Railways and Transport Safety Bill

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Miss McIntosh: I welcome the opportunity[Interruption.] I will not put that on record, Mr. Hood. One would wish to record that the Chairman, as ever, wants the common courtesies of the House and mankind generally to be respected.

Clause 90(1) establishes the offence of being over the limit while carrying out or preparing to carry out specified aviation-related functions. We tabled an amendment to the clause, but it would be helpful to have some further clarification. Subsection (4) says that the Secretary of State will have the discretionary power to make regulations. Are they Henry VIII regulations, and will they be subject to affirmative or negative procedure? Before we reach the relevant clause, it would be helpful to know which procedure will be followed.

As we mentioned on clause 89, which was about being unfit for duty, it is important to note that an offence is committed if

    ''he performs an aviation function at a time when the proportion of alcohol in his breath, blood or urine exceeds the prescribed limit''.

I assume that that time is when someone presents themselves for duty. Will the Minister clarify exactly what that subsection means? The offence also applies if it is deemed to be

    ''an activity which is ancillary to an aviation function''.

I assume that the Minister will confirm that those functions are set out exclusively in clause 91. However, does that mean that the Government have rejected the

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other functions that we may consider as falling within the remit of clause 90?

Mr. Spellar: As the hon. Lady rightly said, the clause makes it an offence for a person to perform an aviation function or ancillary activity while over the specified limit. It sets the maximum level of alcohol permitted in an individual's body for the carrying out of the functions of the crew of an aircraft or an air traffic control officer, and it addresses the additional question, which we discussed earlier, of a higher limit for aircraft maintenance engineers.

The hon. Lady asked whether the power to change the limits by secondary legislation was subject to affirmative or negative procedure, and I can confirm that any changes will be by affirmative resolution. I commend the clause, which suitably clarifies matters for those who work in the industry.

Miss McIntosh: I am most grateful for that clarification. If we have to have new regulations at the Secretary of State's discretion, we will prefer them to be passed by affirmative resolution. My only concern is that the Minister did not say whether this is a comprehensive and exclusive list of functions, but it is more appropriate to consider that later.

Question put and agreed to.

Clause 90 ordered to stand part of the Bill.

Clause 91

Aviation functions

3.30 pm

Miss McIntosh: I beg to move amendment No. 89, in

    clause 91, page 39, line 7, leave out

    'in accordance with the terms of an employment or undertaking'

    and insert—

    'in accordance with the terms of an employment contract or other obligation'.

I assume that the Government intend the employers to police the functions, and that the airline or airport employer is likely to provide proof of an employment contract and line of control and command. That follows on from the fact that a new offence is introduced. The amendment seeks to be more specific about the terms of an employment or undertaking, and relates to my remarks on clause 90 about whether the list was prescribed, or whether the Under-Secretary may want to consider other categories later.

Mr. Randall: I support my hon. Friend, but I am not entirely sure whether our amendment replaces subsection (5), as subsection (6) is unnecessarily verbose and legalistic. Subsection (5) states:

    ''A person who in accordance with the terms of an employment or undertaking holds himself ready to perform an aviation function if called upon shall be treated as carrying out an activity ancillary to the function.''

If the Under-Secretary is not minded to accept the amendment—call me psychic, but I have a feeling that he will not be—perhaps he will explain what the subsection means in simple language.

Mr. Foster: May I suggest a form of words that seems to work? If the hon. Gentleman says, ''Oh, all

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right then,'' the Under-Secretary seems to be inclined to accept them.

Mr. Randall: I am sure that that only works once in a while, which has probably already happened in the Committee.

Mr. Jamieson: I believe that the amendment seeks clarification of what is intended in subsection (5). This is the first time that my explanation will be marginally longer than the speech made by the hon. Member for Vale of York in moving an amendment.

We seek to deter not only personnel from performing aviation functions while under the influence of alcohol or drugs, but those personnel holding themselves ready to carry out those functions at short notice. They may hold themselves ready either under their terms of employment or under the terms of an undertaking. It may be that the word ''undertaking'' has been read by itself, when the intention is that is should be linked to the phrase ''the terms of'', so that we read

    ''in accordance with the terms of an . . . undertaking.''

The clause is intended to cover not only employees such as pilots, but recreational aviators such as members of a flying club. In the former case, we are all aware of the common practice of placing personnel on stand-by duty to cover for last-minute staff absences. Usually, staff will receive remuneration for the inconvenience of such a duty, but in return they are expected to be fit to carry out those functions that they are called upon to perform. They are employed on those terms—hence the phrase

    ''the terms of an employment''

in the clause. However, a person should not be able to endanger the travelling public by reporting for duty while under the influence of drink or drugs, using the excuse that they did not know whether they would be flying that day.

Stand-by duty is usually associated with an individual's terms of employment, but that is not always the case. Clause 91(5), therefore, does not restrict itself to employment contracts, but includes people—I hope that the hon. Lady is listening—who undertake to be on stand-by on any other basis. A recreational aviator, for example, may have given an undertaking to abide by the rules of the flying club. Those rules might provide that pilots' use of an aircraft on a particular day will be subject to the determination of the club on that day and that timings may be variable. In such circumstances the pilot should not be under the influence of alcohol or drugs during the time at which he or she is prepared to fly.

The amendment would make two changes. The first would change

    ''the terms of an employment''


    ''the terms of an employment contract.''

That would make little difference to the clause. However, the second change, which would replace ''or undertaking'' with ''or other obligation'' is

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ambiguous, and potentially changes the sense of the clause. It could limit the obligations to those related to employment. Moreover, some of the terms of an undertaking that we want to cover in the clause may be less than an obligation. In the earlier recreational example, the pilot is not ''obliged'' to fly at the time offered by club, although he or she may have undertaken only to fly at that time, if at all.

I hope that my explanation is crystal clear, and that, on that basis, the hon. Lady will withdraw her amendment.

Mr. Randall: Before I give the Under-Secretary the accord of being crystal clear, I would like clarification of a few further points.

I presume that stand-by crew and cabin staff would stand by at the airport. However, I wonder what would happen if someone were telephoned at home and asked, ''Look, John, we are a bit short on the 9.30 flight going to Khabarovsk. Any chance of you reporting for duty?'' and John replied, ''I'm sorry, but I'm having a bit of a party over here.'' Would he be committing an offence? Presumably he would not, because at that stage he would be saying that he was unfit for duty. If someone were at home and unfit for duty, what would their contractual obligations be if they were eligible for stand-by? Do they, for example, have to be within the confines of an airport?

Mr. Jamieson: The person's contract would almost certainly set out what stand-by meant. It would probably mean prepared and ready to go on duty, so they would be in a place or locating themselves at a place where they could undertake that duty. If so, they would fall under the remit of the Bill. Someone who was not on stand-by and was having a party at their house could probably argue that they were not obliged by their contract to be on stand-by, and could say to their employer, ''I don't want to come in today. I don't want to undertake this particular duty.''

Mr. Randall: May I explore that matter a little further with regard to air crews abroad? Stand-by crews abroad might be at a hotel, for example. When asked to be on stand-by, if they say that they are unfit, that they have had a drink or, more likely, that they have taken cough medicine that will make them feel drowsy and unfit for duty, there may be a contractual problem that their employers may want to take up, but would an offence have been committed under the clause?

The Chairman: Order. If the hon. Gentleman does not mind, I want to be helpful. His point would be well made in the clause stand part debate, but not in discussions on the amendment. I understood that the Minister had invited the hon. Lady to withdraw it.

Miss McIntosh: There is some confusion because the Library note refers to clause 91(2), (3) and (4), not to subsection (5) that carries the offence of being over the limit or unfit to a category that is specific to aviation crews on stand-by. I am grateful to the Under-Secretary for his full reply to the probing amendment, but it is generally believed that the clause is unclear and that the industry's view is that our amendment is clearer. He referred to a person who is understood to be on stand-by, because he has given an

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undertaking. I am still not clear about whether that is because it is within the terms of his employment or because he has been given an undertaking on the one occasion that he will be on stand-by.

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