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Standing Committee B
The Committee consisted of the following Members:
Chairmen:
Sir Nicholas Winterton, †Mr. Edward O’Hara
†Afriyie, Adam (Windsor) (Con)
†Atkinson, Mr. Peter (Hexham) (Con)
Brake, Tom (Carshalton and Wallington) (LD)
†Brazier, Mr. Julian (Canterbury) (Con)
†Buck, Ms Karen (The Parliamentary Under-Secretary of State for Transport) (Lab)
†Crausby, Mr. David (Bolton, North-East) (Lab)
†Greening, Justine (Putney) (Con)
†Gwynne, Andrew (Denton and Reddish) (Lab)
†Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Keen, Alan (Feltham and Heston) (Lab/Co-op)
†McGovern, Mr. Jim (Dundee, West) (Lab)
†Moffatt, Laura (Crawley) (Lab)
†Pugh, Dr. John (Southport) (LD)
†Roy, Mr. Frank (Motherwell and Wishaw) (Lab)
†Smith, John (Vale of Glamorgan) (Lab)
Stringer, Graham (Manchester, Blackley) (Lab)
†Syms, Mr. Robert (Poole) (Con)
Mr. Geoffrey Farrar, Dr. Hannah Weston, Committee Clerks
† attended the Committee
Thursday 7 July 2005
(Morning)
[Mr. Edward O’Hara in the Chair]
New Clause 1
Responsibility of airlines for health, welfare and well-being of passengers
‘After section 84 of the Civil Aviation Act 1982 (c. 16) insert—
“84A Responsibility for health, welfare and well-being of passengers
(1) It shall be the responsibility of airlines to which this section applies, so far as is reasonably practicable, to protect and promote the health, welfare and well-being of their passengers.
(2) The general responsibility to protect and promote the health, welfare and well-being of passengers includes particular responsibilities—
(a) to seek to prevent the occurrence or unnecessary aggravation of any injury, illness or disease;
(b) for the mental and psychological health, welfare and well-being of passengers;
(c) for the provision and maintenance of equipment that is, so far as is reasonably practicable, safe and without risks to the health, welfare and well-being of passengers;
(d) for the provision of such information, instruction. training and supervision to staff as is necessary to protect and promote the health, welfare and well-being of passengers; and
(e) for the provision of such information and instruction to passengers as is necessary to protect and promote their health, welfare and well being.
84B Responsibility for health, welfare and well-being of passengers: supplementary
(1) Subject to the provision of subsection (2) section 84A applies to—
(a) all carriers to whom the Warsaw Convention as amended at The Hague, 1955 (hereafter “the Convention”) applies by virtue of Schedule 1 to the Carriage by Air Act 1961 (hereafter “the 1961 Act”); and
(b) all carriers to whom Schedule 1 to the 1961 Act applied by virtue of an Order in Council made under section 10 of that Act (application to carriage by air not governed by Convention).
(2) Section 84A shall not apply to the carriage of members of the armed forces where—
(a) that carriage takes place in pursuance of a duty or a commitment as a member of the armed forces, and
(b) the whole capacity of the aircraft has been reserved for such carriage.
(3) In this section “members of the armed forces” means all persons within the meanings of the “regular services” or of the “reserve forces” given in section 127 of the Reserve Forces Act 1996 (c.14) (interpretation).
84C Responsibility for health, welfare and well-being of passengers: liability
Where an airline to which section 84A has negligently failed to comply with the responsibility specified the airline shall be liable in respect of damages arising from such negligent failure.
84D Responsibility for health, welfare and well-being of passengers: amendments of the Carriage by Air Act 1961
(1) The 1961 Act shall be amended as follows.
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(2) After section 1(1A) (Convention to have force of law), there shall be inserted—
“(1B) Where the provisions of the Convention conflict with the provisions of the Aviation Health Act 2003, the provisions of the Convention shall not have the force of law.
(3) In section 4(1) (limitation of liability), after the word “enforced”, there shall be inserted “other than proceedings in respect of a liability under section 4 of the Aviation Health Act 2003.”.’.—[John Smith.]
Brought up, and read the First time.
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John Smith (Vale of Glamorgan) (Lab): I beg to move, That the clause be read a Second time.
May I say what a privilege it is to be a member of a Committee chaired by you, Mr. O’Hara?
A first appearances, new clause 1 appears to contain complicated additions to the Civil Aviation Act 1982. In fact, nothing could be further from the truth, as it would introduce a relatively simple change in the law. It would include a number of new sections after section 84 of the 1982 Act. Proposed new section 84A covers responsibility for health, welfare and well-being of passengers, new section 84B deals with supplementary provisions to that responsibility, and liability is covered in new section 84C. Finally, and crucially, new section 84D proposes amendments to the Carriage by Air Act 1961.
New section 84A simply sets out a general duty of care for airlines and air carriers in relation to the health, welfare and psychological well-being of their passengers. The Committee might wonder why that is proposed. The reason is that, believe it or not, airlines currently have no duty of care for the health and welfare of their passengers. They have considerable duties of care for their passengers’ safety in relation to accidents caused by “events” on aircraft, the most obvious being an air crash, which can be pretty risky for airline passengers. However, they have no duty of care for their passengers’ health, and section 84A would place it on them.
I stress that there is nothing unusual about that general duty. It is exactly the same duty of care that any other passenger carriers have to bear. Whatever form of public transport someone travels by—ship, train, coach or even taxi—the carrier has an implicit duty of care for the health of their passenger. Rather bizarrely, since 1929 under article 17 of the Warsaw convention, airlines have no such responsibility.
One could not imagine a more contrived environment than an airline cabin. The air that passengers breath is controlled by the airlines: the ventilation, level of oxygen and its temperature. The food that passengers eat is controlled, as is where they sit, how they sit and, importantly for those of us who have travelled frequently in economy class, the amount of space they have to sit in. The airlines control the exercise that they can take—whether people can stand up and walk around on airlines—the amount of alcohol and water that they can drink, and what people eat on airlines. Indeed, there is a big issue about the salt content of airline food. The pressure in a standard aircraft in 2005 is equivalent to the air pressure 6,000 ft above sea level.
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My point is that all of that is controlled by the airlines, but they have no responsibility for their passengers’ health. That might sound counter-intuitive, but it is accurate. It is an anachronism that should be removed, and I believe that the Bill might be able to do that. New section 84B sets out the specific areas of responsibility for the health of airline passengers, new section 84C sets out responsibility for passengers and new section 84D sets out, crucially, the area of liability. However, it is important that the Minister and members of the Committee appreciate that, in placing a general duty on the airlines, we are not placing any penalties on them. We are not placing a general statutory duty on airlines and then saying that if they fail to deliver those responsibilities they will be fined or penalised by the state or by any privatised airport authorities.
The point is that airlines will be held to be liable if they fail in their duty to safeguard the health of their passengers. In other words, airline passengers or their families will still have to go into court, which is not an easy thing to do, and prove that the airlines were responsible for damage or injury to their health or, indeed, death, as we believe may be the case in many instances. The families will still have to have their day in court and argue that it was due to the actions of airlines—or indeed the failure to act and negligence—that their loved ones were killed, before the airline can be held liable or required to pay compensation for its actions or failure to act. The fact is that, in 2005, victims of air health incidents cannot even go to court to argue that the airlines are responsible for the damage to their health. That is an absurd anomaly. In the 21st century, when air travel is the fastest-growing mode of public transport in the world, when more than 60 million British passengers fly long haul out of this country every year, their health is not protected by the airlines that carry them.
New section 84D amends the Carriage by Air Act 1961. It would override article 17 of the Warsaw convention. At the time when it was agreed, the Warsaw convention was a well thought out, well balanced piece of international legislation. Air travel was quite a novel activity; most countries wanted to promote it. Very few people participated in air travel and, at that time, it was quite a dangerous activity. In 1929, people were still flying in biplanes and taking great risks. There was no such thing as pressurised cabins. At that time, most advanced countries rightly wanted to promote and develop aviation and air travel, and so they introduced limited liabilities. The major concern at the time was safety—the number of air crashes and the airworthiness of aircraft. Health was not a factor in 1929; one was lucky to survive a flight in one piece, without worrying what the effect might be on one’s health at a later date.
Now, however, health is a critical issue, whereas safety is not. That is because of the effectiveness of much legislation governing the safety of air travel. In fact now, air travel is the safest mode of public transport. People are far less likely to be killed or injured as a result of flying in an aircraft than by riding
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a bicycle or travelling in a car. It is a safe mode of transport but there is a growing body of evidence that it is an unhealthy mode of transport.
I speak in Parliament on behalf of the Victims of Air-Related Deep Vein Thrombosis Association. It supports me in my effort to amend the Bill, which it generally supports. We have lists of hundreds of victims of deep vein thrombosis. It is considered to be a major public health issue related to air travel. We do not know the full extent of the problem and we have never pretended to know. We do not know exactly how many people are dying or being seriously injured from this condition in Britain, let alone throughout the world, but there is a huge amount of anecdotal evidence and indicative evidence.
The most recent piece of research was carried out by a medical research institute in New Zealand the year before last and published in The Lancet. It showed that as many as one in 100 of all air travellers who travel long haul, which is defined as longer than four hours, suffer not a blood clot but a deep vein thrombosis. We suspect that it is caused primarily by prolonged immobility on an aircraft, especially in cramped conditions, but other factors could be involved.
As I mentioned on Second Reading, research is about to be published by the World Health Organisation and a team of world experts led by Professor Fritz Rosendaal at Leiden university. It is about to show, probably finally and definitively, that there is a clear correlation between long-haul air travel and the incidence of thrombosis. We look forward to that research which is financed primarily by the Department for Transport. It will be an important milestone in the protection of the health of air travellers.
This Bill also protects the health of air travellers. That is why I warmly welcome and endorse clause 7. I congratulate the Minister, her Department and the Government on bringing this forward. It is relevant to my new clause. It places a duty of care on the Secretary of State for Transport to safeguard and protect the health of airline passengers. It places a modest levy on the airlines to finance the running of the aviation health unit at CAA Gatwick which is the first in the world to provide information and support for air passengers, the Government and the airline industry. Crucially it extends the air navigation orders to cover health issues as opposed to safety issues.
When the Bill is passed in full, the CAA will be able to issue air navigation orders protecting the health of airline passengers. For the first time it will be able to cover things like ventilation in cabins. It will also be able to cover the seat pitch of the seating arrangements in airline cabins. The seat pitch is the distance between the front of one seat and the back of the seat in front. Those who travel low cost, long distance, with their knees up under their chin, will know exactly what we are talking about. One of the crucial reasons why that distance cannot be extended is that under air navigation orders it can be extended only for safety reasons, primarily for safe access to and egress from the aircraft in the event of an accident or an emergency.
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Such orders cannot be issued for health reasons: in other words, when a person is cramped, they cannot move, their blood does not circulate properly and pools in their ankles. According to at least one eminent researcher in the field, Professor John Scurr, one in 10 people who travel on long-haul aircraft develop clots as a result of that pooling. However, the Government have been absolutely powerless to do anything whatever about that and will remain so until the Bill is enacted. I have tabled new clause 1 because the Secretary of State may end up responsible for providing advice, information and guidelines through the CAA about the health of airline passengers, but, believe it or not, airlines will have no responsibility whatever for the health of their passengers. That could, at some point in the future, result in a serious anomaly: in other words, the Government will have responsibility for aviation health—the first Government in the world to do so—but the airlines will not.
New clause 1 would change that and would place such responsibility on the airlines and allow passengers who are injured, or the relatives of passengers who are killed as a result, primarily, of deep vein thrombosis to pursue their case. Deep vein thrombosis is what concerns me, but without frightening members of the Committee there are a number of serious aviation health issues, particularly those that are of concern to airline pilots, one of them being toxic fumes entering the cockpit and affecting their consciousness, which would be of concern to anyone flying on an aeroplane, 33,000 ft up in the air half way across the Atlantic. There is a range of health issues. Crew are not covered by the normal safeguards in health and safety legislation, including the Health and Safety at Work etc. Act 1974, because of the outdated convention that was produced over 70 years ago.
It is a pleasure for me to speak to the new clause, and I hope that the Government will be able to accept it in its entirety. If they are unable to do that, I should be interested to hear what the Government’s thinking is and what their aspirations are for future liabilities being placed on airlines. I am confident that, at the end of the day, as consumers realise the risks to their health and well-being that they take when they board an aircraft—because they are not insured through normal travel insurance when they board an aircraft against damage or injury to their health, or death—the passenger demand for the same protection that all other passengers enjoy will be unstoppable.
When people board an aircraft they see videos giving them advice on healthy living, telling them what to eat, not to drink too much, and to take regular exercise, but that is a relatively new phenomenon. That would never have been seen on an aircraft four years ago, before the launch of the DVT campaign. Among the families of victims of that condition, the reason for putting the new clause in the Bill was the publication of the excellent Select Committee on Science and
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Technology report on aviation health. It was a well-balanced and well-thought-out research paper, which has resulted in that action. As I have said, I am delighted that clause 7 is in the Bill. I consider it a major step forward in the protection of British air travellers, and the Government should be proud of that.
I finish on a discordant note by expressing one concern. I believe that all Committee members have received a briefing paper on the Bill from Virgin Atlantic. In it, it refers to aviation health issues, and deep vein thrombosis in particular, as merely press scare stories. It also calls on the Government to withdraw the levy, which I think is outrageous because airlines have no liability. Airlines cannot both claim that there are no major health concerns regarding air travel and hide behind article 17 of the Warsaw convention, which prevents them from being held liable. With that unfortunate criticism of Virgin Atlantic, I commend new clause 1.
Mr. Julian Brazier (Canterbury) (Con): May I take this opportunity to welcome you to the Chair, Mr. O’Hara? We have completed a large part of our proceedings, but I am sure that you will find it as interesting as Sir Nicholas did on Tuesday.
It is appropriate to start by paying tribute to the hon. Member for Vale of Glamorgan (Mr. Smith), whose campaign has certainly saved lives in past years. The scare stories that he has generated in the press have played a major role in the appearance of the videos that the British Air Transport Association tells us are now shown on all long-haul flights leaving the country and which have also undoubtedly saved lives. However, I am afraid that I will disappoint him by saying that I will not support the new clause. Work needs to be done on the topic, but it is already being done in three main areas, and I support that.
The first area of work is on the provision of information. There have been huge strides forward, and the quotation from BATA illustrates that. That has included in-flight videos and, if people want to buy them, an inflatable device to put under one’s feet to exercise on a long-haul flight. The second area is the research that the hon. Gentleman alluded to and which I strongly support. The airlines have half a point on payment, as it seems odd that only the airlines that come to Britain are paying. We will debate the European Aviation Safety Agency shortly, and I know that it is taking control of so many other things.
Adam Afriyie (Windsor) (Con): Does my hon. Friend agree that if the measures were introduced on the British aviation industry, it would affect the running costs and make us less competitive across the globe? Of course health and safety is important, but would that not be one effect?
Mr. Brazier: If I may, I will answer my hon. Friend’s point in a moment when I come to my objections to the clause.
The research taking place is very important. It would be impossible to fund it through the world aviation community, but I do not see why other airlines around the European Union should not
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contribute or why EASA should not operate the levy. Of course the airlines must pay, but it seems hard that the burden is falling on ours when we are leading the field.
John Smith: I agree with the earlier comments: there is a danger that the system will place the British airline industry, which is the second biggest in the world, at a competitive disadvantage. However, does the hon. Gentleman accept that it is outrageous that airlines internationally are exempt from a duty of care for their passengers? We need to start somewhere.
Mr. Brazier: I accept that there is an anomaly here, by international agreement. On the issue of who funds research, it is a matter of relatively small sums. I was just making a point that they should be spread among the airlines. Clause 7, which we passed over lightly on Tuesday, has some uncontentious measures in it to expand that process.
I shall just briefly explain why I object to the new clause. The problem for all of us as parliamentarians when we legislate and regulate is that we get unforeseen consequences. My hon. Friend the Member for Windsor (Adam Afriyie) mentioned, and the hon. Gentleman acknowledged, the possibility of uncompetitiveness, but my more immediate concern would be with passengers.
A very close relative of mine suffers from pooling in the ankles when travelling on aircraft. That relative has decided, despite knowing all the relevant information, that she still wants to take a long-distance holiday, aware of the fact that there are still risks even after she has followed all the advice. It would be absolutely impractical in a competitive airline market for airlines to pay for people to have medicals. If an all-embracing clause such as this went into law with—forgive me, we all desperately struggle to draft clauses and I am not being petty—general phrases like “reasonably practicable”, “unnecessary aggravation” or
“without risk to the health welfare and well-being of passengers”
that lawyers could have a go at, I can imagine what would happen. I envisage a situation where airline staff would pick on anyone who was fat or looked extremely old and tell them, “You’re a bad risk. I’m sorry but you cannot have an air ticket.” That would be my concern if such a measure were to be passed.
We have agreed on several issues and the Government are headed in the right direction. The airline industry is co-operating and I am impressed with the measures it has taken. I hope that the hon. Gentleman, having initiated an excellent debate, will not press the matter to a vote.
Dr. John Pugh (Southport) (LD): It is a pleasure and an honour to serve under your chairmanship, Mr. O’Hara, and to debate such an interesting new clause.
The hon. Member for Vale of Glamorgan is clearly a lay expert in this field—far more so than me—and has campaigned vigorously for many years on this issue. He has certainly set me thinking very hard about the clause and all that pertains to it.
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I have concerns similar to those of the hon. Member for Canterbury (Mr. Brazier) in so far as some of the wording of the clause is in danger of exceeding what is probably the objective of the hon. Member for Vale of Glamorgan. I am sure that he is trying to penalise legitimate carelessness on behalf of airlines. I am sure that he is not trying to encourage vexatious litigation against airlines and is trying to find a form of wording that will somehow encapsulate or achieve his aims.
I was a bit concerned about some of the wording, without being picky. The reference to “psychological welfare” takes us into a fairly grey area. The reference to promoting people’s health, not just protecting it, takes us into a somewhat nebulous area because one could take a view that promoting health is not a prime function of an airline. An airline’s job is to get someone safely from one airport to another.
I was, however, impressed by the hon. Gentleman’s claim that airlines are an exception in terms of the health protection that they offer to the people whom they carry. I wonder whether there are real reasons for that, and perhaps the Minister can help me on that point. Airlines do operate a different mode of transport, and some of the actual protection offered by bus operators and train operators is fairly skeletal. None the less, if the thrust of the Bill is to stop airline carriers taking unacceptable risks with passengers’ health, the new clause is laudable.
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I concluded that although some risks are attendant on most things in life, some risks associated with airline travel are inevitable. If someone goes up high and has problems with their ears, their ears will pop. They cannot complain about that. If someone gets on a plane, knowing that it is a fairly confined environment, they cannot be surprised if they put themselves at greater risk of infection than they do in a Committee Room of the House of Commons. There are certain risks that are, clearly, known and cannot be calculated by the carrier in advance, and there are risks that we can reasonably expect passengers to be aware of. If I board a plane, knowing that I am of a nervous disposition and a poor traveller, I cannot complain about any psychological damage done to me during take-off and landing. Equally, people with heart conditions cannot complain if the excitement of the journey affects them in one way or another, knowing that they have that condition prior to getting on the plane.
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