Clause 100 - Convention on International Carriage by Rail

Railways and Transport Safety Bill – in a Public Bill Committee at 2:45 pm on 6th March 2003.

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

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Good afternoon, Mr. Benton. I warmly welcome you to what is becoming a jolly Committee.

Several years ago, the subject of the clause was dangerously familiar to me but, owing to the lapse of time, it is not so now. I am sure that the Minister will deal most eloquently with the background to the clause but I have several points to make about its wide-ranging powers. It is a matter of debate whether the Commission has exclusive competence in such issues. It is always of concern to the official Opposition when competence is classed in an exclusive sense, whether in rail transport or others matters.

The United Kingdom is a signatory to the protocol of Vilnius, which was agreed in 1999. It modifies the convention on international carriage by rail, which is known by its French acronym COTIF; I shall refrain from referring to the French version this afternoon. That was agreed in 1980.

The protocol of Vilnius will need to be ratified by the United Kingdom—and presumably other member states—before it applies to the United Kingdom. We must therefore have the necessary legislation in place to give effect to the new convention when it comes into force. I am sure that the Committee agrees with me and prefers the term ''convention'' to ''COTIF'', because it will make it easier to read our proceedings in the Official Report. The Bill makes the necessary provision for giving effect to the convention.

Like the existing 1980 version, the new convention provides a uniform system of laws that will apply to the carriage of passengers, luggage and freight in international through traffic by rail, and will facilitate the development of that traffic. I understand that there are 41 signatories to the 1980 convention, and that a uniform system of law has been in operation for many

years. The first international convention concerning the carriage of goods was signed in 1893.

Although the United Kingdom will ratify the protocol by means of the royal prerogative, when the new convention comes into force under international law, it will not have force of law in the UK until the relevant provisions of the Bill are brought into force and the corresponding domestic regulations are made. [Interruption.] We welcome back the Minister of State. I hope that he is making a speedy recovery from his illness and will be well for the remainder of Committee stage. I had the same thing and did not take any time off; I find the Bill so interesting that I would have been disappointed if I could not have contributed to each clause.

What will be the status of the convention before the United Kingdom ratifies it? Also, what will be the status of the several other members states that have not ratified the convention? Does that mean that the 1980 convention will remain in place until the new convention is introduced? I have a genuine interest in international law that dates back to my university days. Modesty—that is not the word, as it was a number of years ago—prevents me from saying how long ago that was.

The International Transport Conventions Act 1983, which gives effect to the 1980 convention, is not sufficiently flexible to deal with the new convention. The Bill, combined with the domestic implementing regulations, is designed to provide the flexibility necessary to give effect to the new convention. We hope that the Minister will confirm that not too much leeway will be given to the Secretary of State to make regulations under subsection (1). We hope that that power will be limited to ratifying the provisions of the Bill.

For many Committee members, alarm bells will ring when I say that the new convention brings within its scope certain matters in the competence of the European Community. It is incumbent on the Minister to say whether that is an exclusive competence, or whether it will be shared between member states and the Commission in respect of the implementation of the part of the convention under subsection (1).

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

The matter of whether the competence is exclusive or shared will be of academic interest, as under draft articles 1 to 16 of the new European constitution, which have been published, even the shared competences only allow member states to act if the European Union decides that it does not wish to. If articles 1 to 16 went through as drafted, it would mean that we could all pack up and go home. Although that might be a sensible idea in the case of certain legislation, it would generally be a retrograde step for Parliament.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I think that the Committee would agree with my hon. Friend. We prefer laws to be made by this institution rather than by another one, but I am sure that my hon. Friend agrees that, if there is an argument, international transport provides a good example of an area where competency passing to the European Union works in the interests of our industry, of those employed in it and of those

seeking to transport passengers and goods internationally by rail. That industry provides an argument that might make it marginally more favourable than we would otherwise think it to be. My hon. Friend made that point well.

In the explanatory notes, there is some discussion about appendices that have apparently been agreed under the convention, and in particular the European Union directives on interoperability of the European rail network. We wish to be told how those appendices will fit in with existing UK law on railways and the new convention. We would be particularly interested to hear how the channel tunnel will fit into the convention in that regard. The services through the channel tunnel are a remarkable example of interoperability of railway infrastructure. I should remind the Committee yet again that I have an interest in Eurotunnel, which is one of the providers of those services, as is Eurostar.

I understand that until the new convention, and in particular article 38, is enforced, there is no mechanism for the European Community—or the European Union as we now call it—to join. I think that the Minister will confirm that until that has happened the EU will have no competence and will not be in a position to join the convention on international rail transport.

I am sure that the Minister will wish to state to the Committee that the Government consider that the provisions of this part of part 6 are compatible with the European convention on human rights.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. The background noise is getting too high; too many people are speaking at the same time. The hon. Lady deserves to be heard.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am grateful to you, Mr. Benton.

We have a particular regard for human rights. We are deeply concerned that, by writing the European convention on human rights into UK law, the Human Rights Act 1998 will have a devastating effect on how this part of the Bill will be implemented and interpreted.

We were told that one effect of the convention provisions of this Bill and the regulations that clause 100(1) gives the Secretary of State the power to make will be to ensure that certain dangerous goods may not be carried by rail. Does that mean that under the present convention certain dangerous goods may be carried by rail on an international journey and that that will no longer be the case because of the convention on human rights? I am reminded of the devastating accident in, I think, the Mont Blanc tunnel in Switzerland. Chemicals exploded and there were several fatalities and serious injuries. There may be some cunning reasons why such dangerous goods should be carried in future, but we seek guidance from the Minister on that.

If the consequences are that the dangerous goods may not be carried by rail, how will the dangerous goods be carried? Will dangerous goods be allowed to be carried by rail through the channel tunnel, or will

that be deemed carriage by rail under the terms of the convention? Will such goods be allowed to be transported by sea? That could cause enormous distress to my right hon. and hon. Friends who represent coastal and shipping constituencies. Indeed, the Under-Secretary of State could fall into that category—Plymouth is a large port. I am always mindful of the interests of the Under-Secretary of State and I wish to be helpful in this regard.

If dangerous goods will not be allowed to be transported by rail under the convention and, if they are not allowed to be transported by sea, I cannot imagine for one moment that they will be allowed to be transported by air. Does the provision refer to some, but not all, chemicals? How will oil, gas and other hazardous products that are produced in the UK be exported in future?

The explanatory notes tell us that dangerous goods will not be allowed to be transported by rail under the new convention, once that is ratified in the UK and applies throughout the EU. The notes say:

''It is considered that where this interferes with a person's economic interests in running a business''—

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 3:00 pm, 6th March 2003

Will my hon. Friend make it clear which convention she is talking about?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The new convention. I am seeking clarification from either the Minister of State or the Under-Secretary. My understanding is that the current convention allows for dangerous goods to be transported. Is this provision a new development? Are the Government saying that dangerous goods can, or cannot, be carried by international rail?

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

I am trying to establish which convention we are referring to—never mind the new one. There are various conventions: the convention on the future of Europe, to which she is not referring, the charter of fundamental rights and the European convention on human rights.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I was trying desperately not to use the term COTIF, but for my hon. Friend's benefit I shall now talk about that, instead of the convention. The convention on international carriage by rail, known as COTIF, forms the basis of clause 100, which deals with the new provisions. I understand that under COTIF there is a potential ban on the carriage of certain goods by rail, that those may be considered to be in contravention, or interfering with,

''a person's economic interests in running a business (protected by Article 1 of the First Protocol)''—

of the European convention on human rights—and that

''this prohibition may be justified on general public interest grounds.''

If that is right, I would like to hear about it from the Minister responsible.

A producer of hazardous goods that are deemed too dangerous to be carried by rail under COTIF may be able to oppose the prohibition on transporting his goods by rail on the grounds that, under article 1 of the first protocol, his freedom and right to develop and enjoy his economic interests have been compromised.

The prohibition on the carrying of certain dangerous goods by rail would also go towards ensuring that the UK upheld article 8, which deals with the right to respect a person's home. That right might otherwise be affected by environmental blight or pollution caused by the carriage of those goods. If chemicals or hazardous products were carried by rail and there were an accident and a spillage, people's enjoyment of their private property or dwelling could be damaged. Such people would, therefore, have a different interest.

Will the new convention, COTIF, which is the basis for the provisions in clause 100, mean that certain dangerous goods may no longer be carried by rail? If that is the case, surely they are too dangerous to be carried by ship or plane, so how will such goods reach their destination? How will firms that need to export such goods be able carry out their business? The most serious charge to be made against the Government is that the Bill may be defective in its current form.

We are told that regulations made under subsection (5) must be

''laid before and approved by resolution of each House of Parliament.''

I hope that the Minister will confirm that that will be done under the affirmative resolution procedure.

The convention raises serious matters, especially about the time lapse between the old convention and the new one. Until the Bill becomes part of UK law, can the dangerous goods prohibited by the clause still be carried by rail and through the channel tunnel?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Thank you, Mr. Benton. It is a great pleasure to be sitting under your chairmanship this afternoon—unexpected, but a pleasure nevertheless.

I have one or two concerns to raise, especially about the aspect of the convention that refers to the separation of infrastructure management from train operations. I am pleased that some flexibility has apparently been built into adopting the convention. I hope that we will not be required to perpetuate or increase the degree of vertical separation that has occurred in the disintegration of our rail industry between rail and wheel.

The problems that have arisen since privatisation have largely been caused by the vertical disintegration between contractors working on track, track management and train operators.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Is the hon. Gentleman saying that he disagrees with a previous leader of his party, who is now a senior commissioner for the UK in Brussels? He set out what the hon. Gentleman describes as disintegration. It became the basis of the European directive that preceded privatisation in the UK. Does he disagree with his colleague?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

Possibly, but I do not want to personalise the issue. I am putting forward a rational case for retaining the integration of train operations with infrastructure management. In the majority of rail systems in Europe, that is still largely the case—TGV, for example. I recognise that there is a drive towards separating train operations from

infrastructure management to market and privatise railways. It is fair to say that Britain has been a laboratory experiment for some of the theories that underlie the convention. That experiment has failed dramatically. One would expect continental railway operators and Governments to say, ''It hasn't worked in Britain, so we don't want it here''.

Private discussions suggest that the Government recognise that the separation has not worked and has been damaging. We should be seeking ways of vertically reintegrating train operations and infrastructure management.

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

Does the hon. Gentleman agree, as a first step at least, it would make sense to allow those train-operating companies that wish to, to take over responsibility for the maintenance of the track on which their trains run?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

If that were to be done, I would prefer it to be done in the public sector. As we are at least at a staging post towards full public ownership, I think that the way forward would be for franchises to be handed to Network Rail, rather than for rail track management to be handed to train operators. An experiment on that basis is possibly going to take place in Britain: a test for finding a way forward and a way out of our difficulties.

I will give one example of the sort of thing that happens. Because train operators run trains on track that they do not own, any damage that the trains cause to the track is not their concern, especially if they are profit driven. They are not going to be concerned about the damage that they cause to the track. That has to be dealt with by somebody else—it is not their problem.

I travel by train every day, and all too frequently I hear wheel flats. I am sure everyone knows that those are caused when the wheel skids on the track and makes a flat metal edge on one wheel, causing a clattering noise. That damages the track over time. Track can last a long time if it is looked after, but if it is battered daily by wheel flats it lasts less time. They cause cracked and broken rails in time. They also cause damage to the train, but the primary damage is to the track.

If there are two separate operators—both of whom have a central financial basis, either for profit or on a non-profit basis—the track infrastructure operator will not be concerned with the train, and the train operator will not be concerned with the track. It is even more ridiculous in Britain because the lathes that are used to regrind the wheels are owned by the owners of the infrastructure, Network Rail. Train operators have to hire the lathes, take their train out of service, which is a cost, and then pay Network Rail to have their wheels reground, which is another cost. There is a great disincentive to do that.

Another factor is that a lot of the units are owned by leasing companies, not by the operating companies, so they have even less incentive to do anything about wheel flats. That causes annoyance and discomfort for passengers such as me who travel every day at the standard operating speed of 90 mph. They hear wheels making a lot of noise and that causes concern,

especially for people who do not have an appreciation of engineering, or of the kind of damage that could be done.

The approach of separating infrastructure from train operations is driven by dogma. The Government are re-thinking their approach, and I am pleased about that. Private suggestions suggest that the Government are aware of the problem, that they will not be going any further down that route, and may reverse it. I hope that that will be the case.

Passenger representative organisations recently suggested at a meeting of the all-party railways group that they should at least test transferring one train-operating franchise to Network rail as a comparator to see what happens and how it works. I hope that that will happen very soon.

Photo of John Randall John Randall Opposition Whip (Commons)

I was just wondering what the convention on international carriage by rail has to say on those matters.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

The explanatory notes have been very useful. They refer to

''increasing separation of infrastructure management from train operators.''

I have a note from one of the trade unions drawing attention to that matter—a trade union with which I have close relations and strongly support. I am not in any way formally related to them; I just agree with its view. Its members drive the trains, are concerned about the problem and see it daily. We should take note of what they say.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 3:15 pm, 6th March 2003

I referred a moment ago to draft articles 1 to 16 of the new European constitution. If the draft goes through, does the hon. Gentleman agree that there may come a time when it will not matter whether he agrees with his trade union friends or not?

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I do not think so. Governments and people will all be sensible in the end. We need railways and railways will continue. We have a plan for the future and in spite of the difficulties that have arisen owing to privatisation, we will get through and will have a good railway system in time. It is right to listen to the advice of those who work in railways, as well as passenger representatives and Ministers.

I do not want to say much more but the important point should be made. The convention suggests that not only Britain but the European Union will move further down a route in the wrong direction—if I may use a railway metaphor. We should keep the integration of train operations and train infrastructure management for the foreseeable future.

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

The convention does not require the opening up of rail markets or the separation of infrastructure management—I think that that is why my hon. Friend used the word ''reflects''. It merely provides for a clear and rational assignment of rights and obligations given that such developments have occurred.

The clause effectively replaces the International Transport Conventions Act 1983, which was passed not by a Labour Government or even a Major Government, but by a Thatcher Government. The international rail convention covers some 41 countries. Those are not only EU and European countries because the convention covers three north African countries. It is part of a long-standing ongoing process of international work on the rail industry, which is done for understandable and sensible reasons.

A question was asked about the status of the convention before it is ratified by other member states. The 1999 convention text will not come into force until two thirds of the signatory states have ratified it, and the 1980 convention remains in force until then. The EU already has competence on elements of COTIF but it cannot exercise that competence until the new text is in force. In the meantime, EU member states act on its behalf in the areas in which the EU is competent.

A question was asked about shared competence. That is not the issue here; it would happen if the UK and the EU could act in the same area. Exclusive competence exists if the UK may act in some areas of COTIF and the EU acts in others.

Regulations made under the clause and the associated schedule would be limited to matters relating to the ratification of the convention. I hope that I can reassure the hon. Member for Vale of York (Miss McIntosh) that that would be done by affirmative resolution.

The hon. Lady properly asked about the position of the channel tunnel under the convention. The channel tunnel falls within the scope of EU interoperability provisions—directive 96/48/EC—and COTIF generally.

I understand that the new convention makes no changes to the dangerous goods that may be carried by rail. Those restrictions are covered by the 1980 convention. It is not affected by the European convention on human rights. Dangerous goods rules recognise that member states have the right to apply specific rules in certain circumstances, and that would include setting rules for a structure with the length of the channel tunnel. I have a very extensive list of the goods that it is prohibited outright to carry by rail—it would almost be a Tom Lehrer moment if I read them all out. The list does not deal exclusively with goods, but often describes the packaging that is required for them. Exports can be accommodated where compounds have to be carried separately, and final assembly can therefore take place only subsequently. Several of the goods are asphyxiants, corrosive or explosive, and the definitions have been covered in previous regulation.

We have had the international rail convention for a considerable time, and it is, quite properly, being updated. The new text will come into force in late 2004, and we will then be able to incorporate it. We do not believe that the current Act is sufficiently flexible to deal with the new COTIF.

Question put and agreed to.

Clause 100 ordered to stand part of the Bill.