Background

100.     This part of the Bill makes it a criminal offence for a person engaged in certain safety-critical aviation activities, to:

• have more than a prescribed limit of alcohol in his blood;

• be unfit to carry out those activities because he has taken drugs or ingested alcohol; or

• refuse to provide a specimen of breath, blood or urine as required by a police officer who reasonably suspects him of committing or having committed such an offence.

It provides for a testing regime where a police officer reasonably suspects a person of committing one of these offences.

101.     At present the only specific legislation to regulate alcohol consumption in the aviation industry is in the Air Navigation Order 2000 ("the ANO") ⁴, made under the Civil Aviation Act 1982.

⁴ S.I. 2000/1562

102.     The ANO makes it an offence for a crew member of an aircraft, an air traffic controller or a licensed maintenance engineer to be under the influence of drink or drugs so as to impair his capacity to carry out his aviation related functions. (See articles 13(8), 65(2) and 96.)

103.     However, the current law does not set a maximum limit for the amount of alcohol in the body or provide police powers for testing people who are suspected of being under the influence of alcohol or drugs.

104.     Following a light aircraft accident in 1991, the Air Accidents Investigation Branch recommended that the Civil Aviation Authority amend the ANO to require aircrew suspected of an offence to provide a sample for testing. This cannot be done until the Civil Aviation Act 1982, under which the ANO was created, is amended.

105.     At the European level, the Joint Aviation Authorities adopted, in 1996, the Joint Aviation Requirements on Commercial Air Transportation (JAR-OPS), which required that aircraft crew members shall not commence a flight duty period with a blood/alcohol level in excess of 20mg/ml. Although JAR-OPS does not have the force of EU law, there is a European Commission proposal (COM 2000/121) to make this part of Community law.

Commentary on clauses

106.     This Bill seeks to ensure that an alcohol-testing regime is put in place in a similar manner to that already existing in other transport modes. The provisions in this Bill therefore largely mirror those of the Road Traffic Act 1988, the Road Traffic Offenders Act 1988 and the Transport and Works Act 1992. The following table shows the clauses of the current Bill which are drawn from provisions in the 1988 Acts and 1992 Act, along with a brief description of their effects.

Clause 89: Being unfit for duty

107.     Clause 89 makes provision similar to that in Articles 13(8), 65(2) and 96 of the ANO. It is now supported by the police powers of arrest and entry in clauses 94 and 95.

Clause 90: Prescribed limit

108.     Clause 90(1) establishes the offence of being "over the limit" whilst carrying out, or prepared to carry out, specified aviation related functions. Subsection (2) prescribes a blood/alcohol alcohol limit of 20 milligrammes of alcohol per 100 millilitres of blood for those activities carried out by aircrew and air traffic controllers, which is a quarter of the limit prescribed by the Road Traffic Act 1988 and the Transport and Works Act 1992 for drivers and railway workers respectively. For the functions carried out by licensed aircraft maintenance engineers, the appropriate blood/alcohol limit will be the same as that in the 1988 and 1992 Acts. The different limits reflect the fact that although licensed aircraft maintenance engineers perform a safety critical role in aviation, they do not necessarily require the same speed of reaction as aircrew or air traffic controllers may need in an emergency situation. The equivalent limits in respect of breath and of urine are also set out in this clause.

Clause 91: Aviation functions

109.     Clause 91 subsections (2), (3), (4) and (5) apply the offences of being over the limit or unfit to people preparing to carry out an aviation function or otherwise holding themselves ready to carry out one of those functions by virtue of being on duty or standby.

Clause 92: Penalty

110.     The penalties set out in Clause 92 are set at the same level as those currently applying to aircrew and air traffic controllers under Article 122 of the ANO. This clause will bring the penalty for licensed maintenance engineers under the influence of alcohol or drugs into line with them.

Clause 93: Specimens, &c.

111.     Clause 93 replicates certain provisions of the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988, amended where appropriate to apply to aviation. This will enable the police to use familiar procedures and practices when enforcing the new legislation in the aviation environment. It will also enable changes in drink/driving legislation to be reflected in these provisions. An example might be a testing regime for intoxication through drugs.

Clauses 94 and 95: Arrest without a warrant, Right of entry

Clause 94 provides the police with the power to arrest suspected offenders. Clause 95 provides the police with powers to board an aircraft or enter any place for an offence under clauses 89 and 90. It spells out that the police may use reasonable force in exercising these powers and that they may be accompanied when doing so.

Clauses 97 and 98: Crown and military application

112.     Clauses 97 and 98 apply the offences created to personnel in organisations such as the police and customs, but not to service personnel operating on military aircraft. The offences would however apply to civilian contractors employed by the MOD, working on or with military aircraft, where they were not subject to service law. Service personnel are subject to separate disciplinary procedures if found under the influence of alcohol or drugs whilst on duty.

113.     Clause 98 quotes definitions taken from the Civil Aviation Act 1982 and the Army Act 1955 respectively. These are as follows:

• "military aircraft" means

(a)     "an aircraft of the naval, military or air forces of any country; or

(b) any other aircraft in respect of which there is in force a certificate issued in accordance with any Order in Council in force under section 60, 87, 89, 91, 101(1)(a) or 107(2) of this Act [Civil Aviation Act 1982] that the aircraft is to be treated for the purposes of that Order in Council as a military aircraft;

and a certificate of the Secretary of State that any aircraft is or is not a military aircraft for the purposes of this section shall be conclusive evidence of the fact certified."

• "Service law" is currently defined as

"military law, air-force law or the Naval Discipline Act 1957"

Public sector financial and manpower cost

114.     It is difficult to quantify the financial costs to the public purse from the introduction and enforcement of an alcohol limit for aviation. The same issues on police resources apply as for mariners. The lower blood/alcohol limit for aircraft crew and air traffic 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. It is anticipated that the cost of developing the necessary software changes, obtaining type approval and modifying a minimum number of existing devices will be in the region of £17,000. 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 in the region of £450, but the number of new devices required would depend on the extent of aviation activity in the police area, and the cost offset by their use in normal road traffic cases. It is not possible to quantify the number of tests that may be carried out, but it is anticipated that approximately 10 to 15 cases per year may be brought before the courts. The Lord Chancellor's Department has indicated that the associated policy costs to the courts as a result of these additional prosecutions, could be absorbed within its existing resources.

115.     Alcohol and drugs provisions, both in the marine and aviation sectors, will not require recruitment of more public sector workers, though there will be additional responsibilities on existing police, marine or legal officers.

Human Rights assessment

116.     This Part potentially engages Article 5 (right to liberty and security), Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

117.     Article 5 is subject to the qualification of lawful arrest on reasonable suspicion that an offence has been committed or for its prevention. The powers of arrest and detention contained in this Part are considered necessary and proportionate and within the qualification mentioned.

118.     Article 6 (which is linked to the privilege against self-incrimination) is engaged principally by the provisions requiring specimens of breath, blood or urine to be provided by a suspect. However, the courts have held that the privilege is not absolute in circumstances where a proportionate response is required to combat a serious social problem. This is considered to be such a case.

119.     Article 8 is subject to the qualification that a public authority may interfere with the right to private and family life provided that it does so in a proportionate manner for the prevention of crime and protection of the public.

120.     This Part is considered to be compatible with the Convention.

Part 6 - Miscellaneous

Clause 100:International Carriage by Rail

121.     This part extends throughout the United Kingdom

Background

122.     The United Kingdom is a signatory to the Protocol of Vilnius 1999 ("the Protocol") which modifies the Convention concerning International Carriage by Rail ("COTIF ⁵") 1980, by presenting a new Convention text ⁶. The Protocol of Vilnius will need to be ratified by the UK, but before that can happen the UK must have the necessary legislation in place to be able to give effect to the new COTIF when it comes in to force. This Bill makes the necessary provision to allow for this. Like the existing 1980 COTIF ⁷, the new COTIF provides a uniform system of laws, which will apply to the carriage of passengers, luggage and freight in international through traffic by rail, in order to facilitate the development of that traffic. There are currently 41 signatories to the 1980 COTIF. Uniform systems of law have been in operation for many years: the first international convention concerning the carriage of goods was signed in 1893.

⁵ An acronym for "Convention Relative aux Transports Internationaux Ferroviaires".

⁶ Miscellaneous No.21 (2000), Command Paper 4873,

⁷ Consolidated text published in Treaty Series No.73 (1997), Command Paper 3812.

123.     Under the 1980 COTIF there are several sets of rules, known as "Uniform Rules" which make provision on:

• contracts for the international carriage of passengers (known as the CIV Uniform Rules)

• contracts for the international carriage of goods (freight) (known as the CIM Uniform Rules) with annexes dealing with, amongst other things, the carriage of dangerous goods (known as the RID Regulation)

124.     COTIF 1980 is being modified primarily to reflect major changes in railway management and operations particularly following EC Directive 91/440/EEC (29 July 1991) on the development of the Community's railways.

125.     In particular, the changes to the COTIF 1980 reflect the following developments in EC Member States:

• increasing separation of infrastructure management from train operators; and

• introduction of open access rights, opening up the possibility of more than one operator on any one network.

126.     The CIV Uniform Rules also ensure that minimum levels of compensation exist for certain incidents throughout all signatory states. These levels have been increased in the new COTIF, which will be of benefit to international rail users generally.

127.     The Protocol of Vilnius signed on 3 June 1999:

• provides brand new CIV Uniform Rules (Appendix A) and CIM Uniform Rules (Appendix B);

• makes RID a free standing Appendix, (Appendix C)

and recognising the importance of these issues for facilitating international traffic introduces new Uniform Rules for:

• Contracts of use of vehicles in international rail traffic (CUV) (Appendix D)

• Contracts of use of infrastructure in international rail traffic (CUI) (Appendix E)

• The validation of technical standards and prescriptions applicable to railway material intended to be used in international traffic (APTU) (Appendix F)

• The technical admission of railway material used in international traffic (ATMF) (Appendix G)

128.     Article 68 and 9 of the Protocol makes transitional provision for contracts entered into under COTIF 1980.

129.     The Protocol and the new COTIF it presents was presented to Parliament as a Command Paper CM 4873 in October 2000.

130.     The new COTIF will come into force three months after the Protocol is ratified by two-thirds of signatories to the Convention. This is unlikely to be before 2004.

131.     Although the UK will ratify the Protocol by means of the Royal Prerogative, once the new COTIF comes in to force as a matter of international law it will not have the force of law in UK until the relevant provisions of this Bill are brought into force and the corresponding domestic regulations are made. The International Transport Conventions Act 1983, which currently gives effect to the COTIF 1980 is not sufficiently flexible to deal with the new COTIF. The clauses in this Bill, combined with the domestic implementing regulations are designed to provide the necessary flexibility to give effect to the new COTIF.

132.     The new COTIF brings within its scope certain matters that are within the competence of the European Community. In particular, the new APTU and ATMF appendices address the same matters as the EC Directives on the interoperability of the European rail network (Directives 96/48/EC & 2001/16/EC). These two appendices were drafted with the objective of achieving compatibility with the developing EC legislation on these matters. In any event the new COTIF recognises for EC Member States that EC law prevails so far as the new COTIF is concerned. The European Community intends to accede to the new COTIF in due course so that it may exercise its competence where it has it. However, until the new COTIF is in force (Article 38 in particular), there is no mechanism for the EC to join.

Commentary on clause

133.     Clause 100 provides the Secretary of State with the power to make regulations to give effect to the new COTIF in the UK. Such regulations must be approved by both Houses of Parliament.

134.     Schedule 6 details the provision that may be made by regulations made under clause 100. There is already some railways legislation made at an EC level on matters addressed in the new COTIF. In those areas, the European Community has the right to act in place of the EC Member States in international railways matters. In order to recognise that some aspects of the new COTIF remain the responsibility of the UK, and others are the responsibility of the EC, the regulations made under clause 100 will be partly made under powers in this Bill and partly made under section 2 of the European Communities Act 1972.

Public sector financial and manpower cost

135.     It is not expected that implementation of COTIF into UK law will require any significant additional public expenditure, nor that there will be an additional public manpower burden.

Human Rights assessment

136.     The COTIF provisions of this Bill are considered to be compatible with the ECHR. One particular effect of the COTIF provisions of this Bill, and the regulations which may be made under those provisions, will be to ensure that certain dangerous goods may not be carried by rail. It is considered that where this interferes with a person's economic interests in running a business (protected by Article 1 of the First Protocol), this prohibition may be justified on general public interest grounds. The prohibition also goes towards ensuring that the UK upholds the Article 8 right to respect for a person's home which right could otherwise be affected by environmental blight or pollution from the carriage of those goods.

Clause 101: Office of Rail Regulation: general duties

137.     Clause 101 makes a minor amendment to Section 4(5) of the Railways Act 1993 by repealing the words shown in bold:

"The Office of Rail Regulation shall also be under a duty in exercising the functions assigned or transferred to it under this Part;

(a) to have regard to the financial position of the [Strategic Rail] Authority in discharging its functions under this Part."

This ensures that the Office has regard to the Strategic Rail Authority's financial position in respect of all of its functions. It is a consequential amendment not picked up in the Transport Act 2000 arising from the creation of the Strategic Rail Authority in place of the Franchising Director. The Authority's financial position, unlike that of the Franchising Director, is not limited to discharging its functions under the Part of the 1993 Act referred to in the deleted words.

Clause 102: Railway safety levy

138.     Clause 102 extends to England, Scotland and Wales.

Background

139.     Under the Health and Safety at Work etc Act 1974, the Health and Safety Executive (HSE) is responsible for a range of regulatory work including inspection activities applied to the rail industry. Since October 1999, there has been a charge for this work, on an hourly basis. Such charges only cover part of the cost of HSE's work on railway safety; for example they do not cover work relating to policy-making or all operational activities.

140.     Ministers agreed that the impact of charging would be reviewed after two years. The review revealed that the existing charging regime was seen as bureaucratic, and stakeholders could not easily budget for charges. HSE held a consultation exercise with industry stakeholders on the principle of a railway safety levy between the end of November and 20 December 2002.

141.     Regulations to require the payment of a levy require primary legislation, because levies cannot be imposed under Regulations made under section 43(2) of the Health and Safety at Work etc Act 1974 (which provides vires for the existing charging regime).

Commentary on clause

142.     Clause 102(1) inserts clause 43A in the Health and Safety at Work etc Act 1974, giving the Secretary of State power to make regulations introducing a compulsory railway safety levy on the railway industry. The Health and Safety Commission will be able to propose such regulations to the Secretary of State after consultation.

143.     Clause 102(2) amends section 28(1)(a) of the Health and Safety at Work etc Act 1974 so that information provided under the proposed regulations will be subject to the provisions of that section.

Public sector financial and manpower cost

144.     As the purpose of a rail safety levy would be to fund the existing and planned railway safety activities of HSE in a different way, it is not considered that there will be any additional public sector financial or manpower costs.

Human Rights assessment

145.     This clause potentially engages Article 1 (right to the peaceful enjoyment of possessions) of the European Convention on Human Rights. The right under Article 1 is qualified by Article 1(2), which says that:

"this shall not in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest, or to secure the payment of taxes or other contributions or penalties."

146.     The Government considers that the provisions of new section 43A are compatible with the Convention.

Clause 103: Road traffic: fixed penalty

147.     Clause 103 is a drafting amendment to correct an error to ensure that Section 76(2) of the Road Traffic Offenders Act 1988 makes sense. It now reads:

"No proceedings shall be brought against any person for the offence to which the conditional offer relates until—

a) in England and Wales, the person by or on whose behalf the conditional offer was sent

receives notice in accordance with subsection (4) or (5) below"

Clause 104: Shipping legislation: application to structures, craft &c.

148.     This clause extends throughout the United Kingdom.

149.     Clause 104 provides a new, extended power for the Secretary of State to make an order so that any shipping provision may be applied, disapplied or modified in relation to things used on water.

150.     A "shipping provision" is defined so that it could include a provision made in this Bill (when enacted) or in the Merchant Shipping Act 1995, or in subordinate legislation made under either Act, or a provision made in or under another Act. To be a shipping provision it must also expressly apply in relation to ships, vessels or boats.

151.     The order may provide for other legislation to take precedence, for example where there are relevant harbour byelaws in place.

152.     The Secretary of State may use the power in order to apply the provisions of the Bill relating to alcohol testing of mariners to users of personal watercraft (such as jetskis^TM ), or to those in charge of chain ferries. Current case law casts doubt on whether these things would otherwise be "ships" for the purposes of Part 4 of the Bill.

153.     An order could also be made in order to apply the UK's merchant shipping regulations relating to the prevention of collisions to personal watercraft, even if they are not being used "at sea". Regulations relating to the survey of ships could be made to apply to chain ferries by means of such an order. And an order could be used in order to clarify the application of other legislation, where the enactment of new legislation might cast doubt - for example under various Acts relating to public health and regulation of activities near the seashore.

Clause 105: Railways in London: transfers

154.     This Part extends to England, Wales and Scotland.

Background

155.     The Greater London Authority Act 1999 (GLA Act) envisaged the transfer of London Underground (LUL) from London Regional Transport (LRT) to Transport for London (TfL) after the Public Private Partnership agreements for the London Underground had come into effect. This Bill provides a mechanism to allow contracts to operate as intended on transfer from London Regional Transport to Transport for London, and on any subsequent transfer between Transport for London's subsidiaries.

156.     The Greater London Authority Act 1999 did not contemplate the possibility of a significant delay between completion of a Public Private Partnership agreement and transfer of the London Underground to Transport for London. This Bill therefore also allows for certain provisions in the GLA Act relating to public private partnership agreements for the London Underground and the special insolvency provisions to come into effect before the transfer of the London Underground to Transport for London.