House of Lords - Explanatory Note
      
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Session 2002 - 03
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Railways And Transport Safety Bill


 

These notes refer to the Railways And Transport Safety Bill
as brought from the House of Commons on 1st April 2003 [HL Bill 53]

RAILWAYS AND TRANSPORT SAFETY BILL


EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes relate to the Railways and Transport Safety Bill. They have been prepared by the Department for Transport in order to assist the reader in understanding the Bill. They do not form part of the Bill, and have not been endorsed by Parliament.

2.     The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill would create an independent body tasked with establishing the causes of accidents on the railways. This body, which would be called the Rail Accident Investigation Branch, would be established on a similar model to that which already exists in the marine and aviation sectors. The establishment of this new body is in response to recommendations made in September 2001 by Part 2 of Lord Cullen's Report into the Ladbroke Grove rail crash.

4.     The Bill provides for a Regulatory Board to replace the Rail Regulator, in line with standard practice for the regulation of utilities.

5.     The Bill would give the British Transport Police a wholly statutory, rather than part-statutory and part-contractual, jurisdiction over the railways. It would also create an independent police authority for the British Transport Police and transfer responsibility for the force from the Strategic Rail Authority to the new police authority.

6.     The Bill would introduce alcohol limits and related measures for crews on water-borne vessels, and for crew members and others with safety-critical functions in aviation. These limits would be enforced similarly to drink-drive limits on the roads, with the police given powers to test individuals if a reasonable suspicion exists that an offence is or has been committed.7.     The Bill also contains a miscellaneous section, which makes provision for measures including:

  • incorporation into UK law of a modification to the 1999 International Convention concerning Carriage by Rail (COTIF). The new Convention text takes account of the major changes in management of railway operations in many countries, in particular increasing separation of train operations from infrastructure management, and the introduction of open access rights, allowing for the possibility of more than one operator on any one network.

  • powers to create a levy on the rail industry, to meet the expenses of the Health and Safety Executive (HSE) as regards railway systems.

  • powers to ensure that persons subject to directions by the Secretary of State under the Aviation & Maritime Security Act 1990, or instructions under the Railways Act 1993, may only contract out security work to companies figuring on a list held by the Secretary of State.

  • a duty on highway authorities to remove ice and snow from roads for which they are responsible.

  • amendments to the Greater London Authority Act 1999 to remedy certain unintended consequences it would otherwise have had for the transfer of London Underground to Transport for London.

8.     The Bill is in seven Parts, with 7 Schedules

  • Part 1: (Investigation of Railway Accidents)

  • Part 2: (Office of Rail Regulation)

  • Part 3: (British Transport Police)

  • Part 4: (Shipping: Alcohol and Drugs)

  • Part 5: (Aviation: Alcohol and Drugs)

  • Part 6: (Miscellaneous)

  • Part 7: (General)

TERRITORIAL EXTENT

9.     This Bill extends to the whole of the United Kingdom, with the following exceptions:

Scotland

10.     The Bill extends to Scotland except:

  • Part 1 (Investigation of Railway Accidents) in so far as it applies to tramways

  • Part 3 (British Transport Police) in so far as it applies to tramways

  • Clause 106 (Road traffic: fixed penalty)

  • Clause 108 (Snow and ice)

Northern Ireland

11.     The Bill extends to Northern Ireland except:

  • Part 2 and clause 103 (Office of Rail Regulation)

  • Part 3 (British Transport Police)

  • Clause 104 (Railways safety levy)

  • Clause 105 (Railway security services)

  • Clause 106 (Road traffic: fixed penalty)

  • Clause 108 (Snow and ice)

  • Clause 111 (Railways in London: transfers)

  • Clause 112 (Railways in London: information)

Territorial application: Wales

12.     This Bill does not affect any of the National Assembly of Wales's powers. However, clause 108 will impose a duty on the National Assembly to remove snow and ice from those highways for which it has responsibility.

THE BILL

Part 1 - Investigation of Railway Accidents

13.     This Part extends to England, Wales and Northern Ireland. It also extends to Scotland except in so far as it applies to tramways.

Background

14.     Railways are statistically one of the safest means of transportation. Travel by rail is 6 times safer than travel by car. 1 However, in recent years, a number of serious accidents on the railways have affected public confidence and have revealed weaknesses in safety regulation.

    1 Transport Statistics 2002 - DfT

15.     On 5th October 1999, at Ladbroke Grove Junction, about 2 miles west of Paddington Station there was a head-on crash at high speed between two trains. This caused the death of 31 people, including both train drivers, and inflicted injuries, some of them critical, on over 400 other people.

16.     As a consequence of this crash, Lord Cullen was appointed by the Health and Safety Commission (HSC), with the consent of the Deputy Prime Minister, to conduct a Public Inquiry under Section 14(2)(b) of the Health and Safety at Work etc Act 1974. Lord Cullen's terms of reference were:

"1) To inquire into, and draw lessons from, the accident near Paddington Station on 5 October 1999, taking account of the findings of the Health and Safety Executive's investigations into immediate causes.

2) To consider general experience derived from relevant accidents on the railway since the Hidden Inquiry [into the 1988 Clapham rail crash], with a view to drawing conclusions about:

    a) factors which affect safety management

    b) the appropriateness of the current regulatory regime.

3) In the light of the above, to make recommendations for improving safety on the future railway."

17.     Lord Cullen's inquiry reported in 2 parts, the second of which looked at rail safety management and regulation. Lord Cullen's Part 2 Report made 74 recommendations which the Secretary of State asked the HSC to ensure were acted upon and implemented. 17 of these concerned accident investigation, including the creation of an independent Rail Accident Investigation Branch (RAIB), with appropriate powers and duties. Some applied solely to industry investigations and inquiries.

Commentary on clauses

18.     Part 1 of this Bill implements certain key recommendations made by Lord Cullen in his Ladbroke Grove Part 2 Report. This Part makes provision for the creation of an independent body of rail accident inspectors known as the Rail Accident Investigation Branch (RAIB), which will (as with the air and marine accident investigation branches) form part of the Department for Transport. The fundamental purpose of the RAIB will be to undertake investigations, openly and transparently, which look for the root causes of accidents and incidents without apportioning blame. It will have no prosecution function. The RAIB will conduct investigations on the railways following accidents or incidents. RAIB inspectors will have the power to enter all railway property, land adjoining railway property and certain other places connected to the accident or incident if they think that there may be evidence relevant to the investigation. If asked, they will have to show their identification, before they can enter such places.

19.     The provisions:

  • Establish the RAIB, charging it with investigating the causes of railway accidents and incidents with a view to learning lessons and fostering a safer railway;

  • Give RAIB inspectors the powers they need to conduct investigations and to require the disclosure of evidence related to these investigations;

  • Make it an offence to not comply with a requirement made by an RAIB inspector, or knowingly to provide inaccurate or misleading information to an inspector without reasonable excuse; and

  • Allow the Secretary of State to make regulations on how the RAIB is to conduct its investigations, the form and content of RAIB reports, and on measures the RAIB is to take before publishing its reports.

Clause 1: Meaning of "railway" and "railway property"

20.     Clause 1 defines "railway" in this Part as a composite of both "railway" and "tramway" as defined by section 67(1) of the Transport & Works Act 1992. Those definitions are:

  • "railway" means

"a system of transport employing parallel rails which—

    (a) provide support and guidance for vehicles carried on flanged wheels, and

    (b) form a track which either is of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),

but does not include a tramway."

  • "tramway" means

"a system of transport used wholly or mainly for the carriage of passengers employing parallel rails which—

    (a) provide support and guidance for vehicles carried on flanged wheels, and

    (b) are laid wholly or mainly along a street or in any other place to which the public has access (including a place to which the public has access only on making a payment)."

21.     A similar composite of various rail related assets as defined in section 83 of the Railways Act 1993, makes up the definition of "railway property".

Clause 2: Meaning of "railway accident" and "railway incident"

22.     Clause 2 allows the Secretary of State to define in regulations the meaning of the phrases "railway accident" and "railway incident" which are used in this Bill. The definitions are still being refined in consultation with the railway industry and stakeholders (including the Strategic Rail Authority and Office of the Rail Regulator). It is expected however that the RAIB will investigate all serious accidents on railways. It will also have the flexibility and discretion to investigate any incident that under slightly altered conditions might have led to serious accidents, including a series of minor incidents, known as precursors, that might hold rail safety lessons.

23.     Regulations made under clause 2(2) may detail the circumstances when an accident or incident would be relevant to the operation of the railway. Accidents or incidents which are not of relevance to the operation of the railway will not be investigated by the RAIB. Such incidents might include, for example, a minor fire in a railway station shop, or where a person trips over on a railway station concourse.

24.     Clause 2(3) makes clear that regulations would specify whether accidents in particular locations would be investigated by the RAIB. This is designed to provide for the particular circumstances of the Channel Tunnel, which is bi-nationally regulated through the Channel Tunnel Intergovernmental Commission. The Channel Tunnel Safety Authority has primary responsibility for investigating safety-related incidents in the Channel Tunnel. Regulations made under clause 2(3) will ensure that should the Intergovernmental Commission or Safety Authority ask the RAIB to undertake any investigations within the Tunnel, it would have the power to do so.

Clause 3: Establishment

25.     Clause 3 establishes the RAIB, broadly along models already existing for the Air Accident Investigation Branch (AAIB) (established in regulations made under section 75 of the Civil Aviation Act 1982), and the Marine Accident Investigation Branch (MAIB) (established under section 267 of the Merchant Shipping Act 1995).

Clause 4: General Aims

26.     Clause 4 establishes that the fundamental aim of the RAIB will be to improve the safety of railways and prevent railway accidents and railway incidents by establishing the root causes and promulgating safety lessons as quickly as possible.

Clause 5: Assistance to others

27.     Clause 5 would permit the Chief Inspector of Rail Accidents to arrange for the RAIB to provide its services to third parties. This might include, for example, assisting the accident investigation body of another country, particularly if it there might be safety lessons for the UK railway. The Chief Inspector may charge for RAIB's services if he or she considers it appropriate and that sufficient resources would be available. The combined effect of clauses 4 and 5 would also mean that RAIB could provide specialist assistance to the UK's air or marine accident investigation bodies, which could mean that RAIB was not working to an objective of improving rail safety or preventing rail accidents. It is for this reason that clause 4 does not give RAIB the sole function of improving rail safety or preventing rail accidents.

Clause 6: Annual Report

28.     Clause 6 allows the Secretary of State to make regulations which would allow for the publication of an Annual Report. This report would include details of safety recommendations made by RAIB in that year and set out the action taken by the rail industry to implement them.Clause 7: Investigations

29.     Clause 7 makes provision as to the railway accidents or incidents that the RAIB is to investigate.

  • Subsection (1)(a) requires RAIB to investigate serious accidents. Subsection (1)(b) provides RAIB with discretion as to whether or not to investigate non- serious accidents or any incident. Subsection 1(c) provides that the RAIB is also to investigate non-serious accidents or incidents, if it is required to by regulations made by the Secretary of State.

  • Subsection (2), however, provides for the Chief Inspector of RAIB to exercise discretion when considering whether or not to investigate a serious accident on a tramway. Although accidents and incidents affecting tramways fall within the remit of the RAIB, the effect of clause 7(2) gives the Chief Inspector discretion as to whether or not to investigate tramway accidents. This is because tramways run in various types of alignment, on street, alongside a highway, or off street. The investigation of an accident affecting a road-running part of a tramway would fall normally to the police to investigate whilst an accident affecting a rail-running part of a tramway would normally be investigated by the RAIB.

  • Subsections (3) and (5) when taken together make clear that the RAIB is to try to work out the cause of the accident, without apportioning blame or liability. Although it will not consider blame or liability, the RAIB will publish a report setting out the cause even if blame or liability may be inferred as a result. These provisions are equivalent to those existing for the AAIB in regulation 4 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, and for the MAIB in regulation 4 of the Merchant Shipping (Accident Investigation and Reporting) Regulations 1999.

Clause 8: Investigator's powers

30.     Clause 8 gives RAIB inspectors the powers necessary to conduct an investigation. These provisions are modelled on the powers available to AAIB and MAIB accident investigators.

31.     Subsection (3) creates new offences, designed to prevent RAIB inspectors from being hindered in their investigations. For example it is to be an offence for a person to fail to comply, without a reasonable excuse, with a requirement made by an inspector or to provide an inspector with evidence that person knows or suspects to be misleading. A person will also be committing an offence if they obstruct a person who is accompanying the inspector and has been authorised to do so by the Chief Inspector of Rail Accidents.

32.     Subsections (5) and (6) give the RAIB primacy in an investigation. This is to ensure that while the different parties involved in investigating an accident will work alongside each-other, one body, the RAIB, is to be in the lead. This provision is merely to clarify that where a person (such as the police officer or any other investigator) seeks to take a particular course of action during an investigation, the Chief Inspector of Rail Accidents, or a person acting on his behalf, is able to make the decision on whether that course of action may be taken.

Clause 9: Regulations

33.     Clause 9(1) gives the Secretary of State the power to make regulations on the way in which the RAIB is to conduct its investigations. Subsection (2) provides that those regulations can also make requirements about the RAIB reports.

34.     Subsection (2)(e) allows regulations to be made which could require the RAIB to ensure that its reports are not made public until any person or organisation whose reputation may be adversely affected by the report is given the opportunity to make representations on that draft report.

35.     Subsection (4) would permit regulations to make provision on how and whether information held by the RAIB could be disclosed to third parties. It is expected for example, that the regulations will provide that no witness statement given to the RAIB may be disclosed to a third party (such as, but not limited to, the police or the Health and Safety Executive (HSE)) unless the witness himself releases it, or unless a court orders its disclosure.

36.     Non-statutory provision will be made for prosecuting authorities to be given the details of those who have given statements to the RAIB.

Clause 11: Accident regulations

37.     Clause 11 allows the Secretary of State to make regulations which would allow, for example, requirements to be made on the reporting of accidents and incidents to the RAIB (so that they may then investigate those accidents and incidents). Such provision would not affect existing obligations to report accidents to HSE.

Public Sector financial and manpower cost

38.     The additional staffing numbers needed by the Department for Transport for the Rail Accident Investigation Branch are identified in Table 1 of the Regulatory Impact Assessment. This anticipates 14 professional staff and 8 support staff. Applying average gross wage rates by grade, plus an allowance for non-wage labour costs, the annual staffing costs of the RAIB would be around £1.3 million. Running and other costs for RAIB would add up to about £550,000 such that total annual costs for the RAIB would be about £1.85 million (Table 3). Over a ten-year period the discounted present cost would be about £14 million.

Human Rights assessment

39.     The RAIB provisions of this Bill, and those matters that will be included in regulations made under a power in this Bill, have been considered for their compatibility with the European Convention of Human Rights. Although certain aspects of RAIB provisions engage rights protected by the ECHR, the Government considers that these may be justified.

40.     RAIB inspectors will have the power to enter any land for the purposes of conducting an investigation into a railway accident or incident. The exercise of this power could interfere with a person's right to respect for a private and family life or home (protected by Article 8) or could interfere with a person's peaceful enjoyment of their possessions (protected by Article 1 of the First Protocol). However, even if these rights were interfered with, the Government considers such interference justified on the grounds that this statutory power is necessary to ensure public safety on the railways; and it is in the general public interest that such investigations take place.

41.     To assist RAIB in working to improve safety on the railways, it is important that people feel that they can talk freely to RAIB inspectors, without fear that what they say might be used against them in another way (such as legal proceedings). With this in mind, it is intended that regulations made under clause 8 will provide that statements obtained by RAIB inspectors may only be disclosed to a third party (such as a prosecutor) if the person who made the statement consents to its release, or a court orders that such disclosure is in the public interest. This will go towards bolstering the existing protection already afforded by Article 6 of the ECHR.

Part 2 - Office of Rail Regulation

42.     This part extends to England, Wales and Scotland.

Background

43.     The post of Rail Regulator was created as part of the privatisation of the railways, with his functions defined in the Railways Act 1993, as amended by the Transport Act 2000. This part of the Bill, together with Schedules 1, 2 and 3, replaces the Rail Regulator with a corporate body established along board lines, called the Office of Rail Regulation. The Office assumes all of the existing functions of the Regulator.

44.     The Secretary of State for Transport announced the decision to introduce a regulatory board structure for rail regulation on 12th June 2002. This move is consistent with the recommendations of the Better Regulation Task Force report on economic regulators (July 2001), and follows what has been done or is in the process of being done for other regulators. A public consultation document entitled "Creating a Regulatory Board for Railways" was subsequently issued.

Commentary on clauses

Clause 15: Establishment

45.     Clause 15(2) gives effect to Schedule 1. This Schedule gives details about the membership, staff and financial arrangements of the new Office of Rail Regulation.

Clause 16: Transfer of functions

46.     Clause 16(5) gives effect to Schedule 2. This Schedule makes consequential amendments to existing legislation as a result of the transfer from the Rail Regulator to the Office of Rail Regulation.

47.     Clause 16(5) also gives effect to Schedule 3. This Schedule provides, amongst other things, for actions of the Regulator prior to commencement to continue to be valid.

Public Sector financial and manpower cost

48.     The appointment of additional non-executive members of a Regulatory Board for the Office of Rail Regulation will entail additional costs. This would be recovered at least in part from the regulated industry, though offset indirectly by increases in public subsidy. The extra costs would probably be less than £200,000, less than a 1.5% increase in the ORR's budget.

Human Rights assessment

49.     The Government considers that the substitution of a regulatory board of rail regulation for the Rail Regulator does not involve any human rights implications, and that the provisions of the Bill concerning the Office of Rail Regulation are compatible with the Convention.

Part 3 - British Transport Police

50.     This part extends to England and Wales, and Scotland except in so far as it applies to tramways. The British Transport Police (BTP) does not operate in Northern Ireland.

Background

51.     The BTP is the national police force for the railways in Great Britain. The force is also responsible for policing the London Underground, the Docklands Light Railway, the Croydon Tramlink and the Midland Metro. The BTP's main activities include law and order policing, maintaining the Queen's peace and protecting railways staff and the public on the railways. The force deals with all crimes, including murder, violence, sexual offences, robberies, thefts and fraud, and a host of other incidents including accidents, fatalities and suicides. In particular it has expertise in anti-terrorist strategy, handling of major incidents, and the policing of travelling sports fans.

52.     The British Transport Police has its origins in the police forces of the many railway companies established by various Acts of Parliament in the 19th century. After the Second World War, nationalisation brought the different railway police forces together under the control of the British Railways Board. BTP constables are currently employed by the Strategic Rail Authority ("SRA") as successor to the British Railways Board and are overseen by the BTP Police Committee whose principal function is to provide an adequate and efficient police service for the railway network. In effect, the BTP Committee performs many of the functions of a Home Office police authority.

53.     In October 2001 the Government issued a consultation document entitled 'Modernising the British Transport Police' with detailed proposals to bring BTP into line with Home Office police forces in terms of accountability, status and powers. The Government's main proposals in the consultation document were:

  • to establish an independent police Authority for the BTP;

  • to place the jurisdiction of BTP constables over the railways on a statutory basis;

  • to give BTP constables jurisdiction outside the railways in certain circumstances; and

  • to give BTP constables a number of additional police powers that were only available to constables of local police forces.

54.     The proposal to give BTP jurisdiction outside the railways was taken forward in section 100 of the Anti-terrorism, Crime & Security Act 2001. Schedule 7 of that Act, and sections 75 and 76 of the subsequent Police Reform Act 2002, also extended to the BTP the additional police powers included in the consultation document. The remaining proposals, namely the establishment of a police authority for the BTP and giving the force a statutory jurisdiction over the railways, are included in this Bill.

55.     The existing staff of the British Transport Police (both constables and the civilian staff) will be transferred to the new Authority under the provisions of the Bill. Staff terms of employment, including pension benefits, will not be affected by the transfer to the Authority.

 
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