Railways and Transport Safety Bill

Public Bill Committee, 6 March 2003.

Standing Committee D

Clause 94 - Arrest without warrant

Anne McIntosh (Conservative, Vale of York)

I welcome you back to the Committee, Mr. Hurst, on this fine spring morning. We want to raise several issues, and I am sure that the Minister will respond fully. Similar problems arise in this context as arose under part 4. We want to know to what extent the principle that a constable may arrest someone without a warrant will apply, and to clarify the relevant circumstances.

It has already been noted with respect to the Police and Criminal Evidence Act 1984 that the basic principle in relation to arrest without warrant remains, whether or not the offence attracts a sentence of five years or more. There have, regrettably but rarely, been cases in which constables overstretched their power to arrest without a warrant, and those were deemed an unlawful arrest. The provisions would most frequently be applied in commercial aeroplanes, so considerable expense and inconvenience might be involved. What reparation might result in the relevant circumstances?

We are told that the clause would enable the police to arrest suspected offenders, but that the person could not be arrested while he was a hospital patient. I do not know whether the background to the current rule, which I presume comes under the Road Traffic Act 1988, is relevant, but we hope that a strict interpretation will be applied and that there will be no circumstances in which a person might try to escape custody or arrest by putting himself in hospital, by whatever means.

It would be helpful to know whether the police constable would always have to be in uniform. If he was not in uniform, as set out in clause 93, or, as my hon. Friend the Member for Uxbridge (Mr. Randall) suggested, was without his cap, would an arrest be unlawful? Presumably, airport police would, in most circumstances, make such an arrest, as they would be the most readily available. I think I am right in saying—you are probably more familiar with the circumstances than I am, Mr. Hurst—that, to take one example, Stansted airport does not pay the full cost of its policing. Much of the cost, especially if there is a high state of terrorist alert, is borne by the county council. Clarification as to who would pay any additional costs that might arise under the clause would be helpful.

Members will recall that Stansted airport is another of my interests—indeed, I have a continuing interest in

the British Airports Authority. I remind the Committee that airports such as Teesside international and Leeds Bradford international, which serve my constituency—we have recorded that, regrettably, Bagby does not have any international flights and is largely a recreational airport—are owned by local authorities. How will they be affected by any additional policing costs under the clause?

The clause refers to ''arrest without warrant'' for offences committed under section 89. We respectfully and helpfully argue that the Bill is defective. We all agree that it is an offence to be unfit for work through intoxication by drink or drugs, but airlines increasingly find that, rather than the crew, passengers boarding aircraft who are disruptive due to drink or drugs are the ones who put passengers at risk. We note that a private Member's Bill seeks to create a new offence. We respectfully and helpfully ask—as always, says my hon. Friend the Member for Uxbridge—why it has been deemed inappropriate to include such a new offence when the Bill was so long in gestation?

Such a provision would fit neatly into the Bill. Being unfit for travel could be included in clause 89, which relates to being unfit for duty. It is not only our airline personnel who put passengers at risk by being drunk or drugged, as crew and passengers are equally at risk from intoxicated passengers. Why has the offence not been included when it would fit neatly and specific behaviour could deem a person unfit to travel?

The clause could have applied equally rigorously in empowering a constable to escort and arrest a passenger who is unfit to travel, but the travelling public and Members have been left in a difficult position. Presumably, the Bill will complete all its remaining stages and go into statute some considerable time before any other Bill on a related subject. We would have liked such a provision to be extended across England, Wales, Scotland and Northern Ireland. Perhaps we could make that an offence and empower a police officer to arrest such a passenger without a warrant simply by amending the air navigation orders, although my understanding is that we would need primary legislation in that regard. It would have been appropriate to allow that to happen, however.

The number of disruptive passengers who endanger lives and the ability of an aircraft to take off is on the increase, which is a worrying development. One example is the recent incident involving football supporters returning to Glasgow from a match in Spain. That situation should have been addressed in the context of the Bill. Will the Minister explain why it was not? What is the legal position? Would the clause not apply to enable a police constable to arrest without warrant a passenger who was placing an aircraft at risk?

In 2001, there were 58 cases of drunkenness as an offence involving people deemed to be disruptive passengers who were putting the lives of other passengers and the crew at risk. However, the Department's latest statistics for disruptive passenger behaviour on UK aircraft reveal 1,055 incidents in the year to March 2002. Of those, 50 per cent. are classed

as significant and 5 per cent. as serious. Alcohol was deemed to be a contributory factor in about 45 per cent. of those incidents, and the police or security attended 196 of those reported.

We are told that section 61(2)(c) of the Civil Aviation Act 1982 states that an air navigation order may carry a maximum penalty of two years' imprisonment. Accordingly, offences of endangering the safety of an aircraft, drunkenness on an aircraft and acting in a destructive manner—offences set out in the Air Navigation Order 2000—carry a maximum penalty of two years' imprisonment. Under the Police and Criminal Evidence Act 1984, powers of arrest exist only for offences with a maximum penalty of five years' imprisonment. The Air Navigation Order 2000 could have been amended to ensure that the Bill also covers disruptive passengers. Under the current rules, the police can report an offender for summons, but they cannot detain him while carrying out immediate inquiries, even if the aircrew or other passengers can identify him. That clearly puts those on the plane at risk.

David Cairns (Labour, Greenock and Inverclyde)

What assessment has the hon. Lady made of the private Member's Bill that my hon. Friend the Member for Motherwell and Wishaw (Mr. Roy) is steering through the House? What effect would it have on the problem that she highlighted?

Anne McIntosh (Conservative, Vale of York)

I take the hon. Gentleman back to the rather lengthy debate in which I set out the issues in the context of that Bill. He was present, and I am sure that he recalls with some affection the great detail that I went into and the number of statistics that I produced with the help of the House of Commons Library. It would not be appropriate to return to that debate, but I am grateful to him for reminding me of that notable Bill. None the less, it would have been more appropriate had the Government tabled an amendment to this Bill rather than giving a handout to a worthy Back Bencher. The legislation has been in gestation for a considerable time, and this would have been an opportune moment to introduce an appropriate provision. Without one, airlines, their crews and passengers will remain at risk, and so too will police officers, for the reasons that I shall give.

I am a nervous passenger at the best of times, even though I am married to an airline executive. I have not been on a long-haul flight—[Interruption.] That is another of my interests, but I told the Committee at the outset that my husband has spent 34 years in the airline business. In any case, I do not think that I am alone in being a nervous passenger, and I would not want to put myself at risk if I saw a disruptive individual who was the worse for drink or drugs. It would have been appropriate for the Bill to empower a police constable to arrest such people, and it is not fair of the Government to leave it to airline passengers or crew to do so. However, I repeat that it would still be timely and appropriate for the Government to table an amendment to the clause to grant such powers, and I invite them to do so during the remaining stages.

If we accept the clause, the police will be able to report offenders for summons, but not to detain them. A disruptive passenger can be identified only by aircrew or other passengers, which means—

Alan Hurst (Labour, Braintree)

Order. I remind the Committee that the clause is about officials, not passengers.

Anne McIntosh (Conservative, Vale of York)

Officials. Well, my point is that the clause is defective. It would be timely for the Government to extend its provisions and to create new offences, as I have described. We are told that it would be entirely appropriate to extend the power of arrest under the Bill to such new offences, although I am sure that the Minister wants to share with us some good reasons for not extending the provisions. We believe that the Bill is defective in its current form.

The explanatory notes are silent on what constitutes a hospital for the purposes of part 4 and it would be helpful to have further clarification, although we did get some from the Minister of State, or perhaps from this Minister. We were told, for example, that a hospital on board a ship is not deemed to be a hospital. We are also told that a hospital is an

''institution which provides medical or surgical treatment for in-patients or out-patients.''

As the Minister will be aware, at most major airports, including Gatwick, there is a medical centre. If a passenger, who was perhaps very unwell, were taken to such a centre before going to hospital, would that centre constitute ''a hospital'' for the purposes of the clause and would being there prevent an accused person under clause 89 from being arrested?

John Randall (Conservative, Uxbridge)

We discussed a similar scenario before but since then I have wondered, although I hesitate to suggest how the provisions might be improved, whether the clause should cover someone in hospital or en route to hospital. As the Bill stands, there may be a technical loophole, which would allow someone to be arrested before they reached hospital.

Anne McIntosh (Conservative, Vale of York)

Yes, I agree and I hope that the Minister will clarify that.

Clause 94 differs from some of the clauses in part 4 in so far as it provides for arrest without warrant. I presume the implication is that the accused would be taken immediately to a police station. I believe, although perhaps the Minister will confirm this, that most airports have immediate access to a police station, where there might even be a police cell. What scope will there will be for police detention, or will the person will be arrested immediately and taken to a police station as the rules apply once the Bill becomes an Act? Where the person is not in hospital but is deemed to be so unfit and unwell as to be worthy of hospitalisation, under subsection 34(1) of the Police and Criminal Evidence Act 1984, a police constable is empowered to take a suspect to a hospital. Will the Minister confirm, therefore, that the provisions relating to detention in those circumstances empower a police officer to take the accused to a hospital rather than to a police station?

David Jamieson (Labour, Plymouth, Devonport)

Welcome to the Chair, Mr. Hurst, on this fine morning. I appear to be in the driving seat today and I am sure that the Committee will be sad to learn that my right hon. Friend the Minister for Transport has succumbed to an unfortunate illness and has now lost his voice. [Hon. Members: ''Oh no.''] I always say that bad news is always counterbalanced by some good news, and the Committee will be pleased to know that I am in very good voice and extraordinarily rude health.

Anne McIntosh (Conservative, Vale of York)

Would it be appropriate for us to pass on our best wishes to the Minister of State in the hope of a speedy recovery? It is a matter of regret that he has succumbed to the same lurgy that previously afflicted the Under-Secretary.

David Jamieson (Labour, Plymouth, Devonport)

I am sure that my right hon. Friend will be touched by the hon. Lady's concern.

The clause gives a police officer the power to arrest without warrant a person whom he suspects of having committed an offence under clause 89. That will usually follow an initial screening breath test. The power to arrest a subject who has failed the screening test will enable a police officer to take a suspect back to the police station for the purpose of carrying out an evidential test to determine the exact level of alcohol in the suspect's body. The police have similar powers of arrest for other offences created through the adoption of relevant parts of the Road Traffic Act 1988. As with that legislation, hospital patients will be specifically protected from the general power of arrest. However, taking specimens from hospital patients will be permitted in the same way as it is from other users of vehicles, as provided for by the 1988 Act and as proposed in clause 93.

The hon. Lady asked about police officers in uniform. I thought that we had clarified that in an earlier debate. In case the point was not clear to all Committee members, let me explain it again: the requirement that a police officer be in uniform is also made under the motoring breathalyser procedure. Therefore cases under the Road Traffic Act 1988 on the meaning of the established term will apply—''constable'' refers to any member of the police force, not to the rank of the constable. Courts have held that a police officer who was not wearing a helmet but who was otherwise in police uniform was still in uniform. That is a matter of case law. The hon. Lady may be more familiar than I with the case of Wallwork v. Giles 1969, and I will not bore her with any more detail on it. Of course, if the Committee wants more detail, I shall be happy to provide it.

The hon. Lady asked a couple or three times about the term ''hospital.'' Let me define it for her again. Clause 94(3) states:

''In subsection (2) 'hospital' means an institution which provides medical or surgical treatment for in-patients or out-patients.''

That is the same definition that is used in section 11(2) of the Road Traffic Act 1988, and it should be applied by the courts in the same way. The hon. Lady asked about the medical bay in an airport. I do not think that that could be defined as a hospital. The law would apply in exactly the same way to patients on their way

to hospital. That is probably somewhat beyond our remit, but if the Committee wants more detail, I shall provide it.

John Randall (Conservative, Uxbridge)

As the Under-Secretary seems to have so many facts and figures at his fingertips, perhaps he will clarify the situation of someone who is en route to hospital.

David Jamieson (Labour, Plymouth, Devonport)

That was the point that I was making. If the Committee wants more clarity on people en route to hospital, I shall try to provide it. However, most of the information is contained in other legislation.

The hon. Member for Vale of York (Miss McIntosh) asked about damages. The law of damages would apply if the police made a wrongful arrest. She asked again about costs, although we had talked about them at some length in a previous debate. Airports contribute to the costs of airport police, although the police pay any additional costs. We and the police expect such costs to be small. If they grow for any reason, we shall have to revisit the issue. However, additional resources are not expected at present to be needed.

Clause 94 does not allow the police to arrest passengers, as the intoxication of passengers is already an offence under the Air Navigation Order. The hon. Lady did speed up the private Member's Bill, although perhaps not quite by the degree that she suggested in the Committee. We both made a short contribution to that Bill, which I was very pleased to support. It is always difficult with a Bill of that sort; if we add everything to it, we would have had a topsy syndrome, and it would have just growed and growed. It would have become unwieldy had we put more and more clauses into it, so we had to draw the line somewhere. However, I am pleased to say that the Government support the private Member's Bill and I am delighted that the hon. Lady supports it as well.

Anne McIntosh (Conservative, Vale of York)

It is your Bill.

David Jamieson (Labour, Plymouth, Devonport)

The hon. Lady says ''It is your Bill.'' That applies to a number of Bills introduced by her hon. Friends with which the Government are assisting. We are pleased to assist my hon. Friend the Member for Motherwell and Wishaw in his endeavour to change the law in that way.

John Randall (Conservative, Uxbridge)

The Minister has said that the private Member's Bill is an important one, but he knows that such Bills do not always succeed, even with Government and all-party support. I have bitter experience in that regard. Can he assure us that if it does not succeed, the Government will find sufficient Government time in which to introduce it?

David Jamieson (Labour, Plymouth, Devonport)

The hon. Gentleman points out that private Member's Bills have a precarious journey through Parliament. Usually, when they are supported by Government and the Opposition, the journey is less precarious. However, he might like to prevail upon the shadow Leader of the House who has been known to destroy a Bill or two in his time. I have to say that that particular right hon. Gentleman did support me in a private Member's Bill that I brought before the—

Alan Hurst (Labour, Braintree)

Order. We have enough work to do in dealing with this piece of legislation without contemplating other legislation.

David Jamieson (Labour, Plymouth, Devonport)

I beg your pardon, Mr. Hurst. I was drawn from the straight and narrow by the hon. Member for Uxbridge. I hope that we can now agree that the clause should stand part of the Bill.

Anne McIntosh (Conservative, Vale of York)

The hon. Gentleman has been so generous to his colleague's Bill—he says that it is not a Government Bill, but it is peculiar that it was drafted by the Government and handed out to a Government Back Bencher—that I hope that he will be equally supportive of our colleague's Bill, which is number one of the private Member's Bills to be dealt with tomorrow. We wait to see whether our support is reciprocated.

I note what the Minister says about additional resources and that matters are not expected to be hugely more expensive. We agree with that in that there are not that many cases in one year by comparison with the number of disruptive passengers, who will be the subject of a separate Bill. The Minister did not answer the question about what happens if a patient is arrested by the police officer under clause 94, but is so sick that he is escorted by the police officer to the hospital. I take it that it is implicit in what he said that, under the road traffic provisions—I shall seek chapter and verse in Wilkinson's ''Road Traffic Offences'' and am delighted to have been steered in the right direction—even while it is allowable for a specimen to be taken from a hospital patient, that should not interfere with the patient or jeopardise his condition. We may return to these matters at a later stage but, with those remarks, we consider clause 94 well and truly debated.

Question put and agreed to.

Clause 94 ordered to stand part of the Bill.

Clause 95 - Right of entry

Don Foster (Liberal Democrat, Bath)

I beg to move amendment No. 69, in

clause 95, page 41, line 35, at beginning insert,

'A plain clothes constable, a designated appointee of a testing unit or'.

Alan Hurst (Labour, Braintree)

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

No. 70, in

clause 95, page 42, line 1, at beginning insert,

'A plain clothes constable, a designated appointee of a testing unit, or'.

No. 13, in

clause 95, page 42, line 7, at end add—

'(c) in doing so must not endanger the safety of the aircraft and those persons on board.'.

Don Foster (Liberal Democrat, Bath)

I, too, am disappointed to hear that the Minister of State has lost his voice. I wish him well, and hope that he has a speedy recovery and quick return, not least so that he is available on Report and

on Third Reading. He has made a number of promises to put things right in the Bill, and we hope that will do just that.

The hon. Member for Uxbridge, who is not here at present, said:

''The Committee will by now have grasped that I am a relatively simple person who cannot cope with complicated ideas.''—[Official Report, Standing Committee D, 27 February 2003; c. 405.]

That may or may not be the case, but there is no doubt that the hon. Gentleman has been tenacious on a number of occasions. Together with the hon. Member for Vale of York (Miss McIntosh), he has pursued with some vigour the issue of uniforms and the question of whether the police should wear them. I am delighted that the Under-Secretary is in good voice. However, I am more delighted that he is considerably better briefed on this occasion than he has been previously. When the issue was last raised, when we were discussing the portion of the Bill that deals with shipping, the Under-Secretary, in response to a question from the hon. Member for Vale of York, said:

''The screening test on board the vessel would be conducted by a constable in uniform. Evidential testing is to be done by the police, and I understand''—

presumably he was not certain—

''that any such test must be carried out by a constable in uniform . . . We may need to consider precisely what is meant by uniform if the hat has blown off and so on.''—[Official Report, Standing Committee D, 4 March 2003; c. 422.]

A few days on from that, the Minister has done his homework and he has got the briefing. Well done him for telling us what the briefing says.

David Jamieson (Labour, Plymouth, Devonport)

I think that ''understand'' in that context means that something is my knowledge, if that is of any help to the hon. Gentleman. I perhaps have a euphemistic way of expressing things and should be more forthright. However, I am pleased that the hon. Gentleman notes that we now have the precise information at hand.

Don Foster (Liberal Democrat, Bath)

I am delighted that the Minister is now better briefed. The hon. Members for Uxbridge and for Vale of York and I are all much happier. However, it is unfortunate that the matter is not as simple as that. The question remains of why the constable must have a uniform to enter premises, as covered by the clause. Why must the constable have a uniform when requiring the provision of specimens, as covered in clause 93? Under clause 94, the constable does not appear to require a uniform to carry out an arrest, having entered and taken a specimen. [Interruption.] The Government Whip, the hon. Member for Enfield, North (Joan Ryan), suggests that we have suddenly moved on to the subject of strippograms, which might make a change from some of the other issues that we have been debating. There is certainly a question that needs to be answered.

Richard Bacon (Conservative, South Norfolk)

Is it not plain in the Bill that the constable must simply dress, undress and then dress again?

Don Foster (Liberal Democrat, Bath)

The hon. Gentleman is right, although what he says applies only in respect of the arrest being carried out without a warrant. The Bill is silent about

whether a uniform is required in the case of an arrest when there is a warrant. There is some confusion, and no doubt the Minister will clear it up, because he is obviously full of good briefing today. However, I shall leave that aside, because I am sure that he will give us an answer to all that.

I want to raise a point that was mentioned in relation to amendments Nos. 69 and 70, which is whether it is always appropriate for a uniformed constable to enter an aircraft. I mention that because several people in the aviation industry, including the British Air Line Pilots Association—the union that represents the pilots—is genuinely concerned that there could be circumstances in which the presence of a uniformed officer in the very crowded area where people enter a plane could lead to undue anxiety among passengers.

BALPA has suggested that, although it may be appropriate in some circumstances for a constable to be in uniform, there may be occasions when it would be more appropriate for a constable not to be in uniform or for testing to be carried out by a separate plain-clothes unit. Those are genuine concerns, and I am sure that they have already been raised with the Minister, but I would be grateful to hear his response.

John Randall (Conservative, Uxbridge)

I hear what the hon. Gentleman says, but I wonder whether it would be more disconcerting for passengers to see someone whom they think is a fellow passenger suddenly arresting someone. That might lead passengers to think that there is more going on than is actually the case.

Don Foster (Liberal Democrat, Bath)

The hon. Gentleman may be right, which is why I have not proposed the deletion of ''constable in uniform'' from clause 95. I will give the hon. Gentleman time to read the amendment, but he will see that I am suggesting an addition rather than a deletion because he is absolutely right to say that circumstances will differ. All I am suggesting is that the Bill should allow the opportunity, from time to time and where appropriate, for a uniformed officer to enter a plane in the way described in the clause.

Amendment No. 13 also relates to the effect that a uniformed officer entering a plane could have. The amendment merely makes it clear that the prime concern in anything that the uniformed constable does must be the safety of the aircraft and, thereby, the safety of the passengers. There could be circumstances in which a slightly over-zealous uniformed constable took action that the flight crew believed could endanger the aircraft. It must be clearly understood, therefore, that the uniformed police constable cannot do that. That is straightforward common sense.

Perhaps the Minister can assure me that that guidance would be given to police and that it is not necessary to insert it in the Bill. However, it would be useful for the Minister to put on the record words to the effect that nothing done by the police under the Bill would in any way endanger the safety of the aircraft and the passengers on board.

Anne McIntosh (Conservative, Vale of York)

I am delighted that we seem to have stirred up the Liberal Democrats. We were getting very worried that they were fading.

Don Foster (Liberal Democrat, Bath)

The hon. Lady need only look round at the faces of the entire Committee to see that I would not be alone in fading at the moment.

Anne McIntosh (Conservative, Vale of York)

I sincerely hope that the hon. Member is not succumbing to the dreaded lurgy that is going about.

Don Foster (Liberal Democrat, Bath)

As the hon. Lady has referred to the lurgy on several occasions and fearing that I may be coming down with it, I took the trouble to check in the Official Report how the word is spelt. I was quite fascinated to find out the answer.

Anne McIntosh (Conservative, Vale of York)

The answer is that a hot toddy is good for everybody, provided that they are not about to fly a plane or drive a ship—

Don Foster (Liberal Democrat, Bath)

Or a hovercraft?

Anne McIntosh (Conservative, Vale of York)

Or a hovercraft or a tram. Speaking of trams or the trolley bus—

Alan Hurst (Labour, Braintree)

Order. Perhaps we can leave this discussion and return to the Bill.

Anne McIntosh (Conservative, Vale of York)

I am sure that there will be an opportunity to return to the trolley bus.

It was interesting that the hon. Member for Bath (Mr. Foster) was taken by our argument about whether an officer should be in a uniform. A plain-clothes constable could have been called an undercover officer, but that might have connotations that the Committee would find confusing and misleading.

The Police and Criminal Evidence Act 1984 says that a constable need not be in uniform. However, if he is not in uniform, he must take reasonable steps to produce documentary evidence that he is a constable before commencing a search. How will someone who is stopped know that he is being stopped by a police officer? Preventing a police officer from boarding an aircraft with a view to arresting somebody and resisting arrest are serious offences. I am surprised that the Government have not argued that the officer must always be in uniform because he could then be easily identified as a police officer carrying out functions under the Bill. I do not wish to do the Minister's job for him, but I hope that he will clarify that point.

If a person who is stopped believes that he has been accosted by a non-police officer and resists arrest, will the Minister confirm that the person might not be charged with the offences that were the reason why the police stopped him but with offences arising directly from the stop? That might happen if a person prevented a police officer from boarding an aircraft under clause 95. When talking about section 1(1) of the 1984 Act, the right hon. Member for Manchester, Gorton (Mr. Kaufman) said that stop and search would provoke as many crimes as it dealt with, if such matters are regarded as crimes. There are compelling reasons why an officer must be in uniform.

The hon. Member for Bath did not clarify his point about a designated appointee of a testing unit at great length. For the 1984 Act circumstances were envisaged in which a police constable should be accompanied. The explanatory notes for that Act give the example of

a constable entering a residence in an area with a strong ethnic character. In such circumstances, it would be appropriate for someone from that background to accompany the officer. It would be useful to hear whether those circumstances will apply under the Bill or whether a constable will be expected to enter an aircraft alone to make an arrest in most circumstances—I imagine that that will be the case.

I turn to amendment No. 13. I assume that a police constable must not endanger the safety of an aircraft or persons on board when he enters it. I have difficulty envisaging circumstances in which that would happen. A police officer who tried to arrest someone who was unfit for duty under clause 89 prior to take off would be considered to be doing persons on the aircraft a favour.

John Randall (Conservative, Uxbridge)

On an earlier clause we discussed sky marshals. As I understand it, the Bill does not apply only to British nationals, for whom carrying a weapon on a plane would be illegal. If a police constable went on to a plane and tried to arrest someone for whom he thought there was reasonable evidence that they were under the influence of alcohol or drugs and if that person was sitting next to a sky marshal, the sky marshal might think an incident was taking place and that might endanger the aircraft's safety.

Anne McIntosh (Conservative, Vale of York)

That is a pertinent point. The question of the sky marshal has not been elaborated in the Bill for understandable reasons, but there is a lack of clarity. My hon. Friend has raised a compelling point, which I hope the Minister will address. It would be appropriate to address the other issues in the clause stand part debate. I have great difficulty with the amendments. We exhausted these points in our earlier debate, but the Liberal Democrats are seeking clarification of other issues.

David Jamieson (Labour, Plymouth, Devonport)

I am sure that my right hon. Friend the Minister of State touched by the hon. Member for Bath's kind remarks. I shall make sure that they are passed on, together with his less kind remarks about whether he would be as good as his word. My right hon. Friend is always as good as his word.

Don Foster (Liberal Democrat, Bath)

I would hate the official record to suggest that I implied that the Minister of State would not be good to his word. I said that I hoped that he would make good his promises on the Floor of the House.

David Jamieson (Labour, Plymouth, Devonport)

I am glad of that clarification. It is not quite how I heard it the first time, but I am always pleased to have some clarification from the hon. Gentleman.

Amendments Nos. 69 and 70 seek to give plain-clothes policemen and specialist testing personnel the same rights of entry as uniformed constables. However, the clause already provides that one or more persons can accompany a uniformed constable when he is exercising his right of entry. That would include plain-clothes constables.

Furthermore, as the use of force is permitted to gain entry, it is entirely appropriate that a uniformed officer should be present. I agree with the hon. Member for Uxbridge: more alarm could be caused if a uniformed officer were not present. The hon. Member for Bath asked whether the presence of a uniformed officer could lead to anxiety among passengers. I should have thought that the opposite was the case: if someone without a uniform entered the aircraft and sought to take a test from the pilot or another person on board the plane, that could occasion alarm.

I note with interest that the hon. Gentleman introduced for the first time the notion that a specialist testing unit might be given responsibility for the testing of aviation subjects. It will not have escaped the Committee's attention that we have—for the sake of consistency across transport modes—tried to replicate as far as possible the relevant testing procedures already established in road traffic legislation. The Transport and Works Act 1992 applies the same regime on the railways, and the police are familiar with the procedures.

The police have been testing drink-drivers for many years. The procedures adopted have been tested and approved by the courts many times. The permanent police presence at most major airports will also enable the rapid response to and testing of suspected offenders. Given that a criminal conviction may follow a failed test, it is appropriate that the police rather than a separate testing unit should be responsible for carrying out preliminary breath tests.

Amendment No. 13 seeks to require that a constable does not endanger the safety of an aircraft or those on board in exercising his right to enter an aircraft to test or arrest a suspected offender. I applaud the intention behind the amendment, but I assure the Committee that it is unnecessary. The clause already limits the officer to the exercise of ''reasonable force''. That term is commonly used to qualify the use of police powers and the police are familiar with it. As I said in answer to the previous debate, sanctions can be applied if somebody feels that a police officer has gone beyond the call of duty. What is reasonable force is a matter of fact and degree, and it depends on circumstances, especially the resistance offered by the suspect. In most cases, the force that is used will amount to little more than taking hold of a person's arm to prevent their running away. As resistance mounts, so the degree of force may increase. Nevertheless, the police officer must at all times use the degree of reasonable force that is appropriate in the circumstances.

In the aviation environment, the sensible exercising of the police powers will be supported by the power to enter with others—from airport management or security—who can advise the police officer on the spot. It is hard to envisage any circumstances in which it would be reasonable for the officer to use so much force that the action in itself endangered the safety of the aircraft or its occupants. Indeed, passengers may, as a result of police intervention, avoid the danger of a flight with a drunken pilot or crew member.

The hon. Member for Bath asked about the warrant. Constables would have powers to arrest

without a warrant. The example that he mentioned would be unlikely, because a warrant gives the police the power to arrest. It is not expected that the police will get warrants to make arrests under part 5; indeed, that would not be practical in most circumstances. A police officer must be identified before requiring a person to take the test. I am informed that for the actual purpose of arrest, the police officer does not have to be in uniform. I believe that that is the same for road traffic offences. However, the officer must be identified at the beginning of the procedure.

The hon. Member for Vale of York referred to the police being accompanied. Clause 95(3)(b) makes it clear that the police could be accompanied and that they could determine whether or not that would be appropriate. The hon. Lady also referred to sky marshals. Constables must be in uniform for the purposes of the right of entry; it should be made clear to any sky marshal who may be present on the plane that it is the police who are attempting to effect an entry.

Don Foster (Liberal Democrat, Bath)

I am grateful to the Minister for his answer. I was especially delighted by the compliment that was paid to me by the hon. Member for Vale of York. For her to say that I had not gone on at length is probably the greatest compliment that she is ever likely to pay me.

I am still pondering the Government Whip's notion of policemen taking their clothes off. That would be a possible solution to the conundrum: police constables can carry out arrests out of uniform but, having identified themselves, they are required to be in uniform for the entry of premises or for the taking of, or requiring the provision of, specimens.

When the Minister tells the Committee that he is informed that the police do not need to be uniformed but need to be identified, he is merely giving us information about the current situation. He has not, however, explained why that situation exists, and why it should apply in the new circumstances we are discussing. He has a strong point in saying that in many circumstances the best way of a person being identified as a police officer is to be in uniform.

I am a great believer in police officers wearing uniform as much of the time as possible because it gives such a confidence boost to members of the public. Senior officers of the local force in my constituency occasionally come to meetings with me wearing ordinary business suits. I have suggested that it would be much more helpful if they came to my office, in the centre of the city of Bath, in uniform because it boosts the visible police presence. I accept the Minister's point about the benefit of wearing uniform, but there was no logic in his answer to explain the occasions when it is necessary under law to wear a uniform and when it is not.

More importantly, there may be circumstances in which the appearance of a constable in uniform could lead to heightened passenger anxiety. The Minister said that he would have thought the opposite. He is entitled to his view, but when BALPA, which I suggest knows more about the circumstances in aircraft, takes a different view from the Minister—although it, too,

could be wrong—it has a right to a more detailed response to its anxieties than merely being told that the Minister thinks it is wrong.

I say to the Minister and to the hon. Member for Vale of York that I have not gone on at length about alternative forms of testing. There are powerful arguments for saying that a different group of people could take on the responsibility for testing. The hon. Lady has expressed her concern about the validity and security of the current testing procedure. There are arguments for suggesting that testing could be carried out by people specifically and solely trained to do so, but the Minister's sole response is that we should stick with the police because they are familiar with the procedure. Familiarity with a procedure is no justification for sticking with the same organisation or group of people for all time.

We are about to consider the much-amended Licensing Bill, which proposes that magistrates should no longer have responsibility for awarding licences to public houses, and that responsibility should be given to a different body—local authorities. It has been argued that magistrates should continue to have that responsibility because they have long experience of awarding licences. The Government have responded by saying, ''No. In time the new body, local authorities, will develop the expertise and it is better for them to do so.'' The logic that the Government have applied to the Licensing Bill could be applied in respect of the testing regime, especially as there are concerns about the way in which those procedures are carried out, as the hon. Member for Vale of York rightly said.

David Jamieson (Labour, Plymouth, Devonport)

I am listening carefully the hon. Gentleman. Is he saying that there should be a specialist testing unit at every airport? Has he considered the cost implications of such a proposal?

Don Foster (Liberal Democrat, Bath)

No, I am not suggesting that but I am proposing that groups of people working with the police could be involved in that activity. The suggestion made by people in the air industry appears to have been dismissed and it should be given greater consideration. I have no particularly strong views on the matter but the Minister clearly does. He is entitled to them; I just find it odd that other bodies have conflicting views.

David Jamieson (Labour, Plymouth, Devonport)

To pursue this important point, the Bill creates criminal offences that could lead to imprisonment, so it is entirely right that the tests should be conducted by the police, and those who have experience of conducting them.

Don Foster (Liberal Democrat, Bath)

The Minister will be well aware that, increasingly, all sorts of tests, including specimen tests, are partly carried out by private sector organisations. The logic does not follow.

David Jamieson (Labour, Plymouth, Devonport)

We cannot let the hon. Gentleman get away with that. The police take the sample, and another body might test it later. However, we are talking about what happens when a person is arrested and a sample is taken. The police have experience of

taking such samples, and it is right and proper that they should take them.

Don Foster (Liberal Democrat, Bath)

That is current practice, and the Minister says that that practice should continue. As I constantly say, he is entitled to that opinion. I am merely sharing with the Committee the fact that many people do not agree with him, and that there are alternative practices that should be explored. We could go on about the issue at great length, but I do not think that you would permit us to, Mr. Hurst.

More importantly, I am grateful for the assurances that the Minister gave on amendment No. 13 about the requirement for the police constable to ensure that his actions will not put the aircraft or passengers at risk; that was helpful. In relation to amendments Nos. 69 and 70, I am still confused. The hon. Member for Uxbridge has a ''simple man'' approach to the issue, but perhaps I am even simpler than he is.

John Randall (Conservative, Uxbridge)

That is impossible.

Don Foster (Liberal Democrat, Bath)

Not necessarily. The hon. Gentleman is a tenacious man. I am even more confused than I was at the beginning of our deliberations about when it is important to wear a uniform. I understand the value of a uniform for identification purposes, but there are occasions when other forms of identification might be more appropriate. I fail to understand why uniform is necessary in some circumstances and not others. No doubt we will continue to explore the issue—and not least the blowing off of hats—later in the passage of the Bill. 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)

I am grateful for this opportunity to raise matters arising from the clause and not from the amendments tabled by the hon. Member for Bath.

The Minister has told us a little about certain aspects of the clause, the reasons for suspicion mentioned in subsections (1) and (2), and ''reasonable force'' under subsection (3). It would be helpful if the Minister could identify who might, under subsection (3), accompany a constable entering an aircraft. The explanatory notes state:

''Clause 95 provides the police with powers to board an aircraft or enter any place for an offence under clauses 89 and 90.''

The explanatory notes seem to go a little further, if one may say so without being provocative, than the clause. Does ''any place'' refer to a medical centre to which a suspect might have been taken? This is an opportune moment for the Under-Secretary of State to elucidate what that means. I do not want the clause to run into difficulties in its application without knowing where, apart from an aircraft, a police constable will be empowered to have the right of entry.

We are also told that the clause states that the police ''may use reasonable force'' in exercising the powers, and that they may be accompanied when doing so. As I said, it would be helpful to know who may accompany the police constable, under which

authority, power or Act those people would be acting, and what the nature and limit of their powers would be. The hon. Member for Bath, who regrettably has had cause to leave his place for a moment, sought to ask those questions through his amendments. We seek clarification on those points, as the Bill is insufficiently specific.

I imagine that the powers are taken from the Police and Criminal Evidence Act 1984. Section 17(3) relates to a constable in uniform and only applies to powers of entry to effect an arrest under the Criminal Law Act 1977. Again, we understand that a constable needs to board an aircraft to arrest someone, but are the Government saying that the place could be a lavatory in which the suspect had sought refuge? How wide is the vicinity into which the police will be empowered to enter? If it is not just the aircraft, what is the full extent of their powers?

We are told that ''reasonably required'' under section 17(4) of the Police and Criminal Evidence Act was deemed to be an objective standard, and that searches beyond that objective standard would be unlawful and may give rise to action for trespass. The explanatory notes on that subsection state that reasonable force may be used if necessary under section 117. Force is the application of any energy to the obstacle with a view to removing it. The Minister at the time told us most helpfully that reasonable force would simply be reasonable. Taking hold of an arm is one thing; inadvertently breaking the arm, especially of a female passenger, is quite another. That would obviously be very regrettable.

The explanatory notes to section 1(3) of the 1984 Act, which is of course the empowering Act in the Bill, further elaborates what constitutes reasonable grounds. The then Minister said in the Standing Committee that reasonable suspicion was an objective basis for action that could be tested in the courts, and that there must be some concrete basis for the officer's belief, which could be considered and evaluated by an objective third person. He also said that it was important to see the distinction between reasonable suspicion and mere suspicion. Mere suspicion is an intuitive guess, which is so personal and insubstantial that it cannot be articulated or submitted to scrutiny. Much of the criticism would allege that, if the distinction is tenable, officers will rely all too often on intuitive guesses, which involve stereotyping and are insubstantial. That sets out a good background with regard to the parameters of what is reasonable.

I have raised that issue because the Under-Secretary, being a reasonable person, must see that there could be grounds for testing it in the courts. The clearest of clarification would be helpful to the Government's cause. I simply hope that the concept of reasonable suspicion will be interpreted as strictly as possible.

The Under-Secretary's comments will have clarified for my hon. Friend the Member for Uxbridge the relationship between sky marshals on a flight, who for good reasons have not been written into the Bill, and police constables.

On clause 93 and the right of entry to an aircraft or another place to test a suspect, the hon. Member for Bath must now be satisfied as to why it is right and proper for a police officer to be in uniform. If someone who was not clearly identified as a police officer was seen to escort a pilot off a charter flight which contained a lot of passengers waiting to go on their annual holiday, there could be a riot. If we can avoid such circumstances, it is best to do so.

Again, I hope that the Under-Secretary will confirm that the concept of reasonable suspicion in clause 95(2) will be interpreted as strictly as possible. As I mentioned in connection with clause 94, just as it would be unlawful to make an arrest without a warrant without reasonable cause, so the right of entry to an aircraft or, more particularly, another place that is not specified in the Bill could lead to a difficult situation. I therefore hope that the Under-Secretary will take this opportunity to specify which place other than an aircraft a constable is empowered to enter, and the limits of ''reasonable force''.

I hope that the Under-Secretary will also clarify that if a person is particularly aggressive, the police constable might be accompanied by other officers to enable the person to be taken away as peacefully as possible. Finally, let us say that a constable is accompanied by ''one or more persons'' who are not police constables. Will the Under-Secretary be good enough to clarify who precisely they would be? Perhaps he can explain why they have not been specified in the clause.

David Jamieson (Labour, Plymouth, Devonport)

The clause provides the necessary powers of entry to enable the police to deal with the offences created by this part of the Bill. It allows an officer to board an aircraft either to make an arrest or to request the provision of a specimen. The powers granted are substantially the same as those under section 6(6) of the Road Traffic Act 1988. An officer requesting entry must be in uniform, but is permitted to use reasonable force to gain entry and may be accompanied by others.

The hon. Member for Vale of York asked about the other places referred to in clause 95(2). An offence may not occur in the aircraft. It may occur in a maintenance depot, an air traffic control unit or another place—for example, while the person is on stand-by and waiting to go on duty. We have to allow for those circumstances and for different places where the test or arrest can take place.

The hon. Lady also asked about the limits of reasonable force. The concept of reasonableness is well trodden and well understood in English law. Although the hon. Lady is a Scottish advocate, I would hope that she has a good understanding of the point.

The hon. Lady asked who could accompany a police officer. In some circumstances, where extra help is required, it could be another police officer. In other circumstances, it might be the airport management or airport security authorities. She asked whether we could say precisely who it would be. Of course not: I cannot provide a definitive list, but others could be called to the constable's aid in appropriate

circumstances. Listing precisely who it could be would be ludicrous and would stretch the Bill to far more pages than it has now.

On the issue of reasonableness, the hon. Lady answered her own question with her quotations. As I said, ''reasonable suspicion'' is a well-established term. It is right that a police constable has some objective grounds for any suspicion: he may have seen the relevant person staggering or drinking in the bar, or a responsible person working for the airport authority might have a reasonable suspicion that was passed on to the police officer in good faith. We cannot elaborate on every circumstance, but English law is fairly clear about what the circumstances are likely to be.

Anne McIntosh (Conservative, Vale of York)

I am grateful for the Minister's comments, but some issues have, regrettably, not been adequately clarified. I specifically asked under what authority the one or more other persons would be acting and what the parameters of that authority would be. I asked the question in a spirit of helpfulness and co-operation because it is important to clarify the matter now, rather than place people in a position where their authority could be questioned when the Act is in force. I am a firm believer in clarification at the earliest opportunity, to ensure that the clause cannot be abused.

The reasonable suspicion test leaves open several questions. The Minister is right that it is a well-established principle that has been in force for 19 years since the 1984 Act, but he acknowledged that a new offence is being created. We know from the example of the British Airways pilot who was escorted off the flight at Stockholm and lost his livelihood, which ran to about £100,000 a year, that the consequences can be enormous. It provided a significant lesson to his colleagues, but the provision also affects other places of work, such as maintenance depots, and other people, such as airport officers. It was one glass of wine that led to that particular pilot—I assume he was a gentleman—being escorted away. One hopes for certain safeguards against malicious reporting. We MPs are well aware that malicious rumours can have devastating effects, so I hope that the Minister has provisos in place in that regard.

The Minister's explanation was helpful, but I want to place it on the record that I am concerned about difficulties arising from the application of clause 95(3)(b) in respect of the authority of those persons. Further explanation of what is required to allow them to exercise that authority in good faith would have helped.

Question put and agreed to.

Clause 95 ordered to stand part of the Bill.

Clause 96 - Regulations

Anne McIntosh (Conservative, Vale of York)

The Minister will be delighted—or even disappointed—to know that the debate will not be lengthy. He was good enough to clarify the basis of the regulations that will be submitted to Parliament

under earlier clauses. Given that clause 95(3)(b) was insufficiently specific, will it now be specified more clearly who the persons may be? If not, that is deeply regrettable. It would be more helpful to have such matters clarified in the Bill. Will the regulations be subject to affirmative or negative resolution? We hope that all orders under part 5 will be subject to affirmative procedure.

Do the Government intend to create a separate offence under a different Bill relating to passengers? That will require regulations under an air navigation order to enable them to sit comfortably with the provisions of the Bill. Does the Minister envisage that statutory instruments or regulations will be required under the Bill and subsequent Bills to create a separate offence relating to passengers as opposed to crew and others under clause 89?

Clause 96 loosely requires the Secretary of State to consult such organisations that he considers appropriate. We hope that employers, union representatives and other associations will be consulted. The British Air Line Pilots Association springs to mind. A plethora of employers and employees will be caught under the provisions. I hope that the regulations will have regard to the contract of employment between such parties; given the Bill's wide remit, such contracts will run to a considerable number. Will attention be paid in those consultations to contracts and terms of employment? I hope that the Minister will put my mind at rest and say that the regulations will be passed by affirmative resolution.

David Jamieson (Labour, Plymouth, Devonport)

I hope that I can put the hon. Lady's mind at rest—as I always try to do. The clause deals with the creation of secondary legislation consequent on the Bill. Secondary legislation will be needed only to amend its provisions in certain cases. It will not be needed from the start to make this part work. The clause confirms that secondary legislation resulting from such provisions must be made by statutory instrument and approved by Parliament under the affirmative procedure. That is appropriate, given that the regulations concern criminal offences that are potentially punishable by imprisonment.

The Secretary of State is also required to consult appropriate organisations before amending the alcohol limits and the range of functions to which they are attached or before adding or adapting provisions from drink-driving legislation under the Bill. We discussed such matters at some length earlier on clause 95(3) and we gave a clear undertaking that we expect various organisations, and others to which the hon. Lady did not refer, to be consulted. The clause will give the necessary flexibility that may be required, for example, for future changes in alcohol limits. It will allow for changes in those authorities covered by the offence and, when appropriate, mirror a change that might take place in future under road traffic legislation.

Anne McIntosh (Conservative, Vale of York)

I am grateful for that. The Minister said that the consultation under subsection (3) would relate to amending the alcohol provisions. Would it

extend to my concern, which we have discussed at some length, about the inclusion of oral swabs? The Minister of State suggested that they might be considered. Does that mean that the consultations would extend to a different form of testing, or the taking of a different type of specimen? That would be a considerable change. At the moment, breath, urine and blood tests apply. This is a potential fourth option. I hope that there would be extensive consultation simply to explain to the respective bodies how those specimens would be tested and processed.

The Government are right to say that, because of their gravity, the new offences that are being created, which are punishable by imprisonment, should be passed by affirmative resolution. We should prefer primary legislation, and regret the drift away from it, which has been a feature of the past six years under this Government. Otherwise, with the proviso that were any change in specimen-taking or testing to occur under road traffic provisions that would have implications for this legislation, those employer and employee organisations should be consulted, we are content.

Question put and agreed to.

Clause 96 ordered to stand part of the Bill.

Clause 97 - Crown application

Anne McIntosh (Conservative, Vale of York)

I seek a simple clarification: will there be no exclusions? I understand that the explanatory notes tell us that clauses 97 and 98 together apply the offences created to police and Customs personnel, but not to personnel operating on military aircraft. The offences under clause 97 would apply to civilian contractors employed by the Ministry of Defence. Can the Minister confirm that the Queen's flight, in which the Government have an interest because the Prime Minister uses it on Government business, will be included—particularly with regard to clause 89?

David Jamieson (Labour, Plymouth, Devonport)

Clause 97 extends the prescribed alcohol limits to aviation functions carried out on or in connection with aircraft owned or in the service of the Crown. The exception concerns activities carried out on military aircraft by a person who is subject to service law. That exception is specifically addressed in clause 98. The Queen's flight would be covered.

Question put and agreed to.

Clause 97 ordered to stand part of the Bill.

Clause 98 - Military application

Anne McIntosh (Conservative, Vale of York)

The Minister referred to clauses 97 and 98. Clearly, they should be read together. I understand that the new offences that are created in the Bill will apply to civilian contractors employed by

the Ministry of Defence working on or with military aircraft who are not subject to service law. Service personnel are subject to separate disciplinary procedures if found under the influence of alcohol or drugs while on duty. I have two RAF stations—Leeming and Linton-on-Ouse—and an Army helicopter station at Dishforth in my constituency, so the matter is of interest to my constituents. Under recent changes, civilian crews are covered, so will the Under-Secretary explain the relationship between the civilian laws, with which the Bill deals, and the military laws?

My basic concern is that we might have two tiers of staff working at a military base—those working under military laws and those working under civilian laws. Has the Under-Secretary given any thought to any conflicts that might arise? That is especially important for my constituency. It also prompts the question of what would happen in any conflict—I am not thinking of only the Iraq conflict. Many civilians will travel with the military from such bases, should their services be required in either conflict or training. In those circumstances, would any change to the law apply? I assume that civilians would continue to be covered by civilian law and the military by military law.

Clause 98 quotes definitions taken from the Civil Aviation Act 1982 and the Army Act 1955. According to the explanatory notes, ''military aircraft'' means

''an aircraft of the naval, military or air forces of any country; or . . . any other aircraft in respect of which there is in force a certificate issued in accordance with any Order in Council . . . that the aircraft is to be treated for the purposes of that Order in Council as a military aircraft.''

The 1982 Act also provides that

''a certificate of the Secretary of State that any aircraft is or is not a military aircraft for the purposes of this section shall be conclusive evidence of the fact certified''.

Those definitions are important, and I hope that the Under-Secretary will clarify them. They raise the question about which rule applies to visiting military aircraft. Would they be equally excluded from the provisions? I would imagine that that is the case.

The definition also mentions naval aircraft. While my constituency does not have a navy base, navy pilots are trained at RAF Linton-on-Ouse. Is there any difference to the law applicable where a Royal Navy aircraft is on an aircraft carrier?

David Jamieson (Labour, Plymouth, Devonport)

Military personnel and civilian contractors working on or with military aircraft overseas are subject to service law, which prohibits them from taking alcohol or drugs. It is therefore unnecessary to extend the provisions of the Bill to such personnel. However, in the United Kingdom, the armed forces employ many civilian contractors, such as flying instructors, to work on or with military aircraft. It is right that such personnel should be subject to the same prescribed limits working on or with civilian aircraft. Clause 98 will ensure that they are subject to such limits.

The hon. Lady referred to the Royal Navy. As I just explained, civilians working in connection with the Royal Navy will be covered by the clause. If a Royal

Navy helicopter was working solely with military personnel, those people would be covered by military law. She asked an important question about visiting military personnel. It has caught our attention and we are looking into it. We may need to amend the Bill further at a later stage.

Anne McIntosh (Conservative, Vale of York)

That is very helpful, but it raises a question: why were the Government insufficiently prepared? It is not a new point. Military personnel have been visiting our shores at every level from the headquarters at Northwood to local military bases such as those that I referred to in my constituency, and we have welcomed those visits. We have identified a considerable gap in the legislation, and I hope that the Minister will take steps to close it—otherwise we might feel minded to give some assistance in that regard.

There could be problems of interpretation, and the clarification that military and civilian aircraft overseas are subject to service law is helpful. I hope that consequential amendments will be made if there are any changes under our road traffic laws relating to the drink or drug provisions under this legislation.

The Bill does not state whether the military people and civilians employed on military bases will be consulted, unless that is covered under clause 96. It is unclear whether those will be deemed to be organisations that the Secretary of State shall think fit to consult under that clause. I hope that that is implicitly the case, because if it is not that would be regrettable, as they will be affected by this legislation. We want visiting military personnel to feel welcome, and I am sure that we will explain the position to them through the official or consular channels—or by whatever is the usual way of informing them about such things—at the earliest opportunity before the Bill leaves this House. That would be appropriate.

Question put and agreed to.

Clause 98 ordered to stand part of the Bill.

Clause 99 - Territorial application

Anne McIntosh (Conservative, Vale of York)

The Minister fleetingly referred to his assessment that a large additional cost is not expected to arise from the Bill. The territorial application of clause 99 provides a good opportunity to question him more closely on the issue. The explanatory statement informs us that it is difficult to quantify the costs to the public purse of the introduction and enforcement of an alcohol limit for aviation. The Minister mentioned that many airports make a contribution to airport costs, but I am unsure whether they cover all the police costs, and this legislation could add significantly to those. The same

issues with regard to police resources apply to mariners, we are told.

The lower blood alcohol limit for aircraft crew and aircraft controllers would mean that a number of existing police roadside screening devices will need to be modified to be capable of indicating a fail at the new aviation limit. We are told that the anticipated cost of developing the necessary software changes, obtaining type approval and modifying a minimum number of existing devices would be in the region of £17,000. Is that a conservative estimate? Is it a definitive estimate? Might the limit go up or down? Precisely how many devices would have to be modified? As the Minister rightly said, we should bear it in mind that we are not just considering aircraft and airport terminals, but air traffic control, baggage handling and maintenance hangars. At many airports—for example, Stansted, with which you will be familiar, Mr. Hurst—the air traffic control tower and maintenance hangar are some considerable distance from the main passenger facility. I query the figure of £17,000 for the cost of modification. The Minister might want to revise that.

We are told that a limited number of more modern screening devices would need to be purchased by those police forces exclusively using older screening equipment not suitable for modification. Each device costs around £450, but the number of new devices required would depend on the extent of aviation activity in the police area. Bearing in mind the fact that many carriers will not be British, and will not necessarily be using the same terminal, that raises a question about the number of devices that would be required.

The Lord Chancellor's Department has said that the associated policy costs to the courts as a result of additional prosecutions could be absorbed within existing resources. Compared with his pension or wallpaper, those provisions might seem modest. This is an opportunity for the Minister to say that, bearing in mind the number of foreign, as well as domestic, carriers using UK airports, a considerable number of people may have to be tested.

We are told that the territorial application will apply to any

''function or activity performed or carried out in the United Kingdom,''

and any

''flight function performed or flight activity carried out on a United Kingdom aircraft.''

We seek clarification from the Minister that that will cover all US and any foreign carriers for the provisions of part 5 and that the territorial application will extend to any person using or flying into or out of a UK airport. For that reason, we believe that the costs may be considerably higher.

In the Government's view, the alcohol and drug provisions to which clause 99 applies will not require recruitment of more public sector workers, although there will be additional responsibilities placed on existing police officers. With the increased security

and current terrorist alert, that will be at a time when police resources are at a premium, so it would be helpful to know precisely how many police officers are required. I hope that the Minister will confirm that it will apply to all foreign carriers using facilities at our airports, baggage handling and air traffic control and other facilities falling within part 5, in which case there could be considerable implications for police time.

Will the Minister clarify whether flight function under section 91(1)(a) is indeed aviation function? I imagine that he will, for the purposes of clause 99, say that it covers all functions and that it is not limited to flight functions that will be covered in territorial applications. Clause 99(2) states that,

'' ''United Kingdom aircraft'' means is an aircraft which is registered, in accordance with the enactment about aircraft, in the United Kingdom.''

However, I hope that all carriers using facilities at our airports will be covered.

I also hope that the Minister will confirm that the Orders in Council mentioned in subsection (3) will be subject to affirmative resolution and that they will not be smuggled through under the negative resolution procedure.

There is concern in the industry over whether the words ''function'' and ''activity'' are used here only in relation to aviation function. Can the Minister clarify whether we are to understand that those words are used with regard to aviation function and to activity ancillary to an aviation function? If so, would it not be better and clearer to include a full definition? I hope that the Minister will see fit to give a fuller definition.

It may be normal to issue a code of practice. I know that the Department for Transport has had discussions with various parties in the industry, and it has been stated that there will be associated codes of practice for the testing provisions. However, it would be very helpful, to clarify clause 99, if a code of practice could be published, perhaps following consultation of the House and the industry. It is generally understood that the Bill will result in a tightly defined group of individuals being targeted for testing. I hope that that will apply to both foreign and UK carriers. It is important for the people working for those carriers that the defined groups are not misinterpreted. They should include only employees for whom impairment is an issue. It would be helpful if a code of practice could explore any potential difficulties and if the Department could keep an open door on continued dialogue on such issues between the industry and the regulators when drafting such a code. Are the Government minded to draft such a code? At what stage of proceedings might it be issued?

Don Foster (Liberal Democrat, Bath)

I want to pick up on two points that the hon. Member for Vale of York has made, and shall then add a further one. First, the hon. Lady rightly asked the Minister to suggest what costs might arise as a result of the applicability of this part under the territorial application described in clause 99. She referred solely to alcohol testing. As the Minister has acknowledged, we are a long way behind on drugs testing in comparison with what has been compared

with what has been done on alcohol testing, but one assumes that there is no doubt in the mind of the Government that there is a need to carry out research and to develop accurate means of testing for drug offences. Can the Minister assure me that that work is going on? Will he acknowledge that costs will be involved in the drug abuse, as well as in the alcohol abuse, aspects of this part?

Secondly, the hon. Lady raised questions on the definitions in clause 99(2) of ''flight function'' and ''flight activity''. She asked whether those were exactly the same as the definitions of aviation functions in clause 91. I am confused over why there are different terminologies, especially as clause 99(1)(a) refers solely to ''a function or activity''. Since we have had definitions of an aviation function, a flight function and an activity ancillary to an aviation function, I am not sure which definition clause 99(1)(a) refers to when it says ''a function or activity''. There is probably some confusion in terminology.

Thirdly, when we discussed part 4 of the Bill, on shipping, we were very clear that the areas covered were United Kingdom waters. I am sure that it is a complete error on my part not to have this knowledge, but I hope that the Under-Secretary will assure me that we are clear about what is meant by the phrase

''carried out in the United Kingdom''.

Reference has already been made to flights coming into, and leaving from, the United Kingdom, which would require them to be outside the immediate geographical area of the United Kingdom. Is there an equivalent to United Kingdom waters in respect of aviation?

Kelvin Hopkins (Labour, Luton North)

At a previous meeting of the Committee I referred to a rather frightening flight from Plovdiv, which I experienced some 18 years ago. I assume that if a flight on which the crew were drunk were to enter UK airspace, a passenger could quickly report the crew to the police at the airport after the plane had landed—safely, one hopes. I hope that at that point there would be sufficient grounds for testing and for taking action against the crew.

In the case of cabin crew, the matter may not seem quite as serious. But we can imagine an emergency landing in which the crew had to look after children and elderly people and get them off the aircraft quickly. If the crew were clearly inebriated, the situation could be as tragic and dangerous as if the pilot were under the influence of alcohol.

I hope that people entering UK airspace on foreign carriers, which are perhaps not as responsible as some of the more established carriers in Britain, will be able to report crew who appear to be inebriated to the police and that action will be taken. If that were to happen, there would be hope that, in future, airlines would make absolutely certain that such things never happened on their aircrafts. Clearly, if the crew were taken away, the aircraft could not be flown and the airline would have all sorts of financial difficulties, as well as the loss of reputation. I hope that it will be easy for action to be taken once an aircraft has entered UK

airspace and landed at Gatwick, Heathrow or wherever.

David Jamieson (Labour, Plymouth, Devonport)

That was a helpful and useful intervention. The clause extends the provisions to aviation functions and ancillary activities, when carried out either within the United Kingdom or on a United Kingdom aircraft anywhere in the world. The clause also allows the Crown, by Order in Council, to extend the provisions of this part of the Bill to the Channel Islands or British overseas territories. The police powers of entry contained in clause 95 will not, however, apply in Scotland where common law already provides the police with the necessary powers.

The hon. Members for Vale of York and for Bath raised the issue of costs. Three of the four roadside screening devices currently in use in the United Kingdom have the ability to provide a digital read-out of the level of alcohol in a specimen of breath. We are liaising with police representatives, the Home Office and the forensic science service to confirm the suitability of using that facility for the testing of suspects. However, we are aware that 14 of the 51 forces in the United Kingdom might be equipped with only the old screening devices, which might not be suitable for use at the aviation limit. It will therefore be necessary for those forces to acquire a number of the newer devices.

As the explanatory notes set out, the cost will typically be in the region of £450 per device. The number of devices required will depend on the area concerned and whether a permanent police presence is maintained at the aerodrome. A large airport, such as Gatwick, might require five or six suitable devices on its own, whereas the same number of devices could cover the whole of a county force area with no major aerodrome. The decision about the number of devices required and their deployment will fall to the respective chief constables in those areas.

The question of who is expected to pay has arisen several times in our discussions. Given that only a limited number of devices will be required, police forces will, rather than requiring the purchase of the entire stock of equipment, respective acquire the equipment as necessary. The development of a digital facility on screening devices should enable their use on the road as well as for aviation purposes. We are currently checking with police representatives to confirm which forces would need to acquire the new equipment.

Clause 99(1)(a) refers to

''a function or activity performed or carried out in the United Kingdom''

However, to answer the hon. Member for Vale of York, the provision would cover United States or other European airlines when appropriate. The offence applies in full to all staff employed by all civilian carriers visiting UK airports. I hope that that puts the hon. Lady's mind at rest.

The hon. Lady asked about a code of practice. We are discussing that matter with the Civil Aviation Authority. Any guidance to industry would, of course, be publicly available.

The hon. Lady also asked about the explanatory notes. In discussions with the Home Office and police representatives, we are examining the possibility of using an existing digital readout. Facilities already exist on three or four screening devices, and, although they will require fresh approval, it is likely that the cost will be less than the £17,000 quoted in the explanatory notes.

The hon. Member for Bath raised the important issue of drugs. As he will know, research is currently under way into roadside testing. It is a complex and difficult problem and the different effects of various drugs are being assessed. It is difficult to assess what level of impairment drugs cause. Whereas we now have clear indications of the effects of alcohol, the effects of drugs are far less clear. There is another complication: drugs are often used in combination with other drugs or alcohol. If some form of drug test were to be introduced in the future, provisions could be introduced to make the regulations apply to aviation.

''Flight function'' refers to UK aircraft abroad and a wide range of activities is covered in the UK—maintenance and so forth.

Anne McIntosh (Conservative, Vale of York)

That raises the question of who would perform the testing on the aircraft while it was abroad. We have been told that the police perform testing in UK ports and ancillary facilities—in airports, maintenance hangars and baggage handling areas. Who would be required to perform the testing for a UK flight out of Stockholm or Hong Kong?

There is genuine concern in the industry about the definitions of aviation function, ''flight function'' and ''flight activity''. Why have the words ''function'' and ''activity'' been used? We heard the Under-Secretary's reply and we know that the provision will apply in subsection (3). However, for our understanding of the Bill and its applications, for the courts that may be asked to rule on the provision, and, especially, for the industry that will be subject to the provision, it would help if the clause defined

''a function performed or activity carried out on an aircraft which is registered''

for the relevant purposes. The provisions are, I note, covered by common law in Scotland. I hate to draw the conclusion that Scots law is superior to English in this respect, but it is regrettable that the same common law provision does not exist in England. We have identified a problem in this debate, with respect to the difficulty of testing for drugs. Regardless of whether someone is driving a car, flying a plane or undertaking related ancillary duties, drugs and alcohol remain in the blood and affect the body for different periods of time. That fact will lead to difficulty.

I regret that the Minister has raised more questions than he has answered. I think I understood him to say that clause 99(1) applies to most carriers in certain circumstances, whereas it applies to all carriers visiting UK airports. I wonder if I misheard.

David Jamieson (Labour, Plymouth, Devonport)

I do not recall saying that. It applies to all carriers in United Kingdom airspace.

Anne McIntosh (Conservative, Vale of York)

And presumably to all UK carriers wherever they operate. It would have been preferable for functions performed and activities carried out to be defined. The issue has already caused controversy and disquiet in the industry. It is incumbent on the Minister to let the Committee know who will carry out drink and drugs testing for the purposes of part 5 for a UK carrier flying back from, say, Hong Kong or Stockholm.

Don Foster (Liberal Democrat, Bath)

I do not know whether the Minister has raised more questions than he has answered. He has certainly not answered a question that I raised. The hon. Member for Luton, North (Mr. Hopkins), who repeatedly referred to United Kingdom airspace, but did not use the phrase

''carried out in the United Kingdom''

was praised for his helpful contribution. I am sure that both he and I believe that the provision applies to United Kingdom airspace, but I am surprised that the Minister has not yet clearly said so.

Kelvin Hopkins (Labour, Luton North)

I was making the perhaps rash assumption that United Kingdom airspace meant the United Kingdom, and that the term ''United Kingdom'' would cover United Kingdom airspace.

Don Foster (Liberal Democrat, Bath)

Like the hon. Gentleman, I make that assumption. However, it would be helpful if the Minister would clearly say that that is the meaning, not least because, in discussing shipping, we expressly use the phrase ''United Kingdom waters''.

David Jamieson (Labour, Plymouth, Devonport)

I can make it clear that ''United Kingdom'' means United Kingdom airspace, but the hon. Gentleman will realise that there is some difference between that and the maritime provision, in that boarding an aircraft in flight would present more difficulties than boarding a ship that was under way.

Don Foster (Liberal Democrat, Bath)

I am sure that the Minister is right; I shall not attempt to debate the question of disembarkation in such circumstances. I am glad that we have established that the term covers United Kingdom airspace as well as the ground on which aircraft remain stationary while passengers embark and disembark. It might have been helpful if that had been clearly set out in the Bill.

My other question may not have an answer. Perhaps I should not even bother to pursue the point, but I am still confused about the definitions. Subsection (2) says:

''In subsection (1)—'flight function' means a function falling within section 91(1)(a) to (f)''.

Clause 91(1)(a) to (f) lists a range of items that are specifically defined as ''aviation functions''. I do not understand why those two different terms have the same definition. Nor do I understand why subsection (1)(a) refers to ''a function''. Is it an aviation function, or is it a flight function? Or is it just some other function so far undefined? That is the point that the hon. Member for Vale of York made. There is confusion about which each of those functions is. Is a flight function in subsection (2) the same as an aviation function, and which type of function is a function in subsection (1)(a)?

David Jamieson (Labour, Plymouth, Devonport)

The answer to the first part of that last question is no. A wider range of activities than just flight functions is covered. For example, maintenance is covered in clause 91(1)(b). Only flight functions and flight activities on United Kingdom aircraft are covered by clause 99. For that reason we need a suitable narrower definition.

Question put and agreed to.

Clause 99, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at Seven minutes past Eleven o'clock till this day at half-past Two o'clock.

Standing Committee D

Railways and Transport Safety Bill

Don Foster (Liberal Democrat, Bath)

On a point of order, Mr. Benton. I welcome you to the Chair. We are all looking forward to serving on Committee under your chairmanship. However, confusion has arisen because some members of the Committee believe that I attributed to the hon. Member for Enfield, North (Joan Ryan) the phrase ''a police strippogram'', and that she had said it from a sedentary position. That was my interpretation of what she said. I should hate the Official Report to imply that she had said such words.Clause 100 Convention on International Carriage by Rail

Clause 100 - Convention on International Carriage by Rail

Anne McIntosh (Conservative, Vale of York)

Good afternoon, Mr. Benton. I warmly welcome you to what is becoming a jolly Committee.

Several years ago, the subject of the clause was dangerously familiar to me but, owing to the lapse of time, it is not so now. I am sure that the Minister will deal most eloquently with the background to the clause but I have several points to make about its wide-ranging powers. It is a matter of debate whether the Commission has exclusive competence in such issues. It is always of concern to the official Opposition when competence is classed in an exclusive sense, whether in rail transport or others matters.

The United Kingdom is a signatory to the protocol of Vilnius, which was agreed in 1999. It modifies the convention on international carriage by rail, which is known by its French acronym COTIF; I shall refrain from referring to the French version this afternoon. That was agreed in 1980.

The protocol of Vilnius will need to be ratified by the United Kingdom—and presumably other member states—before it applies to the United Kingdom. We must therefore have the necessary legislation in place to give effect to the new convention when it comes into force. I am sure that the Committee agrees with me and prefers the term ''convention'' to ''COTIF'', because it will make it easier to read our proceedings in the Official Report. The Bill makes the necessary provision for giving effect to the convention.

Like the existing 1980 version, the new convention provides a uniform system of laws that will apply to the carriage of passengers, luggage and freight in international through traffic by rail, and will facilitate the development of that traffic. I understand that there are 41 signatories to the 1980 convention, and that a uniform system of law has been in operation for many

years. The first international convention concerning the carriage of goods was signed in 1893.

Although the United Kingdom will ratify the protocol by means of the royal prerogative, when the new convention comes into force under international law, it will not have force of law in the UK until the relevant provisions of the Bill are brought into force and the corresponding domestic regulations are made. [Interruption.] We welcome back the Minister of State. I hope that he is making a speedy recovery from his illness and will be well for the remainder of Committee stage. I had the same thing and did not take any time off; I find the Bill so interesting that I would have been disappointed if I could not have contributed to each clause.

What will be the status of the convention before the United Kingdom ratifies it? Also, what will be the status of the several other members states that have not ratified the convention? Does that mean that the 1980 convention will remain in place until the new convention is introduced? I have a genuine interest in international law that dates back to my university days. Modesty—that is not the word, as it was a number of years ago—prevents me from saying how long ago that was.

The International Transport Conventions Act 1983, which gives effect to the 1980 convention, is not sufficiently flexible to deal with the new convention. The Bill, combined with the domestic implementing regulations, is designed to provide the flexibility necessary to give effect to the new convention. We hope that the Minister will confirm that not too much leeway will be given to the Secretary of State to make regulations under subsection (1). We hope that that power will be limited to ratifying the provisions of the Bill.

For many Committee members, alarm bells will ring when I say that the new convention brings within its scope certain matters in the competence of the European Community. It is incumbent on the Minister to say whether that is an exclusive competence, or whether it will be shared between member states and the Commission in respect of the implementation of the part of the convention under subsection (1).

Richard Bacon (Conservative, South Norfolk)

The matter of whether the competence is exclusive or shared will be of academic interest, as under draft articles 1 to 16 of the new European constitution, which have been published, even the shared competences only allow member states to act if the European Union decides that it does not wish to. If articles 1 to 16 went through as drafted, it would mean that we could all pack up and go home. Although that might be a sensible idea in the case of certain legislation, it would generally be a retrograde step for Parliament.

Anne McIntosh (Conservative, Vale of York)

I think that the Committee would agree with my hon. Friend. We prefer laws to be made by this institution rather than by another one, but I am sure that my hon. Friend agrees that, if there is an argument, international transport provides a good example of an area where competency passing to the European Union works in the interests of our industry, of those employed in it and of those

seeking to transport passengers and goods internationally by rail. That industry provides an argument that might make it marginally more favourable than we would otherwise think it to be. My hon. Friend made that point well.

In the explanatory notes, there is some discussion about appendices that have apparently been agreed under the convention, and in particular the European Union directives on interoperability of the European rail network. We wish to be told how those appendices will fit in with existing UK law on railways and the new convention. We would be particularly interested to hear how the channel tunnel will fit into the convention in that regard. The services through the channel tunnel are a remarkable example of interoperability of railway infrastructure. I should remind the Committee yet again that I have an interest in Eurotunnel, which is one of the providers of those services, as is Eurostar.

I understand that until the new convention, and in particular article 38, is enforced, there is no mechanism for the European Community—or the European Union as we now call it—to join. I think that the Minister will confirm that until that has happened the EU will have no competence and will not be in a position to join the convention on international rail transport.

I am sure that the Minister will wish to state to the Committee that the Government consider that the provisions of this part of part 6 are compatible with the European convention on human rights.

Joe Benton (Labour, Bootle)

Order. The background noise is getting too high; too many people are speaking at the same time. The hon. Lady deserves to be heard.

Anne McIntosh (Conservative, Vale of York)

I am grateful to you, Mr. Benton.

We have a particular regard for human rights. We are deeply concerned that, by writing the European convention on human rights into UK law, the Human Rights Act 1998 will have a devastating effect on how this part of the Bill will be implemented and interpreted.

We were told that one effect of the convention provisions of this Bill and the regulations that clause 100(1) gives the Secretary of State the power to make will be to ensure that certain dangerous goods may not be carried by rail. Does that mean that under the present convention certain dangerous goods may be carried by rail on an international journey and that that will no longer be the case because of the convention on human rights? I am reminded of the devastating accident in, I think, the Mont Blanc tunnel in Switzerland. Chemicals exploded and there were several fatalities and serious injuries. There may be some cunning reasons why such dangerous goods should be carried in future, but we seek guidance from the Minister on that.

If the consequences are that the dangerous goods may not be carried by rail, how will the dangerous goods be carried? Will dangerous goods be allowed to be carried by rail through the channel tunnel, or will

that be deemed carriage by rail under the terms of the convention? Will such goods be allowed to be transported by sea? That could cause enormous distress to my right hon. and hon. Friends who represent coastal and shipping constituencies. Indeed, the Under-Secretary of State could fall into that category—Plymouth is a large port. I am always mindful of the interests of the Under-Secretary of State and I wish to be helpful in this regard.

If dangerous goods will not be allowed to be transported by rail under the convention and, if they are not allowed to be transported by sea, I cannot imagine for one moment that they will be allowed to be transported by air. Does the provision refer to some, but not all, chemicals? How will oil, gas and other hazardous products that are produced in the UK be exported in future?

The explanatory notes tell us that dangerous goods will not be allowed to be transported by rail under the new convention, once that is ratified in the UK and applies throughout the EU. The notes say:

''It is considered that where this interferes with a person's economic interests in running a business''—

Richard Bacon (Conservative, South Norfolk)

Will my hon. Friend make it clear which convention she is talking about?

Anne McIntosh (Conservative, Vale of York)

The new convention. I am seeking clarification from either the Minister of State or the Under-Secretary. My understanding is that the current convention allows for dangerous goods to be transported. Is this provision a new development? Are the Government saying that dangerous goods can, or cannot, be carried by international rail?

Richard Bacon (Conservative, South Norfolk)

I am trying to establish which convention we are referring to—never mind the new one. There are various conventions: the convention on the future of Europe, to which she is not referring, the charter of fundamental rights and the European convention on human rights.

Anne McIntosh (Conservative, Vale of York)

I was trying desperately not to use the term COTIF, but for my hon. Friend's benefit I shall now talk about that, instead of the convention. The convention on international carriage by rail, known as COTIF, forms the basis of clause 100, which deals with the new provisions. I understand that under COTIF there is a potential ban on the carriage of certain goods by rail, that those may be considered to be in contravention, or interfering with,

''a person's economic interests in running a business (protected by Article 1 of the First Protocol)''—

of the European convention on human rights—and that

''this prohibition may be justified on general public interest grounds.''

If that is right, I would like to hear about it from the Minister responsible.

A producer of hazardous goods that are deemed too dangerous to be carried by rail under COTIF may be able to oppose the prohibition on transporting his goods by rail on the grounds that, under article 1 of the first protocol, his freedom and right to develop and enjoy his economic interests have been compromised.

The prohibition on the carrying of certain dangerous goods by rail would also go towards ensuring that the UK upheld article 8, which deals with the right to respect a person's home. That right might otherwise be affected by environmental blight or pollution caused by the carriage of those goods. If chemicals or hazardous products were carried by rail and there were an accident and a spillage, people's enjoyment of their private property or dwelling could be damaged. Such people would, therefore, have a different interest.

Will the new convention, COTIF, which is the basis for the provisions in clause 100, mean that certain dangerous goods may no longer be carried by rail? If that is the case, surely they are too dangerous to be carried by ship or plane, so how will such goods reach their destination? How will firms that need to export such goods be able carry out their business? The most serious charge to be made against the Government is that the Bill may be defective in its current form.

We are told that regulations made under subsection (5) must be

''laid before and approved by resolution of each House of Parliament.''

I hope that the Minister will confirm that that will be done under the affirmative resolution procedure.

The convention raises serious matters, especially about the time lapse between the old convention and the new one. Until the Bill becomes part of UK law, can the dangerous goods prohibited by the clause still be carried by rail and through the channel tunnel?

Kelvin Hopkins (Labour, Luton North)

Thank you, Mr. Benton. It is a great pleasure to be sitting under your chairmanship this afternoon—unexpected, but a pleasure nevertheless.

I have one or two concerns to raise, especially about the aspect of the convention that refers to the separation of infrastructure management from train operations. I am pleased that some flexibility has apparently been built into adopting the convention. I hope that we will not be required to perpetuate or increase the degree of vertical separation that has occurred in the disintegration of our rail industry between rail and wheel.

The problems that have arisen since privatisation have largely been caused by the vertical disintegration between contractors working on track, track management and train operators.

Anne McIntosh (Conservative, Vale of York)

Is the hon. Gentleman saying that he disagrees with a previous leader of his party, who is now a senior commissioner for the UK in Brussels? He set out what the hon. Gentleman describes as disintegration. It became the basis of the European directive that preceded privatisation in the UK. Does he disagree with his colleague?

Kelvin Hopkins (Labour, Luton North)

Possibly, but I do not want to personalise the issue. I am putting forward a rational case for retaining the integration of train operations with infrastructure management. In the majority of rail systems in Europe, that is still largely the case—TGV, for example. I recognise that there is a drive towards separating train operations from

infrastructure management to market and privatise railways. It is fair to say that Britain has been a laboratory experiment for some of the theories that underlie the convention. That experiment has failed dramatically. One would expect continental railway operators and Governments to say, ''It hasn't worked in Britain, so we don't want it here''.

Private discussions suggest that the Government recognise that the separation has not worked and has been damaging. We should be seeking ways of vertically reintegrating train operations and infrastructure management.

Don Foster (Liberal Democrat, Bath)

Does the hon. Gentleman agree, as a first step at least, it would make sense to allow those train-operating companies that wish to, to take over responsibility for the maintenance of the track on which their trains run?

Kelvin Hopkins (Labour, Luton North)

If that were to be done, I would prefer it to be done in the public sector. As we are at least at a staging post towards full public ownership, I think that the way forward would be for franchises to be handed to Network Rail, rather than for rail track management to be handed to train operators. An experiment on that basis is possibly going to take place in Britain: a test for finding a way forward and a way out of our difficulties.

I will give one example of the sort of thing that happens. Because train operators run trains on track that they do not own, any damage that the trains cause to the track is not their concern, especially if they are profit driven. They are not going to be concerned about the damage that they cause to the track. That has to be dealt with by somebody else—it is not their problem.

I travel by train every day, and all too frequently I hear wheel flats. I am sure everyone knows that those are caused when the wheel skids on the track and makes a flat metal edge on one wheel, causing a clattering noise. That damages the track over time. Track can last a long time if it is looked after, but if it is battered daily by wheel flats it lasts less time. They cause cracked and broken rails in time. They also cause damage to the train, but the primary damage is to the track.

If there are two separate operators—both of whom have a central financial basis, either for profit or on a non-profit basis—the track infrastructure operator will not be concerned with the train, and the train operator will not be concerned with the track. It is even more ridiculous in Britain because the lathes that are used to regrind the wheels are owned by the owners of the infrastructure, Network Rail. Train operators have to hire the lathes, take their train out of service, which is a cost, and then pay Network Rail to have their wheels reground, which is another cost. There is a great disincentive to do that.

Another factor is that a lot of the units are owned by leasing companies, not by the operating companies, so they have even less incentive to do anything about wheel flats. That causes annoyance and discomfort for passengers such as me who travel every day at the standard operating speed of 90 mph. They hear wheels making a lot of noise and that causes concern,

especially for people who do not have an appreciation of engineering, or of the kind of damage that could be done.

The approach of separating infrastructure from train operations is driven by dogma. The Government are re-thinking their approach, and I am pleased about that. Private suggestions suggest that the Government are aware of the problem, that they will not be going any further down that route, and may reverse it. I hope that that will be the case.

Passenger representative organisations recently suggested at a meeting of the all-party railways group that they should at least test transferring one train-operating franchise to Network rail as a comparator to see what happens and how it works. I hope that that will happen very soon.

John Randall (Conservative, Uxbridge)

I was just wondering what the convention on international carriage by rail has to say on those matters.

Kelvin Hopkins (Labour, Luton North)

The explanatory notes have been very useful. They refer to

''increasing separation of infrastructure management from train operators.''

I have a note from one of the trade unions drawing attention to that matter—a trade union with which I have close relations and strongly support. I am not in any way formally related to them; I just agree with its view. Its members drive the trains, are concerned about the problem and see it daily. We should take note of what they say.

Richard Bacon (Conservative, South Norfolk)

I referred a moment ago to draft articles 1 to 16 of the new European constitution. If the draft goes through, does the hon. Gentleman agree that there may come a time when it will not matter whether he agrees with his trade union friends or not?

Kelvin Hopkins (Labour, Luton North)

I do not think so. Governments and people will all be sensible in the end. We need railways and railways will continue. We have a plan for the future and in spite of the difficulties that have arisen owing to privatisation, we will get through and will have a good railway system in time. It is right to listen to the advice of those who work in railways, as well as passenger representatives and Ministers.

I do not want to say much more but the important point should be made. The convention suggests that not only Britain but the European Union will move further down a route in the wrong direction—if I may use a railway metaphor. We should keep the integration of train operations and train infrastructure management for the foreseeable future.

John Spellar (Labour, Warley)

The convention does not require the opening up of rail markets or the separation of infrastructure management—I think that that is why my hon. Friend used the word ''reflects''. It merely provides for a clear and rational assignment of rights and obligations given that such developments have occurred.

The clause effectively replaces the International Transport Conventions Act 1983, which was passed not by a Labour Government or even a Major Government, but by a Thatcher Government. The international rail convention covers some 41 countries. Those are not only EU and European countries because the convention covers three north African countries. It is part of a long-standing ongoing process of international work on the rail industry, which is done for understandable and sensible reasons.

A question was asked about the status of the convention before it is ratified by other member states. The 1999 convention text will not come into force until two thirds of the signatory states have ratified it, and the 1980 convention remains in force until then. The EU already has competence on elements of COTIF but it cannot exercise that competence until the new text is in force. In the meantime, EU member states act on its behalf in the areas in which the EU is competent.

A question was asked about shared competence. That is not the issue here; it would happen if the UK and the EU could act in the same area. Exclusive competence exists if the UK may act in some areas of COTIF and the EU acts in others.

Regulations made under the clause and the associated schedule would be limited to matters relating to the ratification of the convention. I hope that I can reassure the hon. Member for Vale of York (Miss McIntosh) that that would be done by affirmative resolution.

The hon. Lady properly asked about the position of the channel tunnel under the convention. The channel tunnel falls within the scope of EU interoperability provisions—directive 96/48/EC—and COTIF generally.

I understand that the new convention makes no changes to the dangerous goods that may be carried by rail. Those restrictions are covered by the 1980 convention. It is not affected by the European convention on human rights. Dangerous goods rules recognise that member states have the right to apply specific rules in certain circumstances, and that would include setting rules for a structure with the length of the channel tunnel. I have a very extensive list of the goods that it is prohibited outright to carry by rail—it would almost be a Tom Lehrer moment if I read them all out. The list does not deal exclusively with goods, but often describes the packaging that is required for them. Exports can be accommodated where compounds have to be carried separately, and final assembly can therefore take place only subsequently. Several of the goods are asphyxiants, corrosive or explosive, and the definitions have been covered in previous regulation.

We have had the international rail convention for a considerable time, and it is, quite properly, being updated. The new text will come into force in late 2004, and we will then be able to incorporate it. We do not believe that the current Act is sufficiently flexible to deal with the new COTIF.

Question put and agreed to.

Clause 100 ordered to stand part of the Bill.

Schedule 6 - Convention on International Carriage by Rail

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 52, in

schedule 6, page 65, leave out lines 12 to 17.

I must limit my remarks purely to the amendment, so that we can discuss the schedule in the stand part debate. We want to delete paragraphs 2(d) to (g) because it would be inappropriate for regulations to

''amend an enactment . . . apply, disapply or modify the effect of an enactment . . . confer jurisdiction on a court''

or

''confer a function (which may include a discretionary function) on the Secretary of State or a person appointed in accordance with the regulations''.

For several reasons, the changes set out in paragraphs 2(d) to (g) would best be achieved through primary legislation.

If the Government sought to amend an enactment—this Bill and many others before the House amend previous legislation—it would be right and proper for this House and the other place to have an opportunity to debate and amend the proposals. For the same reason, it would be only right and proper for the Government to

''apply, disapply or modify the effect of an enactment'',

through primary legislation. It would be inappropriate for them to do so through secondary legislation—regulations, orders or other statutory instruments.

Equally, it would be more appropriate to confer jurisdiction on a court through primary legislation; it would be inappropriate and improper to do so by means of regulation, order or other statutory instruments. Similarly, the Secretary of State, or a person appointed by him under the regulations to act on his behalf, may confer a discretionary or a compulsory function. Again, that would be a sufficiently important matter to require primary legislation to be submitted in the usual way to the House.

I am taking advice from many senior right hon. and hon. Friends who have been in the House for a considerable time and for substantially longer than I have. They agreed with me that it is improper and inappropriate for the Government to try to do that by way of regulations. I am sure that the Minister would agree that the Government would not want to do anything that could be perceived as improper or inappropriate.

We ask the Government to support our amendment by deleting the provisions and insist that the objectives covered by paragraphs 2(d) to (g) should be pursued in primary legislation. In the regrettable case that the Government are not minded to agree, will the Under-Secretary explain why it seems to him proper to achieve those ends by regulation, preventing right hon. and hon. Members from scrutinising such changes as amendments to enactments or the conferring of jurisdiction on a court or a function on the Secretary of State? That would appear to be a slightly disdainful gesture towards the House.

David Jamieson (Labour, Plymouth, Devonport)

The amendment could have substantial effects, so it is proper to deal with each of point in the amendment.

Clause 100 and schedule 6 are intended to give the necessary powers to implement the new convention concerning international carriage by rail. I am sure that hon. Members will have noted that clause 100(1) expressly limits regulation-making powers solely to the purpose of giving effect to the new convention text. Regulations may not be made for any other purpose.

Each of the specific powers that the amendment would remove is necessary to give full effect to the convention in United Kingdom law, so that the United Kingdom can comply with its international obligations. Without those powers, which, as I said, are limited to the purpose of giving effect to the convention in the United Kingdom, the domestic implementation of the convention would be frustrated. Importantly, Parliament will have the opportunity to scrutinise the Government's intended use of the regulation-making powers through the affirmative procedure.

The amendment would remove four powers set out in paragraphs 2(d) to (g), which could be used in regulations giving effect to the new convention, so I shall explain the need for each of them. Subparagraphs (d) and (e) enable regulations to amend an enactment and to apply, disapply or modify the effect of an enactment. It is important that it should be possible to amend any United Kingdom, Scottish, Welsh or Northern Irish legislation that is incompatible with the United Kingdom's obligation to give effect to the convention. Paragraph 2(d) will permit that.

The power in paragraph 2(e) would enable the United Kingdom to give effect to aspects of the convention by the most expedient means. That could be by modifying existing statutory provisions or by applying them in the context of the convention. In some cases that will be far more efficient than drafting completely new provisions that largely repeat existing legislation. An example would be the implementation of the new appendices F and G to the convention, on the validation of technical standards for railway material and technical admission of such railway material into international traffic. The most efficient way of giving effect to those appendices would probably be to modify or apply existing regulatory provision such as the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994, the Railways (Interoperability) (High-Speed) Regulations 2002, and the enforcement provisions of the Health and Safety at Work, etc. Act 1974.

Paragraph 2(f) enables regulations to confer jurisdiction on a court. Establishing a proper means of enforcing the provisions of the convention is an essential part of giving effect to it. Rail industry parties and customers will have rights and obligations under the convention and it will be necessary for the regulations to specify in which circumstances the provisions of the new convention can be enforced in a UK court and which court is to deal with such matters. One example would be where a contract

between a train operator and a third party—for example, a vehicle owner, a passenger or freight customer or an infrastructure manager—had been entered into in the UK, and the terms of that contract fell under the requirements of the convention. If the terms of that agreement were breached by one party, the convention would require the UK to ensure that it provided for the parties to take the matter to court, should they not be able to resolve the matter between themselves. Paragraph 2(f) will allow our regulations to make such provision.

Anne McIntosh (Conservative, Vale of York)

I might be missing something, but my understanding is that every contract of that nature specifies the law by which it is governed, and, in most circumstances, that is English law. Is the Minister saying that paragraph 2(f) would overrule whatever law the parties agreed should apply to their contract? Any contract must state to which jurisdiction and law the parties wish to submit themselves in the event of a dispute, and there are many disputes relating to contracts. Is he saying that such a provision of contract law would be overridden by paragraph 2(f)?

David Jamieson (Labour, Plymouth, Devonport)

I did not say that it would override contract law. It will specify in what circumstances the provisions of the new convention can be enforced in a UK court, and which court is to deal with the matter.

Paragraph 2(g) enables regulations to confer functions on the Secretary of State or a person appointed in accordance with the regulations. That power is necessary, in particular, to enable the regulations to specify the authority competent to grant technical admission to rolling stock in the UK, as required by article 5 of appendix G to the new convention, in addition to the making of applications by the UK for the validation of technical standards and prescriptions under articles 5 and 6 of appendix F. It will also allow the Health and Safety Executive to be designated, if appropriate, as the enforcement authority for aspects of the new convention, in particular, for its provisions relating to the technical standards and technical acceptance for rolling stock and infrastructure. The Health and Safety Executive already carries out several similar enforcement functions in the railways sector under the Health and Safety at Work, etc. Act 1974.

I hope that I have been able to satisfy the Committee that the powers set out in paragraphs 2(d) to (g) are necessary to give proper effect to the convention and that there will be adequate opportunity for Parliament to scrutinise the Government's use of the powers. On that basis, I hope that the hon. Lady will withdraw her amendment.

Anne McIntosh (Conservative, Vale of York)

That clarification was welcome, if not completely clear. Paragraph 2(f) has not been explained to my satisfaction. I would have thought that any contracting parties would set out which law applied to their contract, and I am slightly concerned if that is to be overridden by the schedule.

David Jamieson (Labour, Plymouth, Devonport)

I assure the hon. Lady that English law would still be applied. Paragraph 2(f) could not be used to overrule the law. It just says that provisions may require the parties to go to the UK court on a COTIF dispute.

Anne McIntosh (Conservative, Vale of York)

That minor clarification is helpful. These matters are, perhaps, more complex than they first appeared. We will keep the matter under review and might return to it at a later stage. Meanwhile, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the sixth schedule to the Bill.

Anne McIntosh (Conservative, Vale of York)

We are told by the explanatory notes that clause 100 provides the Secretary of State with the power to make regulations to give effect to the new COTIF, and that such regulations must be approved by both Houses of Parliament. The schedule details the provisions that may be included in regulations made under clause 100. Some railways legislation on matters addressed in the new COTIF is already made at EU level. In those areas, the European Community has the right to act in place of the EU member states in international railway matters.

We are led to believe that, in order to recognise that, some aspects of the new COTIF remain the responsibility of the UK, while others are the responsibility of the European Union. The regulations under clause 100 will be made partly under the powers of this Bill, and partly under section 2 of the European Communities Act 1972. That could lead to confusion. We are also told that it is not expected that the implementation of COTIF under UK law will require any significant additional public expenditure or additional public manpower. However, we heard during our little debate on amendment No. 52 that it will create a substantial amount of work. That work could be already going on. It could be work done by dedicated individuals under the current COTIF.

Can the Minister tell us whether the regulations and the schedule will relate to a broader, more wide-ranging power? Many of my right hon. and hon. Friends would argue that enabling regulations to be drafted under clause 100(1) or section 2 of the European Communities Act 1972, as specified in the schedule, would be an open sesame to a plethora of additional regulations, statutory instruments and Orders in Council. It would be helpful if the Minister could tell us which courts and tribunals currently rule in that regard in the United Kingdom. He mentioned that paragraph 2(f) would enable jurisdiction to be conferred on a UK court. Which courts and tribunals fall into that category?

We are enthusiastically in favour of the interoperability provisions. The channel tunnel was a monumental achievement under the Administration of Mrs. Thatcher.

Don Foster (Liberal Democrat, Bath)

If the hon. Lady is so enthusiastic about the interoperability directives, can she tell me—

Anne McIntosh (Conservative, Vale of York)

I did not refer to the directive.

Don Foster (Liberal Democrat, Bath)

If the hon. Lady is so keen on the interoperability provisions, can she tell me whether she believes that the technical specifications for interoperability in relation to safety, which arise through the interoperability procedures, should have precedence over the various regulations in relation to safety on our railways provided in this country, or should we muddle along, trying to operate both side by side?

Anne McIntosh (Conservative, Vale of York)

I could, but I shall not, because that is not pertinent to this portion of the Bill.

At the time of the Margaret Thatcher Government I was embarking on my political career as a humble advisor to the Conservatives in the European Parliament. I remember going along to the policy unit of No. 10, which is a place that I have not visited for five and a half years, for obvious reasons. It was interesting to be privy to the negotiations at that time on a project that was not initially conceived in the form mentioned—it could have been a flexi-link, a bridge, or a mix of a bridge and a tunnel. However, I believe that the channel tunnel will remain a sterling monument to interoperability from which many other projects will flow.

Richard Bacon (Conservative, South Norfolk)

In commenting on my hon. Friend's point, I say that I am also enthusiastic about the sterling monument to interoperability that she talks about. In fact, in South Norfolk we speak of nothing else. However, more important than my great enthusiasm for the interoperability provisions is my concern about the plethora of regulations that might be forthcoming, to which my hon. Friend referred. Does that not show that William Shakespeare was right when he wrote, in ''Henry VI part 2'',

''The first thing we do, let's kill all the lawyers''?

Anne McIntosh (Conservative, Vale of York)

I would not say that, as a non-practising member of the Faculty of Advocates, but it is good to know where one's friends are.

On the point that my hon. Friend the Member for South Norfolk (Mr. Bacon) raised in support of my comments about open sesame and the plethora of regulations that will appear, we are concerned about the scope for

''transitional, supplemental or incidental provision.''

I hope that the Under-Secretary will put our minds at rest, that there have not been such provisions under COTIF, which was introduced during a transitional period, and that there would be no great need for such provision, because that would be very difficult indeed.

The Under-Secretary mentioned the validation of a technical standard, which is referred to in sub-paragraph (3) of paragraph 3. I would imagine that much of COTIF's work refers to the validation of a technical standard and the adoption of a uniform technical prescription. The Minister's Department will have its work cut out, because our gauges are still in large part different from the gauges used in continental Europe. What scope is there in the schedule and COTIF for such possibilities—one hesitates to use the word ''harmonisation'' because no one uses that term anyone, and I gather that the word is ''toning''? Is there a desire to proceed on that?

I am reminded of the fact that Eurotunnel and Eurostar facilities are now operating through the channel tunnel. We were promised direct regional services from the north of England and Scotland, in particular from Edinburgh, Newcastle and York. The east coast main line serves the Vale of York and would have been of special interest to me and to those whom I represent in that respect. Such services would have been very welcome indeed, and it is sad that those projects seem to have failed. It would be helpful to know whether the provisions in subparagraph (3) of paragraph 3 were inspired with that ambition in mind.

Paragraph 6 says:

''Regulations may provide a criminal or other sanction in connection with a duty arising under the Convention or the regulations.''

However, that offence would not be ''punishable with imprisonment'', nor would it be

''punishable on summary conviction with a fine exceeding the statutory maximum or level 5 on the standard scale.''

I jolly well hope not. The whole Committee would agree that it is extremely important that such sanctions should be considered in primary legislation. Why was it not deemed appropriate to set out the sanctions in the Bill? Can the Minister tell us what the sanctions under the present COTIF are? Will the Minister explain the regulations to make provision to prevent double recovery? Are they in existing legislation or are they new provisions?

I am deeply concerned to see that international law, on matters which one always assumed to be the province of domestic law, has, through the treaties of Nice, Amsterdam and Maastricht, crept into Community competence. I hope that the Minister will put the Committee's mind at rest that judgments will be enforced in the usual way by UK courts free from the interference of the European Court of Justice and its interpretations. Even though I have the highest regard for those who serve on the European Court, and in particular for Judge David Edward and Judge Nicholas Forwood, transport is a matter for our own courts to determine. I wonder whether, without wishing to cause too much excitement among Conservative members, there is any scope at all for interpretation by the European Court of Justice.

Richard Bacon (Conservative, South Norfolk)

As it happens, I visit the European Court of Justice next week. Is there any message that my hon. Friend would like me to carry to it? Perhaps something along the lines of ''Get back in your box''?

Anne McIntosh (Conservative, Vale of York)

I regret that I will not be able to join my hon. Friend on that visit, as the Committee will still be meeting next week.

Will the Minister take this opportunity to rule out any jurisdiction by the European Court of Justice and assure us that transport will remain a matter for our courts?

David Jamieson (Labour, Plymouth, Devonport)

Clause 100 and its associated schedule 6 provide the powers to enable the new version of the international rail convention—COTIF—to be incorporated into domestic UK law. We expect the new text to come into force late in 2004.

The present version of the convention is incorporated through the International Transport Conventions Act 1983. That Act is not sufficiently flexible to deal with the new COTIF.

Paragraph 1 of the schedule provides, with clause 100, that regulations may be made only to give effect to the new convention. Paragraph 2 provides the detail of the power, extent, scope and circumstances in which regulations under clause 100 may be made in order for the convention to be given effect. Paragraphs 3 and 4 provide for regulations to cater for changes to the convention and for most of those changes to flow directly into UK law.

That deals with technical changes to the uniform rules made by committee processes under the convention and which come into force automatically unless a member state objects within four months. Such changes include the drawing up of the list of uniform technical rules and prescriptions to be used for rolling stock and infrastructure under the adoption of uniform technical prescriptions appendix and changes to that list. These will need to come into effect in UK law automatically. We intend that more substantial modifications that are made by the general assembly of COTIF should first be approved by Parliament. To clarify the matter for the hon. Lady, all regulations made by virtue of this clause and schedule will be made under the affirmative procedure.

The hon. Member for Vale of York asked which courts would have jurisdiction in this country. The county court and, if appropriate, the High Court will have jurisdiction. As such, any cases will be a matter for United Kingdom reports. She asked about extra costs and regulatory burdens. A convention is already in force, and we do not anticipate any extra costs for industry.

There was a question as to whether there will be a plethora of regulations. I can give an assurance that there will only one set of regulations, not a plethora, as suggested by the hon. Member for South Norfolk.

The purpose of the transitional provision about which the hon. Member for Vale of York asked is to allow the switch from the current domestic implementation to the new domestic implementation to go smoothly. She also mentioned the validation of technical standards. The technical standards put forward for validation reflect both European specifications and UK national standards. Both reflect the particular requirements of the British network.

Don Foster (Liberal Democrat, Bath)

The Under-Secretary suggests that the TSIs and industry standards in the UK are appropriate and reflect the needs of our network. Does he accept that we have still not had a clear answer as to who is responsible for adjudicating on issues of conflict between the two? Was he rather surprised when the hon. Member for Vale of York, in answer to my intervention, said that she knew the answer to that question but was not going give it? At our meeting on 11 February, she told the Committee that if she knew the answer to that question, she would

be in Government. Clearly, now that she knows that answer, she aspires to move forward.

David Jamieson (Labour, Plymouth, Devonport)

I am not sure whether I am answering a question to which. the hon. Member for Vale of York already knows the answer. European law clearly sets out when national standards or TSIs apply. I hope that that helps the hon. Gentleman.

The hon. Lady asked me about double recovery, saying that the provisions are the same as the existing 1980 convention.

Anne McIntosh (Conservative, Vale of York)

Before we leave the point on TSIs to which the hon. Member for Bath dragged us back, one hesitates to usurp the role of Government. Therefore, one would wish that the Minister would respond to the question. He said that European law sets the standards that apply, but who would decide? Would one have to apply to a UK court?

There was also mention of a tribunal. The Minister said that only a county court or the High Court would have jurisdiction. Which tribunal, if any, would have that authority? Who would decide what the applicable EU law was?

David Jamieson (Labour, Plymouth, Devonport)

That is an interesting question, on which, I am sure that inspiration will come to me at any moment.

The hon. Lady asked about sanctions under the existing COTIF. The convention does not make provisions that require such sanctions, but the new COTIF does. She also asked about enforcement of judgments. The European Court of Justice is relevant in the enforcement of COTIF, because the sanctions will be the same as at present.

Some inspiration has arrived. European law is included into UK law, and UK law will enforce the implementation of the regulations.

Anne McIntosh (Conservative, Vale of York)

The question is who decides. Clearly, there is either national provision or an EU standard. As I said, if I knew the answer I would be in Government; but I am not in Government so I do not feel that I should give the Committee the answer and possibly be accused of misleading it. It is a simple question. The Liberals are often accused of being muddled in their thinking, but today the hon. Member for Bath has been uncharacteristically precise in his questioning. I repeat the question: who will decide whether it is a European or a national standard?

While the Under-Secretary seeks inspiration, I am interested to note that paragraph 5 might require the attendance of a constable. I presume that costs might be related to that. One wonders in what circumstances the provision might be used.

David Jamieson (Labour, Plymouth, Devonport)

I shall clarify the point, if I may. The UK courts will take a view, but the European law—the directive—is implemented in the UK through domestic regulation.

Question put and agreed to.

Schedule 6 agreed to.

Clause 101 - Office of Rail Regulation: general duties

Anne McIntosh (Conservative, Vale of York)

I seek clarification as to the precise role of the new Office of Rail Regulation. I presume that the rail regulator will have been involved with the present COTIF, and that he will be working with the European Union to set the standards for the COTIF regulations that we hear will be forthcoming under part 6. It would be timely to have some clarification of what will be the duties and responsibilities of the Office of Rail Regulation, as it is by no means clear.

David Jamieson (Labour, Plymouth, Devonport)

This little clause is consequential upon the creation of the Strategic Rail Authority under the Transport Act 2000. The amendment made by clause 101 will ensure that the Office of Rail Regulation has regard to the financial position of the Strategic Rail Authority for all of its duties, rather than concentrating on franchising alone. It is clearly correct that the Office of Rail Regulation should do that. The rail regulator has precisely the same duties.

Question put and agreed to.

Clause 101 ordered to stand part of the Bill.

Clause 102 - Railways safety levy

Don Foster (Liberal Democrat, Bath)

I beg to move amendment No. 94, in

clause 102, page 44, line 13, at end insert—

'(2A) The Executive is required to consult with all relevant parties with regard to the proposed budget for activity referred to in subsection (2).'.

As we draw towards the end of the Committee stage, we all seek to learn something. I have certainly learned a great deal from the performance of the hon. Member for Vale of York. With your permission, Mr. Benton, I have decided to try a little experiment; I shall try to move the amendment in the style of the hon. Lady.

For the delectation of the Committee, we are reminded that clause 102(1) inserts new section 43A in the Health and Safety at Work, etc. Act 1974, giving the Secretary of State power to make regulations to introduce a compulsory railway safety levy on the railway industry. The HSC will be able to propose such regulations to the Secretary of State after consultation. The clause extends to England, Scotland and Wales. Under that Act, the Health and Safety Executive is responsible for a range of regulatory work, including inspection activities, applied to the rail industry. Since October 1999, there has been a charge on the work on an hourly basis. Since October 1999, there has been an hourly charge for the work. Such charges cover only part of the cost of the HSE's work on railway safety. For example, they do not cover work relating to policy making or operational activities. The HSE annual report on railway safety listed those activities, for which charges were made.

Anne McIntosh (Conservative, Vale of York)

Is it appropriate for the hon. Gentleman to introduce a clause stand part debate when we are discussing an amendment?

Joe Benton (Labour, Bootle)

Until now, no reference has been made to a clause stand part debate. The hon. Gentleman has dealt with the amendment.

Don Foster (Liberal Democrat, Bath)

Thank you, Mr. Benton. I am setting the scene for the current arrangements. We will then move on to how the Government propose to change the levy and why those proposals need to be changed along the lines of the amendment. The HSE annual report on railway safety listed the activities for which charges were made. It referred to approval of specific proposals by operators and suppliers, safety case acceptance that Her Majesty's rail inspectorate has a duty to accept, safety case exemptions in certain circumstances and safety case acceptances arising from field operations.

Ministers agreed that the impact of charging would be reviewed after two years. The HSE's annual report on the safety record of the railways in Great Britain during 2001 and 2002 says at paragraph 1.31 on page 8 that, because of concerns about the introduction of charging in Her Majesty's rail inspectorate and other HSE directorates, Ministers invited the HSE to review each new charging scheme after two years of operation. In June 2001, the HSE commissioned independent consultants, Deloitte and Touche, to review each of the four charging schemes operated by the HSE for administrative efficiency, the reasonableness of charge rates and the effectiveness of the queries and disputes procedure. HMRI is currently evaluating Deloitte and Touche's report, which it received in the spring of 2002. Sadly, the outcome of that review has not been made public, but the explanatory notes to the Bill state:

''The review revealed that the existing charging regime was seen as bureaucratic, and stakeholders could not easily budget for charges.''

I am sure that the Committee will want to know what caused people to be concerned about the proposal. I am extremely grateful to several trade unions for providing me with some examples of the charging regime that people have been worried about.

David Cairns (Labour, Greenock and Inverclyde)

Will the hon. Gentleman give way?

Don Foster (Liberal Democrat, Bath)

I shall be delighted to give way to the hon. Gentleman, who made such a fine speech in Westminster Hall yesterday when he attacked the Catholic church.

David Cairns (Labour, Greenock and Inverclyde)

In your presence, Mr. Benton, I shall not respond to the hon. Gentleman's last remark. I was not attacking anyone.

Given that the hon. Gentleman has just paid glowing tributes to the positive engagement of trade unions, I think that he has departed from arguing in the style of the hon. Member for Vale of York.

Don Foster (Liberal Democrat, Bath)

The hon. Gentleman is right. I have made a slight departure from the hon. Lady's style. Nevertheless, the advice that I have received has been extremely helpful. It is worth bearing in mind that the

charges that are currently made by the HSE, which will be revised under the levy that is proposed in the clause and which I want to amend, are on an actual basis the recovery of full costs and the time spent by the HSE for conducting a relevant activity for a duty holder on a particular occasion.

The Committee will be fascinated to know that, from 20 October 2001, the charge out rate has been £130 per inspector hour. There exists, however, widespread consensus in the industry that the present system is unsatisfactory. Among the views of the membership of various trade unions about its introduction, it was said that there is less likelihood of the railway group company contacting the inspectorate and seeking advice and constructive discussions at £130 an hour. At meetings with the HMRI, people are always conscious of the meter running. Form filling and bureaucracy distract HMRI inspectors. The HSE charging officers failed to issue a 100 per cent. accurate invoice and that has necessitated queries and is time-consuming.

It is pointed out that the SRA effectively pays the charge anyway, as the train operating companies factor in the hourly rate in their franchise negotiations with it. The charging system has necessitated the introduction of a monitoring and tracking system for invoices, which is an extra cost and distraction. It is interesting to note that in 2001–02 the Health and Safety Executive costs for enforcement of railway safety legislation were £6,240,000. Yet it received only £5,251,000 in income, which leaves, the Committee will have worked out, a deficit of £411,000.

With all those concerns to consider, the Government, after consultation through the Health and Safety Executive—the review not being made public—decided to present the current proposal. We understand that regulations to require the payment of a levy need primary legislation, because levies cannot be imposed under regulations made under section 43(2) of the Health and Safety at Work, etc. Act 1974, which provides vires for the existing charging regime. We now have a proposal for a levy system.

Many people—increasingly, I feel like one of them—wonder why we need any complex system, and why the Government could not simply pay directly for the costs incurred by the Health and Safety Executive in the relevant work. After all, even the proposed levy system will be paid for from the taxpayers' pocket. The train operating companies who will pay the levy will in the end raise their charges; either the travelling public will pay or the money will come through the SRA contribution to the train operating companies, which, again, comes from the taxpayers' purse. There are questions to be answered about whether even a levy is a sensible approach.

However, because I am a magnanimous man and because I knew that the Committee would listen to erudite arguments from the Minister explaining why a levy is better than a direct grant, I decided to table a small amendment to improve the Government's proposals. As the Committee will know, the

amendment would insert into the clause the following provision:

''The Executive''—

that is the Health and Safety Executive, for anyone who is still with us—

''is required to consult with all relevant parties with regard to the proposed budget for activity referred to in subsection (2).''

In case anyone is lost, subsection (2) of course refers to

''activity undertaken by the Executive in reliance on section 117 of the Railways Act 1993 . . . or . . . activity undertaken by the Executive, under or by virtue of any other enactment, in relation to a transport system to which that section applies.''

The amendment—this is going on for some time and the Under-Secretary is beginning to look worried—would mean that the budget for the work done by the Health and Safety Executive, which will form the basis for calculating the levy, would have to be discussed with all those affected by the levy. It strikes me that those who pay for the work should have the opportunity to scrutinise the executive's budget.

Anne McIntosh (Conservative, Vale of York)

I have been paid a great compliment. They always say that imitation is the greatest form of flattery, but I do not think that the hon. Gentleman came close. Our response, like the Liberal Democrat response to some of our amendments, is that we should like to support the amendment in principle, but whether we shall do so depends on where in the country we live.

I have some general points to make on clause stand part about why the safety levy is probably not the best way to proceed. The hon. Gentleman seems to have proved that his amendment is a probing one, since he does not seem to have carried the Committee with him.

Don Foster (Liberal Democrat, Bath)

The hon. Lady is well aware that if I am desperate to get an amendment through, I simply use the time-honoured formulation—she knows which one I mean.

Anne McIntosh (Conservative, Vale of York)

If the amendment were to fail, which I am sure would be a source of great disappointment to the hon. Gentleman, whom would the Health and Safety Executive be required to consult? I imagine that the purpose of the amendment is to find out who will set the budget and what the budget will be.

David Jamieson (Labour, Plymouth, Devonport)

I was interested to listen and watch the hon. Member for Bath speaking in the style of the hon. Member for Vale of York. He did a good job, having obviously been closely observant during the hours that we have spent in Committee so far. Alas, I am not going to speak in the style of the hon. Lady since I shall speak only to the amendment and get to the point.

I believe that the intention behind amendment No. 94 is to impose a legal obligation on the HSE to consult all relevant parties before setting the detail of the railway safety levy. Clause 102 is an amendment to the Health and Safety at Work, etc. Act 1974. That Act already requires the HSE to consult on regulations that it wishes to propose to Ministers. The legal requirement to consult would also apply to regulations imposing a rail safety levy, so the HSE will have to

consult all relevant parties. I hope that that answers the hon. Lady's point. I am not really sure what is meant by the reference in the amendment to budget activity, but I am sure that the hon. Member for Bath will appreciate that the setting of detailed budget allocation is not a matter for consultation.

Under the existing hourly charging regime, the HSE has established charging review groups, including one for railways. Their role is to act as a consultative forum on charging issues. For example, they comment on proposed increases of fees and the quality of invoices and they also take an interest in such matters as efficiency savings. I anticipate that the HSE will establish a similar consultative forum if the current charging regime is replaced by a levy.

The hon. Gentleman alluded to the issue of whether it is right for the HSE to charge for its work. Charging for certain of the HSE's activities in various industries, including the railway industry, was introduced by the Government in 1999. In the Government's view, it was right that those whose activities caused safety risks should bear much of the cost of their regulation. The levy will establish a more efficient and less bureaucratic mechanism than the existing charging regime and allow the HSE to recover some of its operational cost from the railway industry. Although the hon. Gentleman's amendment suggests a change in drafting, it does not alter the effect of the provision in relation to consultation on proposed regulations and I, therefore, invite him to withdraw it.

Don Foster (Liberal Democrat, Bath)

I am grateful to the Minister for his response. He tells me that all is well because the Health and Safety at Work Act, etc. 1974 requires the HSE to consult on regulations, but, slightly earlier, he said that he did not understand what was meant by the reference in the amendment to ''proposed budget for activity.'' I am unsure how he marries the two positions.

The issue is simple and, no doubt, I could have put it much more succinctly. Those people who are required to pay the levy should be consulted on the budget that will determine its magnitude. If the Minister can assure me that the requirements to consult under the 1974 Act include consultation on those aspects of the budget of the Health and Safety Executive or the Health and Safety Commission in relation to the work that this Bill covers, I will be happy to withdraw the amendment. However, I am still waiting for a clear assurance from the Minister that these issues are covered.

David Jamieson (Labour, Plymouth, Devonport)

Those will be matters for the charging review groups to address.

Don Foster (Liberal Democrat, Bath)

I am unsure whether that was the assurance that we sought. However, we can have further discussions to seek absolute clarity on that before we move on to further stages of the Bill.

David Jamieson (Labour, Plymouth, Devonport)

They will also be consulted on the overall level of charges. Is that of any help to the hon. Gentleman?

Don Foster (Liberal Democrat, Bath)

That is enormously helpful. Having at long last received that clear assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Jamieson (Labour, Plymouth, Devonport)

I beg to move amendment No. 82, in

clause 102, page 45, line 11, leave out from 'information)' to end of line 13 and insert

'after ''27A above'' insert '', by virtue of section 43A(6) below''.'.

This is a technical amendment, which is intended to ensure that information obtained for the purposes of the railway safety levy is subject to the provisions relating to relevant information in section 28 of the 1974 Act. Section 28(1) defines ''relevant information'' as information that is obtained by or furnished to any person under certain provisions of the Act or health and safety regulations. This amendment will ensure that information provided to the HSE for the purposes of the railway safety levy, which could be commercially sensitive, for example, will be subject to the same restrictions on disclosure as other relevant information obtained by the HSE during its work.

Amendment agreed to.

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

Anne McIntosh (Conservative, Vale of York)

A charge for work done by the HSE under the relevant Act has operated since October 1999. It has been charged for on an hourly basis, and it has proved to be uniformly unpopular. The Government have had the benefit of a review, and the production of the provisions that they are now proposing gave them an opportunity to come up with a system that is more popular. It appears that the industry would wish the charge to be a straight grant in aid.

I imagine that it is the view not only of the unions, which seems to have caught the attention of the Liberal Democrats, but the entire industry—the employer organisations and the TOCs—that if there is a problem and if the system is universally unpopular, regrettably the railway safety levy is not the answer. In the view of many, the principle that lies at the heart of such a scheme is flawed.

Does the Minister not agree that if the system had been funded by a direct Government grant it would have been easier to administer, more efficient and more effective, and that there would have been fewer transaction costs and less bureaucratic hierarchy? Will he take this opportunity to confirm that the Government received extremely adverse comments about their review from the train-operating companies, the unions and others, as the hon. Member for Bath noted. Those results were not made public. It appears that the Government put on to their website only comments that are supportive of any consultation or review that they have conducted. The Committee can now conclude that when the results of such a review or consultation are not as flattering and helpful as the Government would like, they are not published for the public to see.

Everybody accepts that the HSE has to be paid. However, it appears that the following view has broad support at every level of the industry: the HSE needs

more direct funding, not schemes that many believe would cost the taxpayer more by creating a larger and less transparent bureaucracy that had greater administrative costs. It is incumbent on the Government to listen to the worries that have been forcefully put across by the industry—the TOCs, the employers, unions and employees—rather than introducing a new system that is less popular than that introduced in 1999.

Kelvin Hopkins (Labour, Luton North)

I am surprised that the hon. Lady suggests direct Government funding for anything, because one does not expect that from the Conservative party. There is a view, especially among trade unionists, that direct funding by Government would be preferable, although they accept that the levy system is the second best option. The railway industry is heavily subsidised in general. Given that the money will come out of Government pockets in any case, although it will go round the houses to become a levy for the HSE, would it not be easier to use direct funding, which would save money that is trimmed because it passes through more hands? I wanted to register the trade union view that direct funding by the Government might be better than a levy system, although I would not support a radical change.

Don Foster (Liberal Democrat, Bath)

I share many of the hon. Gentleman's worries. May I pay tribute to the Transport Salaried Staffs' Association? It has put together commendable and detailed briefings on the issue and it makes a powerful case along the lines that the hon. Gentleman suggested.

Sadly, you were not in the Chair when we discussed the funding of the British Transport police, Mr. Benton. At that time, I expressed concern that a complex funding mechanism was being proposed in the form of the police service agreements. I argued that direct funding would make more sense because that is how Home Office police forces are funded. In the same way, the clause would set up an unnecessary and cumbersome funding mechanism. As the hon. Gentleman and many trade unions have rightly pointed out, the money will come from the taxpayer anyway but it will be provided in a circuitous manner.

There is an additional argument, on which the Under-Secretary should reflect. If the funding regime uses either an hourly charge or the new levy system—I acknowledge that that is a better funding scheme than the hourly rate—there will be a relationship between the customer and the provider, which is my worry about the police force. We should examine the relationship between the regulated and the regulator. If there is a move away from clear direct funding of the regulator, which is the funding used for many other regulatory functions, there is conflict between the customer-provider relationship and the more appropriate regulated-regulator relationship.

David Jamieson (Labour, Plymouth, Devonport)

It has been the practice of the Health and Safety Executive since 1999 to charge the railway industry for its safety-related rail work. That is consistent with its practice when dealing with other industries that have similar requirements, such as the

nuclear and offshore industries. At present, the HSE uses a system of hourly charges to charge for its safety-related railway work. That is inefficient and over-bureaucratic for both the HSE and the railway industry.

Clause 102 will give the Secretary of State the power to make regulations to introduce a compulsory railway safety levy on the rail industry that would replace the hourly charging system. Subsection (1) does that by inserting new section 43A into the 1974 Act. The Health and Safety Commission will be able to propose such regulations to the Secretary of State after consultation. The new section specifies the purposes for which the railway safety levy can be applied and refers to the matters to be determined by regulations.

The regulations will cover the detail of the scope and application of the railway levy and will be subject to full public consultation, to answer the hon. Member for Vale of York. The optimum time for preparing and consulting on such regulations is being considered, but I can confirm that regulations will not be introduced before the Bill has received Royal Assent. We must get the detail as correct as possible before introducing any regulations.

I listened carefully to the points made by the hon. Member for Luton, North (Mr. Hopkins). We must embrace some of those arguments when the regulations are introduced. Clause 102(2) amends section 28(1)(a) of the 1974 Act, which relates to restrictions on the disclosure of information. As I said earlier, information provided in relation to the levy introduced by the clause will be subject to the provisions in that section.

The hon. Member for Vale of York mentioned the consultation. Nearly 50 responses were received and HSE officials reported back to the HSE on 14 January. The paper outlining the detail and a summary of the responses should soon be posted on the HSE website, but the HSE has also placed a copy in the House of Commons Library. In short, the responses were split roughly 50–50 between those in favour of the principle of the levy and those against. We will consider those views when we draft the regulations.

Anne McIntosh (Conservative, Vale of York)

I am grateful to the Under-Secretary for his explanations. The timing is regrettable: we are debating whether to empower the Government to insert a new provision into the 1974 Act, without having the time to review the consultation and its responses. If we are to do justice to the scrutiny of proposed new section 43A, the Committee should have more time. In saying that I simply rehearse arguments that were advanced in the responses by all sectors of the industry: it is not a party political point.

The Under-Secretary wasted this opportunity to explain why the Government are rightly turning their back on the present hourly charging system, which is expensive to administer and inequitable. If everybody is united in condemning it, there must be something wrong with it. The Government had to act. The system had been in force for two or three years. There is sufficient evidence to show that it is expensive and inequitable. The Under-Secretary said that the

provision would introduce a new compulsory system and that the safety levy would be imposed on train-operating companies.

I say this in a purely dispassionate and apolitical way: we seem to suffer the highest rail fares of any European country, even in standard class, and there is a concern that the cost of imposing the safety levy will be passed on to passengers. The Under-Secretary has lost the opportunity to explain to the Committee why this system was chosen. It is arguably the most bureaucratic to administer and it will increase the cost of travelling by rail at a time when the industry would argue that the sectors with which they are trying to compete—air and sea travel—will not have to face similar costs. I regret that the Under-Secretary did not use this opportunity fruitfully to argue that this is the

best way forward. I am not persuaded that it is the best way.

Question put and agreed to.

Clause 102, as amended, ordered to stand part of the Bill.

Joan Ryan (Labour, Enfield North)

On a point of order, Mr. Benton. On behalf of the Committee, may I say that we have been fortunate to have the benefit of your guidance this afternoon and the pleasure of your company at very short notice? We are grateful for that.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at half-past Four o'clock till Tuesday 11 March at five minutes to Nine o'clock.