—are well known. Similarly, an individual who has taken a drug often and is not aware of any adverse affects would obtain the medicinal advantage without suffering any side effects that would impair his ability to operate the craft. In those practical terms, this preserves a common-sense exemption to deal with the particular circumstances of fishing vessels compared with commercial craft.

Anne McIntosh (Conservative, Vale of York)

I can see where the Minister is trying to go with this. All of us without having taken a

drink have in our bodies a certain amount of a substance—ether or ethanol, I think—and certain drugs can make it appear that one has consumed an amount of alcohol by increasing that substance. As the hon. Member for Bath and my hon. Friend the Member for Uxbridge have said, while the Government recognise that that is a defence, in practice it might not be so clearly understood. The ship becomes the person's home. If he has a serious medical condition he might depend on certain drugs, but if he has a doubt about his position under these provisions, he might feel less inclined to take those drugs while on duty. That could damage his performance because he will be more concerned about his medical condition than he might otherwise have been.

I was grateful to the Minister for his explanation. The two probing amendments have served their purpose. If I have understood correctly that a fishing vessel will be covered in the same way for both purposes, I hope that we can, elsewhere in the Bill, consider the best form of testing. In the circumstances we will not seek to press the matter further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Anne McIntosh (Conservative, Vale of York)

The genesis of the legislation, particularly clause 75 in part 4, has taken some time. After the marine accident investigation branch inquiry into the Marchioness disaster in 1989, the Government asked John Hayes to conduct a wider inquiry into river safety. The Hayes report, which was published in 1992, made 22 recommendations, of which recommendation 18 was that

''The Department [of Transport], after appropriate consultation, should promote legislation to introduce a breath test similar to that applying to motor vehicle drivers which would apply to the skippers and crew of all vessels.''

That acknowledges the fact that, apart from the general provision in section 58 of the Merchant Shipping Act 1995, there is no specific legislation to regulate alcohol consumption in the maritime industry. Section 58(1)(b) makes it an offence for

''the master of, or any seaman employed in, a ship which—

(i) is registered under the law of any country outside the United Kingdom; and

(ii) is in a port in the United Kingdom or within United Kingdom waters while proceeding to or from any such port.''

to endanger his ship or other ships by being—as set out in section 58(3)(b)—

''(b) under the influence of drink or a drug at the time of the act or omission.''

At present, no maximum blood alcohol limit is specified. At the close of the resumed inquest into the Marchioness disaster in April 1995, the inquest jury made 12 recommendations on ship and river-boat safety, one of which was that

''Legislation should be introduced to set maximum blood alcohol levels for seamen on duty. In the event of an accident, all crews should be breathalysed and tested for drugs as a matter of urgency.''

The then Government undertook to give urgent and careful consideration to all the recommendations. In

January 1996, they made public their considered response, in which they said that they were carefully considering the need for legislation.

We welcome the proposal to make it an offence for professional mariners to be under the influence of drugs or alcohol—particularly alcohol—when carrying out their duties. Clause 75(3) states:

''A person to whom this section applies commits an offence if the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.''

I wish to seek clarification from the Minister on that matter.

Part 3 of the Bill was also subject to consultation and was on the Department's website. When we debated part 3, I found it very useful to have a summary of the responses to the consultation paper. The Government reply to the responses was also posted on the web. That was immensely helpful in considering that part of the Bill. It is therefore a little disappointing that although one can find the consultation paper and the invitation to consult on the web, we are hampered by neither the summary of the responses to the consultation on the proposed legislation to combat alcohol abuse at sea, nor the Government's response to it, being on the web.

This morning I contacted the Department, which directed me once again to the House of Commons Library. This time, the business and transport section of the Library has been most helpful, but for the purposes of consideration of this part of the Bill, I have only the slimmest summary of responses in a tabular form, and it is difficult to get an overall view of the responses to the consultation from the industry and individuals. If they go to the expense of carrying out such a consultation, I urge the Government to make the responses as widely available as possible.

Will the Minister tell us which form of testing for the presence of alcohol is likely to be the most effective and the speediest? I presume that testing for alcohol in the breath would be carried out using a breathalyser, but which is better—a breathalyser, or blood or urine samples? Have the Government considered using oral samples, whereby samples of oral mucosal transudate are collected from the inner side of both cheeks using a swab. I gather from recent articles that that was found to be less reliable and effective than blood testing. As studies of this were carried out in July and August last year, the Government have had plenty of time to form a more considered view.

I return to the point about a master, pilot or seaman being considered professional only if he acts as in that capacity in the course of business or employment. In our little debate on the earlier amendments, the Minister simply said that one can prove that a professional seaman in a ship is on duty or deemed to be about to respond to an emergency in which he might called upon to protect passengers by looking at the roster which is in common usage in our merchant shipping fleet.

Andrew Murrison (Conservative, Westbury)

That simply would not do. Self-evidently, in the event of an emergency at sea, all employed crew members on board would be expected

to help out. We have dealt quite well with entertainers and lecturers, but we have not yet dealt with people such as stewards.

Anne McIntosh (Conservative, Vale of York)

It is appropriate to ask the Minister to set out the position of stewards. A steward could not possibly be treated in the same way as a master pilot of a ship, but would be considered to be a professional seaman. He is more operational and has a greater safety role than a comedian or a lecturer, whom we have dismissed for the purposes of this clause. Can the Minister confirm what the criteria would be and whether the Government feel that there is a need to be more specific in that respect? We perceive such a need.

There was quite a debate at the time of the Marchioness disaster. We have referred to both the Tavistock Institute and the Hayes reports. The Marine Safety Agency of the then Department of Transport commissioned research from the Tavistock Institute into the problem of alcohol and drug abuse at sea. The main objectives were to measure the magnitude of the problem, to examine how it was dealt with in shipping and related industries and, in the light of the information thereby gathered, to advise on legislative and/or advisory ways forward.

The subsequent report, entitled ''The Tavistock Research Institute Report MSA {**hash**} 346: Alcohol and Drug Abuse Aboard Shop'', was published in May 1995. It concluded that an understanding of the problem was difficult and complex because of the anecdotal nature of most of the evidence, the varying attitudes of different parts of the industry, and the limited number of statistical sources. It stated that a truer picture would require longer-term research. However, the main thrust of the institute's findings suggested that the extent of alcohol abuse varies according to the different type of craft surveyed, being low to non-existent on commercial vessels operated by oil companies, ferry companies, container and dry cargo operators with active alcohol policies, of medium severity in other deep-sea fleets, and of high severity in small merchant fleets and fishing boats.

The Tavistock Institute further suggested that, were legislation to be enacted, it should include a definition of due diligence—the degree of responsibility that it would be reasonable to expect companies and individuals to have for tackling the problem—and a technically defined and legally enforceable level of impairment for alcohol. In the institute's view, any legislation should apply only to ships in United Kingdom waters, and testing should be carried out by the local police.

The Transport and Works Act 1992, which covers railways, contains a defence of due diligence as well as provisions relating to offences by corporate bodies. Perhaps the Minister will take this opportunity to explain whether the Government have decided to include the defence of due diligence. If they have, will he direct us to the relevant part of the Bill so that we know when to have the debate? If not, will he tell us why the shipping industry, with professional mariners, has been treated differently from the railways?

There were compelling reasons why the Government had to take action. One was that identified by the Tavistock Institute study: many shipping companies have introduced their own alcohol policies, which indicates their belief that action was needed. Legislation would have an effect on those employed by companies that have not decided to take action, but I am sure that the Minister will confirm that the Bill will apply one policy to all ships, whether or not their owners have a policy of alcohol testing.

The Government are right to consider it anomalous that blood alcohol levels are specified for road users and operators and crew of inland and airborne public transport but not for shipmasters and crew. It would be difficult to argue that there is an intrinsic difference between the transport modes to support such a disparity. Impairment through alcohol can lead to accidents at sea in the same way as it can elsewhere. The regrettable Marchioness disaster is indicative of that.

Andrew Murrison (Conservative, Westbury)

I am listening with great interest to my hon. Friend, and as ever she is right. However, will she reflect on the difference between someone being behind the wheel of a car at 80 mph on a motorway and someone being on the bridge of a ship, where things happen much more slowly?

Anne McIntosh (Conservative, Vale of York)

I have driven a ship—I drove HMS Cumberland for a remarkably short time, and I am happy to say that it did not crash.

John Randall (Conservative, Uxbridge)

Where is it now?

Anne McIntosh (Conservative, Vale of York)

According to the latest information that I could elicit from the Government in written answers, HMS Cumberland is part of the current operation in the Gulf. She is a magnificent vessel and I wish her Godspeed. The hon. Member for Ilford, North (Linda Perham) and I certainly enjoyed our opportunity to go aboard, and I think that we conducted ourselves well—the Committee would be proud of our conduct. I might have driven the ship better than I prepared the vegetables, but that is a personal view.

Linda Perham (Labour, Ilford North)

I thank the hon. Lady for paying tribute to me; I, too, was a temporary lieutenant commander. However, I want to return to the point that the hon. Member for Westbury made about at the speed at which things happen on a ship. I was on board the cruise ship Norwegian Dream when it was in collision in the channel on 24 August 1999. That ship was the largest ever to go through the Kiel canal, and we were in collision with a cargo vessel that was the size of the QE2. That happened extremely quickly late at night. Despite the point that the hon. Gentleman made and my experiences on HMS Cumberland with the hon. Lady, my view is that things can happened extremely quickly both at sea and on the road.

Anne McIntosh (Conservative, Vale of York)

I agree with both the hon. Lady and my hon. Friend the Member for Westbury. If memory serves, in the case of the Marchioness, the failure of the lookout was ultimately deemed to be the cause, so the points raised are pertinent. In relation to what my hon. Friend said, if one is alone and driving a car

recklessly down a motorway, one can cause death or injury to other road users. That danger is compounded on ships, especially the cruise ships to which the hon. Lady referred, and other such large vessels, because one would then be a professional mariner carrying passengers for a fee and one would therefore have a duty of care to those passengers.

Andrew Murrison (Conservative, Westbury)

The point that I was trying to make is that there appears to be an empirical comparison between roads and sea transport in the Bill. Although that might be convenient, there is no real evidence base for making that direct comparison, because transportation at sea is quite different from transportation on our roads. Does my hon. Friend agree with that?

Anne McIntosh (Conservative, Vale of York)

Yes. That is a fair comment, and I shall be interested to hear precisely what the Minister thinks about it.

Don Foster (Liberal Democrat, Bath)

Even if the hon. Lady agrees with the hon. Member for Westbury, can she say where that would lead us? Does she believe, for example, that the alcohol limit for people on board ships should be radically different from that which applies to those driving cars?

Anne McIntosh (Conservative, Vale of York)

It comes down to what we have said about quality of life and safety. Standards should be high for each mode of transport. I am sure that we shall have an opportunity to consider that issue later in the Committee in relation to later amendments.

Andrew Murrison (Conservative, Westbury)

I might be able to help a little. We need to know the Minister's justification for establishing the limits in question. Has he done that merely out of convenience—the limits happen to be same as for roads—or is there some evidence base that is driving forward the limits for transport at sea?

Anne McIntosh (Conservative, Vale of York)

To dwell for a moment on the terrible tragedy that I believe lies behind the provision, 51 people died in the Marchioness pleasure boat disaster on the River Thames. Lord Justice Clarke published his report from the public inquiry. In August 1989—almost 14 years ago—the Marchioness with 132 people enjoying a birthday party on board sank after a collision with the dredger Bowbelle. The skipper of the Bowbelle was acquitted of failing to maintain a proper lookout after a second jury had failed to reach a verdict. The marine accident investigation branch report of August 1991 said that the failure of the lookout on both ships was the immediate cause of the tragedy. The Hayes report was published in January 1991, after an inquiry into river safety conducted by the general secretary of the Law Society, John Hayes. In February 1992, the coroner confirmed that the hands of more than 25 victims had been removed.

I hope that the Minister will confirm that that is the real reason for those provisions. I lend my support to them, but the Minister will have heard what hon. Members have said on both sides, and the questions that have been raised. I take this opportunity to let him respond.

Don Foster (Liberal Democrat, Bath)

I shall be brief. We firmly support the measures. Although we raised queries through a number of amendments, we are supportive of what the Government seek to do. The Minister will acknowledge that the measures are long overdue, but they are welcome none the less.

I have only one question. If get a clear answer from the Minister now, it will prevent us having to ask similar questions on a number of subsequent clauses. The work being done in relation to safety on various modes of transport has tended to focus on alcohol abuse, because we have known about that for rather longer than we have known about drug abuse. Indeed, detailed standards are now prescribed on alcohol abuse, although, as a subsequent amendment will demonstrate, I believe that we have chosen the wrong ones. Nevertheless, we have very detailed knowledge of the subject.

The hon. Member for Vale of York (Miss McIntosh) properly raised questions about the various testing regimes. The sad truth is that we have less knowledge about the impact of drugs on people's ability to fulfil safety-critical functions in relation to marine activity and aviation and on the roads and railways. Will the Minister tell us a little more about the background to the equivalent prescribed limits for drugs and what testing regime is intended, as there is an absence of detail in the Bill? I give way to the hon. Member for Uxbridge.

Jimmy Hood (Labour, Clydesdale)

Order. The hon. Gentleman says that he is willing to give way, but I understand that he is intervening on the hon. Member for Vale of York.

Anne McIntosh (Conservative, Vale of York)

No, I had finished.

John Randall (Conservative, Uxbridge)

There is another question. I agree with the hon. Member for Bath about drugs, but another thing that is not mentioned—it probably does not happen so much—is solvent abuse.

Don Foster (Liberal Democrat, Bath)

Indeed. That will depend on the definition of the drugs, and the Bill is a bit short in that regard. Perhaps the Minister can answer that question.

I have heard it said by some Labour Members that there are difficulties in testing for drugs. We have grown used to the breathalyser as the first check on alcohol abuse, but the Minister should be aware that a number of other countries already have solutions to the drug-testing problem. I referred some weeks ago to my visit to Sweden, where I saw some of the work being done there on transport safety. I spent a considerable time discussing drug-testing procedures. People there do not seem to think that it is a problem. Indeed, I have with me a pupilometer, which the road transport police use in Sweden. It works along the same lines as the breathalyser. An allegedly guilty person is first checked with the pupilometer and, if necessary, is then given further tests; samples are taken, just as they are for alcohol. The Bill gives clear details of what happens in respect of alcohol, but not in respect of drugs. It would be good to hear a little more about the Government's thinking on that question.

John Spellar (Labour, Warley)

I am pleased to reply to the debate. It is right to say that we do not have a defined procedure for testing for drugs. That is generally agreed to be a problem, which is why the Bill deals with it through enabling provisions. As we develop a scientifically agreed drugs testing system, we shall be able to put those provisions into operation. We shall then be able to define the appropriate limits and units of measurement. It will be generally agreed, subject to medical advice, but medical science is not yet at that stage. However, we want to include those provisions in the Bill so that once we get an agreed testing procedure, we can take it on board.

Notwithstanding that, it will still be an offence to be in charge of a vessel while under the influence of drugs, and there are rough and ready, but less precise, measures for dealing with that. I take the point made by the hon. Member for Bath that there is a gap, which is the result of the state of technical advance, but it is one that we hope will be remedied. As the hon. Gentleman noted, other police forces and medical institutions have done a lot of work, and we hope to be able to take advantage of that.

There are well established procedures for testing breath and blood for alcohol in the automotive sector, and the marine sector would closely follow that. Existing ways of measuring the impairment of performance will enable us to say that someone is not fit to be in charge of a vessel or a vehicle.

The hon. Member for Vale of York mentioned the report of the Tavistock Institute. She will agree, I am sure, that it was relatively inconclusive. However, the Marchioness inquiries provided the basis for consultation on testing.

Questions were also asked about stewards, but they would be included under the designation of professional seamen. It has been mentioned several times today that members of the crew in that position should be alert at all times when at sea. As my hon. Friend the Member for Ilford, North said, such incidents can happen quickly and have serious or even catastrophic results.

The hon. Member for Vale of York asked about the consultation documents on the website. I understand that the consultation that she referred to took place in 1996, before the Department had a website, and that that material was appropriately placed in the House of Commons Library. I am glad that the hon. Lady was able to make use of it.

It gives me pleasure to commend the clause to the Committee.

Miss McIntosh rose—

Jimmy Hood (Labour, Clydesdale)

Order. We have had a fair discussion on clause stand part, unless the hon. Lady is raising something entirely new.

Anne McIntosh (Conservative, Vale of York)

It is entirely new, Mr. Hood, as you would expect.

Jimmy Hood (Labour, Clydesdale)

Indeed, as I would expect.

Anne McIntosh (Conservative, Vale of York)

As ever, I wish to be helpful. I have a copy of the Department for Transport consultation paper on possible legislation to combat alcohol abuse

at sea. Responses to that consultation were to have been treated confidentially, but I thought that the Government might give us a summary of them. Furthermore, responses were required by 31 March 2000, and it is not customary for the Department for Transport to take four years to reply to such consultation. It certainly breaks with tradition.

If those responses had genuinely have gone missing as a result of a change of Department responsibility, it would have been understandable, albeit regrettable, especially as the Bill is trying to deal with that very problem. I am slightly surprised that the Minister, being, as he is, in such an elevated position, is not aware that such a consultation had invited comments by 31 March 2000. That is not so long ago that the Department would have got rid of the responses.

I have some other new information that I wish to share with the Committee. Being an avid reader of the Order Paper, as are other members of the Committee, something important came to my attention yesterday. Curiously, it was the day before we were due to debate these clauses—indeed, we might already have started if we have trotted through the preceding clauses at a faster pace. I was mildly surprised to see in the Order Paper a written ministerial statement—yet another example of the detestable little gimmicks that the Government use—about the subject before us this afternoon.

That statement was on the implementation of the recommendations of the reports of the inquiry into Thames safety and the formal investigation into the loss of the Marchioness. It was made by none other than the Minister's hon. Friend the Under-Secretary of State for Transport. I raise the subject now because, in view of the Minister of State's reply, I thought that I should give him the opportunity to mention it. I have twice raised the matter, and the hon. Member for Bath has joined me in requesting details of the form of testing that will be used. It is appropriate at this stage of the Committee's proceedings that we should be able to discuss the matter.

That written ministerial statement was laid before Parliament and was referred to in the Order Paper, and a copy has been placed in the Library. This is the third update since November 2001, and it is about progress on manning and training on passenger ships, the introduction of a safety code for domestic passenger ships, and the fact that the London coastguard now co-ordinates all search and rescue activities—but it does not help us with what I would have though was of most interest to the Committee: precisely what type of testing will be used. Even though Ministers frequently avail themselves of such opportunities, it does not add to the sense of the open government that we want.

The Bill refers to breath, blood or urine tests. I hope that that might include testing oral fluids on a mouth swab. The test is best known as the OMT—oral mucosal transudate—test. That is something to which we can return.

David Jamieson (Labour, Plymouth, Devonport)

For clarity, I have to say that it was the Labour Government who called the

public inquiry into the Marchioness disaster—a substantial time after the event. If the hon. Lady is listening, we have undertaken regularly to provide comprehensive information to Parliament. I am sorry that she is pouring scorn on the Government's efforts to provide Parliament with information that the Government that she supported never provided.

Question put and agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76 - Professional staff off duty

John Randall (Conservative, Uxbridge)

Unlike many other members of the Committee, I have no nautical bent, although, like the Minister, I have an uncanny resemblance to Captain Birdseye, albeit a younger, slimmer one. I was once on a sailing vessel around Cape Verde islands in pursuit of my passion for bird-watching. That is the only time when I have been on such a vessel. The only way to be there was to be part of the crew, which was interesting for a landlubber from Uxbridge. I understood how important it was to know that something could crop up at any time when one is at sea. We talked about emergencies, but on a sailing vessel one can be suddenly woken from one's slumbers to find that the sails and rigging need to be changed. I found the various bits of rigging disconcerting at first. I am the first to say, ''Let people enjoy themselves and have a drink from time to time.'' From my limited experience, however, when a ship is at sea, all staff have a duty to ensure that they are in a fit state to handle anything that crops up.

In our debate on the previous clause, we talked about fishing vessels. Does clause 75 apply, and does it need to apply, to professional staff off duty on fishing vessels? I presume that the same things apply whether they are on or off duty.

Anne McIntosh (Conservative, Vale of York)

My point is not dissimilar. It relates to an earlier discussion and the Secretary of State's remarks about off-duty professional mariners being treated as if they are on a vessel and might be needed in an emergency to protect passenger safety. I understood that it was not the mood of members of the Committee to accept the Minister's clarification. Will he confirm his remarks?

Without being too pedantic, I understand the Government's intention behind the clause, which relates to professional seamen who I presume are qualified and paid to do the job and who, while off duty, would be charged in the event of an emergency, presumably for the protection of the safety of passengers. They will need guidance on the circumstances in which they will not experience a conflict. The Minister rightly said that, given the amount of time that professional mariners spend at sea, their off-duty time is precious to them and they need to be allowed to enjoy themselves as best they can. The Minister will say that the provisions refer only to those boats used in UK waters, so we are not

talking just about river boats or UK-registered ships. Any ship in UK waters might be subject to the provisions. It would be helpful if the Minister would confirm that.

Like my hon. Friend the Member for Uxbridge, I have some difficulty reading clause 76 in conjunction with clause 75. We are not satisfied that there is sufficient recognition. I repeat that we support the Government proposals. We are simply trying to be helpful and to probe the Minister, with a view to that clarification, at the earliest possible stage for the purposes of those who spend substantial amounts of time at sea and who feel that there is no conflict. They will want to know that when they are definitely off duty, they are not in danger of breaching the provisions and being prosecuted as a result of enjoying themselves and perhaps having a drink.

Andrew Murrison (Conservative, Westbury)

For the avoidance of doubt, I should say first that I support clause 76. However, we need to go into this with our eyes open, because it extends the remit of the Bill quite substantially. We need to remember that, for seamen, their ship is often their home, and we are curtailing their liberties quite severely with this measure. We also need to appreciate the changing nature of life in the Merchant Navy in particular and, often, on cruise ships, which spend just a few hours in port and then continue on their voyage.

Stipulating that seamen should limit themselves in the way proposed places quite a severe constraint on their ability to go ashore, enjoy themselves and relax. We are extending the spectrum of the measure from the man who drives the ship and is in charge—the captain of the vessel—who is, of course, at all times safety critical, to those who may at some point be safety critical in the event of an emergency. We are bracketing all those individuals together and treating them as one for the purposes of the legislation.

John Spellar (Labour, Warley)

We are approaching agreement on this issue, but I want to stress something to Conservative Members. There has been a tendency in this quite useful section of the debate to merge clauses 76 and 75. Let us be clear: clause 76 applies to crew members who might, in the event of an emergency, be required to take action to protect the safety of passengers. Therefore, it does not apply to a considerable number of other carriers that do not have passengers on board. In this context, we are talking about passenger vessels or ferries. We are considering the fact that, in the event of an incident, those crew members may well be required to provide assistance for the protection and safety of passengers. That is important.

We take account of many of the points that have been made about the fact that, for crew members, the ship is their home, although for many of the other ships that have been described, that is less likely to be the case. As I said, we are talking about ferry ships. That is different from UK vessels that sail the seven seas and, as the hon. Member for Westbury said, often call into ports briefly for rapid offloading and taking on of containers. That is precisely why we are trying to create a differentiation. We are focusing on where the measure is required for safety, rather than having a

blanket measure that would be an onerous burden on crew members. I commend the clause to the Committee.

Question put and agreed to.

Clause 76 ordered to stand part of the Bill.

Clause 77 - Non-professionals

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 74, in

clause 77, page 31, line 38, after 'person', insert

', subject to their being in a position to pose a substantial safety risk,'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss the following amendments:

No. 75, in

clause 77, page 32, line 10, at end insert

'after consultation with relevant trade associations and recreational boat user groups.'.

No. 73, in

clause 77, page 32, line 11, at beginning insert

'Subject to consultation with the relevant select committees of both Houses of Parliament and relevant trade associations and recreational boat user groups,'.

Anne McIntosh (Conservative, Vale of York)

The Minister helpfully explained in the previous debate that part 4 of the Bill relates to passenger-carrying vessels such as cruise ships. I am sure that the Committee would also view ferries, disco boats and riverboats as naturally coming within the definition and it is good that we have reached agreement.

Clause 77 relates to non-professionals, who could be referred to as recreational mariners. The Government have not seen fit to draft an amendment and we have come up with one or two that might assist. I repeat that we would like to think of a professional mariner as someone employed or engaged in any capacity aboard a vessel, and a non-professional mariner as someone driving a vessel used for sport or leisure purposes. Is that how the Government are thinking?

On the basis of what I have said, we take it that clause 77 relates to recreational mariners sailing for sport and leisure purposes. I must be careful how I express this, but all of us who have been out on small vessels are accustomed to the fact that a certain amount of social drinking has always been part of the social scene. I do not say that I condone that, but I have witnessed it. There is no evidence of a widespread drunkenness problem in that context. Neither the Opposition nor the industry would condone anyone being in charge of a vessel while under the influence of drink or drugs. However, we tabled the amendments because poorly framed legislation could damage the recreational boating market.

I declare an interest in that while at the university of Edinburgh I joined the sailing club and enjoyed a few sailing trips off the firth of Forth and Loch Tay. Recently I went to the boat show at Earl's Court and I

pay tribute to the boat industry—particularly the British Marine Federation—for its work and its contribution to the national economy. I might aspire to own one of the gin palaces that were in dry dock at the boat show; there was an opportunity to board those magnificent vessels. If I seriously wanted one, I would be doing something more lucrative than my present job, but I can still feel envy. I have a British Waterways interest in my constituency and I hope that many will gain enjoyment from the recreation craft that ply the inland waterways of Vale of York and other parts of the United Kingdom. Many people buy narrow boats to use as holiday homes as an alternative to investing in a cottage in the country.

We seek to probe the Minister. Does he accept that professional mariners, whether circumventing the UK or plying our inland waterways, do not pose a substantial threat to safety? That is the purpose of amendment No. 74. We would not condone any drunkenness on any vessel, whether an inland waterway vessel or a recreational craft plying UK waters. The investigations in the reports that I referred to earlier and my remarks in relation to clauses 75 and 76 go to show that the evidence on larger ships was not conclusive. We pledge our support for the measures in this part of the Bill, but we want to send a warning shot across the Government's bows. I am sure that it is not the Minister's intention to suggest that recreational craft pose a substantial safety risk. He might, therefore, see fit to accept amendment No. 74. We were invited by the Under-Secretary to propose a draft definition of recreational mariner for the purposes of subsection (1). We would suggest that it is a person using a vessel in a private capacity for sport and leisure purposes along the lines that we have discussed.

It would be helpful if the Minister would either accept amendment No. 75 or confirm that, in normal circumstances, before measures are taken, there will be consultation with the relevant trade associations and recreational boat user groups—many organisations spring to mind, such as British Waterways, the British Marine Federation and even the British Ports Association.

The final amendment in this group is amendment No. 73, which relates to our hope that the Select Committees of both Houses of Parliament and the trade associations and recreational boat user groups would be consulted for the purposes of the provisions.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I commend the hon. Lady's honesty. She made a veiled confession that she had indulged, or possibly over-indulged, in social drinking. Hon. Members will know that when one refers to other people's having indulged, frequently, one is actually referring to oneself.

I want to probe the probing amendments.

Andrew Murrison (Conservative, Westbury)

I am grateful to the hon. Gentleman. I spring to the defence of the hon. Member for Vale of York who has been misrepresented. She quite rightly made the point that, in certain sections of the sea-going community, there is a culture of enjoying

alcohol. I think that that is a matter of fact, and the hon. Lady was saying no more or no less than that.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I am happy to have taken that intervention. It is, indeed, a matter of fact that certain people do indulge in alcohol.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

The hon. Gentleman raises an important point. I hope that the hon. Member for Vale of York will intervene or clarify her position as regards the inference that may reasonably be drawn from her earlier statement. Given that the incident may well have happened in my constituency, I would certainly feel obligated to report the matter to the procurator fiscal.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the hon. Gentleman for that intervention. We had better not go too far down that route or Mr. Hood will intervene. I must concentrate on the amendments and probe them.

The wording of amendment 74 requires clarification. Could every person on a leisure vessel not pose a substantial safety risk at some point? I therefore wonder whether that amendment is redundant. One could also question the use of the adjective ''substantial'' and whether one should not be looking at ''significant safety risks'' or even just ''safety risk'', rather than opting for ''a substantial safety risk''.

I seek clarification from the hon. Member for Vale of York on amendments Nos. 75 and 73. Amendment No. 75 states that consultation will be with,

''relevant trade associations and recreational boat users groups'',

whereas amendment No. 73 states that consultation will be with ''the relevant select committees''. It is not entirely clear to me why that is the case and why there could not also be consultation with Select Committees in relation to amendment No. 75.

John Spellar (Labour, Warley)

We consider the amendments to be largely superfluous, and I hope to explain why. Amendment No. 74 seeks to explain in vague terms what will be provided with certainty by regulations made under clause 77(4). That is precisely so that we can deal with several of the variations, difficulties and complexities that have been rightly mentioned.

The amendment as it stands goes well beyond the exceptions envisaged in clause 77(4) by seeking to except some recreational mariners from the requirements of clause 77, including the impairment provisions of clause 77(2). The Government intend to except certain classes of recreational mariners from the specific alcohol limit, but have no intention of allowing anyone whose ability is impaired through drink or drugs to be excepted from those provisions.

Amendment No. 74 also introduces uncertainty because it will inevitably be difficult to define the phrase

''being in a position to pose a substantial safety risk'',

as the hon. Member for Carshalton and Wallington (Tom Brake) highlighted. How substantial must the risk be before a recreational sailor falls within the terms of clause 77? The uncertainty will exist both in the minds of those who are regulated and the police,

who have the task of enforcing those provisions. Therefore, the inclusion of those words will be likely to undermine the legislation and the intentions of Parliament by leading to under-enforcement.

The regulations that we will bring forward in due course will aim to provide a greater degree of certainty by reference to clear parameters so that the extent of the exception from the prescribed limit will be clear, both to the recreational mariners themselves and the police.

I turn to amendments Nos. 73 and 75. As ever, the Government recognise the need to consult widely on the regulations that were made under clause 77(4). Departmental officials have already held preliminary discussions with the British Marine Federation and the Royal Yachting Association on the nature and extent of the proposed regulations. Officials will continue to consult those and other organisations that have an interest in the matter.

Amendments Nos. 73 and 75 are therefore superfluous and unnecessary. So, frankly, is the reference to consultation with the relevant Select Committees of both Houses. Clause 85(4) states:

''Regulations under this Part shall not be made unless a draft has been laid before and approved by resolution each House of Parliament.''

In other words, it has to go through the affirmative resolution procedure. That will ensure that there is appropriate and sufficient parliamentary scrutiny.

Taking my comments into consideration, I hope that the hon. Lady will see fit to withdraw the amendment.

Anne McIntosh (Conservative, Vale of York)

In his summing up, the Minister spoke about exemptions. I had hoped to raise that subject on clause stand part, Mr. Hood, if you would be kind enough to allow that. It may be a pedantic way of doing it—that is the purpose of probing amendments—but I was trying to elicit from the Minister an acknowledgement that the risk faced by those on a little sailing boat, a dinghy or a yacht, or an inland waterway vessel, is not as great as that faced by those on vessels such as the Marchioness, which ended in tragedy, or the cruise ship that the hon. Member for Ilford, North enjoyed.

To put the Committee's mind at rest, in my limited experience at Edinburgh university, which may be in the constituency of the hon. Member for Edinburgh, North and Leith, I always went along with safety precautions. Rather than go skiing, I would enjoy an après-ski drink; and I thought it far more sensible to enjoy an après-sailing drink rather than a during-sailing drink. In all circumstances, one would wish to have one's wits about one, but I thought that what one observed about others enjoying themselves was worthy of note.

I welcome the fact that the British Marine Federation and the Royal Yachting Association were consulted. However, I urge the Minister to note the difference between consulting and listening and acting on what has been said. If all those concerns had been addressed, we would not have needed to table these three amendments. I did not hear the Minister mention the UK waters distinction, but I hope that we will have

another opportunity to discuss that. I hear the Minister's assurances, and we shall have further debates on various aspects of this part of the Bill, so I shall not press the amendment, but may return to the matter later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 84, in

clause 77, page 32, line 3, at end insert—

'(1A) For the purposes of subsection (1) a ship includes a vessel used in a private capacity for sport or leisure purposes.'.

Jimmy Hood (Labour, Clydesdale)

With this it will be convenient to discuss amendment No. 77, in

clause 83, page 35, line 34, after 'ship', insert

', including privately owned recreational vessels,'.

Anne McIntosh (Conservative, Vale of York)

I was a little premature earlier, Mr. Hood, and you were kind to me. We were invited to come forward with a definition of recreational or non-professional for the purposes of clause 77, and this is it. We humbly proffer amendment No. 84 for that purpose; it would neatly fit the bill. I hope that the Minister will accept the definition in the spirit in which it is made.

Amendment No. 77 would add privately owned recreational vessels to the definition in clause 83, if the Minister does not consider that such vessels are included in the word ''ship''. It would apply when a constable was exercising his right of entry, which we shall discuss later. It may be helpful to clarify the clause by including the definition in the amendment.

John Spellar (Labour, Warley)

I refer the Committee to clause 86(1)(a), the interpretation clause for part 4. It defines a ship to include every description of vessel used in navigation. That definition is taken from section 313 of the Merchant Shipping Act 1995 and is already wide enough to include all such vessels used in a private capacity for sport or leisure purposes.

At present, the definition of a ship does not include craft that can properly be regarded as vessels used in navigation—instruments such as jet skis, for example. However, the Government intend to bring jet skis within the Merchant Shipping Act definition by means of an order to be made under clause 104 in part 6.

The Merchant Shipping Act definition of a ship, which has existed with only slight modification since 1894, was chosen deliberately in order not to create conflict and cause confusion with the body of merchant shipping legislation or with case law that has arisen from it on the precise nature of a vessel used in navigation. The amendments, which have enabled me to clarify how the Government intend to deal with the matter, are superfluous and could risk confusion with the existing, well-established definition of a ship. I therefore hope that the hon. Lady will ask leave to withdraw them.

Anne McIntosh (Conservative, Vale of York)

The probing amendments have served their purpose. It is disappointing that the

Government are still working on aspects of a proposal that will be introduced in a separate regulation, which it would have been right and proper to discuss in Committee. Having been invited by the Under-Secretary to propose it, I am sorry that the Minister did not find our neat little definition of interest. It is a blow to us that he is not minded to consider it.

In view of the Minister's explanation, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

John Randall (Conservative, Uxbridge)

I shall not detain the Committee, but I want to make a couple of points that would be better considered in a clause stand part debate.

Will the clause take into consideration the equivalent on sea or water of air rage from passengers who cause safety problems because they have taken drugs or alcohol?

In a hideous twist of fate, I find myself in agreement with Liberal Democrat members of the Committee in that the number of passengers is immaterial. If a level of alcohol is dangerous, it applies equally to people driving cars, motor bikes, lorries, coaches or whatever. The alcohol and drug level is the same. [Interruption.] I was just thinking about pedal cycles, which are different, but I sometimes wish that they were not. I was not fortunate enough to be educated at Oxford or Cambridge, but I understand that cyclists pedalling around the city at night, sometimes the worse for wear, can be dangerous. Some of the better-educated people here could confirm that.

My next point is an echo of the trolley bus-tram question.

Anne McIntosh (Conservative, Vale of York)

Get back to that, yes.

John Randall (Conservative, Uxbridge)

I would be interested to know where hovercraft fit into the equation.

David Cairns (Labour, Greenock and Inverclyde)

We are making such splendid progress this afternoon that I thought that I would put my oar in. [Interruption.] I'm not waving, but drowning.

If I understand Government amendment No. 80 correctly, clause 77 would apply in Scotland. I warmly welcome the clause and its applicability to Scottish waters. Yachting was once the preserve of the rich and the privileged, but it is changing.

Kelvin Hopkins (Labour, Luton North)

Having been a sailor myself, I know that a majority of them have always been socialists, so my hon. Friend is mistaken about the social composition of the sailing fraternity.

David Cairns (Labour, Greenock and Inverclyde)

I said that it was the preserve of the rich, without making any comment on political views. I understand that rich socialists do exist, and I have heard that one or two working-class Tories are still around. I make no comment on people's political persuasion.

My constituency is fortunate enough to include the Kip Marina, one of the most prestigious and largest in Scotland. Other marinas are planned in Gourock—adjacent to the station, with which my hon. Friend the

Under-Secretary is well acquainted—and in Greenock. As the sport develops and areas become busier, it is right to worry more about safety. It does not take much alcohol to dull the sensitivities and the greatest danger is to other yachtsmen and boat operators. As the waterways become more crowded, we must become more safety conscious. The clause deals with that problem sensitively and the Government are right to apply different levels of alcohol to different types of ship. I agree with the broad principle of what is effectively a breathalyser for users of boats. It is right to apply it in the interests of their own safety and that of others, so I warmly support the clause.

Andrew Murrison (Conservative, Westbury)

I find myself in difficulty. I am aware that boating is a serious business and potentially dangerous for those in charge of the boats and those inside them. It is no trivial matter to drink and then go sailing. However, recreational sailing is carried out in many different ways in this country and the safety implications are correspondingly different. Our record in the UK is not particularly good in comparison with that of other European countries, particularly Germany, where a certificate is required to take charge of any size of boat for recreational purposes. One must also be examined to determine whether one is worthy of taking command of that vessel. The Germans would say that safety on their waters has improved as a result.

I, for one, fully support any measure that is likely to improve safety on the water, but the Government have picked on one aspect of safety in their focus on alcohol and drugs in this measure, which seems incongruous. I am sure that the Royal Yachting Association would be happy to tell the Minister about the range of courses and examinations that it provides to certify people as safe and competent to take a pleasure boat to sea or on rivers and other waterways. Will the Minister say whether he took the RYA's advice when drafting the measure, which focuses on a very small area of safety of recreational mariners? Will he consider removing the measure and replacing it with a more comprehensive one that would promote the safety of recreational mariners, of which drugs and alcohol would be just a part?

Kelvin Hopkins (Labour, Luton North)

I have some sympathy with the hon. Gentleman, as I have experience of these matters as a sailor on the Norfolk broads since childhood. A small child once drove into the side of our boat and made a large hole with a motorboat. An inexperienced and unqualified young child will be unaware that sailing boats cannot reverse and steer out of the way as a motorboat can. There is a case for broadening safety concerns on water, and I do not want to make spontaneous suggestions for amendments at this stage. However, the Government should consider the age of those steering boats, especially motorboats. People believe that motorboats are easy to drive and do not appreciate the complexities and subtleties of sailing, especially against the wind in a narrow river, which can be very dangerous. Some of these boats are very large, heavy and potentially dangerous. The Government might want take account of those points in future legislation, rather than dealing with them today.

Anne McIntosh (Conservative, Vale of York)

This has been an interesting and welcome debate. Members of the Committee will remember what the Secretary of State said on 28 January on Second Reading. He stated:

''The principle has long been accepted that we ought to have measures to reduce the effect of drinking on the number of accidents.''

He continued:

''The Bill contains a power to exempt vessels with reference to the power of their motor, size or location. We want to consult on the repercussions, as we need to get the matter right. None the less, we are minded, for example, to exempt rowing boats, sailing dinghies and narrowboats. However, larger, high-powered recreational vessels such as jet-skis would probably be included. We want to strike the right balance to ensure that we get the legislation right. The proposed blood alcohol limit is the same as that which applies to motoring—80 mg.''

That was the subject of a Liberal Democrat amendment, but we shall discuss that later. This is the time to discuss the exemptions; the Minister mentioned motor craft. I presume that he meant not only jet skis, but the high-powered motorboats—the Princesses and Sunseekers—that I have looked at longingly at annual boat shows at Earls Court and Southampton. The Secretary of State also said:

''Clause 77 applies to what are referred to as non-professional mariners—people whose employment is not in the field.''

I am not sure what that means, so will the Minister explain that? I did not know that there were any fields at sea. The Secretary of State continues:

''We could have extended the provisions that apply to professional mariners to all boats, whatever their size and speed, but we considered that they should be proportionate. There is a difference between what is needed in relation to a large passenger-carrying ship with a professional crew and in relation to a man rowing a boat in a harbour. We will consult carefully on how best to deal with non-professional mariners.''—[Official Report, 28 January 2003; Vol. 398, c. 773–4.]

The Minister said earlier that consultation is continuing, and it is regrettable that as we debate clause 77 today, they have not reached a conclusion that could contribute to the framing of the regulations that will follow from it. I think that the Secretary of State was encapsulating the point that I was trying to make that recreational mariners in smaller craft such as rowing boats will not cause the same amount of damage or as large a safety threat as bigger, more powerful passenger-carrying vessels.

Subsection (1)(a) refers to

''a person who . . . is on board a ship which is under way''.

My hon. Friend the Member for Westbury was curious about that, and he is probably better versed in such matters than most Committee members, apart from the hon. Member for Ilford, North and me, who each drove HMS Cumberland for a short time, and the hon. Member for Luton, North (Mr. Hopkins) who is well versed on inland waterway craft. Why have the Government chosen that expression rather than what the industry might have preferred, which is ''a person who is driving or a ship that is being driven''? To mariners, there may be a difference even between a ship that is under way and one that is being driven. Will the Minister clarify the situation?

Andrew Murrison (Conservative, Westbury)

I may be able to help. Mariners use two phrases—under way and making way. A vessel can be doing both at the same time or one or the other. ''Under way'' means that the vessel is at sea under power, and ''making way'' means that the vessel is moving forward but not necessarily under power.

Anne McIntosh (Conservative, Vale of York)

That is clear, then, but I would still prefer the phrase, ''driving or being driven''.

Don Foster (Liberal Democrat, Bath)

I wondered whether the hon. Lady thought that she was making way in her speech.

Anne McIntosh (Conservative, Vale of York)

I thought that I was making way until the hon. Member for Bath stood up, although it is always a pleasure to take an intervention from him.

I pay tribute again to the people who drafted the helpful explanatory notes, which say, at page 24:

''Clause 77 also provides a power to except non-professional mariners who do not pose substantial safety risks from the prescribed limits and the provision of specimens.''

That provides another opportunity for the Minister to agree with me, and the Secretary of State, that recreational and non-professional mariners do not pose the same safety risks as professional mariners.

We also noted subsection (3), which says:

''A person to whom this section applies commits an offence if the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit.''

Again, I hope that as the Government are still taking advice and the jury is still out, they will consider oral swabs if they prove to be quicker and more definitive at proving that the prescribed limit has been breached.

On subsection (4), we always hesitate to give the Secretary of State the power to make regulations. I think that the Minister said that any regulations would be subject to the affirmative procedure. That at least is welcome, but we would have preferred matters to be specified in the Bill.

On exemptions, I referred briefly to the words of the Secretary of State. We would expect rowing boats, sailing dinghies and narrow boats to be excluded. I hope that the Minister will indicate what exclusions the Government are considering, because clearly this Committee will not consider the regulations that determine the power of a motor, the size of a ship or location. Some indication in that regard would be helpful.

The rest of the debate is in Hansard.