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Lord Berkeley: I apologise to the Committee. I omitted to declare an interest at the start of the Committee proceedings as chairman of the Rail Freight Group.
I share the concern of the noble Lord, Lord Bradshaw, with regard to Amendments Nos. 3 and 5. The railway safety and standards board was set up as an independent industry owned and controlled body. The board is comprised of industry people, apart from the chairman of the SRA, and no one else. Its job is to set standards and to ensure that the industry meets those standards. The board is supervised by the Health and Safety Executive. It talks to other bodies, as one
should in industry, but it would be unwise to complicate matters, as I believe Amendments Nos. 3 and 5 do.I turn to Amendment No. 10. I have little to add to what the noble Lord, Lord Bradshaw, said on that. Clearly, the RAIB should inform the Health and Safety Executive and the police if it has reason to believe that an offence has been committed. It should also inform them and others if it does not believe that an offence has been committed. That is equally important. We ought to discuss that matter.
I also support Amendment No. 11. As the noble Lord, Lord Bradshaw, said, there is a slight problem here. I can see why the Health and Safety Executive and the British Transport Police might want to get hold of confidential evidence collected by the RAIB in the course of its investigations. I refer in that regard to the procedure followed by the Air Accident Investigation Branch. Many people who work for the railways have a distinct fear of doing anything. I am told that 140 senior staff within Network Rail—or Railtrack as the company was called when the relevant incidents occurred—or its contractors live in significant fear of being charged with manslaughter following the accidents to which the noble Lord, Lord Bradshaw, referred. Living and working in a state of fear is not conducive to getting on with the job and doing it properly. I cannot believe that after all these years those 140 people will be taken to court.
I believe that the RAIB will have to spend an enormous amount of time gaining the confidence of staff involved in the industry and getting them to report properly. Certainly to start with, it would be better if subsection (7) of Clause 7 were not included in the Bill, as Amendment No. 11 proposes. Then people would have absolute confidence that whatever happened, what they had said to the RAIB to try to ascertain the causes of an accident would remain confidential. It is still open to the Health and Safety Executive and the British Transport Police to conduct their own completely separate inquiries after having been informed of an accident.
The Lord Bishop of Hereford: I echo strongly what has been said by the noble Lords, Lord Bradshaw and Lord Berkeley. There has been a very regrettable trend in recent years away from clinical investigation of what happened and what went wrong so that it can be put right towards the blame culture. I do not support Amendments Nos. 3 and 5 but I do support Amendments Nos. 10 and 11. It is terribly important that the initiative remains with the RAIB. It is absolutely essential that that is where the power, the initiative and the authority remain, and in particular that the British Transport Police be prevented from taking the part that they have taken in recent accident investigations. Although I am sure that that was well intentioned, it was in the end immensely unhelpful in terms of getting at the root cause of the problem and
making it possible to put in place essential remedies. I hope that the Committee will accept that line of argument.
Lord McIntosh of Haringey: First of all, I deal with Amendments Nos. 3 and 5. The noble Lord, Lord Bradshaw, rightly made the point about the need for the complete independence of the rail accident investigation branch. It has to be entirely independent of the industry and its own regulators. The railway safety and standards board is an industry body that provides safety leadership for the industry and sets safety standards, a very worthwhile and important task. But it is a company which is responsible—I respond now to the noble Viscount, Lord Astor—to its members. It reports to its members. The members are the rail industry. It would not be appropriate for the rail accident investigation branch as independent accident investigator to work in conjunction with the railway safety and standards board, the industry's own safety body, when undertaking investigations.
Amendments Nos. 10 and 11 are rather different. I agree with what the noble Lord, Lord Bradshaw, said, but not with the amendments as they have a rather different impact. Amendment No. 10 would inhibit witnesses before the rail accident investigation branch speaking freely and frankly because they would be afraid that what they said would be used against them or other people in a prosecution.
The whole thrust of the Cullen recommendations on the rail accident investigation branch is that it should come to a conclusion quickly in order to ensure that any failures which might cause comparable accidents in the future are knocked on the head immediately. Examples have been given—and can be given, I am afraid—of very long delays between an accident occurring and a report being produced.
If witnesses are not willing to come forward because they might compromise themselves or others, that would add to delay and would compromise the independence and the objectivity of the rail accident investigation branch.
If RAIB inspectors were placed under a statutory duty to tell the police or the Health and Safety Executive if they suspected a criminal offence had been committed, they would be under great pressure to explain why they thought that an offence had been committed and one would then be back in the same cycle in which we have been as regards rail accident investigations. That will be extremely difficult to do if that belief has come about only as a result of their taking a witness statement. If the public and rail industry perceive that there is any risk of disclosure of witness statements, the fundamental purpose of achieving safety will be undermined.
If the police or Health and Safety Executive want to see a copy of a witness statement, they will have to seek a court order for such disclosure. The court would then decide whether disclosure would be in the public interest.
Amendment No. 11 would deny the possibility of the chief inspector applying to the High Court or the Crown Court for a declaration that the making of a report will not amount to contempt of court in relation to civil or criminal proceedings. We cannot accept the amendment. One of the main criticisms of the current regime into the investigation of railway accidents is that the publication of a report, and therefore its implementation, could be delayed by criminal proceedings. The Health and Safety Executive has said that it is not able to publish a final report on the Hatfield derailment, even now, until the position on prosecutions becomes clearer.
Those issuing reports must also give consideration to whether their publishing the report will amount to contempt of other legal proceedings if they publish.
The RAIB will publish its report whether or not civil or criminal proceedings are in progress, as stated in Clause 7(6). Following an accident, the RAIB will publish a report as quickly as possible, normally within 12 months—I hope that it will be a lot less than that in some cases—about the accident and its causes. If there are urgent safety lessons which emerge immediately, the RAIB will publish interim reports so that those lessons can be shared with the industry as quickly as possible. That is what the Air Accident Investigation Branch and the Marine Accident Investigation Branch do at the moment.
If the chief inspector is concerned that by publishing a report she could be in contempt of court, she can use the powers available in subsection (7) which the amendment seeks to delete. That does not mean that she has to apply to the court, but she can do so for the court's definitive view. If the court were of the view that the publication were to amount to contempt, the report could be amended accordingly but still contain the safety lessons. For all those reasons, I do not think that the amendments are desirable.
Amendment No. 11 does not concern the Health and Safety Executive or the British Transport Police obtaining RAIB witness statements. It would prevent the RAIB from going to court for a declaration that it is not a case of contempt of court.
4.15 p.m.
Lord Bradshaw: I put down the amendment to probe what the Minister would say. However, it appears that my amendments are not satisfactory. Nevertheless, the Bill needs strengthening to underline the confidentiality of statements given to the RAIB. That is what I seek.
My learned friends the lawyers seem to think that the law is above everything, as it were, and that they will be able to obtain disclosure of every piece of information they require. I am not absolutely satisfied that statements given in confidence to the RAIB can be safeguarded against subsequent interference by the
courts. That may be a very difficult point for the Minister to answer but it is the basis of what I am saying.
Lord McIntosh of Haringey: That is a legitimate point, but its thrust is in direct opposition to the wording of the amendment. Let us talk about it between now and Report stage.
Viscount Astor: I was interested to hear that the noble Lord, Lord Bradshaw, and the right reverend Prelate the Bishop of Hereford did not like Amendments Nos. 3 and 5. The focus of their argument was that the RAIB should be independent—which, of course, I agree with—and that it should not be fettered. Those are perfectly valid arguments. However, they seem to ignore that although under Clause 4(b) the RAIB should aim
- "to prevent railway accidents and railway incidents",
- "to improve the safety of railways".
My amendment may not be drafted the right way round because we have now heard that the industry body, the railway safety and standards board—I am not sure whether that body has been set but I see that the noble Lord, Lord McIntosh, nods in agreement—will be independent and a company limited by guarantee. It will also in effect be owned and controlled by the industry, as the noble Lord, Lord Berkeley, said. Does that mean that it will be subject to public scrutiny? Presumably, as a private company it need not be subject to public scrutiny. It can keep its reports and information entirely private. The public will not know about that. These organisations that the Government are setting up should be not only accountable but also should be seen to be accountable and be openly accountable.
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