Clause 91 - Aviation functions

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

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

I beg to move amendment No. 89, in

clause 91, page 39, line 7, leave out

'in accordance with the terms of an employment or undertaking'

and insert—

'in accordance with the terms of an employment contract or other obligation'.

I assume that the Government intend the employers to police the functions, and that the airline or airport employer is likely to provide proof of an employment contract and line of control and command. That follows on from the fact that a new offence is introduced. The amendment seeks to be more specific about the terms of an employment or undertaking, and relates to my remarks on clause 90 about whether the list was prescribed, or whether the Under-Secretary may want to consider other categories later.

Photo of John Randall John Randall Opposition Whip (Commons)

I support my hon. Friend, but I am not entirely sure whether our amendment replaces subsection (5), as subsection (6) is unnecessarily verbose and legalistic. Subsection (5) states:

''A person who in accordance with the terms of an employment or undertaking holds himself ready to perform an aviation function if called upon shall be treated as carrying out an activity ancillary to the function.''

If the Under-Secretary is not minded to accept the amendment—call me psychic, but I have a feeling that he will not be—perhaps he will explain what the subsection means in simple language.

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

May I suggest a form of words that seems to work? If the hon. Gentleman says, ''Oh, all

right then,'' the Under-Secretary seems to be inclined to accept them.

Photo of John Randall John Randall Opposition Whip (Commons)

I am sure that that only works once in a while, which has probably already happened in the Committee.

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

I believe that the amendment seeks clarification of what is intended in subsection (5). This is the first time that my explanation will be marginally longer than the speech made by the hon. Member for Vale of York in moving an amendment.

We seek to deter not only personnel from performing aviation functions while under the influence of alcohol or drugs, but those personnel holding themselves ready to carry out those functions at short notice. They may hold themselves ready either under their terms of employment or under the terms of an undertaking. It may be that the word ''undertaking'' has been read by itself, when the intention is that is should be linked to the phrase ''the terms of'', so that we read

''in accordance with the terms of an . . . undertaking.''

The clause is intended to cover not only employees such as pilots, but recreational aviators such as members of a flying club. In the former case, we are all aware of the common practice of placing personnel on stand-by duty to cover for last-minute staff absences. Usually, staff will receive remuneration for the inconvenience of such a duty, but in return they are expected to be fit to carry out those functions that they are called upon to perform. They are employed on those terms—hence the phrase

''the terms of an employment''

in the clause. However, a person should not be able to endanger the travelling public by reporting for duty while under the influence of drink or drugs, using the excuse that they did not know whether they would be flying that day.

Stand-by duty is usually associated with an individual's terms of employment, but that is not always the case. Clause 91(5), therefore, does not restrict itself to employment contracts, but includes people—I hope that the hon. Lady is listening—who undertake to be on stand-by on any other basis. A recreational aviator, for example, may have given an undertaking to abide by the rules of the flying club. Those rules might provide that pilots' use of an aircraft on a particular day will be subject to the determination of the club on that day and that timings may be variable. In such circumstances the pilot should not be under the influence of alcohol or drugs during the time at which he or she is prepared to fly.

The amendment would make two changes. The first would change

''the terms of an employment''

to

''the terms of an employment contract.''

That would make little difference to the clause. However, the second change, which would replace ''or undertaking'' with ''or other obligation'' is

ambiguous, and potentially changes the sense of the clause. It could limit the obligations to those related to employment. Moreover, some of the terms of an undertaking that we want to cover in the clause may be less than an obligation. In the earlier recreational example, the pilot is not ''obliged'' to fly at the time offered by club, although he or she may have undertaken only to fly at that time, if at all.

I hope that my explanation is crystal clear, and that, on that basis, the hon. Lady will withdraw her amendment.

Photo of John Randall John Randall Opposition Whip (Commons)

Before I give the Under-Secretary the accord of being crystal clear, I would like clarification of a few further points.

I presume that stand-by crew and cabin staff would stand by at the airport. However, I wonder what would happen if someone were telephoned at home and asked, ''Look, John, we are a bit short on the 9.30 flight going to Khabarovsk. Any chance of you reporting for duty?'' and John replied, ''I'm sorry, but I'm having a bit of a party over here.'' Would he be committing an offence? Presumably he would not, because at that stage he would be saying that he was unfit for duty. If someone were at home and unfit for duty, what would their contractual obligations be if they were eligible for stand-by? Do they, for example, have to be within the confines of an airport?

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

The person's contract would almost certainly set out what stand-by meant. It would probably mean prepared and ready to go on duty, so they would be in a place or locating themselves at a place where they could undertake that duty. If so, they would fall under the remit of the Bill. Someone who was not on stand-by and was having a party at their house could probably argue that they were not obliged by their contract to be on stand-by, and could say to their employer, ''I don't want to come in today. I don't want to undertake this particular duty.''

Photo of John Randall John Randall Opposition Whip (Commons)

May I explore that matter a little further with regard to air crews abroad? Stand-by crews abroad might be at a hotel, for example. When asked to be on stand-by, if they say that they are unfit, that they have had a drink or, more likely, that they have taken cough medicine that will make them feel drowsy and unfit for duty, there may be a contractual problem that their employers may want to take up, but would an offence have been committed under the clause?

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

Order. If the hon. Gentleman does not mind, I want to be helpful. His point would be well made in the clause stand part debate, but not in discussions on the amendment. I understood that the Minister had invited the hon. Lady to withdraw it.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

There is some confusion because the Library note refers to clause 91(2), (3) and (4), not to subsection (5) that carries the offence of being over the limit or unfit to a category that is specific to aviation crews on stand-by. I am grateful to the Under-Secretary for his full reply to the probing amendment, but it is generally believed that the clause is unclear and that the industry's view is that our amendment is clearer. He referred to a person who is understood to be on stand-by, because he has given an

undertaking. I am still not clear about whether that is because it is within the terms of his employment or because he has been given an undertaking on the one occasion that he will be on stand-by.

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

Perhaps the hon. Lady was preparing for the next clause and missed my point. I referred to a person being on stand-by along the terms of his employment, but I said that there could be other categories of people, such as those in recreational jobs, who had given an undertaking to take part in a flight. The two matters would be different. I hope that I have clarified the matter.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am not sure that the Minister has clarified the matter. It is probably better that we withdraw the amendment now, but we shall return to it. If we are confused about the meaning of an undertaking, the industry is confused. Such a problem will lead to curious decisions being made.

Amendment, by leave, withdrawn.

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

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

My hon. Friend the Member for Uxbridge has already made certain points about the clause. As for clause 90, I wish to place on record our reluctance to allow the Secretary of State to have more discretionary powers than he may be entitled to have. If he is to be granted special powers under the Bill, can we receive confirmation that they, too, will be arranged by an affirmative resolution of the House? That would be welcome.

We shall seek further guidance about what constitutes being on duty and what constitutes being on stand-by. There seems to be agreement between ourselves and the industry, if not with the Government, that that is not immediately clear from the Bill. I refer to the listing of functions. Given my knowledge of the industry, one or two functions are not listed that could be deemed to be safety critical. Are the Government minded to add to the list or is it to be inconclusive as set out in the Bill?

It is interesting to note that a rugby team that came over recently was deemed to be unfit to play because more than half of the team had gone down with flu. That is a little like the Committee—more than half of this team seems to have gone down with the lurgy during our proceedings. My hon. Friend the Member for Uxbridge suggested that if a member of flight personnel—a navigator or a flight deck attendant—had the misfortune to take some rather strong cough mixture for such a lurgy or flu, that could tip them over the prescribed limit for the purposes of clause 90.

Clearly, given which people are deemed to satisfy the criteria of aviation functions, it is important that different possibilities are allowed for, rather than one course being enshrined in the legislation. Some scope could be left to the managers, employee representatives and others who administer internal organisations. Each airline and each airport wants to run a safe operation. I cannot believe that they would wish to employ anybody who might be in breach of the Bill.

I was slightly surprised at the Minister of State's response to the question raised by my hon. Friend the Member for Uxbridge on fatigue. I do not know whether the Minister is aware that a European flight time proposal is causing great concern in the industry, especially to pilots. The industry believes that that could lead to a regulation that is even more stringent than that which is before us here and perhaps even more stringent than the drink-driving provisions. We shall, no doubt, return to that.

We seek guidance on whether there are omissions here and whether the Government have considered including them. Do they intend to include them now in the aviation functions in subsection (1), or will they allow each airline and airport operating company some leeway to ensure that all those deemed to have a relevant aviation function will be included in the Bill's provisions?

Photo of John Randall John Randall Opposition Whip (Commons) 3:45 pm, 4th March 2003

I shall try not to repeat my earlier point. I am grateful for your help on that, Mr. Hood. Very briefly, if someone reports themselves as unfit, will they still be committing an offence? That was the gist of my remark.

I should like clarification on what constitutes ''during flight''. Presumably that does not mean only when an aircraft is up in the air? From what point does it apply? I know that the pilot is not actually given a set of keys to the aeroplane, but from what point is he, or any person under subsection (1), deemed to be actually in flight? I imagine that that is at some point in the airport or the terminal. I was going to mention that if someone happens to be asleep in their car, with the keys in their pocket, they could be deemed to be in control of the vehicle. I think that that is probably not applicable, but it might apply in the case of small light aircraft.

I have another concern, although perhaps the Minister will tell me that it does not need to be included. There are increasing calls to have on board security personnel—I think that they are being called sky marshals, in the dramatic terms that the papers like to use. That is happening on quite a lot of airlines. The idea that an armed person who has just overdosed on Benylin or worse still just found the miniatures cabinet is unnerving. I wonder whether such people are encompassed by the provisions or whether they would be covered by the Secretary of State's powers.

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

The clause defines those safety-critical aviation activities that will become subject to the offences under this part of the Bill. The defined functions mirror those set out in the Air Navigation Order 2000 as being carried out by the flight deck crew, air traffic controllers or licensed aircraft maintenance engineers.

Those personnel, together with the cabin crew, are already prohibited from carrying out their aviation functions while under the influence of alcohol or drugs. The carrying out of those functions while impaired by intoxicants endangers both the individual and others, including passengers. It is entirely right that such personnel should be subject to a maximum alcohol limit, not only while carrying out those functions but while preparing to carry them out.

It is equally important that personnel on stand-by duty holding themselves ready to perform an aviation function at short notice should be included in the legislation. It should be no excuse for a person endangering the public to argue that they were uncertain whether they would be flying that day. Stand-by duty is usually associated with an individual's contracted conditions of employment, but that is not necessarily always the case. The clause is not therefore restricted solely to arrangements made under an employment contract, but includes any person who is available to perform an aviation function.

The hon. Member for Uxbridge asked about people who report that they are unfit for duty. If a person reported that they were unfit for duty, they would absolve themselves from their contractual arrangement, which they must have made. That is like phoning in to say that one is unfit and cannot undertake one's work because, like most members of the Committee, one has a cold. The circumstances of each case would have to be looked at. The hon. Gentleman alluded to a group of people in a hotel on stand-by in a foreign place. They might well commit an offence if they were contracted and had not absolved themselves of the contract.

Photo of John Randall John Randall Opposition Whip (Commons)

Let me set out the sort of example that I had in mind. The stand-by crew have seen a crew going off in a bus. Something happens on the bus, but in the meantime the crew have had a glass of Scotch. When the phone call comes saying that the stand-by crew have to go the airport, they state that they cannot do it. The airline, which could take disciplinary action against which none of us would argue, would be rightly annoyed that the stand-by crew had broken its contract. I am interested to know whether a crew that said that it did not consider itself fit for duty would be deemed to have committed an offence.

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

That would depend on what was in the contract. If the contract said, ''When you see the bus moving off and the crew going along the road, you can consider yourself no longer on stand-by'' an offence would not be committed. However, the contract of employment would not say that. I should have thought that if someone were on stand-by for a four-hour period, they could not absolve themselves of their responsibilities on the basis of having seen the crew move off. When a person is not on stand-by would depend on their contract.

The hon. Gentleman asked about when an aircraft is in flight. I refer him to the Air Navigation Order 2000, a document with which I am sure that he is familiar. It states that

''An aircraft shall be deemed to be in flight in the case of a piloted flying machine, from the moment when, after the embarkation of its crew for the purpose of taking off, it first moves under its own power until the moment when it next comes to rest after landing.''

I hope that that is clear enough for him.

Photo of John Randall John Randall Opposition Whip (Commons)

The Under-Secretary is very patient with me; I am but a simple man from Uxbridge. The definition that he gave implies that the clause applies only when the aircraft starts moving. People might be

at the airport about to go through with all their gear on when someone notices that one of them is suffering. Under clause 91, would that count as ''during flight''?

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

I have given the hon. Gentleman the definition of clause 91(1)(a). I hope that it is helpful to him.

The hon. Member for Vale of York asked about affirmative revolutions.

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

Indeed, we have had enough of those. If she reads on a little in the Bill, she will see that clause 96 sets out that any regulations under part 5 will be subject to affirmative resolution, which will give the hon. Lady and the rest of the Opposition opportunity to discuss them.

In his second point, the hon. Member for Uxbridge asked about the meaning of ''during flight''. The crew would be covered under clause 91(6) if the aircraft were not in flight. I hope that that answers his point.

Photo of John Randall John Randall Opposition Whip (Commons)

I was waiting for an answer to my question about sky marshals.

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

Perhaps the hon. Gentleman can repeat his question, as I did not hear what he said on the matter.

Photo of John Randall John Randall Opposition Whip (Commons)

I do not want to be accused of repetition.

Photo of John Randall John Randall Opposition Whip (Commons)

Under the scope of 91(1), are sky marshalssecurity personnelcovered?

Photo of John Randall John Randall Opposition Whip (Commons)

Does the Minister think that they should be?

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

No. Sky marshals are a new concept, which is why the Bill contains clauses to allow the Secretary of State to take action later should she or he think it appropriate. There is the facility to return to examine issues against the background of the changing security and safety situation.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

I assure you, Mr. Hood, that I have a new point. I woke upnot that I was asleep; I have been particularly attentive as the Government Whip will confirmwhen I heard reference to the Air Navigation Order 2000, which as the Under Secretary indicates is a matter of great interest. An order will be made under clause 91. Can the Minister confirm whether under clause 91(1)(g) the licence that is issued to NATS to provide air traffic control services in the United Kingdom is permanent or temporarythat is, time-limited?

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

I am sure that inspiration will come to me eventually that will provide a reply to the hon. Gentleman.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

It would be timely to remind the Committee that we were promised several written

notes during last week's proceedings on points that could not be answered in Committee on part 3. Will the Minister give us those answers by lunchtime tomorrow? That will be almost a week since we asked for them. I could laboriously go through each question, some of which relate to the police clauses. My understanding was that we were promised a written answer from the Under-Secretary and the Minister of State.

We have established that some categories have not been included, and I can quite understand why the Government might not want to list sky marshals. We have given the matter some thought. We hope that the sky marshal, who may well be armed on some flights, particularly El Al flights, will be subject to the same prescriptive limits. We will want to return to the point later.

Question put and agreed to.

Clause 91 ordered to stand part of the Bill.