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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 introduced in the House of Commons on 14th January 2003 [Bill 40]
RAILWAYS AND TRANSPORT SAFETY BILL
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 section or part of a section does not seem to require any explanation or comment, none is given.
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.
[Bill 40-EN] 53/2
7. The Bill also contains a miscellaneous section, which makes provision for measures including:
8. The Bill is in seven Parts, with 7 Schedules
9. This Bill extends to the whole of the United Kingdom, with the following exceptions:
10. The Bill extends to Scotland except:
11. The Bill extends to Northern Ireland except:
12. This Bill does not affect any of the National Assembly of Wales's powers.
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.
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 5 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:
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). 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. An RAIB inspector will have the power to enter all railway property, land adjoining railway property and certain other places connected to the accident or incident. If asked, he will have to show his identification, before he can enter such places.
19. The provisions:
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:
"a system of transport employing parallel rails which
but does not include a tramway."
"a system of transport used wholly or mainly for the carriage of passengers employing parallel rails which
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. It is expected however that the RAIB will investigate all serious accidents on railways or tramways and it will have the flexibility and discretion to investigate incidents that under slightly altered conditions might have led to serious accidents.
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.
Clause 3: Establishment
24. 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 5: Assistance to others
25. 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. The Chief Inspector may charge for RAIB's services if he considers it appropriate.
Clause 6: Investigations
26. Clause 6 makes provision as to the railway accidents or incidents that the RAIB is to investigate.
Clause 7: Investigator's powers
27. Clause 7 gives RAIB inspectors the powers necessary to conduct an investigation. These provisions are modelled on the powers available to AAIB and MAIB accident investigators.
Clause 8: Regulations
28. Clause 8(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.
Non-statutory provision will be made for prosecuting authorities to be given the details of those who have given statements to the RAIB.
Clause 10: Accident regulations
29. Clause 10 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
30. 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
31. 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.
32. 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.
33. 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 to that person, 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
34. This part extends to England, Wales and Scotland.
35. 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.
36. The Secretary of State for Transport announced the decision to introduce a regulatory board structure for rail regulation on 12 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 14: Establishment
37. Clause 14(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 15: Transfer of functions
38. Clause 15(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.
39. Clause 15(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
40. 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
41. 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
42. 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.
43. 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.
44. 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.
45. 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:
46. 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.
47. The existing staff of the British Transport Police (both constables and the administrative 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.
Commentary on Clauses
48. This Part of the Bill extends to England, Scotland and Wales. The BTP does not operate in Northern Ireland. It provides for the creation of an independent police authority ("the Authority") for the British Transport Police. The Authority is to be modelled on existing Home Office police authorities (such as Northamptonshire Police Authority and Gwent Police Authority) with the clauses in this part of the Bill largely mirroring the Police Act 1996 provisions on Home Office police authorities. Where the clauses do not mirror the Police Act 1996 provisions in every respect, this is generally only so as to meet the specific circumstances of the BTP as a national police force for the railways, as opposed to a county or metropolitan force.
49. The following table details the clauses that are based on provisions in the Police Act 1996.
|© Parliamentary copyright 2003||Prepared: 14 January 2003|