Clause 80 - Specimens, &c. Question proposed, That the clause stand part of the Bill.

Railways and Transport Safety Bill – in a Public Bill Committee at 5:00 pm on 27th February 2003.

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Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 5:00 pm, 27th February 2003

I welcome Mr. Mahmood to the Chair.

Clause 80 replicates certain provisions of the Road Traffic Act 1988. It is curious, given the rather tetchy conclusion to the debate on the Liberal Democrats' amendments, that we are replicating matters that pertain to road traffic. I am sure that the Minister will share his reasons for that with us.

Clause 80 replicates certain provisions of the Road Traffic Act 1988 with the intention of using the same procedures to take specimens from mariners as from motorists. Clause 80 also applies certain provisions of the Road Traffic Offenders Act 1988 to offences under clauses 75, 76 and 77 of the Bill by substituting navigation functions for references in the 1988 Act to driving a motor car. I am sure that the hon. Member for Bath, having been, if I may use the expression ''put down'' during the debate on amendment No. 9, now shares my bemusement that we are accepting lock, stock and barrel the provisions of the Road Traffic Act 1988. I am playing devil's advocate; I am not saying whether I agree with that or not. We wish to use the debate to elicit from the Government an explanation for their choice.

This is a good opportunity to discuss problems that have arisen when specimens have been taken on the railways. I find it curious that the Government have chosen to take specimens under the Road Traffic Act 1988 rather than under existing provisions relating to the railway sector, where there have been a number of difficulties in taking specimens. I think that the breathalyser was introduced in 1967.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The Under-Secretary confirms the date. The breathalyser was introduced 45 years ago, and I would like to think that any teething difficulties have been ironed out. The Minister will probably

argue that that is why this particular specimen has been used.

I urge the Under-Secretary to explain the extent to which medical fitness has a bearing on people's ability to give a specimen that can be tested. It is generally recognised under Project Sentinel that medical fitness is an important aspect of drug and alcohol testing. That is certainly the case for the railway industry; indeed, since 1 September 2002, it has been mandatory for people to provide documentary proof, presumably prior to being appointed, that they have undertaken a medical and pre-employment drugs screening before the commencement of training.

[Mr. Jimmy Hood in the Chair]

Are the Government considering random testing? Will random specimens be taken, or will it be part and parcel of an ongoing system of testing? Will the Minister say whether random testing will take place, or whether professional mariners will be given specific tests before recruitment? I would expect the Government to see merit in medical fitness on recruitment, and that subsequent random testing would have an important role.

As for clause 80, the specimen is going to be hugely important in determining whether or not a new offence has been committed. It is surely in the Government's interests to recognise the importance of testing and of the taking of specimens. It is no surprise to learn that people are debating which are the best methods of collecting and testing. I am sure that the Minister will let us know.

I am a doctor's daughter, so I shall not be in the least squeamish if the Minister wants to go into detail about the various tests and specimens that can be taken. Unfortunately, every time a doctor or nurse tries take blood from my veins, it is like taking blood from the proverbial stone—it is done only with great difficulty, and I end up rather bruised. That is my one and only sensitivity. I shall not dwell on it, however, because it makes me feel quite ill. Will the Under-Secretary say why the Government decided to use the Road Traffic Act 1988 as the basis for the provisions, instead of existing railway legislation? Railways are a main feature in the Bill, but road transport is excluded from its remit.

Urine testing is the standard method in the railway industry and will apparently remain so for the foreseeable future. The Health and Safety Executive and Railtrack—and presumably Network Rail—uphold it as the favoured method, which forms my question about why road traffic provisions have been selected as the basis for the specimen-taking provisions.

Photo of John Randall John Randall Opposition Whip (Commons) 5:15 pm, 27th February 2003

I am listening with great interest to my hon. Friend, and she may be able to help me with my major question. I can imagine the situation in an accident such as the Marchioness disaster, when people were near the bank or shore. However, if something happened further out to sea, the use of road

traffic provisions would seem to be incongruous. Does she not agree?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I have a great deal of sympathy with my hon. Friend's point, but I remind him that we are talking about UK waters only and those in charge of inland waterway craft, such as the hon. Member for Luton, North, whose experiences as a youngster were obviously so enjoyable that they remain vividly with him today. However, it is curious. The number of accidents, fatalities and injuries is so much higher with road transport, which would appear to be one argument in favour of using road traffic specimen-taking measures, but we all agree that disasters such as the Marchioness are so spectacularly devastating because they are so rare. That is how I would answer my hon. Friend's remarks, but I hope that the Minister will respond too.

Last year on 1 July, members of the Association of Railway Industry Occupational Physicians heard Scientifics Ltd's toxicologist, Fiona Coope, deliver a balanced analysis of the technical merits of urine collection or testing compared with the newer method, which I am ready to accept, of using a mouth swab to collect fluid samples known as oral mucosal transudate from the inner side of both cheeks. I do not know whether it is the same as DNA testing, but it appears to be a more reliable form of specimen taking than that used for urine. I do not imagine that it is used in road traffic circumstances, so would it be appropriate to use such oral testing for mariners and seafarers rather than the specimen taking for road traffic users?

Photo of John Randall John Randall Opposition Whip (Commons)

I understand my hon. Friend's point. My only query would be the availability of the different tests. There could be a great expense in ensuring that the equipment was readily available, especially considering where it would be needed.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I may be able to help my hon. Friend, as a great deal of information is available on that point. I commend to him for evening or weekend reading an article by Paul Hunter in the July/August 2002 edition of the widely read—I have read it, so it must be widely read—Railway Strategies Magazine. I do not need my copy, so I urge my hon. Friend to avail himself of the opportunity to read it.

As I said, I am taken by the fact that we may be being old-fashioned by—[Interruption.] I am delighted that the Under-Secretary agrees with me. We may be being old-fashioned by considering only traditional means of specimen taking; taking samples from breath, blood and urine. I hope that the Under-Secretary will agree that we are likely to make progress if the oral fluid from a mouth swab will be included in the Bill later. I understand that samples collected by absorbing oral fluid on a mouth swab will not have a known sample volume. That may be a difficulty. In the case of cannabis, a small amount of the drug may be present because of passive or secondary smoking. It is interesting that taking cannabis rather than alcohol may have that consequence. The Government may be so alarmed by that that they are not minded to introduce the measure at this stage, although consideration of the Bill is not yet over. I hope that they will consider oral mouth testing through the use

of swabs in the future in this House or in another place.

I am also interested in the fact that the use of oral fluid has the attraction of being simple, convenient, easy and has what is called the integrity of the chain of custody collection. However, I am told that just as urine collections are not perfect, so there are problems and pitfalls in the method of taking oral samples.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I suspect that my hon. Friend, like me, has been an observer in a custody suite of the local police station. She may have seen the close attention given to the chain of custody, to which she referred. It is, rightly, carried out in an extremely controlled way. How does she think that that could be replicated in the uncertain environments that we are discussing? The measure applies to UK waters, but communications with the land can sometimes be very tenuous. We need guarantees that there are the same safeguards at sea as on land.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am grateful to my hon. Friend for raising that point. For the record, I have not had the opportunity to observe the custody suite of my local police station in person or as an observer, although it is an interesting thought that one should do so. It is also appropriate, as we are not certain what rights the police have to take specimens or how a police officer will be authorised to enter a privately owned recreational boat, although we are told that an arrest can be made without a warrant. My hon. Friend's point is pertinent: at what stage and at what time will the specimen be taken? If the vessel is some way out into UK waters and away from a court, or on an inland waterway some way from the nearest police station, that will have some bearing on the end result. I hope that the Under-Secretary is listening and will give us guidance on this serious matter. As my hon. Friend the Member for Westbury said, pursuit will be even more difficult if it involves a ship, a vessel or a recreational craft on an inland waterway rather than a vehicle on a road.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I am following the hon. Lady's argument but I do not agree with it. Waterway vessels are slow and there many fewer of them than the thousands of vehicles driven very quickly on roads. Does not the hon. Lady agree that when an offence has apparently been committed or the police are investigating a problem, it will be easy to test people in charge of a craft?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I remind the hon. Gentleman that we are talking not about driving a craft but about a craft being under way. We are still waiting to know the difference between the two.

I argue that it would be more appropriate for the specimens to be the same as those that apply to the railways rather than those specified in clause 80, which we shall come on to discuss in more detail in a moment—

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I know. I hope that the hon. Member for Luton, North will be persuaded by the fact that we are being a little old fashioned in wanting samples to be taken only by breath, blood and urine,

as set out in this part of the proposal. I hope that the hon. Gentleman will be attracted by the principle of taking all samples by swab, rather than an inferior method. However, a sample collected on a swab cannot be divided into two, so that the donor can later challenge the result by having the stored half of the samples analysed, which is a fundamental flaw. I understand that there may be opportunities for an oral swab to be used in conjunction with others; there are tips on the internet on how to outwit the collection and testing of urine samples. Collectors and laboratories will need to be wise to the deficiency of that method and do their utmost to minimise cheating.

Photo of John Randall John Randall Opposition Whip (Commons)

One could get round the problem of not having a duplicate, which is possible with a urine or blood sample, by taking two swabs at the same time.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Yes, I am attracted by that suggestion and I hope that the Minister will find it an acceptable solution. For many technical reasons, urine testing remains the favoured method at present, but the role of oral fluid testing, whether by oral mucosal transudate or by saliva, seems likely to be established in the future, and the Government should keep an open mind about introducing it.

Are the Government funding research to establish international standards for the interpretation of such results, or are they likely to do so in future? If any such research is being carried out at present, will they share its results?

My hon. Friend the Member for Westbury made some pertinent points about clause 80. I understand that, certainly as far as preliminary breath tests are concerned, the provisions of the road traffic provisions are being transposed into the Bill. Section 6(c) of the Road Traffic Act 1988, reprinted on page 33 of the Bill, states that,

''an accident occurs owing to the presence of a ship in the public place and constable reasonably suspects that the person was at the time of the accident is a person to whom section 75, 75 or 77 applied.''

For the sake of our understanding, what does the Minister mean by a public place? I would not have thought that a cruise ship was considered to be a public place. It is obviously private because it is open only to those who have paid a rather substantial fee for the benefit of going on it for enjoyment.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith 5:30 pm, 27th February 2003

Can the hon. Lady clarify what she is suggesting? Would the clause apply to someone with a yacht who, while under the influence of drink—perhaps one of the hon. Lady's former university colleagues—was to push over the boat by accident? Is she suggesting that that would also be the subject of a breathalyser test because it happened in someone's front garden? That is clearly not a public place.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The hon. Gentleman clearly had far more drunken colleagues than I ever had when I was at university because I do not remember any of them being in such an inebriated state. I certainly do not understand what is meant by

''an accident occurring owing to the presence of a ship in a public place''.

It would be most helpful if the Minister could explain how he imagines section 6 of the Road Traffic Act 1988 will be applied in those circumstances.

It is equally interesting to read that a constable in uniform, reasonably suspecting that a person has committed an offence will be empowered to require the provision of a specimen. What if the constable is a plainclothes officer with identification? Why should it be only a uniformed officer who is empowered to take specimens? Had I drafted the Bill, I might have been minded to encompass undercover operations, especially where it is necessary to take people by surprise. There must be a reason why the clause was drafted in that way. We want to know why plainclothes officers have been excluded, and we would like them to be included.

We are talking about offences committed at sea in UK waters or within UK waterways. Section 6(c) of the Road Traffic Act 1988 states:

''In place of subsection (3), a person may be required to provide a specimen either—(a) at or near the place where the requirement is made, or (b) a police station specified by the constable.''

Some considerable time could elapse between the specimen being requested and the offender being accused and taken to a police station. How does clause 80 relate to that eventuality? The Committee is at one is welcoming the provision for alcohol and drug testing. It would be highly regrettable for that to end, owing to the simple fact that the police station was far away from where the offence was committed and where the specimen was due to be taken at the police station. We place great emphasis on knowing this afternoon the place and time at which the Government intend, under clause 80, to take the specimen. It would be helpful to hear from the Under-Secretary what that would be.

Clearly, the blood specimen taken from a person incapable of consenting is possibly the most serious situation that the Bill would cover, especially if the person is on duty or likely to be on duty and called upon in the event of an emergency. Are the provisions of the Road Traffic Act 1988 going to be adopted lock, stock and barrel?

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

The issue of consent is interesting. Many crews on our merchant vessels are composed of non-UK nationals, many of whom communicate brilliantly. Some of them do not, however, so communication is an issue in terms of obtaining consent. Has the Minister given that any thought? Clearly, the issues are substantially different from those that will arise with the population that might be tested under road traffic regulations.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That is a valid point, but I would hope that police officers and fellow crew members could detect whether someone was unable to communicate because they were badly under the influence of drink or could not speak the language well enough. I do not think that my hon. Friend was suggesting otherwise.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

Indeed, I was not. I was suggesting that it is important to have informed consent when

taking samples. To obtain it, one needs to do the informing, and that means communicating. That is relatively straightforward with road traffic offences because one is generally dealing with UK nationals, but the same is not necessarily true of the Merchant Navy; indeed, increasingly, it is not. We therefore need to make special provision for those who may be in some difficulty when it comes to obtaining and giving informed consent.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

There are two separate issues, and I apologise if I misunderstood my hon. Friend. I am at one with him on the need for the Bill to specify informed consent. I do not know whether hon. Members are aware of this, but legislation amending the Race Relations Act 1976 is going through the House. It could actually make it more difficult to recruit people of non-UK origin, but we can discuss that at the appropriate time.

None the less, I hope that the Government have given the issue of informed consent some thought and that they will respond positively to my hon. Friend. As I am sure he will agree, there are also difficulties taking a blood specimen from someone who is incapable of consenting because he is intoxicated. There are therefore two different scenarios, but I am not sure whether the Bill makes it clear that both are to be covered. It would be helpful if the Minister could clarify that at this stage.

As regards section 10 of the Road Traffic Act 1988, powers will be extended to the police for the first time to detain the person affected by the alcohol or the drug while the sample is being taken. Without clause 80, those powers would not exist. Again, it is interesting that the reference to

''driving or attempting to drive''

is taken to cover a ship that is being driven. For the sake of debate, I throw in the fact that it might have been better to use the railway safety provisions in that regard. We await the Minister's comments on why the present provisions were chosen.

I turn now to the provisions relating to the prescribed limit of a drug. I confess that I am not the least bit familiar with cannabis, but I understand that its effects are felt immediately. However, I am unsure how long it remains in the blood or whether it remains for longer than for alcohol. How can we determine that? We have received representations from outside bodies asking why drug testing of drivers—a breathalyser for cannabis—should not be applied. Why have the Government agreed to such a test for shipping, but not for road transport?

Subsection (3)(a) states that

''the provision shall extend to the whole of the United Kingdom''.

Will the Minister confirm that clause 80 applies only to incidents that take place in UK waters? Will the provisions not also apply to other vessels of other nationalities—in the EU and internationally—using our waters? Will our vessels using the territorial waters of other EU countries be expected to undergo their corresponding provisions? To what extent are reciprocal arrangements in force in other EU member states?

The Government cited the Road Traffic Act 1988 as the primary legislation, but the Bill will provide further discretion for the Secretary of State to amend the table in the clause. Under subsection (2)(a), the Secretary of State can

''add a provision relating to an offence which concerns alcohol or drugs in relation to road traffic''.

Once again, I do not understand the fixation with road traffic or why the Government rejected specimen-taking provisions for rail traffic. Under subsection (2)(b), the Secretary of State may also

''add, remove or amend a modification''

in the table. Will the Minister clarify the position and assure us that the House will be consulted through the affirmative procedure?

Photo of John Randall John Randall Opposition Whip (Commons)

I am delighted to ask a few questions about the clause. We seem to be going back to what was known in my brief days at sea as the dog-watch. We are all agreed that safety measures for alcohol and drugs are important, but clause 80 raises serious problems stemming from the different nature of waterways and seas in comparison with both road and rail.

The Committee will by now have grasped that I am a relatively simple person who cannot cope with complicated ideas. An accident such as the one that happened to the Marchioness is simple to understand and we can imagine blood and alcohol testing of the crew, but let us make an analogy with the roads. Someone driving erratically might be weaving around the road, but if the hon. Member for Luton, North were happily moving about on his Norfolk broad, it would be called tacking. In other words, it would be more difficult to establish what counted as erratic sailing.

With driving, it is again relatively simple. A police car might see something happening, go alongside the car and pull it over. I am not sure how that would work even on inland water. Again, with a car, a policeman can say, ''Switch off the engine and come outside.'' If the boat is a small leisure craft, it will have to be tied up, so the time interval will be a great deal longer. Although I support the concept, I can understand the practical difficulties of the Department in trying to work out how it can be implemented effectively. I am not sure that just transferring the measures used in the road traffic legislation into a completely different arena will be satisfactory, but I would be happy to be put right on that.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North 5:45 pm, 27th February 2003

As so often, difficult cases make bad law. Most cases, however, will be simple and not difficult to detect. Is it not true that one can take extreme cases and make nonsense of most laws?

Photo of John Randall John Randall Opposition Whip (Commons)

I am sure that there is a lot of truth in that. I am afraid that the law sometimes does appear rather foolish. The essence of what we do in Committee is to try to make that less likely. We will never eradicate the problem, but that is the point of scrutinising Bills. I shall wait to be enlightened by the Minister.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

What a pleasure it is to respond to the debate so early in our proceedings. I must say, Mr. Hood, that in your absence Mr. Mahmood was excellent in the Chair. We have seen his capability and—

Photo of Jimmy Hood Jimmy Hood Chair, European Scrutiny Committee, Chair, European Scrutiny Committee

Order. I should record my thanks to Mr. Mahmood for taking the Chair in my five-minute absence. The Chairman does not have too much influence on the speed at which the Committee performs, but he welcomes every bit of help that he can get.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Indeed, and I wish that I had total control over that, Mr. Hood, but alas I do not.

The hon. Member for Vale of York referred to breath testing, which was introduced in 1967. I think that I was at university at the time. She was not much of an example for the Scottish education system: 2003 minus 1967 is 36, not 45, but there we are. On that basis, she may be a Minister of State for education one day—I hope that no one will repeat that remark outside the Committee.

We wish the Bill to replicate as closely as possible the existing legislation for other modes of transport as regards the taking of specimens and associated procedures. We believe that it will greatly simplify the task of the police if the procedures relating to the taking of specimens are as similar as they can be for all modes of transport.

The police are already familiar with the procedures set out in the road traffic legislation. The table at clause 80(1) replicates sections 6 to 11 of the Road Traffic Act 1988 and sections 15 and 16 of the Road Traffic Offenders Act 1988, while making the necessary modifications to those statutes in order to fit in with the requirements of this part of the Bill.

The measures adopted through the table deal primarily with police procedures relating to: breath tests; the obtaining of specimens, and offences for refusing to give a specimen; procedures for taking blood samples from those incapable of giving consent; the choice of specimen other than breath; and detaining persons affected by alcohol or drugs, and the subsequent use of that specimen.

We intend that, where the 1988 Acts refer to driving or attempting to drive a mechanically propelled vehicle on a road, such reference should be treated as applying to all activities covered by clauses 75 to 77.

We wish clause 80 to remain in line with the provisions of the 1988 Acts. Subsection (2) therefore enables the Secretary of State to amend the table in line with any relevant future amendments to the 1988 Acts. That relates to a point raised by the hon. Lady in the early part of her speech, which seems a long time ago now. Amendment of the table would be by regulations subject to the affirmative procedure. I am sure that that will bring warmth and comfort to the hon. Lady's heart. At the moment, as she probably knows, testing for drugs is technically difficult, but there may come a time when it is feasible. If we should then want to add drugs to the table, that would be subject to regulations under the affirmative procedure.

The hon. Lady asked why reference was made to the Road Traffic Act 1988 and not to the Transport and Works Act 1992. I think that that is simply because the police are used to the road enforcement procedures, so it makes sense to model the procedures in question on those. Notwithstanding that, the road and rail procedures are very similar anyway. As to testing on ships, it will be for each shipping company to decide on any pre-employment testing. Some companies already do random tests, but it is not our intention that we should do so. Nor would we want to change established testing procedure. Police will carry out enforcement in the same way that they now enforce the road limits.

According to my count, the hon. Lady asked four times about standard testing procedures, but it may have been more. The standard testing procedures would be breath followed by blood, as on the roads. Where necessary—when a blood test could not be taken—a urine test could be used, as on the roads. Under section 31 of the Transport and Works Act 1992, blood is the preferred test on the railways, as it is on the roads, but urine can be used if a blood test cannot, for whatever reason, be taken.

We are making arrangements to train police officers to board ships at sea to administer breath tests where appropriate. Training for that new procedure is important. The hon. Lady made some play of what would happen if new testing systems were introduced in the future, and talked a great deal about swabs. I could not relate that to any of the existing regulations on alcohol testing, but she must know more about it than I do. However, clause 80(2) gives the Secretary of State powers to change procedures in the light of any scientific or technical advance.

The ability to test at sea will always depend, as it does now on the roads, on reasonable suspicion that an offence has been or is being committed. When a vessel is at sea it will be more difficult in practice for that suspicion to arise. The hon. Lady several times asked where the testing would take place. I refer her to clause 86, which sets out the parameters, but I do not want to dwell on that because I am sure that we shall dwell on it when we reach the clause in question.

The hon. Member for Westbury raised the issue of language. That could arise on the roads; probably many people with limited English drive cars. It would be expected that other crew members would assist with language difficulties. Police training will also cover the issue, but I do not pretend that there is not some difficulty.

Photo of John Randall John Randall Opposition Whip (Commons)

I presume that the police in question would be the nearest county police.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Yes. The marine official would summon a constable from the nearest possible place. The hon. Gentleman outlined a scenario of a very difficult case, and we accept that there will be difficulties in getting the constable to where the test must be carried out. At the moment there are no immediate plans for marine drug testing, but if it should be introduced on the roads, the Secretary of State would have powers to bring in similar maritime measures.

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

How will the costs of getting the constable to the right place, and the costs of his time, be funded? Will they be reclaimable in some way or will the cost be borne by the relevant police force?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

I understand that it would usually be for the police to cover any costs of getting a constable there. However, I dare say that a ship that was some way off shore might be in co-operation with the Maritime and Coastguard Agency. Indeed, that body might have attracted the marine officer to the ship and the difficulties therein.

I am sorry that the hon. Member for Vale of York has left the Room for a moment. Since she is not here, now is perhaps the moment to complete my remarks.

Photo of John Randall John Randall Opposition Whip (Commons)

Unfortunately, my hon. Friend the Member for Vale of York has had to leave, but she has entrusted me to listen to what the Under-Secretary was going to say. I should be very happy to listen to him, unless he wants to leave it to another time.

Mr. Jamieson indicated assent.

Question put and agreed to.

Clause 80 ordered to stand part of the Bill.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at four minutes to Six o'clock till Tuesday 4 March at five minutes to Nine o'clock.