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(1) In paragraph 7 of Schedule 3 to the Railways Act 2005 (c. 14) (agreements by Secretary of State and Office of Rail Regulation for that Office to carry out on his behalf functions other than powers to make instruments of legislative character), after sub-paragraph (3) insert
(2) Subsection (2) of section 13 of the Health and Safety at Work etc. Act 1974 (c. 37) (agreements by Health and Safety Commission with Minister to perform functions on his behalf not to be taken to authorise performance of powers to make instruments of legislative character) is not to be taken to have prevented the performance by the Health and Safety Executive (on behalf of the Health and Safety Commission), in reliance on an agreement under subsection (1)(b) of that section, of the function of making orders under section 1 of the Level Crossings Act 1983 (c. 16).
Lord Davies of Oldham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 13 to 15. In doing so, I ask the noble Lord, Lord Bradshaw, not to move his Amendments Nos. 16A and 17A, but I shall of course seek to reply to any points that he makes.
We think that we have now produced a position with regard to the safety of level crossings that should commend itself to the House. The first new clause seeks to improve the safety of level crossings by making clear that a level crossing order can impose obligations on traffic authorities as well as on the level crossing operator and so better provide for road traffic measures to control the behaviour of motorists. The other new clause is a technical amendment which provides for the making of level crossing orders to be delegated to the rail safety regulator rather than be made directly by the Secretary of State, and prospectively validates orders made by the Health and Safety Executive on his behalf. Amendments Nos. 23, 24 and 32 are consequential on those two new clauses. The remaining amendments remove clauses which the Government do not think are necessary and which were not supported in the other place.
When the Bill was introduced into this House, much concern was expressed about safety at level crossings. Now that other safety concerns have been tackled, level crossings represent the greatest risk to safety on the railway. In the main, however, the risk arises not from the actions of rail users but from those of pedestrians and motorists who misuse crossings in a reckless way. A number of amendments were tabled by noble Lords to tackle the problem. The Government position was that those amendments were either defectively drafted or that we were not convinced of the need for further primary legislation.
We did, however, undertake to think about the issue and I am pleased to report to the House that in the other place an amendment was introduced which seeks to tackle the problem of misbehaving motorists by clarifying that a level crossing order may put
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Level crossing orders set out the protective measures to be provided at a level crossing. Protective measures means the types of signs, barriers, lights and so on needed to ensure the crossing is safe both for road and rail users. The general process has been that, after consultation with the local authority, the level crossing operator applies to the Secretary of State for an order setting out the necessary measures. The proposals are considered by Her Majestys Railway Inspectorate and the order made by the inspectorate on behalf of the Secretary of State.
The protective measures have traditionally been rail measures but the amendment makes clear that road traffic measures can also be considered. This means that there will need to be discussions between local traffic authorities and the crossing operator, usually Network Rail, on a package of measures. These could include rumble strips to slow traffic on its approach to the crossing, additional signage, cameras and central barriers to stop motorists attempting to zig-zag around half-barriers. Network Rail has agreed to fund these measures, so there will be no additional call on the resources of local authorities.
The Government have looked at the other amendments introduced into this House but are not persuaded of the case for special offences in respect of breaching red lights at railway crossings and bridge strikes. Regarding red lights, there are many instances where a violation can have catastrophic consequences for motorists and pedestrians just as much as where collisions occur on railway crossings. As the roads Minister made clear in the other place, where the violation is blatant and dangerous, the driving can and should be prosecuted as such with a significantly higher penalty, including custody, than that which applies to breach of a red light. If there is real evidence of a problem the Government would be prepared to consider using subordinate powers under Clauses 3 and 4 of the Bill, subject to the agreement of Parliament, to set a higher fixed penalty and higher penalty points tariff for breaches of red lights where they occur at railway crossings.
Bridge strikes greatly interest several noble Lords. I believe the current offence of careless and inconsiderate driving, with a maximum fine, subject to parliamentary approval for Clause 22 of this Bill, of £5,000, is sufficient. In extreme cases, where danger is caused to other road users, it may be appropriate to prosecute for dangerous driving with the possible attendant penalties.
The possibility of a custodial penalty is a significant elevation of the gravity with which society views an act of irresponsible driving. It is a very tricky path when we start to designate very specific actions in their own right as being as serious as those for which custodial penalties presently exist. I have heard it argued for when people use mobile phones when driving, for example. But how do we balance all these different circumstances? My response is to say that it
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The other new clause is not concerned with the content of level crossing orders but is a technical amendment about who has the power to make level crossing orders. With the transfer of the HMRI from the Health and Safety Executive to the Office of Rail Regulation earlier this year, we had intended that the rail inspectorate would continue to make level crossing orders. But doubt was cast on whether the wording of the Railways Act 2005 would allow this. In turn, doubt was cast on whether the delegation to the Health and Safety Executive in 1990 was sufficiently robust. The Railways Act 2005 and the Health and Safety at Work etc Act 1974 (under which the 1990 delegation was made) permit the delegation of administrative functions but not legislative functions. We have concluded that the making of level crossing orders is a legislative function.
We are, therefore, seeking to put beyond doubt that the making of level crossing orders can be delegated and to make clear that orders made by the rail inspectorate inspectors when they were in HSE are valid. If approved, the amendment would confirm the legal position as that which absolutely everyone thought it always was, and which has worked well in terms of level crossing safety.
Lord Bradshaw: My Lords, I wish to speak to Amendments Nos. 16A and 17A as amendments to the Motion that this House do agree with the Commons in their Amendments Nos. 16 and 17, and to leave out agree and insert disagree.
I am grateful to the Minister for what he has said about level crossings. I still have to point out that they now represent 42 per cent of the accident risk faced by train operators. Many causes of train accidents have been eliminated, but this one has not, and it is getting worse. There were 229 near misses last year, 16 collisions at level crossings and 120,000 minutes of delay were caused. At bridges there was even more delay: 340,000 minutes. There were 2,000 incidents which cost £10 million to deal with and the figure is going up.
The only point between me and the Minister in examining this matter is the level of penalties that are applicable to people who breach level crossings. He has said that people who bash into bridges should be charged with dangerous driving if it can be shown that they have driven without regard to the size of their lorry into a bridge which is clearly marked. Can
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As regards level crossings, I am sure that the Minister has seen the films that I and the noble Lord, Lord Hanningfield, have seen. The behaviour of some motoristsit is a small minorityis criminally insane at level crossings. There is a strong case for giving serious thought to lifting the penalties under, I believe, the Road Traffic Act 1991. They are level 3, which means that a maximum fine of £1,000 can be imposed for such acts, unless they are elevated to dangerous driving. I am well aware that in that case other penalties would accrue. I would like to hear what the Minister has to say before deciding what we should do.
Lord Hanningfield: My Lords, I support everything the noble Lord, Lord Bradshaw, has said. Perhaps the Minister could further clarify the matter. In previous debates we have spoken of accidents, and we need to ensure that in the legislation we have properly tackled the recklessness at level crossings. I would like to hear the Minister comment further on that.
Lord Berkeley: My Lords, I, too, thank my noble friend for the Commons amendments on level crossings. We have had long discussions about them and I think that they are really good. I am pleased about the way in which Network Rail has accepted them and I am sure that it will be a good step forward.
I worry still about these penaltiesas the noble Lord, Lord Bradshaw, said, there have been 2,000 incidents of bridge-bashing. People think that you just get delayed in your train for half an hour until the engineer comes, looks at it and says it is all right. However, let us take the scenario of a lorry hitting a steel-deck bridge and moving it six inches sideways towards the track just before a high-speed train goes over it. We are talking about hundreds of potential deathsespecially if a train is going in the other direction. It may not happen oftenI hope it never happensbut there is a need for a deterrent.
We are not talking about careful driving here; we are talking about intent. Not to check the height of your lorry or to wriggle through half-barriers to save a few minutes is done with intent and sometimes it will go wrong. In these circumstances, custodial sentences should certainly be possible. The deterrent does not exist at present, as the evidence of the number of incidents given by the noble Lord, Lord Bradshaw, surely shows. I hope that my noble friend can put my mind at rest and agree that the deterrent must dramatically increase before we have a serious accident.
Earl Attlee: My Lords, the noble Lord, Lord Berkeley, talked about bridge-bashing by lorries. It is a serious problem. In my opinion, it is inevitable that we will have the kind of accident he describes. It is only a matter of time. The penalties might not be sufficient, but I am disappointed that we have dropped Clause 52and I am told that here I might be slightly out of order. That clause provided for physical barriers to
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Lord Davies of Oldham: My Lords, I am doomed to disappoint noble Lords this evening, even when, it is fair to say, the Government are being at their most constructive. We have had extensive debates on level-crossing safety and bridge strikes. I indicated to noble Lords the significant progress we made on this, not least with regard to cost factors, the relationship with local authorities and the way in which the roads will be treated to protect level crossings. Now the noble Lord, Lord Bradshaw, as is his wont, is seeking to push me one stage further. He is asking whether I will prescribe the nature of the offence and the attendant sentencing that should apply. I cannot do that. I cannot go any further than I have. I said that we regard these as serious issues. I indicated that the use of a mobile phone when driving can be a serious issue at times: it can lead to a charge of dangerous driving. I said that we will look to the Sentencing Advisory Panel to consider the appropriate sentences where strike situations involving level crossings and bridges occur.
I cannot go further than that this evening. I recognise the commitment of the noble Lord, Lord Bradshaw, to road and railway safety, which he holds very much to his heart. He has contributed significantly to the Bill in that area. I hope that he will understand that I cannot go as far as he would like in that regard this evening, and that he will appreciate that it is for the police and the Crown Prosecution Service to determine the charge. The maximum penalty for careless driving is £5,000, but for dangerous driving it could be a custodial sentence of a maximum of two years. That range, which we leave to the courts, is not insignificant. I hope that the noble Lord will feel that he does not need to press me any further this evening.
The noble Lord said: My Lords, I thank the Minister for what he has said. I still do not understand why it is not possible to move the penalties for abusing a level crossing up the scale. I am sure that the level of penalty available determines
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