Deregulation Bill

Written evidence submitted from The National Union of Rail, Maritime and Transport Workers (RMT) (DB 04)

1. The National Union of Rail, Maritime and Transport Workers (RMT) welcome the opportunity to submit written evidence to the Public Bill Committee scrutinising the Deregulation Bill. RMT is the largest of the rail unions and organises 80,000 members working in the rail, maritime, bus, road transport and offshore energy industries. We negotiate on behalf of our members with some 150 different employers.

2. RMT raise the following concerns over the Deregulation Bill as currently drafted which we urge the Public Bill Committee to consider as part of its role in scrutinising, line by line, Government legislation .

3. 26 – Removal of duty to order re-hearing of marine accident investigations The Merchant Shipping Act 1995 (section 269) contains a duty on the Secretary of State for Transport to re-open marine accident investigations in l ight of new evidence. Clause 26 of the Deregulation Bill seeks to abolish this. This power was exercised by the Labour Government in 1998 to re-open the investigation into the MV Derbyshire tragedy in 1980 in which 42 UK seafarers and 2 passengers lost their lives in Typhoon Orchid off the south Japanese coast. It took years of campaigning by families and trade unions, NUS, RMT, Nautilus and the International Transport Workers Federation (ITF) which included funding the search that discovered the wreckage of the MV Derbyshire in 1994 .

4. The abolition of this Duty was raised by MPs in the Second Reading debate of the Bill on 3 rd February [1] and RMT strongly believe that the Committee should require further clarification from the Government on how the removal of this Duty would affect the Secretary of State’s use of the power to re-open a marine accident investigation.

The Government amendment removes the 1995 Act’s reference at 269 (1) (a) to the Secretary of State’s duty to re-open such an investigation:

"(a) if new and important evidence which could not be produced at the investigation has been discovered;"

The Secretary of State’s power in the 1995 Act (269 (1) (b)) to re-open an accident investigation if he/she suspects that a miscarriage of justice may have occurred is retained but we are concerned that this places the bar too high in such instances and will further deter trade unions, NGOs and others from conducting the sort of campaign that led to the re-opening of the MV Derbyshire investigation and eventually secured justice for the families of those who died at sea working on a UK flagged vessel. We are clear that a duty to re-open an investigation in the circumstances set out here is far safer than the power to re-open on the grounds of a miscarriage of justice.

We are hopeful that the Public Bill Committee’s deliberations on clause 26 will provide further insight into the consequences of the Government’s proposal.

5. 59 – Ambulatory references to international shipping instruments The Bill a mends Section 360 of the Merchant Shipping Act 1995 to enable Government to update international shipping conventions without having to go through the secondary legislative process. This bypasses the parliamentary process for the convenience of the shipping industry. In written evidence to the Joint Committee, both Chamber of Shipping and Nautilus supported this clause with the Committee report stating: " Only a small number of witnesses commented on this provision. Nautilus International said that it was ‘entirely sensible’, and the UK Chamber of Shipping were supportive. RMT (the National Union of Rail, Maritime and Transport Workers), on the other hand, expressed concern: the provision "risks bad legislation and unintended consequences due to lack of scrutiny by Parliament and outside bodies such as trade unions’". [2]

6. The Transport Committee also had reservations over the loss of parliamentary scrutiny that attends Clause 59 and the Joint Committee recommend ed: " a level of Parliamentary scrutiny." The Government response to the Joint Committee states (page 6-7) that they reject this recommendation and intend to remo ve sub sections 5-8 of Clause 59 . This makes the effect of the ambulatory more extreme, as it removes a requirement for a mechanism to prevent or try to prevent unwanted consequences of these significant powers.

7. Despite this, the Government claims, in response to Transcom’s reservations, that the secondary regulatory process guarantees sufficient levels of parliamentary scrutiny through the affirmative or negative procedure. RMT does not regard this as sufficient parliamentary scrutiny, not least when maritime legislation, inherently international can take sudden and significant turns.

8. The International Maritime Organisation Convention for the Prevention of Pollution from Ships (MARPOL) is just one example, with significant changes to the sulphur emissions regime in Europe , covering the North Sea and Channel, due to come into effect in the UK on 1 st January 2015 . The Government has not stated its position on this and whilst RMT share industry’s opposition to the timing of these changes, they must be subject to parliamentary scrutiny.

9. 61-64 – Exercise of regulatory functions: economic growth RMT is opposed to the creation of a duty to require non-economic regulators (including the ORR, HSE, MCA, HMRC National Minimum Wage Enforcement Team and Traffic Commissioners) to "...consider the importance of ensuring that any regulatory action they take is necessary and proportionate." This duty is partly the result of a recommendation from the Heseltine Review that the government should impose an obligation on regulators to take account of the economic consequences of their actions. Gives Ministers the power (Clause 63 ) to issue guidance on the definition of economic growth; how regulatory functions can be exercised so as to promote economic growth; and how regulators can demonstrate compliance with the duty.

10. The Office of Rail Regulation was not included on the original list of bodies that the economic duty would apply to. Government has since announced that it is consulting in the summer to include the ORR. It will then require secondary legislation which could take up to April 2015 (one month before the general election) to make it through Parliament.

11. The duty will only apply to the safety role of the ORR, and places an additional burden on that role.

12. There is the possibility that where an internal conflict arises within the ORR, between the decisions of the economic side and the safety side, this duty will tip the scales in favour of the economic side thereby compromising safety.

13. In its response to the Joint Committee, the Government commented on how it’s eventual guidance to regulators on how they should implement the economic duty. It states that the guidance "....will illustrate potential ways in which regulators may have regard to the growth duty." [3] The subsequent list is of major concern, particularly the final point on ‘Understanding the business environment’:

14. This means tailoring regulatory activities according to an understanding of the business environment and stages in the business lifecycle, and applying this understanding when dealing with businesses on the ground. [4]

15. RMT believe that this would be an expensive and potentially dangerous distraction to the regulators of the industries where our members work, namely the Office for Rail Regulation, Maritime and Coastguard Agency and the Traffic Commissioners.

16. TUC are also opposed to these clauses and the Joint Committee recommend ed that the power s to issue guidance at Clause 63 should be on the face of the Bill. Consultation on the list of regulators will be undertaken in the near future.

17. In their response to the Joint Committee’s recommendation, the Government declined to put the powers to issue guidance on the face of the Bill but the guidance to regulators on implementing the economic duty will be subject to the affirmative procedure in both Houses at a later date.

18. 23 - Removal of restrictions on provision of passenger rail services Amends the Transport Act 1968 to permit Passenger Transport Executives (PTEs) to carry rail passengers . This is a major step toward devolving regional rail franchise s .

19. However, we are unclear over the pot ential consequences of Clause 23 for the role of the PTE and whether they will simply act as a local economic regulator or if they will be equipped with the necessary public funding required to provide rail passenger services.

20. Furthermore, clarity is also sought from the Government on whether Clause 23 will allow open access operators to run devolved regional rail services on behalf of a PTE . Open access passenger train operators operate services purely on a commercial basis, i.e. without the minimum service specification typically contained in a franchise agreement. The consequential amendments in Schedule 7, Sub schedule 2 (4) of the Bill amends the Transport Act 1968 to give PTEs the power to lease locomotives and rolling stock to persons who is not a franchisee or a franchise operator.

21. Under this provision, t he PTE would not offer a franchise for passenger rail services. This would be similar to the concession used on Merseyrail at present, although they are sole operators on the line.

22. R MT would be concerned if the effect of this Clause were to encourage open access operators to run devolved rail passenger services. This would be problematic for passengers and rail workers, not to mention Network Rail and the ORR, particularly in the case of Northern Rail which includes large sections of track to which multiple operators require access.

23. Open access operators are also subject to less regulation than those operating a franchised contract. As such, protections for workers are inferior and can often lead to the operator walking away from a contract at very short notice, to the detriment of passe ngers, workers and the taxpayer, as happened on the Wrexham-Shropshire line in 2011.

24. These concerns were raised in the Second Reading debate on 3 rd February [5] but the Government did not reply to them. We are hopeful that the Public Bill Committee will revisit these concerns in its deliberations.

February 2014

[1] Hansard Col. & Col. 72


[3] Pg 16, para 89 Government Response to the Report of the Joint Committee on the Draft Deregulation Bill Jan 2014.

[4] Ibid

[5] Hansard Col. 72 & Col. 83.

Prepared 27th February 2014