Clause 7 - Investigator's powers

Railways and Transport Safety Bill – in a Public Bill Committee at 3:30 pm on 4th February 2003.

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Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 3:30 pm, 4th February 2003

I beg to move amendment No. 18, in

clause 7, page 3, line 30, after 'dwelling-house', insert

', within 500 yards of property'.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

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

No. 17, in

clause 7, page 3, line 45, at end insert

', pursuant to the issuing of a warrant or pursuant to a decision by a magistrate's court and only where accompanied by a member of the British Transport Police.'.

No. 10, in

clause 7, page 4, line 35, leave out subsection (5) and (6).

No. 4, in

clause 7, page 4, line 43, at end insert—

'(7) A formal protocol of understanding and working practices will be made between the Rail Accident Investigation Branch and each of—

(a) the Health and Safety Executive and the H M Railway Inspectorate;

(b) the British Transport Police

under directions and guidance provided by the Secretary of State.'.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I shall be fairly brief because clause 7 is worthy of a stand part debate for reasons similar to those that applied to clause 6. This is the meat of the Bill, the most controversial issue that we have reached so far and the most controversial in part 1.

Amendment No. 18 would define more narrowly the ''dwelling-house'' referred to in clause 7. We would prefer a reference to a dwelling-house within 500 yd of the railway property. The Secretary of State said on Second Reading:

''I agree that the granting of permission to enter people's property should be used sparingly.''

He went on to say that the Committee would be afforded an opportunity to ensure that the Bill

''is sufficiently tightly drawn to avoid unnecessary intrusion but still allows the investigation branch to carry out its work properly. In the past, investigators have sometimes found that their progress and ability to find things out quickly have been stymied because they could not get access . . . it is important that investigators should be able to get access as quickly as possible.''—[Official Report, 28 January 2003; Vol. 398, c. 771.]

The Secretary of State rightly points out that it is for the Committee to put those provisions in place.

As I have said, the clause is drafted too loosely. Under subsection (1)(b) an investigator may

''enter land (which may include a dwelling-house) which adjoins or abuts railway property''.

I feel that the Government should be more specific. I am glad to see that the Minister for Transport will respond to the debate, and I look forward to hearing his comments. Amendment No. 18 is tabled in a co-operative spirit.

Photo of John Spellar John Spellar Minister of State (Department for Transport) 3:45 pm, 4th February 2003

The hon. Lady talked about properties being within 500 yd, but her amendment would apply to land that was within 500 yd of railway property. We are talking about going across land, which may be necessary to move heavy lifting equipment and so on to get access to the railway. Her amendment would preclude that. This is not about the invasion of houses, but the crossing of property, which may include houses.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The Minister has pointed out the finer details, which may need further probing and refinement. He will know that the Railways Act 1993 defines ''premises'' as

''any land, building or structure''.

We will have a further opportunity to discuss that in the clause stand part debate. I am concerned that the right to enter a dwelling house—a private property as opposed to land—involves an invasion of privacy. The Secretary of State expressed concern on Second Reading.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

Does my hon. Friend agree that the term dwelling house is confusing? It may have a specific legal meaning. The word house is difficult because many people do not live in a house, but some other form of dwelling. Some of my constituents live in houseboats and boats. Would she like to press the Minister on whether we need to expand on the term ''dwelling house'' to make it more inclusive?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

My hon. Friend raises a pertinent point; I hope that we will be able to pursue it. The Minister will be aware of concern relating to the rather sweeping statement on the front page of the Bill:

''Mr. Secretary Darling has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the Railways and Transport Safety Bill are compatible with the Convention rights.''

Obviously certain provisions of the convention relate to the right of an individual to guard property and to privacy. We can return to that at a later stage.

I do not argue that 500 yd is necessarily the appropriate distance, but the amendment is meant to probe. The force of the impact in the Potters Bar crash carried carriages some considerable distance down the

track. I think of small commuter stations that line the route of the railway in my constituency, quite apart from private land. A considerable number of dwelling houses would be affected should there, God forbid, be a disaster. I hoped that the Minister might see fit to provide the further clarification and definition requested by my hon. Friend the Member for Westbury (Dr. Murrison). Will he clarify the distance from the accident and the damage caused by the railway carriages to adjoining properties?

Amendment No. 17 singles out a glaring omission. As I said, there are others that it will be more appropriate to discuss in the stand part debate. The clause states:

''For the purpose of conducting an investigation by virtue of section 6 an inspector of rail accidents may''

and goes on to list those powers. We believe that it would be more in keeping to list powers given to inspectors and investigators under the two existing boards—the aviation accident investigation branch and the marine accident investigation branch. They are more specific about the powers given to the inspectors and how they inspect them. I hope that the Minister accepts that a warrant, or a summons written by his own hand—an expression used elsewhere—would be more appropriate. That power is again rather sweeping, but at least there would be a document to which one could object.

There is no defining document in the Bill, and no procedure that the inspector would have to follow. An alternative view, such as that of the occupant of a dwelling house or the owner of land, could be expressed in a decision reached by a magistrates court. We believe that it would be appropriate for the investigator to enter a property or cross land only when accompanied by a member of the British Transport police. These are provisos that would help the Government to keep within the provisions of the European convention on human rights. I hope that the Minister will agree that without amendment No. 17, the powers will be perceived to be sweeping in comparison with the powers of the other two bodies. I await the Minister's reply with baited breath.

Photo of Tom Brake Tom Brake Opposition Whip (Commons), Shadow Secretary of State for Communities and Local Government, Liberal Democrat Spokesperson (Communities and Local Government), Liberal Democrat Whip

I await the Minister's response to the hon. Lady's probing inquiry. As I explained in the debate on clause 6, we will not press amendment No. 10 as it refers to clause 6, not clause 7. However, hon. Members will be relieved to hear that amendment No. 4 is perfectly in order, and will enable us to have a long and detailed debate for at least three or four minutes. Hon. Members will see that it is purposeful and important.

We seek to establish that there should be a formal protocol of understanding and working practices between the rail accident investigation branch, the Health and Safety Executive, Her Majesty's rail inspectorate and the British Transport police. Other hon. Members referred to the large number of organisations in the industry and in government that have regard to safety aspects on the railway. As other hon. Members said, there are questions about who has responsibility for what and who takes the lead. We are aware of at least one inquiry—Potters Bar—in which it is clear that the different organisations involved do not

necessarily see eye to eye on how to proceed or the speed at which to proceed.

It is therefore important that a protocol of understanding is drawn up to cover working practices. That is not unusual or unique. There is already a memorandum of understanding between the Health and Safety Executive and the Office of the Rail Regulator, and one between the Health and Safety Executive and what was the Department of the Environment, Transport and the Regions when the agreement was signed in October 1996.

In the area of marine activities, there is a memorandum of understanding between the Health and Safety Executive, the Maritime and Coastguard Agency and the marine accident investigation branch on health and safety enforcement activities at the water margin and offshore.

In relation to aviation, there is a memorandum of understanding between the Health and Safety Executive, the Civil Aviation Authority and the aviation accident investigation branch.

A number of such memorandums of understanding already exist, and I hope that the Government will support drawing up a similar one in this context. The Minister may argue that it is not necessary to include that in primary legislation. However, it is important for the sake of the public that there is openness, accountability and a clear understanding of the different roles and responsibilities of the various organisations involved in rail safety. I hope, therefore, that the Minister will look favourably on the amendment.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I hope to show that the amendments could affect the ability of the rail branch inspectors to carry out their investigations. One of the main criticisms of the current accident investigation regime is that no single body is responsible for carrying out an investigation focused solely on finding out the root cause, without seeking to apportion blame or liability. The rail accident investigation branch will be that body. The inspectors must be able to get on with the job of finding out what went wrong.

Amendment No. 18 would mean that investigators would be unable to access land more than 500 yd from an accident site. As the hon. Member for Vale of York mentioned, an accident could occur on a railway line running through fields. It is also possible for a vehicle to continue for 1 mile or more beyond the original accident site. In such cases, in order to access an accident site with specialist equipment, particularly lifting equipment, inspectors would need to cross land that was much more than 500 yd from the accident site. It is also possible that some part of the train could fly off some considerable distance before the crash, but be related to its cause.

The hon. Member for Vale of York mentioned human rights. Paragraphs 31 and 32 of the explanatory notes make it clear that the exercise of the power could interfere, as she rightly said,

''with a person's right to respect for a private and family life or home''

or with

''a person's peaceful enjoyment of their possessions.''

Both those areas are covered by the Human Rights Act 1998. However, paragraph 32 explains that

''even if these rights were interfered with, the Government considers such interference justified on the grounds that this statutory power is necessary to ensure public safety on the railways; and it is in the general public interest that such investigations take place.''

The hon. Lady will be aware that that qualification is also contained in the 1998 Act.

Amendment No. 17 would similarly risk impeding the rail accident investigation branch in carrying out its investigations. Evidence and time may be lost if the inspectors have to rely on the police being present at all times when they are gathering evidence or if they have to wait for the inspector to obtain a warrant or some other court decision. Such a requirement would also be out of step with the other accident investigation branches that Lord Cullen used as examples for the need to create a rail accident investigation branch. The aviation and marine branches are highly respected independent accident investigators that search for the causes of accidents unfettered and without the requirement for a warrant. The RAIB will be a similarly professional body of accident investigators, and I did not hear a case why it should be treated differently from the other branches.

The hon. Member for Carshalton and Wallington spoke about amendments Nos. 10 and 4, which deal with the relationship between the RAIB and the HSE and police. The police and HSE will still have responsibility for pursuing prosecutions so that those responsible for causing death, injury and serious risk are properly held to account. However, it is essential that one person is clearly in charge at the scene of an accident, and that person will be the chief inspector of rail accidents—the head of the railway branch. The railway branch will not order non-RAIB investigators to do anything at the scene or elsewhere, but when a decision needs to be taken about what may or may not be done at the scene, it will rest with the chief inspector of railway accidents. I stress again that that will not override the existing statutory duties or functions of any other person or body.

As has been commonly agreed in the Committee, a protocol will be needed to establish clearly the lines of control at accident sites. Knowing the pressures and difficulties at such sites, the protocol should decided well in advance so that those involved know their rights and responsibilities. Indeed, we have been consulting the Health and Safety Executive and the police about that since Lord Cullen published his report in September 2001.

Photo of Tom Brake Tom Brake Opposition Whip (Commons), Shadow Secretary of State for Communities and Local Government, Liberal Democrat Spokesperson (Communities and Local Government), Liberal Democrat Whip 4:00 pm, 4th February 2003

I thank the Minister for agreeing that there should be a protocol. Does he have any idea about the protocol's timing in the context of the Bill and its establishment of another safety body?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

My next sentence was to say that the HSE and the police have agreed that protocols are needed and have to be worked on. However, it will be for the chief inspector of rail accidents to develop such protocols independent of Government direction. The

accident investigation branch will be independent, and we expect the chief inspector, once appointed, to have experience and knowledge that can be drawn on. There have already been discussions with the police and HSE.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

Will the Minister say anything about the thinking behind the nature of those protocols? That might best be done by giving an example. The Minister has said that the protocols will be drawn up primarily by the new head of the accident investigation branch. In a situation in which the police were investigating what they believed to be criminal activity at the same site at which the RAIB was investigating the cause of an accident so that lessons could be learned, what would happen if the police obtained forensic evidence but failed to make it available to the RAIB on the grounds that so doing might contaminate it and make it more difficult for the police to pursue their criminal investigation? What would be the supremacy of interests in such a case?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

My next point concerned the basis on which the protocols will be drawn up. The chief inspector and the other bodies will be able to draw on the experience of the aviation and marine accident investigation boards, both of which already operate protocols. The aviation accident investigation board works with the Civil Aviation Authority and the police, while the marine accident investigation branch works with the Maritime and Coastguard Agency, the Health and Safety Executive and the police. That is not required by statute, but protocols are in place and they work. There is no reason why the RAIB should be different. Protocols will also be needed with the British Transport police and the county police forces, as the first force on the scene varies depending on the incident. An exercise carried out in the past year attempts to clarify the position between local police forces and the British Transport police in handling incidents; we want to improve procedures to speed up decision making and to get the system up and running again.

It is difficult to prescribe the decision that will be taken in an individual case. Protocols and procedures, including a hierarchy of decision making, are needed for handling relationships between the various bodies so that they can proceed in parallel with the necessary mutual understanding and co-operation, as the hon. Member for Bath said. That must be handled precisely by establishing those procedures, but they can draw on the protocols already in place for the other branches.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

I am grateful for that clear explanation of the procedures that will be followed. I accept that it is a difficult subject; notwithstanding the existing protocols, there is a great deal of confusion and an urgent need to resolve some of the problems, not least in respect of primacy of access to available evidence.

The Minister specifically said that the protocols would be drawn up by the head of the rail accident investigation branch, independent of Government. The problem is that there will be conflicts between the RAIB and the other bodies with whom the protocols have been drawn up. The Minister seems to be saying that the Government will not play any part in resolving conflicts that may occur, especially in

respect of the availability of evidence between the RAIB, for example, and British Transport police, for which he rightly said that a protocol is needed.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I actually said that that would be done independent of Government direction, which is enormously important in maintaining the independent operation of the rail accident investigation branch.

We can draw some comfort from the experience of the two other accident investigation branches, which are working well and have managed to develop the necessary procedures with the various bodies. The hon. Gentleman is not entirely right to say that the current procedures are well developed on the railways as greater clarity is needed to ensure that actions are taken in the right order and given the right precedence.

Following the procedures of the other branches will be in the interests of railway safety and cater for the necessary interests of the other bodies. I draw comfort from what they have achieved.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

There is some confusion. Will the Minister please explain the difference in legal status between the memorandum of understanding that exists between the HSE and the rail regulator, which will presumably have to be replaced, and a protocol?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

We are talking about potential agreements in respect of broad areas of competence in one case. A protocol is guidance for those involved in operations who may have to take decisions in immediate circumstances, especially in a crisis when life and health may be at risk, and a clear basis is needed for the procedures through which decisions are taken. A memorandum of understanding can cover a broader area of agreement—on spheres of competence, for example—between different organisations. I hope that I have provided a reasonable differentiation; if I am advised of any subsequent variations on that position, I will notify the hon. Lady.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That obviously raises a supplementary question. To what extent will members of either House have the opportunity to scrutinise the drafting or implementation of the memorandum of understanding or the protocol?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

Transparency is fine in terms of visibility, but ''scrutinise'' implies the ability to alter legislation. The powers of these bodies are drawn either from current or prospective legislation, and we have to decide on the right procedures to achieve the most effective operation of those powers. I am not sure that it is appropriate for Members of Parliament to second-guess that. Legislation is always open to change through parliamentary channels, but that is not the same as overseeing and altering agreements reached between proper statutory bodies in exercising their powers. Sensible arrangements are necessary to enable them to achieve the optimum outcome.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The Minister will be aware that parliamentarians like to visualise arrangements; perhaps that is too strong a word, but if we are fully to understand the Bill, we should be made aware of the contents of the memorandum of understanding and

the respective protocols. The hon. Member for Bath provided a graphic description, which I hope will not come to fruition. He made a serious allegation.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

I can tell the hon. Lady that I have strong evidence—though not of the sort that I can put in front of people—that the current investigation into the Potters Bar accident is having difficulty in obtaining forensic evidence from the police that would help to determine the cause of the accident. I understand—the Minister may confirm it—that an interim report has been produced; perhaps it has already been presented to the Government. It is important for parliamentarians to have an input, as the hon. Lady says, to help sort out such difficulties.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I was once a witness of a fairly serious motoring accident. I was not personally involved, but was three cars away from a young man who was seriously disfigured and nearly killed. I am not sure whether road accident reports are the same as rail reports. I asked that on Second Reading, but did not secure an answer, so I shall ask again. Police reports for road accidents are used when road traffic cases come before the court. In this particular case, the injured man's insurance company asked me to make a separate statement. It is notorious that witnesses' memory of an accident becomes much hazier with the passage of time and it becomes increasingly difficult to remember specific details. The insurance company approached me because it did not want to pay the police for statements provided under certain procedures.

I hope that the same will not apply here and that people will not have to pay the police for reports that are being prepared, because they may become relevant to insurance cases at a subsequent stage.

Photo of John Spellar John Spellar Minister of State (Department for Transport) 4:15 pm, 4th February 2003

I am more than happy to comment on how time erodes memory. We find that with Conservative Members as we get further from the period of their Government: they have very convenient memory lapses regarding the actions of that government, and indeed of the parts that they played in it.

Let me get back to the core issue in order to satisfy both the hon. Members for Bath and for Vale of York. They rightly identified a difficulty in current procedures, and that is addressed by clauses 5 and 6, which give primacy to the rail accident investigation branch during an investigation, and clarify beyond doubt who has primacy during an investigation. Different parties will be involved in the investigation of an accident and will work alongside each other. That procedure works successfully in the maritime and aviation areas. This means that one body will provide the lead—the rail accident investigation branch.

When a police office or another investigator seeks to take a particular course of action, the chief inspector of rail accidents, or a person acting on his behalf, will be able to decide what course of action should be taken. To save the hon. Member for Bath from taking notes on that point, it is covered at

paragraph 27 of the explanatory notes. I hope that clarifies his difficulty regarding the procedure by which those issues will be resolved.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

Order. The Minister was intervening on Miss McIntosh.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I was trying to get back in—

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

Is the hon. Lady aware that the Minister's response has not clarified the position? It explains who has primacy over the way in which the investigation will be carried out, but it does not resolve the problem of who, for example, would have prime responsibility for holding evidence gained during an investigation.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am trying confine my comments to the amendment, as I would like to debate the broader issues in the clause stand part debate. I acknowledge what the hon. Gentleman says, and I note that he is trying to be extremely helpful. However, amendment No. 18 was intended as a probing amendment, and he and I have both highlighted the difficulties. We recognise that further clarification is required especially in line 30, though we will not press the amendment to a vote.

I am not sure that I got much satisfaction from the Minister on amendment No. 17. Perhaps we can go on to discuss that at greater length in the clause stand part debate, since, in my view, the powers in clause 7 are much broader than those of the two other existing accident investigation boards.

Amendment, by leave, withdrawn.

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

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am most grateful for this opportunity to have a separate discussion on clause 7, in order to look in some detail at the investigators' powers.

My hon. Friends and I believe that clause 7 is much more sweeping than those that pertain under the civil aviation investigations branch rules. I agreed with the Minister when he extolled the virtues of the two existing boards. They were set up by a Conservative Administration, and the Committee would not expect me to say anything other than that they are remarkably good organisations.

The right hon. Gentleman noted that the two boards are widely regarded as functioning extremely well, and as with our own Health and Safety Executive, I hope that they can go on to be models in the manner to which I referred this morning. We should export some of our better ideas to the European Union rather than waiting to hear what it has to propose to us.

The Minister referred to paragraph 32 of the explanatory notes and the little local difficulty that the rail accident inspectors will encounter in complying with article 8 of the European convention

on human rights. I once appeared as counsel in the European Court of Human Rights, as opposed to the European Court of Justice. I found it immensely satisfying; it was in Strasbourg in a rather nice building designed by a British architect, but that is irrelevant. I have some moderate experience in this area. Were I to be counselling someone who did not wish, for whatever reason, for one of the inspectors to enter his or her land or dwelling place, article 8 would provide a strong defence to resist any moves by the inspector or investigator to enter.

Article 8 is expressed in strong terms:

''1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.''

The article is wide-ranging. The Minister will probably say that it could be read in one of two ways. One could say it was for the health and public safety of the nation that the inspectors or investigators should have the powers to enter the land, dwelling or premises, but the Government have created themselves a problem by incorporating the European convention on human rights into an Act of Parliament.

Bearing in mind the consensus that we should give fair speed to the creation of the rail accident investigation board, I regret that I perceive difficulties down the road for inspectors and investigators who seek to enter certain premises, dwellings and private land because article 8 has been written into an Act of Parliament. That will come back to haunt the Government.

Clause 7 gives the rail accident investigation branch inspectors the powers deemed necessary to conduct an investigation. The provisions are modelled on the powers of the aviation accident investigation board and the marine accident investigation board. Subsection (3) creates new offences designed to prevent a rail accident investigation inspector from being hindered in his investigation. It has become an offence for any person to fail to comply without a reasonable excuse

''with a requirement imposed by an inspector of rail accidents''

or to provide an inspector with evidence they suspect or know is misleading.

A person will also be deemed to be committing an offence if he

''obstructs a person accompanying an inspector''.

We hope that a police constable from the British Transport police would accompany the inspector on every visit. We have yet to hear from the Minister whether the Government will acquiesce in that request and whether the accompanying person will be authorised by the chief inspector of rail accidents. Someone who wished to oppose the powers that an inspector wanted to exercise under the clause could say that they wanted to rely on article 8. I believe that the Government will regret having enshrined it in a UK Act.

The Minister referred to subsections (5) and (6), which give the rail accident investigation board primacy in investigation. I understand that in certain cases the concurrent jurisdiction will cause some confusion. That is regrettable. Primacy needs to be clarified, but the provisions are welcome in so far as they ensure that different parties involved in investigating an accident will work alongside each other. The RAIB will be in the lead. The provision should clarify the position where a person such as a police officer or any other investigator seeks to take a particular course of action during an investigation. The clause states that the chief inspector of rail accidents or a person acting on his behalf—presumably that means an investigator or an inspector—can make decisions about whether that course of action may be taken.

I have difficulties with subsections (1), (5) and (6) because they are so different from the equivalent provisions in the implementing regulations relating to the aviation accident investigation board. Regulation 9 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 states:

''For the purpose of enabling him to carry out an investigation into an accident or incident in the most efficient way and within the shortest time, an investigating Inspector is hereby authorised, where appropriate in cooperation with the authorities responsible for the judicial inquiry''.

It continues:

''For the purpose of paragraph (1) above an investigating Inspector shall have power—(a) by summons under his hand to call before him and examine all such persons as he thinks fit''.

The very fact that he has to issue a summons means that there is a document that can be contested. It shows the reasons why the inspector requires the person to provide information or to submit articles such as books, papers, documents and so on. The section specifies further powers:

''(b) to take statements from all such persons as he thinks fit and to require any such person to make and sign a declaration of the truth of the statement made by him;

(c) on production if required of his credentials, to enter and inspect any place, building or aircraft the entry or inspection whereof appears to the investigating Inspector to be requisite for the purposes of the investigation;

(d) on production if required of his credentials, to remove, test, take measures for the preservation of or otherwise''.

It is important that the inspector is required to produce his credentials. Why did the Government not see fit to write into the Bill, having gone into so much detail in the clause, the reasons why the investigator should either be accompanied by a British Transport police officer, have a decision of a magistrates court or a summons, or be asked to produce his credentials if required?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I refer the hon. Lady to lines 27 and 28 on page 3 of the Bill, which relate to the investigator's powers. The provision says what an inspector of rail accidents may do for the purpose of conducting an investigation

''provided that he produces evidence of his identity if asked to do so''.

I think that that meets the hon. Lady's criteria.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 4:30 pm, 4th February 2003

We are talking about a fine nuance. The Minister might argue that we are splitting hairs.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

The inspector is not asked to provide his bus pass.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

No, and he is not a gas inspector.

The investigator's powers under clause 7 are extremely extensive. Opposition Members believe that there is a balance to be reached in respect of transparency and the exercise of those powers. The investigator should enter the premises with the requisite authority and act under the auspices of the chief inspector of rail accidents. We want to ensure that the powers are deemed to be reasonable. They should enable the investigator to pursue the investigation, but at the same time the rights of individuals should be observed.

The Government felt strongly enough about the European convention on human rights to write it into a separate United Kingdom Act of Parliament. I am trying to help the Minister, although he may not see it that way. The Minister will have to satisfy the concerns of any individual who is entitled to rely on article 8 in his defence to prevent someone from doing what we are discussing.

Clause 7(1) says the inspector may act

''provided that he produces evidence of his identity if asked to do so''.

I would assume that people would want to know who I was before I went on to their property. The slight difference in emphasis is interesting, and I simply wanted to explore whether there was a reason for it. It is welcome that the Government have gone into so much detail in the Bill, rather than leaving matters to regulations that the Committee would not have the power to debate.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

I am listening to my hon. Friend with great interest. I served on the Committee that considered what became the Animal Health Act 2002, so I am used to the Government playing fast and loose with entry powers. She may be interested to know that the Minister in that Committee returned the following day with the word ''proportionality'' on his lips rather more frequently than it was initially when he answered Opposition points. Does my hon. Friend agree that, although the Government have kindly acknowledged the need to produce evidence of identity, that does not of itself amount to anything approaching balance or a check and balance?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am grateful to my hon. Friend. I use the expression ''reasonable powers'', but the principle of proportionality is even more appropriate in this respect. I hope that the Minister listened to that helpful intervention and will have regard to it.

Equally, we have not yet discussed clause 7(3), which uses a similar expression. I know from my time as a law student how much time is spent talking about what constitutes ''a reasonable man''. Subsection (3) states:

''A person commits an offence if without reasonable excuse''.

The Government therefore wish to be mindful of this issue. The powers should be exercised proportionately and in a reasonable way. As I said, I welcome the fact that the powers have been written into the Bill, which might not have been the case.

The Minister may say that the Government will elaborate on clause 7 through regulations, so that, for example, a summons under his hand or a warrant will be sought. The clause alludes to the fact that the investigator may be accompanied by another person. That other person should, in each case, be a constable or an officer of the British Transport police. That would go some way to allaying the serious concerns raised by the hon. Member for Bath. If the police were involved at every stage in the taking of evidence there would be less opportunity for discussion and debate later about who had access to the evidence if they needed to bring a criminal prosecution. In the event of someone wanting to rely on article 8 of the European convention on human rights as amended by protocol 11, would not that lead to an unnecessary and regrettable delay? Would it be better if the European convention on human rights were not enshrined in a UK Act?

Clause 7 is extremely wide; it could lead to controversial situations and contains no precise definitions. I hope that the Minister will respond in a spirit of helpfulness.

Photo of John Randall John Randall Opposition Whip (Commons)

My hon. Friend and the hon. Member for Bath made some important points. I speak from a layman's point of view; we are keen for the investigator to get to the root of these matters, but it seems that he will have more power than the police. Is that correct?

If the police thought that a piece of evidence was vital because a criminal offence had been committed, would the investigator or the police have the right to that evidence or would they have to take it in turns? I may have been watching too many episodes of ''The Bill'', but presumably the evidence must be taken in a certain way to be accepted in a court of law. For a member of the jury, that will hinge on whether the police went through the correct procedures in obtaining the evidence. I am worried that vital evidence obtained by the investigator will be used by the police in a court of law and the defence will say that it was not obtained properly. We hear of cases where the policeman did not have his helmet or hat on, and therefore was not properly dressed to make an arrest. With due respect to my hon. Friend the Member for Vale of York who is a non-practising lawyer, sometimes lawyers find little loopholes that are not necessarily in keeping with the spirit of the law.

I wonder whether the inspector should be accompanied, as my hon. Friend said, for his security. Anyone presented with a railway inspector's identification would not necessarily be aware of the great powers that he had—and they might not be so eager to come forward and help if they were aware of them. In a notable case, some poor chap from an enforcement agency got shot because the landowner did not believe the chap had the right to do what he was doing, and a serious criminal offence was committed—

Photo of John Randall John Randall Opposition Whip (Commons)

Yes. I am worried about the inspector's safety and wonder whether it would be a good idea for a constable to be present.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

Let me deal with several points that hon. Members raised.

The hon. Member for Vale of York will not be surprised to hear that we do not believe that the clause poses any problems in relation to the European convention on human rights, because any interference with a person's right to a private life can be justified and defended on the grounds that the measures are designed to improve public safety, which the convention covers.

We also believe that RAIB inspectors will be professional investigators and that they will enter private property only if they believe that there is evidence relevant to the investigation of that property. I stress again that they must show their identity if asked.

On the gathering of evidence, not only would the evidence be gathered to the highest possible standards, but it would be able to be shared with the police. However, the witness statements that the RAIB had taken would not be shared with the police.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

The Minister said, ''would be able to be shared'', but I presume that he would stress that matters should go further and that evidence would be required to be shared between all the appropriate bodies if requested by those bodies.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

That is certainly so. The matter would need to be resolved between the bodies.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That returns to the point that I made about written statements not being released to the police in road accidents. As my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) said on Second Reading, we believe that there should be parity between the ways in which road and rail accidents are dealt with. As the Minister will recall, it is a source of distinct disappointment to us that road transport has not been included in the Bill. He, like other members of the Committee, will have received representations detailing the compelling reasons for including aspects other than the very limited ones in the Bill.

I would hope that evidence statements made available to the rail accident investigation branch under these powers would, in almost all circumstances, be made available to the police and to other Government agencies or public authorities. We are all working towards the same end. What grounds could there for not releasing a written statement in these circumstances?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

The hon. Lady goes partly to the core of the branch's purpose. That is precisely why Lord Cullen drew on the examples of the marine and aviation branches as his model for the rail accident investigation branch. The purpose of those branches is to produce reports not to prosecute, but to identify the reasons for and the causes of accidents, to determine the lessons to be learned for the rest of industry, and to disseminate that information throughout the industry

to improve its safety record. They therefore require the earliest possible co-operation of witnesses in the widest possible sense that may be easier to obtain under the conditions where those witness statements will not be released to the bodies responsible for prosecution. Those bodies may be able to interview the same people, but there is an important distinction to be drawn between their role and that of the branches. That distinction goes to the heart of this part of the Bill, and is precisely why Lord Cullen drew on this scheme as the basis for his report, and why we implemented it.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 4:45 pm, 4th February 2003

We are now getting somewhere. As a Scottish advocate, I was brought up on an adversarial system, and believe that the Minister has grasped the heart of the matter. We all support the concept of an independent, but hopefully transparent, means of deciding why we want a rail accident investigation branch. I presume that it is for the reason that the Minister gave; namely, that a statement would not be released because the dissemination of the information in the root causes report, drafted by the rail accident investigation branch would be made available to all the industry. However, is the Minister saying that the police would use it purely for the purposes of prosecution, which would make it more adversarial?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I am not sure that that is exactly how I would put it. Regarding aviation, people might be less open and less willing to reveal potential difficulties if they believed that it could lead to legal action further down the line. The purpose of an accident and investigation board, in the light of the other two boards' experiences, is to identify the cause of the accident in the shortest possible time and to draw appropriate lessons from it. That was the basis of Lord Cullen's inquiry and recommendations, which we have followed through, and the procedures should enhance safety in the industry. We are resistant to making witness statements available, though material evidence would be valuable—an issue that goes to the heart of the clause.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.