Civil Aviation Bill

Lord Davies of Oldham Excerpts

Wednesday 4th July 2012 Grand Committee

Moved by

[Lord Davies of Oldham]

51: Clause 80, page 50, line 4, at end insert—
“( ) The CAA may also provide advice and assistance to such persons in connection with security checks performed on users of civil air services who have religious clothing requirements in order that their dignity be maintained without compromising the rigour of those security checks.”

[Lord Davies of Oldham]

My Lords, the amendment is a minor part of the security issues that we are concerned about in our airports. In later amendments, we will have the opportunity to discuss the more substantial issues, but this issue is substantial to part of our community—the Sikhs—who could undergo considerable humiliation and total affront to their religious position by the action of those carrying out security.

As a nation, we are more appreciative of this issue than may be the case in many other parts of Europe, not least because we have a substantial Sikh population, but we also have a relationship with Sikhs that goes back over several centuries through the former British Empire in India. The issue raised by security is that Sikhs are not prepared to have their turban touched or in any way interfered with, because the turbaned hair is a fundamental point of observance in their religion. Obvious security difficulties attend that. After all, turbans can be very substantial headgear. Sikhs do not cut their hair and their turbans enclose substantial swathes of hair. As we know, many Sikhs are somewhat above average size in any case, so it is a substantial piece of clothing.

Under regulations that obtain under the European Community, security officers have the right to insist on scrutinising the head-dress, which means at the very least touching it and, in more obvious cases, asking for it to be unwound entirely. Some cases have caused enormous concern in the Sikh population. There was one case in Italy in which the security officer insisted on the removal of the head-dress. There was even the case of the coach to the internationally renowned golfer, Milkha Singh, who has achieved great prominence in golfing circles. The coach was subject to this challenge of the turban being touched.

We therefore cannot look at the conduct contained and outlined in European regulations as anything other than a straight affront to the Sikh population. The Indian Government watch this kind of situation with the greatest care. An Indian Minister went so far as to say that any insult to a Sikh, particularly on religious grounds, was an insult to the whole of India. Of course, he was reflecting the fact that India prides itself on its extraordinary tolerance and its capacity to operate a political system and create a society in which widely different religious groups are highly represented. One of the more obvious facts is that there are two million Muslims in India out of a population that is overwhelmingly Hindu.

We must therefore look at this issue in an international context, too. At British airports, the authorities deal with this issue—bearing in mind that they have every regard to security—by using swab tests. Beyond that, we know that there has been no development on the explosive trace detection which our airports are trialling. Swab tests are not totally satisfactory or convincingly effective, and the explosive trace detection is still a trial and not proven as yet. British citizens travelling to Europe, and Europe as a whole, are still subject to the regulations that were introduced a couple of years ago.

No Member of Parliament with a Sikh population could be anything but greatly exercised by the fact that there might be an incident at a British airport that provoked the repercussions that I have outlined and which have occurred in the past. There is a further implication that an incident might damage community relations and cause great concern among the whole of the Sikh population in the UK. There is not the slightest doubt that this is a very significant issue. The Committee will remember that this issue cropped up a number of years ago, in the 1960s, with the introduction of compulsory helmet wearing for motor cyclists. I cannot now recollect the years in which we had the debates in both Houses of Parliament, but we were able to deal with it, after considerable debate, in a sensitive manner.

I ask the Minister not to underestimate the significance of this issue. I hope he will feel that the amendment is expressed in constructive terms so that the CAA will be empowered to take effective action in this area. It may also be a clear indication of the sensitivity of the CAA and British Airports to other circumstances that we have to have great regard to because they mean so much to certain groups in our country and, of course, to whole populations elsewhere in the world. I beg to move.

[Lord Rotherwick]

My Lords, I rise with a little concern because I do not want to give any religious affront to anyone. However, maybe we should put this into the context of the rest of the population. It is concerning that the risk of something occurring that was an affront to one person’s religious rights might be put before the safety of a planeload of people. I remind the Minister that at certain times the rest of the population have to undergo strip searches. I unfortunately have rather a lot of prosthetic material inside me, and I am patted down from head to toe every time I go through passport control. That is an affront to my person, but I accept it as a necessity for the safety of other people.

As the noble Lord, Lord Davies, said, we looked at the Sikh population’s concerns about motorcycles and a solution was found, but motorcycle safety issues relate mainly to the driver of the motorcycle. The safety concerns here are about the whole aircraft and the passengers in it. To repeat myself, I do not wish to cause affront to any religious person, but in this context we all have to undergo certain unpleasant procedures, and unfortunately everyone has to suffer in the same way.

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[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.

Amendment 51 withdrawn.

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Moved by

[Lord Davies of Oldham]

54: After Clause 82, insert the following new Clause—
“Risk-based aviation security regime
(1) The Secretary of State may direct the operators of airport areas to implement an outcomes-focused, risk-based aviation security regime to govern the exercise of their functions in relation to aviation security.
(2) When making directions under this section, the Secretary of State must by order set out the framework for the introduction of the outcomes-focused, risk-based aviation security regime.
(3) An order under this section must be approved by a resolution of each House of Parliament.”

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[Lord Davies of Oldham]

My Lords, I shall also speak to Amendment 75, which is linked with this amendment. We have begun our discussions on the outcomes-focused, risk-based scheme, and I hope that, during the Minister’s reply to this amendment, he will be kind enough to explain sufficiently what this term implies to satisfy the Committee and ensure that all Members are fully aware of what is envisaged. As my noble friend indicated when speaking to the previous amendment, we are not entirely satisfied about replacing what after all has borne the test of time in airport security in this country, with one or two obviously notable exceptions. We are not clear about the principles behind the scheme and we would be grateful if the Minister would elaborate on them.

Our concerns are born of the fact that this concept was added to the Bill quite late. It occasioned anxieties in the Transport Committee of the other place because the concept had not been subject to any serious pre-legislative scrutiny. Moreover, as others have said, it has been somewhat sprung on the industry, which I know is mixed in its response. I think the Minister will be pressed to say whether there is tremendous enthusiasm for this development, although he may be able to point to the progress that is being made. Suffice it to say that there did not appear to be a great deal of consultation about the scheme before it appeared in the Bill.

The scheme has one conspicuous merit for the Government; as the noble Lord neatly put it, it transfers the costs to the user. That is an interesting concept; an airline is using security and should bear the costs. What the industry might be doing is picking up the costs that are transferred from the department and therefore helping the department’s budget in the wake of the Chancellor’s cuts, detailed last year. The absence of consultation, the fact that the concept was added late and the fact that it needs considerable elaboration and definition are all points to which I am sure the Minister will set his mind.

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[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.

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[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.

Amendment 54 withdrawn.

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Moved by

[Lord Davies of Oldham]

55: Clause 83, page 51, line 22, at end insert—
“( ) greenhouse gas emissions resulting from both domestic flights and flights to European Union Member States, with greenhouse gas emissions for an equivalent journey via rail or coach.”

[Lord Davies of Oldham]

My Lords, I will also speak to Amendments 57 and 60 in this group. The amendments seek to enhance the principle that the Minister accepted in earlier discussions in Committee of the advantages of the openness and transparency of the CAA, and the fact that because it is in a position to garner critical information the nation would benefit significantly if that information were distributed widely.

The first amendment in the group asks the CAA to publish information comparing greenhouse gas emissions resulting from domestic and EU flights with equivalent journeys by other transport means. The public are becoming increasingly aware of their climate change obligations. As the Minister knows, a whole range of activities by other departments makes it incumbent on them or their agencies accurately to identify to the nation the nature of greenhouse gas emissions. The issue runs across government policy. It is one to which the Government in principle subscribe, and we are proud of the fact that we initiated it in government some years ago.

The most obvious issue for people when it comes to transport modes is price. It may be that the very wealthy never bother about relative prices, but I assure the noble Lord that, particularly in these days of economic stringency, large numbers of our fellow citizens look at price first when they travel. That is why low-cost airlines have done so well in recent years. It is also why long-distance coach travel has expanded. Another increasingly important consideration is the cost of their travel in terms of the increased damage to the environment. This information may not be acted on by huge numbers of people in the first years that it is given, but we know that a substantial proportion of the population is clamouring for the information at present. We also know that as anxieties about climate change increase, the public’s need for information to make them fully aware of greenhouse gas emissions will be of surpassing importance. The first amendment therefore relates to information that is not massively difficult for the Government to collect and distribute. We think that it would be very useful to people when choosing travel modes.

Amendment 57 relates to an issue that we have already debated. There is no doubt that people first choose their flight and airline. However, airports differ substantially in how easy it is to park a car, how passengers are processed, and the facilities available, and these issues count for a great deal more than when mass flying first came along. People then were grateful just for the fact that the aircraft was parked in the right place and that they had arrived at the right airport to catch it. The Government have emphasised that they are eager to see competition between airports. Indeed, we have even discussed whether we will see the Government encouraging competition between terminals, an interesting proposition that we considered during our last session in Committee. This side was not entirely convinced about it. If there is going to be competition between airports, people will need to be able to make accurate judgments about the efficacy of airports and the services they offer.

[Lord Soley]

Does my noble friend agree that if we have competition for airports, we should also have it for train and coach stations? Should we have the same information made available about them?

[Lord Davies of Oldham]

My Lords, I would be a great enthusiast for that. Whatever anxieties people might have about airports, only a small percentage of the population travels by air on a daily basis, while a large number make journeys by train every day. The only thing I would say to my noble friend is that I am not at liberty to introduce rail into the Bill, so he will have to be patient until we can tackle the rail industry with the same forthright approach that has been brought to aviation.

The last amendment in the group relates to the question of air transport services and their impact on greenhouse gas emissions. We know that airports have made considerable strides in reducing their emissions. There was a time when one could well have formed the impression that the largest aircraft taxiing on a runway was unlikely to create as much emissions as the gear being used to tow it to its bay. Sundry vehicles could be seen sauntering around airports, many of them of somewhat archaic design and certainly capable of spouting noxious fumes. We know that airports have already addressed these issues, so why should we not have the information that allows us to appreciate those achievements and thus encourage them to do even better? I beg to move.

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[Lord Davies of Oldham]

My Lords, I thought that the Minister’s response did justice to an excellent debate, and I congratulate him on the constructive way in which he identified our concerns and the nation’s concerns about the issues and the way in which they need to be tackled. I will certainly bear in mind the fact that he considers that I have addressed the amendment to the wrong part of the Bill. That is easily corrected and I am therefore very grateful for the information.

My noble friend Lord Clinton-Davis is right about the question of information, but he must know that the premise behind economics and intelligent rational economic decision-taking is perfect information. We all know that perfect information is extremely difficult to get on almost any economic choice but what is clear is that the more information that is available to the individual, the more rational their choice can prove to be. That is the thinking behind the amendments and, as the Minister indicated, it is government thinking in crucial areas with regard to transport. We have no doubt that when it comes to emissions, transport has competitors, but it is one of the more significant areas of economic activity that present a threat to the environment. I was greatly encouraged by his response.

I was grateful, too, to the right reverend Prelate the Bishop of Chester for his endorsement of the amendments. His amendment, like mine, will suffer from not being in the right place or from not quite tuning with the Minister’s preferences, but he has occasioned an illustration of how the Government are tackling this matter. I hope that this also betokens an unremitting requirement upon aviation to be clear about its emissions and the strategy that it is adopting to reduce them.

In response to my noble friend Lord Soley, the reason why we put the other transport forms into the amendment is obvious enough: this is an aviation Bill but we thought that we would incur a calumny and be criticised for being desperately partial if we addressed ourselves to the demands upon aviation with no indication at all of our anxieties about other forms of transport—not least because there are areas such as high-speed rail and improved rail services that are directly competitive with air in a way that was not the case 20 to 25 years ago.

The great friend of mine, Lord McIntosh of Haringey, who is sadly no longer with us, enjoyed the privilege of being my predecessor as Captain of the Yeomen of the Guard. I always said that I could never fill his boots, and that was literally so because I could not get them on. He had many extraordinary attributes but there was one in particular that I always admired: on the final afternoon before every Recess he would depart from this place, particularly in the summer, wearing the right kind of gear, and announce to everyone that he was catching the TGV to Avignon, where he had a home. I was always in complete envy of him for that journey, particularly because it was by train and would not have been possible a decade or so previously. There is no doubt that the TGV to Avignon is competitive with services from Paris to Avignon or to Marseilles by air. That is why we need a comparison, and not least a fair one, because we ought to be able to guarantee that the various transport modes are measured in ways that allow the consumer to make an accurate choice.

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[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.