|Railways And Transport Safety Bill - continued||House of Lords|
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Commentary on clauses
93. This Part of the Bill provides for the creation of statutory alcohol limits for mariners, and the creation of an alcohol-testing regime. These provisions largely mirror provisions for road users and safety-critical staff on railways and related transport systems. This Bill also provides powers to extend this regime to include other intoxicating drugs.
94. This Bill seeks to ensure that an alcohol-testing regime is put in place in a similar manner to that already existing in other transport modes. The provisions in this Bill therefore largely mirror those of the Road Traffic Act 1988, the Road Traffic Offenders Act 1988 and the Transport and Works Act 1992. The following table shows the clauses of the current Bill which are drawn from provisions in the 1988 Acts and 1992 Act, along with a brief description of their effects.
Clause 77: Professional staff on duty
95. Clause 77(5) preserves the defence available to persons employed or engaged in UK fishing vessels which was contained in section 117(2) of the Merchant Shipping Act 1995, which section is now repealed.
Clause 78: Professional staff off duty
96. Clause 78 includes off duty sailors and professional seamen who may be called on in an emergency at any time to protect the safety of passengers. Clause 78(5) extends to this class of professional staff the defence of having taken a drug for medical purposes.
Clause 79: Non-professionals
97. Clause 79 includes non-professionals (recreational mariners). The offence created is a "moving" offence, which only applies if the vessel is in motion (in contrast to clauses 77 and 78). Clause 79 also provides a power to except non-professional mariners who do not pose substantial safety risks from the prescribed limits and the provision of specimens.
Clause 82: Specimens, &c.
98. Clause 82 replicates certain provisions of the Road Traffic Act 1988 with the intention of using the same procedures for taking specimens from mariners as for motorists.
99. Clause 82 also applies certain provisions of the Road Traffic Offenders Act 1988, to offences under clauses 77, 78 or 79 of this Bill by substituting navigation functions for references in the 1988 Act to driving a motor car.
Clause 83: Detention pending arrival of police
100. At present, local bye-laws allow some harbour authority officials to exercise powers to detain ships whose pilots are suspected to be committing an offence of being impaired by drink or drugs. Clause 83 extends this regime to allow marine officials to detain a vessel when they reasonably suspect that a person on board is committing an offence under this Part. However, in order not to affect the operational effectiveness of the armed forces, this clause does not apply to ships which are being used for a purpose of Her Majesty's forces or which form part of the Royal Fleet Auxiliary.
Clause 85: Right of entry
101. Clause 85 differs slightly from the Road Traffic Act 1988 and Transport & Works Act 1992, in that it makes reference to "reasonable force" rather than "by force". This Bill also allows the police officer to be accompanied, where the 1988 Act and 1992 Act make no such provision. This clause does not extend to Scotland where adequate common law powers of entry exist.
Clause 87: Orders and regulations
102. Clause 87 makes provision for the making of various orders and regulations under this Part. Under clause 79 regulations may be made to create exceptions removing non-professional mariners in certain specified categories from the offence of exceeding the prescribed alcohol limit. Regulations may be made under clause 80 altering the prescribed alcohol limits. Regulations may be made under clause 82 to amend the table, as necessary, to reflect any changes in road traffic legislation. Finally, orders can be made under clause 83 to designate marine officials who are able to detain a ship. Such orders are made using the negative resolution procedure. All other regulations under this Part are subject to the affirmative procedure.
Clause 89: Crown application &c.
103. Clause 89(1) and (4) excepts members of Her Majesty's forces and members of visiting forces (including civilians attached to such visiting forces) from the offences created by this Part when they are acting in the course of their duties. This is because in such circumstances they would be subject, as the case may be, either to UK service law or, in the case of a visiting force from another country, to the service laws of that country. Otherwise, under Clause 89(2) this Part applies to any civilian person who is in the service of the Crown. Clause 89(3) prevents marine officials from detaining any ship which is being used by Her Majesty's forces or a ship forming part of the Royal Fleet Auxiliary Service.
Clause 90: Territorial application
104. Clause 90(2) and (3) ensures that the Scottish common law powers of entry for obtaining evidence are maintained in the case of mariners, as is currently the case for car drivers, train drivers and now aviation personnel who may have committed an alcohol or drug related offence. It disapplies provisions contained in this Bill giving the police rights of entry, since these would risk conflicting with the common law powers available in Scotland.
Public sector financial and manpower cost
105. It is difficult to quantify the financial costs to the public purse from the introduction and enforcement of an alcohol limit for mariners. The Association of Chief Police Officers has indicated that the slightly increased resource implications for the police would be largely offset by use of current resources such as harbour launches and search and rescue helicopters. The Department for Transport would fund any training necessary for police and marine officials to enforce these proposals. In particular, the training would cover techniques in boarding ships at sea by means of helicopter or ship to ship transfers. In terms of testing apparatus, there would be minimal costs for implementation of the alcohol provisions, since the testing regime would use equipment already in use for alcohol testing on the roads. The number of tests required is expected to be low, as would be the number of prosecution cases.
106. Alcohol and drugs provisions, both in the marine and aviation sectors, will not require recruitment of more public sector workers, though there will be additional responsibilities on existing police, marine or legal officers.
Human Rights assessment
107. This Part potentially engages Article 5 (right to liberty and security), Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights. Article 5 is subject to the qualification of lawful arrest on reasonable suspicion that an offence has been committed or for its prevention. The powers of arrest and detention contained in this Part are considered necessary and proportionate and within the qualification mentioned.
108. Article 6 (which is linked to a privilege against self-incrimination) is engaged principally by the provisions requiring specimens of breath, blood or urine to be provided by a suspect. However, the courts have held that the privilege is not absolute in circumstances where a proportionate response is required to combat a serious social problem. This is considered to be such a case.
109. Article 8 is subject to the qualification that a public authority may interfere with the right to private and family life provided that it does so in a proportionate manner for the prevention of crime and protection of the public.
110. This Part is considered to be compatible with Convention rights.
Part 5 - Aviation: Alcohol and Drugs
111. This Part extends to the flight and cabin crew of an aircraft, air traffic controllers and licensed aircraft maintenance engineers in the United Kingdom. It also applies to the crew of an aircraft registered in the United Kingdom wherever it may be in the world.
112. This part of the Bill makes it a criminal offence for a person engaged in certain safety-critical aviation activities, to:
It provides for a testing regime where a police officer reasonably suspects a person of committing one of these offences.
113. At present the only specific legislation to regulate alcohol consumption in the aviation industry is in the Air Navigation Order 2000 ("the ANO") 4, made under the Civil Aviation Act 1982.
4 S.I. 2000/1562
114. The ANO makes it an offence for a crew member of an aircraft, an air traffic controller or a licensed maintenance engineer to be under the influence of drink or drugs so as to impair his capacity to carry out his aviation related functions. (See articles 13(8), 65(2) and 96.)
115. However, the current law does not set a maximum limit for the amount of alcohol in the body or provide police powers for testing people who are suspected of being under the influence of alcohol or drugs.
116. Following a light aircraft accident in 1991, the Air Accidents Investigation Branch recommended that the Civil Aviation Authority amend the ANO to require aircrew suspected of an offence to provide a sample for testing. This cannot be done until the Civil Aviation Act 1982, under which the ANO was created, is amended.
117. At the European level, the Joint Aviation Authorities adopted, in 1996, the Joint Aviation Requirements on Commercial Air Transportation (JAR-OPS), which required that aircraft crew members shall not commence a flight duty period with a blood/alcohol level in excess of 20mg/ml. Although JAR-OPS does not have the force of EU law, there is a European Commission proposal (COM 2000/121) to make this part of Community law.
Commentary on clauses
118. This Bill seeks to ensure that an alcohol-testing regime is put in place in a similar manner to that already existing in other transport modes. The provisions in this Bill therefore largely mirror those of the Road Traffic Act 1988, the Road Traffic Offenders Act 1988 and the Transport and Works Act 1992. The following table shows the clauses of the current Bill which are drawn from provisions in the 1988 Acts and 1992 Act, along with a brief description of their effects.
Clause 91: Being unfit for duty
119. Clause 91 makes provision similar to that in Articles 13(8), 65(2) and 96 of the ANO. It is now supported by the police powers of arrest and entry in clauses 96 and 97.
Clause 92: Prescribed limit
120. Clause 92(1) establishes the offence of being "over the limit" whilst carrying out, or prepared to carry out, specified aviation related functions. Subsection (2) prescribes a blood/alcohol alcohol limit of 20 milligrammes of alcohol per 100 millilitres of blood for those activities carried out by aircrew and air traffic controllers, which is a quarter of the limit prescribed by the Road Traffic Act 1988 and the Transport and Works Act 1992 for drivers and railway workers respectively. For the functions carried out by licensed aircraft maintenance engineers, the appropriate blood/alcohol limit will be the same as that in the 1988 and 1992 Acts. The different limits reflect the fact that although licensed aircraft maintenance engineers perform a safety critical role in aviation, they do not necessarily require the same speed of reaction as aircrew or air traffic controllers may need in an emergency situation. The equivalent limits in respect of breath and of urine are also set out in this clause.
Clause 93: Aviation functions
121. Clause 93 subsections (2), (3), (4) and (5) apply the offences of being over the limit or unfit to people preparing to carry out an aviation function or otherwise holding themselves ready to carry out one of those functions by virtue of being on duty or standby.
Clause 94: Penalty
122. The penalties set out in clause 94 are set at the same level as those currently applying to aircrew and air traffic controllers under Article 122 of the ANO. This clause will bring the penalty for licensed maintenance engineers under the influence of alcohol or drugs into line with them.
Clause 95: Specimens, &c.
123. Clause 95 replicates certain provisions of the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988, amended where appropriate to apply to aviation. This will enable the police to use familiar procedures and practices when enforcing the new legislation in the aviation environment. It will also enable changes in drink/driving legislation to be reflected in these provisions. An example might be a testing regime for intoxication through drugs.
Clauses 96 and 97: Arrest without a warrant, Right of entry
124. Clause 96 provides the police with the power to arrest suspected offenders. Clause 97 provides the police with powers to board an aircraft or enter any place for an offence under clauses 91 and 92. It spells out that the police may use reasonable force in exercising these powers and that they may be accompanied when doing so.
Clauses 99 and 100: Crown and military application
125. Clauses 99 and 100 apply the offences created to personnel in organisations such as the police and customs, but not to service personnel operating in the course of their military duties. When acting in the course of their duties, service personnel may be subject to separate disciplinary procedures if found under the influence of alcohol or drugs. However, service men and women carrying out aviation functions during their free time will be subject to this legislation.
126. Clause 100 disapplies the offences for the civil or military components of visiting military forces and for personnel belonging to international headquarters or defence organisations such as NATO, but only whilst carrying out their duties. UK military personnel in analogous circumstances are protected similarly from criminal prosecution when they are based overseas.
127. Clause 100 relies upon certain definitions in the Army Act 1955, the Visiting Forces Act 1952 and the International Headquarters and Defence Organisations Act 1964. These are as follows:
Clause 101: Territorial application
128. Part 5 applies to functions or activities in the United Kingdom and to "flight functions" or "flight activities" abroad carried out on UK registered aircraft. There is power by Order in Council to extend the provisions to the Channel Isles or to a British Overseas Territory.
129. Clause 101(4) and (5) ensure that the Scottish common law powers of entry apply to the investigation of offences committed under the aviation part of this Bill in the same way that they apply to alcohol and drug offences committed on Scottish roads, railways and, under part 4 of this Bill, to shipping. Clause 101(4) provides that clause 97 does not extend to Scotland. Clause 101(5) expressly preserves the rights of entry which police in Scotland already have.
Public sector financial and manpower cost
130. It is difficult to quantify the financial costs to the public purse from the introduction and enforcement of an alcohol limit for aviation. The same issues on police resources apply as for mariners. The lower blood/alcohol limit for aircraft crew and air traffic controllers will mean that existing police roadside screening devices will need to be "type-certified" for use at the new aviation limit. It is anticipated that the cost of the necessary work to support the re-certification of three different types of screening device currently used by UK police forces will be in the region of £9,000. A limited number of new screening devices would need to be purchased by those police forces exclusively using older screening equipment not suitable for use at the aviation limit. Each new device costs in the region of £450, but the number of new devices required would depend on the extent of aviation activity in the police area, and the cost offset by their use in normal road traffic cases. It is not possible to quantify the number of tests that may be carried out, but it is anticipated that approximately 10 to 15 cases per year may be brought before the courts. The Lord Chancellor's Department has indicated that the associated policy costs to the courts as a result of these additional prosecutions, could be absorbed within its existing resources.
131. Alcohol and drugs provisions, both in the marine and aviation sectors, will not require recruitment of more public sector workers, though there will be additional responsibilities on existing police, marine or legal officers.
Human Rights assessment
132. This Part potentially engages Article 5 (right to liberty and security), Article 6 (right to a fair trial) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights.
133. Article 5 is subject to the qualification of lawful arrest on reasonable suspicion that an offence has been committed or for its prevention. The powers of arrest and detention contained in this Part are considered necessary and proportionate and within the qualification mentioned.
134. Article 6 (which is linked to the privilege against self-incrimination) is engaged principally by the provisions requiring specimens of breath, blood or urine to be provided by a suspect. However, the courts have held that the privilege is not absolute in circumstances where a proportionate response is required to combat a serious social problem. This is considered to be such a case.
135. Article 8 is subject to the qualification that a public authority may interfere with the right to private and family life provided that it does so in a proportionate manner for the prevention of crime and protection of the public.
136. This Part is considered to be compatible with the Convention.
Part 6 - Miscellaneous
Clause 102:International Carriage by Rail
137. This part extends throughout the United Kingdom
138. The United Kingdom is a signatory to the Protocol of Vilnius 1999 ("the Protocol") which modifies the Convention concerning International Carriage by Rail ("COTIF 5") 1980, by presenting a new Convention text 6. The Protocol of Vilnius will need to be ratified by the UK, but before that can happen the UK must have the necessary legislation in place to be able to give effect to the new COTIF when it comes in to force. This Bill makes the necessary provision to allow for this. Like the existing 1980 COTIF 7, the new COTIF provides a uniform system of laws, which will apply to the carriage of passengers, luggage and freight in international through traffic by rail, in order to facilitate the development of that traffic. There are currently 41 signatories to the 1980 COTIF. Uniform systems of law have been in operation for many years: the first international convention concerning the carriage of goods was signed in 1893.
5 An acronym for "Convention Relative aux Transports Internationaux Ferroviaires".
6 Miscellaneous No.21 (2000), Command Paper 4873,
7 Consolidated text published in Treaty Series No.73 (1997), Command Paper 3812.
139. Under the 1980 COTIF there are several sets of rules, known as "Uniform Rules" which make provision on:
140. COTIF 1980 is being modified primarily to reflect major changes in railway management and operations particularly following EC Directive 91/440/EEC (29th July 1991) on the development of the Community's railways.
141. In particular, the changes to the COTIF 1980 reflect the following developments in EC Member States:
142. The CIV Uniform Rules also ensure that minimum levels of compensation exist for certain incidents throughout all signatory states. These levels have been increased in the new COTIF, which will be of benefit to international rail users generally.
143. The Protocol of Vilnius signed on 3rd June 1999:
and recognising the importance of these issues for facilitating international traffic introduces new Uniform Rules for:
144. Article 68 and 9 of the Protocol makes transitional provision for contracts entered into under COTIF 1980.
145. The Protocol and the new COTIF it presents was presented to Parliament as a Command Paper CM 4873 in October 2000.
146. The new COTIF will come into force three months after the Protocol is ratified by two-thirds of signatories to the Convention. This is unlikely to be before 2004.
147. Although the UK will ratify the Protocol by means of the Royal Prerogative, once the new COTIF comes in to force as a matter of international law it will not have the force of law in UK until the relevant provisions of this Bill are brought into force and the corresponding domestic regulations are made. The International Transport Conventions Act 1983, which currently gives effect to the COTIF 1980 is not sufficiently flexible to deal with the new COTIF. The clauses in this Bill, combined with the domestic implementing regulations are designed to provide the necessary flexibility to give effect to the new COTIF. Redundant provisions of the 1983 Act will be repealed by the new regulations.
148. The new COTIF brings within its scope certain matters that are within the competence of the European Community. In particular, the new APTU and ATMF appendices address the same matters as the EC Directives on the interoperability of the European rail network (Directives 96/48/EC & 2001/16/EC). These two appendices were drafted with the objective of achieving compatibility with the developing EC legislation on these matters. In any event the new COTIF recognises for EC Member States that EC law prevails so far as the new COTIF is concerned. The European Community intends to accede to the new COTIF in due course so that it may exercise its competence where it has it. However, until the new COTIF is in force (Article 38 in particular), there is no mechanism for the EC to join.
|© Parliamentary copyright 2003||Prepared: 2 April 2003|