Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Davies of Oldham, for raising this important and sensitive issue. I fully agree with your Lordships that we need to ensure that passengers are treated with respect and dignity at all points during their journey through an airport.
I hope I can reassure your Lordships by explaining that the goal that the amendment is designed to achieve is already covered by the Bill. Airports are required by European and domestic regulations to undertake security checks on all passengers, and it is the responsibility of airports to ensure that their customers are treated with dignity and respect.
Clause 80 inserts new Sections 21H and 21I into the Aviation Security Act 1982. New Section 21I requires the CAA to provide such aviation security advice and assistance as it considers appropriate to the persons listed in its subsection (3), including the managers of aerodromes in the UK. In giving such advice and assistance, the CAA has to have regard to the purposes to which Part 2 of the Aviation Security Act 1982 applies, which are broadly the protection of civil aviation against acts of violence. Therefore, if the CAA considered it appropriate, having regard to the purposes to which Part 2 of the Aviation Security Act 1982 applies, it could provide advice and assistance on maintaining the dignity of passengers wearing religious clothing when subject to security checks.
I know that some passengers may worry about security checks and feel uncomfortable about being subjected to them—I certainly do—but, like my noble friend Lord Rotherwick and, I suspect, the whole Committee, I understand that such searches are essential if security is to be maintained in the face of a real and continuing threat from terrorist groups that seek to do us harm.
As I am sure your Lordships will know, each passenger departing from a UK airport undergoes standard security processes irrespective of their age, gender or ethnic background. These checks ensure that they are not carrying articles prohibited from the security-restricted area on to the aircraft. This principle will not change.
Security staff are trained to recognise that some passengers may have particular concerns about searches, particularly searches of some religious clothing, such as those from the Sikh community who wear turbans. The noble Lord, Lord Clinton-Davis, referred to Orthodox Jews.
A problem emerged in April 2010 when new EU regulations came into force that required a hand search of turbans to be carried out. Physical contact with the turban causes hurt and offence to Sikhs. As pointed out by the noble Lord, Lord Davies of Oldham, other European states might not be so sensitive to these issues. My right honourable friend the former Secretary of State acted swiftly and instructed airports to continue with the method used prior to April 2010, which mainly involved hand-held metal detectors, while consideration was given to how to resolve the concerns expressed by the Sikh community. After intensive work, a pilot project was put together in a very short time and with the assistance of the Sikh community. The noble Lord pointed out that there is good co-operation between all communities because we are all in it together.
The trial is now under way at almost all the UK’s airports, using a combination of explosive trace detection and hand-held metal detectors as an alternative to a hand search of the turban. The trial is going well and we have been keeping the European Commission up to date with the results. My right honourable friend the Minister of State for Aviation has written to Ministers around Europe to highlight the importance of the issue and to draw their attention to the trial.
We hope that the trial will provide a sound basis of evidence for the EU in deciding on whether it is possible to change the European rules on security to meet the concerns of Sikhs and to ensure that they operate in a culturally sensitive way. The Department for Transport submitted a report on the trial to the European Commission on 28 June. The trial delivered good results and is continuing for the remainder of the summer at least.
Lord Clinton-Davis
Would it not be very simple for people who are especially vulnerable to be searched in private—in other words, to go to an area where other people are not present?
Earl Attlee
My Lords, the noble Lord makes a good point. Passengers may request a private search. I am confident on that point, but perhaps it would be helpful if I wrote to the Committee in a little more detail on it.
The trial delivered good results and is continuing for the remainder of the summer at least. We are actively engaging with the EU with a view to continuing to conduct such searches in this manner. I hope that the Committee will agree that the matter is under control.
Lord Clinton-Davis
Would the Minister say that the discussions with the commissioner concerned were very positive, or otherwise?
Earl Attlee
My Lords, I am very sorry, but I did not catch what the noble Lord said.
Lord Clinton-Davis
I think there have been discussions between the Government and the Commission. Is the commissioner concerned on the Government’s side in this matter?
Earl Attlee
My Lords, I am sure that the Commission is in a listening mode, because otherwise it could be storing up problems for itself in future.
Lord Davies of Oldham
My Lords, I am grateful to the Minister for that response, which was encouraging. I am sure the noble Lord, Lord Rotherwick, will recognise that, given the advanced years of many of us, we have great difficulty going through airport security without the implied suggestion that we have a submachine gun in our belt. When our belt has been taken off, the gun must be somewhere else. Having had a hip replacement a few years ago, I go through agonies at airport control. We all have to pay that price. I do not think that any of us doubt that airport security is of the greatest significance, and we all realise that some privations are attendant on it. However, some practices need to be looked at very carefully.
The Minister is assiduous in writing to us when he feels that he has not made a point absolutely explicit in a reply. I do not think that he needs to write to us on the question asked by my noble friend Lord Clinton-Davis. Privacy will not solve the problem. The issue is not that something is being done in public; it is that someone is touching the turban. Therefore, if the same security process is followed in private as in public, the offence will be exactly the same.
Earl Attlee
My Lords, I absolutely accept the point about touching the turban, but there may be some other perfectly reasonable reason why a passenger does not want to be searched in public. They may want to explain a medical condition, for instance, that it would be too embarrassing to discuss in public, but as soon as they went into a private room they would be able to explain the circumstances and have a thorough search.
Lord Davies of Oldham
My Lords, of course I know that the practice occurs; it is essential where people have enormous sensitivities that ought to be respected. However, the amendment is about Sikhs. I am merely indicating that for a Sikh, an offence conducted in private is no less an offence than if it were done in the public arena. Therefore, the issue is how we maintain our security and check the Sikh population effectively when they travel, without giving extreme offence by touching the turban.
I am grateful that the Minister indicated that we are making progress on tests that will obviate the need to touch the turban, so I hope that the problem will soon be resolved. I beg leave to withdraw the amendment.
Lord Rosser
My Lords, these are probing amendments to explore how the Government intend to ensure that there is no significant or damaging loss of staff with experience of relevant security issues when aviation security regulation functions are transferred from the Department for Transport to the Civil Aviation Authority.
As to the first amendment, Clause 82 refers only to the Secretary of State consulting the Civil Aviation Authority before making a transfer scheme to the CAA. Who else would the Secretary of State consult, particularly on the impact of such a transfer on individual employees who are directly affected or potentially directly affected? The second amendment requires the Secretary of State to review the impact of such transfers on the security functions of the CAA before making such a scheme, given that there does not appear to be a clear provision in the Bill, and proper assessment of the impact of such a transfer scheme on security and security functions must surely be a key responsibility of the Secretary of State before deciding whether to proceed.
It appears from the impact assessments for the legislation that the primary purpose of this switch of aviation security regulation functions from the Department for Transport to the CAA has been driven by financial considerations and the spending review, which may not be the most appropriate driving force for change when dealing with an issue of this nature—particularly when a highly successful security regime has been in operation since the tragic Lockerbie bombing.
The Transport Select Committee in the other place expressed concern that the decision to transfer aviation security regulation functions from the Department for Transport to the Civil Aviation Authority was included in the draft Bill at a late stage and was not subject to consultation. The committee also said that it was important that the CAA had sufficient security expertise to undertake its new role and that the Department for Transport and the CAA should investigate employment arrangements, possibly including secondments rather than transfers, precisely to avoid losing experience staff and expertise in the transfer of posts from the department to the CAA.
In Committee in the other place, the Transport Minister said that some 85 staff might be seconded rather than transferred, and no doubt the noble Earl will give an update on the present arrangements and intentions, the number of staff who will be transferred and seconded, and why being seconded would not be a better option for the staff as a whole. It would also be helpful if the noble Earl could say what steps are being taken to encourage staff affected to stay on in order to ensure that this transfer will not lead to loss of expertise in such a crucial part of our security provision and protection. I beg to move.
Earl Attlee
My Lords, let me begin with Amendment 52. The Department for Transport has already begun to engage with staff and their trade union representatives on the proposed transfer of staff from the DfT to the CAA. The department’s human resources unit has formally engaged with the Public and Commercial Services trade union and the Prospect trade union on matters relating to the proposed transfer of posts and post holders to the CAA.
There have been briefing events for staff, including a joint event with the CAA on 31 January, and staff are kept informed with regular written and oral updates. We will engage with staff and their trade union representatives as we develop the transfer arrangements over the coming months until the planned transfer in spring 2014.
Engagement with staff is vital, not least because we want to ensure that as many staff as possible transfer to the CAA, taking their skills and experience with them. A particular concern of the noble Lord, Lord Rosser, is that we do not lose this valuable expertise. We have no intention of doing anything that would cause unnecessary losses. We will work to provide as much visibility and clarity as possible about the transfer, but we cannot answer all the questions yet. The Government believe that there is no need to amend the Bill to achieve something that is already happening, so I hope that the noble Lord will withdraw Amendment 52 in due course.
Lord Soley
Will the noble Lord clarify a point? Much of the concern is about staff morale. I know that this is not directly connected, but morale was a major factor in what happened with the Immigration Service. If this is not handled carefully, staff morale will go down and they will either work to rule—literally—to ensure that they are not guilty of making any mistakes, or they will just feel demoralised. I know that this is a probing amendment, which I am sure has been taken into account, but I have no doubt in my mind that the security issue is so important that staff morale is equally critical.
Earl Attlee
I remind noble Lords that we are in Committee, so we can speak as many times as we like. The noble Lord is absolutely right that staff morale in any organisation is key. This is of course a leadership issue, particularly for the senior personnel at the CAA. It must be remembered that some staff do not work in fixed locations; some of the staff who ensure that security is carried out properly are fairly mobile. But I accept that morale is an absolutely key issue.
Earl Attlee
It is indeed, my Lords. If we thought that we would lose a large number—or a majority—of the experienced staff due to this change, we would not do it. However, I see no reason why aviation security specialists who currently work for the DfT would not be equally happy working for the CAA. If they were being invited to work in the private sector, that could be much more of an issue. However, they will be transferring from one respected government department to another respected organisation.
Lord Rosser
I thank the Minister for his reply. I also thank my noble friends Lord Soley and Lord Clinton-Davis for their helpful contributions. The Minister said, I believe, that the driving force on the financial side was the principle that the user pays. Surely when we talk about aviation security regulation the principle that the user pays should not take precedence over the principle that we want the most effective security regulation arrangements.
I have not yet heard the Minister or anyone else argue that the current arrangements, which we have had for a number of years, are not highly successful and effective, as they are recognised to be. Frankly, if the real reason for this change is financial—namely, that the user pays—and is not based on improving the present arrangements for aviation security regulation, I suggest that the Government have got wrong the driving force for the change. Certainly I have not heard from the Minister any criticism of the current arrangements, any indication of how they have failed or any indication of how they will be made more successful and more efficient by the proposed change.
The Minister said that we should not go into detail about numbers. However, as I said, in Committee in the other place the Transport Minister referred to numbers and said that 80 staff might be seconded rather than transferred. I made reference to the view that was expressed that it might be better if staff were seconded rather than transferred.
Lord Rosser
I thank my noble friend for that point. Perhaps the Minister will comment on it in a moment.
I asked whether the Minister could give an update on how many staff will be transferred and how many will be seconded and say why secondment would not be a better option for staff generally. I am not asking him to go into the details of discussions that are taking place, but he might be able to respond to those particular points. Is the Minister willing to do so before I withdraw the amendments? I intend to withdraw them—as I said, they are probing amendments.
Earl Attlee
The Government believe that industry will benefit from the efficiencies that could be gained from having aviation security and safety regulation in one place. The CAA has potentially valuable experience of safety management systems that are designed to manage risks as effectively as possible. We think that this experience, coupled with the skills and experience of the DfT staff, could bring real benefit to how we regulate aviation security in the UK. That move would also mean that the principle that the user pays is applied to aviation security in the same way as it is applied to aviation safety.
Charging the industry for the regulation of aviation security will align it with the vast majority of other forms of regulation, including the CAA’s regulation of aviation safety. The aviation industry already meets the costs of providing security at close to £1 billion per annum, so the cost of regulation at £4.8 million per annum is a small addition that could be neutralised by efficiency savings arising from the reform package.
The noble Lord asked me about secondments, which the PCS trade union also raised in its evidence to the Public Bill Committee in the House of Commons. We can look at how secondments might be used as we develop our plans for the transfer. However, we consider that seconding DfT staff to the CAA instead of transferring them is unlikely to help to ensure that experienced staff remain with the CAA when the secondments end.
Lord Clinton-Davis
Will the noble Lord respond to my suggestion that this provision should be looked at regularly?
Earl Attlee
My Lords, I am sure that when they make a change, all Governments consider whether they have done the right thing. I am not sure about a formal review, but all Ministers look back to make sure that the changes that they have implemented are working.
Lord Rosser
I thank the Minister for the further information that he has given. I am sure that he will not be entirely surprised when I say that I still have the impression that this one is financially driven rather than driven by any real belief that the aviation security regulation function will somehow be carried out more effectively through the arrangements that the Government are proposing than they are at present. However, I have expressed my views on this and the Minister has replied on behalf of the Government. I also said that these were probing amendments, and I beg leave to withdraw the amendment.
Earl Attlee
I welcome these amendments, which enable us to consider an outcomes-focused, risk-based regime. I hope in responding to them to be able to allay the concerns of the noble Lord, Lord Davies of Oldham. However, I am not convinced that the amendment is related to the previous one, which concerned the important matter of DfT staff being looked after on transfer. They are separate issues.
The DfT has consulted on proposals to modernise the regulatory regime for aviation security. They are designed to promote innovation and efficiency, to ensure the best possible passenger experience and to bring the regime into line with better-regulation principles. The Government’s priority at all times is to ensure high levels of aviation security in the UK. We simply cannot afford a failure.
The proposed new approach is intended to give operators greater flexibility and responsibility to design security processes that deliver specified security outcomes, with greater emphasis placed on the needs of their passengers. A similar approach has been taken in aviation safety regulation.
Modernisation would be achieved by introducing the use of security management systems, or SeMS, by industry and a regulatory regime that is more outcomes-focused and risk-based—the so-called OFRB. SeMS is a systematic approach to managing and embedding security in the day-to-day activities of an organisation. We are starting with a series of pilots in which industry operators will develop the SeMS approach and, in so doing, create an enhanced internal security culture. Once these pilots have been concluded and we are satisfied that the SeMS framework is sufficiently robust, we shall look to roll it out generally across the industry. This will provide a sound basis for the design and development of the OFRB regime.
The proposed reforms represent a significant change in the approach to the regulation of aviation security both for the industry and the regulator. We have therefore decided to take an incremental approach to reform to ensure that the UK’s high level of aviation security is maintained at all times. This incremental approach also aligns well with the Government’s intention to embed in industry a culture of continuous improvement of the UK’s aviation security regime, as has been the case for aviation safety.
Many organisations have commented that the full benefits of OFRB—in particular, flexibility for operators in the design of security processes—require changes to the highly prescriptive European legislation, which specifies common basic standards for aviation security. We will use the SeMS pilots to build the evidence base necessary to engage with our European partners and to make the case for change. This will take some time.
I say in answer to the noble Lord, Lord Davies of Oldham, that the move to OFRB will not be a single big change but a continuing one—it will not be sprung on stakeholders. This is also necessary because some 1,000 industry entities in the UK are directed to implement aviation security measures, and it would not be feasible or sensible for them all to move to OFRB at once.
The Secretary of State intends to take forward the reformed approach to aviation security regulation under powers in Part 2 of the Aviation Security Act 1982 by giving directions to industry operators, such as airports. In passing Part 2 of the 1982 Act, Parliament has granted the Secretary of State a power to give directions to industry for the purpose of protecting civil aviation against acts of violence. Successive Transport Secretaries, irrespective of party, have made aviation security directions that they consider necessary to protect the security of civil aviation. The Secretary of State’s direction-making powers set out in Part 2 of the 1982 Act do not require the approval of Parliament before they can come into force.
Introducing a new layer of legislative approval for the introduction of an OFRB aviation security regime could risk damaging our ability to respond swiftly to implement necessary changes to aviation security in the face of continuing and evolving threats. These amendments would mean that if the response to a new threat affected the framework of the outcomes-focused, risk-based regime, an order would be required that would be subject to the approval of both Houses. This would inevitably take time, even with the most efficient business managers in charge of Parliament’s agenda. Your Lordships will know that it is sometimes necessary to make changes very quickly to respond to new threats, in some cases within a matter of hours.
For example, swift action, including an immediate ban on liquids, had to be taken in response to the liquid bomb plot. The plot was uncovered during the Summer Recess, and if it had been necessary to recall Parliament and have these matters debated by both Houses, it would have been impossible to respond effectively. I am sure that your Lordships will recall the printer bomb plot in October 2010, when it was necessary to place emergency restrictions on air cargo. If my right honourable friend the former Secretary of State had not been able to act quickly to ban certain consignments, we could have been left exposed to similar attacks.
Noble Lords will have seen the Written Ministerial Statement made by my right honourable friend the Secretary of State on the 26 June about the reform of the aviation security regulatory regime and the Government’s response to the preceding consultation. I can assure your Lordships that the Government will continue to keep Parliament informed as we develop, pilot and implement the new regime over the coming years. However, I hope the Committee will agree that Amendments 54 and 75 would not only be impractical but could have a damaging impact on our ability to keep passengers secure. Therefore, I urge the noble Lord to withdraw or not to move the amendments.
Lord Davies of Oldham
My Lords, I have a bone of contention with the Minister. I am not prepared to accept what he said about the new measures necessary to deal with the threat of the liquid bombs. Clearly effective action was taken and we all know the constraints. I can even remember the size of the cardboard box that Heathrow kindly provided for me to ensure that the baggage that I was taking to the cabin could be measured accurately. It was the least precise device that I have ever seen. Nevertheless, you cannot expect technology to appear at every point in an airport. I am not prepared to have that emergency response to a clearly individual, defined threat compared with a whole schematic change to the concept of airport security.
After all, it is the Minister who is dressing up the scheme in excellent technical language. It is he who has to take responsibility for the fact that the scheme arrived on the scene somewhat late and was not subject to scrutiny before it appeared in the legislation. It is the Minister who has to bear the responsibility for the fact that the most apparent thing to the industry about the scheme was that the costs were being transferred. We all know the driver for that, so he will not mind if there is an element of suspicion in the Committee that the issue that drives the scheme is the transfer of costs rather than the more successful implementation of a security regime.
Earl Attlee
I would not want to leave the noble Lord upset. However, first, I remind the Committee that my right honourable friend the Secretary of State retains responsibility for aviation security. None of this changes that. In addition, I would like to remind the Committee of one thing. If we were to adopt the noble Lord’s amendment, it could have unintended consequences. We might think that it would be fine; but when we wanted to change something quickly, we would come up against that most ancient law, the law of unintended consequences. We need to be extremely cautious, therefore, before we think about tying the hands of the Secretary of State and removing that flexibility that she has to give the necessary directions in respect of aviation security.
Lord Davies of Oldham
I would be the last person to want to see a reduction in the Secretary of State’s powers in this very important area, and I am not suggesting that Parliament will set out to destroy the security scheme for the aviation industry. Responsible Members of Parliament would do no such thing, of course. What we are looking for is a clearer evaluation than that presently to hand of the merits of this approach, apart from cost savings for the department. The industry will accept this grudgingly, because the costs are put upon it. It may be entirely proper that it should bear the cost. However, one would have thought that this would be presented to the industry with greater consultation than it has had.
As for Parliament, it is clear that we are all taking a great deal from the Minister on faith. I have no doubt that the concept is excellent, if it is ever clearly explained to me. However, the Minister has not taken the opportunity on this occasion to explain its merits over what we have at the present time. If he had said, “Of course, I can’t do that, because that would imply that I am giving some comparative analysis that would give information to hostile elements”, I would probably have taken that in my stride, but he did not say that.
Earl Attlee
Certainly not—that would be a weak argument. I can suggest, however, that if the noble Lord would like, I can organise a briefing between him and the officials who are handling this issue. We can go into it in greater detail and ensure that both of us are happy about it.
Lord Davies of Oldham
My Lords, the Minister is generous with letters that whizz round after Committee proceedings, and he is always generous in his replies, although they do not always meet the exact points. I am probably obliged to take him up on his offer of what will be an enormously illuminating occasion. However, I am not clear whether it will be of any use to other Members of the Committee, or to other Members of either House of Parliament, to know that the opposition spokesman will be a bit wiser in a few days than he is at present. The noble Lord might think that that suffices, but I do not. However, I beg leave to withdraw the amendment.
Lord Soley
I go further than the noble Lord in commending the noble Lord, Lord Davies, on the skill with which he presented this amendment. He is right in principle, but the reason for my slightly mischievous intervention is my concern that one always finds provisions such as this being put into aviation Bills and not into train or road transport Bills. The reason for my concern is not that I am for or against the aviation industry, which after many years of kicking and prodding from people such as me has begun to get its act together on presenting its case on climate change and emissions, but that such provisions lead people to believe that you cannot fly but that you can travel as much as you like by road or rail, which is untrue.
I took great issue a few years back with front-page adverts from rail companies about high-speed rail links, saying, “Travel by train and zero emissions”. I thought, “Fantastic! Energy direct from the sun! We have no power stations using coal, oil, gas or nuclear fuel; we just direct it from the sun”. I pick up wonderful magazines, such as that of the RSPB, of which I am very fond, which tell me that we have to stop building airports and flying, and that it is really wicked. I then turn to the back pages and find between 10 and 20 adverts telling me to fly off to exotic places where I can see wonderful birds that are about to be wiped out by climate change. That is the cause of my slightly mischievous intervention on my noble friend’s amendment.
When we talk about building high-speed rail, which I am greatly in favour of, we are talking about producing concrete for a couple of thousand miles of track. To produce one tonne of concrete requires the production of one tonne of CO2—to knock off 10 or 20 minutes of the journey time to Birmingham. We cannot make the case on climate change. We can make it on other grounds and do lots of other things on climate change. I can tell the right reverend Prelate, who made a useful speech, that one piece of good news for him is that many airlines, including BA, Virgin and Air New Zealand, are now flying with a mix of fuels in their tank that includes algae and other environmentally friendly fuels. Algae have a good future. They will never be an entire replacement—they will probably be about 20%—but they are making a difference.
Returning to the amendment, before I get pulled up, the principle is right but my preferred way to address this is that every transport form, road rail or air, ought to be instructed clearly to drive down emissions. That is what matters. I do not object to the amendment in principle, but it has to apply to rail stations and bus stations as well. If I stand in King’s Cross or Euston, I know that it is not oxygen that is being belched out of the train engines or the taxis with their engines running waiting to pick up people; it is CO2. I would prefer that we said that we should drive down emissions across the board. For the past 20 or 30 years, I have never doubted the dangers of climate change—I have written about it from time to time—but we have to be realistic about it. At the moment, the way in which we measure it is not terribly accurate and has a long way to go. All forms of transport—rail, road, air and anything else—should drive down emissions. If we want to put up something to say what we think emissions are in airports, I have no problem with that in principle; I would just extend it to other areas.
Earl Attlee
I will begin with Amendment 57, because it raises different issues from the other two amendments. I am aware, however, that similarly worded amendments were tabled in Committee in the House of Commons and defeated in a Division.
Before turning to the detailed points made by your Lordships, it is important that I emphasise the function of the clause that the amendment would alter. Clause 83 gives the CAA a new and important statutory role in promoting better public information about the aviation industry’s performance. This is intended to improve choice in the market and address what economists call asymmetric information, in that passengers do not always have the information they need to compare the services on offer.
Giving consumers more information on service quality provided by airports and airlines will help to ensure that markets deliver consumer benefits in practice. These issues fall fairly and squarely within the remit that Clause 83 would give to the CAA. Indeed, these may well be issues that the CAA will wish to focus on, though I would not wish to pre-empt its consideration and consultation on the use of these functions.
In our previous sitting, we had a good debate about immigration and baggage handling, but no noble Lord has raised those issues today, so I shall not speak about them unless a noble Lord would like me to.
On Amendments 57 and 60, it is important to emphasise the importance of the clauses that the amendments would alter. I fully agree about the benefits that can be gained by giving passengers clearer and better information about the environmental impact of their travel choices, including the carbon impact. We are committed to ensuring that the transport sector plays a full part in delivering the emissions reductions needed to meet our Climate Change Act targets. The Government have already set stretching, legally binding carbon budgets which will see a 50% reduction in emissions by 2025, compared to 1990 levels, on a path towards an 80% reduction by 2050.
On 1 December, the Government published the Carbon Plan, setting out how we will meet the UK’s legally binding carbon reduction targets over the next two decades and beyond. The Carbon Plan details our ambitious plans to deliver major reductions in carbon emissions from the transport sector and from other sectors over the coming decades. It sets out a radical vision for the almost complete decarbonisation of cars and vans by 2050.
Lord Bradshaw
Perhaps I may add my congratulations to the noble Lord, Lord Rosser, on what he has said. I do not know whether the amendment is acceptable in this form, but I look forward to seeing something at Report stage that will safeguard the interests of consumers.
Earl Attlee
My Lords, the amendment addresses two concerns, both of which I share. I can recall very well the debate initiated by the noble Lord, Lord Mitchell, on precisely these issues, and I hope that I gave a positive response at the time. One of the issues is the ability of the CAA to publish comparable information on air transport service pricing, and the other is that of showing the full costs of travel and surcharges. In responding, I will show that the first is already provided for in the Bill and that the second is being addressed in other ways.
The noble Lord, Lord Rosser, is right to say that the CAA should have a role. Clause 83 is widely drawn and thus gives the CAA a new and important statutory role in promoting better public information about the aviation industry’s performance. It imposes a duty on the authority either to publish, or to arrange for the aviation sector to publish, consumer information and advice that it considers appropriate to help people compare aviation prices and services. The judgment of what is appropriate will be a matter for the regulator, which is required to prepare and consult on a statement of its policy with regard to the use of these functions. The information that Clause 83 requires the CAA to publish, if it considers that appropriate, is defined in a way that includes price comparison data, and the proposed amendment will not therefore add anything to what the CAA will be able to do. For that reason, the amendment is not necessary, and the Government oppose it.
In the debate on Second Reading, the noble Lord, Lord Rosser, expressed his concerns about the full costs of travel and surcharges. I will therefore set out what the Government are doing to address the issue. On the full cost of travel, consumers are already protected throughout the EU by Article 23 of EU Regulation 1008/2008, which is sometimes referred to as the ticket transparency regulation. It requires airlines to display at all times their prices inclusive of all unavoidable and foreseeable taxes, fees and charges. It also requires any optional services such as checked baggage or priority boarding to be offered on an opt-in basis only, and that the prices for these optional extras are clearly and unambiguously displayed at the start of the booking process. In addition to displaying fully inclusive prices, the regulation requires a breakdown of the price into the fare and any taxes, charges, surcharges and fees where these are added. These services should be displayed clearly and unambiguously at the start of the booking process. These requirements are designed to ensure that consumers are able to compare the price of flights across a number of airlines and to ensure that they select only the optional extras they require.
Lord Soley
I am slightly worried about the direction of travel of the Minister’s comments. It is one thing to say that they must publish information under Article 23; it is another to say that they are right up front so that a passenger knows. I do not believe that Ryanair has been giving true and full information to people in a way that enables them to assess the full cost, rather than flicking over it in the small print—although I accept that the print will not necessarily be that small. I would be happier if there were some proactive way to intervene—for the CAA, or whoever, to look at it and say, “This is utterly unacceptable and has to stop”. As far as I know—I have not tried it myself recently but this is what I have been told by passengers recently—this is still happening with Ryanair.
Earl Attlee
My Lords, I am sure that many noble Lords share the noble Lord’s view of that airline but, on the issue of publication, it is up to the CAA to determine what to publish, taking into consideration the results of the consultation.
On the second issue of payment surcharges, like the noble Lord, Lord Rosser, I share consumers’ concerns about the high level of payment surcharges applied by some companies and that often people are not aware of the level of these charges until almost at the end of the booking process. That makes it difficult to compare prices and shop around for a good deal. It is not right that a business should try to hide the true cost of its services by implying that its prices are made up of elements beyond its control when they are not.
Your Lordships will be aware that consumers are already protected against misleading pricing under the Consumer Protection from Unfair Trading Regulations. Additionally, on 23 December 2011 the Government announced our intention to consult on implementing the payment surcharges provision of the consumer rights directive ahead of the June 2014 deadline. We intend to issue a consultation in the summer to seek views on the timing of implementation and other details on how the provision should be applied. Responses to the consultation will inform our decision on timing and our guidance to businesses.
I hope that it is clear from what I have said that the intent of the amendment is already implicit in the primary duty and that effective mechanisms are already in place to secure the result intended. Given that, I hope that at the appropriate time the noble Lord will feel able to withdraw the amendment.
Lord Rosser
I thank the Minister for his reply, which I thought was going to be even more helpful than it proved to be, although I do not question his desire for transparency to be brought into charges and surcharges levied on air transport users.
I thought I heard the Minister say—when or shortly after he referred to the article under EU regulations—that the Civil Aviation Authority was of the view that airlines were complying with the regulation. If I understood correctly what the Minister said, and if the CAA is basically happy with the current situation, my only comment is that Clause 83(1), with its requirement for the CAA to publish or arrange for publication of information to assist users of air transport services, will not have any great force if the CAA considers that the situation is already satisfactory in relation to making the charges and surcharges known.
However, the extremely helpful contributions of my noble friend Lord Soley and the noble Lords, Lord Rotherwick and Lord Bradshaw, indicated that the current situation is not satisfactory and that charges are not easily and readily available to users of air transport services. For that reason, I feel somewhat concerned by the nature of the Minister’s reply. I get the feeling that the Civil Aviation Authority thinks that, in essence, the situation at the current time is satisfactory. Clearly, from the comments made in this debate, and from reports in the newspapers of individuals who have fallen foul of the surcharges, it is not. If the Government do not like the wording of the amendment, perhaps they will go away and produce wording that they think is appropriate. It is a test of how determined they are to be on the side of users of air transport services.
The Minister may argue that the issues are covered by this or that legislation or by something in the Bill, but Clause 83(1) makes no reference to charges or surcharges. Clearly there is still a problem here. This is an opportunity for the Government to show their determination to be on the side of the users of air transport services, who have suffered from these additional charges. The Government can show that by making it even more explicit than they believe it to be in the Bill that it is a duty and a responsibility of the Civil Aviation Authority to make sure that the full cost of travel for users of air transport services, including all relevant surcharges that such users will be expected to pay, is available through CAA channels or directives. The CAA would be regarded as an impartial and objective body that would give reliable information rather than information that might be open to more than one interpretation.
I beg the Minister to think again about this. The issue is about making information clear and stopping people finding additional charges that they did not expect. It ought to be possible—I argue that it is necessary—to make sure that the Civil Aviation Authority, with its powers under the Bill, should provide this service for air transport users. The Government should make it very clear in the Bill that that is part of the CAA’s role and that this is the kind of information that it should provide in a clear, objective and impartial form that is easily available to those who want to use air transport services. This is about the importance that the Government attach to highlighting this problem and dealing with it.
Earl Attlee
My Lords, I reiterate to the Committee that the Government accept that there is a problem. We are determined to deal with it but we need to do so in the right way. The noble Lord asked me about what I said about Article 23. Perhaps it is worth carefully going over it because it was carefully drafted. The CAA has been working with airlines to ensure compliance with this requirement and considers that the airlines that it worked with are now compliant with Article 23. That implies that the airlines that it did not work with are not compliant.
Lord Soley
That is the point: some of them are not. I could name Ryanair, but there are others too. Some of this is down to the psychological trick where, as you go through your booking form, usually on a computer, you tick the “something extra”. Each one on its own seems small; you get to the position where you enter your card number and book the flight; you say, “All right, I will go ahead”; and then you add it all up afterwards and it is painful. My noble friend Lord Rosser is right: we need to get much tougher on this.
I have not looked at Article 23. I will do so and I am grateful to the Minister for drawing it to our attention, but I have a strong feeling that unless there is a tough ruling on this we will not get what we want, or not for a very long time.
Earl Attlee
My Lords, I agree with the noble Lord’s analysis. However, it is open to and up to the CAA to determine how it will publicise the situation. It may choose to report on the headline price of a ticket offered by an airline and then say, “But just before you click, you will find out that it is three times more expensive”. It is a matter for the CAA to say how it is going to do this.
It may be helpful if I say what the CAA is already doing in this area. The CAA has researched the fees and charges of the top 24 airlines operating from the UK, including the cost of paying by credit card, booking an assigned seat and taking various weights of hold luggage, and has published a comparison table. This table provides consumers shopping around with the ability to see what charges they might face, and the ability to use that information to help them decide which airline to travel with, based on their individual needs. The CAA has also recently updated all the information and advice available to passengers through its website, in order to give pre-shopping advice as well as advice on resolving travel problems.
I am aware that I myself have never thought of looking at the CAA’s website when considering purchasing an airline ticket. Perhaps there is a lack of knowledge among consumers that this information is available.
Lord Soley
I do not think that the Minister is alone in not looking at the CAA website before booking his ticket; that is fairly common for most people. It is clear that the CAA is hearing this debate now. Could we ask it, through the Minister, to report to him on what it is doing so that he can let the Committee know? It is the sleight of hand by some of these airlines that needs to be addressed. As a Member of this House, I would like a very clear response from the CAA about what it is going to do because the situation is unsatisfactory.
Earl Attlee
My Lords, I am fairly confident that the CAA will be listening very carefully to what the Committee has to say.
Lord Trefgarne
I apologise for not being here earlier. I hope that I am in order in asking the Minister one question arising from Clause 83(1) on the reference to civil airports and all the divisions of the clause that relate to them. He will be aware that some military airports accept civil flights. What will be the position in that case?
Earl Attlee
My Lords, my noble friend has questioned whether Clause 83 should stand part of the Bill without having given notice on the Marshalled List. That does not put me in a very good position to answer his question. However, I am very happy to write to him.
Lord Trefgarne
My Lords, like my noble friend Lord Rotherwick and, I think, my noble friend Lord Goschen, who is not in his place, I was much disappointed by the Minister’s replies to amendments about civil aviation earlier in our consideration of the Bill the other day. I hope that he will be a bit more forthcoming in response to the latest amendment from my noble friend, which has my strong support.
Earl Attlee
My Lords, I thank my noble friend for tabling the amendment. We had an informed debate about general and business aviation on the first day of Committee, and I committed to meeting my noble friend Lord Rotherwick and his team to discuss the interests of general and business aviation further. I am sorry that my noble friends were disappointed by my response on that occasion.
The proposed new clause seeks to replicate the information publishing requirements being imposed on the Civil Aviation Authority by Clause 83. However, the Bill already covers general and business aviation interests where the flights include passengers, cargo or both. So, for example, where a corporate flight is carrying business passengers, the proposed duty under Clause 83 will extend to these situations because the passengers comprise users of air transport services. In these cases, the CAA functions will allow it to correct the asymmetric information market failure that I alluded to when we debated Clause 83 in all instances where there are users of air transport services.
The Bill does not include either the part of general aviation that is for non-commercial leisure use or the part that comprises commercial services that do not involve the carriage of cargo or passengers. Examples of these are crop spraying, flight training and surveying—I suspect that that is a concern of my noble friend. The amendment extends a duty to publish information beyond passengers and cargo. However, the market for general aviation is more transparent than that for the ordinary consumer. General aviation users comprise trained and licensed pilots with ready access to networks and sources of information. Comprehensive information on what facilities are available to pilots at each UK-licensed airport and airfield is already freely available online from, for example, the UKGA website. Much more information is also available through published flight guides or from the relevant aerodromes.
A further duty on the CAA, as the amendment proposes, to take into account the reasonable interests of general and business aviation is therefore unlikely to make a material difference to the information that is available to those airport service users. Against that background, we do not think it appropriate to give specific prominence to the interests of general and business aviation or, indeed, to any other specific sector. Moreover, we consider that such a duty would impose an unreasonable financial burden on the CAA and the aviation industry. The burden would fall either on the aviation industry generally, which would not be equitable, or on the general aviation community, which as I have explained has access to the information that it needs. For these reasons, I hope that my noble friend will consider withdrawing his amendment.
Lord Rotherwick
My Lords, I thank my noble friend for his response and my noble friend Lord Trefgarne for his support. I have listened carefully to what the Minister said, but I think I will need to read it as well. The overall principle that I am trying to establish is that the CAA should have more regard to championing the cause of general and business aviation. At present, the sector does not feel that it has a champion to look after it, and this is but a small area in which it has concerns. However, I thank my noble friend once again for his kind words and I beg leave to withdraw the amendment.
Lord Clinton-Davis
My noble friend has addressed a very important issue. I speak as someone who is partially disabled. Some sort of annual report is desirable. I am not sure whether it has to be dealt with in legislation, but there ought to be a clear obligation to ensure that the requirement is enforced. I cannot understand why there should be any opposition to that. I do not care whether there is a requirement in law, but there ought to be an understanding, if there is not a requirement in law, that that should be invoked.
People who are disabled or have reduced mobility are highly important passengers. At the moment, their requirements are not properly met. Therefore the proposition advanced in the amendment ought to be implemented forthwith. Again, disabled and reduced mobility passengers are vital and should not be overlooked. I hope that the Minister will properly address the important point made by my noble friend Lord Rosser.
Earl Attlee
My Lords, of course the Government agree that it is important that airlines and airports are sensitive to the needs of disabled people and comply with the European regulation which has been enacted to protect the interests of people with disabilities. The noble Lord, Lord Rosser, has asked a specific question about how the CAA balances its duties under Clause 1 with the needs of disabled passengers. The answer is that the CAA has to strike a balance. The reason for that is that disabled passengers are also users of air transport services, so they need to be taken into consideration.
Unfortunately, however, I cannot support the amendment for several reasons. I must highlight concern about how it would work in practice: my first concern is practical. The amendment is drafted in such a way as to put the obligation to produce an annual report jointly on the Secretary of State and the Civil Aviation Authority. I have significant doubt about linking together the regulator and the Secretary of State in that way. The aviation regulator and the national enforcement body for European aviation consumer legislation is separate from the Secretary of State in respect of ensuring compliance with EU law, and the amendment could be seen to compromise the CAA’s independence in that role.
The second reason why I cannot support the amendment is that effective mechanisms are already in place to secure the commendable result intended. I say in answer to the noble Lords, Lord Rosser and Lord Clinton-Davis that the CAA already publishes an annual report and corporate plan and makes a considerable amount of consumer information available on its website. An extra annual report on a specific area of legislation, on top of those more wide-ranging reports, would be disproportionate. The CAA is already committed to the principles of better regulation and aims to be as transparent as possible in all its work, including compliance with and enforcement of consumer protection legislation.
The noble Lord, Lord Rosser, asked about the future of the Disabled Persons Transport Advisory Committee. The Government have gone out to public consultation on the future of the DPTAC. The consultation closes in September. The CAA continues to develop its capacity to help consumers and has advanced the setting-up of a new consumer advisory panel to act as a critical friend of the regulator as it moves forward in putting consumers at the heart of its regulatory efforts.
Lord Clinton-Davis
The noble Lord explained that there was an obligation on the CAA to do something like this. Do ordinary consumers have the ability to understand the obligations of the CAA at present? That is all-important; I am not sure that they have.
Earl Attlee
My Lords, the noble Lord makes an interesting point. In a debate on an earlier amendment I admitted that I had not looked at the information that the CAA published on issues such as fares. I also admit that I have never looked at the CAA website, and I suspect that most passengers never look at it. However, several organisations look after the needs of disabled people, and I have no doubt that they will look very closely at all the information that is published by the CAA.
Lord Clinton-Davis
That is not good enough. There is an obligation on everyone in this Committee to understand precisely how disabled people, or those with reduced mobility, are protected. It is absolutely important.
Earl Attlee
My Lords, if the noble Lord will let me finish my speech, he may gain a better understanding. Also, I will send him more details by post.
Noble Lords will know that the CAA announced in April that the chair of the new panel would be Keith Richards. Mr Richards has considerable experience of disabled air passenger issues, having been chair of the aviation working group at the Disabled Persons Transport Advisory Committee for many years, as well as a former head of consumer affairs at the Association of British Travel Agents. The CAA and the new panel chair will need time to develop a relationship, but, it would not be unreasonable to suppose that the experience of disabled passengers at airports and on planes will be of considerable interest to the new chair. I suggest that it would be better to allow the new CAA consumer panel to have the space to develop how it will go about its work, and how best to support and inform passengers, than to impose an obligation on it in the way suggested by the noble Lord’s amendment. In view of this, I hope that the noble Lord will withdraw his amendment in due course.
Lord Rosser
I thank the Minister for his response, and I thank my noble friend Lord Clinton-Davis for his very helpful contribution. I do not see the amendment, as the Minister implied with his last comment that he sees it, as imposing a great burden in future on the CAA. If part of the problem is that the Secretary of State is also involved and the Minister does not think that appropriate, that issue could be addressed in a further amendment at a later stage.
The Minister did not address the enhanced, more important and more influential role that the CAA will surely have under the Bill, which gives it additional responsibilities and lays on it a general duty to carry out its functions in a way that will further the interests of users of air transport services. Simply to say that it already produces a report perhaps does not do justice to the enhanced role and greater importance and influence of the CAA that appears to be provided for in this legislation.
Lord Rosser
I thank the noble Lord for that contribution. If the Minister had stood up and said that—unless he is going to say that such a passage is already in the annual report from the CAA, in which case I suspect that it would need to be expanded in view of its enhanced role—I might well have felt that it was a move in the direction of the amendment. My concern is not so much about whether the report is a separate document as about whether the issue is covered and addressed by the CAA. If it can address that properly and fully in an existing annual report, I am sure that that would go a long way towards meeting the point that I have made in the amendment.
Earl Attlee
My Lords, the noble Lord asked me about the difficult point of the CAA balancing the needs of different users. As I have already said, they are in the same group—that is, users of air transport services. However, there is nothing to prevent the CAA focusing on different groups of users in exercising its information duties. I will write to the noble Lord in greater and more carefully considered detail on these points. I can see that he is very interested in exactly how the legislation works. The matter is far too technical for me to be able to respond orally, and I am sure that it is much better handled in writing.
Lord Rosser
As I said, my main concern is not that there is a separate document but that the issue is covered. Can the Minister give assurances that in annual reports from the CAA—he has expressed his concern about the Secretary of State also being involved—the issues that we have been discussing can be addressed under the new powers that the CAA will have under the Bill?
Earl Attlee
My Lords, I think it is much wiser for me to confine all that to my letter to the noble Lord.
Lord Rosser
I am happy to accept that, if the Minister will address the matter in his response. In view of that, I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
“(d) that a person (“P”) acting in the course of a business carried on by P does not in the United Kingdom facilitate the making available of flight accommodation by another person in circumstances in which one or more prescribed arrangements relating to payment apply, unless P meets the condition in subsection (1A).”
Earl Attlee
My Lords, the Air Travel Organisers’ Licensing (ATOL) scheme, which is run by the Civil Aviation Authority, has been effectively protecting holidaymakers from the insolvency of travel companies selling package holidays including a flight since the 1970s.
Last year, 18.5 million passengers were protected by the ATOL scheme, with 47,000 being repatriated and 146,000 receiving refunds when their travel companies became insolvent.
However, we need to modernise the scheme so that it better reflects the way that holidays are now bought and sold in today’s market, particularly with the increasing importance of the internet. For example, it has become increasingly difficult for consumers to know whether their holiday is a package holiday, and so protected under the ATOL scheme, or is comprised of individually sold elements that do not have full ATOL protection. The framework for businesses selling holidays including a flight could also benefit from being clearer and more consistent.
That is why on 30 April 2012, the Government introduced new ATOL regulations made under existing powers in the Civil Aviation Act 1982 to provide greater clarity for consumers about whether their holiday is protected by bringing flight-plus holidays sold by tour operators and travel agents into the scheme. Those are holidays which look like a package but which sit outside the legal definition of a package. From October, consumers will also receive an ATOL certificate whenever they purchase an ATOL-protected product confirming that their holiday is protected, increasing clarity about the scheme’s coverage.
Clause 94 would allow those reforms to go further by broadening the Secretary of State’s powers to make regulations under Section 71 of the Civil Aviation Act 1982 so that holidays sold by airlines could be brought into the ATOL scheme, as far as is consistent with EU law, as well as those arranged on what is called an agent-for-consumer basis.
The proposals were consulted on last summer. Bringing agent-for-consumer holidays into the ATOL scheme was strongly supported as a way of improving consumer clarity and ending a potential way for businesses to avoid the scheme. Bringing holidays sold by airlines into the scheme received mixed views. It was not supported by airlines, which argued that it would be disproportionate regulation. However, on balance, the Government decided that they should have the power to do that, because it could create a more consistent and coherent framework for businesses as well as further improving consumer clarity about the scheme’s scope. Should the clause become law, the Government would expect to consult stakeholders in 2013 on new draft regulations to give effect to these changes. The proposals were welcomed by both sides in discussion of the Bill in the House of Commons and in our debate at Second Reading.
While preparing for the introduction of the new ATOL regulations on 30 April, two circumstances were identified that might allow some businesses to avoid the ATOL scheme. Without addressing these, the objective of providing greater clarity for consumers and more consistent regulation for businesses could be compromised. It is not possible for these issues to be resolved through further secondary legislation, as the powers in Section 71 of the Civil Aviation Act 1982, even if amended by Clause 94, are not sufficient. For this reason, the Government have brought forward Amendments 63A to 63D. I shall deal first with Amendments 63A and 63B.
A model used by some businesses in arranging a flight-plus holiday is to facilitate the purchase of a flight; that is, purchasing a seat on a flight from an airline at the request of a consumer. By acting in this way, a business may not be covered by the current ATOL scheme and is not making available a seat on a flight by acting on behalf of the airline. The business’s way of trading may also not be that of an agent for the consumer, and so it would not be covered by the ATOL scheme if it were to be amended under the powers extended by Clause 94. However, it could be difficult for consumers to tell when the purchase of a holiday including a flight was being facilitated and sold outside the ATOL scheme, as the holiday purchase could be identical to those which are protected under the ATOL scheme. To reduce the risk of confusion for consumers and to ensure that the facilitating model does not provide a way for businesses to avoid the ATOL scheme, Amendments 63A and 63B would allow the Secretary of State to make regulations to require businesses that facilitate making available flight accommodation to have an ATOL licence. Although this may appear to be a broad power, it is important to note that it can be used only where a business makes or receives a payment in relation to the flight accommodation or facilitates the making or receiving of a payment.
I turn to Amendments 63C and 63D. The current ATOL regulation-making power in the Civil Aviation Act 1982 allows goods, services and other benefits such as hotel accommodation or car hire to be regulated when they are supplied in connection with a contract for a flight that is subject to the ATOL scheme. That is the basis for including flight-plus holidays in the ATOL scheme. However, some businesses could argue that as any hotel accommodation, for example, purchased by a consumer alongside the flight is supplied on an entirely separate contract from that for the flight, which might be clearly stated in their terms and conditions, the holiday is not subject to the ATOL scheme. To address this, Amendment 63C would allow future ATOL regulations to specify the circumstances where goods, services and other benefits purchased alongside a flight are to be regulated under the ATOL scheme rather than limiting them to where they applied in connection to the contract for the flight.
Finally, Amendment 63D is a consequential amendment to ensure that identical wording to that used in Amendment 63C is used in another part of Clause 94 concerned with goods, services and other benefits that are within the ATOL scheme. Subject to the passage of the Bill, the Government’s intention is to consult fully in 2013 with stakeholders on the potential use of the powers in Clause 94 as drafted. An impact assessment will also be produced as part of that consultation. Should the amendment to Clause 94 that I have outlined today become law, that consultation and the accompanying impact assessment will also include the use of the powers in the amendments.
To conclude, without these amendments there is a risk that the achievement of the Government's objectives for ATOL reform—to provide greater clarity for consumers about the scope of the scheme and a more consistent regulatory framework for business—may be compromised. The amendments are intended to ensure that those objectives can be achieved as envisaged. It is not the Government’s intention that that should lead to a significant extension of the ATOL scheme. I beg to move.
Lord Davies of Oldham
My Lords, the Minister is certainly correct in saying that the extension of the ATOL scheme contained in the Bill has won the support of both sides in the other House. We also indicated at Second Reading how much we approved of this extension of the ATOL scheme. We thoroughly endorse the main objective which the Minister is seeking to achieve and are delighted to see it in the Bill. I take it that the categories that are extended will receive the ATOL certificate in the same way as all others that are part of the scheme, so that consumers will know they are contained within the scheme under the new arrangements of Amendments 63A and 63B. I am making that assumption—if the Minister nods his assent, I am reassured on that front. That is excellent news.
On the other question, I understand the point that there is no attempt to greatly extend the boundary of the scheme while seeking to preserve protection in those specific cases. I hope that that boundary is easily maintained, because that is what is being put in the legislation. We all know that there are two categories of disappointed people. There are those who did not participate in the ATOL scheme and were never therefore covered, who are utterly dismayed when things go badly wrong. There is no event in one’s normal life much worse than a holiday going badly wrong. However, if anything, it is worse to think that you are covered when you are not. As long as there is clarity at the boundary about that, I am entirely satisfied with the amendments and am delighted to see them being proposed.
Earl Attlee
I thank the noble Lord for his support for my amendments. I beg to move.
Earl Attlee
“(1D) The arrangements relating to payment that may be prescribed under subsection (1)(d) are any arrangements under which P makes or receives payment, or facilitates the making or receipt of payment by another person, in connection with the making available of the flight accommodation.””