Select Committee on Transport Written Evidence

Memorandum by the Health and Safety Executive (FOR 122)



  1.  The Health and Safety Commission (HSC) and Health and Safety Executive (HSE) were established by the Health and Safety at Work etc. Act 1974 (HSWA). The aims of HSWA are to protect the health, safety and welfare of people at work, and protect others against risks to health and safety arising out of or in connection with work activities. All industry sectors are covered by these provisions. HSC consists of a chair and up to nine members appointed by Ministers. HSC/E are sponsored by the Department for Work and Pensions (DWP); other Secretaries of State may also be involved with their work and answerable to Parliament as appropriate. HSC develops policy proposals, including new railway safety regulations. HSE is HSC's operating arm, and is headed by a group of three officials ("the Executive") with statutory responsibilities, supported by some 4,000 civil servants.

  2.  HSE has regulated health and safety on the railways since 1990. Factors in the decision to transfer the role (and Her Majesty's Railway Inspectorate (HMRI)) from the Department of Transport to HSE included separation of safety regulation from sponsorship of the industry; the increasing significance of safety management (and HSE's expertise in this area) and previous failure to discharge regulatory responsibilities under HSWA in respect of passenger safety.

  3.  HMRI's activities include technical approvals; safety case assessment and acceptance; pro-active programmes of intervention; investigation of railway incidents, in order to understand root causes and to establish and disseminate any lessons; giving advice; and administering and enforcing the law. HMRI's proportionate approach to enforcing the law is guided by HSC's Enforcement Policy Statement[3]. Inspectors have a wide variety of powers at their disposal, including issuing binding enforcement notices and prosecution; they also seek to secure compliance through less formal methods where appropriate.

  4.  Lord Cullen's Inquiry into the Ladbroke Grove rail crash examined the arrangements for regulating railway safety in depth. Cullen's report (published in 2001) specifically rejected the Civil Aviation Authority model for regulation of rail safety. He recommended that HSE, through HMRI, should continue to fulfil the function of safety regulator for the railways. The Government supported these recommendations. Cullen also recommended a new industry body to provide safety leadership—the Railway Safety and Standards Board (RSSB)—and a new Rail Accident Investigation Branch (RAIB) to lead investigations into serious rail accidents.

  5.  Since then HSC/E have been engaged with the rail industry on a major programme of reforms designed to improve rail health and safety performance; HSC published in May 2002 its Strategy for Improving Health and Safety on the Railways 2002-05[4]. The current safety climate is one of steady overall improvement. HSE is working with the industry to ensure that this continues, and that the incidence of preventable accidents is reduced. Over the next 15 months HSE will be working to deliver a series of projects under a Rail Delivery Programme. This will lead to a simplified and more effective, risk-based regulatory framework; better use of intelligence to inform all of HSE's rail activities; and better integration of work within HSE and with stakeholders to improve the industry's safety performance.


  6.  One of the fundamental principles enshrined in HSWA and its underpinning secondary legislation is that the duty to manage risks to workers and the public (including rail passengers) lies with those who create those risks (duty holders). Most health and safety law sets goals to be achieved, leaving the means of achievement to the duty holder. Some requirements are absolute, but most are qualified by the term "reasonably practicable". Duty holders must assess the risks from their work activity, and take necessary measures to control them; the concept of reasonable practicability requires them to balance risks against the costs of mitigating them. The courts have decided that measures to reduce risks can be ruled out as not "reasonably practicable" if the sacrifice (in money, time or trouble) involved would be grossly disproportionate to the benefits of risk reduction they would achieve. In nearly all cases, following recognised relevant good practice is enough to satisfy the requirement to reduce risks to a level that is as low as reasonably practicable. Guidance is available on current good practice, and on tools and techniques to help in decision-making.

  7.  It can be difficult to separate out the costs of measures to improve safety, since many also enhance performance and reduce operating costs. For example, a broken rail is a threat to safety and to efficient train operation; a derailed train may harm people and it obstructs the line, disrupting services and increasing costs.

  8.  When estimating the costs and benefits of control measures, HSE uses as its benchmark the same value of preventing a fatality (VPF)—£1.24 million in 2002—as the Department for Transport and Highways Agency use in respect of road safety. HSE encourages the industry to use the same figure in assessing safety measures against risk. HSE, like other regulators, follows central Government guidelines on the use of Regulatory Impact Assessments in developing policies and new legislation; costs to the industry are carefully considered during these processes.

  9.  As in other industries that have to manage the potential for unlikely but very high consequence incidents, HSC/E have introduced a safety case regime designed for the rail industry. Each duty holder provides evidence in a documented case for safety that they have identified all hazards; assessed their likelihood and consequence; put appropriate precautions in place; and have management arrangements that will maintain these measures even under pressure. This case is submitted for assessment and acceptance by HSE and forms the basis of HMRI's plan of intervention for that duty holder, so that inspections are targeted on issues arising from it. Both involve robust cross-examination and close co-operation between duty holders and HMRI.

  10.  Railway-specific secondary legislation is currently under review; a Discussion Document seeking views on proposals for restructuring the framework was issued in October 2003.


  11.  HSE's Board has 12 members drawn from across the organisation; rail interests are represented by one of the two Policy Group Directors and the Director of Rail Safety.

  12.  HMRI has 190 staff, of whom about 120 are inspectors. They are organised in three Divisions, specialising in intervention work, safety case assessment and investigation; technical work (currently including approvals of infrastructure, rolling stock and other equipment); and strategic operational work.

  13.  HSE has two Divisions engaged in railway-related policy work; these employ around 40 staff. One Division is devoted to revision of the legal framework in light of the Cullen recommendations, while the other deals with more general policy matters.


  14.  HSC's Railway Industry Advisory Committee (RIAC) offers strategic advice to HSC on issues affecting the rail industry. The Committee is chaired by Margaret Burns, a member of HSC, and comprises senior representatives from rail employers and employees, passenger representatives and other Government departments and industry bodies.

  15.  HSC/E continue to develop relationships with other parts of Government and the industry—for example, building on early and positive contacts with RSSB Chair (Denis Tunnicliffe) and Chief Executive (Len Porter). HSC/E consider that the key challenge for RSSB is to ensure that the industry's framework of standards is appropriate and relevant to today's operating environment. HSE is anxious to play a full part in addressing this, for example through active participation in meetings of the industry's Standards Strategy Group (SSG), where its aim is to ensure that the group retains a strategic focus and addresses issues relating to the architecture of standards, rather than getting drawn into the detail of individual standards. HSE also attends RSSB's board and advisory committee meetings.

  16.  HSE is in regular dialogue with the Chief Inspector designate of RAIB (Carolyn Griffiths) and her staff to take forward detailed working arrangements between RAIB and HSE (and British Transport Police (BTP)). In order to avoid confusion and unnecessary duplication, the details of these arrangements need to be clear before RAIB is formally established.

  17.  HSE also maintains close relations with ORR and SRA; for example, there was close liaison with ORR during its interim review of track access charges. This has links with SRA's examination of options for the future utilisation of the rail network. In both cases HSE's concern is to ensure that related risks are properly and proportionately managed within the context of Network Rail's safety case. Memoranda of Understanding are in place with both ORR and SRA, as well as with DfT.

  18.  HSE works closely with Network Rail. A dedicated team of inspectors (the Network Rail Corporate Group) co-ordinates and directs this work. Regular meetings are held with Network Rail at all levels, and HSE will be keeping close contact while Network Rail goes through its structural changes (taking maintenance work in-house and a major programme of redundancies) to make sure that the safety implications of these changes are properly managed.

  19.  HSE also works closely with other duty holders such as Train Operating Companies and London Underground.


  20.   Legal framework: There is a view that the railway industry should not be regulated by use of HSWA. If the industry were to be removed from scope of this legal framework, it would still need to meet the requirements of the EC Framework Directive 89/391 and other relevant Directives, which aim to protect the health and safety of workers; requirements include the evaluation and reduction of risk. Amendments would be required to primary legislation to deal with implications for the workforce and public of health and safety regulation generally. The latter is the responsibility of DWP Ministers.

  21.   Recent European developments: The HSE and DfT negotiating team worked in close partnership to establish alliances with other member states to secure UK negotiating objectives on the Second Railway Package, including the Railway Safety Directive. Common position has now been reached on a version of the Directive[5] that would deliver a European regime broadly compatible with the Cullen recommendations and with existing UK health and safety practice, thus reducing the burden on industry. Important aspects of the regime include: an independent safety regulator; passenger protection; evidence-based safety management systems akin to the current safety case regime (including risk assessment); continuous improvement and the concept of reasonable practicability. Adoption of the Safety Directive is expected early in 2004; its requirements will apply whether implemented under HSWA or other legislation. In conjunction with the Framework Directive, this means that there would therefore be few fundamental changes to current requirements, even in the event of disapplication of HSWA.

  22.   Standards: There is a widespread perception in the industry (and elsewhere) that the plethora of standards applied to the rail industry's work—prescriptive and often applied irrespective of local need or risk—originate with HSE. In fact they are industry's own standards, and HSE is working with other bodies to modernise and streamline the standards system for the industry.

  23.  Requirements to allow through-running of trains on trans-European networks (interoperability) involve common checking and authorisation processes, and common mandatory technical specifications. They bring about a number of changes, including a welcome reduction in HSE's direct role in approvals, with a move instead to Notified Bodies undertaking approval against European and domestic standards. HSE, DfT and SRA are working together closely to address implementation in a way that avoids disproportionate costs.

  24.   Criticisms raised in press coverage: We note comments in the press attributed to Alan Osborne and address some of these below.

(i)   A culture of punishment and enforcement, and in particular prosecution of individuals following Hatfield, has led to risk aversion

  The Crown Prosecution Service (CPS), not HSE, is bringing prosecutions following the Hatfield crash. This investigation was led by BTP in line with a protocol for investigating work-related deaths where there is prima facie evidence of possible homicide offences. In 2002-03 HSE took 11 prosecutions in the rail industry—all against employers. HSE rarely prosecutes individuals, and then only in circumstances where there is evidence of disregard of health and safety law, clearly attributable to an individual. In the last 10 years HMRI has prosecuted one individual, in a case where there was clear evidence that he was systematically endangering the health and safety of his team.

(ii)   HSE is dysfunctional—rail policy and operational arms at war and sending out conflicting messages

  A single Policy Group supports all areas of health and safety regulation in HSE, including railways. Rail policy and operations staff work to a shared agenda, set out in HSC's Railway Strategy 2002-05; this is reflected in collaborative planning and common purpose. A Rail Delivery Programme Board was set up to manage delivery of the challenging railway reform agenda, involving both policy and operational senior managers. This was chaired by Alan Osborne, and now continues under Allan Sefton.

(iii)   HSE requires "gold plating"/absolute safety, causing too much regulation and expense

  HSC/E recognise that absolute safety is not achievable, on the railways or anywhere else. This is reflected in the concept of reasonable practicability enshrined in HSWA. HSC/E want to see risk properly managed, and safety improved through proportionate regulation in partnership with industry stakeholders. HSC/E are committed to co-operating with others to clarify law, streamline requirements and minimise burdens on industry.

(iv)   Fines for health and safety offences are not about justice for the injured but about propping up HSE's funding problems

  HSE does not receive income from fines imposed by courts and never has.

23 December 2003

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