Examination of Witnesses (Questions 200
- 213)
MONDAY 7 NOVEMBER 2005
MR ADRIAN
LYONS AND
MR AIDAN
NELSON
Q200 Mr Clappison: There were some
very interesting suggestions as to the causes of the Potters Bar
crash that generated headlines which have not subsequently been
sustained by inquiries. Can I ask if you see the draft Bill having
any impact on the situation which you describe?
Mr Nelson: No, I do not. I think
the existing legislation is sufficient and the basis on which
civil litigation is pursued is appropriate. Any responsible industry
that does not wish to have its reputation tarnished will ensure
that the needs of the victims are properly taken into account
and addressed up front without the blame issue as to who was responsible
getting in the way. The industry ought to be responsible and able
to do that.
Q201 Mr Clappison: Where do you see
subcontracting fitting into this? Should not the company that
contracts out its work always be reasonable for the work of its
subcontractors?
Mr Nelson: Again, it is the same
point about subsidiaries and parents. The chain of responsibility
needs to be clear. You need to be absolutely clear what you are
contracting and you need to be absolutely clear as to the client.
At each stage there could be several layers of subcontracting
in some projects. There has to be clarity as to responsibility,
as to management arrangements and ultimately the client needs
to be satisfied that he has in place a regime where by way of
contract work is to be delivered safely without harm to those
working on it or the subsequent owners of it.
Q202 Mr Clappison: Even where responsibilities
are clear, should not the main contractor always be responsible
for the work of the subcontractor?
Mr Nelson: The client or the main
contractor moving down towards subcontractors should be responsible
for assuring that the arrangements the contractor has in place
will deliver the work safely.
Mr Lyons: Yes, of course, and
that is the way it works on the railways. A subcontractor is not
just handed a piece of track and told to get on with it. The key
issue is the gross breach. It is possible to imagine a subcontractor,
for hopefully completely bizarre reasons, not doing what he is
meant to and the management deciding for various reasons not to,
in which case the gross breach can go no higher than the subcontractor.
It has to be proved that it was the person placing the contract
who committed the gross breach and led the subcontractor into
a situation for this to come within the terms of this Bill.
Q203 Harry Cohen: Should he not also
have a monitoring role to check that it has been carried out by
the subcontractor?
Mr Lyons: Yes. On the railways
it is hopefully difficult to envisage a situation where the present
structures would lead to a subcontractor committing a gross breach
because—you are right—there is checking and there
is also very specific involvement in the work being carried out.
Q204 Chairman: All those situations
we have read about where casual people are taken on and not given
proper training have stopped, have they? That is the sort of thing
that makes people worry and think that contractors are not really
responsible.
Mr Nelson: The industry put in
place through Railtrack a system called Sentinel, which is a secure
registration system for track workers and others in varying degrees
of competency. I cannot give you the detail of the last audit
that Network Rail performed but they do perform regular audits
and they are demonstrating high levels of compliance with the
people they find on site being certificated as competent.
Q205 Chairman: What is a high level
of compliance?
Mr Nelson: 99% in that area. If
you would like I could provide the detail.
Chairman: That would be useful. Thank
you.
Q206 Gwyn Prosser: I want to ask
about the provisions in the Bill which require an occupier of
land to show a duty of care, in particular looking at the issue
of deaths on the railway, trespassers and suicides. Do you consider
it desirable or appropriate that there should be provisions in
the Bill to apply corporate manslaughter in certain circumstances
and, if so, perhaps you could elaborate?
Mr Nelson: The case of British
Railways Board v Herrington (House of Lords 1972) led to the 1974
Occupiers Liability Act. It demonstrates that there is a duty
of care in relation to trespassers. It can be construed in the
way in which society operates, that it sees a greater duty of
care to, for example, children without the maturity to understand
the risk as opposed to an adult male who has had too much to drink
on a Friday night and thinks the shortcut across the railway is
acceptable. You have to take the expectations of society into
account in determining the point at which a gross breach has occurred.
It is only reasonable to go so far in taking precautions to prevent
access to the railway. If you have an 11,000 mile railway, you
have 22,000 miles of boundary fence. It is necessary to provide
fencing appropriate to the risk. When you come to deal with the
suicide issue, you have to start from the point of view that it
is a mental health problem. If you do identify patterns in relation
to suicide, it is incumbent upon you as a duty holder to do that
which is reasonable, perhaps in association with the operation
of the mental health facility. I am aware that in a number of
places work is ongoing that takes this into account. We have to
recognise that if we divert people from suicide on the railway
we may in some cases prevent suicide because the urge to take
one's life passes as someone perhaps gets back to medication or
whatever. In other cases, what we will do is create a diversion
to another mode of suicide. Therefore, you have to start looking
at this in the round as a mental health issue. The railways have
a part to play but at the moment I do not conceive of a situation,
so long as they do that which is reasonable in relation to the
patterns of trespass and suicide, where a gross breach is likely
to occur.
Q207 Gwyn Prosser: On the issue of
gross breach, I think both organisations have expressed concern
at the fact that a jury may have regard to any matters it considers
relevant when determining whether an organisation has committed
a gross breach. There is a whole list of factors which might be
required to be taken into account. Do you think there should be
a more comprehensive list or almost an exhaustive list to make
that process easier, or would it make it more difficult?
Mr Nelson: The particular point
that we drew out in the RSSB response was that, following a major
accident, we receive as an industry hundreds of proposals from
the public, from engineers, from people selling products, proposing
something. It may be that one of those propositions captures the
eye of the media but it may not be reasonably practicable to pursue
that recommendation. The important thing is that the industry
has in place processes that identify what is unreasonable but
they close out those issues within their management system that
can be seen to be reasonable in addressing that. What we were
concerned about were some of the more fanciful ideas. I do not
put laminated glass and seatbelts in the realm of fantasy; I put
those in the area where the industry is doing serious work to
identify what is reasonably practicable, but there were others
that were essentially fanciful and we must avoid any of those
which capture the public attention that are unreasonable as being
cited as an element of a gross breach for not following what was
offered as an option. More seriously, when bodies make recommendations,
many of them will be accepted. In some cases it may be appropriate
that a recommendation from an independent body investigating an
accident is rejected. So long as the reasons for that rejection
are sound—the railways are working in a permissioning regime—and
it is acceptable in that context, the failure to comply with that
recommendation should not be capable of being cited as an element
of a case for gross breach.
Q208 Gwyn Prosser: In the earlier
discussion on whether this Bill should take action against individual
directors rather than corporates, you cited the 1861 legislation.
Perhaps I should know but under that legislation can you give
us some examples of the most serious prosecutions that have taken
place against individual directors of companies?
Mr Nelson: I cannot cite any successful
ones in the railway industry in recent times. I used the 1861
legislation as making the point that there were already provisions
for dealing with people who, by neglectful intent, cause harm
to people on the railway. I am sorry I cannot answer your specific
question. We can attempt to find out.
Chairman: That would be very helpful.
Q209 Justine Greening: We started
to touch on some of the lessons that are pulled out from accidents
and you had hundreds of proposals that came in. In terms of moving
on to get the learnings from these accidents so that they cannot
happen again, do you think there is a danger that, if we see an
increase in corporate manslaughter prosecutions, whilst the courts
are going through that process of prosecuting the case, because
of the risks of contempt of court, we will now see a huge delay
in the time when we can have a proper inquiry or investigation
to take the learnings from the accidents so that they will not
be continued and that will end up perversely delaying those learnings
from taking place?
Mr Nelson: I do not think that
is the case. The industry's track record is that, when learning
is there and there are things that can be fixed to prevent a recurrence,
whether it comes out in the first days of the investigation or
subsequently, the industry is professionally responsive. I do
not see the threat of litigation in this way as doing other than
incentivising people to demonstrate that, when learning of a failing,
they took the appropriate action, taking into account whether
it was reasonably practicable or not.
Mr Lyons: This also covers remedial
issues. There are very sophisticated systems in the industry,
building on decades of good practice. It has been very much tested
in recent times. We have had the Rail Accident Investigation Branch,
the Office of the Rail Regulator and the Rail Safety and Standards
Board. Those all have very clear remits. Their job is to ensure
that safety is maintained and enhanced. I do not think it would
be the case that if something was awaiting prosecution under this
Act it should in any way stop improvements being made to the railway.
I think it would be a very unfortunate outcome if that was even
a possibility.
Mr Nelson: Indeed. The principal
weapon or means by which this can be addressed if there were any
failing—it is a hypothetical failing on the part of industry—is
that the Health and Safety Executive currently—soon to be
the ORI—have the powers to serve improvement and prohibition
notices on railway businesses. The means of enforcing, were there
to be theoretically a recalcitrant employer, are there already.
Q210 Justine Greening: Do you think
there is a danger or do you think there is no danger that we will
be delayed in looking at this?
Mr Lyons: I do not think there
is a danger at all. If there is any slight legal danger, we would
be pressing very hard for it to be removed.
Q211 Justine Greening: The courts
have used their powers on health and safety to impose fines. One
of the potential proposals in the draft Bill is that they could
also force remedial action to be taken. I understand both your
organisations have expressed some concerns about that. Could you
tell us a bit more about why you are concerned about the proposal
to have remedial orders?
Mr Lyons: There are very sophisticated
systems to make sure that there is an external audit of safety
standards and oversight from various bodies. I believe to leave
it to a judge whose main focus is not on the safety process to
make recommendations that could be binding on the industry would
be particularly unsound in many cases. It is conceivably possible
that he could point out areas but he must leave it to the existing
statutory bodies to do their job.
Mr Nelson: I agree. I think there
is a good example in the relatively recent past where the state
determined that it wished to regulate to require a change of state
of the infrastructure and rolling stock on the railway. Regulations
were laid before Parliament and accepted, which led to the train
protection and warning system being installed and to mark one
rolling stock being eliminated from the mainline railway. That
was the state exercising its authority to bring regulations and,
in bringing those, it is about satisfying Parliament essentially
that it is acting in the societal interest in so proceeding. If
I may go back to the previous question, one of the points that
I would like to get across is that evidence to what had been the
industry's formal inquiries—we now have RAIB investigations—is
essentially confidential. That is an important part of ensuring
that we get full cooperation. If someone is looking for a gross
breach, what they cannot do is start from the evidence that has
been given in a formal inquiry and now in the RAIB inquiries.
It is important we do not compromise an investigation process
to establish an immediate and underlying cause because we have
a premature determination to bring action to demonstrate gross
breach.
Q212 Justine Greening: Do you think
that fines are an effective way of punishing companies?
Mr Lyons: I believe they are.
Not only do they hurt the company financially; they bring significant
reputational risk issues with them. No firm likes to be the subject
of a fine. No board of directors likes to be fined. They are very
severe judgments on a particular company. I believe all the indications
we have had in the railway industry, where there have been major
incidents, that clearly there has been some blame lying with the
companies, show that you have seen major changes in those companies
as a response to those accidents. In Railtrack's case, it was
a very dramatic change and other companies as well have had to
significantly rethink their management procedures and structures
as an outcome of these various incidents which have taken place
on the railways.
Mr Nelson: I entirely agree. The
key issue is one's reputation.
Q213 Mr Rooney: You have talked about
blame and reputation etc, but all these things happen after a
very serious event. They never happen before. In the civil aviation
industry, it is effectively a no blame culture that probably encourages
more openness. Do you think, if the same extended to the railway
industry and maritime, we might have a better managed system and
much less risk of major incidents?
Mr Lyons: I am a great believer
that good safety cultures are not fear driven. That is a contradiction
in terms. Good safety cultures are everybody in the organisation
pursuing an overall quality product and making sure that safety
is an integral part of it. I naturally have a preference in such
a circumstance for no blame cultures to get to the bottom of problems
that arise. We are now in the situation on the railways that,
where things go wrong in safety terms, they go wrong for very
complex sets of reasons. If they were easy to spot, they would
have been put right. It is interactions which, in a particular
way, lead to unsatisfactory safety outcomes. The only way to put
it right is to get all those involved together and monitor how
it is never going to happen again. To answer your question, I
believe that is the direction in which to go. I would be worried
if this Act were seen to be bringing fear back into the safety
debate. I do not think it will but it is an issue that we must
always bear in mind with enactments like this.
Mr Nelson: I agree. Fear is not
the best way of learning lessons. We need a culture that is open,
progressive and based on competence. It is about aligned behaviours,
aligned beliefs, aligned attitudes, people working together. I
do not go as far as saying there is never a point at which blame
needs to be dealt with because, if you find that someone with
wilful intent seeks to hide behind the fact that you have an open
culture, then we do not have a just culture.
Mr Rooney: You talked about the fear
factor within safety but you have not talked about the fear factor
in relation to the travelling public. You might want to reflect
on that.
Chairman: Thank you very much indeed,
gentlemen.
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