Civil Aviation Bill

– in the House of Lords at 4:38 pm on 28th March 2006.

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Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 4:50 pm, 28th March 2006

moved Amendment No. 1:

After Clause 4, insert the following new clause—


(1) The Secretary of State shall, no later than one year after this section comes into effect, make regulations under section 20(1) of the Land Compensation Act 1973 (c. 26) (sound-proofing of buildings affected by public works) imposing a duty on responsible authorities to insulate domestic and community buildings, such as schools and nurseries, hospitals, nursing homes, hospices, places of worship, libraries and other public use buildings against noise caused, or expected to be caused, by the use of aerodromes for the taking off and landing of aircraft.

(2) Such insulation should provide for internal noise environments equivalent or better than the "good" category of BS 8233 where relevant.

(3) In making provision as to the level of noise giving rise to such a duty in respect of a building or class of buildings, and the area in which a building must be situated if the duty is to arise in respect of it, the regulations must make reference to the noise attenuation of individual rooms in domestic and community buildings such as those outlined in subsection (1) above."

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, in Amendment No. 1 we return to the issue of the adequate soundproofing of properties close to airports. I thank the Minister for the letter which I received this morning, but that letter does not in my view constitute a sufficient response to the amendment, which we moved for the first time earlier in the Bill's passage. We understand that the Government have powers under the Civil Aviation Act 1982, by negative resolution, to make a scheme requiring the operator of an aerodrome to provide the necessary sound insulation to properties around the aerodrome.

The noble Lord, Lord Davies, said in his letter that the airport would need to be designated. As far as I understand it, the airports at Heathrow, Gatwick and Stansted, with which I am chiefly concerned, are designated airports, and so we can take it that the Government have sufficient power to make it possible that insulation is provided. Our information is that the communities around the airports and most particularly around Heathrow suffer excessively from noise. We are asking that the Government activate their powers to make provision for houses and, more particularly, schools, hospitals and other such buildings to be sufficiently insulated against noise.

The Government have indicated that they will move towards doing that over a 30-year time horizon, but I suggest that for most of the people being affected 30 years is so long that either they will be dead or they will have long since passed out of places of learning. What we seek in the amendment is to hear from the Government what steps they propose to take immediately to give effect to the powers which the Minister's letter says they already have. The amendment is faulty to the extent that we suggest that they take powers; we understand that they already have them. We therefore want to know when they are going to do something about the powers that they already have.

Evidence from the London Borough of Hounslow shows that the noise levels experienced by those who live in that area exceed the amount of noise that people ought to be subjected to. In the White Paper, The Future of Air Transport, there is no doubt that people who live around these airports will have to put up with more flights and more noise. Therefore, I think that this is the right time to say to the airline industry, "You must pay for some insulation". It appears to me that that has a greater call on airlines' resources than cutting yet another pound or two off the ridiculously priced cheap flights that they advertise daily in the newspapers. I believe that they have a duty to the residents around airports that is as great as or greater than their duty to the passengers whom they seek to attract to their flights. I beg to move.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I support the amendment, which is in the name of the noble Lord, Lord Bradshaw. I am also grateful to my noble friend for his letter dated yesterday, which, as the noble Lord, Lord Bradshaw, said, sets out his comments. I will not repeat the responses as the noble Lord, Lord Bradshaw, has given them already.

The key to this issue is the difference between voluntary and statutory schemes. My noble friend said on Report that noise insulation schemes are provided only on a voluntary basis and that some buildings might require extra insulation. He said:

"I am confident that airports will meet the Government's criteria".—[Hansard, 8/3/06; col. 800.]

Airports are generally commercial undertakings; they will do what they can as long as it does not affect their bottom line. It is a bit like turkeys not voting for Christmas—they wouldn't, would they? I believe that the only answer is to have a statutory scheme that is reviewed regularly, that meets the British and World Health Organisation standards and that covers schools, nurseries, hospitals, places of worship, libraries and the like.

My noble friend implied on Report that people did not have to live near airports and could always move. Given that the price of houses under the flight path is probably less than it is on Hampstead Heath, it is quite difficult to find a place to which you can move within the price range—if you can sell your house.

As for the noise levels to which people are subjected, I wonder whether, if those people were at work for long periods, the Health and Safety at Work etc Act would come into force. Perhaps it is a bit like working in a dusty atmosphere. It is fine saying, "Okay, if you want a job, you work in a dusty atmosphere", but that is what the Health and Safety at Work etc Act is designed to prevent. The same applies to noise. Surely having a good night's sleep and a good environment for your kids to be educated in are just as important as having a sound, clean environment to work in.

In the 21st century, we have very modern airline technology and very modern noise technology, but the poor people—and some of them are fairly poor—affected are often powerless to take any avoiding action. This should not be left to a voluntary scheme. I very much support the amendment and believe that a statutory scheme that is applicable to all UK airports is very important.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 5:00 pm, 28th March 2006

My Lords, I have every sympathy with the noble Lord, and support the amendment. I shall be moving an amendment later, which is in similar vein, about compensation for properties. We had the debate about noise on Report. The noble Lord, Lord Berkeley, repeated some of the arguments when we went to a Division. The issues of noise, night flights, insulation and valuation of houses are very important and very germane to the people who live near airports, especially if we are to have continued airport expansion and continual flights. I hope that the Government, on this issue and the issue of valuations—

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I often support what the noble Lord says, but, more importantly, he often supports me. Why did not the previous Conservative government introduce the scheme which he now applauds? They did absolutely nothing.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I shall repeat the answer. A future Conservative government will be very different from past Conservative governments, in the same way as the current Labour Government are very different from previous Labour governments. We may as well use those arguments all the time.

I hope the Minister can give some satisfaction to those who tabled the amendment. I think we all feel the same; it is just a question of how we achieve the objective of having a statutory scheme rather than a voluntary one. I support the amendment.

Photo of Lord Smith of Leigh Lord Smith of Leigh Labour

My Lords, I declare my interest as a director of Manchester Airport. I rise with respect to the comments made by my noble friend Lord Berkeley. I think that he implied that voluntary schemes will never work. I ask him to visit Manchester or Nottingham East Midlands airport where we have a scheme that is every bit as good as the one being proposed here and which is done entirely voluntarily. Voluntary schemes can work.

My noble friend also mentioned a statutory code, but I cannot understand what the regulation would mean for an airport authority. How much airport noise will houses have to experience before we have to take measures? Will it be measured on the basis of distance, flight path or noise level? The amendment does not say. I think that the House should know what it is voting for before it does so.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, the amendment is imprecise, and it gives the impression that such matters are of no consequence. I said on Report that I could not recall an important meeting of BALPA—or outside the confines of the meeting—when this issue has not arisen. I speak as president of the pilots' union, whose members are deeply concerned about people who live under flight paths. To convey an impression that the situation is otherwise is completely false. Of course, it is impossible when discussions are conducted in a hostile way to make opinions heard, which I know from experience as an aviation Minister long ago. When it is possible for people to get together and discuss the problem of noise, progress is often made—and made voluntarily. I entirely agree with the views that have just been expressed. That situation prevails at Heathrow, Gatwick and Stansted, and it is idle to pretend otherwise.

The Government must—as I know my noble friend does—give credence to the people who are affected by noise disturbance. But I do not think that this amendment points the way forward. I want real progress to be made soon. It will be achieved only by constant discussion between those who are affected—those living around the airport, those who live under the flight path and those who work at the airport. They must all be considered.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, my noble friends Lord Berkeley and Lord Bradshaw have pursued the issue with considerable tenacity throughout the passage of the Bill. I could not agree more with the point made by my noble friend Lord Clinton-Davis. The imprint of aircraft noise on people who live close to airports is a serious and important issue. That is why the Government address it with full seriousness and have measures in place.

We are all agreed that action has to be taken to minimise noise and to reduce the impact of noise on households by measures referred to in the amendment but which I maintain are already substantially in place. My noble friend Lord Smith emphasised that the two airports of which he has considerable experience already have these measures in place. So have London Heathrow and London Gatwick; and Stansted will follow suit.

The community buildings noise insulation scheme, in existence at Heathrow, meets all the standards that the Government have set. That is also true of Gatwick. Compliance is therefore already in place. "Compliance" is almost the wrong word because the airports have taken initiatives. They will need to take additional measures if noise increases. While we recognise that the growing frequency of flights occasions problems, the situation will also be mitigated by the improved quality of the aircraft and the reduction in noise from modern aircraft.

I emphasise that airports have that consideration very much in mind. Why? It is because airports are in the business of ensuring that aircraft land there regularly, are competitive with other airports and work in an environment of broad support and approval. They will not achieve that if communities near airports stress to government that life is utterly intolerable because airports have no concept of their responsibility for the environment of those who live adjacent to airports. Airports act in their own interests when they produce such insulation schemes.

It is not that I am not at one with my noble friends Lord Bradshaw and Lord Berkeley, who have so strongly pursued these issues, and with the noble Lord, Lord Hanningfield, on the Opposition Front Bench. I am greatly supported by the comments of my noble friends Lord Clinton-Davis and Lord Smith. We all recognise that aircraft noise needs to be tackled. Those who suffer because their homes are close to flight paths need forms of assistance.

Previously, my noble friend Lord Berkeley raised the point that the 69 dBA Leq threshold in The Future of Air Transport White Paper, for operators of larger airports to offer households assistance with the costs of relocating, was very different from the World Health Organisation's recommended noise level of 30 dBA Leq in bedrooms at night. I am sorry to be technical, but these things have technical designations and it will be recognised that what is said at this late stage of the Bill can be interpreted as definitive on the Government's position.

It may be helpful if I attempt to clarify this complex technical issue. The 69 dBA Leq measurement applies to a 16-hour day, from 7 am to 11 pm, and is measured out of doors. The latest World Health Organisation guideline of 30 dBA Leq relates to night noise indoors—specifically, in bedrooms—and applies to an eight-hour night, from 11 pm to 7 am. They are two entirely different measurements and ought not to be confused, because we will lead ourselves astray if we do not concentrate accurately on the issues.

The latest World Health Organisation guideline value of 30 dBA Leq represents a level above which sleep disturbance may, depending on the nature and distribution of noise events, begin to be experienced or reported by some people who sleep with their windows open. Of course, as I have indicated, I fully appreciate that the issue of sleep disturbance will concern everyone who lives close to our busiest airports. Previous research has suggested that the incidence of sleep disturbance is especially associated with the loudest noise events and, in particular, those which produce more than a 90 dBA sound exposure level, which is a different sound measurement from Leq. It expresses the level of a noise event as if all its energy were concentrated evenly in one second. It therefore accounts for the duration of the sound as well as its intensity. A plot connecting points of equal sound exposure level from the departure, approach, or an envelope of the two, from a particular type of aircraft is known as the noise footprint.

The night noise insulation criterion that the Government have proposed as part of the consultation on night flying restrictions at Heathrow, Gatwick and Stansted relates to the 90 dBA sound exposure level footprint of the noisiest aircraft currently operating at each airport. Some other airports already offer night noise insulation schemes using criteria based on a SEL footprint, as do the two airports mentioned by my noble friend Lord Smith.

Furthermore, the published advice in the Government's planning policy guidance note 24, "Planning and Noise", which has applied since 1994, takes full account of the previous World Health Organisation guideline of 35—now down to 32—night-time Leq, although the research basis for that was somewhat tenuous, as the World Health Organisation recognised at the time. Planning policy guidance note 24 advises that an outdoors night-time aircraft noise level of 48 dB Leq, eight-hour night, should be taken into account for considering new dwellings near existing noise sources; and 57 dB Leq, eight-hour night, as the level at which noise insulation should be a condition of planning permission. The voluntary noise insulation schemes at Stansted, which have had government approval, have taken account of the 57 dB Leq night contour, as well as single event night noise footprints—although the latter have had greater effect on the overall scheme boundary.

I assure the House that the Government are committed to taking account of the latest World Health Organisation guideline values, and will do so over the 30-year time horizon of the White Paper. It is worth emphasising, however, that the World Health Organisation guideline values on aircraft noise were recommended as long-term targets for improving health, and the values are very low. It would be difficult, if not impossible, to achieve them in the short to medium term without draconian measures; but that is not what the World Health Organisation proposed. We also support its conclusions for regular reviews and revisions to the guidelines as new scientific evidence emerges.

We have not specified the achievement of BS8233 in setting out the circumstances in which we expect airport operators voluntarily to provide noise insulation. However, it should not be assumed that airport operators will therefore be unaware of those standards or that they will not seek to achieve them in providing noise insulation. As I emphasised in my opening remarks, there is no gain for airports by cutting corners. Providing insulation is, of course, expensive—it runs to thousands of pounds per home. But it will be in the airport operator's own interest to ensure that the insulation it provides is effective, so that the owners of the buildings that receive it are satisfied with it. BS8233 is referenced in the Government's planning policy guidance note 24 which set outs guidance for local authorities in England on the use of their planning powers to minimise the adverse impact of noise, including requiring noise insulation as a condition of planning permission.

I apologise for the technical nature of this response, but we are talking about measurement and meeting standards, and I want to reassure the House that the Government are serious about meeting those standards. I re-emphasise that in The Future of Air Transport we made it clear that, if necessary, the Government would use their powers under Sections 79 to 80 of the 1982 Act to ensure that airport operators provide noise insulation to an appropriate standard on the basis of the White Paper criteria. I am confident that the powers we enjoy are sufficient to allow us to impose a duty on any airport operator that did not follow the minimum criteria for noise insulation that we set out in the White Paper. The Future of Air Transport also restated the Government's policy that if there is evidence that a major noise problem at a non-designated airport is not being dealt with adequately through local controls, the Government will consider further designations for the purposes of Section 78 of the 1982 Act and will therefore bring such airports within the framework of the requirements.

I do not think that I could be any clearer, although noble Lords may think I have not tried. These are difficult technical issues, but I want to emphasise this point. Although it would certainly not be a decision that we would take lightly, the Government would indeed intervene if the circumstances warranted such action, and we had the powers to do so. As I have sought to emphasise to noble Lords, particularly noble Lords who have spoken positively to this amendment, the key airports are already compliant because it is in their interest to be so. Therefore, on the basis of the assurances that airports take this matter seriously and are providing the insulation and that the Government could act if necessary to enforce compliance with our requirements, I hope the noble Lord will feel able to withdraw his amendment.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 5:15 pm, 28th March 2006

My Lords, I listened carefully to what the Minister said. I quite understand the difference between 69 and 30, and I understand exactly what he is talking about. I am sure that the airports meet the minimum standards. However, the minimum standards are not good enough for the premises to which we have drawn attention: schools, hospices, hospitals, nurseries, places of worship and libraries. In fact, people who live around these airports say that they are disappointed at the level of funding for the BAA noise insulation schemes. They are particularly concerned that although it is possible to insulate against noise if all the windows are shut, it is necessary in hot weather to have ventilation systems as well or people suffocate in the interests of hearing less noise. That is not what we want people to do.

By pressing the amendment I am not seeking to change the law, because I have accepted that the Minister has adequate powers. What I am saying is that those powers are not being used. With deference to the noble Lord, Lord Smith, I realise that things may be different in the case of Manchester and East Midlands where voluntary schemes may work. However, the people around Heathrow, Gatwick and to some extent—and in the future possibly more so—Stansted are very concerned about the levels of noise. I should therefore like to test the opinion of the House.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 140; Not-Contents, 152.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Clause 8 [Functions with respect to health]:

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 5:31 pm, 28th March 2006

moved Amendment No. 2:

Page 9, line 41, at end insert "and of persons living in the vicinity of aerodromes in respect of any aerodrome-related operations which may have an effect on their health"

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I return to an issue that we discussed on Report. The amendment requires that the Secretary of State be made responsible for safeguarding the health of people around an airport as well as the health of people on board an aircraft. By returning to the amendment at this late stage, perhaps the Minister will accept that we still have severe concerns about the difficulties experienced by people who live near airports as a result of noise and air pollution.

We believe that it is now necessary to tackle this matter. We had a long discussion about the impact of noise in our debate on the previous amendment. As has already been made quite clear, noise has a considerable impact on the health of children as well as adults. It is very important that we recognise this. We all know that airports are necessary, but the consequences become greater as airports become larger and the number of flights through them increases.

It is very important that we start now to see what those health impacts are and how they can be mitigated. I do not want to tempt the Minister back into describing all the technical aspects of noise, as he did in response to the previous amendment; we will spare the House, and probably the Minister, too, from describing aspects such as the 57dBA Leq level, which he dealt with so carefully and ably. They are really important, but we will leave them as read so that we do not have to go through them again. What we cannot leave as read is the fact that noise has a serious impact on people's health. Without doubt, people living or working under flight paths to busy airports suffer high levels of annoyance and stress. A significant proportion of those people are children, and the impact of noise on those children's lives has been shown to be severe. Their sleep patterns and their ability to concentrate are severely affected, but are ameliorated when children leave the vicinity of an airport.

Having drawn attention to the fact that noise is a health problem, I shall concentrate on aircraft emissions, which affect local air quality. That impact is often augmented by road, rail and traffic emissions associated with airports. Research conducted at JFK Airport in New York reported that the airport was the largest single source of nitrogen oxides and the second largest source of volatile organic compounds in New York. The British Lung Foundation states that these pollutants alone can impair respiratory cell function, damage blood capillaries and attack the immune system. Together, however, the two chemicals can also combine to form ground-level ozone, which damages the respiratory system and causes breathing difficulties.

In Committee, I was heartened to learn of the Government's commitment to the WHO's guidelines for noise. However, I ask the Minister for a much firmer commitment on the time scale for meeting those guidelines than he has already given. Clearly, those who currently live in the vicinity of airports are already severely affected by the consequences of aviation, and they will not be satisfied by a vague commitment without a clear timetable of actions to meet those guidelines. You only have to drive past Heathrow to get a wave of diesel fumes, even from quite a distance.

Aviation is a unique industry that creates a specific set of health problems not only in aircraft but in the environment around airports. Those problems must be addressed. The Bill offers a timely opportunity to underscore the Government's commitment to the health of all those people whose lives are affected by aviation. The extension of the Secretary of State's powers, which the amendment would effect, would send a clear message to all those involved that the Government are taking the problem seriously. To pass up this opportunity would be to suggest to those living in close proximity to airports that their health and well-being are significantly less important than the health of the flying ticket-buying public. The Government have made a clear commitment to expanding aviation. I hope that they will embrace the responsibilities that come with this policy. I beg to move.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I support the amendment tabled by the noble Baroness, Lady Hanham. It is nice to hear her taking up my banner. Air pollution is a very important factor in human health, and increasingly we are finding that lower and lower levels of air pollution—sometimes we are talking about parts per million and trillion—are affecting particularly young children, whose immune systems are hardly formed. I was very interested to learn that cattle and sheep are born with their immune systems fully intact. It takes six days for the immune systems of mice to be intact; it takes six months for the immune systems of children even to begin to be intact. It takes quite a long time after that for the central nervous system to be intact. So we need to ensure the safety of our children and safeguard them from chemicals, the properties of which we simply do not know. This is a good case for the precautionary principle to be brought in, so I support the noble Baroness.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I, too, support the sense of the two amendments tabled by the noble Baroness. We believe that compensation should be available for people who are affected by aerodrome-related operations or the expansion of airports.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, I, too, support the principle of the amendment. It is great that Clause 8 is in the Bill, because it is terribly important that the Secretary of State has a duty to ensure the good health of people on board an aircraft. We heard a number of stories at previous stages of the Bill about problems in some aircraft, and it seems reasonable that the people who live around airports should have an equal measure of protection. Whether they have the same health problems or other health problems, those are still health problems. If the Government think it was worth including proposed new subsection (1A) in Clause 8(2), the amendment would fit very closely next to it and would make a proper balanced package between protecting the people in the aircraft and the people who live around the airports.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I thank noble Lords who have participated in this debate, although the balanced little package of my noble friend Lord Berkeley looks very unbalanced from the perspective of this Dispatch Box. I will seek to establish before the House why that is. The amendment would extend the health-related duties of the Secretary of State to include persons living in the vicinity of aerodromes in respect of any "aerodrome-related operations" which may affect their health. It would draw the Secretary of State's functions very widely indeed. We do not believe that they need to be extended in this way.

Perhaps I may remind the House why we have taken the general duty, which has been welcomed by all participants in the debate, of,

"organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft".

That was in direct response to the Select Committee on Science and Technology of this House, which recommended in its Fifth Report in 1999-2000 that the Government ensure,

"that concerns for passenger and crew health become a firm priority".

It has become a priority and it is in this Bill.

The United Kingdom is in the vanguard of taking responsibility for these issues and our proposed new general duty has been widely welcomed on all sides. But the amendment goes far wider than your Lordships' committee ever envisaged or the Government believe is necessary. It looks as if it could encompass any health issues relating to "any aerodrome-related operations". It could thus give the Secretary of State a duty in relation to all the service industries in airports, as well as to the airlines. Presumably, it could cover traffic congestion around airports—from passengers arriving or departing, from logistics companies servicing the shopping malls, or from cargo handling operations. It could possibly extend to other health issues concerning catering, baggage handling or security to the extent that these impact on,

"persons living in the vicinity of aerodromes".

That is a very wide extension.

To the extent that those living in the vicinity of aerodromes are engaged in any form of business, those businesses are covered by the Health and Safety at Work etc. Act, which extends the duty on employers to include the health risks to the wider public arising from their work activities. We do not think that duty on businesses should be placed on the Secretary of State for Transport.

Airports are no different as places of employment from many other industrial centres where there are issues of noise, traffic or related issues. People living in the vicinity of airports, like those living in the vicinity of other industries, are covered by laws relating to traffic, planning and noise. There are already policies and statutory powers in place that seek to mitigate the impact of aviation noise and emissions on local residents. We have stated our commitment to the World Health Organisation guideline values. I am delighted that the noble Baroness has absolved me from repeating in technical detail all those values. We will continue to produce further research on the impact of aviation noise and emissions on health as it emerges from other sources.

We do not consider that there is a need for this extra layer of duty to be placed on the Secretary of State in relation to aerodromes. Such a greatly widened amendment would also have considerable practical and resource implications, which the Government could not accept. I understand the motivation behind the amendment because it is on the side of good in being concerned about the health of our fellow citizens. But to put this duty on the Secretary of State for Transport would be inappropriate and not helpful. I hope that the noble Baroness will accept this argument.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I thank the Minister for that reply and I also thank noble Lords who have contributed. I hope very much that the noble Countess, Lady Mar, does not think that I have stolen her thunder. I did not mean to do that.

Photo of The Countess of Mar The Countess of Mar Crossbench

My Lords, I am delighted.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, the noble Countess has always espoused these areas and is very much more expert than I am on this. I thank the Minister for his reply. We have had a good debate around this subject on two occasions. I do not intend to divide on this matter. However, it is important that the effect on people who live in such close proximity to fumes and extensive amounts of noise is not lost in our enthusiasm for ensuring that air travel is more frequent, planes are larger and everything else that will happen in the future.

We must continue to recognise that there are adverse impacts to travel, which have a direct effect on people who live very close to airports. I hear what the Minister says about health and safety. We would probably suggest that that is not working brilliantly, but I would not want to be held too closely to that. We need to ensure that legislation is carefully implemented to protect people who live near airports. I thank noble Lords who have joined in this discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 5:45 pm, 28th March 2006

moved Amendment No. 3:

After Clause 10, insert the following new clause—


(1) There shall be a levy to be known as the Air Passenger Levy ("the levy"), which shall be charged on the carriage on an aircraft of a chargeable passenger.

(2) A "chargeable passenger" is one whose flight begins at an aerodrome in the United Kingdom and who travels outside the United Kingdom.

(3) Regulations under this section may—

(a) specify the amount of the levy,

(b) set a ceiling on the amount to be collected from the levy, and

(c) require operators of the aircraft to pay the levy to the Air Travel Trust.

(4) Regulations under subsection (3)(b) which set a ceiling for the amount to be raised by the levy must—

(a) ensure that contributions to the Air Travel Trust Fund cease once this ceiling is reached, and

(b) allow for the levy to be reintroduced if the level of funds accrued from the levy falls below 50% of the amount specified by the ceiling."

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, on a day when this House has been detained for an hour or so talking about the supremacy of another House, it is very fitting that we come to an issue which has been reported on very thoroughly and recently by a Select Committee of another House.

The ATOL—Air Traffic Organisers' Licensing—licence enables passengers stranded abroad, when their air carrier fails, to return home and for refunds to be made to ticket holders who have yet to travel. It protects UK package holiday-makers, but it covers a declining proportion of the UK travel market. It does not apply to the growing number of UK leisure travellers who book directly with scheduled airlines and pay by debit cards and various other things, which I am sure will be touched on in the debate. In 1996, 96 per cent of people were protected: in 2004, 66 per cent were protected. Estimates for 2010 are that only 20 per cent of people will be covered, if that.

The Government's decision to reject the advice of the regulator appointed by them—the CAA—which said that they should add a modest levy of £1 to the cost of international travellers' tickets, means that millions of holiday-makers will remain vulnerable. That is an actual and not a theoretical risk, which was brought into sharp focus by the collapse of EUjet only a few months ago when thousands of passengers were stranded. Although many were repatriated, they were repatriated to places a long way from Manston airport in Kent, where, I think, they took off. Of course, if passengers have travelled to the airport by car, it is not much compensation to land at Manchester or somewhere else and have to go back to Manston for their cars—and also pay for the privilege of travelling from Manchester to Manston.

Many people think that they are protected when they fly abroad. That number is very high because people think that they have ATOL cover when they have not. In fact, most travel insurance policies do not cover air carrier insolvency. The Government believe that relying on the insurance market, coupled with voluntary arrangements, amounts to a policy of adequate protection from the consequence of an airline collapse. We do not. I think that view is shared by noble Lords on all sides of the House and it was very strongly endorsed by the Select Committee in its report.

A £1 levy would soon build up to a sizeable sum of money. We have made provision in the amendment, since it was first moved, to arrange for the levy not to be collected once a reasonable sum of money has accumulated. It would not be activated again until the money was spent, so it would not be a constant drain. In many respects, it is a deregulatory measure, because a lot of people are not being regulated. We have to face the fact that the ATOL scheme is almost on the point of collapse.

The Select Committee concludes its report summary by stating:

"In reaching its decision, the Government has not only rejected comprehensive advice from the CAA and the views of large parts of the industry", such as Virgin Atlantic, which can hardly be described as a company keenly in favour of regulation. The report continues:

"The Government appears to have departed from the important principle that policy should be based clearly on evidence. Instead, we have a policy founded on assertion".

The Government should look more thoroughly at the evidence in the report, the last few words of which state:

"Most importantly, the Government needs to rethink its decision, in effect to abandon effective protection for millions of air travellers", which they believe they have. The committee, on which the Government have a majority, concludes by stating:

"We urge it to take the opportunity of this report to do so".

In this amendment we are giving the Government the opportunity to refer to this fairly recent report and to amend the Bill to make it a better Bill which gives protection to the increasing numbers of people who journey abroad. I beg to move.

Photo of Lord Borrie Lord Borrie Labour

My Lords, my name is associated with this amendment, and I am pleased to be able to follow the remarks of the noble Lord, Lord Bradshaw, who has made a clear case based most essentially on one fact—namely, that the behaviour of customers has changed over the past 10 years. Their behaviour 10 years ago was largely to use package holidays when going on a holiday abroad. The ATOL licence ensured that if the holiday did not take place and the customer lost money, compensation was available. More importantly, if one was stranded abroad on a package holiday, the scheme, through the licence, would enable one to get back home. The change described by the noble Lord, Lord Bradshaw, means that now there is no such protection.

There are trade associations who are not interested in consumer protection. However, one for which I have plenty of praise is the Association of British Travel Agents. For decades it has had arbitration schemes which use independent arbitrators when there are difficulties between tour companies, airlines and the passenger. It is fully in support of this change. The Government are always entitled to reject advice, but on this occasion they have had advice not only from what the noble Lord, Lord Bradshaw, described as their own regulator, the Civil Aviation Authority; they have had advice from Ernst & Young, which has done the figures, from the Consumers' Association, from Virgin Atlantic and from the Association of British Travel Agents. What more can you do?

The noble Lord has described what more there has been—there has been this latest Select Committee report from the House of Commons. I wonder what the Minister has got to put against it. I would hate to describe the Minister as arrogant. I know he is not. I have had experience of discussions with him on a number of recent Bills in which he has been involved, and he is the very furthest remove from any touch of arrogance. But I cannot actually find a suitable word for what he seems to have been guilty of up to this point in the discussion on the Bill, but it is not one which I think is easy for him to defend.

I want to mention one small aspect of his argument in Committee. He rightly said that there were many areas where insurance was perhaps desirable, but we— the Government, Parliament—do not make it compulsory. That is true even in road traffic matters, where we have had some kind of insurance since 1930, I believe. We make it compulsory only in relation to liability to third parties. But this is a very different situation. In this case there has in practice been protection for years and years, the result of which has been partly explained by the noble Lord, Lord Bradshaw. Many of those who now make their own travel arrangements, as is the custom nowadays, think they are covered by ordinary travel insurance, when they are not. If they happen to use a credit card, then Section 75 of the Consumer Credit Act gives them protection. I am glad to say that our Law Lord friends in the House of Lords, in their judicial decision earlier this month, said that that applied when the consumer bought things from foreign suppliers. So, the alternative supplier—namely the supplier of the credit card—is liable for any purchase, whether airline tickets or shopping purchases between £100 and £5,000, I think. But of course many people do not think about the subtlety of using a credit card instead of a charge card such as American Express or a debit card. There are other methods of payment, too, but they do not have that peculiar advantage of using a credit card which I have just described.

In practice we have had protection, but as the noble Lord, Lord Bradshaw, explained, it is a diminishing protection as ever fewer people go on package holidays as distinct from making their own arrangements. I think that that is a sufficient argument for this amendment, which is so modest in its implications and yet so significant if you think of people stranded abroad on their holiday.

Photo of Baroness Hanham Baroness Hanham Deputy Chief Whip, Whips, Shadow Minister, Scotland, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, I want to make it clear that we are fully in support of the amendment. We understand the concerns being expressed about the lack of financial protection for air travellers, particularly those who are not booking, as has already been said, all-in travel arrangements from travel agencies but, as is now much more common, making their own arrangements on the internet for flights and hotels.

Mercifully, low-cost airlines do not go bust regularly, but when they do it is a catastrophe for travellers who often find it very difficult and expensive to make alternative arrangements. It is also very inconvenient, as the noble Lord, Lord Bradshaw, pointed out, as changes often have to be made at extremely short notice, sometimes when people are trying to get back from their holidays.

It is clear that travel insurance is not a sufficient answer as the arrangements needed to rescue stranded people require either empty seats to be found on other flights or charter arrangements to be put in hand by an organisation geared to do so, such as the Civil Aviation Authority. Reimbursement of ticket costs may be available if people have used a credit card but, as the noble Lord, Lord Borrie, pointed out, that is not true if they use a debit card.

If this amendment is agreed to, its prime purpose is not, or should not be, to alleviate the travel companies' responsibility under the bonding system but to ensure that all travellers are covered in a way that will bring the quickest and most efficient response to the emergency failure of an airline. It is estimated that 20 million passengers a year are not protected by the ATOL scheme. As we have heard, the £1 levy will be temporary until a fund has built up that is adequate to support what is proposed. The purpose of that is to provide the necessary assurance to all air passengers that they are covered for repatriation in the event of an airline failure.

The proposals require far more consideration by the Government than was given in the letter of the noble Lord, Lord Davies, to the noble Lord, Lord Faulkner, following the Committee stage. The noble Lord, Lord Borrie, struggled for a word to describe the Minister's attitude. I would never describe the noble Lord, Lord Davies, as arrogant, but on this issue and on that letter I would describe him as being somewhat complacent about the situation.

The advantages of a levy have been well rehearsed by the previous two speakers. It is obvious that it would be extremely easy to collect and is probably not something that people would notice very much. The variation in the cost of air tickets is now so enormous that you do not know whether you are paying for the seat, for the sandwich or for the fuel. You are pretty clear that the person sitting next to you has paid four times more than you have, and you hope that it is not the other way around. The sum of £1 seems a very small amount to pay in order to provide the reassurance that is now required in view of the way the travel industry has developed. This is an important proposal. It may look like only a small sum of money, but sometimes the smallest sums reap the richest and greatest rewards.

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour 6:00 pm, 28th March 2006

My Lords, I too am delighted to add my voice in support of this amendment, which is an improvement on the one I moved in Committee. Indeed, our debate at this stage is a little like an action replay of the Committee stage where everyone who spoke, with the exception of my noble friend on the Front Bench, was strongly in support of the principle of the levy. The amendment of the noble Lord, Lord Bradshaw, is an improvement on mine because it is more flexible. It makes it clear that if the fund builds up and is not drawn on, there is no need to go on collecting the levy indefinitely, so allowing the fund to reach absurd proportions.

This is the right thing to do because it would restore to some extent a measure of fair competition between the reputable travel trade, which is required to operate its own bonding and licensing regime, and the airline operators which offer their customers no such comparable protection. Like the noble Lord, Lord Bradshaw, my noble friend and the noble Baroness, Lady Hanham, I have struggled to understand the logic behind the Government's decision to oppose the CAA's proposal.

I checked to see how this issue was covered when the Civil Aviation Bill was debated in the other place. But this matter was not properly debated. Indeed, as the noble Lord, Lord Bradshaw, said, the most thoughtful contribution on the subject of a levy from the Commons came from the Select Committee, which produced a very powerful and unanimous report.

You cannot argue that this would place a regulatory burden on the travel business. The travel industry itself would save between £80 million and £100 million a year through switching from the existing bond to a levy. It would also add a financial dynamic to the marketplace as the cost of ATOL bonding places a huge burden on new travel companies that are trying to set up. Also, as the noble Baroness, Lady Hanham, pointed out, it would add almost nothing to the cost of air travel. Already the airlines are piling on to their passengers surcharge after surcharge.

At the weekend I did a little test purchasing on the internet. I investigated the cost of flights to and from Malaga with easyJet from Luton. The air fares for flights out and back next week came to £192.48 per person. On top of that "taxes and charges" were added, amounting to £9.50. The company then said, very kindly I thought:

"Great value travel insurance from Mondial has been added automatically to your basket for your convenience and peace of mind. We strongly advise you not to travel without travel insurance".

I think that this is called inertia selling. You have to remove the offer from your booking. How much was it? Was it £1? No, it was £10, which is £1 more than it was when I last looked at the site on 8 March. Then, when you come to pay, the great credit card scam slips in. I looked in vain for the suggested message which my noble friend Lord Davies said in his letter to me of 10 January, for which I thank him, the Government were encouraging UK airlines to incorporate in their booking process, making the point that payment by credit card would provide some financial protection. Not a word did I see on the easyJet booking page. Instead, it stated:

"Credit cards incur a percentage charge of 1.95% of the total amount payable, with a minimum charge of £4.95".

Even a debit card transaction carries a surcharge of £1 on the easyJet site.

Photo of Lord Berkeley Lord Berkeley Labour

My Lords, does my noble friend agree that the cost of booking by phone, where you have to hang on for two hours, is probably about equal to those charges?

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

Or even more, my Lords. Indeed, other airline booking sites such as Ryanair have introduced the novelty of a charge of £5 for a bag weighing 20 kilograms on its flights, and again not a word about financial protection if you use a credit card to pay.

There is a huge problem of perception here, as other speakers have said. People book their cheap airline tickets in the belief that they are protected by some sort of fund which will bring them home if the airline collapses, as EUjet did last year. Back in 1997, the ATOL scheme protected almost every traveller—some 98 per cent. By the end of last year the proportion had fallen to a little over half. Only last week the travel trade press reported that some tour operators, those with their own airlines, are looking at ways of pulling out of the ATOL scheme following the judicial review decision in January. That is more bad news for consumer protection.

By continuing to resist the CAA proposal for the £1 levy, I am afraid that the Government are storing up huge problems for themselves. We have not had the last airline collapse, and I really do not want my noble friend to have to come before the House and explain why tens of thousands of British holiday-makers are stranded abroad because no fund was in place to bring them home when their airline went bust. It cannot make sense for the airlines to continue to exploit their passengers who fall for their insurance schemes and credit card rip-offs while at the same time deny reasonable protection to everyone who flies from a British airport with a simple £1 levy. I am very pleased indeed to support the amendment.

Photo of Lord Howe of Aberavon Lord Howe of Aberavon Conservative

My Lords, I wonder quite why I find myself taking part in this debate because it is not a topic into which I normally venture. It may be because I smell the scent of aviation fuel after having had the privilege of representing for 22 years the eastern frontier of Gatwick airport. The other reason is that I declare an interest as honorary president of the Consumers' Association—Which?, as it now is. I cannot add any substance to the arguments already advanced, except to sum them up in a way that seems to me should be overwhelming to the Minister as he sits in his place.

Never have I previously encountered a proposition of this kind, one which has the support of almost every organisation in sight: almost every organisation in the travel industry, the Parliamentary Select Committee in the other place, along with every consumer representative association. However, the Minister stands alone, unable to summon any witness or supporter to his aid. The argument has been advanced that the proposal is in some way unacceptable because it would be a compulsory scheme, but that was a characteristic of the ATOL scheme before it. A further argument has been advanced that it is in some way a stealth tax. First, it is not a stealth tax; secondly, the sum involved is so minute as to be invisible; and thirdly, it is a charge which it has been proclaimed in advance will be reduced as soon as the fund reaches a point of sufficiency. Having read the Minister's speeches at previous stages of the debate, I find it impossible to work out quite why so Horatio-like he stands upon such a fragile bridge.

I will try to express the nature of the proposal in a different way. Far from being a tax, it is an immensely attractive one-way bet. A pound a throw and the reward, if you ever have to claim it, could be a substantial sum. In every conceivable way it is beneficial, save only for the Minister, who is proclaiming himself—sadly, alas, and uncharacteristically—to be a ministerial masochist. I wish him well, but do not believe that he will convince the House in any way.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, I am delighted to follow the noble and learned Lord, Lord Howe of Aberavon, whether or not he was brought to the debate by the smell of aviation fuel. He may have other reasons—there are better ones.

My noble friend, for whom I have a tremendous regard, was for many years a colleague of mine in the Commons. I am delighted that he is here, but I am profoundly unimpressed by the arguments that he has adduced. When we debated the subject in Grand Committee on 8 December, he said that this decision was arrived at in full recognition that there were as many arguments on one side as on the other. I have heard arguments only on one side—except from him. Apart from the airlines, I do not think that anybody supports the idea that he now propounds.

I say that with some reluctance, because I am totally baffled by the stance that the Government have taken on this issue. The position has been recommended by the Civil Aviation Authority, among many others, as was said by my noble friend Lord Borrie. What arguments are to be adduced here?

As far as I know, the organisations representing passengers are totally in favour of doing away with the present position. As far as I know, most consumer organisations are also in favour of this. I am totally bewildered by the stance that my noble friend has taken in this regard, but I am prepared to absolve him. He is not the Aviation Minister. He is determined by policy made by other people. I have a very high regard for him. I hope he will not let us down, but I fear that he will. On this occasion, I cannot think of a single issue that defies the logic of this amendment, which I wholly support.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, we move from arrogant to complacent. As I recall—the noble and learned Lord, Lord Howe, will perhaps confirm it—Horatio had an attribute of courage. Lonely I may stand, but I also recall that Horatio had considerable success in his lone stance with two colleagues. On this argument, I have more than two colleagues on my side.

I intend to address the issue in principle, because I am certainly upset by the statement of my noble friend Lord Clinton-Davis—I was grateful for his kind words, until he delivered the killer blow—that he could find no one who agreed with me. I emphasise that there are arguments on the other side, which I will deploy as best as I can in a moment. Those arguments convinced the Government to take their stance, fully aware of the representations received from other quarters and mindful that, as the noble Lord indicated and other noble Lords have emphasised, the Select Committee in another place took a different view from the Government.

Let me deal with a less than courageous response, the low blow that I could deliver at the end of this debate. That would be a little demeaning, but ought to be effective, if noble Lords recognise that at this very late stage of the Bill we can deal only with amendments that deliver what they say that they want to deliver. The problem with this amendment is that it does not.

The amendment will not give extra protection to airline passengers. While it widens the contributors to the Air Travel Trust by charging all airline passengers on all UK flights, it does not likewise widen the beneficiaries of the fund. The Air Travel Trust can pay out only to customers of package operators. It cannot pay out to flight-only customers unless the deed governing the trust is varied to extend the beneficiaries under it. Varying the deed is a matter for my right honourable friend the Secretary of State. The new clause does not give him the specific power to do this. Airline passengers, therefore, could be left paying for a benefit that they could not access. The proposed levy would simply add a financial burden to more than 20 million airline passengers per year, yet those passengers might not benefit from the Air Travel Trust if their airline became insolvent, because of the deficiency in the amendment. That is why I hope that it will not be pressed to a vote—it will not put in the Bill that which noble Lords intend.

It would be a weak response if I relied solely on that matter. I have been challenged to identify whether there are any arguments that substantiate the Government's position. We accept that there is considerable weight of opinion on the other side. It was voiced in this House both today and in previous debates on the Bill. As I mentioned, the Select Committee in the other place took a different view. Originally this was a proposal from the Civil Aviation Authority, a body that we also take seriously on these matters.

We oppose the levy in principle. We considered the Civil Aviation Authority's proposal carefully, but we were not convinced that it would be fair, fully effective or proportionate. Our arguments are these—first, it is not fair because the bulk of the £250 million fund, which the CAA intended to build up, would have been spent on refunds, not on repatriation. It would have benefited in particular those who take expensive trips with financially insecure companies. Moreover, as a matter of principle, the state does not generally organise refunds for products where the supplier goes bankrupt before delivery. That is a Pandora's box for the House to recognise if ever there was one.

Secondly, it is not fully effective, because independent travellers would be covered only for their flights—not for their hotel, campsite or car-hire company—solely for the flight.

Thirdly, it would not be proportionate, because UK airlines have committed themselves already to helping stranded passengers return home at moderate cost. The European Low Fares Airline Association has certainly reviewed the experience last summer with EUjet and agreed to improve arrangements; for example, better communication, keeping offers open for at least two weeks and making seats bookable. These days, when there are so many options for travel, people are far less likely to be stranded overseas, with no alternatives to getting home, than would have been the case in previous decades.

As regards refunds, travellers have other ways of protecting themselves. They can buy insurance, which covers scheduled airline failure. They can pay by credit card, to which my noble friend Lord Faulkner referred. I recognise, of course, that that carries a surcharge but it gives protection under the Consumer Credit Act for transactions over £100. We do not believe that those who have protected themselves should have to do so twice over, as they would under a levy. Instead we shall continue to encourage airlines to include information to passengers booking online that flight-only bookings are not ATOL-protected. Both British Airways and Flybe have posted such a message and amended the travel insurance they sell to include cover for scheduled airline failure. British Airway's insurance extends to all the oneworld alliance partners. Flybe issued a press release on 1 March to draw attention to its new insurance product, offered in conjunction with AIG Insurance. Ryanair has a scheduled airline failure insurance policy available for customers to purchase from 27 March, yesterday, in conjunction with primary insurance. Some other airlines are working on this, and those already committed account for 30 to 40 per cent of the CAA's target group. In addition, the Government understand that more general travel insurance providers are working on including scheduled airline failure.

So events have moved on from the CAA's study, which led it to make its recommendation. The CAA's study reported that only about 10 per cent of travel insurance offered scheduled airline failure cover. The situation is being transformed. Increasingly, media travel pages are drawing the need for personal financial protection to passengers' attention. In addition, there is information for passengers on the CAA, FCO and Air Transport Users Council websites. The Foreign and Commonwealth Office website has been updated to alert passengers that paying by credit card can bring financial protection—a point to bear in mind when deciding whether to pay by credit card.

We have asked the CAA to review the existing ATOL bonding arrangements to make them less burdensome for tour operators. It has already consulted the industry informally and will go out to further consultation on its proposals very shortly. That may result in tour operators paying a single payment per customer instead of financing both a bond and a contribution to the Air Travel Trust Fund. Rather than extending compulsory cover beyond those caught by the package travel directive, we are looking to make the existing ATOL system less onerous. The directive is, however, under review by the European Commission.

There are many areas where insurance is wise but the Government do not make it compulsory. The Government do not make it compulsory for medical insurance to be taken out for travel abroad, though people get ill or become injured on holiday. The Government do not make compulsory personal possessions insurance for travel abroad, though people lose valuables or have them stolen. The Government do not make compulsory car breakdown insurance, though people are often inconvenienced by breakdowns far from home.

One could say that any of these eventualities is just as likely and just as distressing as being caught up in an airline insolvency. My right honourable friend the Foreign Secretary launched only last week on 21 March a new guide to consular services, Support for British Nationals Abroad. Over the past year consular staff dealt with many traumatic cases, including 4,000 British nationals hospitalised overseas, 4,000 deaths and almost 6,000 British detainees. In his Statement in another place my right honourable friend said:

"The fundamental responsibility in respect of the risks of travelling abroad must be met by travellers themselves through an appreciation of the risks and with comprehensive travel insurance".—[Hansard, Commons, 21/3/06; col. 156.]

The Chancellor announced in the Budget that the Government would support with an initial endowment of £1 million the creation of a new terrorism relief fund to provide rapid relief to victims of terrorism at home and abroad. However, that is a unique and particular risk, an extreme case which we consider merits government intervention.

Travel has changed substantially from when ATOL bonding was introduced in the 1970s. In those days air travel was for the few. Now it is for the many. The network of destinations and carriers has given people a choice unimaginable 30 years ago. The Government believe that encouraging personal insurance is much more in keeping with these trends. It is not for the state to step in and compulsorily enforce consumers' responsibility to themselves for the protection they need on their holidays.

To summarise: in view of the CAA review of ATOL bonding and the improved availability of consumer information and scheduled airline failure insurance, the Government do not intend to alter their decision against a mandatory financial protection levy on international flights.

Of course, I recognise the point that my noble friend Lord Faulkner made on the cost of EUjet travel insurance. However, travel insurance covers much more than just the flight home. I am talking about full travel insurance. That is the message we must get across to the increasing multitude of travellers. One is at far greater risk from incidents other than airline failure. We therefore have strong arguments on our side. I hope noble Lords will recognise that at least I have met my noble friend's charge that there are no arguments on the other side. We said all along that we recognised that the CAA had some good arguments to put before us, and we considered them very carefully.

I hope that today I have deployed a convincing case against the argument, but I also hope that noble Lords will forgive me if I reiterate the point which I made right at the beginning—this amendment does not deliver what it sets out to achieve. It ought not, therefore, to be in the Bill.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport 6:15 pm, 28th March 2006

My Lords, I have heard what the Minister said. To some extent that shows up the defects of the procedure in this House under which certain Bills are dealt with in Grand Committee where amendments are not divided upon and therefore certain measures do not appear until Report. It is possible for the Minister almost to lay a trap for us at this stage into which we can fall because we have not been forewarned in time. Of course, had we been forewarned we could have corrected the defect. I listened very carefully to what the Minister said. I believe that most people who buy travel insurance are blissfully unaware that it does not—

Photo of Lord Faulkner of Worcester Lord Faulkner of Worcester Labour

My Lords, I refer to a practical point. It is presumably the case that if the House carries the amendment tonight, it will have to be considered in the other place and the Government will have the opportunity to bring back to us an improved amendment, which I am sure, judging by the mood of this House, the whole House would be willing to accept.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, that is what I was about to say. We are saying to the House of Commons, "The Select Committee has put the evidence before you and has made an extremely strong recommendation that you should abide by that evidence". By seeking to amend the Bill, we will present the House of Commons with the opportunity to do what it said that it would. However, I reiterate the point—I think that it was underlined by the noble Lord, Lord Faulkner—that very many people who buy travel insurance through the internet are not aware of the extent of its cover. I am not sure what the Mondial insurance to which he referred includes. I am not sure whether it would cover the failure of EUjet. It may cover one's health while on holiday, but I have no idea. Without having all the small print available, you are not really aware what you are buying.

In the circumstances it is important, bearing in mind the support that we have had from all around the House, that this matter is divided upon. That will simply give the House of Commons the opportunity to revisit an issue that it did not adequately consider. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 119; Not-Contents, 123.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 6:39 pm, 28th March 2006

moved Amendment No. 4:

After Clause 11, insert the following new clause—


(1) The Secretary of State may direct specified aerodrome authorities to introduce compensation arrangements for property owners whose properties have been adversely affected by proposals for airport expansion.

(2) The terms of the compensation arrangements will—

(a) ensure that the property owner is financially no worse off than if the property had not been adversely affected by the airport expansion proposals; and

(b) include advance guarantees to purchase any properties affected.

(3) Such arrangements are to be introduced as soon as practicable following the Secretary of State's direction."

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, the implications of the burgeoning aviation industry are felt far and wide, but nowhere more so than by those communities living in the shadow of our major airports. We have already discussed several times today the problems that those communities suffer on a daily basis, but they pale in comparison to the plight of those communities threatened by airport expansion. It is important to recognise that due to the distinctive character of aviation, the blight suffered far exceeds the territorial extent of the physical development. The difference is significant. When one builds a railway line, one does not expect the train to leave the tracks and create noise and nuisance over a mile away. The inherent nature and attendant problems of aviation make it unique, which has consequences for the way in which we must compensate for the blight that it can cause.

The amendment is designed to address the problem of generalised blight, which materialises as soon as any major airport expansion plans are made public. The problem was recognised in the 2003 air transport White Paper, when the Government signalled:

"The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal".

I declare at this juncture my interest as leader of Essex County Council, since much of my understanding is drawn from my experience of Stansted Airport's expansion plans. BAA's home owner support scheme has proved woefully inadequate; so inadequate that Takeley parish council—which is the major village involved—decided to pursue legal action. The case was before the High Court at the time of the Grand Committee. Although provision for judicial review was not granted, the case remains significant in two respects. First, it is clear evidence of the strong feeling in local communities that this approach to compensation is inadequate, arbitrary and unfair.

Secondly, the case gives the argument that I advanced in Committee a significant new dimension. The legal team acting on behalf of Takeley parish council argued that,

"the White Paper envisages a scheme to provide redress to those affected by 'generalised blight' and paragraph 12.16 envisages the relevant class of beneficiaries to be 'local people', without limiting such redress to those within a particular noise contour . . . By limiting the compensation scheme to providing redress for those 'worst affected' rather than minimising the impact on local people as envisaged by the White Paper, it failed to address instances of generalised blight which fall outside the boundary, and it is based on an irrational distinction between properties falling inside the boundary and those falling outside it".

There is a line somewhere, and there is a house on one side and a house on the other side. It causes particular hardship.

Consequently, at the hearing it was argued that the Secretary of State had acted unlawfully by granting policy support for the construction of a new runway at Stansted while failing to ensure that appropriate measures were in place to compensate those impacted by generalised blight. Since those were measures that the Government committed themselves to in the White Paper, the legal team argued that the Secretary of State thereby infringed the European Convention on Human Rights. I will not go into the more legal processes, but obviously people felt very strongly about it.

I am no lawyer, but it seems that the present practice of encouraging airport operators to introduce a voluntary compensation scheme has failed the Government's stated purpose in the White Paper. The nature of the existing arrangement has the potential at least for the Government to be found in breach of their obligations under the convention.

In light of that potential and the obvious unfairness of current voluntary compensation schemes, it would seem eminently sensible to accept the amendment and give statutory force to an equitable compensation proposal that chimes with the Government's sentiments and policies as set out in the White Paper. I beg to move.

Photo of Lord Smith of Leigh Lord Smith of Leigh Labour

My Lords, I shall raise two issues on the amendment. First, I was not clear from the outline of the amendment given by the noble Lord, Lord Hanningfield, how it cuts across the right that property owners have under existing legislation. Compensation is payable to householders, not on a voluntary basis but on a compulsory basis under the Compulsory Purchase Act 1965 and the Land Compensation Act 1973. I am not clear whether we are asking for additional compensation for particular groups of owners. Are they getting double the money that other people get? I was not clear on that, and I hope that the noble Lord can help.

I wish to challenge the presumption on which the amendment is based. It assumes that airport expansion or development will have a negative impact on property prices. I challenge that very rigorously. Airport development is a catalyst for economic activity, investment, new jobs and higher incomes in the areas immediately surrounding airports. The increased wealth and new job opportunities increase demand for property conveniently located near the airport, and generally prices tend to rise rather than fall. The experience in Manchester is evidence of that. The area of the conurbation experiencing the highest house prices is south Manchester, which is conveniently located for the airport. People do not move away from airports. The Minister will know from his experience in Oldham that house prices in Oldham do not reflect the distance from the airport. Far from it; other factors comes into play. There is a presumption in the amendment that is wrong. House prices may well rise because an airport expands. When an expansion is announced—a new runway or a new terminal development—clearly some local people will not like it. We understand that.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 6:45 pm, 28th March 2006

My Lords, the problem is the blight envelope. There is no definite site for the runway, so the potential envelope for the development of the airport covers a very wide area. It is not that the houses will be lived in; they could well be demolished. People just do not know. Those are the people who are blighted. There is a cut-off and other people are just over the other side. It is not that those houses will be lived in and become valuable assets later on; they probably will not even exist, all depending on the siting of the runway. They are blighted for some years because of the uncertainty of the situation. That is why the scheme of compensation is not seen as adequate by local people.

Photo of Lord Smith of Leigh Lord Smith of Leigh Labour

My Lords, I thank the noble Lord for his intervention, and I think we can understand that. What scheme of compensation does the noble Lord regard as being adequate? A limit must be drawn somewhere. Presumably wherever the line is, be it three miles further down from the current line or whatever, there will be someone over the road from that line and they will think it is not fair and they will want more money. Clearly, there are short-term effects of any development, and one has sympathy with individuals affected by this case. Legislation is there to protect people who are adversely affected by any development—whether at an airport or another development—and I think that protection should be adequate.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I have a long response, because this is an extremely difficult issue. I am grateful to my noble friend, who has reduced my response by a third. He emphasised in such a cogent way that of course the noble Lord, Lord Hanningfield, can identify issues with regard to airport blight, but it would be a far cry from reality if we looked on the development of all airports as bringing nothing but blight to their localities—very far from it.

I hear what the noble Lord says about the proposals regarding Stansted, but I recall that Stansted was first developed with its first runway nearly 30 years ago. The same kind of arguments could have been put at the time; I am not sure whether they were as I do not have that power of total recall that is necessary on such occasions. I remember gloom and doom suffusing quite a large part of the area, even among people living some 25 miles or 30 miles away, who subsequently would say that the airport has produced very real benefits as well. After all, a lot of people who live in the vicinity of airports earn their living through the airport. So I am grateful for that context, although I am going to address the noble Lord's amendment and stick strictly to the issues.

The issue of generalised blight is presently before the courts, primarily in connection with the voluntary blight compensation schemes introduced by the operator of Stansted airport, but potentially with wider implications. A permission hearing in that case took place on 13 and 14 December, resulting in a decision by the judge to refuse the claimants permission to apply for judicial review. We believe that the claimants will shortly be seeking permission for leave to appeal to the Court of Appeal. In view of this, I do not think that it is appropriate for me to comment further on the particulars of any specific schemes to address generalised blight. I am therefore obliged to step away from that illustration.

This is a difficult and complex issue that cannot be addressed in the way that the amendment suggests. Let me make the obvious proposition, which is the bedrock of my argument: why should airport development be singled out in this way? I know that as we are discussing the Civil Aviation Bill the noble Lord is properly discussing airport blight, but the concept of generalised blight is extensive and not only airports generate that issue. The operation of the property market as a whole has long been dependent on the general acceptance that the ownership of any land or property carries with it an associated risk that external factors may give rise to conditions adversely affecting its enjoyment or eventual resale value, and the assumption of caveat emptor applies.

A wide range of factors—natural and man made—can result in property blight. The noble Lord is identifying one factor. Generalised blight can occur before the true effects of the proposed development are known, and in many cases even before a planning application is submitted. An issue that can arise in some cases is finding the right balance between accepting such risks as inevitable—a concomitant risk of property ownership—and compensating those whose private interests are being threatened by schemes intended for the wider public good. The law already provides for compensation where land would be taken by the proposed development; for example, where compulsory purchase would be necessary. The noble Lord will recognise that we have law covering such eventualities.

In addition, the law already provides for compensation for loss of value arising from certain indirect effects of future development during construction, such as construction noise or dust, under the Compulsory Purchase Act 1965. Additionally, under Part I of the Land Compensation Act 1973, those affected by future development, including airport development, but whose land will not be taken by the development, can claim compensation for loss in the value of their property attributable to the operation of the development. But this does not apply until 12 months after the development has been used for the first time; for example, 12 months after a new runway is brought into operation.

It is an important and necessary principle of statutory blight compensation under Part I of the 1973 Act that it is assessed after the works have been completed and brought into use when the true consequences, both positive and negative, can be assessed objectively. This is not the case with generalised blight, which depends primarily on the attitude of potential purchasers of a property to a proposal for development nearby, which furthermore may not be granted planning approval. Such attitudes are highly susceptible to misperception, misrepresentation and uncertainty. In many cases generalised blight can be the result of all three. It can also give rise to a current of anxiety and in some cases even to irrational concern which, in turn, can undermine the strength of the property market to an unwarranted degree.

While proposals for development may coincide with a reduction—or indeed an increase—in property values, the causal link between the proposed development and depreciation or, in some cases, appreciation is much more difficult to establish than in the case of statutory blight. It was in recognition of these factors, during preparation of The Future of Air Transport White Paper, that discussions were held with major airport operators to consider what steps they could take on a voluntary basis to help stabilise the housing market around their airports if proposals for new runways were taken forward in the White Paper, with the aim of helping those worst affected and with a genuine and urgent need to move.

The position is set out in paragraphs 3.18 and paragraphs 12.13 to 12.17 of the White Paper. For example, it says in paragraph 11.41, in the case of Stansted airport, that:

"The airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal".

That is exactly what the British Airports Authority has done. It has consulted on and put in place three schemes to address different aspects of the generalised blight arising from the proposals for a second runway at Stansted. The schemes are similar to others in the past in connection with major road and rail proposals, such as the channel tunnel rail link. BAA has brought forward similar voluntary schemes at Heathrow, Gatwick, Edinburgh and Glasgow. The airport operator at Birmingham is currently consulting on revised voluntary compensation schemes and the operator at Luton is expected to bring forward its own proposed mitigation measures shortly. These voluntary schemes do not affect the statutory rights of property owners in due course.

Beyond the clear policies set out in the White Paper the Government contend that they should have no role in determining the scope or terms of non-statutory schemes brought forward by airport operators to address generalised blight. They are, necessarily, voluntary schemes for the reasons I have explained. The main concern and causal factor where generalised blight is associated with proposals for new airport runways is anxiety about future aircraft noise. It is sensible therefore for voluntary blight schemes to use forecasts of future noise to identify areas likely to be affected. One consequence of that approach is that some people in areas forecast to experience low levels of aircraft noise feel aggrieved at not being included within the scheme, which is intended for those who experience higher levels. However, voluntary generalised blight schemes that are not related to recognised causal factors can have the perverse effect of spreading generalised blight and making the situation worse.

The effect of the amendment would be to bring generalised blight within a statutory planning framework for the first time, but it would do so for one economic activity only: civil airports. The Government contend that that is the basis why the amendment should be rejected. Generalised blight is not an issue unique to airport development. It can arise from any major development or infrastructure project. The effect, therefore, would be discriminatory. Other comparable areas, such as other transport modes, heavy industry, chemicals manufacture, waste disposal and energy generation, would continue to be subject to the established position, while civil airports alone would be expected to compensate for generalised blight, whether or not the perceived risk of depreciation in property values was soundly based.

The effect would also be discriminatory in other ways. Where airport expansion involved the development of new surface access infrastructure or major improvements to existing road and rail infrastructure, as it often does, the amendment is not clear as to whether the owners of properties said to be blighted by the airport-related road and rail proposals should also be compensated under the airport scheme. Indeed, would that be necessary, to avoid unfair discrimination, even though road and rail infrastructure seldom serves just one role, such as an airport?

If the effects of the airport-related road and rail proposals were included in the airport compensation schemes directed by the Secretary of State, the result would then be discrimination between property owners affected by airport-related road and rail proposals but not those who suffer road or rail proposals elsewhere. That also would be unfair and irrational. The effect of the amendment would be to place a major obstacle in the way of airport development, due to the potentially high costs it could bring to any project, but more so, the high degree of uncertainty as to what those costs might be in the absence of a clear causal link between the effects of the proposed development and property values. It would deter airport operators from bringing forward proposals for airport expansion, which would harm the competitive position of UK civil aviation and damage the wider economy.

The amendment would also make it difficult for airport operators to consult properly and widely on their development proposals at an early enough stage—when genuine options are on the table—to allow for the views of consultees to be taken into account. Consultation is indeed a requirement in many cases, but, if consultation were to carry the risks and burden of compensating for generalised blight, that would obstruct the necessary development of the nation's infrastructure and export to other countries the jobs and the wealth to which my noble friend Lord Smith referred.

Finally, the territorial application of the proposed amendment is not clear. Although most aspects of civil aviation are reserved matters, most local planning matters are devolved.

I conclude by saying that successive governments have looked at the matter closely. That happened most recently when we considered planning and transport issues between 1997 and 2001, when relevant Ministers found good reasons not to introduce legislation that would bring generalised blight in the statutory framework. We all know the consequences of generalised blight; we all recognise the social and economic problems that obtain there, but we have looked at this very closely, and we reached our judgments on the basis that it would be wrong to introduce, as this amendment would, for one relatively narrow area of economic and planning activity compensation for a concept that is much wider than the noble Lord has indicated. I hope that he will feel able to withdraw the amendment.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government 7:00 pm, 28th March 2006

My Lords, I thank the Minister for that comprehensive reply. This issue is rather different. From my local government career, I am very familiar with blight for all sorts of reasons and in relation to all sorts of issues. The area of this airport expansion is enormous—miles by miles. The proposal is not just to add a bit to a runway or to an airport. It encompasses several villages and a great chunk of Essex and therefore affects lots of people.

The Government came up with a policy statement, which has since been overruled in a judicial review, about siting a runway miles away from the existing runway. That would blight a great chunk of the county. If the runway had been close to the existing airport, one could perhaps accept a lot of the Minister's arguments. I hope that the Government will have learnt a lesson from this for the future. If you come up with a policy statement, you can blight great chunks of countryside even when the development might not happen. Of course, the whole process takes seven or eight years, so you have blighted these properties and this area of land for a long while.

I will not press the amendment today, but I wanted to air the issue again. It is a policy area that any government must consider. I am talking about blighting a whole area. It is not like what would happen with a waste plant, road or rail line; a great chunk of countryside is affected. Before announcing such a proposal, any government must think carefully about how it will impinge on hundreds of people's lives, properties, homes and livelihoods for many years. Whatever wealth is ultimately generated from the expansion of the airport, the process takes so long that it harms a lot of people and makes a lot of people unhappy. I hope that we have had enough debate to ensure that, any time the issue arises again, governments will think rather more deeply about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

moved Amendment No. 5:

After Clause 11, insert the following new clause—


(1) Section 76 of the Civil Aviation Act 1982 (c. 16) (liability of aircraft in respect of trespass, nuisance and surface damage) is amended as follows.

(2) In subsection (2) for "subsection (3)" substitute "subsections (3) and (5)".

(3) After subsection (4) insert—

"(5) No liability shall be incurred by the owner of the aircraft (or the person to whom it has been demised, let or hired out) if he proves that material loss or damage as aforesaid—

(a) resulted from an act of war, hostilities, civil war or insurrection, or

(b) was due wholly to anything done or omitted to be done by another person, not being a servant or agent of the owner (or of the person to whom it has been demised, let or hired out) with intent to do damage.""

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, we have debated the merits of this amendment on three previous occasions and, on each occasion, we have failed to elicit a satisfactory answer from the Minister. I shall not rehearse the arguments again in great depth, but I must reiterate the main arguments.

Under our present law, which was introduced over 85 years ago, the aircraft owner is made absolutely liable, without defences or limits, for damage caused by an aircraft to persons or property on the ground. The world changed abruptly on 11 September 2001, when four civil passenger aircraft were converted into weapons of mass destruction. Within 11 days, Congress passed emergency retrospective legislation to protect US air transport and to create a victim compensation fund. The total cost so far is estimated at around $40 billion and, as we know, litigation continues.

We do not need the same sort of legislation in the UK. Since 1964, we have had a system for compensating the human victims of violent crime and, today, all 25 European Union states are required to have something similar. For property damage, we have had a Treasury-supported scheme since 1993 to ensure that adequate insurance is available for terrorism risks. The cost is met by premiums charged to property owners and to their insurers. The amendment will not change that; there will be no new burdens for the British taxpayer.

We must face reality. The threat of terrorism from the ground or in the air has not gone away. If anything approaching 9/11 should succeed over here, it could easily transcend the limits of available insurance, and the financial consequences could wipe out the interests of the British or foreign airline involved.

It is a matter of considerable regret that the Minister has not changed his position in the slightest degree. That means that he has not been able to fault our basic arguments. Although he has been good enough to concede that the present position is unsatisfactory, what does he propose? He clearly hopes that a solution will emerge from the present work of the International Civil Aviation Organisation, which is charged with modernising the 1952 treaty. Last month, in Montreal, the special group of ICAO seems to have reached the conclusion that not one, but two separate, unlinked treaties may be necessary—one dedicated to terrorism alone—all subject to further directions from the council of ICAO.

Even assuming that there are no further changes of direction, we cannot wait to see what might emerge. We would be failing in our duty to the peaceful aims of the international air transport industry, on which so many depend, if, nearly five years after 9/11, we failed to take the simplest steps to minimise the risk of financial disaster for British and foreign aircraft operators.

The amendment provides a simple and non-controversial solution. I would like to think that today we could persuade the Minister to refrain from reciting, as he did on Report, the substance of his departmental brief, just as if we had offered no answers or corrections to what were, I think, his misleading remarks. In particular, I deeply regret the fact that we have not received an answer to the fundamental question that I first posed on 8 December, when I asked,

"exactly why airlines should bear any responsibility for terrorist attacks".—[Official Report, 8/12/05; col. GC173.]

What on earth is the justification for saying that innocent aircraft owners should be liable for the financial consequences of war or terrorism? The House deserves an answer to that basic question. With no other solution in sight, our amendment is a modest and timely step in the right direction, providing sensible and conventional defences for innocent aircraft owners of all nationalities in our airspace. I beg to move.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, one of the principal virtues of the amendment moved by the noble Lord, Lord Hanningfield, is that it would impose no new burdens or imposts on the British taxpayer. That is an important point to emphasise. The present position is, of course, entirely unsatisfactory, as my noble friend the Minister has admitted. He has said that he hopes, perhaps somewhat optimistically, that the ICAO discussions will have an acceptable outcome.

We are light years away from that situation. The ICAO special group considered that two separate, unlinked treaties might have to come into operation. As has been noted, one is associated with terrorism. Because of that, it would be subject to the approval of this Parliament and, presumably, many other Parliaments. Can we afford to wait? That is the question that the noble Lord, Lord Hanningfield, has posed. Perhaps an initiative taken by us would spur others to get a move on.

Why cannot we say in the legislation that our proposal will come into effect X years from now? That would give an indication of our bona fides. I understand that the proposed regime already applies to ship owners. Why should the protection afforded not also apply to aircraft? The Minister said that the position for shipping was entirely irrelevant. Will he kindly explain why? I neither understand nor accept that.

The noble Lord, Lord Hanningfield, raised a basic question, which remains unanswered. He posed it again tonight. He asked why airlines should bear any responsibility for terrorist attacks. That remains a vital and unanswered question. I support the amendment.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am in some difficulty. If I present arguments against the noble Lord, Lord Hanningfield, he says that they are not good enough and that they were not last time, but I shall say the same thing again. He presented his arguments last time, and he said the same thing again. My arguments will not be good enough for him because they were not last time, but neither were his. We do not accept some of the basic premises on which the noble Lord argues. He says that I am not to use the departmental brief. I do not need to use the departmental brief because the principles that the noble Lord puts forward are so mistaken that all noble Lords who do not have the benefit of the departmental brief will see why the Government have right on their side.

In straightforward terms that have nothing to do with the complex arguments in my departmental brief, the Opposition are saying that we should change UK law for UK aircraft involved in this situation because this is a UK matter. The Government say that airlines and aircraft are involved in international travel. War and terrorism are international phenomena. The damage done may be in this country, but it may be overseas. The matter cannot be governed by international law alone; it is an international problem that needs an international solution.

I am sorry if my department thought of this and it seems that I am therefore guilty of having learnt it from the departmental brief, but I assure noble Lords that that is not so. That is the fundamental division between us. I could reiterate the argument in a range of increasingly diffuse and subtle ways, but that is the heart of the difference between us. That is why the noble Lord was forced on two previous occasions to repeat his arguments—to his own satisfaction, but not to mine—and that is why my refutation on two previous occasions did not meet his requirements and will not do so today. I have nothing further to add to the overall position than that.

My noble friend introduced an extra dimension, and I shall take a shot at responding. I spoke from the wretched departmental brief on a previous occasion, when I said that we thought that the amendment emerged from some comparison with maritime law. My noble friend has made that explicit today. He said that international maritime law provided for different aspects, so why cannot we attribute to aviation law similar concepts?

There are several international conventions in maritime law to which the UK and many others are party that address ship owners' liability for acts of terrorism and the resultant pollution. Noble Lords will recognise that the law of the sea has to cover those issues because of, in particular, pollution of a third party's territory. Liability and compensation are treated hand in hand. There is no international convention governing aviation law in those terms, so we have nothing to fall back on. There is no corpus of law governing the international provision of aviation that meets that point.

The noble Lord was kind enough to say that he thought that I would seek to produce some argument along the lines of an international solution. Both he and my noble friend Lord Clinton-Davis doubt the extent to which the International Civil Aviation Organisation could produce an early solution to this complex problem. They are right to have those doubts. None of us thinks that the development of treaties that govern this area will be easy or speedy, so I share their doubts on that point.

Before my noble friend intervenes again, I should say that it is recognised that, in the shorter term, the Government accept the need to be ready in case airlines are exposed to totally uninsurable risks. After 11 September 2001—I am sorry for repeating what I said in Committee and on Report—I said:

"Should another terrorism incident lead to a lack of third party insurance, such that the UK aviation industry was unable to operate, the Government's intention would be to intervene as we did after September 11th".—[Hansard, 8/3/06; col. 834.]

On those occasions, we identified the same gap that noble Lords have identified in this debate. We took the necessary action as a stop-gap measure. We hope that there is never occasion to do that again, but we undertake that, if necessary, we shall act in like manner. Aviation cannot be subject to anything except international law in the long run. That is why we cannot abstract from international aviation law a parallel with maritime law, and that is why the amendment will not hold.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

My Lords, my noble friend has been very frank, but I am concerned about the situation. He said that if there was another emergency, Britain would act unilaterally. I propose that a spur should be given to the negotiations at ICAO. I also indicated that we should not act immediately but that the legislation should provide that we are at liberty to do so. Presumably, my noble friend disagrees with that.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I disagree because the legislation is about the long term. We expect primary legislation to obtain over a number of years. The temporary measure that we took after 2001 might have to be repeated if a tragedy similar to that should occur again, in which case I undertake that the Government will recognise that there can be an uninsurable problem for the aviation industry. We are making it clear that we intend to sustain that industry through such an acute, particular and precise difficulty, but when it comes to the law, aviation will be subject to international treaty and agreement. That is the only way. Britain acting alone through its own legislation is not the answer.

Photo of Lord Hanningfield Lord Hanningfield Deputy Chief Whip, Whips, Shadow Minister, Transport, Shadow Minister, Communities and Local Government

My Lords, one good thing about the amendment is that I have been able to work with the noble Lord, Lord Clinton-Davis, with all his experience of aviation matters. Again, as I expected, I am disappointed by the Minister's answer. I am grateful, as I am sure others will be, for the Government's guarantee to intervene if the system is collapsing. That is an important commitment.

We wanted the Government to take some initiative. We agree that there have to be international treaties. However, even the maritime treaties are not signed by everyone. We have had debate in the House. Half the countries have not signed up to the maritime treaties. We seek to encourage others to sign. We still want to work towards international treaties, but we could have made some start. I disagree with the Minister that we could not have done so.

We have had three debates on the matter. We have aired the issue. The Government have given a commitment to intervene if need be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

moved Amendment No. 6:

After Clause 11, insert the following new clause—


(1) If the Secretary of State is aware of intelligence that any aircraft entering British airspace is being, has been or may be involved in an act of unlawful rendition then he may require that aircraft to land at a designated suitable airport.

(2) If any plane is required to land in accordance with subsection (1) a responsible person shall as soon as practicable—

(a) enter the aircraft; or

(b) arrange for a police constable or authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.

(3) If the Secretary of State or other responsible person is aware of intelligence that an aircraft using airport facilities in the United Kingdom is being, has been or may be involved in an act of unlawful rendition then a responsible person may make arrangements to—

(a) enter the aircraft; or

(b) arrange for a police constable or an authorised officer of Her Majesty's Revenue and Customs to enter the aircraft.

(4) A person who enters an aircraft under subsection (2) or (3) shall endeavour to ascertain—

(a) whether the aircraft is being, has been or may be used for an act of unlawful rendition;

(b) whether a criminal offence has been committed;

(c) whether allowing the aircraft to continue could place the United Kingdom in breach of its obligations under the European Convention on Human Rights; and for these purposes the person may search the aircraft.

(5) In order to comply with a power under subsection (4) any item may be removed from the aircraft.

(6) For the purposes of this section—

"an act of unlawful rendition" is an act involving the transportation of a person to a territory where international human rights standards, in particular protections against torture and inhuman and degrading treatment, are not observed, such transportation not being in accordance with formal lawful extradition or deportation procedures;

"a responsible person" means—

(a) the chief officer of police of a police force maintained for a police area in England and Wales;

(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967 (c. 77);

(c) the Chief Constable of the Police Service of Northern Ireland;

(d) one of the Commissioners for Her Majesty's Revenue and Customs."

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, the amendment would ensure that the UK could not in the future be in any way involved in the practice of extraordinary or unlawful rendition. There are no new arguments at this stage. I merely want to summarise and answer the Minister's response on Report.

I am very grateful to the Minister for a generous meeting earlier this week. He agreed on Report that there were no legal obstacles to stopping and searching aircraft suspected of being involved in unlawful rendition and that in fact the relevant conventions place a positive duty on governments to do so. He also said that adequate provisions already existed and that agreement had been reached with the US whereby it,

"would have to seek our permission and we would seek reassurance that it was acting in accordance with international law".

The Minister was asked in writing by myself and the noble Baroness, Lady Williams of Crosby, to point us in the direction of the existing legislation, to say when and where it had been used and to what effect, and to provide any formal or public statement of the agreement reached with the US on this matter. Had there been satisfactory answers to those questions I would certainly not have moved the amendment for the third time at Third Reading, but unfortunately there are no answers to what appear to me to be perfectly legitimate queries.

The Minister says that the ordinary police powers cover the searching of aircraft, but has no instances in which those have ever been used. He repeats that there is no credible evidence that the UK has ever been involved in facilitating extraordinary rendition. But the law requires only "reasonable suspicion", and I believe that that is fully justified by the evidence from around the world that this odious practice has undoubtedly taken, and is taking, place.

The Minister quotes from a speech recently made by the Foreign Secretary, Jack Straw, in which assurances from the US have been sought and met. I respectfully submit that these words are not sufficient and do not reassure me. Nor do they convince me that there is any new agreement with the US or firm intention to ensure that the UK has made it abundantly clear that it will never condone any aspect of unlawful rendition.

Here I must at least mention the report of the Vienna Commission which was published after Report stage. This body was set up by the Council of Europe specifically to examine the legal obligations of member states with regard to interstate transport of prisoners and secret detention centres. The findings by six independent legal experts are unequivocal. I quote three short sentences from this document. It states that,

"it is worth underlining that Council of Europe member States are under an obligation to prevent prisoners exposure to the risk of torture . . . member States should therefore refuse to allow transit of prisoners where there is such a risk . . . as long as the plane is in the air, all persons on board are subject to the jurisdiction of both the flag State and the territorial State".

It insists that member states,

"must take all possible measures in order to prevent the commission of human rights violations in its territory, including its air space".

I do not think that the response we have had so far from the Government will give the public confidence that there are adequate procedures to pre-empt any future involvement in extraordinary rendition. Therefore, I beg to move.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

My Lords, my noble friend has pursued this matter assiduously through successive stages of the Bill. She has argued it, if I may be allowed to say so, with compelling advocacy. I would not presume to seek to embellish what she said.

I regret that for a succession of reasons I was not able to participate at earlier stages. I intervene now to address two issues raised by my noble friend the Minister. First, referring to aircraft which are on the ground either to take advantage of airport facilities or because they have been required to land, he said that the amendment is unnecessary because the authorities—presumably the police and Revenue officials—already have power to enter the aircraft and ascertain the purpose for which it is being used. My noble friend did not specify the powers. I make no complaint of that. Like my noble friend Lady D'Souza, I am grateful for the time the Minister spent with us yesterday. However, I have had to speculate to what powers he was referring. I think that there was a reference at some point to the Police and Criminal Evidence Act 1984. Since it was not clear to which provision in the Act he was referring, I have had to make such searches as I can.

I accept that by Section 23, "premises" includes aircraft, so we can begin by agreeing on that. I was able to find three provisions in the statute to enter and search premises. Section 1 gives a constable power to search if he has reasonable grounds for suspecting that he will find stolen or prohibited goods. Section 8 empowers a justice of the peace to authorise a search of premises if there is evidence of a serious arrestable offence, there is material there which is likely to be of substantial value to the investigation, and it will provide relevant evidence. Section 17 gives power to enter premises for certain purposes, the major one being the purpose of making an arrest.

None of those provisions appears to address the purpose we are discussing today. To put it at its lowest, it is not difficult to envisage circumstances where a plane is being used for extraordinary rendition where none of those provisions applies. Unless my noble friend knows of other powers which may solve the problem, there seems to be a need for subsection (3) of my noble friend's new clause. I should add that all those powers require "reasonable grounds for suspicion".

The difficulty we face is that the officials may not be able to demonstrate grounds for suspicion of a particular aircraft. Aircraft are not transparent. The suspicion may apply to a category of aircraft which may be a fairly limited one. It is unlikely to entail a large-scale operation. The situation is most likely to arise in connection with state aircraft, and in the Chicago convention that expression includes aircraft in military, customs and police services. Under Article 3 of the convention, no state aircraft is entitled to fly over the territory of another state or land on such territory without authorisation by special agreement or otherwise. That may help to answer the question asked by my noble friend and the noble Baroness, Lady Williams of Crosby.

That authorisation is unlikely to be granted if the authorities in this country are not aware who the operators of the aircraft are. It is basically where the operators transpire to be certain police or intelligence agencies or—not to be too mealy mouthed—the CIA or the FBI. I suggest that even if nothing further is known about the journey in question, there is reason for further inquiry. I shall return to the reason for that. Within that category, some aircraft will be eliminated quite simply. Those remaining are not likely to entail a massive operation to enter and search them.

My noble friend the Minister is concerned that a search may cause delay—that was his second issue. But a state aircraft will require authorisation in order to land, or it will have been required to land. If that authority or requirement is made, what is the difficulty in arranging for an official to be available when it lands? If such an official is available, what delay or inconvenience will be occasioned by his entering the aircraft and seeing who or what is there?

My noble friend's amendment does not seek to make a search compulsory. It would simply empower the Secretary of State, or other responsible official, to conduct a search if there is intelligence leading him to consider that a search should be conducted. The intelligence will surely need to be considered in the context of what is known about the previous activities of the operators. If a criminal jury is now to be entitled to take account of previous convictions, surely officials should assess the situation in the light of the operator's record in so serious a matter as we are discussing.

Perhaps I may refer to three instances. None of them has been the subject of a trial in a court of law, but that is the decision of the American authorities. The United States has not ratified the statute of the ICC, and they have not been prosecuted in the American jurisdiction, which is where they would otherwise be prosecuted.

In September 2002, Canadian officials authorised the removal to Syria of a Syrian-born Canadian citizen, Maher Arar. While in transit at John F Kennedy Airport, he was taken into custody by FBI officials. He alleges that he was shackled. His request to see a lawyer was refused on the grounds that, since he was not an American citizen, he did not have the rights of an American citizen. He asked to be sent to Canada, since he was Canadian, but that request was refused. He was then put on an aircraft and taken to Amman in Jordan, and from there to Syria, where he was detained for 10 months, beaten and tortured. He has never been charged with an offence. The Canadian Government have established an inquiry into the case, but the United States Government have declined to participate.

Secondly, in September 2003, Khalid al-Masri, a German citizen, was kidnapped in Macedonia. He was flown to a United States prison facility in Afghanistan, where he was detained for four months, allegedly beaten, and then dumped at the roadside. The United States authorities have neither confirmed nor denied those allegations. The American Civil Liberties Union has now launched a lawsuit against the CIA.

Thirdly, Mustafa Nasr was kidnapped by the CIA in Milan, where he was a resident. He was taken to the US military base at Ramstein in Germany, and from there to Egypt, where he claims he was tortured. In December 2005, European arrest warrants for those allegations were issued against 22 CIA operatives. As my noble friend has said, investigations are going on in Europe.

I understand that the searches contemplated by my noble friend will not be easy. Feathers may be ruffled, at least in the early stages, and we are all concerned with what has been called the comity of nations. But we are discussing a risk of people being taken to where they may be tortured. That concern is, on any showing, not a fanciful one. If there are problems, a serious attempt is required to address them. This amendment would ensure that there is the power to do that.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 7:30 pm, 28th March 2006

My Lords, I support the amendment, which is also in my name. Having made the case in Grand Committee and on Report, I can speak briefly. Indeed, the arguments of the proposers have not varied at any stage; the reasons the Minister has given for resisting the amendment have changed radically. We were first told, in Grand Committee, that the amendment would abrogate our international obligations and hence wreck the Bill. On Report, the Minister accepted that this was incorrect and said that:

"The amendment would not wreck the Bill, but would not add anything to the powers we have".—[Hansard, 8/3/06; col. 848.]

We have subsequently sought, as other noble Lords have said, to find some examples where the current legislation has led to the investigation of suspicious flights—those which might be expected to be involved in the transport of people who would subsequently be interrogated under torture. No examples of our using this legislation have come to light, although we have a widespread and growing weight of evidence that the practice has been carried out for a number of years. The noble and learned Lord, Lord Archer of Sandwell, gave some of those examples.

We have also sought to find out the status of civil aircraft chartered by governments for the purposes of rendition. This also remains unclear. Last time we discussed this, I asked how RAF Northolt could be used as a staging post for these aircraft without prior notification of the purpose and status of these flights. Again, we have heard no answers to these questions.

From all sides of the House, including the government Front Bench, we have heard statements of total abhorrence of the practice of extraordinary rendition. We have the opportunity, through this amendment, to clarify and systemise the legal obligations, because they are obviously not clear to the authorities. I hope that the Government will, at this eleventh hour, support this amendment, and that all noble Lords will see that we need to do this if we are to stop the practice of extraordinary rendition through Britain.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I ask the indulgence of the House, not having spoken before on this amendment, which only came to my notice on the morning of Report stage, when I could not attend. I declare an interest as a member of the Joint Committee on Human Rights but, of course, speak only for myself.

Extraordinary rendition is a term of art not known to public international law, as the purpose is interrogation under torture. This amendment does not foreclose upon this practice as such in our domestic law, which as yet recognises the defence of lawful authority, justification or excuse to a charge of torture. One hopes that it may soon be amended, albeit that this process is proscribed by the United Nations Convention against Torture, to which as yet the Government have declined to accept the right of individual petition.

The narrative of events as already spoken to in Committee and on Report, which is not for me to report or rehearse, has not been accepted by the DCA, the MoD, the Home Office or any other department of state as far as I am aware. So is it not a reasonable assumption that, in the wake of 9/11, this arrangement for extraordinary rendition was made between President Bush and the right honourable gentleman, our own Prime Minister, and that it was implemented by the intelligence services under the shield of joint national security? If not, how else is it that no department of state accepts cognisance of what we know is going on? Has not the time come to shift that shield, without disclosing sources, and to provide, as is proposed by this amendment or in some similar amendment, that the Secretary of State should be answerable to Parliament?

It is now common ground, having read Hansard, that under the Chicago convention, control of the aircraft is exercised by the Civil Aviation Authority on clearance for landing and take-off, and when the aircraft is grounded, it is subject to the provisions of the Chicago convention. It is assumed that the Civil Aviation Authority, under the practice spoken to in Committee and on Report, is given directions. Who gives those directions? How is the clearance arranged? Who knows about what is going on? Those are questions that the Minister is in no position to answer. But we as ordinary people are entitled to ask them. If airports are cleared for this purpose, who gives the instructions? Who is it who knows? If no department of state accepts cognisance, there is no control but Parliament. It is assumed that under this amendment those instructions would be given by the Secretary of State, that passenger lists would be checked, and that the ultimate destination and the purpose of the flight would be verified. But nothing like that appears to happen today.

The Joint Committee on Human Rights has this amendment and is working on extraordinary rendition. As yet, however, it has received no evidence or any information to dispel my anxiety. I cannot speak for anyone else. However, I can say that there is much more work to be done and it shall be done. The report, which may not be presented at the moment, will be available before the Bill, when returned to another place, receives attention. It will be for another place to consider whether this amendment qualifies as a connected purpose related to the control of the Civil Aviation Authority under the Chicago convention. That is the matter which I would have touched upon the other day but I got it wrong.

In conclusion, perhaps I may suggest in these exceptional circumstances that we borrow the concept that,

"magnanimity in politics is not seldom the truest wisdom", and that the Minister, having recorded his objection, as inevitably he will do when the Question is put tonight, by concession allows the "Contents" to have it. That has happened once in my experience; I need not go into the details. I ask that to enable the report of the Joint Committee on Human Rights to be considered in one of the Houses of Parliament, having regard in particular to the provisions of subsection (4)(c) of the amendment. I know that that is a tall request but I ask it with humility and sincerity.

Photo of Lord Dykes Lord Dykes Spokesperson in the Lords (Europe), Foreign & Commonwealth Affairs 7:45 pm, 28th March 2006

My Lords, I strongly supported Amendment No. 22 tabled by the noble Baroness, Lady D'Souza, on Report on 8 March. Many speakers in this debate have thanked her for her initiative in launching this new clause at Third Reading. I shall be brief, because the hour is late. It is clear that the Minister must provide some strong answers to the many queries that have been raised and to the legal points raised by the noble and learned Lord, Lord Archer of Sandwell, who was formerly Solicitor-General in another place. I shall not make any further points tonight, because of the lateness of the hour, but I shall say that we know that the reality is that if one discretely asks any important, reputable journalists from the media—the press, radio or TV—in leading countries, particularly leading EU countries or America, about these practices and whether they go on, at the least they would say that they are pretty sure that they do, or otherwise they say that they are certain that they are going on. The Government must not be a party to illegal actions by the CIA or any other American entity of that kind. Therefore, we beg the Minister to give convincing answers tonight before this debate is concluded.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

My Lords, I support the noble Baroness, Lady D'Souza, and I am grateful to her for bringing this matter forward again. I was not able to be present on the previous occasion when this was debated, although I read the Minister's reply. On that occasion, the Minister suggested that the issues could not be dealt with by an amendment because they went beyond the scope of the Bill and that we were bound by international conventions. However, as has been pointed out tonight, a state does not need to rely on any treaty in relation to its jurisdiction over foreign civil aircraft, whether on the ground or in the air. It has the right to investigate whether an unlawful activity is being carried out on the ground or in its airspace.

I can, to some extent, anticipate what the Minister will say. We will be told that it is inappropriate to agree such a far-reaching amendment; that it is not to do with the content of the Bill; that it will be inappropriate; that it will sit uneasily in the Bill; and that it will probably be full of practical difficulties. Looking at this issue, which is of huge importance, even if the Minister does resort to those arguments, and even if I were convinced by them, I would still vote for the amendment because of the gravity and seriousness of the issue that has been raised. It cannot be denied that extraordinary rendition—to distinguish it from "rendition", which is the rather hideous distinction that is made—is happening and is being practised.

The three cases that the noble and learned Lord, Lord Archer, quoted are the ones that I would have picked of the cases that are public knowledge. What is significant about those three cases is that the three governments of the territories where the people were captured were all conducting investigations into them. In the instance in Italy where an Egyptian was seized on the streets of Milan, as the noble and learned Lord said, warrants have been issued for the arrest of several CIA agents; in the case of the German who was captured in Macedonia and then taken to Afghanistan, the German Government are investigating that; and in the case of the Canadian, who was taken first to Jordan, then to Syria and then back to Canada with no charges being levied against him, the Canadian Government are conducting an investigation into that, in which the United States Government have refused to participate.

That very strongly suggests that extraordinary rendition is occurring. Perhaps the Minister would answer this one question for me. It is a rather unfair question for his portfolio. But, if the transfer of those people was not for the purpose of torture, for what reason could it have been? Why take someone from Macedonia to Afghanistan or from Milan to Egypt in order to interrogate him? What purpose other than exercising undue force on people could there be for these interrogations? The evidence that something undesirable is going on is strongly suggestive.

I would not agree with the suggestion of the noble Lord, Lord Campbell, that perhaps there was some agreement between the President and the Prime Minister. I would not accuse the Government of that. But I feel that the Government are turning a blind eye. They are not asking enough questions about what is going on. There is plenty of evidence, as was said by the noble Lord, Lord Garden, of CIA flights in and out of this country. Putting that aside, there are the cases referred to by the noble and learned Lord, Lord Archer. The Government have to give a fuller answer and demonstrate that they are taking some precautions in order to ensure that this country is not being directly or indirectly involved in this.

I accept the assurance of the Foreign Secretary that—

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, the noble Lord was good enough to mention my name. I thank him for giving way. If the noble Lord objects to what I put forward as a probable assumption, could he tell the House how on earth this could have arisen?

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

My Lords, there is strong suspicion that this is American practice. There is no reason to believe that the British Government have actively made an agreement with America. But I think that the Government are not asking questions and not seeking reassurance about what is going on in our territory with aircraft landing and over flying here.

I would accept the assurance from the Foreign Secretary that Britain does not participate in rendition. The British Government do not transport people to where they are tortured. But I must say that I have more scepticism about what has been said by the American Secretary of State, Condoleezza Rice. Although she has said that the American Government do not transport people to be tortured, there seems to be some evidence that there is a difference between the internationally accepted definition of torture and that used in the United States. That also came out in the debates in the American Senate when Vice-President Cheney sought to persuade American senators that they should not vote for the McCain amendment. What some Americans authorities think of not as torture, but acceptable force, would fall within normal international definitions of torture. I refer to such practices as water boarding, which to my astonishment has been defended in some very reputable American newspapers, on the grounds that, "If our troops are trained to resist these practices, we can use them against anyone".

The whole idea of extraordinary rendition and the use of torture is appalling. Any association with it is damaging to this country. This country has been damaged by what has happened in Abu Ghraib and in Guantanamo. All these things have rolled into the issues that have arisen in the Iraq war. That is why it is important, for our own reputation and because it is right, that the Government should act positively and proactively to find out what is happening.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

My Lords, I am grateful to all noble Lords who have participated in another debate on this issue which exercises us all greatly. The one jarring note to which I should like to respond is the suggestion of the noble Lord, Lord Garden, that the Government's arguments have changed during the course of proceedings on the Bill. They changed on one occasion. When the amendment was first tabled knowledge of the issue was very limited. My department, the Department of Transport, has limited responsibility for these issues and we gave the best reply we could to an amendment which was tabled the night before and to which I responded that afternoon. I subsequently indicated that the issue was different from the basis on which we were anxious about the matter. That is the only change in the Government's position. I freely admitted that on Report. I want to emphasise that the Government are not changing their arguments again this evening but are seeking and maintaining total consistency in our position.

Of course we all recognise that the concept of extraordinary rendition is unacceptable. I want to emphasise that although I recognise the various cases used today to illustrate the case that rendition may be occurring—it is for the House to judge that of course—none of them involves the United Kingdom directly. We made our position absolutely clear in ministerial Statements and in answers to Parliamentary Questions. Since this Government came to power, they have authorised the use of UK facilities for two prisoner transfers to the United States where the prisoners were subsequently tried and we declined to facilitate two other transfers.

It has been widely reported that specific US-registered aircraft, allegedly linked to the CIA—and of course these issues arose again this evening—have used UK facilities for renditions. There is no compelling evidence to suggest that those aircraft were linked to unlawful activity while in or over flying the United Kingdom. If credible intelligence of serious illegal activity—the definition of "extraordinary rendition" that has informed this debate would be serious illegal activity—comes to light regarding an aircraft in flight, the Government can require the aircraft to land. Article 3bis of the Chicago convention allows states to require aircraft to land if there are reasonable grounds to conclude that the aircraft is being used for any purpose that is inconsistent with the aims of the convention.

If the aircraft is on the ground, the control authorities—the police, Customs and immigration—already have a variety of powers to enter, take evidence and make arrests. For civil aircraft, the police could board an aircraft in the UK if they had reasonable suspicion that certain crimes were being committed within UK jurisdiction under UK law. My noble and learned friend Lord Archer pressed me on this point, and, with his usual diligence and accuracy, has done the researches necessary. I confirm that the police have power to enter premises to arrest for indictable and certain other offences under Section 17 of the Police and Criminal Evidence Act 1984. For this purpose, premises are defined as including any aircraft. That is in Section 23 of the Act. Because the police enjoy their usual powers of entry, the powers available would vary depending on the offence that is thought to have been committed. A justice of the peace may issue a search warrant to enter and search premises, including aircraft, where there are reasonable grounds for believing that an indictable offence has been committed.

If someone is being transported for the purpose of being tortured, those who are exporting that person are likely to be aiding and abetting the unlawful act of torture and so committing an indictable offence under Section 134 of the Criminal Justice Act 1988, so triggering the power to enter the premises that I have just described. So there is no doubt about the powers that the police enjoy to carry out necessary action on aircraft where there is reasonable suspicion of an offence being committed. If what was being committed is that which was described by noble Lords this evening, I have indicated that that would be a clear offence.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour 8:00 pm, 28th March 2006

My Lords, does my noble friend understand that in many of the instances cited, those who export—as he put it—the individual for the purpose of being tortured are taking him to somewhere where there is a serious risk that he may be tortured? They may not be complicit in the torture; they are simply sending him somewhere to be interrogated without caring very much whether or not he is tortured.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords)

Yes, my Lords, but it would be sufficient that they were escorting an individual to such a potential fate, if there was a reasonable suspicion that that is what was being carried out. That is the point that I am trying to emphasise.

The wider issue of the transportation by air of persons deprived of their liberty was addressed in the recent investigation and report by the secretary-general of the Council of Europe. Her Majesty's Government provided a full response to his inquiry, including information on the powers that we already have. That is available on the Council of Europe website. The secretary-general's report, issued on 1 March, acknowledged that the United Kingdom had provided full answers to all the questions put. The secretary-general plans to make proposals, including a review of the current international legal framework for air traffic and the adequacy of safeguards, to ensure that aircraft are not used for purposes incompatible with internationally recognised human rights standards.

Since Report, we have also had the opinion of the Venice Commission, the European commission for Democracy through Law, which was requested by the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe. That opinion describes in some detail the general principles of civil aviation relevant to the allegations of rendition. No doubt, that will inform the further work of the Council of Europe. Of course, the UK will work closely with the Council of Europe on its proposed review. As we are here dealing with international law, the House will recognise that any change will be more appropriately made on a multilateral basis. We therefore prefer to wait for the proposals promised by the secretary-general and, if it appears that any changes to current arrangements are needed, to consider them in the appropriate international fora.

I turn to the question of our ability to implement the new clause. I understand that this is a highly emotional topic. It is very important and I recognise the strength of feeling that enthuses all those who have spoken in this debate. But this is an amendment to this Bill. Therefore, I emphasise that it is important that we consider what the new clause would mean in the Bill in the real world. The simple practicalities of forcing a plane to land make the clause all but symbolic. A typical scenario for a jet aircraft might be that it was in United Kingdom airspace for up to two hours. If intelligence came to light indicating unlawful activity on that aircraft, it is unlikely that the intelligence services would be able to assess the quality of that intelligence for reliability and recommend action in such a short period.

When the noble Baroness, Lady D'Souza, moved her amendment on Report, she said that an aircraft should be made to land even if it was "slightly suspected" that an unlawful rendition was taking place. As I said then, forcing an aircraft to land in British airspace is an act of such drama and difficulty that we would need a much higher threshold than that. To warrant such a dramatic intervention—to require an aircraft to land under some compulsion of force—would be a very serious act by this or any government. We would be liable to pay compensation if an error had been made and an aircraft had been forced down unjustifiably.

I reiterate the Government's position on the allegations that have prompted the new clause, just for clarification. The noble Lord, Lord Lamont, who participated in our debate for the first time, also emphasised those allegations, and I shall respond to him. I am somewhat dismissive of the scenario outlined by the noble Lord, Lord Campbell of Alloway. This is not an area in which conjecture will do as the basis for our debate.

The reality is this. We have made clear to the United States authorities, including in recent months, that, first, we expect them to seek permission to render detainees via UK territory and airspace, including any overseas territories. Secondly, we will grant permission only if we are satisfied that the rendition would accord with UK law and our international obligations. Thirdly—this is a point on which the noble Lord, Lord Lamont, pressed me—we have emphasised to the United States how we, the British Government, understand our obligations under the United Nations convention against torture and the European Convention on Human Rights. In turn, we are clear that the US would not render a detainee through UK territory or airspace, including overseas territories, without our permission.

I recognise the opportunities that have been taken in this somewhat humble Bill to discuss such a significant matter. The opportunity has been seized by the noble Baroness, Lady D'Souza, and those who supported her, to air an issue about which we are all very concerned. It has disturbed Her Majesty's Government greatly during the past two months and rendered those of us speaking on their behalf just before Christmas in a very difficult position on something about which the Government knew very little at the time and was clearly having to carry out significant research. That is why answers to Parliamentary Questions and Statements have been delayed—not through any attempt at obstruction but simply because the research had to be conducted on an issue on which, it will be recognised, is not part and parcel of the normal operation of government and certainly not part and parcel of the normal operation of the humble Ministry for Transport.

To conclude, however well intentioned, the clause would serve no practical purpose, as the necessary powers to require an aircraft to land and then to enter and search it to ascertain whether a crime had been committed already exist in our national law. Any changes to international law that may be identified as desirable—I have mentioned that discussions about that continue—would certainly be best dealt with through the appropriate international fora.

We have had an important debate. I hope it will be recognised that I have responded to the issues that have been raised as fully and clearly as I can, although I have no doubt that many of them go far beyond the responsibilities of the department. I also hope it will be recognised that the new clause would not add to the Bill any powers that we do not already enjoy to deal with extraordinary rendition, which Members on both sides of the House regard as abhorrent.

Photo of Baroness D'Souza Baroness D'Souza Crossbench

My Lords, I thank all noble Lords who have contributed to the debate. I also thank the Minister for a considered reply for the third time.

Time is short, and I will be very brief. I do not feel that the Minister's answers in any way meet the requirements that I set out in my opening speech on the amendment. There is no question that one can reasonably suspect that extraordinary rendition—or perhaps the non-language of abuse, as I think it should be called—does take place, by virtue of the fact that the American interpretation of the torture convention is undoubtedly different from that of the UK and many other countries, as the examples given by the noble and learned Lord, Lord Archer of Sandwell, and the noble Lord, Lord Lamont of Lerwick, demonstrate. Therefore, assurances from the US are really not worth much if we are signed up to the absolute prohibition of torture, which indeed we are. I therefore feel that we not only have reasonable suspicion, which must be addressed, but that existing domestic laws are not being implemented. The Minister has given repeated assurances about the understanding that has been reached with the United States, but that is by no means formal, so it is very difficult to believe that it will be adhered to at every stage. In view of this uncertainty and the extreme importance of the issue, which undoubtedly comes within the wider remit of the Bill in that it concerns the illegal use of flights, aeroplanes and airports, I seek to test the opinion of the House.

On Question, Whether the said amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 58; Not-Contents, 84.

Division number 4

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Davies of Oldham Lord Davies of Oldham Deputy Chief Whip (House of Lords), HM Household, Captain of the Queen's Bodyguard of the Yeomen of the Guard (HM Household) (Deputy Chief Whip, House of Lords) 8:22 pm, 28th March 2006

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Davies of Oldham.)

On Question, Bill passed, and returned to the Commons with amendments.