HL Deb 19 June 2003 vol 649 cc974-1015

3.56 p.m.

Report received.

Clause 1 [Meaning of "railway" and "railway property"]:

Lord Faulkner of Worcester moved Amendment No. 1: Page 1, leave out lines 6 and 7 and insert— "railway" means a system of transport employing parallel rails which—

  1. (a) provide support and guidance of vehicles carried on flanged wheels, and
  2. (b) form a track which either is of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),
but does not include a tramway; street" means any, or any combination, of the following—
  1. (a) a highway within the meaning of section 328 of the Highways Act 1980 (c. 66) (interpretation),
  2. (b) a bridleway, carriageway, cycle track, footpath or footway as respectively defined in section 329(1) of that Act (further provisions as to interpretation),
  3. (c) land on the verge of a carriageway or between two carriageways,
  4. (d) land laid out as a way whether it is for the time being formed as a way or not, and
  5. (e) any other place to which the public has access (including access only on making payment);
"tramway" means a system of transport used wholly or mainly for the carriage of passengers employing rails which provide support and guidance for vehicles carried on flanged wheels and in respect of which—
  1. (a) the rails are laid wholly or partly along a street, and
  2. (b) over the whole or part of the system the permitted speed of vehicles operating on it is limited to that which enables the driver of any such vehicle to stop it within the distance he can see to be clear ahead;"
The noble Lord said: My Lords, I apologise for starting what must appear to be a technical and complicated amendment. However, it is important because it deals with the definition of a tramway-which is contained in Clause 1.

As the Explanatory Notes to the Bill makes clear, for the purposes of Part 1, the definitions of both "railway" and "tramway" adopt those contained in Section 67 of the Transport and Works Act 1992. Unfortunately, the definition in that Act is flawed, and has remained flawed since it went through Parliament in a hurry at the end of the Parliament when the election was called. The flaws were exposed in a working party established by the Chartered Institute of Transport. The Health and Safety Executive was likewise unhappy with the definition and has put forward its own alternative.

What is the problem with the present definition of "tramway"? As I have explained, Section 67 of the Transport and Works Act defines both "railway" and "tramway". It does so in a way which stipulates that if a rail transport system is not a tramway, then it must be a railway. So the definition of a tramway also has implications for the definition of railway. The definition of "tramway" in the 1992 Act is as follows: 'tramway' means a system of transport used wholly or mainly for the carriage of passengers and employing parallel rails which…provide support and guidance for vehicles carried on flanged wheels, and…are laid wholly or mainly along a street or in any other place to which the public has access only on making a payment". Your Lordships should note that this definition contains the phrase, wholly or mainly along a street". Not only does this allow vehicles of the same type, and operated in the same manner, to be classed as either a railway vehicle or a tramway vehicle, depending on the proportion of street-running that a particular system may possess, it can also mean that a system which at one stage may fall within the definition of tramway may later, if extended, fall within the definition of railway, or vice versa, according to whether the extended system changes the balance of the proportion of street running. As railways and tramways have different legal regimes, the regime governing a particular system may therefore change overnight, perhaps with the possibility of further fluctuations at a later date. This is surely bizarre and needs to be corrected.

If the decision is not taken to correct the definition in the current Bill, the present flawed definition will become even more deeply embedded in legislation, leading to ever-increasing problems. The Bill gives some examples. Graphic illustrations can be found in Clauses 14(2) and 76(2), which provide that the application to tramways of Parts 1 and 3—they respectively deal with the setting-up of the rail accident investigation branch and reconstituting the British Transport Police—are to be disregarded in relation to Scotland. There is therefore the possibility that the territorial application of the Bill in respect of railways and tramways may hover back and forth between England and Scotland. That is surely a unique and unacceptable state of affairs.

When the Bill was debated in another place, the Minister there suggested that the issue did not arise, as in Scotland there are no tramways. However, well-developed proposals are afoot for tramways in both Edinburgh and Glasgow. so the issue is a real one.

It is for those reasons that the Confederation of Passenger Transport, with the support of the Passenger Transport Executive Group and Her Majesty's Railway Inspectorate, has drawn up the revised definition that I have tabled. That definition would take account of two essential features that every tramway must possess: elements of street running and of line-of-sight operation. That latter characteristic was emphasised in Committee by the noble Earl, Lord Mar and Kellie. But the important change would be that the definition would no longer depend for its application on the proportion of street running involved, so overcoming the problems which I have outlined associated with the current definition.

The definition of "railway" in my amendment offers no change from the definition in the Transport and Works Act. It has been incorporated here simply because the removal of the existing wording would otherwise leave the Bill with no definition of a railway. A definition of "street" has been introduced simply because that term is integral to the concept of tramway as defined in the amendment. I beg to move.

4 p.m.

Viscount Astor

My Lords, my Amendment No. 3 is grouped with the amendment. Noble Lords owe a debt of gratitude to the noble Lord, Lord Faulkner, for tabling the amendment, because it certainly clears up some of the difficulties that we discussed at an earlier stage. My particular concern relating to tramways was about the rail accident investigation branch. I asked the Minister at a previous stage whether it would investigate tramways, because under the Bill as it stands it seemed to me that that would not be the case. He said that if there were no rail implications the inspector would not do so, and that if the tram were running on the road, as it were, it might be a matter for the police.

That response seemed somewhat unacceptable, as a tram runs on the road for most of the time—that is the definition of it; it also runs on rails. If it did not, it would be a powered bus. For a short part of a journey, a tram might run through areas where cars do not go, but that is not so for 99 per cent of the time. It seems important that the RAIB should be able to investigate any incident or accident.

The Minister was kind enough to write to me and say that, under Clause 7(1)(b), the RAIB can, decide on a case by case basis whether or not to investigate any accident, serious or non-serious, or incident on a tramway"— he then added: The police and the RAIB will work closely to ensure that the appropriate body investigates". We all know that sometimes government bodies work closely together, and sometimes they tend to work rather far apart. My concern is that there should be adequate provision for ensuring that there is always an investigation and a mechanism for deciding who should make that decision. That is why I tabled my amendment.

The Government could help me in one way; namely, if there were a system of automatic notification to the RAIB in the event of an incident or accident. In those circumstances, the RAIB would at least be aware of the facts and it could decide whether it was an appropriate matter for the branch or the police to investigate. What worries me is the thought of an accident involving a tram—perhaps if it hit a car or a bicycle—where a policeman comes along, scratching his head and wondering whether it is for him, or the RAIB, to investigate.

There needs to be some clear mechanism, because, as I have said before, there are a number of overlapping bodies in the Bill. There are also areas where something might slip between the two organisations. That is what I am anxious to avoid. I hope that the Minister can help me. I certainly support the principle of the amendment tabled by the noble Lord, Lord Faulkner of Worcester.

Lord Berkeley

My Lords, I would like very much to support the amendment. My noble friend Lord Faulkner of Worcester has achieved a great success with it and all the work that has gone into it. I congratulate him. There are certain railways where trams and heavy rail, be it passenger or freight, run on the same line. I imagine that that is well covered by the amendment. His concept of what would happen if a tramway were built across the frontier between England and Scotland—in Carlisle or on the east coast—is interesting. It also demonstrates, if we need any further evidence, that the transport responsibilities in Scotland and the lack of a transport and works Act probably need to be looked at in the future.

Lord McIntosh of Haringey

My Lords, I congratulate my noble friend Lord Faulkner on the diligence with which he has drafted a wholly new definition of "tramway". The amendment would define tramways in a different way from the existing legislation; namely, the Transport and Works Act 1992. I am certainly prepared to talk with him about his definition before Third Reading, but I have huge problems with accepting it now.

The major problem is that "tramway" occurs in dozens of pieces of primary and secondary legislation. If we were to amend it here, we would have different definitions of tramway on the statute book. That would be confusing, or even dangerous. We would not consider changing the definition of tramway without giving proper thought to the desirability of the change and the consequences to other pieces of legislation. We certainly could not do it at this stage of the Bill.

It is by no means clear what the effect of the change would be and, if there were an effect, how significant it would be. We are not aware of any practical difficulties arising in the 11 years that the definition has been in use. I have said that I am willing to talk to my noble friend Lord Faulkner about it. I hope that he will be prepared to tell me what the effect of the change would be—we cannot work it out—and whether there is likely to be any practical effect. We do not cover Scotland because there are no tramways in Scotland.

I am grateful to the noble Viscount, Lord Astor, for the way in which he spoke to Amendment No. 3. He wanted a particular assurance that all tramway accidents would be notified to the RAIB. I can give him that assurance; we will do that in regulation.

Lord Faulkner of Worcester

My Lords, I am most grateful for the support expressed by the noble Viscount and by my noble friend Lord Berkeley for my amendment. I should have said earlier that I have a great deal of sympathy with what the noble Viscount seeks to do in Amendment No. 3.

I appreciate what my noble friend said in response. I look forward to having a discussion with him. I shall bring in people cleverer than myself who will help him and his officials to sort out the implications of redefining a tramway. Of course, Clause 1(2) gives the Secretary of State the power to make regulations to amend the clause. Rather than attempt to add a prescriptive amendment on "tramway" to the Bill, the Secretary of State might be prepared to use that power. On the basis that we are going to continue our discussions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Investigations]:

Viscount Astor

moved Amendment No. 2: Page 3, line 12, at end insert— (1A) The Rail Accident Investigation Branch may investigate any railway situation which it judges to have the potential to cause an accident. The noble Viscount said: My Lords. in Committee, my noble friend Lord Dixon-Smith commented that my amendment was too widely drawn and suggested that he would have supported my amendment if it had referred to the potential to cause an accident rather than the potential for fatality or injury. Indeed, the noble Lord, Lord Bradshaw, said at that stage that the amendment was too broad in its scope. We subsequently took it away, and redrafted it to say: The Rail Accident Investigation Branch may investigate any railway situation which it judges to have the potential to cause an accident". Therefore, there does not have to be an actual incident or accident for the RAIB to decide that something could cause danger. That is important, because while the rail accident investigation branch is responsible for investigating incidents, it is also, as the Minister said at Second Reading, responsible for safety overall. We do want to make sure that it has the power to investigate in the areas concerned. The Minister may tell me that it does, and that it is covered by another clause of the Bill. If he can give me that assurance, I should be happy to withdraw the amendment. I beg to move.

Lord McIntosh of Haringey

My Lords, I can certainly give that assurance. Clause 2(4) says that regulations under subsection (2) making provision about what is to be treated as an incident may in particular include an event or omission which does not cause damage or loss, but which might do so in different circumstances. That is the precise purpose of the amendment, and it is therefore unnecessary.

Viscount Astor

My Lords, I am grateful to the Minister. That means that the rail accident investigation branch has the power and jurisdiction. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Bradshaw

moved Amendment No, 4: Page 3, line 18, at end insert "not later than twelve months following an accident The noble Lord said: My Lords, this amendment and several like it touch on the subject of whether the chief inspector of rail accidents is independent. We remain extremely concerned about that. That is not because the Government have any intention to make this person subservient to anyone else, but it is a fact that various legal processes can be used to delay the publication of a report on an accident. These are often employed at the instigation of insurance companies which are pursuing civil or criminal actions and believe that the information contained in the report may prejudice their case.

There is an overwhelming desire in the country to move, following any accident, to know its cause and to take remedial action straight away. If an airliner comes down and the Air Accident Investigation Branch finds metal fatigue or that something has gone wrong with the engine, a report is made within weeks and all airliners arc checked for that fault. I know that the report on the "Solway Harvester" ship was delayed, after investigations had ended, at the behest of both British and foreign lawyers who are behind insurance companies.

The purpose of the 13ill will be vitiated unless we insert a clause to say that a report will be published in a given period. My amendment specifies 12 months. I have been involved with many railway accidents, and the real cause was known in almost every one. All sorts of recommendations may be made afterwards—to modify signalling, change sightlines, improve training, and so on—but those are supplementary to the accident.

I ask the Minister to respond firmly on the issue of reports that are delayed again and again at the behest of some lawyer or other. I beg to move.

4.15 p.m.

Lord Berkeley

My Lords, I support the amendment. I too have had several discussions with investigation boards and confidential reporters from marine industries. The noble Lord, Lord Bradshaw, is correct: the fear of legal action often causes significant delays to the publication of these reports, which after all are there to find the causes of accidents in the public interest and to recommend means of preventing their reoccurrence.

A statutory duty on the inspector to publish his report within, say, 12 months, would provide tremendous strength with which to resist legal challenges. It is in the public interest that such a period should be stated. We can debate whether 12 months is right, but the principle is important. The noble Lord, Lord Bradshaw, cited three-and-a-half years for the publication of the report on the "Solway Harvester"; accident reports must be published much more quickly, and the amendment is a good way of doing it.

Lord McIntosh of Haringey

My Lords, all of the amendments on the railway accident investigation branch are helpful; they are intended to strengthen the powers of the branch, and to make sure that it does the work that the Government intend more effectively. I treat them all as friendly amendments. That is true of Amendments Nos. 6 and 7 on control of the premises, and of Amendment No. 5 on the protection of witnesses. I will not say it again.

Clause 7(4) contains an obligation on the branch to report to the Secretary of State on the completion of an investigation—not 12 months after. The amendment would impose a condition of 12 months after the accident or incident; we cannot handle that. It may be an extremely complex event; scientific tests may have to be carried out which take more than 12 months, and so on. It is better to get a full and detailed report after 14 months than a hurried and incomplete one before the year is up.

The obligation to produce a report on completion of an investigation is a sufficiently clear signal to the rail accident investigation branch that it must get a move on.

Lord Berkeley

My Lords, before my noble friend sits down, will he clarify one thing? I accept his point that Clause 7(4) requires the branch to report to the Secretary of State on completion of the investigation. Does that mean that the Secretary of State will publish the report immediately? The amendment is really about the publication of the report rather than its submission to the Secretary of State.

Lord McIntosh of Haringey

My Lords, the Secretary of State will certainly publish it; whether he or she will wish to respond to the report before publishing it is another matter which does not need to be laid down in legislation.

As regards the 12-month point, we do propose to make regulations under Clause 9(2)(g) to specify that this should normally be within 12 months.

Lord Bradshaw

My Lords, I thank the Minister for that reply. In my experience, the cause of even the most complicated accidents, such as those at Southall and Ladbroke Grove, is known within two or three days.

Lord McIntosh of Haringey

My Lords, an interim report can be published.

Lord Bradshaw

My Lords, with respect, that is precisely my point. We can discuss this again before Third Reading. However, I am most anxious that if possible we can do away with the legal impediments which mean that the work is completed, the investigation is done but some lawyer finds some method of getting it locked up either in this rail accident investigation branch cupboard or the Secretary of State's cupboard, whichever it is, thus preventing the public, who need to know, from learning what is happening because it happens to suit the claim of one insurance company as opposed to another that the facts are kept from us.

I am adamantly opposed to the convenience of insurance companies being put before the needs of the general public. That is the burden of what I say. I press the Minister at least to think hard about the matter if I do not press the amendment.

Lord McIntosh of Haringey

My Lords, I am not in a position to say more. I have said that we shall publish regulations to say that the period should normally be 12 months but we do not want to tie ourselves down in cases that we cannot yet anticipate. We have already given a firm commitment that these reports will be published.

Lord Bradshaw

My Lords, I have listened to the Minister's comments. I shall think about what is said but I shall take advice on whether the issue should be pressed at Third Reading. It is a matter of grave concern to us. I hope that the Minister realises that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Investigator's powers]:

Lord Bradshaw

moved Amendment No. 5: Page 4, line 26, at end insert— ( ) None of the information obtained under this section shall be divulged to any other party. ( ) On completion of any report by the Chief Inspector, all information used in its preparation shall be destroyed. The noble Lord said: My Lords, Amendment No. 5 is similar to the previous one and, again, is meant to be helpful. I am sorry to say that this again affects our friends in the legal profession. The basis of reporting to the rail accident investigation branch is that it will interview people without the evidence that people give being on the record from the point of view of a prosecution; that is, people may speak freely to the rail accident investigation branch. They are not under caution. Nothing they say can be produced in evidence in a court of law. I believe that that is more or less the basis on which the confidential reporting systems work.

However, I am concerned that again, subsequently, the names and addresses of people who have given evidence will get into the public domain through the legal processes and that people will not feel they are speaking in confidence to the chief inspector and therefore the system will fail.

The purpose of the two amendments is to strengthen the fact that the information is given in confidence and that the chief inspector may after completion of the report destroy the information that he or she has received. I beg to move.

Lord Berkeley

My Lords, again I support the amendment. As the noble Lord, Lord Bradshaw, and my noble friend Lord McIntosh of Haringey said, it is designed to ensure that the accident investigation people have the best possible opportunity of coming up with a solution quickly. Having talked to people in the marine and air industries and in the same business, it is clear that the best information is obtained from meeting people who have been involved or seen anything very soon after an accident and who are confident that any information given will be in total confidence. By so doing, it is easier to get to the root cause of any accident or incident. Obviously, that is preferable before any other authority such as the police starts running around cautioning people.

I believe that the only way such confidence will be encouraged in the rail industry is if all the people in the industry know that anything they say will not be divulged to third parties and, as the noble Lord, Lord Bradshaw said, not even their names and addresses are divulged. That is the purpose of the amendment.

For the record, this does not apply to material things such as bolts because after the accident and investigation people have carried out an inspection, it may well be that in certain circumstances the police or the Health and Safety Executive might want to inspect them, which would be reasonable.

The way in which the RAIB will work effectively is by listening to what people say in confidence about their first impressions. If other authorities such as the police and the HSE feel they need to interview people they can do so in the usual way completely separately under caution with lawyers, or whatever.

This is an important principle. No doubt my noble friend the Minister will tell the House whether the wording is correct. This is a difficult subject, but the amendment is an attempt to surround the RAIB with as much access to confidential information as possible without it leaking out.

Viscount Astor

My Lords, I am sympathetic to part of the amendment tabled by the noble Lord. Lord Bradshaw, but I have some questions for the Minister. Following an accident which the RAIB investigates, for example, there could then be some form of prosecution. At that stage, not unreasonably, the prosecuting authorities should perhaps know who had given evidence. My question is: what has happened in the past in terms of aircraft, for example, and the Civil Aviation Authority in such situations?

I support the noble Lords, Lord Bradshaw and Lord Berkeley, in the principle that a person giving evidence needs to be free to do so without constraint; otherwise we would not get to the bottom of such matters. That is important. I am not sure about the names remaining merely confidential; perhaps they should be destroyed. If there is some form of ongoing prosecution, such information could be very important to the prosecution or to the defence. I pose that question to the Minister, but I believe that the noble Lord, Lord Bradshaw, raises an important point.

The Earl of Mar and Kellie

My Lords, too, support the amendment. It proposes a twin-track approach but I think it would be valuable for railway staff to be able to speak in confidence to the rail investigator and subsequently speak on another occasion to either the British Transport Police or to the Health and Safety Executive.

Lord McIntosh of Haringey

My Lords, I sympathise with the concerns which give rise to the amendments. The noble Lord, Lord Berkeley, is right that there are two kinds of evidence. There is technical and hard evidence, such as the condition of bolts, or brake readings and suchlike. There is no reason why that should not be shared with the police and the Health and Safety Executive or anyone else who has a legitimate concern. The second kind of evidence consists of witness statements. It is enormously important that witness statements should be made freely on the express assurance that they will not he shared.

The purpose of all that is to prevent rail accidents and to learn safety lessons. Witnesses must know that they can speak freely and frankly to RAIB inspectors, even in the stressful circumstances in the immediate aftermath of a crash without having to worry that something they say may be used against them. Witness statements given to the RAIB will not be disclosed to any other person by the RAIB—here comes the catch— unless it is ordered to do so by the court. That is an issue that we simply cannot move on because we are not in control of the courts. If the courts decide, for whatever reason—if there is any query about whether the reason is good that could be the subject of an appeal— that the source must be disclosed, then it must be disclosed. We cannot prohibit that by passing legislation.

However, the court will take into account—I believe this is the assurance that the noble Lord, Lord Bradshaw, seeks—the general public interest in disclosure, against that of the RAIB regime and the Human Rights Act. But in deciding whether to order disclosure the court will consider the adverse consequences that an order to disclose would have on people's confidence in the confidentiality of the RAIB regime. We cannot accept the amendment in the form in which it is proposed.

Similarly I do not believe that it is appropriate that the RAIB should be required to destroy information given to it or used in preparing its reports. At the very least, investigations may need to be re-opened under the provisions of Clause 7(8)

As to the comparisons with the Air Accidents Investigation Branch and the Marine Accident Investigation Branch, my understanding is that the RAIB is not required to disclose names, but in practice I believe that it does. I hope that answers the points made. For the purposes of the regime we are determined to maintain as much confidentiality as possible, but there is a point beyond which we cannot go.

4.30 p.m.

Viscount Astor

My Lords, before the Minister sits down and before the noble Lord, Lord Bradshaw, responds, I apologise to the noble Lord, Lord McIntosh, as I forgot to ask him one question. In the event of a public inquiry, which we have had into rail accidents, does the issue of the evidence being disclosed at such an inquiry have to go before a court? Does the noble Lord know how the matter would work in that situation?

Lord McIntosh of Haringey

My Lords, there are different kinds of public inquiries under different remits and some of them involve subpoenas to witnesses and some do not. I shall have to write to the noble Viscount on that point.

Lord Bradshaw

My Lords, I thank the Minister for his reply. I assume that if this matter comes to court, the department will fight the public interest case with all vigour, including the precedential point that would be set if something is disclosed, as people will consider that future accidents will result in disclosure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Regulations]:

Lord Bradshaw

moved Amendment No. 6: Page 5. line 47, at end insert— ( ) The Secretary of State shall make regulations concerning the management of a site being investigated to ensure that the Chief Inspector has overall management control of the site while his investigations are in progress. The noble Lord said: My Lords, this amendment seeks to provide that the regulations are made with the consent of chief police officers, the British Transport Police and the Health and Safety Executive and that the regulations will make it very clear to everyone that, in the investigation of an accident, the RAIB will have precedence. When investigating rail accidents—I imagine that I am the only person here who has done so—it is extremely important that one arrives at the site very quickly so that one is able to take the brake pressure in the cylinders before it has been destroyed, which will happen within half an hour or a couple of hours. If one does not arrive at the site quickly the evidence starts to leak away. Rust marks and matters of that kind are extremely important, but a shower of rain will take them away. If such places are declared scenes of crimes or if the precedence lies with a health and safety inspector who keeps people away for several hours, useful evidence can so easily be destroyed.

In moving the amendment I seek to ensure that protocols are agreed with the people concerned, clearing the way for rail accident inspectors to arrive as quickly as possible at the scene of the accident—not at the perimeter of the site—although they cannot be everywhere. I beg to move.

Lord Berkeley

My Lords, in supporting Amendment No. 6 I shall speak also to Amendment No. 7 standing in my name and that of my noble friend Lord Faulkner. Both amendments seek to achieve the same point. Amendment No. 7 is designed to cover the same matter as Amendment No. 6 but in cases where the chief inspector has decided not to become involved in an accident.

As we have discussed at previous stages of the Bill, it is likely when there is an incident or an accident that the local police force will arrive first. The amendments are designed to encourage the local police to put a fence around the accident, if that is appropriate, to protect the site and as I believe they are required to do for air accidents. The instruction is to rope off the site and to wait. They should rope it off and not fiddle with the evidence inside. If the RAIB is to be involved its inspectors will be there and, as the noble Lord, Lord Bradshaw, said, they will have the expertise to deal with it. If it is not to be involved, the British Transport Police have an enormous amount of expertise in such matters, and they would say, "Right, we can start the trains running again; it is not a problem", or they would look at the situation with their particular railway experience.

The worst example of which I am aware is that a year or two ago a Virgin train in Scotland was diverted onto a branch line where it was moving at about five miles per hour when it derailed because the track collapsed underneath it. No one was hurt, but of course the train could not move. Virgin was very quick to get buses to take the passengers away, but unfortunately the local police took about five hours to interview every passenger on the train in case a crime had been committed. That is probably the worst example, from which I believe we have all learned. It is important that those who are not specialists should confine their activities at the scene of an incident or an accident to putting a fence around the site, protecting it and waiting for the specialists.

Lord Faulkner of Worcester

My Lords, I support the two amendments and as my noble friend Lord Berkeley said, I have put my name to Amendment No. 7. He has shared with your Lordships a story about an incident in Scotland. Another incident in Scotland also makes the point. It was a minor case—sadly not minor for the one individual concerned—but it proves why it is important that there is a proper hierarchy of who is responsible when something happens on the railways.

On 29th April this year, sadly there was a suicide on the line at Dunbar. The deputy chief constable of the British Transport Police happened to be travelling on the train from Edinburgh to London when the train struck the unfortunate person. The emergency brakes were applied, the train came to a halt, and the driver confirmed to the deputy chief constable, Mr Tony Lake, that it was indeed a suicide. There was no suggestion that the person had been tied to the track or was in any way the victim of a crime.

However, as the matter was being sorted out on the spot, two officers from the Lothian and Borders police turned up and declared it a scene of crime and were proposing to bring in SOC officers. The implications of that, as my noble friend Lord Berkeley said, would have been a very serious delay. Happily, because Mr Lake insisted on taking control of the occasion, he said that he was in charge. He put a tarpaulin over the body, moved it 300 yards and told the driver to move the train. That avoided a delay that could easily have lasted many hours, which in today's penalty regime on the railways would have incurred huge costs for a number of people .

The purpose of the story is that when an incident takes place on the railways, particularly if it does not involve the RAIB, it is important that the BTP, with all their expertise, should be given primacy. That is the purpose of the amendment.

Lord McIntosh of Haringey

My Lords. I entirely agree that it is essential that the RAIB should have control of the accident or incident site, which is exactly what the Bill provides.

Clause 8(5)states: Subsection (6) applies where—

  1. "(a) the Rail Accident Investigation Branch is conducting an investigation by virtue of section 7 in respect of an accident or incident, and
  2. (b) a question arises as to the desirability of action which any other person proposes to take for the purpose of investigating the accident or incident".
Subsection (6) then applies that the question of the desirability of action by any other person, may be determined by—
  1. (a) the Chief Inspector of Rail Accidents, or
  2. (b) an inspector of rail accidents acting on behalf of the Chief Inspector".
We have exactly the provision when it is an issue of whether to move a train, fence things off or to do anything which anyone else may wish to do for other reasons. Any question which arises as to the desirability of action is determined not by anybody else, but by the rail accident investigation branch.

I do not believe that that meets the case of the deputy chief constable of the British Transport Police because I presume that in the case to which the noble Lord, Lord Faulkner, referred the RAIB had not actually reached the scene by that time. However, it meets the thrust behind these two amendments.

Lord Berkeley

My Lords, my noble friend has given a very lucid explanation of subsections (5) and (6) It could happen that if the chief inspector or a representative takes an hour or two to get to the scene, the local police will not only have placed a barrier around the site but will also have started poking around. Are any instructions to be given in regulations, or by some other means, to the local police forces around the country not to do that?

Lord McIntosh of Haringey

My Lords, there will be a protocol between the chief inspector and the Association of Chief Police Officers. The chief inspector is due to meet ACPO shortly to discuss these practical issues which will arise during an investigation.

Lord Bradshaw

My Lords, I thank the Minister for what he has said. It goes a long way to meet the concerns which I have expressed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Requirement to investigate]:

[Amendment No.7 not moved.]

Clause 21 [Chief Constable]:

Lord Bradshaw

moved Amendment No.8: Page 9, line 32, at end insert— ( ) Regulations under subsection (4) shall not come into effect before 31st December 2004. The noble Lord said: My Lords, this amendment is meant to be helpful and touches on the fact that there is quite a lot of work to do both in the recruitment and training of railway accident inspectors and on the agreement of the various protocols which will surround their work.

I am very mindful of the fact that once a chief inspector is appointed, many people, including the press, will expect a kind of all-singing, all dancing organisation to be there the day after. We all know that it takes quite a long time for an effective organisation to be built up. My purpose in moving this amendment is to allow sufficient time for the protocols and people necessary to be put in place. I do not want a case next week of a bad railway accident and the Daily Mail screaming "Where is the rail accident investigation branch?" As far as I can tell at the moment, it consists of one person who is designate and no protocols, staff or training. I realise that this is probably a point for discussion. I beg to move.

4.45 p.m.

Lord Berkeley

My Lords, I support this amendment. In discussions with the Marine Accident Investigation Branch we were told that that organisation came into being two days before the "Bowbelle" disaster on the Thames. There was great expectation that it would be able to look into that accident. There have been suggestions that the RAIB might come into effect, if that is the right word, on 1st April next year. I hope that the Government will give the chief inspector the necessary time to get the protocols and everything else into line, as the noble Lord, Lord Bradshaw, said. It is desperately important that the RAIB starts off on a high note with maximum credibility, a properly trained staff, and the capability to do this work. In the meantime there has to be some interim arrangement in which I am sure that everyone will co-operate to ensure that everything goes well. It is desperately important that the organisation starts off in the right way.

Lord McIntosh of Haringey

My Lords, 1 am at a loss. This amendment says that the regulations for the suspension of the chief constable of the British Transport Police shall not come into force until 31st December 2004. That cannot be what the noble Lord, Lord Bradshaw, meant. I do not believe that he meant it to be in Clause 21. Perhaps the noble Lord would like to table the amendment at Third Reading in the right place and we can talk about it there.

Lord Bradshaw

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 [Civilian employees]:

Lord Bradshaw

moved Amendment No. 9: Page 12, line 32, at end insert— ( ) For the purpose of employing community support officers under section 38 of the Police Reform Act 2002 (c. 30) (police powers for police authority employees)—

  1. (a) the Authority shall be considered a police authority;
  2. (b) the Police Force shall be considered a police force: and
  3. (c) the Chief Constable shall he considered a chief officer of police."
The noble Lord said: My Lords, we turn now to the Police Reform Act. There are other amendments grouped with this in the name of the Minister and they may touch on what I have to say.

We are very anxious that the British Transport Police should enjoy the same powers as other police forces in terms of their ability to employ community support officers, civilian employees and special constables, if that is the wish of the police authority, so that the British Transport Police are not treated as some kind of poor relation and a force apart, but as one of the police forces of this country and empowered to do their job with all the tools which we can put at their disposal. I beg to move.

Lord McIntosh of Haringey

My Lords, without curtailing debate, I shall speak to Amendment No. 10 because it does exactly what Amendment No. 9 is intended to do, only better. Our amendment will allow the British Transport Police to deploy community support officers and investigation, detention and escort officers as they want to. It brings the British Transport Police fully into line with Home Office police forces as regards these kinds of civilian officers.

Viscount Astor

My Lords, from this side of the House we are grateful to the Minister for bringing forward his amendment, which I believe will satisfy the noble Lord, Lord Bradshaw, and perhaps also the noble Lord, Lord Faulkner of Worcester.

Lord Faulkner of Worcester

My Lords, it certainly does. Indeed, it goes further than I dared hope that the government amendment would. I was delighted to hear what my noble friend said. I am sure that the British Transport Police will be grateful that they are being treated exactly on all fours with the 43 Home Office forces.

Lord Bradshaw

My Lords, I thank the Minister for what he has said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 10: After Clause 27, insert the following new clause—


  1. (1) The following provisions of the Police Reform Act 2002 (c. 30) shall apply in relation to the Police Force as they apply in relation to other police forces—
    1. (a) section 38 (police powers for police authority employees),
    2. (b) section 39 (police powers for contracted-out staff),
    3. (c) section 42 (supplementary),
    4. (d) section 45 (code of practice),
    5. (e) section 46 (offences),
    6. (f) section 47 (interpretation), and
    7. (g) Schedule 4 (powers exercisable by civilians).
  2. (2) For the purpose of subsection ( 1 ) the provisions specified in that subsection shall have effect with any necessary modifications and, in particular—
    1. (a) the provisions shall have effect as if a reference to a police force were a reference to the Police Force,
    2. (b) the provisions shall have effect as if a reference to the chief officer of police of a police force were a reference to the Chief Constable,
    3. (c) the provisions shall have effect as if a reference to a police authority were a reference to the Authority,
    4. (d) the provisions shall have effect as if a reference to a constable were a reference to a constable of the Police Force,
    5. (e) section 45 shall have effect, except in relation to a code which is expressed to apply for the purposes of that section in its application both by virtue of this section and otherwise, as if for subsection (3) there were substituted a requirement to consult the Authority and the Chief Constable, and
    6. (f) Schedule 4 shall have effect as if a reference to the relevant police area or a police area were a reference to—
      1. (i) any place in England or Wales where a constable of the Police Force has powers by virtue of section 30(1)(a) to (f) of this Act, and
      2. (ii) for a purpose connected to a railway or to anything occurring on or in relation to a railway, any place in England and Wales."

On Question, amendment agreed to.

Clause 73 [Regulations and orders]:

Lord McIntosh of Haringey

moved Amendment No. 11: Page 30, line 40, leave out subsection (4). The noble Lord said: My Lords, this amendment and Amendment No. 20 are in response to recommendations made by the Delegated Powers and Regulatory Reform Committee. Amendment No. 11 would ensure that any order brought forward by the Secretary of State to vary the upper and lower limits on the number of people on the proposed British Transport Police Authority would be subject to the negative procedure in Parliament.

Amendment No. 20 would require the Health and Safety Executive levy to be subject to the affirmative resolution procedure the first time it is implemented before reverting to the negative procedure thereafter. As the Bill is currently drafted, the levy would be subject to the negative procedure on every occasion including the first. We are in this way complying with the wishes of the committee. I beg to move.

On Question, amendment agreed to.

Clause 76 [Extent]:

Lord McIntosh of Haringey

moved Amendment No. 12: Page 32, line 24, at end insert— ( ) The powers exercisable by virtue of section (Exercise of powers by civilians) shall not be exercisable in relation to Scotland.

On Question, amendment agreed to.

Clause 77 [Professional staff on duty]:

Viscount Astor

moved Amendment No. 13: Page 32, line 32, at end insert ", and (d) a professional harbour master acting in accordance with his duties. The noble Viscount said: My Lords, when I moved this amendment in Committee, the Minister accused me of widening the scope of the Bill to cover harbour masters, which is the purpose of my amendment. I have since done some homework. The situation is that harbour masters quite often spend large parts of their time acting as a pilot on a ship, where they are covered by Clause 77(1). But they also spend quite a large part of their time in an office, giving instructions to ships of various sizes—for example, very large tankers—on where they should go and how they should enter harbours and restricted shipping lanes. This is an important area in view of the Marine Safety Bill which had its Second Reading last Friday.

In aviation, the Government have gone much wider by including pilots, navigators, engineers, and even cabin crew and air traffic controllers. My amendment does not seem to widen the scope of the Bill to an enormous extent. The Minister said, quite rightly, that harbour masters operate on a two-dimensional basis rather than a three-dimensional one. But they still carry out an important role. They work both in offices and onshore. They should be covered by the provisions, as they give instructions that affect safety. The point is that they instruct shipping. I have had conversations with harbour masters and am assured that they wish to remain sober in the workplace. Should the amendment be agreed, I will be able to visit the harbour without getting chucked over the nearest jetty. I beg to move.

Lord McIntosh of Haringey

My Lords, I said in Committee that the amendment would widen the scope of the Bill beyond the recommendations made by Lord Justice Clarke. The amendment would bring the Bill into areas on which there has been no consultation and where there has been no demonstrated need for legislation.

We make the distinction that various people, not just harbour masters, but harbour authority staff, British Waterways officials, Broads Authority officials and all sorts of other staff, have an auxiliary onshore role in controlling navigation but do not have the same role as people on a ship, who are in control of immediate decisions that the ship takes, or air traffic controllers, who virtually take over the controls of aircraft on a minute-to-minute, second-by-second basis, in the analogy that the noble Viscount, Lord Astor, uses. We are talking about a distinction between 80 mg and 20 mg of alcohol—nothing more dramatic. It is the distinction between staff who are in instant, second-by-second control and those who are not. If we extended the provision to harbour masters, we would have to extend it to many others.

All those people, including harbour masters, must be subject to company policies designed to combat alcohol and drug misuse among the workforce. We expect the Marine and Coastguard Agency to do that. That appears to be adequate protection. I have heard of no-one who has suggested that there is any difficulty with that at present. We are tightening up an area where there may well be difficulty. I do not think that the amendment is necessary. I would not wish to see it in the Bill.

Viscount Astor

My Lords, I am grateful to the Minister for his response. I apologise for not saying earlier that I will not be moving Amendment No. 14, which is grouped with this amendment. I am sorry that I failed to convince the Minister. I do not think that he is right in saying that, if the provisions are extended to harbour masters, they must be extended to a whole group of people. The people I seek to include are those who carry out the role of giving instructions. That is a very different job. In the same way as air traffic controllers give instructions to aircraft, harbour masters give instructions to shipping. They should come under the same rules.

4.55 p.m.

On Question, Whether the said amendment (No. 13) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 100.

Division No. 3
Ampthill, L. Colwyn, L.
Anelay of St Johns, B. Cope of Berkeley, L. [Teller]
Astor, V. Craig of Radley, L.
Blatch, B. Craigavon, V.
Bridgeman, V. Cumberlege, B.
Brougham and Vaux, L. Dixon-Smith, L.
Burnham, L. Gardner of Parkes, B.
Buscombe, B. Geddes, L.
Campbell of Alloway, L. Henley, L.
Carlisle of Bucklow, L. Hodgson of Astley Abbotts, L
Howe, E. Parkinson, L.
Hylton, L. Plummer of St. Marylebone, L.
Laird, L. Rees, L.
Luke, L. Roberts of Conwy, L.
McColl of Dulwich, L. Seccombe, B.[Teller]
Maginnis of Drumglass, L. Selborne, E.
Marlesford, L. Selsdon, L.
Mayhew of Twysden, L. Skelmersdale, L.
Noakes, B. Taylor of Warwick, L.
Northesk, E. Vivian, L.
Park of Monmouth, B. Windlesham, L.
Acton, L. Hoyle, L.
Ahmed, L. Kennedy of The Shaws, B.
Allenby of Megiddo, V. Lea of Crondall, L.
Alli, L. Levy, L.
Amos, B. Lipsey, L.
Andrews, B. McCarthy, L.
Archer of Sandwell, L. Macdonald of Tradeston, L.
Ashton of Upholland, B. McIntosh of Haringey, L.
Bassam of Brighton, L. McIntosh of Hudnall, B.
Berkeley, L. MacKenzie of Culkein, L.
Bernstein of Craigweil, L. Mackenzie of Framwellgate, L.
Blackstone, B. Mason of Barnsley, L.
Borrie, L. Massey of Darwen, B.
Brooke of Alverthorpe, L. Merlyn-Rees, L.
Brookman, L. Milner of Leeds, L.
Carter, L. Mitchell, L.
Christopher, L. Morgan, L.
Clarke of Hampstead, L. Morris of Manchester, L.
Clinton-Davis, L. Parekh, L.
Cohen of Pimlico, B. Pitkeathley.B.
Corbett of Castle Vale, L. Plant of Highfield, L.
Crawley, B. Prys-Davies, L.
Darcy de Knayth,B. Ramsay of Cartvale, B.
Davies of Oldham, L. [Teller] Rea, L.
Dean of Thornton-le-Fylde, B. Rendell of Babergh, B.
Desai, L. Rodgers of Quarry Bank, L.
Dholakia, L. Rogers of Riverside, L.
Dormand of Easington, L. Roll of Ipsden, L.
Erroll, E. Rooker, L.
Evans of Parkside, L. Sawyer, L.
Evans of Temple Guiting, L. Scotland of Asthal, B.
Evans of Watford, L. Sewel, L.
Farrington of Ribbleton, B. Sheldon, L.
Faulkner of Worcester, L. Simon, V.
Filkin, L. Slim, V.
Gale, B. Stallard, L.
Gavron, L. Symons of Vernham Dean, B.
Gibson of Market Rasen, B. Temple-Morris, L.
Gordon of Strathblane, L. Thornton, B.
Gould of Potternewton, B. Turner of Camden, B.
Graham of Edmonton, L. Uddin, B.
Grocott, L.[Teller] Walker of Doncaster, L.
Hamwee, B. Warner, L.
Harris of Haringey, L. Weatherill, L.
Harrison, L. Wedderburn of Charlton, L.
Haskel, L. Whitaker, B.
Hayman, B. Whitty, L.
Hilton of Eggardon, B. Wilkins, B.
Hollis of Heigham, B. Williams of Elvel, L.
Howells of St. Davids, B. Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.6 p.m.

[Amendments Nos. 14 and 15 not moved.]

Viscount Astor

moved Amendment No. 16: Page 33, line 7, after "vessel" insert "or on a vessel with a crew of three or less". The noble Viscount said: My Lords, at Committee stage we debated Clause 77(5) where fishing vessels have a defence because sometimes they have a small crew. They are at sea for a long time. It may be necessary for someone to take a drug for medicinal purposes to enable them to get home, thereby not endangering the rest of the crew and any passengers. We debated this concept and I understand why the fishing vessel exemption was included. However, there are similar occasions where fishermen, due to the sad decline of fishing stocks around our shores, do a lot of other things. Sometimes they act as fishermen and sometimes not. They may take people on trips round islands. They may take people sightseeing or mackerel fishing, even diving. They do a variety of things. Sometimes the distances are just as long as when they were fishing. Some boats have a crew of three, two or even one. A licensed operator can run a charter boat with a DTI licence to carry up to a dozen people with a crew of one. If the captain needs to take a drug on medical advice he should be able to do so and have the same defence as those in the fishing industry.

This is not about large ships. They have large crews and there would be someone else to take over the responsibility. The defence was originally put in to protect crews of small fishing vessels. There has been an explosion round our shores of small vessels plying various trades. They should have a similar defence. What we do not want is for the skipper of a charter boat with eight or 10 passengers on a 12-hour trip being reluctant to take along medicine in case it would be an offence. But by not doing so he could endanger the lives of his passengers.

The Minister has been kind enough to discuss these issues with us between Committee and Report stage. I am not sure whether this amendment is the right one but it is an important issue. I look forward to the response of the Minister. I beg to move.

Lord McIntosh of Haringey

My Lords, I am relieved that the noble Viscount, Lord Astor, did not move Amendment No. 15, because I have a long speaking note about fishing vessels. Amendment No. 16 is defective. The number "three" is arbitrary. In our opinion, simply stating a maximum crew size does not cover the various cases. There are issues of time spent at sea and the availability of other crew members to take over duties.

The fishing exemption covers small vessels, with small crew, undertaking long voyages. There may be circumstances in which it is better for crew members to take their medication—even where there is a warning of drowsiness and against operating machinery or driving—rather than not taking medicine and risk being in a worse state.

If one is in charge of the kind of vessel that the noble Viscount, Lord Astor, is talking about—a single person going out with someone else, a customer fishing, diving or whatever, or carrying a passenger from one place to another, that person will make a judgement about whether they are better off taking a drug. I cannot imagine that if a single sailor comes back on a small ship and has taken a drug, he will be tested for drugs and accused of breaking the law.

We do not want to define circumstances to allow this medical defence on certain commercial ships. If we had to do so, we would have to describe the circumstances in which such a ship could be operated safely in all foreseeable situations under normal operating conditions but at a manning level that was so low that the seafarer who was under the influence of a medicinal drug had to remain on duty in order to maintain a safe ship.

It is not a problem for commercial ships over 500 gross tonnes, because the marine and coastguard agencies apply the merchant shipping hours of work regulations. They state that the minimum safe manning levels are those required for all foreseeable circumstances and working conditions to permit the safe operation of the ship under normal operational conditions.

Commercial ships under 500 gross tonnes that operate with small crews are likely to be operated on shorter voyages in coastal waters close to a port. In those circumstances, our advice would be to wait until they go ashore before taking medicine that would impair their performance. On that basis, I invite the noble Viscount, Lord Astor, not to press the amendment.

Viscount Astor

My Lords, if one follows the logic of the Minister's answer, it shows that subsection (5) is unnecessary. The noble Lord says that one should not prescribe; one should not need to; someone will take a sensible decision; no one is going to prosecute someone coming back in these situations. If that is the case, why is the exemption for fishing vessels needed? It seems that that is the same analogy. Why do fishing vessels need this exemption? Will people be standing on the pier waiting to jump on fishermen coming back, any more than they are going to jump on anyone else?

I do not see the justification for the Minister's arguments. I am sorry to say that he has missed the point. I accepted, in moving the amendment, that whatever one chooses—say, a crew of three—is arbitrary. The definition of fishing is probably arbitrary too. The Minister has not persuaded me, and I do not regard his answer as satisfactory. I shall come back at Third Reading. One solution would be to have some form of tonnage, or some combination to make it work.

Lord McIntosh of Haringey

My Lords, I have attacked the limit of three. Let us talk between now and Third Reading about whether anything can be done. I still think that it is difficult to define the circumstances in which the medical defence should be allowed on some commercial ships and not others. I do not wish to see the medical defence extended unless we absolutely have to. I am certainly willing to talk about it.

Viscount Astor

My Lords, I am grateful to the Minister. He has been enormously helpful throughout the Bill. I understand where he is coming from, but of course, as 1 said, if you follow the logic of his argument, the exemption for fishing vessels is perhaps not needed. I am grateful for his helpful reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 [Arrest without warrant]:

[Amendment No. 17 not moved.]

Clause 95 [Specimens, &c.]:

Lord Berkeley

moved Amendment No. 18: Page 41, line 28, column 3, at end of paragraph (b) insert— (c) an accident occurs owing to the presence of an aircraft in a public place and a constable reasonably suspects that the person was at the time of the accident a person to whom section (93)(1)(a) applied. The noble Lord said: My Lords, in moving the amendment, 1 thank the Minister for meeting me and specialists from the police and the Parliamentary Advisory Council for Transport Safety. The key to this argument is that with the very low level of alcohol limit proposed for air crew it is difficult for police officers to form a suspicion that alcohol may have been a factor in an accident before taking a breath specimen. The limit is much lower than the current level for road alcohol. That is the reason for the amendment. I beg to move.

Lord McIntosh of Haringey

My Lords, the Bill already provides the police with the power to test suspected offenders provided they have reasonable cause. An accident might be a factor taken into account when the officer considers whether he has such cause.

The amendment, as drafted, creates a number of practical difficulties, principally in the reference to the presence of an aircraft in a public place. That would exclude a number of places where aviation accidents could take place, notably runways. I accept that the principle behind the amendment has some force. I cannot make any guarantees. We shall consider further whether we can put down a suitable amendment at Third Reading.

Lord Berkeley

My Lords, I am grateful to my noble friend and I look forward to meeting him before Third Reading. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 [Railways safety levy]:

Lord Berkeley

moved Amendment No. 19: Page 46, line 27, at end insert— ( ) Regulations under subsection (1) shall take into account the licence fee arrangements operated by the Rail Regulator. The noble Lord said: My Lords, having clearly lost the battle for the Health and Safety Executive to be funded by the railway industry, this is my second attempt. If there must be changes in the way the Health and Safety Executive charges the railway industry, there are one or two principles that I hope that my noble friend will consider. The executive should not charge more money than at present and should not increase the scope of what it charges for.

The proposals from the rail regulator as to how he should fund his operations, payable by the industry, seem to me a good model on which future regulations might be based. Network Rail should pay 50 per cent of the costs, and the rest should be spread across the licence holders based on the historic turnover for the previous financial year; that is passenger and non-passenger stations and light maintenance depot licence holders.

That means that new entrants would be exempt. It is important to encourage new entrants to the industry. My noble friend says that heritage railways would be exempt. This is a probing amendment. I look forward to my noble friend's comments. I beg to move.

Lord McIntosh of Haringey

My Lords, I accept the principle that the Health and Safety Executive should talk to the Office of the Rail Regulator when developing proposals to give effect to the railway lobby. It is already doing so and will continue to do so. That is not a problem.

The problem with the amendment is that it gives primacy to those consultations. That means that it would be more difficult for the Health and Safety Executive to speak with the same force to other industry bodies such as the Strategic Rail Authority or other industries with a similar levy regime.

I understand that the Health and Safety Commission and the Health and Safety Executive have a policy to use rail-related turnover in the previous financial year as the best proxy for determining the individual amounts to be paid under a levy. As my noble friend Lord Berkeley said, that lets off new entrants. I understand that that is similar to the arrangements operated by the Office of the Rail Regulator, but final arrangements will be subject to consultation.

The Health and Safety Executive should retain the ability to consider any other schemes it likes and talk to anybody it likes in developing regulations. On the basis that that is already being done and that it is following the ORR's regime, I hope that the amendment will not be pressed.

Lord Berkeley

My Lords, I am grateful to my noble friend. Notwithstanding the fact that it may have been done, it is good to have his remarks on the record. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey

moved Amendment No. 20: Page 47, line 4, at end insert— ( ) In section 82 of that Act (general provisions)—

  1. (a) in subsection (3)(b) after "which" insert "(unless subsection (4) applies)", and
  2. (b) after subsection (3) insert—
(4) The first regulations under section 43A(l) shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament."

On Question, amendment agreed to.

Clause 107 [Seat belts: delivery drivers]:

Viscount Astor

moved Amendment No. 21: Leave out Clause 107. The noble Viscount said: My Lords, this is the seat belt clause. I am grateful to the Minister, who wrote to me explaining the Government's thinking on the issue. He explained that the words that appear in the Road Traffic Act 1988 are not well understood. The Act refers to local rounds, deliveries or collections. In effect, what has happened is that a large number of people delivering over long and short distances feel that they need not wear a seat belt.

Department for Transport surveys show that only 65 per cent of van drivers and 55 per cent of their passengers wear seat belts. If those seat belts were worn at rates something like those for cars—90 per cent-plus—it would save up to 20 lives and 240 serious casualties annually. It is an important matter. We have a greater understanding of the clause since receiving the Minister' letter.

The Minister said that there was an obligation to consult representative organisations, including the Freight Transport Association and the relevant trade unions and operators, on how the system should work and what the maximum distance should be. However, it would be helpful if we heard from the Government on timing. When do they intend to start the consultation? How long do they intend it to go on for? When do they expect to bring forward regulations?

It took a long time to get the wearing of seat belts in the front of cars accepted by everybody in this country, and I suspect that the wearing of seat belts in the back seat of cars—brought in by a Conservative government—has less general acceptance and is not often done. What is the Government's thinking? Do they intend, for example, that those driving large trucks should wear seat belts unless they are doing short-distance deliveries? What about taxi drivers? I understand that they do not wear seat belts. Taxi drivers might do short journeys, but they do not often get out of their taxi. Does the department have any evidence that road safety would improve if taxi drivers wore seat belts? I do not know, so I would be interested to hear.

The general principle is that, now that people in this country wear seat belts, it would not be a great burden to require them to put on a seat belt, even for a very short journey. I was particularly surprised to find that, under current regulations, passengers need not wear a seat belt for a short journey. If a driver and a passenger are making a delivery, there is enough time, while the driver starts the car or the van and puts it into gear, for the passenger to put a seat belt on. Often, delivery vans have no airbags or anything like that. Will the Government consider not giving exemption to passengers? There may be a case for giving it to drivers for short deliveries but not to passengers.

It would be helpful if the Minister could be more explicit about the Government's thinking. They intend to bring forward regulations that we support in principle, but we need to know more about their thinking. I beg to move.

Lord McIntosh of Haringey

My Lords, I notice that the noble Viscount, Lord Astor, chose not to defend the amendment but to use the occasion to ask questions. I do not resent that.

First, the noble Viscount asked me about the timing of consultation. We shall start as soon as is practicable after the Bill receives Royal Assent. We cannot do so until there is some statutory basis for it. He asked about the position of heavy goods vehicle drivers and taxi drivers. At the moment, HGV drivers are required to wear seat belts. The amendment is about vans. Taxi drivers are exempt when they are carrying passengers. In other words, when they are plying for hire they are supposed to wear seat belts. There will be a negligible prize for the first person who sees a taxi driver wearing a seat belt when he is plying for hire.

The basic issue is the effect of Clause 107. Why do we want it? If we deleted the clause, it would not mean that delivery drivers needed to wear seat belts; it would mean that the exemption that they have would continue. Section 14 of the Road Traffic Act 1988 means that those making frequent stops, such as for household rubbish collection or doorstep deliveries need not wear a seat belt. That is not understood.

The Act refers to, the users of vehicles constructed or adapted for the delivery of goods or mail to consumers or addressees, as the case may he. while engaged in making local rounds or deliveries". What is not clear—we want to make it clear by regulation—is what is meant by "local rounds or deliveries". We shall define local rounds or deliveries by the distance between stops. In that way, we hope to achieve an increase in the rates of seat belt wearing, to which the noble Viscount referred, and a reduction in accidents, to which he also referred.

Any change would not alter the existing legislation governing the way in which children are carried in goods vehicles. It will increase understanding of the exemption legitimately provided for local rounds with short distances between stops, without taking away any protection. On that basis, I hope that Clause 107 will be allowed to stand. My understanding is that it had cross-party support in the House of Commons.

Viscount Astor

My Lords, I thank the Minister for his reply. The other place did not have the time to debate the clause, as so often happens. We have a clearer understanding of the Government's thinking. The Minister said that there would be consultation, and, in his letter, he said that it would be with other interested parties. I hope that he will be able to include in that consultation noble Lords who took part in debates on the Bill as interested parties. I am sure that he will.

Lord McIntosh of Haringey

Of course.

Viscount Astor

I am grateful for that assurance, and sI beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Lord Dixon-Smith moved Amendment No. 22: After Clause 107, insert the following new clause—


(1)—In the Road Traffic Act 1988 (c. 52) after section 40A (using a vehicle in dangerous condition etc.) there is inserted—


  1. (1) A person commits an aggravated offence if he drives a motor vehicle on a road while his ability to drive is impaired by drugs.
  2. (2) A person guilty of an offence under this Part shall be liable—
    1. (a) on conviction on indictment, to imprisonment for a term not exceeding two years, or to a fine, or to both.
    2. (b) on summary conviction, to a fine not exceeding the statutory maximum.
  3. (3) Where a person is charged with an offence under this section in respect of the effect of a drug on his ability to drive, it is a defence for him to show that—
    1. (a) he took the drug for a medicinal purpose on, and in accordance with, medical advice, or
    2. (b) he look the drug for a medicinal purpose and had no reason to believe that it would impair his ability to drive.


  1. (1) A constable shall have the right to require any driver whom he reasonably suspects of committing a moving traffic offence while under the influence of drugs to take a field impairment test, or require a blood or other bodily sample for analysis, or both, for the purpose of establishing whether or not that driver is under the influence of any drug.
  2. (2) Where a constable requires a field impairment test or a blood or other bodily sample to be taken, it shall be an offence to refuse.
  3. (3) Where a sample is required, a constable shall convey the person suspected of the offence to a police station for the taking of the sample by a properly qualified person.
  4. (4) A person guilty of refusing a field impairment test or a sample shall be liable to a fine not exceeding level 5 on the standard scale.
  5. (5) The Secretary of State may by regulation establish maximum limits for the presence of drugs in the body of a person for the purpose of determining impairment of ability to drive.
  6. (6) Regulations under this Part shall require the approval of both Houses of Parliament."

(2) It shall be the duty of each coroner to publish each year a report containing a list of all accidents which led to fatalities in which any of the drivers involved tested positive for any drug.

(3) It shall be the duty of each police force to include each year in its annual report a report containing—

  1. (a) a list of all motor accidents which led to fatalities in which any of the drivers involved tested positive for any drug, and
  2. (b) a list of all motor accidents causing injury in which any of the drivers involved tested positive for any drug."

The noble Lord said: My Lords, Amendment No. 22 seeks to modernise a significant part of the law in relation to drugs and driving on the basis of existing evidence. Drug taking is an increasing problem. Evidence indicates that there is an increasing chance that drivers will be driving under the influence of drugs. I am most grateful to the noble Lords. Lord Faulkner of Worcester and Lord Bradshaw, for adding their names to the amendment.

It would be superfluous to go over all the background to this amendment which has been well discussed in Grand Committee, at Second Reading and indeed at Second Reading of my Private Member's Bill. Since Grand Committee, still more information has come forward. I have received papers from the British Medical Association and the All-Party Parliamentary Drugs Misuse Group. These continue the trend of acknowledging that there is a problem and the complexity of the problem. No one is absolutely certain of how to deal with it but there seems to be a general concurrence that something needs to be done.

I draw the attention of the House to a paper that I have received from the National Council of Women of Great Britain, which undertook a survey specifically directed at drugs and driving in the Tees Valley region—receiving 1,024 replies. I shall not go into all the details of the survey, except to report question 4 which asked: "Should there be a legal limit for drugs (including medicines) and driving as there is for alcohol?". It is very interesting that 74 per cent of respondents answered in the affirmative. There is a clear view from the public about the need to do something on this problem. It is superfluous for me to say any more at this stage. This amendment is well directed. It may not be perfectly drafted but it was the best I could do. I beg to move.

Lord Bradshaw

My Lords, I know that this is an extremely difficult problem. I am sure that the Minister will say that it is very difficult. I want the matter kept before the Government and responsible authorities and something done as soon as reasonably practicable.

Lord Faulkner of Worcester

My Lords, I was pleased to support the noble Lord, Lord Dixon-Smith, when he proposed this measure in a Private Member's Bill. I congratulate him on his perseverance and on his ingenuity for getting it debated in the context of the Bill. I support him.

Lord McIntosh of Haringey

My Lords, I join those who congratulate the noble Lord, Lord Dixon-Smith, on his perseverance. We debated this in his Private Member's Bill and he continues to seek to improve the amendments he puts forward. I acknowledge that. However, there are two lines of attack. The first is the long and difficult haul towards statutory limits for drugs. The position is better than it was but it is still extraordinarily complicated. Different statutory limits would apply for different drugs and different drugs have different effects on different people. We are nowhere near having a usable test which could be used like the blood levels of alcohol test for drink driving. When we have such a test, the Road Traffic Act 1988, which includes drink or drugs, will allow us to implement it, but it may be some years away.

There is a second approach which we take very seriously—that is, impairment testing at the roadside. I said in response to the Private Member's Bill—I think I said again in Committee—that we are stepping up the number of police qualified to conduct impairment testing. That is rather like what used to happen as regards alcohol before blood or breath sample tests were imposed. There is a possibility that we can make progress in this area. We are considering whether it is possible to propose measures to provide additional police powers against driving under the influence of drugs. If that were possible—I cannot give any firm commitment—we could lay an appropriate government amendment at Third Reading.

Lord Dixon-Smith

My Lords, I am grateful to the Minister for his positive reply. I had expected it because he has been positive on this issue ever since I started pushing on it. I appreciate what the Minister said about additional police powers and the possibility of a government amendment. That is certainly enough to persuade me that I need take the matter no further today, but I may need to put this amendment down as a marker in order to ensure that the government amendment comes forward at Third Reading. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Faulkner of Worcester moved Amendment No. 23: After Clause 107, insert the following new clause—


  1. (1) The Road Vehicles (Construction and Use) Regulations 1986 (S.I. 1986/1078) are amended as follows.
  2. (2) After Regulation 109 there is inserted—

"MOBILE TELEPHONES 110 No person shall drive, or cause or permit to be driven, a motor vehicle on a road, if the driver is using a hand-held mobile telephone or similar device." The noble Lord said: My Lords, I tabled Amendment No. 23 in Grand Committee but did not move because we ran out of time. I have therefore brought it forward today. The amendment seeks to ban the use of hand-held mobile phones by drivers. Mobile phones are an essential part of life for many people. They enable us to maintain contact with family, friends and work colleagues and, very importantly, to summon help if we are in trouble. However, they have also created a significant risk because enormous numbers of drivers use mobile phones when driving. Surveys consistently show that around one-third of drivers admit to using a phone while driving. Those drivers with the highest accident risk are the ones most likely to do so, increasing their risk even further. Three-quarters of company car drivers and one-half of young drivers use mobiles while driving. Observation studies found that at any one time an astonishing one in 50 drivers is using a mobile phone.

Last year, the Royal Society for the Prevention of Accidents—I declare an unremunerated interest as its president—published The Risk of Using a Mobile Phone While Driving survey which showed that a substantial body of research conducted in the UK and many other countries concluded that using a handheld or hands-free mobile phone when driving is a significant distraction causing multiple problems for drivers. These include the fact that they become mentally divorced from what is happening on the road around them; they are unable to maintain proper lane position and a predictable steady speed; they are more likely to tailgate the vehicle in front and their reaction times are much slower; and they are more likely to enter unsafe gaps that are too small. The end result is that drivers who use a mobile phone when driving are up to four times more likely to crash, injuring or killing themselves or other people.

The United Kingdom's accident data do not record whether mobile phones are being used at the time of an accident, but RoSPA has collected press reports of 23 fatal road accidents in the UK where courts have cited the use of a mobile phone. The descriptions make tragic reading. A driver, listening to a message, crossed to the wrong side of the road and hit a van head-on. killing its driver. A driver ran over and killed a child pedestrian while using his phone. A truck driver, distracted when his phone rang, hit and killed a cyclist. A driver, talking on the phone to his boss. hit a parked truck and died in the resulting fire. A driver composing a text message veered into a lay-by and killed a man standing by his car.

What can be done? Regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986 states that the driver must be in proper control of the vehicle. That can be used against drivers who use mobiles, but it is ineffective, as drivers do not understand that they are not in proper control when using a mobile phone. The Highway Code advises drivers that they must not use a hand-held mobile phone when driving. The Government have conducted national publicity campaigns. Police forces have tried to conduct enforcement campaigns, but the message is not getting across to motorists, who persist in vast numbers to use their mobiles on a regular basis when driving.

A specific ban, which the amendment proposes, has massive support in public opinion surveys and in my view is the only answer. The issue was taken up by my distinguished predecessor as the President of RoSPA, whom I am delighted to see in his place as the new Government Deputy Chief Whip. RoSPA has taken the cause on board for many years, and I am delighted to be able to take it on board again. I hope very much that the Minister will be able to say that the consultation process that the Government have undertaken has led them irrevocably to the conclusion that a ban on the use of mobile phones by drivers is necessary. I hope that, if they do not accept the amendment today, they will announce a ban very shortly.

Viscount Astor

My Lords, I cannot support the amendment, whatever the principles are that lie behind it, because it raises an issue that the Government have to come forward on themselves rather than relying on the noble Lord, Lord Faulkner of Worcester—however well intended he is. There are a number of issues that the Government have to consider.

My understanding is that the use of mobile phones is legal, and that the police stop people who are driving around with a mobile phone clamped to their ear. I shall be grateful if the Minister will tell us whether that is correct. More evidence is required to show whether every form of hands-free device carries the same danger, as the noble Lord, Lord Faulkner, claims they do. I am not convinced by that, because if one follows that analogy—

Lord Faulkner of Worcester

My Lords, if the noble Viscount, Lord Astor, reads the terms of my amendment, he will see that it does not refer to hands-free mobiles. There is evidence that drivers are distracted when using hands-free as well as the handheld variety, but the police have advised us that enforcing the hands-free ban is too difficult. The modest proposal contained in the amendment is, therefore, just for the hand-held type.

Viscount Astor

My Lords, I am grateful to the noble Lord, as he has answered the question that I was just about to ask. I am not sure that there is any evidence, and I am not sure that his amendment, which says, hand-held mobile telephone or similar device", necessarily excludes hands-free phones as it is drafted.

There is a debate about whether hands-free telephones are distracting, and there may be circumstances in which they are, just as people may be distracted by changing the radio station for the music that they are listening to in the car. There is also the difficulty over whether we should allow minicab drivers to speak on their radios, for example. Taxis have digital display screens, which drivers need to look at; sometimes they do that when they are stationary, but they may have a quick glance at them as they are going along. Is that something that should happen? Then there are the emergency services, which use radios that are certainly not hands-free.

The issue is important, and we look forward to seeing the government consultation when it is finished. The Government need to take account of all the issues. However well-intentioned the amendment is, it is not for this Bill or for today.

Lord Berkeley

My Lords, I support the amendment. I should have added my name to it but I did not. That was an oversight on my part.

As a cyclist and pedestrian who has been on the receiving end of the behaviour of many drivers using hand-held mobile phones, I have witnessed first hand the situations that my noble friend described. It is impossible to drive a car, hold a phone, change gear and concentrate on what you are doing. I can give many examples of people who have been hurt and killed as a result of drivers' loss of concentration when using hand-held mobile phones. I hope that my noble friend the Minister will either accept the amendment or agree to bring forward similar amendments very soon.

5.45 p.m.

Viscount Simon

My Lords, the noble Viscount, Lord Astor, raised the hoary question of drivers changing radio station while driving although he did not mention drivers eating sandwiches while driving. However, drivers can choose when to take those actions. One cannot choose the time when one receives a call on a mobile phone, be it hand-held or hands-free. The person on the other end of the phone is not aware of the traffic conditions that the driver faces. Nevertheless the driver's attention is diverted from driving.

Research in Canada and Japan indicates that a driver's attention can be diverted from what is happening around him or her for up to 10 minutes after the conversation is completed. My noble friend Lord Faulkner said that in that situation a driver can be mentally divorced from what is happening around him.

Some time ago I was on traffic patrol with others in a marked police vehicle. I was travelling somewhat slowly round a roundabout. Someone joined the roundabout in front of me, forcing us to slow down. That person was speaking into a mobile phone and had no conception that we were there. We stopped the driver and she admitted that she had no idea that we were there. That is a perfect example of what happens in such situations.

Lord McIntosh of Haringey

My Lords, I believe that everyone who has taken part in this short debate is aware that the Government are very seized of this issue. We issued a consultation document last summer seeking views on a proposal to prohibit the use of hand-held—not hands-free—mobile phones. We have had over 1,000 responses. We are now considering the responses that we have been given. I hope that we shall be able to make an announcement very shortly.

However, there is one difficulty with the amendment and one reason why it is not absolutely essential. The difficulty with the amendment is that when we give our response to the consultation I am sure, for the reasons given by a number of noble Lords, that it will be much more complicated than the wording of the amendment. The phrase, drive, or cause or permit to be driven is a very interesting phrase. I refer also to the phrase, a motor vehicle on a road". Does that apply to carparks or to private roads? As regards the phrase, if the driver is using a hand-held mobile telephone", what is the definition of a "hand-held mobile telephone"?

Should there be exemptions for emergency services? All kinds of issues will have to be referred to in our response. That is the rather profound difficulty with the amendment. But, if it is any consolation, we do not need primary legislation to implement whatever we decide to do. It can be done by—as the amendment suggests—an addition to the construction and use regulations. We have power under Section 41 of the Road Traffic Act 1988, as amended, to make regulations about the conditions under which motor vehicles may be used on roads. If any announcement is made which commits us to change, it will not be lost because it is made after the passage of this Bill.

Lord Faulkner of Worcester

My Lords, I think that I am able to decode the message which my noble friend gave me in that reply. I am encouraged by it. I believe that an announcement is not too far away. In that expectation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bradshaw moved Amendment No. 24: After Clause 107, insert the following new clause—


  1. (1) In the interest of public health and safety, the following shall have effect.
  2. (2) The Secretary of State shall within one year from the coming into force of this enactment make a permanent traffic regulation order to prohibit the use of non-essential mechanically propelled vehicles on the National Trails.
  3. (3) Non-essential mechanically propelled vehicles shall mean all such vehicles but shall not include those driven by individuals with an estate or interest in land adjoining the Trails or their lawful visitors or emergency vehicles.
  4. (4) A traffic regulation order shall mean an order as defined in the Road Traffic Regulation Act 1984 (c. 27) and as subsequently amended."

The noble Lord said: My Lords, the amendment addresses a matter of great concern. Since we previously discussed it in Grand Committee, I notice that the Countryside Agency has published a report in which it describes the situation on the national trails as a national disgrace.

There is no purpose in local authorities seeking to publish bits of traffic orders for bits of the national trails as they are very expensive to produce, take a long time to produce and are almost unenforceable once passed. What is needed to protect the national trails—we desperately need something to protect them—is a blanket traffic order which applies to all national trails everywhere and prohibits the use of any mechanically propelled vehicle other than that which has legitimate reason to be there. That would obviously include motor bikes and various quad bikes.

I know before he responds to the amendment that the Minister is sympathetic to what I am saying although he is concerned about the means of achieving what I propose. Should he wish, I am very willing to defer to Third Reading consideration of the amendment if between now and then I can meet with someone, for example, a Minister in another place, who is charged with getting something done about the matter.

I do not want to lose the opportunity to move a simple amendment that requires the Secretary of State to do something within a period of time after the Bill has passed; it does not compel him to do something immediately it has passed. However, I should like the Minister in his reply to advise me what I may best do to achieve an end result which, if put to a free vote of the House, would be passed overwhelmingly. I believe that that is what most of us would like to achieve. I beg to move.

Lord McIntosh of Haringey

My Lords, this issue is a nightmare. The noble Lord, Lord Bradshaw, has shown me the photographs of the Ridgeway, and I entirely accept that the places he has shown me are in an intolerable state. They are seas of mud or water and are in many ways impassable for pedestrians or cyclists. I therefore recognise the noble Lord's valid point. However, I do not have a simple answer, nor do I believe has he.

The noble Lord asked me what progress we can make. Invitations have been issued to him—I hope that by now he has received his—and the noble Baroness, Lady Scott of Needham Market, to attend a meeting to be held next week by Alun Michael, the Minister for Rural Affairs. It will be one of a number of meetings involving MPs, local highway authorities and the Countryside Agency to assess the progress made by the Ridgeway Management Group in implementing a comprehensive management plan, which includes the use of TROs. I now realise that I should have ensured that the noble Viscount, Lord Astor, was also invited, in view of the fact that he lives close to the Ridgeway. I will remedy that omission. It seems that the noble Lord, Lord Bradshaw, has not received the invitation. It will be sent again as soon as possible. It is now up to the noble Lord, Lord Bradshaw, and his colleagues to persuade Alun Michael that something should be done.

However, if the noble Lord's concern relates to the difficulty of local authorities to implement their powers to lay TROs, I can reassure the noble Lord that Section 22 of the Road Traffic Regulation Act 1984 already enables traffic regulation orders to be made in relation to special areas of the countryside. That section of the Act applies to, among other areas, long distance routes such as the Ridgeway.

The Act enables the Countryside Agency to make submissions to the Secretary of State about the desirability of a traffic regulation order being made in relation to a national trail. Where the traffic authorities responsible for a trail notify him that they do not intend to make an order imposing the proposed restrictions, the Secretary of State may himself promote an order as if he were the traffic authority. Of course, it will be the subject of the same procedures for objections, and if necessary a public inquiry, but I suggest that the noble Lord, Lord Bradshaw, should urge that course on the Minister for Rural Affairs.

Lord Bradshaw

My Lords, I thank the Minister for his reply. I will take advantage of attending the meeting, if I can. I do not believe that I have received the invitation. Unfortunately, my noble friend Lady Scott is in Hamburg, or somewhere a little more exotic than here. We will try to persuade Alun Michael to table proposals at Third Reading, because this is a rare parliamentary opportunity to do anything. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bradshaw

moved Amendment No. 25: After Clause 107, insert the following new clause— Operating centres In section 13(5) of the Goods Vehicles (Licensing of Operators) Act 1995 (c. 23), after paragraph (d) there is inserted— ( ) in permitting goods vehicles operators to establish an operating centre, the traffic commissioner is satisfied that the centre is available, suitable and of sufficient capacity and must take into account the suitability of the local road network for the establishment of such a centre;". The noble Lord said: My Lords, I hope that we shall receive a positive response from the Minister to this amendment. This issue is a running sore in the countryside, particularly with farm buildings coming on to the market. In considering the suitability of an operating centre, the traffic commissioners would be enabled to look at the building, the road and the splay on to the road, but would be precluded from deciding whether the roads in the vicinity were suitable for heavy traffic.

It is all very well to say that the local authority may object to the planning consent. In fact, the planning consent for the buildings and the access to it may be in order. What is not in order is the highway, often leading for many miles around the operating centre. All that the amendment would do—and I hope that it is a simple amendment—is allow the traffic commissioner to have a little more power than he has now, but to take account of the impact that vehicle operation will have on the villages or small settlements around the operating centre. It is a minor amendment, but I am sure that there are many parts of the country where it would effective. It is no good to say that local authorities are experts on goods vehicles, even if the traffic commissioner had power to take into account what they say. Frankly, local authorities are not experts on goods vehicles and many of them know very little about them. I beg to move.

Lord Berkeley

My Lords, is the noble Lord going speak to Amendment No. 26?

Lord Bradshaw

My Lords, I beg your pardon. I did not realise that it had been called.

We have come across a somewhat anomalous situation in the regulations. As I understand it, it was the Government's intention under the Transport Act 2000 to make sure that a vehicle which did not have an operator's licence could impounded by the Vehicle Inspectorate. As a result of a case which has recently been held by the Transport Tribunal, it appears that a company which hires out vehicles has no obligation to make sure that the person to whom it has hired them does indeed have the operator's licence. It can therefore claim back the vehicle from the impounder. That has the effect of circumnavigating the Government's legislation. Bearing in mind that the vehicles to which any value is attached are usually the ones which are hired out, it could mean that as many as 80 or 90 per cent of vehicles on hire may not have an operator licence. 1 am not saying that they do not, because most of them do, but the ones that do not can then be claimed back by the holder of the master lease, because he can say that he has no duty to ensure that there is an operator's licence.

Lord Berkeley

My Lords, I support the amendments. I will not make a long speech about them. Amendment No. 25 has been discussed in your Lordships' House many times. It really is time that this matter was resolved, because the traffic commissioners have a unique role to play, if they are allowed to play it. It is ridiculous that if there is legislation which allows vehicles to be impounded for doing something wrong, one can get round that by leasing them rather than owning them. That makes a mockery of the law. I fully support the amendments.

6 p.m.

Lord McIntosh of Haringey

My Lords, we have had the opportunity to discuss this issue between Committee and Report. There did seem to be a conflict of evidence—perhaps I should put it that way—so I shall therefore read word for word the speaking note that I have been given.

Local authorities and planning authorities have a statutory right to object to goods operator licence applications. They are sent details of all applications in their area. They can object to a proposed operating centre on the environmental factors that result from the use of the land or the general suitability of the centre in terms of its size, parking arrangements and ingress/ egress on to the public highway. They also have a right of appeal to the Transport Tribunal against a traffic commissioner's decision. The traffic commissioners would like local authorities to take a more proactive role in the licensing process.

Traffic commissioners' powers are limited, when deciding on licence applications, to considering the operating centre itself, any private road leading to a nearby public road and the point of ingress and egress on to the public highway. If objections are received that are based on factors outside this scope, for example traffic problems on the wider road network, then the traffic commissioner is unable to consider them. So far, the noble Lord, Lord Bradshaw, and I are in agreement.

Although the traffic commissioners cannot consider the wider road network, the local authorities themselves have wide powers under the Road Traffic Regulation Act 1984 to regulate traffic by means of traffic regulation orders. These can be used to prohibit, restrict or regulate the use of goods vehicles. In exercising these powers it is for the local authority to consider the needs of local residents, emergency services, local businesses and those who work in or visit the area. They can use these powers to balance the supply and demand for road space in the light of local needs and circumstances.

Local authorities can, and should, also use their planning powers to stop the opening of a new operating centre if the road network cannot take it. It is right that these powers should rest with local authorities rather than with traffic commissioners. Traffic commissioners are unlikely to have enough detailed knowledge of road traffic conditions to make decisions on the suitability of additional vehicles on the local road network. Pressure on the local road network can be caused by many other factors than an operating centre, and local authorities have the local knowledge to allow them to take these factors into account. We therefore see no reason to extend the traffic commissioners' powers in this way. I have details of the traffic commissioners' Annual Report for 2001–02 which I shall happily send to the noble Lord, Lord Bradshaw.

Regarding Amendment No. 26, the owner of the vehicle detained by the Vehicle and Operator Services Agency can apply to a traffic commissioner for the return of the vehicle on the grounds that he or she did not know that the vehicle was being operated illegally. It is the matter of when a leasing company is to be taken to "know" that is at the heart of the matter. I have looked into the two cases which were mentioned, where impounded vehicles were apparently handed back to the leasing company owners. I am sorry to say that they were not straightforward.

One case involved three separate hearings. A leasing company leased a vehicle to an operator on the basis of a statement from that operator that he would operate the vehicle in accordance with the law. They made a number of efforts to find out if the operator held a licence. The matter had not been solved when the vehicle was impounded. At the first hearing a traffic commissioner refused the application for the return of the vehicle. The Transport Tribunal on appeal sent the case back for re-hearing. Another traffic commissioner then decided, in the light of the tribunal's guidance, and after reviewing the evidence, that the owners did not know that the vehicle was being operated illegally, and directed that the vehicle should be returned. However, she noted that the company had since become aware that licences could readily be checked on the department's electronic database of operators—the existence of the database is now widely known throughout the industry.

On the basis of the guidance given by the tribunal in this case, it seems fairly clear that turning a blind eye or not persisting in making normal inquiries will amount to knowledge for the purposes of the current legislation, and the vehicles of a hiring company that was to turn a blind eye would therefore be at risk. Furthermore, although it is ultimately a matter for the courts to decide, it does seem now that the existence of the database is becoming more widely known, and any company failing to make that one simple inquiry would have much explaining to do.

Perhaps I do not need to describe the second case, but I think that the conclusion is clear. The hiring and leasing industry has been very diligent in informing customers about operator licensing requirements and in carrying out voluntary checks of licences. If one hires a car, the hiring company invariably requires to see one's driving licence, though it has no obligation to do so. Since it is now well known that it is possible for the hiring company to check on the database, there is no reason why self-regulation, as we have at present, should not work. Therefore, the amendment should not be pressed.

Lord Bradshaw

My Lords, I thank the Minister for that reply. However, I find that his reply to Amendment No. 25 is not valid. When planning permission is given for an operating centre, it is not necessary to specify the type of vehicle that will use it. Someone applies for planning permission for vehicles to use an operating centre, but it is often not apparent the sort of vehicles that will use it. Specifying whether one will get a I 7-tonne fixed-wheel vehicle or a 32, 38 or 44-tonne artic is unnecessary.

The imposition by local authorities of traffic orders is lengthy and extremely difficult, and their enforcement by the police is almost non-existent. It must come almost at the bottom of the list of priorities for any police force. However, the traffic commissioners are available and know about local traffic conditions—that is why they are there. They certainly know a lot that local authority employers do not; for example, they know about the records of people who apply, what they have done before, who their managers are, and all sorts of relevant matters.

I will withdraw the amendment but I shall ask the Minister, before Third Reading, to explain why the very simple addition to traffic commissioners' responsibilities cannot be made. I have a feeling that it is more to do with the obduracy of certain officials in the department than with whether it can be done. Occasionally, we on these Benches say something sensible.

I accept what the Minister said about Amendment No. 26 if we now assume that the existence of the database is widely known among leasing companies. The ability to make a check is therefore available to anyone, and anyone who fails to make it deserves to have his vehicle impounded. I hope that the Transport Tribunal, if no one else, reads what the Minister and I have said in Hansard, and that in future the vehicles will not be returned. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]

Clause 108 [Highways: snow and ice]:

Lord Berkeley

moved Amendment No. 27: Page 48, leave out lines 35 to 37 and insert— "(1A) In particular, a highway authority is under a duty to ensure, so far as is reasonably practicable, that—

  1. (a) safe passage along a highway is not endangered by snow and ice; and
  2. (b) where the highway is in the vicinity of a railway, otherwise than where the railways crosses the highway on the same level, they take steps to constrain vehicles which use that section of highway from being able to depart from it so as to cause a hazard to the safe operation of the railway.
For the purposes of this subsection, 'railway' means a railway within the meaning given by section I l9A (12)." The noble Lord said: My Lords, the amendment is a second attempt. I suggest that it is an elegant way of extending the snow-plough clause, which, after all, was I believe responsible for changing the name of the Bill from the railways safety Bill to the Railways and Transport Safety Bill. I am sure that my noble friend will correct me if I am wrong.

The amendment is nothing to do with snow ploughs. It revisits why the railways should have to pay to keep cars on the road rather than on the railway. We debated that in Grand Committee, when the noble Baroness, Lady Scott, said that it was not fair that local authorities that were short of money should have to protect their roads that were next to railways to prevent cars and lorries from jumping on the railway lines. That argument is to do with ability to pay. Given the railways' financial situation, it could equally well be applied to them.

At the moment, we have a nice cosy arrangement of sharing the cost, set out in the lovely document, Managing the accidental obstruction of the railway by road vehicles. That cost is not insignificant at about £60 million in total. It seems unfair that the railways should have to pay half of that. One could argue that, leaving aside level crossings, if road vehicles land on the railways that is the fault of the road vehicles and the highways on which they run. It is up to the highways and the authorities, be they local authorities, the Highways Agency or anyone in between, to take steps to prevent such occurrences. That is why I tabled the amendment as an addition to the snow-plough clause. I beg to move.

Lord Dixon-Smith

My Lords, my intervention will be brief. I have a lot of sympathy for the principles that the noble Lord, Lord Berkeley, advocates. It would be right for any new form of regulation that is set in place to acknowledge the difficult position in which the newly agreed practice would put the heritage railways if it were applied to them.

Highways authorities and the railways receive enormous sums—both are largely funded by public money. Heritage railways receive no such support. Whatever does happen, heritage railways should be exempt from any pay arrangements that might involve them in "secondary consequences"; namely, something that someone does on a highway.

Lord Faulkner of Worcester

My Lords, very briefly, I was about to make exactly the same point as the noble Lord, Lord Dixon-Smith. Whatever regime is established for "commercial railway", it would be monstrous if the heritage railways had to pay for the repair and construction of road-bridges which happened to go over their railways. They do not receive any public subsidy; they struggle hard enough as it is, and they are an important part of the tourist industry. I hope that they can be exempted from whatever regime is established.

Lord McIntosh of Haringey

My Lords, we have already exempted heritage railways—one example of low-speed railways—from several provisions of the Bill. I hear what the noble Lords, Lord Dixon-Smith and Lord Faulkner, say about bridges and low-speed railways; I will write to them on that subject.

However, I have difficulty with the amendment. It seems to presume that accidents can be prevented by the imposition of a duty on a highways authority or rail track operator. Duties do not prevent accidents. If a railway is responsible for a bridge, the fact that it has a duty to prevent trains coming off bridges onto roads does not mean that accidents are prevented.

Accidents are prevented by proper standards, by proper analysis of the risks at road/rail interfaces, and by taking action at the sites at which risks are high. That applies to highways authorities and to the railway infrastructure authorities. The agreement that has been reached between the highways authorities and the infrastructure authorities is that they will split the cost of safety measures 50:50.

Accidents can happen when approved safety barriers are in place. Traffic harriers were in place at the site of the Selby crash in February 2001; relevant standards were complied with, but the driver got his vehicle onto the line because he went on driving his vehicle after it left the road, to try to prevent it from toppling over.

A case like that cannot be dealt with by the duties provided in this amendment. No traffic measures that a local authority could take would prevent all incursions. We will continue to see that the standards for barriers and bridges and so on are as high as possible, but we cannot guarantee that we will avoid accidents and incidents when drivers behave irresponsibly. The amendment does not add anything; in fact, it goes some way to confusing the issue as between road and rail.

Lord Berkeley

My Lords, I am very grateful to my noble friend Lord McIntosh for that answer, especially for the heritage railway point. It is quite reasonable that train drivers should have a responsibility to keep the train on the track, but the Minister seems to suggest that they should also be responsible for keeping cars on the road next to the track. If the train drivers can keep the trains on track, as they usually do, the fact that many more cars land on railways than trains land on roads indicates that a 50:50 split is unfair. Nevertheless, I shall read carefully what my noble friend said and perhaps seek to have a meeting with him before Third Reading. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Amendment No. 28: After Clause 108. insert the following new clause—

"INDEPENDENT CROSS-MODAL TRANSPORT SAFETY BODY The Secretary of State shall, within a year of the date on which this Act receives Royal Assent, publish proposals for the setting up of an independent cross-modal transport safety body.

The noble Lord said: My Lords, this amendment follows on from our discussions in Grand Committee about whether the Health and Safety Executive should or does have responsibility for roads. My noble friend argued that the Health and Safety Executive should not have responsibility for roads because it was not qualified to take such responsibility. He took us round the Caucasian Chalk Circle, quoting, everything shall be with those who are good for it".—[Official Report, 5/6/03; col. GC 276.]

I have not had a chance to look up Brecht's full works but I wonder what would be achieved if that quote applied to all legislation.

I understand that transport safety has grown in a slightly haphazard manner over the years. However, I believe that we need to consider the problem of transport safety one last time and the statistics of death rates per billion passenger kilometres. For air, the figure is zero; rail, 0.1; water, 0.5; bus and coach, 0.2; car, 2.9; cycle, 35; pedestrian, 47 and motor cycle and moped, 123. In 2001, 3,450 died in road accidents in Great Britain compared with five in plane accidents; four in accidents involving UK-registered merchant vessels and two in public transport flights subject to a UK air transport licence.

I believe that the Health and Safety Executive has a duty here to consider road accidents. I understand that the HSE believes that if enough people are at work on the road—let us face it, all those driving lorries and white vans are at work as are quite a few car drivers—it should be concerned as to whether it is fulfilling its duty under Clause 1 of the 1974 Act to secure, the health, safety and welfare of persons at work", and, protecting persons other than persons at work against risks to health or safety arising out of or in connection with the activities of persons at work".

At present, what the Health and Safety Executive does and does not do has little logic. It goes back to a letter from the then Secretary of State for Employment, Mr Michael Foot, to Bill Simpson of the Health and Safety Commission dated 1975. I can go at some length into whether it covers building regulations but not safety of buildings; and as to ports, bridges at ports going under ships; or bridges between structures—we had an example in Ramsgate a few years ago—or dangerous goods by road, and a few other such things.

I shall not quote from the letter because it is four pages long. Yesterday, a Written Answer to Mr Chope from Mr Jamieson in another place (at col. 224W of Hansard) referred to the provision relating to fatigue for all safety critical workers including drivers. If the Health and Safety Executive is looking into the question of fatigue of train drivers, I suggest they should do the same for road drivers to try to prevent some of the 3,000 or so road deaths.

In December 1998 the Department for Transport issued a consultation document on transport safety asking for views. In June 2000 it issued a review of the issues raised. In reading that I believe the responses can best be described as, "Yes, there should be change but please leave us alone because it is too difficult". It concerns grouping safety standards and adding other modes of transport to the Health and Safety Commission/Executive responsibilities; accident investigation, standard setting and enforcement.

Accident investigation is covered fully in the Bill. It is very good to hear that in addition to what is proposed for railways, the chief inspectors of marine, air and railways meet regularly and will do so on a formal basis. That is to be welcomed but there are many other things besides that. For that reason I propose this amendment suggesting that the Government may bring forward, as part of the 10 year plan review, proposals for bringing together investigations, regulations, common enforcement policies, even manslaughter rules, but in particular cross modes. Let us not forget that in Sweden they have started something called "vision zero" policies towards zero road deaths. We have 3,450 fewer deaths to achieve. I urge the Government to take this problem out of the "too difficult" box and progress what they started five years ago through a White Paper or similar document. I beg to move.

Viscount Astor

My Lords, I am rather perplexed by this amendment and by the speech of the noble Lord, Lord Berkeley. He made a perfectly valid proposal on why the Health and Safety Commission should have responsibilities with regard to roads. However, the amendment says nothing of the kind. It seeks to bring in an, independent cross-modal transport safety body". What an awful combination of words. No doubt one would then have a committee which would require funding and staff and would ask for powers. It would go off to EU conferences and probably go round the world attending intercontinental cross-modal transport safety conferences. I am afraid that this is utter rubbish. I am sure that the noble Lord, Lord Berkeley, would make a wonderful chairman of it if it ever came into being.

We have the Department for Transport, the Secretary of State and the various Ministers responsible and answerable to Parliament. I do not believe that this body would add anything, although the noble Lord made one valid point about the responsibility of the Health and Safety Commission, but that has nothing to do with the amendment.

Lord McIntosh of Haringey

My Lords, the rest of the quotation from the coda of the Caucasian Chalk Circle, which I failed to give, says that everything shall go to those who are good for it, thus the cart to the good driver that it is well driven. I hope that Hansard will correct me if I have remembered that defectively.

The noble Lord, Lord Berkeley, recognised that we have established arrangements to permit closer coordination between the chief inspectors for air and marine accidents and the newly appointed chief inspector for rail accidents. The recently formed Board of Transport Accident Investigators will further assist in the promotion and sharing of best practice among cross-modal transport safety investigators. That seems to me a very proper answer to the issue raised by my noble friend Lord Berkeley.

However, he wants to go further. He wants an independent cross-modal transport safety body. From his speech it sounds as though he wants it to replace the existing transport safety bodies for individual modes of transport. If he is to justify that, he has to convince the House that there is a common element to transport safety regulation that outweighs the need for specific skills. I very much doubt it. Even if there were any significant elements that would require them to be merged into a single body, any change could be hugely disruptive. I do not think somehow we are going to accept the amendment.

Lord Berkeley

My Lords, I am grateful to my noble friend for that reply and for the comments from the noble Viscount, Lord Astor, which were most interesting. It is a challenge and a matter that will need some study. It will not happen tomorrow. However, I still believe that it would be interesting for the Government to take forward their transport safety consultation. That will probably take much longer than the time available before Third Reading, but on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.