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Lord Berkeley: My Lords, I listened with great interest to all noble Lords who have spoken. I have read the debate in another place on 24th June. I believe that there has been a sad lack of consultation on the order. However, having said that, I certainly believe that the House should welcome the unlimited liability that will now be enforced. In my view that is long overdue.
The noble Baroness Lady O'Cathain, said that some airlines have taken steps to cover themselves. I do not know which ones; I should be pleased to know. In my opinion all we are talking about is how the passenger is told this good news if it is good news. The order does not appear to give the relevant wording. That is wise. It
seems to me that it is a matter of coming up with a form of wording to put on a sticky label on the back of a ticket.Several noble Lords have said that IATA is presently discussing the wording which will reduce three separate documents into one. International organisations have a habit of taking many years to do these things. It has taken many years to bring about unlimited liabilities and a Warsaw convention. I do not see that it is beyond the wit of man to put a sticky label on the back of a ticket as an interim measure until either the wording is sorted out or new tickets are printed with one extra page. There are already two in some cases, and it would need a third.
I am sorry to say that the industry is complaining rather too much. It has taken a long time to get this far. I believe that passengers really would like to know, in big red letters, that if they fly by a certain airline they have unlimited liability protection if something goes wrong. Everybody should welcome a requirement to be told which carriers have that and which ones do not.
Lord Mountevans: My Lords, gold plating has already been discussed, which the House will be pleased to hear takes out 20 per cent. of my remarks; and consultation likewise. I wish to echo a sentiment expressed by the noble Lord, Lord Graham of Edmonton, who put the ABTA view. He could have extended it by saying that there are much wider-ranging travel agency bodies, ones that go further in global terms. It could be argued that Europe is doing so. But we are not discussing what Europe is doing; we are discussing the measure before the House.
Such consultation, be it with IATA, or any other bodies that were mentioned, is essential if the whole concept of inter-line air travel is to continue to work. The provision of information to the industry, and indeed to the passengers, the consumers, must be in a straightforward manner and, equally importantly, in a universally acceptable one. It seems clear from what we have heard tonight that universal acceptability is a long way away.
Surely those two criteria should be subject to much wider consultation--not merely for a once-off, loose cannon action, which seems to be the policy on which Her Majesty's Government are determined to embark. That is an approach which, as several speakers have remarked, can lead only to confusion. Confusion among travel agents has been discussed by many speakers. After all, they issue most of the tickets. There could be confusion among the carriers, particularly those who will be beyond the jurisdiction on the order. Are they to be desperately concerned about British law? Do they even understand English law? The same applies to the travel agents.
Finally, and most seriously, taking up the point made by the noble Lord, Lord Berkeley, the consumer wants easily accessible information. Sadly, I do not believe that this once-off attempt is the way to go about it. Rather, we must look for a globally acceptable form of small print. It is not easy--but then desirable things never are. I urge the Government to work in that
direction. So far as this draft instrument is concerned, the Government should think again. There is time to do so before commencement.
Baroness Hayman: My Lords, we have had an extremely interesting and useful debate. As I anticipated in my opening remarks, the controversies and concerns which I knew existed have been eloquently expressed around the Chamber. I hope that I shall be able to address the many points that were raised. They fall mainly into broad sections with which we can deal. If there are specific questions that I do not manage to answer, I will write to noble Lords.
First, I apologise to the noble Lord, Lord Brabazon, if he has been working from a manuscript-amended copy of the order. It was reprinted on 26th June. I offer my apologies to the House if that copy was not available in the Printed Paper Office. It certainly should have been.
Lord Brabazon of Tara: My Lords, I have in front of me the copy that I obtained from the Printed Paper Office after lunch today. It is the manuscript edition.
Baroness Hayman: My Lords, all I can do is apologise to the House. It is a matter for my department to see what went wrong in communications. I will ensure that that happens.
Most, if not all of the matters raised this evening concern the effect of the regulation on airlines and, in particular, the effect of the information requirement as set out in Article 6. However, some of the concerns raised relate not so much to the implementing order but to the substance of the regulations themselves. For example, the noble Lord, Lord Brabazon, raised the question of the effect on non-UK airlines. All carriers selling tickets in the UK will be obliged to comply with the regulations. If they do not, they are liable to be prosecuted. That comes from the regulations; as indeed do the other issues that the noble Lord raised about ticketless travel, which will become difficult under the regulations. But that relates back to the regulation rather than the implementing order that we are discussing.
It is, however, the implementation upon which most Lords have focused their contributions, and the basic contention put by several contributors is that legislative action is not needed to give effect to the regulation in the United Kingdom. That is common ground between all of us. There is a recognition that the regulation becomes a legal requirement without the need for additional secondary legislation in this country.
Where the difference lies is in our understanding that it is necessary for us to remove any conflicts between existing national legislation and since the regulation contains no penalties, to impose appropriate sanctions to deal with non-compliance.
The European Court of Justice has consistently held that member states are under an obligation to impose penalties in their jurisdictions even if the regulation has no such provision. Any failure to do so would put them in breach of treaty obligations. If we fail to put in place
appropriate sanctions, leaving aside the possibility of infraction proceedings by the European Commission, the intention of the regulation, which is to ensure that airlines provide air passengers with clear information, would be unenforceable.Under European law, it is open to member states to impose whatever penalties they choose so long as such penalties are "effective, proportionate and dissuasive". Therefore, the department considered whether it would be more appropriate to impose administrative sanctions rather than criminal sanctions. That was the point suggested by the noble Baroness, Lady O'Cathain. But those administrative sanctions would be in the form of suspension or revocation of an operating licence or permit. They were thought to be out of proportion to the offence as they would effectively stop the carrier operating at all. There are similar measures in the Package Travel Regulations 1992 relating to the provision of certain information in holiday brochures. The imposition of criminal sanctions was therefore considered entirely appropriate. Indeed, the criminal sentences created and the scale of penalties proposed are fully in line with UK practice in other areas. The way in which the penalties are drafted gives the court a wide discretion to impose a fine which it considers commensurate with the seriousness of the offence.
I understand the concern expressed that it might appear that the creation of a criminal offence for not providing an air passenger with certain information is excessive. We appreciate that generally the passenger purchases his ticket from the travel agent--that was the point made by the noble Baroness, Lady Thomas of Walliswood--rather than the airline itself. It was on that basis that we provided a defence for the airline if it can show that it has exercised all due diligence to ensure that its agents complied with the regulations requirements. The interpretation of any particular case, like the example that was given, would depend on the interpretation of whether all due diligence had been complied with. Airlines that comply with the regulation will have nothing to fear. However, where it is clear that passengers are not being given the necessary information powers will be used to enforce the law.
The issue of gold plating, or whether we have acted out of line with other countries, was raised by several contributors to the debate. The regulation does not come into force until October. Other member states have different procedures for implementing Community law, which means that they may not be required to go through the same affirmative resolution process which we, on account of the parliamentary summer Recess, are obliged to follow if the order is to be in place in time. In any event, whether or not other member states are implementing the regulation does not affect our obligations under the Treaty of Rome to remove any conflicts with national legislation and impose appropriate sanctions, without which the intention of the regulation would be frustrated.
On the specific point raised by the noble Baroness, Lady O'Cathain, about Article 7 and the power given to the Commission to suggest amendments to the
regulation, the Commission may propose amendments and the Council may adopt them but until that time the regulation stands.I turn now to the issue raised by several noble Lords, including my noble friend Lord Graham of Edmonton, about the consultation that did or did not take place on this issue. It has obviously been a matter of concern, as I know from the correspondence that I have seen, as well as from contributions tonight. Since the draft order merely facilitates a Community regulation, no formal consultation is necessary, or indeed appropriate. But I should make clear to the House that, as far as the regulation itself was concerned, there was indeed formal consultation. A cost compliance assessment was carried out and was scrutinised by the scrutiny committees of both Houses and approved by them. There is no question that the procedures were not followed properly as far as the regulation is concerned.
I think that the reason that the House is getting into difficulty here is that we are dealing with the implementation of the regulation, for which the same consultation does not exist. That was why, as a matter of courtesy, officials in the department spoke with aviation legal experts and airline representatives on a number of occasions before drafting the order to outline our obligations as Community members and to indicate the proposed approach. I should point out that the department consulted the airlines on the substance of the regulation before it was finally adopted by the Council.
As I am on the issue of consultation and sharing information, I should like to repeat the apology that I made in a letter to the noble Baroness, Lady O'Cathain. It would have been much better if I had been in a position to mention the timing of the laying of the directive when we debated these issues in your Lordships' House a few weeks ago. I regret that I was not able to do so.
Perhaps the most substantive issue, and the one raised most often, is the context in which we are operating and whether it would not be sensible to postpone the order until new ticket wording is agreed globally. I entirely agree with noble Lords who made the point that the best solution in the medium and longer term is for a worldwide agreement on the form of words to appear on tickets. We welcome the efforts being made by IATA to this end. However, I must stress that, whether or not the UK implements the regulation, the requirement for certain information to appear on tickets will apply from October this year. As I understand it, IATA's passenger services conference will not be in a position to agree a new form of words until at least October, and, assuming agreement is reached, new tickets will not be issued until the approval of certain governments has been obtained, stocks of current ticket blanks have been largely used up and new tickets have been printed.
Since it will be upwards of a year, and possibly longer, before the new tickets appear, I believe that the point made by my noble friend Lord Berkeley is a real one and that airlines should consider what measures might be put in place from October in order to comply with the regulation. Even if a new form of words were universally agreed and adopted, we should still need to
put in place the powers to enforce the other information requirements of the regulation. It does not obviate the need for enforcement.The noble Lord, Lord Brabazon, asked me two questions about whether we could delay and what the attitude to that would be. We believe that it is not within our power to postpone the coming into force of the regulation; but, in relation to enforcement, we would obviously consider the merits of each case to determine whether prosecution would be in the public interest.
I am conscious of pressures in opposite directions. One is time and the other is the number of questions that were asked. I hope that I have dealt with the substantive issues that were raised in the debate and that the House will now agree that it is important for the United Kingdom to adopt appropriate measures to implement the Council regulation, which will provide much greater financial protection for air travellers. I commend the order to the House.
On Question, Motion agreed to.
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