HL Deb 26 October 2000 vol 618 cc574-82

9 p.m.

Further consideration of amendments on Report resumed.

Clause 65 [Interpretation]:

[Amendments Nos. 71 and 72 not moved.]

Clause 66 [Air navigation: directions]:

Lord Brabazon of Tara moved Amendment. N o. 73: Page 44, line 6, leave out subsection (2).

The noble Lord said: My Lords, in moving Amendment No. 73, I shall speak also to Amendments Nos. 80 and 81. My noble friend Lord Goschen will speak to Amendments Nos. 75 and 76. The Minister doubtless will be pleased to know that this is the final group of amendments in the first part of the Bill, dealing with air traffic control. We turn now to Chapter III, which deals with air navigation.

Amendment No. 73 seeks to leave out subsection (2) of Clause 66. The subsection deprives anyone injured by the CAA's failure to carry out any duty imposed on it by the Secretary of State of any right of action against the CAA. The amendment restores such a right of action.

It is a basic right that those injured by the failures of a public body should be compensated. If the Secretary of State considers the matter important enough to give a direction, then it is important enough for those injured by the CAA's failure to comply to have a remedy. It is difficult to see the difference between the words "failure to carry out a duty" and "an act or omission in the exercise of performing air navigation functions".

When we aired the amendment at the Committee stage, the Government claimed that the CAA may take a course of action in implementing a direction which is satisfactory to the Secretary of State but perceived by an individual or organisation as failing to meet the duty placed on the CAA by a direction. I regard that reply as rather weak. It is not a matter of whether an individual or organisation perceives a failure to perform a duty; it is a matter of whether the CAA has failed to perform that duty. If it has, it should be accountable for such failure, not only to the Secretary of State, but also to anyone who suffered as a result of such a failure.

Our second amendment, Amendment No. 80, seeks to leave out subsection (7) of Clause 75. That subsection enables the CAA to charge an operator for services it does not want and does not use, even if, indeed, its aircraft cannot use them. The amendment removes that power. At Committee stage the Government claimed that aircraft might benefit from the services provided, such as maintenance of minimum separation distances, even if they failed to contact air traffic control. In these circumstances they would be using the services and would be caught by the charging provisions. Where services are genuinely not used, there is no reason why the operator in question should be charged for them. We submit that that charge would be an abuse of the CAA's monopoly position.

Our final amendment, Amendment No. 81, seeks to remove paragraph (a) of Clause 83(2). The paragraph enables the Secretary of State to authorise detention of aircraft in respect of which default on payments occurs, even if the defaulter has sold the aircraft on. The amendment removes that power. The effect of the paragraph could be grossly unfair. How is the buyer of an aircraft to know whether there has been a default on payment in respect of that particular plane without some system of public registration of defaults relating to aircraft? Someone who buys an aircraft in good faith without notice of the default should not have to pay the previous defaulting owner's penalty. The CAA should take appropriate steps to secure payment by the defaulter.

In comparison with other amendments debated today these amendments may be considered to be trivial, but they are important and the points they raise need to be answered by the Government. I beg to move.

Viscount Goschen

My Lords, I have two amendments, Amendments Nos. 75 and 76, in this group. They are entirely unconnected with the other amendments in the group, but, in the spirit which I am sure the Minister will show towards my amendments, I am more than content for them to be contained in this somewhat diverse group.

The amendments seek to strengthen the Bill with regard to the fair treatment of air space users and to prevent any discrimination against what might be considered the little people of the industry—general aviation.

At the Committee stage of the Bill we discussed the same issues. The Minister was generous in his assurances that the Government valued general aviation and indeed wished to see its position protected within the Bill. I am an occasional private flyer so I have an interest to declare in this matter.

Amendment No. 76 has the effect of making clear that the CAA has a general duty towards not only the operators and owners of all classes of aircraft, but also towards all classes of air space user. This is an argument I had with the Minister at Committee stage. I got nowhere at all with him at that stage. He then was kind enough to write me a carefully considered letter, with which I did not agree, showing that he had listened even more carefully and we still had not got anywhere. I shall have a final attempt to explain to him and to see whether I can get him to agree that merely saying that one should take into account the requirements of all categories of all aircraft could leave some people out in the cold. The tone of the Minister's response at the time, and indeed of his letter, made it very clear that we actually had one and the same objective. So we are really talking about drafting at this stage.

Categories of aircraft vary from the very smallest—gliders through to small single or twin-engined aircraft—to the very largest commercial airliners. It must also be recognised that pilots vary in their qualifications, from student pilots at the bottom of the ladder up to the holders of air transport pilot's licences, such as my noble friend Lord Trefgarne, who is a very experienced aviator.

I am concerned that the Bill could have the effect of stating that the CAA must have a general duty towards all the groups who operate aircraft. However, some people might be left out. I shall give an example to try to focus the Minister's attention. If he can reassure me on this point, I shall be a much happier and less loquacious Peer of the Realm.

Let us consider the example of a private pilot who has no instrument rating. Airspace could be classified in such a way as to require all people who fly in that piece of airspace to have an instrument rating to fly under instrument flight rules. He can fly under instrument flight rules in any aeroplane, other than a permit-to-fly aeroplane, that is so equipped with all the necessary navigational equipment. Under those circumstances, it could be said that the CAA had taken on board its duty towards the owners and operators of all categories of aircraft. However, it would not have taken on its duty towards all types of airspace user because there could be, for example, student pilots who definitely would not have an IFR rating. I look forward to the Minister's response on that point.

Amendment No. 75 merely adds reinforcement to what is already in the Bill. The amendment makes it clear that access to airspace is a fundamental requirement for the general aviation community. Many aspects of the Bill have been welcomed by the GA community but there has been concern—rightful concern—that when the transfer is made to the new company the rights of the less powerful users of airspace and the more fragmented users of airspace, on whom we rely for new pilots coming up through the system to fulfil the requirements of our aviation industry, will not properly be looked after. Therefore, my amendment adds some words to make it clear that access to airspace is a very important issue.

I am sure the Minister's brief says that the words are otiose and that the point is already covered. If the Minister could be specific in his response and could underline that access to airspace is a fundamental requirement and one that is borne in mind by the drafting of the Bill, then again I should be much more satisfied.

My third and final point is simple. In Committee some of my noble friends and I raised the question of the Civil Aviation Authority's powers with regard to the new National Air Traffic Service PPP company in terms, first, of the design and allocation of airspace and, secondly, of giving the CAA the teeth it needs to ensure that those matters are enforced. Examples were quoted of some minor difficulties that have recently occurred under the existing system. This is a good moment to pay tribute to the work of the CAA and NATS for allocating airspace in an extremely fair manner. The CAA is a very efficient organisation and we hope that that will be carried forward.

In Committee the Minister referred to the duties that are given to the CAA under Clause 70 of the Bill. The Minister has amended the clause by adding an additional and welcome overarching or paramount, to use the noble Lord's least favourite word, safety requirement. The Minister also referred to the consultation being taken forward by the CAA. Can the noble Lord now tell us the results of that consultation? Can he assure the House that the CAA, through the amendment of the air navigation order, will now have the strong and proper powers it requires to direct the new NATS body to administer airspace in the way that the CAA thinks fit and appropriate, bearing in mind its general duty? If the noble Lord can reassure me on those points, we will have moved the argument on considerably and the Bill will be more equitable.

Lord Trefgarne

My Lords, I very much sympathise with the views of my noble friend Lord Goschen in regard to this matter. As I said at an earlier stage when we were discussing these issues, I am president of the Popular Flying Association, which is far and away the largest recreational aviation organisation in this country. It has upwards of 10,000 members, many of whom own and operate their own small aircraft. But my views and the views of the PFA are not confined to that association. They are widely held, I believe, by other members of the general aviation fraternity, who feel profoundly threatened by some of the proposals that have come forward. They feel threatened not so much by the proposals themselves—we have no difficulty in principle with the privatisation of NATS—but by some of the things that have been said.

I believe that the Civil Aviation Authority will exercise its powers in a responsible and effective way, having due regard to the interests of general aviation. However, I am not so sure that those currently heading NATS are quite so enthusiastic. For example, I have been informed that the business development manager of NATS, Mr Peter Finch, was recently quoted as saying that he regarded those who represent general aviation interests as, "public enemy No. 1". Those were his words. Apparently, he felt that the need to look after the interests of general aviation would somehow inhibit the development of NATS in the direction he thought appropriate. If that is true, that was a disgraceful remark and I hope that the noble Lord can tell me, if he did make such a comment, that it was made without authority.

That leads to another matter of direct importance to general aviation; namely, the question of the operation of flights outside controlled airspace. We have heard — again from the aforementioned Mr Finch—that NATS would like to impose charges on general aviation aircraft flying outside controlled airspace. I hope that that is not the policy of NATS. If it is, I hope that the Civil Aviation Authority will see to it that such charges are not imposed.

From what I have said, noble Lords will appreciate that there are concerns that the CAA will find it difficult to defend the interests of general aviation against the battalions of NATS if these changes come into force. I therefore have great sympathy with the amendments proposed by my noble friend Lord Goschen. The plain fact is that general aviation has the same rights in airspace as does anyone else. General aviators pay their taxes and they, too, pay whatever charges are currently levied. For those reasons, they are just as entitled to use the airspace as all others.

However, we are sometimes told that commercial flights, however small or insignificant, should have priority. I have never understood why that should be the case because we all operate commercial flights—we all pay for our fuel, tyres and engines. The order of precedence that is sometimes established here is not appropriate.

I say again that it is important that the interests of general aviation should be properly reflected in the provisions of the Bill. I believe that the Civil Aviation Authority has every intention that that should be the case. I believe, too, that the Minister intends that that is what should happen. However, he will need to put that across to some of those working in NATS who seem not to take the same view. I hope that the Minister will be able to give me the assurances I seek as regards general aviation.

9.15 p.m.

Lord Macdonald of Tradeston

My Lords, Amendment No. 73 seeks to remove Clause 66(2) which provides that, should the CAA fail to perform a duty placed on it by a direction issued under Clause 66(1), then it is not liable to suit. This reflects the current provision in Section 72(3) of the Civil Aviation Act 1982. Notwithstanding Clause 66(2), the CAA will still be liable, as is normal under the principles of common law, for its acts or omissions when carrying out activities in pursuance of its duties.

While a direction may place a duty on the CAA—Clause 103(1) requires that the CAA must give effect to that direction—it will remain with the CAA to decide how best to implement that duty. In such circumstances, it is not too hard to imagine a situation where the CAA could take a course of action which, while satisfactory to the Secretary of State, could be perceived by an individual or organisation as failing to meet that duty. Clearly it would be undesirable for the CAA to be at risk of legal action each time it took policy decisions in response to directions it has received from the Secretary of State. In any event, the directions which the Secretary of State will give to the CAA under Clause 66(1) will require extensive consultation and will provide for any conflicts to be resolved before decisions are finally made. Furthermore, it will of course continue to be possible for decisions of the CAA to be open to judicial review.

Amendments Nos. 75 and 76 tabled by the noble Viscount, Lord Goschen, concern Clause 70, which sets out how the CAA must exercise its air navigation functions. In essence, they appear to seek to ensure that the CAA, when exercising its air navigation functions, must take account of general aviation interests alongside commercial, military and other interests. In Committee the noble Viscount raised similar concerns. I gave an assurance in that debate that that was exactly what the CAA would do. We believe that the terms used in Clause 70(1)(b) are wide enough. The noble Viscount's second amendment, Amendment No. 76, would result in a definition which would be too wide and would encompass people such as parachutists. We do not think that that would be appropriate.

However, we recognise that the CAA must have adequate powers to enforce its decisions relating to the use of airspace.

Viscount Goschen

My Lords, I am grateful to the Minister. Why should not parachutists have any representation with the CAA? If they are hurtling towards the ground at 120 miles an hour, they would like to know that there is no one directly underneath them.

Lord Macdonald of Tradeston

My Lords, if one wishes to throw the issue open so widely, it would cause concerns that we need not address in this Bill. It has never seemed appropriate in the past to consider parachutists. I do not know whether it has suddenly come as an insight to the noble Viscount, but it is not an issue to which we have addressed much attention in the past, nor do I intend to do so today.

I can tell the House that the CAA consulted on this issue during the summer. The main proposal in the consultation paper was that the CAA should, after consultation with the Secretary of State, have a power of direction to provide air traffic services in respect of United Kingdom airspace in the interests of ensuring efficient use of airspace, or to ensure that air traffic services are provided to a standard considered appropriate by the CAA for the airspace classification. That consultation has now closed and we are considering responses.

In general, there has been a very positive response to the proposal. We must now seek to respond to the few criticisms made and make a final study of the fine print. I am happy to tell the House that we are strongly minded to pursue this proposal and to seek appropriate amendments to the Air Navigation Order 2000 very shortly.

Turning to deal with the question of student pilots, we have no reason to believe that the interests of owners and operators of aircraft in which student pilots fly—presumably under co-pilot direction—are excluded by Clause 70(1).

The noble Lord, Lord Trefgarne, suggested that the quotation to which he referred expressed the views of NATS. Let me make it clear that the quotation is not a sentiment I have heard expressed by anyone in NATS management. Of course NATS will ensure that fair and equitable access is given to all.

The operating licence which will be issued to NATS includes an explicit prohibition against discrimination in the supply of its services. Condition 2 requires the licensee not to give undue preference to, or discriminate against, any person or class of persons in supplying air traffic services. The licensee is permitted to take into account the need to maintain the most expeditious flow of air traffic as a whole—which mirrors the CAA's duty in Clause 70(1)(a)—but may only apply different or additional criteria with the approval of the CAA.

I was asked another question by the noble Viscount, who challenged me with a very specific example. I hope he will forgive me if I am forced to write to him yet again, I hope in more satisfactory terms than last time.

Amendment No. 80 seeks to remove Clause 75(7), which allows the CAA to specify, under Clause 73(1), for the purposes of charging, operators and owners of aircraft which do not or could not use the chargeable air traffic services concerned. This reflects the current provision in Section 73(3) of the Civil Aviation Act 1982, which is being repealed.

This provision seeks to cover the scenario where an aircraft fails to make contact with air traffic control but still enjoys the benefits of services provided in the interests of safety. An example of this is the maintenance of minimum separation distances from other aircraft. This provision also prevents less scrupulous operators from obtaining "free rides" which would result in very serious safety risks.

The fifth amendment in this group, Amendment No. 81, concerns the powers of the Secretary of State to make regulations regarding the detention and sale of aircraft. The amendment proposes that aircraft should only be allowed to be detained where the current operator of the aircraft was actually the defaulter in paying charges due under Section 73. That would be an unfortunate position to find ourselves in.

Principally for reasons of safety, air navigation services are not refused to any aircraft. But it is only right that those operators who make use of such services should also pay for them. It is a common practice in the aviation industry that aircraft are swiftly transferred between companies; and in many cases aircraft are leased. The threat of detention action is our most potent tool and without these powers large amounts of money would not be recovered, or at least would take many months or years to collect through court action. That might well mean that a way would need to be found to offset unpaid charges. It follows that in fairness to all users of air services we think it absolutely crucial to have the power to detain aircraft, even where the defaulter was the previous operator, as a last resort to reclaim the moneys payable in respect of services.

I hope that I have demonstrated why the House should not accept the amendments. I ask the noble Lord opposite to withdraw his amendment.

Lord Trefgarne

My Lords, before the noble Lord sits down, would he please answer the question I raised in relation to flights outside controlled airspace? Will he confirm that neither the Civil Aviation Authority nor NATS has any plans to raise charges in respect of flights outside controlled airspace? If he cannot give me that assurance now, will he be good enough to write to me?

Lord Macdonald of Tradeston

My Lords, I shall certainly write to the noble Lord on that point.

Lord Brabazon of Tara

My Lords, we have had an interesting debate on this group of amendments — somewhat different and less weighty than some of our debates earlier today.

I listened carefully to the Minister's reply. I was particularly interested in his response to my Amendment No. 73. He referred to the liability under common law. I shall read his words with great care, as I shall his response to my other amendments, particularly Amendment No. 81.

I agree that we need the power to detain aircraft. When I occupied the position that the noble Lord presently occupies, I had a monthly note on my desk about whether we should detain aircraft from a certain country, which I shall not name. The Foreign Office took one view and the Department of Transport took another. My view prevailed. We never had to detain the aircraft because they arrived with a suitcase of dollar bills on the day before they were due to be detained. So the policy worked.

Turning to my noble friends' amendments, it is useful that in this House we have two great proponents of general aviation in the shape of my noble friends Lord Goschen and Lord Trefgarne. I was horrified to hear the alleged description of general aviation as "public enemy number one". As the grandson of the holder of pilot's licence No. 1 in this country, when I presume that all aviation was general aviation, I suppose I am therefore an hereditary public enemy. The Minister might well agree with that sentiment.

I leave it to my noble friend to decide what to do with his two amendments. In the meantime, I shall read the Minister's response with care. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 70 [General duty]:

Lord Macdonald of Tradeston moved Amendment No. 74: Page 45, line 29, at beginning insert— ("(A1) The CAA must exercise its air navigation functions so as to maintain a high standard of safety in the provision of a it traffic services; and that duty is to have priority over the application of subsections (1) and (2).").

On Question, amendment agreed to.

[Amendments Nos. 75 and 76 not moved.]

Lord Macdonald of Tradeston moved Amendments Nos. 77 to 79: Page 46, leave out lines 4 to 6. Page 46, line 8, leave out from ("must") to ("as") in line 10 and insert ("apply them in the manner it thinks is reasonable having regard to them"). Page 46, line 10, at end insert— ("(2A) The CAA must exercise its air navigation functions so as to impose on providers of air traffic services the minimum restrictions which are consistent with the exercise of those functions.").

On Question, amendments agreed to.

Clause 75 [Specifications: supplementary]:

[Amendment No. 80 not moved.]

Clause 83 [Detention and sale]:

[Amendment No. 81 not moved.]

Clause 87 [CAA's 1973 Act functions]:

Lord Macdonald of Tradeston moved Amendments Nos. 82 to 86: Page 55, line 23, at end insert— ("(1A) The CAA must exercise its 1973 Act functions so as to maintain a high standard of safety in the provision of air traffic services; and that duty is to have priority over the application of subsections (2) to (5)."). Page 55, leave out lines 40 to 42. Page 55, line 43, leave out from beginning to ("interests") in line 1 on page 56 and insert ("The only interests to be considered under subsection (2)(a) are"). Page 56, line 8, leave out from beginning to ("as") in line 9 and insert ("apply them in the manner it thinks is reasonable having regard to them"). Page 56, line 9, at end insert— ("(5A) The CAA must exercise its 1973 Act functions so as to impose on suppliers of air traffic services the minimum restrictions which are consistent with the exercise of those functions.")

On Question, amendments agreed to.

Clause 93 [Control in time of hostilities etc]:

[Amendment No. 87 not moved.]

9.30 p.m.

Earl Attlee moved Amendment No. 88: After Clause 94, insert the following new clause—