Railways and Transport Safety Act 2003

Part 1 - Investigation of Railway Accidents

13.This Part extends to England, Wales and Northern Ireland. It also extends to Scotland except in so far as it applies to tramways.

Background

14.Railways are statistically one of the safest means of transportation. Travel by rail is 6 times safer than travel by car.(1) However, in recent years, a number of serious accidents on the railways have affected public confidence and have revealed weaknesses in safety regulation.

15.On 5 October 1999, at Ladbroke Grove Junction, about 2 miles west of Paddington Station there was a head-on crash at high speed between two trains. This caused the death of 31 people, including both train drivers, and inflicted injuries, some of them critical, on over 400 other people.

16.As a consequence of this crash, Lord Cullen was appointed by the Health and Safety Commission (HSC), with the consent of the Deputy Prime Minister, to conduct a Public Inquiry under Section 14(2)(b) of the Health and Safety at Work etc Act 1974. Lord Cullen’s terms of reference were:

1)

To inquire into, and draw lessons from, the accident near Paddington Station on 5 October 1999, taking account of the findings of the Health and Safety Executive’s investigations into immediate causes.

2)

To consider general experience derived from relevant accidents on the railway since the Hidden Inquiry [into the 1988 Clapham rail crash], with a view to drawing conclusions about:

a)

factors which affect safety management

b)

the appropriateness of the current regulatory regime.

3)

In the light of the above, to make recommendations for improving safety on the future railway.”

17.Lord Cullen’s inquiry reported in 2 parts, the second of which looked at rail safety management and regulation. Lord Cullen’s Part 2 Report(2) made 74 recommendations which the Secretary of State asked the HSC to ensure were acted upon and implemented. 17 of these concerned accident investigation, including the creation of an independent Rail Accident Investigation Branch (RAIB), with appropriate powers and duties. Some applied solely to industry investigations and inquiries.

Commentary on sections

18.Part 1 of this Act implements certain key recommendations made by Lord Cullen in his Ladbroke Grove Part 2 Report. This Part makes provision for the creation of an independent body of rail accident inspectors known as the Rail Accident Investigation Branch (RAIB), which will (as with the air and marine accident investigation branches) form part of the Department for Transport. The fundamental purpose of the RAIB will be to undertake investigations, openly and transparently, which look for the root causes of accidents and incidents without apportioning blame. It will have no prosecution function. The RAIB will conduct investigations on the railways following accidents or incidents. RAIB inspectors will have the power to enter all railway property, land adjoining railway property and certain other places connected to the accident or incident if they think that there may be evidence relevant to the investigation. If asked, they will have to show their identification before they can enter such places.

19.The provisions:

• Establish the RAIB, charging it with investigating the causes of railway accidents and incidents with a view to learning lessons and fostering a safer railway;

• Give RAIB inspectors the powers they need to conduct investigations and to require the disclosure of evidence related to these investigations;

• Make it an offence to not comply with a requirement made by an RAIB inspector, or knowingly to provide inaccurate or misleading information to an inspector without reasonable excuse; and

• Allow the Secretary of State to make regulations about how the RAIB is to conduct its investigations, the form and content of RAIB reports, and on measures the RAIB is to take before publishing its reports.

Section 1: Meaning of “railway” and “railway property”

20.Section 1 defines “railway” in this Part as a railway or tramway within the meaning given by section 67(1) of the Transport & Works Act 1992. In that section:

• "railway" means:

  • “a system of transport employing parallel rails which—

    (a)

    provide support and guidance for vehicles carried on flanged wheels, and

    (b)

    form a track which either is of a gauge of at least 350 millimetres or crosses a carriageway (whether or not on the same level),

    but does not include a tramway.”

• “tramway” means:

  • “a system of transport used wholly or mainly for the carriage of passengers employing parallel rails which—

    (a)

    provide support and guidance for vehicles carried on flanged wheels, and

    (b)

    are laid wholly or mainly along a street or in any other place to which the public has access (including a place to which the public has access only on making a payment).”

21.“Railway property” is also defined.

Section 2: Meaning of “railway accident” and “railway incident”

22.Section 2 defines a railway accident or incident as an accident or incident that occurs on railway property and is or may be relevant to the operation of the railway. It also allows the Secretary of State to make regulations about what may or may not be treated as such an accident or incident or when an accident will be treated as serious

23.Regulations made under section 2(2) may detail the circumstances when an accident or incident would be relevant to the operation of the railway. Accidents or incidents which are not of relevance to the operation of the railway may not be investigated by the RAIB. Such incidents might include, for example, a minor fire in a railway station shop, or where a person trips over on a railway station concourse.

24.Section 2(3) makes clear that regulations may specify whether accidents in particular locations would be investigated by the RAIB. It is intended to use this power to provide for the particular circumstances of the Channel Tunnel, which is bi-nationally regulated through the Channel Tunnel Intergovernmental Commission. The Channel Tunnel Safety Authority has primary responsibility for investigating safety-related incidents in the Channel Tunnel. It is intended to make regulations under section 2(3) to ensure that should the Intergovernmental Commission or Safety Authority ask the RAIB to undertake any investigations within the Tunnel, it would have the power to do so.

Section 3: Establishment

25.Section 3 establishes the RAIB, broadly along models already existing for the Air Accident Investigation Branch (AAIB) (established in regulations made under section 75 of the Civil Aviation Act 1982), and the Marine Accident Investigation Branch (MAIB) (established under section 267 of the Merchant Shipping Act 1995).

Section 4: General Aims

26.Section 4 establishes that the fundamental aims of the RAIB will be to improve the safety of railways and prevent railway accidents and railway incidents.

Section 5: Assistance to others

27.Section 5 will permit the Chief Inspector of Rail Accidents to arrange for the RAIB to provide its services to third parties. This might include, for example, assisting the accident investigation body of another country, particularly if there might be safety lessons for the UK railway. The Chief Inspector may charge for the RAIB’s services if he or she considers it appropriate.

Section 6: Annual Report

28.Section 6 requires the Secretary of State to make regulations requiring the Chief Inspector of Rail Accidents to produce an Annual Report. This report would include details of safety recommendations made by RAIB in that year and set out the action taken by the rail industry to implement those recommendations.

Section 7: Investigations

29.Section 7 makes provision as to the railway accidents or incidents that the RAIB is to investigate.

• Subsection (1)(a) requires the RAIB to investigate serious accidents. Subsection (1)(b) provides the RAIB with discretion as to whether or not to investigate non- serious accidents or any incident. Subsection 1(c) provides that the RAIB is also to investigate non-serious accidents or incidents, if it is required to by regulations made by the Secretary of State.

• Subsection (2), however, provides for the Chief Inspector of Rail Accidents to exercise discretion when considering whether or not to investigate a serious accident on a tramway. Although accidents and incidents affecting tramways fall within the remit of the RAIB, the effect of section 7(2) gives the Chief Inspector discretion as to whether or not to investigate tramway accidents. This is because tramways run in various types of alignment, on street, alongside a highway, or off street. The investigation of an accident affecting a road-running part of a tramway would fall normally to the police to investigate whilst an accident affecting an off-street running part of a tramway would normally be investigated by the RAIB.

• Subsections (3) and (5) when taken together make clear that the RAIB is to try to work out the cause of the accident, without apportioning blame or liability. Although it will not consider blame or liability, the RAIB will publish a report setting out the cause even if blame or liability may be inferred as a result. These provisions are equivalent to those existing for the AAIB in regulation 4 of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996, and for the MAIB in regulation 4 of the Merchant Shipping (Accident Investigation and Reporting) Regulations 1999.

Section 8: Investigator’s powers

30.Section 8 gives RAIB inspectors the powers necessary to conduct an investigation. These provisions are modelled on the powers available to AAIB and MAIB accident investigators.

31.Subsection (3) creates new offences, designed to prevent RAIB inspectors from being hindered in their investigations. For example it is to be an offence for a person to fail to comply, without a reasonable excuse, with a requirement made by an inspector or to provide an inspector with evidence that person knows or suspects to be misleading. A person will also be committing an offence if he obstructs a person who is accompanying the inspector and who has been authorised to do so by the Chief Inspector of Rail Accidents.

32.Subsections (5) and (6) give the RAIB primacy in an investigation. This is to ensure that while the different parties involved in investigating an accident will work alongside each other, one body, the RAIB, is to be in the lead. This provision clarifies that where a person (such as a police officer or any other investigator) seeks to take a particular course of action during an investigation, the Chief Inspector of Rail Accidents, or a person acting on his behalf, is able to make the decision on whether that course of action may be taken.

Section 9: Regulations

33.Section 9(1) gives the Secretary of State the power to make regulations about the way in which the RAIB is to conduct its investigations. Subsection (2) provides that those regulations can also make requirements about the RAIB reports.

34.Subsections (2)(d) and (2)(e) allow regulations to be made which could require the RAIB to ensure that its reports are not made public until any person or organisation whose reputation may be adversely affected by the report is given the opportunity to make representations on that draft report .

35.Subsection (4) would permit regulations to make provision on how and whether information held by the RAIB could be disclosed to third parties. It is expected for example, that the regulations will provide that no witness statement given to the RAIB may be disclosed to a third party (such as, but not limited to, the police or the Health and Safety Executive (HSE)) unless the witness himself releases it, or unless a court orders its disclosure.

36.Non-statutory provision will be made for prosecuting authorities to be given the details of those who have given statements to the RAIB.

Section 10: Requirement to Investigate

37.Section 10 provides for the Chief Inspector of Rail Accidents to direct whether an accident or incident on railway property will be investigated and how an accident or incident must be investigated. These directions will be to those in the railway industry, that means that directions may be made to the manager or controller of railway property and to all those who participate in the management or control of railway property. It will be an offence to fail to comply with such a direction.

Section 11: Accident regulations

38.Section 11 allows the Secretary of State to make regulations which would allow, for example, requirements to be made about the reporting of accidents and incidents to the RAIB (so that they may then investigate those accidents and incidents). Such provision would not affect existing obligations to report accidents to HSE.

Public Sector financial and manpower cost

39.The additional staffing numbers needed by the Department for Transport for the Rail Accident Investigation Branch are identified in Table 1 of the Regulatory Impact Assessment. This anticipates 14 professional staff and 8 support staff. Applying average gross wage rates by grade, plus an allowance for non-wage labour costs, the annual staffing costs of the RAIB would be around £1.3 million. Running and other costs for RAIB would add up to about £550,000 such that total annual costs for the RAIB would be about £1.85 million (Table 3). Over a ten-year period the discounted present cost would be about £14 million.

Human Rights assessment

40.The RAIB provisions of this Act, and those matters that will be included in regulations made under a power in this Act, have been considered for their compatibility with the European Convention of Human Rights. Although certain aspects of RAIB provisions engage rights protected by the ECHR, the Government considers that these may be justified.

41.RAIB inspectors will have the power to enter any land for the purposes of conducting an investigation into a railway accident or incident. The exercise of this power could interfere with a person’s right to respect for a private and family life or home (protected by Article 8) or could interfere with a person’s peaceful enjoyment of their possessions (protected by Article 1 of the First Protocol). However, even if these rights were interfered with, the Government considers such interference justified on the grounds that this statutory power is necessary to ensure public safety on the railways; and it is in the general public interest that such investigations take place.

42.To assist RAIB in working to improve safety on the railways, it is important that people feel that they can talk freely to RAIB inspectors, without fear that what they say might be used against them in another way (such as legal proceedings). With this in mind, it is intended that regulations made under section 9 will provide that statements obtained by RAIB inspectors may only be disclosed to a third party (such as a prosecutor) if a court orders that such disclosure is in the public interest, or if the person who has made the statement release it themselves. This will go towards bolstering the existing protection already afforded by Article 6 of the ECHR.