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Standing Committee D
Thursday 6 February 2003
(Morning)
[Mr. Alan Hurst in the Chair]
Clause 8
Regulations
8.55 am
Question proposed, That the clause stand part of the Bill.
Miss Anne McIntosh (Vale of York): I am pleased that you are in the Chair again, Mr. Hurst.
On Second Reading, my hon. Friend the Member for Buckingham (Mr. Bercow) said:
''Could we not have had a better idea of what the content of those regulations might be, and can he at least tell the House now whether they will be subject to the negative procedure of the House, or to its affirmative counterpart?''
The Secretary of State for Transport replied:
''That sounds to me like an extremely good bid to participate in the Committee stage of this Bill, when all these issues can be explored at length over several weeks.''—[Official Report, 28 January 2003; Vol. 398, c. 765.]
Unfortunately, my hon. Friend's bid was not successful, but three excellent colleagues are on the team.
I want to explore the scope of the regulations covered by clause 8. There are two schools of thought on the subject. The first holds that the Bill should say little, but be merely an enabling measure while most of the powers to implement its provisions should be left to regulations. The Government may argue that that applied in the case both of the Civil Aviation Act 1982 and the subsequent Civil Aviation Act (Investigation of Air Accidents and Incidents) Regulations 1996 and of the Merchant Shipping Act 1995 and the subsequent Merchant Shipping (Accident Reporting and Investigation) Regulations 1999.
The sweep of the clause is breathtaking; it goes much further than those Acts and enabling regulations. Subsection (1) gives the Secretary of State the power to make regulations about the way in which the rail accident investigation branch is to conduct its investigations. The clause sets out the scope of the regulations in detail. It states that the regulations may
''(a) confer a function on the Chief Inspector of Rail Accidents or on the Branch;
(b) make provision about the way in which a function of the Chief Inspector or the Branch is to be performed;
(c) permit or require the Chief Inspector to appoint a person to conduct or participate in an investigation''.
I should much prefer the functions of the chief inspector to have been set out in the Bill. Under other clauses, notably clause 5, the chief inspector may arrange for the rail accident investigation branch to assist any person. Elsewhere, he is able to rely on assistance from other people in the performance of his
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function. The chief inspector's powers are far-reaching, so the clause should be much more specific about his functions.
The Government were concerned that the branch's investigation should not be delayed or constrained by any criminal investigation or judicial process. They consulted on a number of proposals that could be covered by the regulations. Why do those proposals not appear in the Bill? They included placing a duty on any relevant person, including any contractor or agent, to preserve evidence; giving the branch an unfettered right of access to accident sites but placing it under a duty to protect the chain of evidence; and preventing disclosure of certain categories of information or data, such as medical or private information or opinions expressed in the analysis of information without the order of the court.
It was further proposed that no statement made by a witness in connection with a rail accident investigation branch investigation or inquiry would be disclosed to the police or the Health and Safety Executive save by order of a judge, unless the witness had agreed it. A judge would have to consider whether the wider public interest outweighed any impact that disclosure might have on the investigation. The rail accident investigation branch could release details of those who had given evidence in the course of an investigation or inquiry.
Why, given that the Government consulted in such detail, are there no specific references to the proposals in subsection (1)? Subsection (2) allows regulations to be made that could require the rail accident investigation branch to ensure that its reports were not made public until any person or organisation whose reputation might be adversely affected had been given the opportunity to make representations on the draft report. Again the regulations are far-reaching and could jeopardise the thrust of the Bill. The Secretary of State and both the Minister of State and the Under-Secretary have told us that the purpose and objective is to have a swift investigation to get to the root cause of the accident and to share the results with the industry. That laudable objective is supported by all sides.
The philosophy behind the provisions in subsection (2) for the regulations to contain certain requirements about the report's publication and timing arises from the strictures of Lord Cullen. His report made it clear that he supported the aviation accident investigation branch's approach to publication. He reasoned that on completion of an investigation, the investigating inspector would be required to prepare a report, a copy of which would be submitted to the Secretary of State. The report would be required to contain relevant safety recommendations.
The aviation accident investigation branch regulations state that a recommendation should in no case create a presumption of blame or liability for an accident or incident. Aviation reports must be circulated to the parties likely to benefit from their findings in respect of safety and must be made public in the shortest possible time—if possible, within 12 months of the accident or incident—in such a manner
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as the chief inspector thinks fit. If the investigating officer is of the opinion that publication is likely adversely to affect the reputation of any person or deceased person, he must give notice to that person or to a representative of the deceased. The notice must include particulars of any proposed analysis of facts and conclusions as to the cause or causes of the accident or incident that may affect the person on whom notice is served. In practice, the investigating officer sends the whole report.
The investigating officer is required to consider any representations made prior to the report's publication. In practice, where substantive representations are made, the person or representative, is invited to meet the investigating officer to discuss matters.
It is my understanding that the Government consulted on a proposal that the report should be made publicly available, normally within 12 months of the accident or incident. They also consulted on a proposal that the report should not be made public unless any person or organisation whose reputation might be adversely affected was informed by notice and given the opportunity to make representations. It is also my understanding that clause 8(2)(e) provides for the inclusion of those provisions.
It would benefit the Committee enormously if the Minister could tell us how the provisions have worked in practice for the aviation accident investigation branch. The report must be made public within 12 months of completion. What has been the effect of that on the investigator's ability to get to the root cause of the accident, to conclude his report and to share it with the industry? Have matters been delayed by 12 months, or have there been further delays? We all agree that we would like to get to the root cause of accidents through independent investigation and that the results should be shared at the earliest opportunity. That applies equally to the maritime accident investigation branch.
Consultation on subsection (2), which deals with publication of the findings of accident investigations, suggested that a duty should be placed on the chief rail accident inspector to ensure that infrastructure managers, railway undertakings, safety authorities—in this case, the Health and Safety Executive—the bereaved, the injured, emergency services, representatives of staff and users, owners of damaged property, and manufacturers are, as far as possible, kept informed about the progress of an investigation. Additionally, in-depth consultations and private briefings should be arranged before the rail accident investigation branch report is published for those injured in a crash, their next of kin and the close family of fatalities.
Clause 8(2)(e) and (f) enshrine the requirements that should appear in the regulations, following the recommendations of Lord Cullen, who said that the investigation of rail accidents and incidents of whatever nature should be brought under the overall control of the RAIB. However, those paragraphs do not result from consultation alone. The Secretary of
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State on Second Reading and the two Ministers in Committee have reliably informed us that they draw heavily on the experience of the aviation and merchant shipping investigation branches. If the Committee is to agree to such wide-ranging powers, it would help if we knew more about the background to the drafting.
Under clause 8(4):
''The Secretary of State may make regulations about the use, disclosure and destruction of information acquired by the Branch; in particular, the regulations may—
(a) prohibit the disclosure of information in specified circumstances;
(b) permit the disclosure of information in specified circumstances;
(c) require the disclosure of information in specified circumstances;
(d) make provision by reference to whether or not a person consents to a disclosure which relates to him.''
Similar provisions apply to the enabling legislation that set up the aviation and marine accident investigation branches. On close inspection, however, marked differences are apparent.
I referred to two different schools of thought at the outset, and I personally come down on the side of building more detail into the Bill because it is only through primary legislation that we parliamentarians can exercise our right to scrutinise powers. When we debated clause 7, we saw what powers were being conferred on the investigator in each case. It is staggering that we are being asked to approve a clause conferring powers on the chief inspector of rail accidents in performance of his functions. That needs further elucidation and exploration.
The Minister may want to talk the Committee through the likely timetable of the enabling regulations. When will the Government state the functions of the chief inspector, who will be in an immensely powerful position? If the Committee now, and the House later, agree to the clause, we shall lose control over scrutiny of the powers and the exercise of that function, because it will be implemented in regulations.
9.15 am
To recap, there are two schools of thought. The Minister may reply that the Conservative Government who set up the two existing accident investigation branches fell into the category of taking sweeping powers, because they implemented measures in regulations rather than in Bills. I might disagree. I will admit to being confused, because we have been reliably informed by the Secretary of State and the two Ministers that we are using as a model two well-established, well-functioning, highly regarded and independent accident investigation branches, which look after two different sectors. Will the Minister say why the Bill parts company in style and content from the other two enabling Acts?
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