Clause 92 - Penalty

Railways and Transport Safety Bill – in a Public Bill Committee at 4:00 pm on 4th March 2003.

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Photo of Don Foster Don Foster Shadow Secretary of State for Transport 4:00 pm, 4th March 2003

I beg to move amendment No. 91, in

clause 92, page 39, line 25, leave out from 'conviction' to end of line 26 and insert-

'(i) to a fine not exceeding the statutory maximum, or

(ii) to have his licence suspended and be required to undertake a course of treatment and rehabilitation.'.

I suspect, as I look elsewhere in the Room, that our consideration of this important amendment may be interrupted. It brings us back into the territory of ''Oh, go on then''. At least I hope it does.

It is important for us to be aware that in addition to the penalties that would be meted out to people found guilty of offences under this part of the Bill, other penalties might be imposed by their employers. Under their terms of employment, action over and above anything that is proposed here might be taken against an individual found guilty of an offence under this part of the Bill. The awarding of licences to pilots is an additional issue. Clearly the Civil Aviation Authority has its own regulations on the awarding or removal of licences, which may impinge upon offences created under this part of the Bill.

I am also aware that when we debate penalties or enforcement of this part of the Bill we have relatively little evidence to go on. Until the Bill is enacted we have no prescribed limits or a testing regime. There is no history on which to judge the appropriateness of penalties. However, because the Bill draws on parallels with drink-driving offences, we have a body of evidence on which we can draw. The amendment seeks to add an additional and alternative form of enforcement, which provides for the individual's licence to be suspended and for that person to be required to undertake a course of treatment and rehabilitation.

Photo of John Randall John Randall Opposition Whip (Commons)

Presumably, if the Bill is in line with the Road Traffic Act 1988, a person would have to get his licence back again.

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

I was going to come to that point. The hon. Gentleman is absolutely right. That occurs in some countries where similar measures already exist. Clearly, the person would have to demonstrate that he met the various requirements to have the licence returned. The licence is not simply stopped; he must take positive action to get the licence back.

When we discussed proposals in this area with various bodies, it was interesting to note that Alcohol Concern accepts entirely, as we do, that the legislation in part 3 must be backed up by a remedy in law. However, it questioned whether imprisonment for what can be recognised as a society illness was counter-productive. There is quite an important debate to have on that. Alcohol Concern suggests that anyone so identified should have their licence medically suspended and should be required to undertake a course of treatment and rehabilitation, as the amendment proposes. That organisation goes on to say that the aim of the rehabilitation should be the return of the licence and job, and allowing the recovered individual to return substance-free.

Photo of David Cairns David Cairns Labour, Greenock and Inverclyde

Do I take it, notwithstanding what the hon. Gentleman has said about Alcohol Concern and the question of the appropriateness of imprisoning people, that the amendment would not remove the Government sanction of imprisonment?

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

No, that is right. That is why I said that Alcohol Concern too acknowledged the need for the back-up of a remedy in law. The hon. Gentleman is right: in some circumstances, a period of imprisonment may be deemed the right course of action. In others, a fine might be deemed the right course of action, in addition to any other action that the person's employer might take.

The British Air Line Pilots Association it is of a similar view that non-malicious alcohol or drug abuse is a disease, not a crime, and that we need to amend the Bill to allow the possibility of licence suspension and rehabilitation, rather than addressing the issue inappropriately through imprisonment. Again, however, I am sure that that body would accept the point made by the hon. Member for Greenock and Inverclyde (David Cairns) that imprisonment would be appropriate in some cases. That said, far too often, as the evidence from other countries increasingly suggests, we rely on punishment rather than on the other side of the coin, which is rehabilitation.

With all that in mind, I want to draw attention to some detailed research on drink-driving. As I said, there are parallels that we can bear in mind when we consider the impact of this part of the Bill. The evidence is building up that a very large proportion of people found guilty of drink-driving offences have an alcohol problem, whether or not we want to call them alcoholics. The same is true in respect of drugs.

Back in 1993, the previous Government recognised the value of at least considering rehabilitation, and courses were established to provide rehabilitation opportunities for people convicted of drink-driving. Much more recently, the present Government, having evaluated those trials, concluded that they had had a

high degree of success and had reduced the likelihood of reoffending. The Government have therefore expanded the number of such places. Although they have not placed that in the Bill, they certainly recognise the importance of providing opportunities for rehabilitation.

The purpose of the amendment is to give us the opportunity to hear the Government's thinking on rehabilitation as an additional weapon that can be used in respect of enforcement of part 3. It also gives us an opportunity to seek to persuade the Government, if they are not yet minded to develop in the area of aviation that which they have already developed in relation to motor vehicle driving, that they should do so.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I wanted to quiz the Minister. My understanding is that rehabilitation programmes already exist, so we do not need the amendment. I think that it is understood that drug rehabilitation in most circumstances will be achieved by a professionally recognised drug treatment agency meeting the standards of the Civil Aviation Authority medical branch, that recommendations will be taken into account, and that treatment following a positive alcohol test should be graded in accordance with any underlying problem, but treatment of a long-term persistent drinker should be viewed in a different light from that on someone who has been foolhardy on an isolated occasion.

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

I am grateful to the hon. Lady for reading out the briefing note that most of us have seen. Does she accept that in the particular case that she is talking about the practice is voluntary and there is no requirement on the individual to undergo rehabilitation? Under the amendment, we are discussing not the merits of rehabilitation, which I hope are well accepted by all Committee members, but a possible weapon in the armoury of enforcement when there would be a requirement on the individual to undergo rehabilitation.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

My point was precisely that. I am reading not from a briefing note, but from BALPA's technical policy manual, which I presume the hon. Gentleman has also studied.

I seek clarification from the Minister. The Bill creates a new offence, and I hope that we can discuss the penalties in a brief clause stand part debate, if any of us are able to talk through the lurgy by then. My understanding is that the role of the medical review officer is paramount and that that is already the case, but perhaps the Minister would be good enough to confirm that.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I thought that I should say a few words because, for some four years, I was chair of the all-party group on alcohol misuse. I sympathise with what the hon. Member for Bath (Mr. Foster) said. People with alcohol problems are good at disguising them and often, if they are not caught by random testing, they can avoid being discovered for many years and that is very serious if the people concerned are airline pilots, engine drivers, long-distance lorry

drivers and so on. That is one reason why random testing is important to identify such people, and to persuade them to face up to their problem and to go into rehabilitation so that they can not only overcome their alcohol problem but save their jobs and livelihoods and drive, fly and steer boats safely.

I have some sympathy with what the hon. Gentleman is saying, and I am sure that the Government want to ensure that alcohol problems are treated as a disease and not a deliberate criminal act. Treatment is often more appropriate than imprisonment.

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

I have great sympathy with what my hon. Friend the Member for Luton, North said, which reflects, to some extent, the comments of the hon. Member for Bath, who said that alcoholism is a disease, not a crime. That is true of a pilot or the driver of a car if they are abusing alcohol in their own time and have no intention of flying an aircraft or driving a car, but if they attempt to do that, their alcoholism, rightly, becomes a crime. In the other circumstance, when it could be seen to be a disease, it should be treated as such, but we have a duty to protect the safety of people whose lives could be lost in large numbers because someone who is under the influence of alcohol attempts to fly an aircraft.

Photo of John Randall John Randall Opposition Whip (Commons)

I entirely agree with the Under-Secretary. The other point, with which I hope he will agree, is that we are discussing offences that may be caused not by alcoholism but by people who have simply had a couple of pints of beer. They would be irresponsible and, therefore, committing a crime, but they would not necessarily be suffering a disease.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport 4:15 pm, 4th March 2003

There are gradations. People may be alcoholic, or they may simply have had too many drinks on a rare occasion and made themselves unfit to fly an aircraft. The law would apply equally in both circumstances if they attempted to fly an aircraft or to be part of the cabin crew.

Photo of David Cairns David Cairns Labour, Greenock and Inverclyde

The hon. Member for Bath can correct me if I am misreading the amendment, but would its effect not be that only those whose licences have been suspended would receive the course of treatment and rehabilitation? Those who have been fined or sent to prison will not receive that, because there is an ''or'' in the amendment rather than an ''and.'' If we are going to treat people with this illness, we should treat not only the people whose licences are suspended, but those who are sent to prison or fined. Is that not a flaw in the argument and in the wording of the amendment?

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

My hon. Friend makes a sound point, and I wish to reinforce it, as I am sorry to say that I am opposed to the amendment.

The amendment provides for the suspension of an offender's licence and requires him or her to undertake treatment or rehabilitation on conviction. I understand the sentiments behind the amendment: its intention is good, but it would have only limited application. It does not extend the power to suspend a licence to convictions on indictment. In addition, the

courts would not have jurisdiction to suspend a licence issued outside the United Kingdom—which is probably of relevance to the example of the Balkan airlines, which my hon. Friend the Member for Luton, North raised a long time ago. Aviation is an international industry. Many pilots flying in UK airspace hold licences issued by overseas aviation authorities. Cabin crew would be unaffected because they are not required to hold a licence to perform their duties.

On the principle behind the amendment, I am sure that the hon. Member for Bath agrees that there are many issues of fitness with regard to an individual continuing to hold an aviation-related licence, and that the specialised Civil Aviation Authority is much better able to address them than a court. It already has procedures in place to deal with reported alcohol and drug misuse among personnel who require a medical certificate to validate their aviation licences: those personnel are pilots, flight navigators, flight engineers and air traffic control officers. Once the results of a failed test have been confirmed, the CAA will, on medical grounds, temporarily suspend the individual's medical certificate. The aim of this review is to determine whether the incident was the result of a long-term problem or—as the hon. Member for Uxbridge said—an isolated lapse. Once the assessment has been carried out, a decision can be taken as to the most appropriate course of action, which may include an agreed recovery or treatment programme.

We consider the use of criminal sanctions under this part of the Bill to be wholly appropriate. As I said in my initial remarks, railway workers, professional drivers and—under part 4 of this Bill—mariners, are or will be subject to such sanctions. I cannot see any compelling reason to treat those in the aviation sector any differently. Representations have been made suggesting that peer intervention would be a more appropriate way of dealing with alcohol and drug misuse in the aviation community, and I take on board the points of the hon. Member for Bath about rehabilitation, but the CAA already operates a support service along the lines of the peer intervention programme that has been suggested. Such a system complements, rather than imposes an alternative to, this legislation.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Would the Minister elaborate on what is a peer intervention system?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport 4:19 pm, 4th March 2003

Peer intervention is an intervention by one's peers: assessments are conducted by people who are on the same level of competence

Sitting suspended for a Division in the House.

On resuming—

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport 4:36 pm, 4th March 2003

May I say how unusually pleased we are to see you back in Committee this afternoon, Mr. Hood. Random testing for tea drinking might be appropriate. [Interruption.] It is also lovely to see the hon. Member for Vale of York here.

The hon. Lady asked me about peer intervention. The United States human intervention and motivation system describes such intervention as a pilot confronted by colleagues, managers and family members and encouraged to admit his or her problem. The individual surrenders his or her licence and enters a recovery programme. I hope that that helps the hon. Lady.

This is not a witch hunt, but the travelling public must ultimately be protected from those individuals who can buy alcohol or drugs and who are responsible for flying aircraft. I hope that the hon. Member for Bath will withdraw his amendment in view of its limited application and the fact that the procedure is already in place to meet its aims.

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

I, too, am delighted to see you back in Committee, Mr. Hood.

I am grateful for the Minister's response. Nevertheless, he was not especially helpful on a couple of points. For example, he said that it was inappropriate for the courts to determine whether someone should be entitled to a licence. The exact parallel occurs in relation to driving where the courts do have the power to take licences from people. The Driver and Vehicle Licensing Agency and other bodies are responsible for awarding licences, but the courts can remove them. It does not strike me as illogical for the courts to have the opportunity to remove a pilot's licence in certain circumstances.

The Minister also said that the difficulty with the amendment was that it could not apply to those people who were given licences by other awarding bodies outside the United Kingdom, and that clearly it would not apply to those people who did not hold licences, such as cabin stewards. He is right. However, I must say to the hon. Member for Luton, North that the amendment adds an extra piece to the armoury of the courts in dealing with this issue. The Minister rightly said that the rehabilitation work continues, which I acknowledged from the beginning. However, the difference is whether someone who is convicted is obliged to undertake rehabilitation.

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

The hon. Gentleman draws a parallel between the provisions in the clause and those that relate to the road. In the case of a road offence, there is no equivalent of the Civil Aviation Authority. I dare say that it is entirely possible for courts to ban someone from driving in a motor vehicle for a fixed period of time, but the CAA may hold back part of the medical certificate for longer, until it thinks that the person is medically fit to undertake their duties.

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

The Minister is right. Of course procedures are in place. I am suggesting that the court's armoury for dealing with these matters should include this provision as well. He and I are not in significant disagreement about it. However, I hope he will bear it in mind, when we consider the issue at a later stage, that all the research shows that a high percentage of those convicted of drink-driving offences, and even of those below the drink-driving level, have serious alcohol problems. We are not dealing here with the many people who have a couple of pints once in a blue moon, as he puts it. The

evidence shows that a high proportion of those who are caught and convicted for drink-driving offences have alcohol or drug-related problems.

Photo of David Cairns David Cairns Labour, Greenock and Inverclyde

I have some sympathy with the general thrust of what the hon. Gentleman is saying, but if that is what the research shows, why would his amendment limit the requirement

''to undertake a course of treatment and rehabilitation''

to those whose licences have been withdrawn and not extend it to those who have been fined? Presumably, those who have been fined may have committed a more serious offence and may be in greater need of such treatment. The hon. Gentleman seems to reserve the requirement for the lesser categories, not the more important ones.

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

I understand the hon. Gentleman's argument. Were he to work with me at a later stage in our proceedings to table a slightly more all-encompassing amendment, we might persuade the Minister to support it.

The issue arises as to how severe a penalty it is to be forced to undertake such a course of treatment, and probably have to pay for it. Certainly in Sweden, which already has similar legislation, it is the one penalty that most people do not want. It is considered a severe penalty because of the financial implications and the length of time that one is without a licence. That is in respect of drink-driving. As the Minister rightly said, the circumstances are different in the aviation industry, but there are some parallels. The hon. Member for Greenock and Inverclyde might, therefore, rethink his argument, which seems to be that the removal of a licence and the requirement to undergo a course of treatment is the lesser of the two parts of clause 92.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I hope that the hon. Gentleman is not suggesting that medical intervention of the sort he is describing should be used in a punitive way. If he is, I suggest that he pick up one of the excellent little books that are available in the exhibition area. I have just been scanning through it, and it gives a good résumé of the role of medical practitioners in this area. It might help the hon. Gentleman better to understand their role in ensuring aviation safety.

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

Without having had an opportunity yet to look at what I am sure, as the hon. Gentleman says, is an excellent booklet, I cannot comment immediately. When I have had a chance to look at it, perhaps I may get back to him. He will be aware that, as the Minister has told us, general practitioners and other medical experts already do such work in relation to airline pilots, and certainly did so in respect of drink-drivers in the various trials initiated by the Conservative Government in 1993. If the hon. Gentleman is critical of what that Government did, he is entitled to that view; he can argue that he was not a member of the Government at the time. However, again there is not as much disagreement between us as he suggests.

Keen as I always am that we should make progress on this important Bill and given the discussion that we

have had, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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

As you will be aware, Mr. Hood, on the amendment paper there is an amendment in my name, which quite rightly you have chosen not to select[Interruption.] I have jumped ahead of myself. I apologise to you, Mr. Hood, and to the Committee.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I was wondering what was going on there, Mr. Hood, but I was prepared to give the hon. Gentleman the benefit of the doubt. That was certainly much kinder than what my hon. Friend the Member for Uxbridge said to me about me.

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

Will the hon. Lady remind the Committee what her hon. Friend said about her?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

No, I would not like to place it on the record. It is offensive to both the hon. Member for Uxbridge and myself, and I am sure that he would not want it to be repeated.

I was very taken—or not—by what the Under-Secretary said in response to the hon. Member for Bath. The Under-Secretary wondered whether criminal sanctions were appropriate. Surely he would agree that that debate has been and gone. The penalties set out in clause 92 are fixed at the same level as those currently applying to air crew and air traffic controllers under article 122 of the Air Navigation Order 2000. I am not questioning the accuracy of the explanatory notes; I would not like to make such a serious allegation. The clause will bring the penalty for licensed maintenance engineers under the influence of alcohol or drugs into line with those other aviation staff.

Since the Minister of State did not seem to think that licensed aircraft maintenance engineers have anything like the same critical safety function to perform, will the Under-Secretary explain why they would be covered by the imposition of a criminal sanction in clause 92? Playing devil's advocate—a role that seems to fall naturally to me during our proceedings—it seems that the Government are saying that licensed aircraft maintenance engineers do not have as critical a safety function as a pilot, navigator, flight engineer or flight attendant. However, they are subject to the same criminal sanction. As the Germans say, that is inconsequent, and I am sure that we would not want to include any illogical conclusions in clause 92.

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

The clause sets out the penalty for those people committing an offence under clauses 89 or 90. The penalty for the crew of an aircraft or an air traffic controller under the influence of alcohol or drugs at work will remain the same as currently exists under the Air Navigation Order 2000, as mentioned by the hon. Lady. The clause will bring penalties for licensed aircraft maintenance engineers into line with those for other aviation colleagues.

The hon. Lady asks why that should be applicable to engineers in the same way. I would reply that it is probably for the same reasons that such laws apply to persons driving a car. We are not saying that the provisions should not apply to engineers. Someone over the alcohol limit presents a risk. The Minister of State said earlier that those in jobs where the speed of reaction is important are subject to different levels. Of course, the level of fine a person receives if convicted under the Bill would depend on the courts. They would have to judge the severity of the crime and thereby impose an appropriate fine on the person. I hope that I have helped the Committee and that we can agree to the clause.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I want to leave the Under-Secretary with a thought. It would be difficult to prove that a licensed maintenance engineer was under the influence of alcohol or drugs and that that led to an accident, which is presumably the basis on which he will be tested. However, if I have understood the Under-Secretary correctly, clause 92(a) creates a new offence to extend the penalty to licensed maintenance engineers for causing an accident. That will be difficult to prove, and I am unsure about threatening a criminal conviction to someone whom the Government regard for other purposes as having a less safety-critical role. I argued earlier that such people should have a recognised safety-critical role, but my concern is about trying to impose a criminal penalty on someone when it will be too late to check whether they were under the influence of alcohol or drugs when they performed the duty that led to an accident.

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

For clarity, I should add that such a person would be tested on the grounds of reasonable suspicion, not on the basis that there had been an accident.

Question put and agreed to.

Clause 92 ordered to stand part of the Bill.