HL Deb 03 July 2003 vol 650 cc1002-11

12.11 p.m.

The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey)

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Railways and Transport Safety Bill, have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 7 [Investigations]:

Lord Bradshaw

moved Amendment No. 1: Page 3, line 23, at end insert "not later than twelve months following an accident

The noble Lord said: My Lords, in moving this amendment I wish to touch again on the question of the railway accident inspection branch furnishing its report within 12 months of an accident. At an earlier stage the Minister said that he believed that there were often technical and engineering investigations to be undertaken which may preclude the report being published. I believe that the whole tenor of the Bill is to get a report on an accident quickly into the public domain so that people may know what caused the accident and what steps are to be taken to prevent it happening again. I do not believe that it would very often be the case that a report need be delayed more than 12 months. In fact, I hope it will be published much more quickly than that.

I ask the Minister that we make sure that it is not likely to be delayed by the exercise of various judicial processes, departmental policy or ministerial convenience and that we quickly get to the truth. It is the fact that reports to the Government are often delayed by processes which have nothing to do with the incident being reported on, but because the courts require it, some kind of legal process is invoked to prevent publication, or because it is politically or administratively convenient for either the Minister or officials.

I am very anxious that reports are published quickly because if they are not, the whole of the railway accident investigation branch would be condemned extremely quickly and what we would hope would be a fresh start would cease to be so and we retire to a rather tired, old process which delays us in knowing what happened. I beg to move.

Lord Berkeley

My Lords, I support the noble Lord, Lord Bradshaw, and seek what further comfort my noble friend may be able to give us. Potters Bar is the latest in a series of accidents where no solution has yet been found. In the very well respected Modern Railways, under the heading "Informed Sources" by Roger Ford, there is the headline Potters Bar—criminal investigations frustrate search for truth". That is exactly why the Government are setting up the railway accident investigation branch, which we have all welcomed. It is worth recording that the process being undertaken at the moment is led by British Transport Police, for whom the accident is a potential crime. As I believe I said at Report, 70 or so people in the Network Rail contractors have had notices of possible intended prosecution served on them, which does not help in getting to the cause of the problem.

The Health and Safety Executive is in the queue, as the accident is a potential breach of the Health and Safety at Work Regulations. Only when that is dealt with does the Railway Inspectorate become involved. To some extent it is overseen by an investigation board, none of whose members have any first-hand experience of working railways. As Mr. Ford concludes, The final HSE report will not be published until after the conclusion of any legal proceedings, or after they have been ruled out". We still do not know the cause of the accident. We have not been told but perhaps the HSE knows, but it is not going to say for fear of legal proceedings. It is very important that not only is maximum support given to an independent accident investigation branch to conclude its report quickly into the causes of the accident, but that the department recognises that if anything has to be changed in the light of experience following the accident, it should be encouraged to take place with maximum speed.

Lord McIntosh of Haringey

My Lords, I believe that the noble Lord, Lord Berkeley, has set out exactly why we are setting up the railway accident investigation branch. Its purpose is to improve the safety of railways and prevent railway accidents and incidents. It will improve safety by reporting quickly. That is exactly the point that the noble Lord, Lord Bradshaw, makes.

What we are proposing is in conformity with the European Safety Directive. That states that reports would normally be published within 12 months. It states, the investigating body shall make public the final report in the shortest possible time and normally not later than 12 months after the date of the occurrence". That is what the RAIB will do. But the directive does not say—and we are not proposing—that it must be forced to publish a report before it is ready. Surely, it is better to get a full and detailed report after 13 months than a hurried and incomplete report before 12 months has lapsed. The decision on the report should be for the chief inspector of rail accidents to make. As regards the point made by the noble Lord, Lord Bradshaw, that criminal proceedings brought by the police or Health and Safety Executive might be a harrier to publication of an RAIB report, the Government are firmly of the view that safety lessons and reports can still be published.

Clause 7(6) provides for the chief inspector to be able to publish even if criminal or civil proceedings are brought or are likely in connection with the accident. Similarly, the law of contempt of court will still apply to the RAIB, but in deciding when to publish a final report the chief inspector must always balance the public interest in publishing in order to share safety lessons against the public interest in people being brought to account for criminal behaviour and their right to a fair trial. It is perfectly legitimate for her to come down in favour of publishing.

The RAIB cannot prevent any person from inferring whatever they want from a report, but the Bill makes it very clear in Clause 7(5) that the RAIB itself, (a) shall not consider or determine blame or liability, but (b) may determine and report on the cause of an accident or incident whether or not blame or liability is likely to be inferred from the determination or report". Pending the final report, it will be possible for the RAIB to publish an interim report, which sounds familiar from our last debate, to ensure that urgent safety lessons are promulgated. The Bill already makes provision for such reports in Clause 9(3). The existing AAIB and MAIB can and do publish interim reports and the RAIB should be able to do so as well.

Finally, I want to say to the noble Lord, Lord Bradshaw, that, if it becomes apparent that the publication of RAIB reports is being materially delayed, the Government will take the necessary action to ensure that the RAIB will be able to achieve its purpose and duties.

Lord Bradshaw

My Lords, I am grateful to the Minister for that statement. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78 [Professional staff on duty]:

Viscount Astor

moved Amendment No. 2: Page 33, line 35, after "vessel" insert "or on a vessel with a crew of three or less

The noble Viscount said: My Lords, I have tabled the amendment again as I found the Minister's argument slightly unsatisfactory. It is about the medical defence for fishermen. I do not see why it should not apply to small charter boats and similar vessels if it is to be in the Bill. After all, they go to sea from the same ports, often for similar length journeys in similar size boats with similar crews. Therefore, if one, why not the other?

I suspect that the answer is that the exemption for fishing vessels is an historical leftover, but it flies in the face of all modern health and safety legislation and rules. If we are to prevent the occasional but very sad accident and tragedies at sea, the subject needs careful scrutiny. If the Minister will give me the assurance that the Government, in consultation with the fishing industry, will consider those important safety issues, I may be satisfied. I beg to move.

Lord McIntosh of Haringey

My Lords, I am forced to say that the Government accept that there is a degree of irrationality and inconsistency in the way that the Bill provides a medical defence for fishermen but does not do so for other professional seamen in similar circumstances.

I do not believe that we would introduce the fishing vessel exemption now, nor can we agree to its removal at this stage—although we will look at it for the future. The exemption is long-standing and could not be removed without extensive consultation with the industry, something that has not taken place. The extension of the medical defence to other on-duty professional mariners is neither necessary nor welcome. It would set entirely the wrong precedent, not only for the shipping offence, but also for aviation and road offences. And it would go against our drive to improve transport safety.

Viscount Astor

My Lords, I am glad that the Minister and I are in agreement on the principles involved. I am grateful for his reassurance that the Government will look again at the matter in the future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 83 [Specimens, &c.]:

Lord Mclntosh of Haringey

moved Amendment No. 3: Page 35, leave out lines 19 to 44 and insert—

"Road Traffic Act 1988 (c. 52)

Section 6 Power to administer preliminary tests In place of subsections (2) to (5) the power to require a person to co-operate with a preliminary test shall apply where—
(a) a constable in uniform reasonably suspects that the person is committing an offence under section 78, 79 or 80,
(b) a constable in uniform reasonably suspects that the person has committed an offence under section 78, 79 or 80 and still has alcohol or a drug in his body or is still under the influence of a drug, or
(c) an accident occurs owing to the presence of a ship in a public place and a constable reasonably suspects that the person was at the time of the accident a person to whom section 78, 79 or 80 applied.
Sections 6A to 6E Preliminary breath test, impairment test, and drug test In place of sections 6A(2) and (3), 6B(4) and 6C(2), a preliminary breath test, preliminary impairment test or preliminary drug test may be administered by a constable—
(a) at or near the place where the requirement to co-operate with the test is imposed, or
(b) at a police station specified by the constable. In section 6B(3) a reference to unfitness to drive shall be treated as a reference to having an impaired ability, because of drink or drugs, to do anything specified in section 78(2), 79(2) or 80(2)."

The noble Lord said: In moving the amendment I shall speak also to Amendments Nos. 4, 5, 6, 8, 12 and 13 and to Amendment No. 9, which I shall resist. Amendments Nos. 8, 12 and 13 add to the existing powers of the police to test for alcohol by giving them the powers to administer a test for impairment and a test for the presence of drugs by means of a sample of saliva or sweat.

They replace the existing powers in Section 6 of the Road Traffic Act 1988 that pertain only to the breath-testing of drivers for alcohol with comprehensive provisions that give the police powers to administer preliminary tests for alcohol, drugs and impairment. "Preliminary test" is the legal term used to describe a test to screen for alcohol, drugs or impairment. I emphasise that the new provisions do not diminish the powers currently available to the police for breath testing.

Clearly there is work to be done before the provisions can come into force. The development of procedures for the impairment test is well in hand but we shall have to await further progress in technology before a suitable drug screening test is available, which I think the noble Lord, Lord Dixon-Smith, recognises. Clause 118 sets out arrangements for commencement. It provides for the Secretary of State to make orders for specific provisions at the appropriate time by means of a statutory instrument. This is a difficult and complicated area of legislation, but we believe it will ensure that a comprehensive testing regime is available in respect of the battle against driving under the influence of alcohol and drugs.

Amendments Nos. 3, 4, 5 and 6 give the police powers to administer preliminary tests for alcohol, drugs and impairment in the marine and aviation fields. That will ensure that the aviation and maritime regime for alcohol and drug testing is equivalent to that on the roads. Amendment No. 5 will also give the police powers to administer preliminary tests automatically after an aviation accident, bringing the aviation regime into line with other modes.

I shall not comment on Amendment No. 9. What I want to say to the noble Lord, Lord Dixon-Smith, since it is in his name, is that he has won a great victory for the cause that he has been advocating so diligently over a number of a months. We have listened carefully to what he said. We are still sceptical about rapid progress towards testing for limits of drugs. He knows that, and I believe he agrees. But we have been able— and I am glad to pay tribute to him—to give effect to the arguments he has been putting forward. I beg to move.

Lord Dixon-Smith

My Lords, I informed the Minister of what I was doing when 1 tabled Amendment No. 9. In his immediate reply, he informed me in turn that his parliamentary draftsmen were working furiously in order to get the necessary amendments on the Order Paper for today's debate. All that is necessary for me to do at this point is to thank the Minister for the drive that he put behind the move once it got under way. In particular, I thank his staff and his draftsmen for tabling the amendments.

Although this is merely the legislative part of the procedure, and a great deal of work will have to be carried out by the police and others to make it effective, it would not happen if the legislative process had not been undertaken. I am grateful to the Minister for ensuring that that part of the process has happened and that this provision will be on the statute book. I hope, therefore, that the relevant authorities, such as the police and medical services will, where required, be put into motion to bring a greater degree of safety, especially in relation to drugs and driving on our roads.

Lord Faulkner of Worcester

My Lords, I echo my noble friend Lord McIntosh in congratulating the noble Lord, Lord Dixon-Smith, on his perseverance and on seeing this provision home in such a satisfactory way. I believe that I was the one who suggested to the noble Lord in the first place that he should attempt effectively to wrap his Private Member's Bill into this piece of legislation. That is exactly what he has done. All credit to him for effectively getting a Private Member's Bill turned into a government Bill; it is a remarkable undertaking and he should be congratulated.

Congratulations are also due to my noble friend for listening at every stage of the debate and for coming forward with the amendments in this way. As this is the only contribution I intend to make on Third Reading, I thank him for the way that he has handled the rest of the proceedings, particularly in relation to the powers of the British Transport Police and the other matters we considered earlier. The way my noble friend has handled the Bill has been fantastic.

Lord Berkeley

My Lords, I echo the comments of my noble friend Lord Faulkner on how the Minister has handled the Bill. I am pleased with all the amendments in this group, but I would like to place on the record my thanks for Amendment No. 5. I thank the Minister for meeting me with representatives of the Parliamentary Advisory Committee on Transport Safety and the Association of Chief Police Officers. He said that he would table a government amendment on the matter and he has done so; and they are very happy with it. I am grateful to him and fully support the amendment.

On Question, amendment agreed to.

Lord McIntosh of Haringey

moved Amendment No. 4: Page 36, line 36, leave out "(and the definition of -drug" shall be disregarded)

On Question, amendment agreed to.

Clause 96 [Specimens, &c.]:

Lord McIntosh of Haringey

moved Amendments Nos. 5 and 6: Page 42, leave out lines 13 to 31 and insert—

"Road Traffic Act 1988 (c. 52)

Section 6 Power to administer preliminary tests In place of subsections (2) to (5) the power to require a person to co-operate with a preliminary test shall apply where—
(a) a constable in uniform reasonably suspects that the person is committing an offence under section 92 or 93,
(b) a constable in uniform reasonably suspects that the person has committed an offence under section 92 or 93 and still has alcohol or a drug in his body or is still under the influence of a drug,
(c) an aircraft is involved in an accident and a constable reasonably suspects that the person was undertaking an aviation function, or an activity ancillary to an aviation function, in relation to the aircraft at the time of the accident, or
(d) an aircraft is involved in an accident and a constable reasonably suspects that the person has undertaken an aviation function, or an activity ancillary to an aviation function, in relation to the aircraft.
Sections 6A to 6E Preliminary breath test, impairment test, and drug test In place of sections 6A(2) and (3), 6B(4) and 6C(2), a preliminary breath test, preliminary impairment test or preliminary drug test may be administered by a constable—
(a) at or near the place where the requirement to co-operate with the test is imposed, or
(b) at a police station specified by the constable. In section 6B(3) a reference to unfitness to drive shall be treated as a reference to having an impaired ability, because of drink or drugs, to perform an aviation function or to carry out an activity which is ancillary to an aviation function."

Page 43, line 24, leave out "(and the definition of "drug" shall be disregarded)"

On Question, amendments agreed to.

Clause 105 [Railways safety levy]:

12.30 p.m.

Lord Bradshaw

moved Amendment No. 7:

Page 46, line 38, after "43" insert— ( ) the costs arising from a prosecution brought by the Executive or the Commission,

The noble Lord said: My Lords, I tabled this amendment in order to seek some assurance from the Minister. He will remember that we debated who would meet the costs of the Health and Safety Commission. We talked about those costs falling on the train operating companies and being divided among them.

Since then, we have heard the outcome of the prosecution by the Health and Safety Executive of the Metropolitan Police over the issue of a police constable falling through the roof of a building. I believe that that should be described as a rather ill-considered prosecution. It failed completely and cost £3 million of public money.

I do not believe that train operating companies—freight or passenger—should be asked to pay the costs of speculative prosecutions by the Health and Safety Executive. The HSE is a guardian of public money and largely prosecutes public bodies. Therefore, the taxpayer pays both ways and thus, ultimately, the taxpayer fines the taxpayer. It is an enormous waste of public resource. I believe that a regulating body should look not to prosecution but to encouraging the regulated party to modify its behaviour. It should expend almost all its effort on that and prosecute only as a very last resort.

I ask the Minister whether he can give us some comfort that we shall not see the costs of speculative prosecutions by regulatory bodies visited upon the regulated parties. In the most part, those parties have not given rise to the complaints but, so far as I can see, they stand to bear the costs of them. I beg to move.

Lord Berkeley

My Lords, I support the amendment. I hope that in his reply the Minister will say that, following assurances which I believe were given at earlier stages of the Bill, whatever means the Health and Safety Executive has used to assess the charges on the railway industry—I declare an interest as chairman of the Rail Freight Group—this measure will not widen the scope of the activities and issues for which they make a charge. In other words, if the HSE does not make a charge for prosecution at present, it would not do so in future, even if the mechanism for charging were different.

The noble Lord, Lord Bradshaw, mentioned train operating companies, but I believe that the provision applies to anyone with a licence, which would include Network Rail as well. It is extraordinary that, in those circumstances, such organisations would have to pay for their own prosecution. That seems to be all wrong. Therefore, I trust that my noble friend will say that this provision is outwith the scope of any proposal for charging which the Health and Safety Executive may put forward.

Lord McIntosh of Haringey

My Lords, consideration of prosecution is one of a range of options open to Health and Safety Executive inspectors as part of their enforcement activities. Their responses to breaches of health and safety law are governed by the HSC's enforcement policy statement. Therefore, there is no question of the cost of prosecution being a consideration; the HSE must act objectively in accordance with its policy statement.

Work on gathering evidence to inform the decision as to whether or not to take a prosecution, as a routine enforcement activity of the Health and Safety Executive, is subject to the current charging regime and should properly be included under the railway levy. But that should not in any way distort the HSE's decision on whether or not to prosecute or, indeed, on the cost of gathering evidence.

Lord Bradshaw

My Lords, I consider that reply to be slightly unsatisfactory. I realise that at this juncture there is nothing further that your Lordships' House may do. As the Bill will not be going back to another place, this matter cannot be raised again. Therefore, I beg leave to withdraw the amendment, but I ask that serious thought be given to the implications of the Metropolitan Police case.

Lord McIntosh of Haringey

My Lords, I can certainly give the noble Lord that assurance. I believe he knows from the public prints that serious consideration is being given to that issue.

Amendment, by leave, withdrawn.