Schedule 6 - Convention on International Carriage by Rail

Railways and Transport Safety Bill – in a Public Bill Committee at 3:15 pm on 6th March 2003.

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Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 3:15 pm, 6th March 2003

I beg to move amendment No. 52, in

schedule 6, page 65, leave out lines 12 to 17.

I must limit my remarks purely to the amendment, so that we can discuss the schedule in the stand part debate. We want to delete paragraphs 2(d) to (g) because it would be inappropriate for regulations to

''amend an enactment . . . apply, disapply or modify the effect of an enactment . . . confer jurisdiction on a court''


''confer a function (which may include a discretionary function) on the Secretary of State or a person appointed in accordance with the regulations''.

For several reasons, the changes set out in paragraphs 2(d) to (g) would best be achieved through primary legislation.

If the Government sought to amend an enactment—this Bill and many others before the House amend previous legislation—it would be right and proper for this House and the other place to have an opportunity to debate and amend the proposals. For the same reason, it would be only right and proper for the Government to

''apply, disapply or modify the effect of an enactment'',

through primary legislation. It would be inappropriate for them to do so through secondary legislation—regulations, orders or other statutory instruments.

Equally, it would be more appropriate to confer jurisdiction on a court through primary legislation; it would be inappropriate and improper to do so by means of regulation, order or other statutory instruments. Similarly, the Secretary of State, or a person appointed by him under the regulations to act on his behalf, may confer a discretionary or a compulsory function. Again, that would be a sufficiently important matter to require primary legislation to be submitted in the usual way to the House.

I am taking advice from many senior right hon. and hon. Friends who have been in the House for a considerable time and for substantially longer than I have. They agreed with me that it is improper and inappropriate for the Government to try to do that by way of regulations. I am sure that the Minister would agree that the Government would not want to do anything that could be perceived as improper or inappropriate.

We ask the Government to support our amendment by deleting the provisions and insist that the objectives covered by paragraphs 2(d) to (g) should be pursued in primary legislation. In the regrettable case that the Government are not minded to agree, will the Under-Secretary explain why it seems to him proper to achieve those ends by regulation, preventing right hon. and hon. Members from scrutinising such changes as amendments to enactments or the conferring of jurisdiction on a court or a function on the Secretary of State? That would appear to be a slightly disdainful gesture towards the House.

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

The amendment could have substantial effects, so it is proper to deal with each of point in the amendment.

Clause 100 and schedule 6 are intended to give the necessary powers to implement the new convention concerning international carriage by rail. I am sure that hon. Members will have noted that clause 100(1) expressly limits regulation-making powers solely to the purpose of giving effect to the new convention text. Regulations may not be made for any other purpose.

Each of the specific powers that the amendment would remove is necessary to give full effect to the convention in United Kingdom law, so that the United Kingdom can comply with its international obligations. Without those powers, which, as I said, are limited to the purpose of giving effect to the convention in the United Kingdom, the domestic implementation of the convention would be frustrated. Importantly, Parliament will have the opportunity to scrutinise the Government's intended use of the regulation-making powers through the affirmative procedure.

The amendment would remove four powers set out in paragraphs 2(d) to (g), which could be used in regulations giving effect to the new convention, so I shall explain the need for each of them. Subparagraphs (d) and (e) enable regulations to amend an enactment and to apply, disapply or modify the effect of an enactment. It is important that it should be possible to amend any United Kingdom, Scottish, Welsh or Northern Irish legislation that is incompatible with the United Kingdom's obligation to give effect to the convention. Paragraph 2(d) will permit that.

The power in paragraph 2(e) would enable the United Kingdom to give effect to aspects of the convention by the most expedient means. That could be by modifying existing statutory provisions or by applying them in the context of the convention. In some cases that will be far more efficient than drafting completely new provisions that largely repeat existing legislation. An example would be the implementation of the new appendices F and G to the convention, on the validation of technical standards for railway material and technical admission of such railway material into international traffic. The most efficient way of giving effect to those appendices would probably be to modify or apply existing regulatory provision such as the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994, the Railways (Interoperability) (High-Speed) Regulations 2002, and the enforcement provisions of the Health and Safety at Work, etc. Act 1974.

Paragraph 2(f) enables regulations to confer jurisdiction on a court. Establishing a proper means of enforcing the provisions of the convention is an essential part of giving effect to it. Rail industry parties and customers will have rights and obligations under the convention and it will be necessary for the regulations to specify in which circumstances the provisions of the new convention can be enforced in a UK court and which court is to deal with such matters. One example would be where a contract

between a train operator and a third party—for example, a vehicle owner, a passenger or freight customer or an infrastructure manager—had been entered into in the UK, and the terms of that contract fell under the requirements of the convention. If the terms of that agreement were breached by one party, the convention would require the UK to ensure that it provided for the parties to take the matter to court, should they not be able to resolve the matter between themselves. Paragraph 2(f) will allow our regulations to make such provision.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 3:30 pm, 6th March 2003

I might be missing something, but my understanding is that every contract of that nature specifies the law by which it is governed, and, in most circumstances, that is English law. Is the Minister saying that paragraph 2(f) would overrule whatever law the parties agreed should apply to their contract? Any contract must state to which jurisdiction and law the parties wish to submit themselves in the event of a dispute, and there are many disputes relating to contracts. Is he saying that such a provision of contract law would be overridden by paragraph 2(f)?

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

I did not say that it would override contract law. It will specify in what circumstances the provisions of the new convention can be enforced in a UK court, and which court is to deal with the matter.

Paragraph 2(g) enables regulations to confer functions on the Secretary of State or a person appointed in accordance with the regulations. That power is necessary, in particular, to enable the regulations to specify the authority competent to grant technical admission to rolling stock in the UK, as required by article 5 of appendix G to the new convention, in addition to the making of applications by the UK for the validation of technical standards and prescriptions under articles 5 and 6 of appendix F. It will also allow the Health and Safety Executive to be designated, if appropriate, as the enforcement authority for aspects of the new convention, in particular, for its provisions relating to the technical standards and technical acceptance for rolling stock and infrastructure. The Health and Safety Executive already carries out several similar enforcement functions in the railways sector under the Health and Safety at Work, etc. Act 1974.

I hope that I have been able to satisfy the Committee that the powers set out in paragraphs 2(d) to (g) are necessary to give proper effect to the convention and that there will be adequate opportunity for Parliament to scrutinise the Government's use of the powers. On that basis, I hope that the hon. Lady will withdraw her amendment.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That clarification was welcome, if not completely clear. Paragraph 2(f) has not been explained to my satisfaction. I would have thought that any contracting parties would set out which law applied to their contract, and I am slightly concerned if that is to be overridden by the schedule.

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

I assure the hon. Lady that English law would still be applied. Paragraph 2(f) could not be used to overrule the law. It just says that provisions may require the parties to go to the UK court on a COTIF dispute.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That minor clarification is helpful. These matters are, perhaps, more complex than they first appeared. We will keep the matter under review and might return to it at a later stage. Meanwhile, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the sixth schedule to the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

We are told by the explanatory notes that clause 100 provides the Secretary of State with the power to make regulations to give effect to the new COTIF, and that such regulations must be approved by both Houses of Parliament. The schedule details the provisions that may be included in regulations made under clause 100. Some railways legislation on matters addressed in the new COTIF is already made at EU level. In those areas, the European Community has the right to act in place of the EU member states in international railway matters.

We are led to believe that, in order to recognise that, some aspects of the new COTIF remain the responsibility of the UK, while others are the responsibility of the European Union. The regulations under clause 100 will be made partly under the powers of this Bill, and partly under section 2 of the European Communities Act 1972. That could lead to confusion. We are also told that it is not expected that the implementation of COTIF under UK law will require any significant additional public expenditure or additional public manpower. However, we heard during our little debate on amendment No. 52 that it will create a substantial amount of work. That work could be already going on. It could be work done by dedicated individuals under the current COTIF.

Can the Minister tell us whether the regulations and the schedule will relate to a broader, more wide-ranging power? Many of my right hon. and hon. Friends would argue that enabling regulations to be drafted under clause 100(1) or section 2 of the European Communities Act 1972, as specified in the schedule, would be an open sesame to a plethora of additional regulations, statutory instruments and Orders in Council. It would be helpful if the Minister could tell us which courts and tribunals currently rule in that regard in the United Kingdom. He mentioned that paragraph 2(f) would enable jurisdiction to be conferred on a UK court. Which courts and tribunals fall into that category?

We are enthusiastically in favour of the interoperability provisions. The channel tunnel was a monumental achievement under the Administration of Mrs. Thatcher.

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

If the hon. Lady is so enthusiastic about the interoperability directives, can she tell me—

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I did not refer to the directive.

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

If the hon. Lady is so keen on the interoperability provisions, can she tell me whether she believes that the technical specifications for interoperability in relation to safety, which arise through the interoperability procedures, should have precedence over the various regulations in relation to safety on our railways provided in this country, or should we muddle along, trying to operate both side by side?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I could, but I shall not, because that is not pertinent to this portion of the Bill.

At the time of the Margaret Thatcher Government I was embarking on my political career as a humble advisor to the Conservatives in the European Parliament. I remember going along to the policy unit of No. 10, which is a place that I have not visited for five and a half years, for obvious reasons. It was interesting to be privy to the negotiations at that time on a project that was not initially conceived in the form mentioned—it could have been a flexi-link, a bridge, or a mix of a bridge and a tunnel. However, I believe that the channel tunnel will remain a sterling monument to interoperability from which many other projects will flow.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk

In commenting on my hon. Friend's point, I say that I am also enthusiastic about the sterling monument to interoperability that she talks about. In fact, in South Norfolk we speak of nothing else. However, more important than my great enthusiasm for the interoperability provisions is my concern about the plethora of regulations that might be forthcoming, to which my hon. Friend referred. Does that not show that William Shakespeare was right when he wrote, in ''Henry VI part 2'',

''The first thing we do, let's kill all the lawyers''?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I would not say that, as a non-practising member of the Faculty of Advocates, but it is good to know where one's friends are.

On the point that my hon. Friend the Member for South Norfolk (Mr. Bacon) raised in support of my comments about open sesame and the plethora of regulations that will appear, we are concerned about the scope for

''transitional, supplemental or incidental provision.''

I hope that the Under-Secretary will put our minds at rest, that there have not been such provisions under COTIF, which was introduced during a transitional period, and that there would be no great need for such provision, because that would be very difficult indeed.

The Under-Secretary mentioned the validation of a technical standard, which is referred to in sub-paragraph (3) of paragraph 3. I would imagine that much of COTIF's work refers to the validation of a technical standard and the adoption of a uniform technical prescription. The Minister's Department will have its work cut out, because our gauges are still in large part different from the gauges used in continental Europe. What scope is there in the schedule and COTIF for such possibilities—one hesitates to use the word ''harmonisation'' because no one uses that term anyone, and I gather that the word is ''toning''? Is there a desire to proceed on that?

I am reminded of the fact that Eurotunnel and Eurostar facilities are now operating through the channel tunnel. We were promised direct regional services from the north of England and Scotland, in particular from Edinburgh, Newcastle and York. The east coast main line serves the Vale of York and would have been of special interest to me and to those whom I represent in that respect. Such services would have been very welcome indeed, and it is sad that those projects seem to have failed. It would be helpful to know whether the provisions in subparagraph (3) of paragraph 3 were inspired with that ambition in mind.

Paragraph 6 says:

''Regulations may provide a criminal or other sanction in connection with a duty arising under the Convention or the regulations.''

However, that offence would not be ''punishable with imprisonment'', nor would it be

''punishable on summary conviction with a fine exceeding the statutory maximum or level 5 on the standard scale.''

I jolly well hope not. The whole Committee would agree that it is extremely important that such sanctions should be considered in primary legislation. Why was it not deemed appropriate to set out the sanctions in the Bill? Can the Minister tell us what the sanctions under the present COTIF are? Will the Minister explain the regulations to make provision to prevent double recovery? Are they in existing legislation or are they new provisions?

I am deeply concerned to see that international law, on matters which one always assumed to be the province of domestic law, has, through the treaties of Nice, Amsterdam and Maastricht, crept into Community competence. I hope that the Minister will put the Committee's mind at rest that judgments will be enforced in the usual way by UK courts free from the interference of the European Court of Justice and its interpretations. Even though I have the highest regard for those who serve on the European Court, and in particular for Judge David Edward and Judge Nicholas Forwood, transport is a matter for our own courts to determine. I wonder whether, without wishing to cause too much excitement among Conservative members, there is any scope at all for interpretation by the European Court of Justice.

Photo of Richard Bacon Richard Bacon Conservative, South Norfolk 3:45 pm, 6th March 2003

As it happens, I visit the European Court of Justice next week. Is there any message that my hon. Friend would like me to carry to it? Perhaps something along the lines of ''Get back in your box''?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I regret that I will not be able to join my hon. Friend on that visit, as the Committee will still be meeting next week.

Will the Minister take this opportunity to rule out any jurisdiction by the European Court of Justice and assure us that transport will remain a matter for our courts?

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

Clause 100 and its associated schedule 6 provide the powers to enable the new version of the international rail convention—COTIF—to be incorporated into domestic UK law. We expect the new text to come into force late in 2004.

The present version of the convention is incorporated through the International Transport Conventions Act 1983. That Act is not sufficiently flexible to deal with the new COTIF.

Paragraph 1 of the schedule provides, with clause 100, that regulations may be made only to give effect to the new convention. Paragraph 2 provides the detail of the power, extent, scope and circumstances in which regulations under clause 100 may be made in order for the convention to be given effect. Paragraphs 3 and 4 provide for regulations to cater for changes to the convention and for most of those changes to flow directly into UK law.

That deals with technical changes to the uniform rules made by committee processes under the convention and which come into force automatically unless a member state objects within four months. Such changes include the drawing up of the list of uniform technical rules and prescriptions to be used for rolling stock and infrastructure under the adoption of uniform technical prescriptions appendix and changes to that list. These will need to come into effect in UK law automatically. We intend that more substantial modifications that are made by the general assembly of COTIF should first be approved by Parliament. To clarify the matter for the hon. Lady, all regulations made by virtue of this clause and schedule will be made under the affirmative procedure.

The hon. Member for Vale of York asked which courts would have jurisdiction in this country. The county court and, if appropriate, the High Court will have jurisdiction. As such, any cases will be a matter for United Kingdom reports. She asked about extra costs and regulatory burdens. A convention is already in force, and we do not anticipate any extra costs for industry.

There was a question as to whether there will be a plethora of regulations. I can give an assurance that there will only one set of regulations, not a plethora, as suggested by the hon. Member for South Norfolk.

The purpose of the transitional provision about which the hon. Member for Vale of York asked is to allow the switch from the current domestic implementation to the new domestic implementation to go smoothly. She also mentioned the validation of technical standards. The technical standards put forward for validation reflect both European specifications and UK national standards. Both reflect the particular requirements of the British network.

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

The Under-Secretary suggests that the TSIs and industry standards in the UK are appropriate and reflect the needs of our network. Does he accept that we have still not had a clear answer as to who is responsible for adjudicating on issues of conflict between the two? Was he rather surprised when the hon. Member for Vale of York, in answer to my intervention, said that she knew the answer to that question but was not going give it? At our meeting on 11 February, she told the Committee that if she knew the answer to that question, she would

be in Government. Clearly, now that she knows that answer, she aspires to move forward.

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

I am not sure whether I am answering a question to which. the hon. Member for Vale of York already knows the answer. European law clearly sets out when national standards or TSIs apply. I hope that that helps the hon. Gentleman.

The hon. Lady asked me about double recovery, saying that the provisions are the same as the existing 1980 convention.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Before we leave the point on TSIs to which the hon. Member for Bath dragged us back, one hesitates to usurp the role of Government. Therefore, one would wish that the Minister would respond to the question. He said that European law sets the standards that apply, but who would decide? Would one have to apply to a UK court?

There was also mention of a tribunal. The Minister said that only a county court or the High Court would have jurisdiction. Which tribunal, if any, would have that authority? Who would decide what the applicable EU law was?

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

That is an interesting question, on which, I am sure that inspiration will come to me at any moment.

The hon. Lady asked about sanctions under the existing COTIF. The convention does not make provisions that require such sanctions, but the new COTIF does. She also asked about enforcement of judgments. The European Court of Justice is relevant in the enforcement of COTIF, because the sanctions will be the same as at present.

Some inspiration has arrived. European law is included into UK law, and UK law will enforce the implementation of the regulations.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

The question is who decides. Clearly, there is either national provision or an EU standard. As I said, if I knew the answer I would be in Government; but I am not in Government so I do not feel that I should give the Committee the answer and possibly be accused of misleading it. It is a simple question. The Liberals are often accused of being muddled in their thinking, but today the hon. Member for Bath has been uncharacteristically precise in his questioning. I repeat the question: who will decide whether it is a European or a national standard?

While the Under-Secretary seeks inspiration, I am interested to note that paragraph 5 might require the attendance of a constable. I presume that costs might be related to that. One wonders in what circumstances the provision might be used.

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

I shall clarify the point, if I may. The UK courts will take a view, but the European law—the directive—is implemented in the UK through domestic regulation.

Question put and agreed to.

Schedule 6 agreed to.