Clause 99 - Territorial application

Railways and Transport Safety Bill – in a Public Bill Committee at 10:30 am on 6th March 2003.

Alert me about debates like this

Amendment made: No. 81, in

clause 99, page 43, line 18, at end insert—

'( ) Subsection (4) does not affect any rule of law or enactment (including an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament) concerning the right of a constable in Scotland to board an aircraft or enter any place for any purpose.'.—[Mr. Jamieson.]

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

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The Minister fleetingly referred to his assessment that a large additional cost is not expected to arise from the Bill. The territorial application of clause 99 provides a good opportunity to question him more closely on the issue. The explanatory statement informs us that it is difficult to quantify the costs to the public purse of the introduction and enforcement of an alcohol limit for aviation. The Minister mentioned that many airports make a contribution to airport costs, but I am unsure whether they cover all the police costs, and this legislation could add significantly to those. The same

issues with regard to police resources apply to mariners, we are told.

The lower blood alcohol limit for aircraft crew and aircraft controllers would mean that a number of existing police roadside screening devices will need to be modified to be capable of indicating a fail at the new aviation limit. We are told that the anticipated cost of developing the necessary software changes, obtaining type approval and modifying a minimum number of existing devices would be in the region of £17,000. Is that a conservative estimate? Is it a definitive estimate? Might the limit go up or down? Precisely how many devices would have to be modified? As the Minister rightly said, we should bear it in mind that we are not just considering aircraft and airport terminals, but air traffic control, baggage handling and maintenance hangars. At many airports—for example, Stansted, with which you will be familiar, Mr. Hurst—the air traffic control tower and maintenance hangar are some considerable distance from the main passenger facility. I query the figure of £17,000 for the cost of modification. The Minister might want to revise that.

We are told that a limited number of more modern screening devices would need to be purchased by those police forces exclusively using older screening equipment not suitable for modification. Each device costs around £450, but the number of new devices required would depend on the extent of aviation activity in the police area. Bearing in mind the fact that many carriers will not be British, and will not necessarily be using the same terminal, that raises a question about the number of devices that would be required.

The Lord Chancellor's Department has said that the associated policy costs to the courts as a result of additional prosecutions could be absorbed within existing resources. Compared with his pension or wallpaper, those provisions might seem modest. This is an opportunity for the Minister to say that, bearing in mind the number of foreign, as well as domestic, carriers using UK airports, a considerable number of people may have to be tested.

We are told that the territorial application will apply to any

''function or activity performed or carried out in the United Kingdom,''

and any

''flight function performed or flight activity carried out on a United Kingdom aircraft.''

We seek clarification from the Minister that that will cover all US and any foreign carriers for the provisions of part 5 and that the territorial application will extend to any person using or flying into or out of a UK airport. For that reason, we believe that the costs may be considerably higher.

In the Government's view, the alcohol and drug provisions to which clause 99 applies will not require recruitment of more public sector workers, although there will be additional responsibilities placed on existing police officers. With the increased security

and current terrorist alert, that will be at a time when police resources are at a premium, so it would be helpful to know precisely how many police officers are required. I hope that the Minister will confirm that it will apply to all foreign carriers using facilities at our airports, baggage handling and air traffic control and other facilities falling within part 5, in which case there could be considerable implications for police time.

Will the Minister clarify whether flight function under section 91(1)(a) is indeed aviation function? I imagine that he will, for the purposes of clause 99, say that it covers all functions and that it is not limited to flight functions that will be covered in territorial applications. Clause 99(2) states that,

'' ''United Kingdom aircraft'' means is an aircraft which is registered, in accordance with the enactment about aircraft, in the United Kingdom.''

However, I hope that all carriers using facilities at our airports will be covered.

I also hope that the Minister will confirm that the Orders in Council mentioned in subsection (3) will be subject to affirmative resolution and that they will not be smuggled through under the negative resolution procedure.

There is concern in the industry over whether the words ''function'' and ''activity'' are used here only in relation to aviation function. Can the Minister clarify whether we are to understand that those words are used with regard to aviation function and to activity ancillary to an aviation function? If so, would it not be better and clearer to include a full definition? I hope that the Minister will see fit to give a fuller definition.

It may be normal to issue a code of practice. I know that the Department for Transport has had discussions with various parties in the industry, and it has been stated that there will be associated codes of practice for the testing provisions. However, it would be very helpful, to clarify clause 99, if a code of practice could be published, perhaps following consultation of the House and the industry. It is generally understood that the Bill will result in a tightly defined group of individuals being targeted for testing. I hope that that will apply to both foreign and UK carriers. It is important for the people working for those carriers that the defined groups are not misinterpreted. They should include only employees for whom impairment is an issue. It would be helpful if a code of practice could explore any potential difficulties and if the Department could keep an open door on continued dialogue on such issues between the industry and the regulators when drafting such a code. Are the Government minded to draft such a code? At what stage of proceedings might it be issued?

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 10:45 am, 6th March 2003

I want to pick up on two points that the hon. Member for Vale of York has made, and shall then add a further one. First, the hon. Lady rightly asked the Minister to suggest what costs might arise as a result of the applicability of this part under the territorial application described in clause 99. She referred solely to alcohol testing. As the Minister has acknowledged, we are a long way behind on drugs testing in comparison with what has been compared

with what has been done on alcohol testing, but one assumes that there is no doubt in the mind of the Government that there is a need to carry out research and to develop accurate means of testing for drug offences. Can the Minister assure me that that work is going on? Will he acknowledge that costs will be involved in the drug abuse, as well as in the alcohol abuse, aspects of this part?

Secondly, the hon. Lady raised questions on the definitions in clause 99(2) of ''flight function'' and ''flight activity''. She asked whether those were exactly the same as the definitions of aviation functions in clause 91. I am confused over why there are different terminologies, especially as clause 99(1)(a) refers solely to ''a function or activity''. Since we have had definitions of an aviation function, a flight function and an activity ancillary to an aviation function, I am not sure which definition clause 99(1)(a) refers to when it says ''a function or activity''. There is probably some confusion in terminology.

Thirdly, when we discussed part 4 of the Bill, on shipping, we were very clear that the areas covered were United Kingdom waters. I am sure that it is a complete error on my part not to have this knowledge, but I hope that the Under-Secretary will assure me that we are clear about what is meant by the phrase

''carried out in the United Kingdom''.

Reference has already been made to flights coming into, and leaving from, the United Kingdom, which would require them to be outside the immediate geographical area of the United Kingdom. Is there an equivalent to United Kingdom waters in respect of aviation?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

At a previous meeting of the Committee I referred to a rather frightening flight from Plovdiv, which I experienced some 18 years ago. I assume that if a flight on which the crew were drunk were to enter UK airspace, a passenger could quickly report the crew to the police at the airport after the plane had landed—safely, one hopes. I hope that at that point there would be sufficient grounds for testing and for taking action against the crew.

In the case of cabin crew, the matter may not seem quite as serious. But we can imagine an emergency landing in which the crew had to look after children and elderly people and get them off the aircraft quickly. If the crew were clearly inebriated, the situation could be as tragic and dangerous as if the pilot were under the influence of alcohol.

I hope that people entering UK airspace on foreign carriers, which are perhaps not as responsible as some of the more established carriers in Britain, will be able to report crew who appear to be inebriated to the police and that action will be taken. If that were to happen, there would be hope that, in future, airlines would make absolutely certain that such things never happened on their aircrafts. Clearly, if the crew were taken away, the aircraft could not be flown and the airline would have all sorts of financial difficulties, as well as the loss of reputation. I hope that it will be easy for action to be taken once an aircraft has entered UK

airspace and landed at Gatwick, Heathrow or wherever.

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

That was a helpful and useful intervention. The clause extends the provisions to aviation functions and ancillary activities, when carried out either within the United Kingdom or on a United Kingdom aircraft anywhere in the world. The clause also allows the Crown, by Order in Council, to extend the provisions of this part of the Bill to the Channel Islands or British overseas territories. The police powers of entry contained in clause 95 will not, however, apply in Scotland where common law already provides the police with the necessary powers.

The hon. Members for Vale of York and for Bath raised the issue of costs. Three of the four roadside screening devices currently in use in the United Kingdom have the ability to provide a digital read-out of the level of alcohol in a specimen of breath. We are liaising with police representatives, the Home Office and the forensic science service to confirm the suitability of using that facility for the testing of suspects. However, we are aware that 14 of the 51 forces in the United Kingdom might be equipped with only the old screening devices, which might not be suitable for use at the aviation limit. It will therefore be necessary for those forces to acquire a number of the newer devices.

As the explanatory notes set out, the cost will typically be in the region of £450 per device. The number of devices required will depend on the area concerned and whether a permanent police presence is maintained at the aerodrome. A large airport, such as Gatwick, might require five or six suitable devices on its own, whereas the same number of devices could cover the whole of a county force area with no major aerodrome. The decision about the number of devices required and their deployment will fall to the respective chief constables in those areas.

The question of who is expected to pay has arisen several times in our discussions. Given that only a limited number of devices will be required, police forces will, rather than requiring the purchase of the entire stock of equipment, respective acquire the equipment as necessary. The development of a digital facility on screening devices should enable their use on the road as well as for aviation purposes. We are currently checking with police representatives to confirm which forces would need to acquire the new equipment.

Clause 99(1)(a) refers to

''a function or activity performed or carried out in the United Kingdom''

However, to answer the hon. Member for Vale of York, the provision would cover United States or other European airlines when appropriate. The offence applies in full to all staff employed by all civilian carriers visiting UK airports. I hope that that puts the hon. Lady's mind at rest.

The hon. Lady asked about a code of practice. We are discussing that matter with the Civil Aviation Authority. Any guidance to industry would, of course, be publicly available.

The hon. Lady also asked about the explanatory notes. In discussions with the Home Office and police representatives, we are examining the possibility of using an existing digital readout. Facilities already exist on three or four screening devices, and, although they will require fresh approval, it is likely that the cost will be less than the £17,000 quoted in the explanatory notes.

The hon. Member for Bath raised the important issue of drugs. As he will know, research is currently under way into roadside testing. It is a complex and difficult problem and the different effects of various drugs are being assessed. It is difficult to assess what level of impairment drugs cause. Whereas we now have clear indications of the effects of alcohol, the effects of drugs are far less clear. There is another complication: drugs are often used in combination with other drugs or alcohol. If some form of drug test were to be introduced in the future, provisions could be introduced to make the regulations apply to aviation.

''Flight function'' refers to UK aircraft abroad and a wide range of activities is covered in the UK—maintenance and so forth.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That raises the question of who would perform the testing on the aircraft while it was abroad. We have been told that the police perform testing in UK ports and ancillary facilities—in airports, maintenance hangars and baggage handling areas. Who would be required to perform the testing for a UK flight out of Stockholm or Hong Kong?

There is genuine concern in the industry about the definitions of aviation function, ''flight function'' and ''flight activity''. Why have the words ''function'' and ''activity'' been used? We heard the Under-Secretary's reply and we know that the provision will apply in subsection (3). However, for our understanding of the Bill and its applications, for the courts that may be asked to rule on the provision, and, especially, for the industry that will be subject to the provision, it would help if the clause defined

''a function performed or activity carried out on an aircraft which is registered''

for the relevant purposes. The provisions are, I note, covered by common law in Scotland. I hate to draw the conclusion that Scots law is superior to English in this respect, but it is regrettable that the same common law provision does not exist in England. We have identified a problem in this debate, with respect to the difficulty of testing for drugs. Regardless of whether someone is driving a car, flying a plane or undertaking related ancillary duties, drugs and alcohol remain in the blood and affect the body for different periods of time. That fact will lead to difficulty.

I regret that the Minister has raised more questions than he has answered. I think I understood him to say that clause 99(1) applies to most carriers in certain circumstances, whereas it applies to all carriers visiting UK airports. I wonder if I misheard.

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

I do not recall saying that. It applies to all carriers in United Kingdom airspace.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

And presumably to all UK carriers wherever they operate. It would have been preferable for functions performed and activities carried out to be defined. The issue has already caused controversy and disquiet in the industry. It is incumbent on the Minister to let the Committee know who will carry out drink and drugs testing for the purposes of part 5 for a UK carrier flying back from, say, Hong Kong or Stockholm.

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

I do not know whether the Minister has raised more questions than he has answered. He has certainly not answered a question that I raised. The hon. Member for Luton, North (Mr. Hopkins), who repeatedly referred to United Kingdom airspace, but did not use the phrase

''carried out in the United Kingdom''

was praised for his helpful contribution. I am sure that both he and I believe that the provision applies to United Kingdom airspace, but I am surprised that the Minister has not yet clearly said so.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I was making the perhaps rash assumption that United Kingdom airspace meant the United Kingdom, and that the term ''United Kingdom'' would cover United Kingdom airspace.

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

Like the hon. Gentleman, I make that assumption. However, it would be helpful if the Minister would clearly say that that is the meaning, not least because, in discussing shipping, we expressly use the phrase ''United Kingdom waters''.

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

I can make it clear that ''United Kingdom'' means United Kingdom airspace, but the hon. Gentleman will realise that there is some difference between that and the maritime provision, in that boarding an aircraft in flight would present more difficulties than boarding a ship that was under way.

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

I am sure that the Minister is right; I shall not attempt to debate the question of disembarkation in such circumstances. I am glad that we have established that the term covers United Kingdom airspace as well as the ground on which aircraft remain stationary while passengers embark and disembark. It might have been helpful if that had been clearly set out in the Bill.

My other question may not have an answer. Perhaps I should not even bother to pursue the point, but I am still confused about the definitions. Subsection (2) says:

''In subsection (1)—'flight function' means a function falling within section 91(1)(a) to (f)''.

Clause 91(1)(a) to (f) lists a range of items that are specifically defined as ''aviation functions''. I do not understand why those two different terms have the same definition. Nor do I understand why subsection (1)(a) refers to ''a function''. Is it an aviation function, or is it a flight function? Or is it just some other function so far undefined? That is the point that the hon. Member for Vale of York made. There is confusion about which each of those functions is. Is a flight function in subsection (2) the same as an aviation function, and which type of function is a function in subsection (1)(a)?

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

The answer to the first part of that last question is no. A wider range of activities than just flight functions is covered. For example, maintenance is covered in clause 91(1)(b). Only flight functions and flight activities on United Kingdom aircraft are covered by clause 99. For that reason we need a suitable narrower definition.

Question put and agreed to.

Clause 99, as amended, ordered to stand part of the Bill.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at Seven minutes past Eleven o'clock till this day at half-past Two o'clock.