HL Deb 25 November 1982 vol 436 cc978-84

3.21 p.m.

The Earl of Avon

My Lords, in the name of my noble friend Lord Bellwin, I beg to move that this Bill be now read a second time. I should like to begin by explaining briefly the background to this Bill. The first international convention dealing with rail transport dates from 1890 when the organisation which continues to administer the current conventions—known from their administrative headquarters as the "Berne Union" Conventions—was set up. The 1890 convention covered the international carriage of goods by rail within Central Europe and was followed in 1924 by a further convention covering the carriage of passengers and their luggage. The United Kingdom acceded to the conventions in 1952 and is currently one of 33 member states now covering Western and Eastern Europe (except for the USSR), North Africa and the Middle East.

The conventions currently in force are the International Convention concerning the Carriage of Goods by Rail; the International Convention concerning the Carriage of Passengers and Luggage by Rail; and the Additional Convention relating to the liability of the Railway for Death of, and Personal Injury to, Passengers. These conventions have been the subject of regular revisions at approximately ten-year intervals.

The rules contained in these three conventions and their four annexes specify the rights and duties of the railway, of passengers and of consignors and consignees of goods. They cover***, for instance, the contract of carriage and the liability of the railway for delay and for death and injury in the case of passengers; and they deal with compensation for loss or damage in the case of goods. The conventions also deal with the relationship with national law and the administration of the international provisions. They will cease to be valid when the new convention concerning international carriage by rail comes into force. This is the Convention Relative aux Transports Internationaux Ferroviaires, otherwise known as COTIF.

The new COTIF Convention, which the United Kingdom signed at a joint Revision and Diplomatic Conference in 1980, revises and consolidates these rules by bringing together the three existing conventions and their annexes, together with new institutional provisions, into a single basic convention. It also involves the establishment of a permanent treaty between member states to provide continuity of relations, with a new revision procedure. The convention also sets up a new inter-governmental organisation with legal personality-Organisation Inter Governementale pour les Transports Internationaux Ferroviaires—otherwise known as OTIF to administer the convention. All present member states will be party to this organisation and the administration will continue to be carried out by the existing Central Office for International Rail Transport in Berne; there is no question either of increased bureaucracy or of any financial contribution beyond that which all members are already paying towards the administration of the organisation in Berne.

As noble Lords can see, therefore, the COTIF Convention itself contains no new principles; it is basically a consolidation and updating measure for a long-standing set of conventions on the contractual duties and rights of the railways in respect of international journeys. It does not touch upon any critical financial issues affecting the railways, either nationally or internationally; nor does it institute any new administrative system.

The main purpose of this Bill is simply to give the force of law in the United Kingdom to the convention and thus allow us to ratify it. Its provisions cover the United Kingdom as a whole and will bind both British Rail and also the Northern Ireland Railway. The Bill also makes provisions for the necessary consequential action for dealing with revisions to the convention; and it sets out the relationship with national law on key points such as damages in the event of a fatal accident.

Additionally the Bill makes minor changes to four other existing United Kingdom Acts of Parliament—the Carriage by Air Act 1961, the Carriage of Goods by Road Act 1965, the Carriage of Passengers by Road Act 1974 and the International Carriage of Perishable Foodstuffs Act 1976. These Acts, like the present Bill, give force of law in the United Kingdom to a series of international conventions and provide for a procedure of amendment by Order in Council to take account of revisions to the conventions agreed to by the United Kingdom. With the exception of Section 8A of the Carriage by Air Act 1961 the provisions in question, unlike Clause 8 of the Bill, enable amendments to be made only to certain provisions of the implementing Acts. Such a limitation in the scope of the power to amend is unjustifiable—given first that any revision of the relevant convention to which it is to give effect will have been agreed to by the United Kingdom following the laying of the proposed revision before Parliament; and second, considering that any Order in Council will require the approval of each House of Parliament. The provisions in the Acts in question are therefore brought into line with the drafting of Clause 8 of this Bill enabling any provision of that Act to be modified by Order in Council. The change in the provision in the Act of 1961 is a pure drafting change.

I should perhaps now deal briefly with a few key points on the drafting of the Bill itself. Your Lordships will have observed that the Bill is short, while the convention to which it gives effect is long (indeed, 900 pages in its full form with all its annexes). It is for reasons of its length, therefore, that the Bill defines the convention by reference to the command paper in which it is published rather than annexing it. I am sure it will be accepted that—unusual though this approach is—it is the only practical way to deal with such a lengthy convention.

I should also like to draw attention to the provisions on fatal accidents which deal with the relationship with the Fatal Accidents Act 1976, the Damages (Scotland) Act 1976 and the Fatal Accidents (Northern Ireland) Order 1977. These provisions are designed to prevent the same person from bringing an action under the convention and under national law in respect of the death of a person; but they do preserve the right to claim damages for bereavement under Section 1A of the Fatal Accidents Act 1976 (or its equivalent in Northern Ireland) or a loss of society award under Section 1(4) of the Damages (Scotland) Act 1976. They also ensure that in awarding damages under the national legislation a court may take account of any payments made under the convention. Although the convention itself provides an upper limit to the amount of damages payable on fatal accidents where a lower limit is prescribed in national law, no such upper limit will apply in the United Kingdom since none is prescribed by United Kingdom legislation.

The final point of detail is simply to highlight an area where this Bill provides a safeguard not provided by the convention itself—in the inspection of luggage. Whereas the convention provides simply for inspection by authorised officials, this Bill ensures that in the United Kingdom luggage may be required to be opened by such an official only in the presence of a constable. Your Lordships may want to note this safeguard. Having said this, I am sure your Lordships will agree that this Bill is non-controversial and provides for the ratification of an important and practical convention for railways, passengers and traders. I beg to move.

Moved, That the Bill be now read a second time.—(The Earl of Avon.)

3.30 p.m.

Lord Underhill

My Lords, I am certain the House will be appreciative of the explanation given by the noble Earl of the background to the convention and the provisions of the Bill. As he rightly says, it is non-controversial and non-political, so there is no need for me to make what would be a normal Second Reading speech. There are, however, a few technical points about which I should like some explanation.

It is encouraging that a convention which was agreed in May 1980 is now before the United Kingdom Parliament for approval—that is, in just over two years—and noble Lords will appreciate that we take for granted the facilities for travel (for passengers and the carriage of freight between countries) yet it is only by a convention such as this that that can proceed with reasonable smoothness, along with adequate provision for liability for death, injury, loss or damage of luggage and freight. I understand from Article 24 that the convention will come into force only when it has been ratified by 15 states. How many member states have signed it, and how many have ratified it at this stage or are in process of doing so?

Clause 2, as the Minister said, makes provision for Orders in Council to be made certifying whether the United Kingdom or any other member state has made a reservation about certain provisions of the convention or has suspended the uniform rules; and that leads me to ask a few questions about situations which could arise in the event of reservations being made by any other state or suspension of the uniform rules. They are somewhat technical matters and if the noble Earl feels they must await the Committee stage, I shall understand, though it may assist the speedy process in Committee if the Minister is in a position to deal with them today.

Clause 5(4) provides that a reasonable fee may be charged for the issue of a certificate which gives the sterling equivalent to the IMF drawing rights in connection with any court award. What is considered arbitration. In the event of the United Kingdom accepting—which it would do if it ratified the convention—but if another state opts out, what would be the position in the event of a dispute arising? Clause 2(2)(b) provides that a member state may make a reservation under paragraph 1 of Article 3 of Appendix A, and that relates to liability in the case of death or injury to a passenger. What would happen should that position arise in any member state? Would the matter be left to the law to take its normal course? Subsection (3) of that clause deals with the suspension of the uniform rules should any member state not accept subsequent amendments to the convention. If the rules are suspended by any state, what is the situation then arising?

Clause 5(4) provides that a reasonable fee may be charged for the issue of a certificate which gives the sterling equivalent to the IMF drawing rights in connection with any court award. What is considered to be reasonable? That is a matter we have frequently debated in this House. Is the noble Earl able to say what would be reasonable in that context, or must that matter be left to the Committee stage?

I was pleased the Minister emphasised that the provision in the Bill regarding the opening of passengers' luggage to verify or check the contents, so far as the United Kingdom is concerned, will be exercised only in the presence of a constable. Should a British passenger be travelling in another state where that provision does not apply, what will be the position should a dispute arise between the passenger and the railway authorities? Again, is that a matter which must be left to the law to take its normal course?

Schedule 1 sets out the provisions concerning fatal accidents in Scotland. Is the noble Earl in a position to say what are the main differences between those provisions and those which apply to the remainder of the United Kingdom? Have British Rail and the Northern Ireland Railway generally approved the contents of the Bill and the convention?

3.36 p.m.

The Earl of Avon

My Lords, I am grateful to the noble Lord, Lord Underhill, for his helpful and constructive approach to the Bill. I shall try to answer all his questions in the hope that no further problems will arise in Committee. As I said earlier, we have here a simple Bill which will enable the United Kingdom, by ratifying the COTIF Convention, to continue as a party to adhere to a set of extremely useful and practical rules governing international rail travel. As a result, proper safeguards will be provided for passengers and traders.

To take up the noble Lord's points, of the 33 states covering East and Western Europe, North Africa and the Middle East which have signed the convention, 10 have already ratified, and my understanding is that when 15 have ratified, we shall be able to implement the convention. On the question of the effect of Clause 2 (2) and (3), I should perhaps explain in some detail, not the power providing for Orders in Council to certify reservations made by member states (which, the noble Lord will know, simply establishes the position in the United Kingdom) but the effect of the reservations themselves. Under paragraph 3 of Article 12 of the convention, referred to in Clause 2 (2) (a), a member state may decline to apply all or part of the provisions giving access to an arbitration tribunal in the event of a dispute. There is no question of the United Kingdom declining to apply this provision. A dispute between the United Kingdom and a member state that reserved under Article 12 paragraph 1 would have to be settled by the normal diplomatic processes. Under paragraph 2 (a), disputes between the transport undertakings would be settled by the normal inter-railway processes using the Central Office administrative machinery. In the final event, the railway would have recourse to the courts.

Under paragraph 2 (b)—disputes between transport undertakings and users for any journey begun or ended in the United Kingdom—there should be no problem, since liability is shared between all railways forming part of a journey. The British user may simply take the appropriate action against the British Railways Board, who would deal as they normally would with other parties to the dispute. Even without the simpler procedure for settling disputes under arbitration, users are guaranteed their rights under the convention through the normal legal processes. Under paragraph 2(c)—disputes between users—a United Kingdom resident would have the normal legal remedies through the courts.

Article 3 of Appendix A to the convention permits member states not to apply the convention's provisions dealing with the railway's liability for personal accidents to its own nationals or residents. There can be no question of any member state opting out for nationals of other countries. The United Kingdom itself has no intention of reserving under this provision, and therefore I do not foresee any problems.

The noble Lord's final point on Clause 2 related to the suspension of the uniform rules under Article 20 of the convention. This provides that the uniform rules should be suspended one month after coming into force of any amendment to the convention for traffic with and between member states which have neither ratified the protocol nor notified the Central Office that they will apply the amendments. In practice, the General Assembly would not decide to bring an amendment into force before all the important transit countries, such as Germany, had ratified or notified; thus, we believe that no problem will arise. Should a peripheral country fail to ratify, however, the practical approach might have to be that the railway issuing a CIV ticket or CIM document would explain to the passenger or consingee that the rules applied only as far as the border of the country of destination and that therefore extra insurance provision might be necessary.

Turning to the point made by the noble Lord, Lord Underhill, regarding Clause 5(4), about certificates issued to determine the current sterling value of an International Monetary Fund drawing right, I have to say that the level of fee to be charged for a certificate has not yet been determined, but I can assure the noble Lord that we shall take the greatest care to ensure that in arriving at a figure the term "reasonable" would be properly interpreted, and would take full account of the circumstances in which, and the type of person by whom, such a certificate might be sought.

The noble Lord also asked about the inspection of luggage under the convention. As he has observed, in the United Kingdom a passenger may only be required to open his luggage in the presence of a constable. This is an additional safeguard to the convention itself. which permits railway staff to require the luggage to be opened, and. in the absence of the owner, requires only the presence of two witnesses unconnected with the railway. Outside the United Kingdom a British traveller will be subject to the laws of the country that he is in and the provisions of the convention. The provision in the convention will apply in all member states, and may be supplemented, but not replaced, by provisions in national law. I am sure that the noble Lord, Lord Underhill, will accept that the convention itself provides a basic safeguard and that, beyond that, British travellers must expect to be subject to the laws of whichever country they are visiting.

So far Scotland is concerned, the provisions for damages following fatal accidents on the railway in Scotland are different from those for England and Wales, reflecting the differences in the Scots and English law on damages, but the effects of the provisions in each jurisdiction are very similar. Both prevent a dependant who can bring an action under the convention for financial loss following the death of a passenger, from also bringing an action under existing national law. Both allow a court, in assessing damages in an action under the convention, to disregard certain benefits accruing to the dependant. Both relax the respective systems' rules on multiplicity of actions and allow the courts to take into account damages awarded under the convention when assessing damages in actions under existing law.

The main difference between the provisions lies in the difference between a "loss of society" award in the Scottish provisions and a "bereavement" award in the English provisions. In both cases the right to claim these awards is reserved notwithstanding that action may have been taken under the convention; and the principle behind the two is the same. But the terms are somewhat different. Both restrict claims to members of the deceased's immediate family; in Scotland for the loss of the benefit he might have been expected to gain from the deceased's society and guidance". and in England for "bereavement". But the English legislation defines the immediate family and provides a financial limit of £3,500 to the awards, variable by negative resolution of both Houses, which the Scottish legislation does not. Your Lordships will appreciate that that reflects differences between English and Scottish law, rather than different policies.

So far as discussions with British Rail and the Northern Ireland Railway are concerned, I understand that they are entirely happy with the convention and therefore with the Bill. I am grateful to the noble Lord for his helpful contribution, and I hope that I have answered his queries satisfactorily. I commend the Bill to the House.

On Question, Bill read a second time and committed to a Committee of the Whole House.