Memorandum by the Health and Safety Executive
THE FUTURE OF THE RAILWAYS
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
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.
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 leadershipthe Railway
Safety and Standards Board (RSSB)and a new Rail Accident
Investigation Branch (RAIB) to lead investigations into serious
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
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
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 2002as
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
HOW HSC/E IS
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
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 industryfor 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
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
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 workprescriptive
and often applied irrespective of local need or riskoriginate
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
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 industryall
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 dysfunctionalrail 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
HSE does not receive income from fines imposed
by courts and never has.
23 December 2003
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