Clause 89 - Being unfit for duty

Railways and Transport Safety Bill – in a Public Bill Committee at 2:30 pm on 4th March 2003.

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Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

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

I am sorry that I was unable to be here this morning, but it was my colleague's turn. I understand that he encouraged Committee members not to drift into irrelevance and repetition during stand part debates. I am thankful that he drew that to Committee members' attention, and I shall watch for it rather closely over the next few hours.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

May I warmly welcome you back, Mr. Hood? It is a great pleasure to see you occupying the Chair again, and we shall observe your strictures with the usual health warning because we obviously do not want to incur your wrath in any shape or form.

We had literally 90 seconds to discuss the clause in our previous sitting before the bell tolled. Conservative Members wish to record their support for part 5 in so far as it applies to flight and cabin crew, air traffic controllers and licensed aircraft maintenance engineers in the United Kingdom. We also welcome the fact that it applies to the crew of aircraft registered in the United Kingdom, wherever in the world they might be.

I referred to the Government's consultation. I shall deal with the definition of a person who is ''unfit for duty'' in relation to aircraft and to other modes of transport. The Committee will recall that I declared an interest in British Airways. It has come to my attention from the newspapers that the pilot who was under investigation at the start of our consideration has lost his rather well-paid—£100,000 a year—posting. That was because he consumed the equivalent of one glass of wine before he checked in to fly back from Sweden—that was an expensive experience for him.

The Road Traffic Act 1988, which we discussed this morning, sets out requirements governing offences involving the influence of drink or drugs on a person when using a motor vehicle. The blood alcohol limit prescribed is

''80 milligrammes of alcohol in 100 millilitres of blood''—

0.8 promille. Under the Act, the police may require a sample of breath, blood or urine for testing. We shall discuss limits in more detail later and we have tabled an amendment relating to that. A person is deemed unfit to drive if he or she is above the limit and drives, attempts to drive, or is in charge of a motor vehicle on a road or other public place.

The Transport and Works Act 1992 covers offences involving the use of drink or drugs by those employed to provide public transport by rail, tram or other guided transport systems. As under the Road Traffic Act 1988, the prescribed blood alcohol limit is 80 milligrammes of alcohol in 100 millilitres of blood, although the rail companies have agreed an alcohol action level of 0.29 promille. The Act allows the police to require a sample of breath, blood or urine for testing.

Rail travel legislation applies to any staff with power to affect the movement of a vehicle, for example, a driver or conductor, but also covers maintenance staff. In addition, an obligation is placed on the operator of the transport system to exercise due diligence to ensure that drink or drug offences are not committed by the staff that the operator employs in those capacities.

Following the Marchioness disaster, drink and drug use in the maritime industry has been examined. We support the call for action. Research was undertaken on the scope of the problem, and the measures that could be taken to deal with it. In the view of the Government, the results were largely inconclusive. The way forward is still being considered. When we consider the other clauses flowing from part 5, the function or activity being performed by the member of personnel in question will be relevant.

In July 1996, some considerable time ago, the then Government undertook the initial consultation. It is important that the Committee ponder for a moment why it was felt that the consultation was necessary. It was the result of the safety recommendation of the aviation accident investigation branch and the joint aviation requirement on commercial air transportation that had recently been adopted by the Joint Aviation Authorities. The introduction of provisions on alcohol and drug testing of safety-critical personnel in civil aviation was deemed to be worthy of review.

As with the maritime industry, it is safety-critical personnel who are particularly important in relation to this matter. Under article 57 of the Air Navigation Order 1995, it is an offence for anyone to act as the member of an aircraft crew. Under article 85, it is an offence for an air traffic controller or a maintenance engineer to operate while under the influence of drink or a drug to such an extent as to impair his or her capacity to act. However, the order did not set a blood alcohol limit or provide for testing people suspected of a drink or drugs offence. I am delighted that there is lot of common ground between the then Government and the present Government in that regard.

Following a light aircraft accident in 1991, the aviation accident investigation branch recommended that the Civil Aviation Authority initiate action to amend article 57 of the Air Navigation Order to require air crews suspected of an offence under the article to provide a sample for testing. The Civil Aviation Authority accepted the recommendation at that time, but could not make the changes under section 60 of the Civil Aviation Act 1982, under which the order was made, unless it was amended to provide the necessary power to make provision for drink and drug tests.

I referred earlier to the Joint Aviation Authorities' adoption of the joint aviation requirement on commercial air transportation. I know that you do not, Mr. Hood, like me to use jargon, so I give the full title; it is called JAR-OPS in the jargon. It was adopted in, I think, 1996 and had to be implemented by 1 April 1998. In addition to imposing more general requirements, it stated that crew members should not commence a flying duty with a blood alcohol level. It set out what that level was. That provision was agreed after extensive consultation and it effectively represented a zero alcohol limit. I recall that on Second Reading the Liberal Democrats hinted that they would like a zero rate. We would not support that as it is totally impractical.

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

Although there are arguments that justify a zero limit, the hon. Lady will be aware, from the Order Paper, that we have submitted amendments in relation to drivers and other categories of people that would reduce the limit to 50 milligrammes per 100 millilitres. We think that that would be the most appropriate level.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That will be a matter for debate. Nevertheless, I understand that a substanceperhaps ethanolexists naturally in the blood and that even legal medicines may contribute to a test registering above zero. That has a bearing on what the Liberal Democrats said on Second Reading.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

Does not my hon. Friend agree that a way around the conundrum would be to establish limits with a base in the evidence, not in empirical figures, although that is tempting, and say, ''Above that level your performance of this particular task is likely to be adversely affected''?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I will not be accused of answering for the Government again. I shall leave that to the Minister. The debate comes back to how we would define being unfit for duty. While an alcohol limit can be set under the powers provided by the 1982 Act, such a limit has no practical use without the ability to test for blood alcohol levels when an offence is suspected. We welcome the fact that for the first time it will be possible to test.

What do the Government believe to be the scale of the problem? I understand that, as of 1996, the aviation accident investigation branch investigated on average 350 accidents and serious incidents every year. At that time, the last occasion on which alcohol was reported to be a causal factor was the light aircraft incident in 1991. That resulted in the recommendation that I mentioned earlier. However, in approximately 80 per cent. of cases, the branch uses a report form completed by the pilot. The Civil Aviation Authority firmly believes that alcohol is a contributory factor in a number of aircraft accidents each year, but in the absence of testing the true scope of the problem is hard to assess.

At any time, between 40 and 50 professional pilots are being counselled by the CAA for alcohol-related

problems. Perhaps the Minister can confirm whether those figures are still accurate. Approximately 10 pilots per year are added to the programme, which balances the number of people who are removed. Reports of air crew reporting for duty in an unfit state through drink or drugs are very rare. I have already mentioned the pilot who recently lost his position. I do not know how that matter came to the crew's or the passengers' attention, but he was escorted off the aircraft because everybody believed that he was in an unfit state. That case was proved, but I believe that it was a rare occurrence.

Even when air crew are reported it is difficult to take enforcement action under the present arrangements, because there is no power to take and test samples from suspected offenders. The CAA has, since 1996, been able to mount only one prosecution for an alcohol offence. Can the Minister update us on the figures between 1996 and 2003?

In the past eight years the CAA has been notified of eight cases of drug use, all involving marijuana. There were five notifications from private pilots who declared a history of marijuana use prior to receiving their licences. Of those, three currently hold medical certificates. The other three notifications involved individuals who declared a history of drug use while holding a licence. Of those, only one—again, a private pilot—now holds a valid medical certificate.

Air traffic controllers and to a lesser extent maintenance engineers generally work under strict supervision and the scope for serious alcohol or substance abuse to go undetected is more limited than for air crew. That sets out the background. It would be helpful to have more up-to-date figures. I have a copy of the British Airline Pilots Association technical policy manual. As I mentioned just before we rose this morning, there is some concern about the time of testing and the time that a person is deemed to be unfit for duty. That goes to the heart of how successful part 5 will be. The BALPA medical study group says that the present situation with regard to professional air crew in the UK is not indicative of any general problems with drug use. Alcohol abuse, while not unknown, is fortunately rare.

I am sure that BALPA would wish to raise the timing. If the timing of the testing is to be on recruitment prior to taking up a position for the first time, that will be highly appropriate. If it immediately followed or was in connection with an accident, that would also be non-controversial. One category is described as giving due cause for concern. Can the Minister set out the circumstances that give due cause for concern? It is generally regarded that the testing should be non-invasive. There should be no need for any skin penetration or removal of body parts such as hairs, nail clippings and scrapings. That must be a basic tenet of any scheme. According to the BALPA handbook, drugs are generally tested from a urine sample and alcohol by breath analysis. Those are the currently acceptable methods.

I repeat the request that I made in connection to parts 2 and 3. I am very taken by oral testing by swab.

Was that discounted and if so why? Obviously the BALPA technical policy manual is very helpful in that regard. It shows the extent to which testing already takes place.

I hope that the Minister will take this opportunity to confirm that in all probability there will not be random testing. That is a controversial area. If an airline wished to introduce random testing it would have to negotiate that with its employees, covering every category of worker and the airports, in so far as safety-critical staff are employed at airports too.

I am hesitant to include in the Bill a requirement for random testing. However, as the Minister will know, one Labour Member—I believe that it was the hon. Member for Liverpool, Riverside (Mrs. Ellman)—is on the record as saying that she would like an amendment to introduce random testing for airline personnel. I imagine that such an amendment will be tabled at a subsequent stage of the Bill. How would the Government react to that?

BALPA insists that any testing programme should be based on a written contract between management and employee representatives. I have some sympathy with that. It should include acceptance of a drug and alcohol-free workplace, which would include restaurants and all offices, at all times. Clearly, airline pilots and crew have time to eat lunch, which we no longer have; that is a source of envy for us. The spirit and intent of the programme must be accepted from the boardroom down.

It is especially important that the purpose and intent of the testing should be clearly stated and that concerns should be addressed. Confidentiality is essential. I applaud British Airways for the sensitive way in which it handled an incident with a pilot, which occurred in the past month or two. Results or information must never go to outside parties such as customers or the press. Drugs to be included in the testing programme and alcohol concentration levels should be specified. For alcohol, there should be a cautionary zone in which a failure is not triggered but flying duties are not undertaken. Apparently, that is the situation in the United States of America. The Government may see fit to extend it to this country. Office and shop floor workers should be sent home.

Those considerations go to the heart of what I said just before we rose this morning about whether the Government will narrowly define ''unfit for duty''. Obviously, if a passenger aircraft carrying 100 passengers or more is involved, there is not just the damage that could be done to the craft and, more important, its occupants but the damage that could be done to buildings and infrastructure on take-off, landing or at any stage of the flight. Such a situation does not bear thinking about.

The Bill could be more explicit on how the test results, rehabilitation and right to return to work will be handled, what possible appeal procedures will apply, what the frequency of testing will be and, more especially—this is something that we will return to in more detail later—who will pay for the programme of testing and underwrite any costs of rehabilitation subject to a person testing positive or

costs of compensation in the case of dismissal. Presumably, that is an internal matter for the airlines. I do not believe that the Bill deals with those issues.

The industry is concerned that testing should not be random. It should be at specified times, such as on the cusp of taking up employment, in connection with or in the immediate aftermath of an accident, when due cause is given, or when, as the BALPA manual indicates, someone has been part of a rehabilitation programme and is coming successfully out of the programme and back into work.

I understand that there were some positive reactions during the consultation from most of the industry as to the categories that should be specified. It is important in clauses 90 and 91 to specify the prescribed limits, particularly in connection with actual aviation functions. I hope that at the very least we can insist that everyone who will be subject to the tests will be perceived to have a safety-critical function. For example, in its response, the Civil Aviation Authority indicated that they should apply to all unlicensed maintenance staff, that it may be appropriate to have a higher limit for cabin crews and maintenance personnel, presumably referring to the different functions that they perform, and that there should be routine testing after accidents and more emphasis on drugs abuse. In its view, random testing should remain an option.

I hope that, if the matter that I am about to raise is not covered under clause 89, the Minister will indicate under which clause it will be covered. How will the Bill be enforced outside the United Kingdom? I think that the UK pilot who lost his job was about to fly from Stockholm in Sweden to the UK. At the time the CAA raised concerns about the reporting of suspected offences, which I have echoed.

The CAA also said that private pilots, cabin crew and maintenance engineers could be subject to less stringent alcohol limits than flight crews and air traffic control operators. We can probably have this debate shortly, when we come to discuss other clauses. In the interests of simplicity and ease of administration, it is my fervent desire that we have a one-size-fits-all definition of what constitutes being unfit for duty in terms of alcohol and drugs. That would make how the Bill is to be applied much clearer.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North 2:45 pm, 4th March 2003

I want briefly to take issue with the hon. Member for Vale of York (Miss McIntosh) about random testing. I assure Ministers that, if the Government choose to propose random testing, I will support it and I have no doubt that a number of other Labour Members will do so too. I speak from personal experience, not as a pilot, but as a passenger who once suspected that all the crew on an aircraft were drunk. Some 18 years ago, when I was flying back from Plovdiv by Balkan Air on a very old Russian aircraft, the cabin crew were openly drinking vodka in the cabin and were clearly drunk. When we arrived at Gatwick, the plane lurched vigorously up and down, which terrified all those on board. I strongly suspected that the pilot had also been taking vodka during the flight.

I feel strongly about the issue. In particular, random testing should be applied to pilots from countries where they are perhaps less scrupulous about drinking and flying aircraft. I am sure that BALPA members are sober on all occasions and thoroughly responsible, but on that occasion, the crew from Balkan Air were certainly not and there may be other countries in which crew are less scrupulous about not drinking before they fly their aircraft.

I just wanted to voice that view, which is opposed to that of the hon. Lady. If the Government choose to introduce random testing, I will certainly support it.

Photo of John Randall John Randall Opposition Whip (Commons)

I have a great deal of sympathy with the hon. Gentleman. Although there was no frequent-flier scheme on Aeroflot and Air Mongolia, I know exactly where he is coming from. I have only one point to make. We support the idea of alcohol and drugs being incompatible with flying, but I wonder whether the Government have done anything about pilot tiredness. Obviously, there are two pilots but, as we know from driving, tiredness is a major source of concern. The issue is probably not within the remit of the Bill, but I thought that I would take the opportunity to ask the Government about their policy.

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

Obviously, a number of Committee members have now learned the advantages of flying on British airlines. I wonder if my hon. Friend the Member for Luton, North (Mr. Hopkins) was going to put whichever undesirable regime he was visiting at the time on the register of interests.

A number of questions were posed about how the offences would be enforced overseas. The Air Navigation Order 2000 applies to all British registered aircraft wherever they are in the world. The current proposals will adopt the same approach. In many cases, that could involve testing a person once they have returned to the UK, but it may be possible to prove an offence, for example, of being unfit through alcohol or drugs while outside the UK by using the evidence of other crew members or passengers. On the question of tiredness, I understand that operators are required to have a flight and duty time scheme to prevent air crew from becoming fatigued.

On random testing, I draw the Committee's attention to the grounds in the table, which indicates that there has to be reasonable suspicion in order for a constable to take action. Oral testing by swab is not currently envisaged. However, were it to be introduced on the roads, clause 93(2) would allow it to be introduced in aviation.

The hon. Member for Vale of York quoted some figures on the Civil Aviation Authority. I am pleased to inform her that those figures are correct. I understand that referrals to the CAA currently run at about 12 to 15 per year. I commend the clause.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 3:00 pm, 4th March 2003

May I come to the Minister's rescue, as his hon. Friend the Under-Secretary clearly is not doing so? I hope that he is feeling better.

On random testing, I wonder whether I could interpret a nod or shake of the head into the official record. I heard what the hon. Member for Luton, North said, and I do not know what the attraction is that makes both him and my hon. Friend the Member for Uxbridge (Mr. Randall) go to these places in the Balkans using such interesting airlines. As the Minister said, there are many attractions in flying with more regular British carriers, which would certainly tempt me. If there is to be random testing, I should prefer it to be carried out on a basis agreed sensitively between the airlines as employers and their employees in whichever category they are employed. I imagine that because of the confidential nature of testing, to which I hope the testing laws will be sensitive, that would be difficult.

Will the Minister give a nod or a shake as to whether we will be able to discuss the timing of the testing when we have discussed the table?

Mr. Spellar indicated assent.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That is marvellous. Perhaps I could hold my comments until then. I welcome the Minister's comments in response to the anxiety expressed by my hon. Friend the Member for Uxbridge that, as with drivers, we are sensitive to the fact that we do not wish pilots, air crew or anyone operating in a safety-critical way with an airline or Russian airport to be fatigued in any way. We welcome the provisions in that regard.

I am delighted that we are making some progress toward the acceptance of oral swab taking or, as I prefer to call it—it is a lovely expression—the oral mucosal transudate. I clearly understood the Minister to say that the Government might be minded to introduce that for road transport. As this is probably my last opportunity during these proceedings and since it is unlikely to be adopted before the Bill leaves this place, I point out that the taking of evidence by oral swab could have certain advantages to commend it taken in conjunction with the remaining tests.

We would prefer that only those who are deemed to have safety-critical functions should be declared unfit for duty. We will consider the matter further under clause 93, as the Minister of State said. I hope that we can return to the issue of random testing elsewhere in the Bill.

Question put and agreed to.

Clause 89 ordered to stand part of the Bill.