Clause 93 - Specimens, &c. Question proposed, That the clause stand part of the Bill.

Railways and Transport Safety Bill – in a Public Bill Committee at 4:45 pm on 4th March 2003.

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Photo of Don Foster Don Foster Shadow Secretary of State for Transport 4:45 pm, 4th March 2003

I shall start where I left off. I apologise to you, Mr. Hood, for earlier confusion. I thought that we were making even more rapid progress than we appear to be.

I tabled amendment No. 90 clause 93, but you have not called it because of the rare typographical error in it. That does not matter because the clause stand part debate provides an opportunity to raise the same issue.

The aim of clause 93 is to mirror various sections of the Road Traffic Act 1988. Section 6 of that Act gives a police constable the power to breathalyse when he has reasonable cause to suspect that a person has been driving under the influence of alcohol or has committed a traffic offence while the vehicle was in motion, a person has been driving and remains under the influence of alcohol, or a person has been driving and has committed a traffic offence. However, section

6(2) gives the constable a power to breathalyse the driver of a vehicle after an accident,

''owing to the presence of a motor vehicle on a road or other public place''.

You will recall, Mr. Hood, that when we discussed an earlier clause on shipping, there was a degree of merriment about a reference to an accident occurring

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

We were assured that that phrase was appropriate. My amendment, had it been selected, would have given the Minister an opportunity to say why clause 93 does not have a parallel reference to accidents having been caused by an aeroplane or aircraft ''in a public place''. That was clearly important in relation to ships and motor vehicles, so one would assume that it would be important to aircraft. The point is serious, because we are debating the circumstances in which it would be appropriate for an officer to carry out a breath test to check whether someone was guilty of an offence under this part of the Bill.

Presumably if the phrase

''owing to the presence of an aircraft in a public place''

is not included, the police might not be able to breathalyse a private pilot who crash-landed in a field, and nor could they breathalyse after an air-side incident involving, for example, a wing clipped a plane was while approaching the aircraft terminal. Clearly those powers would be used only in exceptional circumstances, but presumably they would be used in even fewer circumstances in relation to a ship being in a public place. No doubt the Minister has a very good reason why we have that provision for cars and ships but not for aircraft. I hope that he is about to tell us.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I welcome the debate. In his concluding remarks on clause 92, the Under-Secretary said that an offence would be deemed to have been committed not at the time of the accident, but at the time the person was deemed unfit for duty.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

There we have it. As both Ministers have said, that applies where there is a cause to suspect. The hon. Member for Luton, North is very taken by random testing. Our debate should be about when the testing should take place and precisely who will carry it out. As my hon. Friend the Member for Westbury indicated, the role of the medical review officer is crucial.

The explanatory notes made it clear that the Government were not minded to have random testing. But the clause is fairly loosely drafted and so random testing could be applied. It would help if we knew precisely how specimens will be taken. Can we have an assurance that tests will be carried out in as confidential a manner as possible? For the most part, will the test take place only where an accident has occurred or where there is a reasonable suspicion that that person is unfit for duty? I hope that the Minister will confirm that the clause will be interpreted in the narrowest possible way.

The hon. Member for Bath referred to an aircraft being in a public place. By the nature of their duties

many of the personnel will be with the public at their place of work when they are tested. One is again reminded of the recent case that was sensitively handled when a British Airways pilot was whisked away for tests to be performed. Can the Minister confirm that the tests will be performed in a private location away from the general public? Presumably it will be somewhere within the airport confines.

Will confidentiality be preserved as far as possible, especially where someone is arousing suspicion that they may be unfit for duty. As my hon. Friend for Uxbridge said earlier, they might have a medical condition that has been compounded by medication. It may even be something as innocent as a cold medicine. One is always innocent until proved guilty. I hope that the confidentiality of the testing will be respected. Will the Under-Secretary tell us how the test results will be made available to the individuals concerned?

As with road, rail and maritime provisions, the procedure for taking specimens is controversial, so I hope that the Under-Secretary will give us an assurance that our concerns about clause 93 have been addressed. Drug testing should usually consist of the subject being required to provide a fresh urine specimen. The circumstances in which it is taken are important. It should be done in private and as close to the aircraft as possible in case the specimen fails, thus allowing the individual to report for duty in the usual way. I am not sure whether any time lapse is envisaged for individuals who prove positive in specimen urine testing. If the individual proved to the satisfaction of the constable that he was still fit to perform his work, would he be allowed to do so?

That should apply to drug and alcohol testing. Currently, drug testing is used more widely; where we do not have the oral swab, a fresh urine specimen is taken. What of the time lag between the urine sample being taken and the eventuality of the person being found innocent? Would an individual be prevented from carrying out his duties on a particular day? As for alcohol testing, in normal circumstances, an evidential breath analyser is used. Will the Under-Secretary confirm that it is the same type of breathalyser used for road traffic offences—and nothing more sophisticated than that? Again, what is the time frame within which the results are determined? If the result were negative, could the person carry on and perform the requisite duties?

My hon. Friend the Member for Westbury referred to his background as a steward. A split sample taken by an individual would usually be analysed only in cases where the outcome was disputed. The medical review officer usually provides a choice of evidential laboratories to supplement samples taken by a particular company. The cost of the analysis is currently borne by the employer, so will the Under-Secretary confirm that that will continue under the new provisions?

In responding to departmental questions in the House today, the Secretary of State touched on the

Wheeler report. Where a police constable in uniform reasonably suspects that a person is committing an offence under clause 90, he is invited to apprehend that person and perform the tests. Will the constable himself undertake that duty? I was taken by the content of a question put to the Secretary of State by one of his hon. Friends—I am not sure which—and I believe that clause 93 provides a powerful argument for rationalisation and co-ordination among the police. Will the Under-Secretary tell us whether the airport police or, in the event of a heightened state of security, a military man or Army officer could be involved, or would such an officer be excluded as not caught by the Bill?

I should like clarification on specimens. Who will the police constable be? Will a member of the local police force be invited to take a blood, urine or breath sample or will that be someone from the Metropolitan police, in the case of one of the London airports?

On cost, will the Minister take the opportunity to explain whether he expects that the company will pay, or whether the charge will be added to the general burden of the taxpayer?

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

Order. The Minister does not have to respond to the amendment, because it has been dealt with.

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

Has the hon. Member for Bath withdrawn it? He confused me because he mentioned his amendment.

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

It may assist the Under-Secretary if I tell him that the amendment was not called by the Chairman, in view of a drafting error in it. I therefore raised under clause stand part exactly the same points that I would have made under the amendment.

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

I think that part of the confusion has arisen because we have clauses and amendments with similar numbers.

Clause 93 aims to replicate as far as possible existing drink-driving legislation for other transport modes, as in the earlier part of the Bill, on the setting of maximum alcohol limits and associated enforcement powers. It adopts the relevant sections of the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 on the testing regime for suspected drink-drivers, amended where necessary to suit aviation. The advantage of that is that police officers will be broadly familiar with the legislation from the outset and able to use tried and trusted procedures developed from the road traffic sector when testing suspects in the aviation sector.

The hon. Member for Vale of York mentioned random testing. The clause says nothing on that. The police will carry out tests on the grounds of reasonable suspicion, as they do on the roads and will do, now that we have accepted that part of the Bill, in the maritime sector. It is anticipated that the tests will be of the same type as those used for road traffic offences. The hon. Lady asked whether the tests would be carried out in private. I hope that a urine test would not be carried out in public. I am sure that great good

sense will prevail in such matters. There is a fair amount of experience of carrying out such tests on people suspected of driving a motor vehicle under the influence of drink. Similar procedures will probably apply here.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

My point was not facetious. If the urine test proves negative, and there is no drug or alcohol in the system, the falsely accused person should be allowed to carry on as fit for work, because they have passed the test. Where will the urine sample be taken and processed to allow that person, if they were fit for work, to continue with their duties that day?

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

In the case of a road offence, a person is asked for a urine or blood test only on the basis of having failed a breath test. It is very unlikely that the urine test would be processed there and then. I daresay that there would be a lapse of time before that was processed and the results were available.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The point is that the circumstances in which such specimens will be taken are very different from those in which a road traffic specimen would be taken. There might be cases in which a whole 747 or 777 flight of people were waiting because there was a reasonable suspicion that someone was drunk or under the influence of drugs. If it was found that they were not, they could then fly the plane to wherever it was meant to go.

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

We are talking about cases in which the person has shown through the initial test that there is a problem. If the person passed the breath test and was thereby fit for work, they would be free to get on with it. If they did not pass the breath test, and other samples were taken, I would not expect the 747 to hang around for some seven days with passengers on board while the blood sample was analysed. The company would probably make other arrangements.

The hon. Lady also raised drug testing. There is no accurate and reliable mechanism for such testing at the moment, but should one be introduced in relation to roads, part 5 of the Bill will allow us to introduce them for the aviation sector, too. To complete my point about confidentiality, there are relevant safeguards for the suspect in the Police and Criminal Evidence Act 1984, and those, of course, will apply.

Costs will come from central funds, and will usually be claimed from the defendant if he is convicted. It is up to the court how much has to be paid. I hope that we can now come to the stand part debate.

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

The Minister is clearly still slightly confused. During this stand part debate, Mr. Hood, you, at least, will recall that I asked the Minister to explain why the provisions relating to roads and shipping refer to accidents occurring owing to the presence of either a car or a ship in a public place, and why there is no such reference to an aircraft in a public place in the clause. We were awaiting the Minister's answer.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I press the point home by supporting what the Secretary of State has said about joined-up police forces. I am most grateful to the Under-Secretary for the assurances and responses

that he has given so far, but he did not say who would do the policingwhether it would be British airport police, the Metropolitan police, privately employed security police or an Army officer, in the rarer cases in which one is present. To which police force will the constable belong for the purposes of clause 93?

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

I apologise to the hon. Member for Bath; I was beguiled by the arguments of the hon. Member for Vale of York.

The amendment to which the hon. Gentleman referred was partly defective in that it referred to maritime personnel. We had discussed that. By including accidents involving aircraft in a public place, a significant number of potential aviation accident sites could be excluded. That is certainly the case for runways and perhaps the greater part of the rest of an aerodrome, where aircraft are moving. I am unfamiliar with having to say such things, but perhaps the hon. Member for Bath will bear with me. He raised a good point, and we would like to return to it later.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 5:15 pm, 4th March 2003

Is the Minister saying that he too thinks that there is a peculiarity that needs to be sorted out? If there is, perhaps he could tell us so in simple language, because I am confused about what he said. Broadly speaking, is the Minister saying, ''Oh, all right Don, we'll look at it''?

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

Try as he may, the hon. Gentleman will not put words in my mouth. His argumentseven that contained in his deficient amendmenthad some merit, and we would like to revisit them at the appropriate time.

Photo of John Randall John Randall Opposition Whip (Commons)

Perhaps it would help the Minister and the hon. Member for Bath if I gave the example of an aeroplane that landed on the A40 over Northolt. That incident did not result from alcohol or drug misuse, but it might be considered to have happened in a public place in which an accident was caused by an aircraft. When the Minister looks at the provision, perhaps he might consider that.

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

The hon. Gentleman makes a good point. That is why we wanted to reflect on the matter.

As was the case with the previous section on maritime issues, any police constable in uniform could carry out the tests. It could be airport or local police, and so on. However, if police other than Home Office police were involved, we would expect there to have been some training.

The hon. Member for South Norfolk (Mr. Bacon) asked some time ago about the NATS operating licence. That section of the Bill had only to do with the individual air traffic controller's licence and was not relevant to the overall NATS licence. I hope that that is helpful to the Committee.

Question put and agreed to.

Clause 93 ordered to stand part of the Bill.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at Seventeen minutes past Five o'clock till Thursday 6 March at five minutes to Nine o'clock.