RAILWAY SAFETY BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to the Railway Safety Bill. The Department for Regional Development ("the Department") has prepared the Memorandum to assist with a proper understanding of the Bill and to help inform debate on it. The Memorandum does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum should be read in conjunction with the Bill. It is not, and is not intended to be, a comprehensive description of the Bill. Accordingly, where a clause or part of a clause or Schedule does not seem to require explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. Legislation governing the operations of railways in Northern Ireland goes back to the 1840s and much of the regulation still in force was in place by 1871. Although there have been additions, amendments and repeals, the basic legislation remains Victorian in drafting and concept. The initial focus of the legislation was operational, i.e. based around licensing and empowering of rail operations.

4. Whilst it has long been recognised that rail legislation in NI is outdated, its replacement was not considered a sufficiently high priority to attract resources. Because the railways have been operating within the public sector with limited risk of safety principles being eroded by the profit motive, new legislation was not regarded as being essential. However following three minor accidents in NI in 1998, Northern Ireland Railways commissioned a report on rail safety - the A D Little Review. A key recommendation of this report was that the legislation be updated. Major rail traffic accidents in England also heightened public awareness of rail safety issues.

5. Furthermore effective rail safety legislation would have to be in place before a Public Private Partnership, which would involve the private sector operating trains in Northern Ireland could be introduced. We could not risk the profit motive tempting the private sector to cut corners on safety measures.

6. The decision was therefore taken to bring forward new safety-focused legislation in Northern Ireland. The principal policy objective of the Bill is to provide a legislative basis for modern, safe, travel by railway. It will do so by introducing a system based on safety case legislation, following the GB model. A safety case will be a formal written document that will include information about the operator's activities, organisation, safety management systems and safety measures. The development of a safety case is heavily dependent on risk assessment. This will identify areas of concern and importance and allow provision of detailed information on the extent of identified risks, their quantification and how the risks will be dealt with. Risk assessment will also form the basis for any exemptions that may be granted, for example to heritage operators, on the basis of a clear statement of the risks they face and how they will deal with them. Much of the information will already be in place or be readily available.

7. Safety cases serve two main purposes:

• to give confidence that the operator has the ability, commitment and resources to properly assess and effectively control risks to the health and safety of staff and the general public; and

• to provide comprehensive working documents to provide evidence that the accepted risk control measures and safety management systems have been properly put into place and continue to operate in the way they were intended.

8. The objective of the Bill is to provide powers under which subordinate legislation can be made to improve railway safety in Northern Ireland. These powers will also enable less rigorous regulatory regimes to be applied to smaller heritage operators, where lower levels of risk make this appropriate.

CONSULTATION

9. The Bill will be largely technical in nature and its provisions should not be controversial. Discussions have been held with the railway operating company who will be directly affected by the legislation and who have welcomed the proposals and with heritage operators, who will also come within the scope of the legislation. Meetings have also been held with the Health and Safety Executive, in Northern Ireland and GB, as staff from HSE will be involved in enforcement, as agents of the Department for Regional Development. A more general consultation exercise was undertaken on the draft Bill and ended on 28^th September 2001. Six hundred sets of papers were issued and twenty-seven responses were received. Of these twelve raised substantive points which were dealt with by correspondence. Additional provisions were added (Schedule 1) as a result of comments received.

OPTIONS CONSIDERED

10. The introduction of updated legislation is the only possible means of achieving the required aim.

OVERVIEW

11. The Bill has nine clauses and 2 Schedules. Schedule 1 deals with detailed provisions on clause 5 and Schedule 2 deals with repeals. The Bill also provides for amendments to the Regulation of Railways Act 1871 (c. 78).

    COMMENTARY ON CLAUSES

    The following are the main clauses of the Bill.

    Clause 1: Safety of Railways

    This clause provides for existing legislation relevant to rail safety to be made "existing statutory provisions" under the terms of Part II of the Health & Safety at Work (Northern Ireland) Order 1978 (NI 9). The legislation in question is listed in subsection (4) of the clause. This will allow the Department to make regulations using the broader range of general powers available in that Order. The intention is to use these powers to make regulations under Article 17 of that Order requiring safety cases to be made. Access to these general powers will also allow the Department to implement relevant European legislation in the Railway Safety field. These powers are modelled on section 117 of the Railways Act 1993 (c. 43).

    Clause 2: Approval of railway works, plant and equipment

    Existing legislation provides power to approve new railway infrastructure works and substantial remedial works. This clause provides powers to make regulations requiring prior departmental approval for such works. It will also provide powers to make similar regulations in respect of plant and equipment, including rolling stock. Prior approval is an important part of the safety regime. These powers are modelled on section 41 of the Transport and Works Act 1992 (c. 42), which does not extend to Northern Ireland. Once the secondary legislation has been introduced the powers in the old legislation to approve new works will be repealed.

    Clause 3: Accidents

    Existing legislation provides powers to carry out investigations following accidents. This clause provides powers to make regulations requiring accidents to be reported to the Department. The clause is similar to section 43 of the Transport and Works Act 1992 (c. 42) and will enable accident reporting and follow-up action, to include investigations where appropriate, to be brought into line with modern practice.

    Clause 4: Directions limiting speed and loads

    Currently there is no Northern Ireland legislation giving the Department power to give directions limiting speeds and loads. This clause, mirroring section 45 of the Transport and Works Act 1992 (c. 42), provides such powers, which are required for the safe regulation of all railways. However they are likely to be especially useful for the appropriate regulation of heritage railways. It may be possible to exempt heritage operators from the burden of producing a full safety case where their risk assessment indicates that they are content to operate light trains at relatively low speeds.

    Clause 5: Signs and Barriers at private crossings

    This clause makes provision for the placing of signs and barriers on or near a private road or path which crosses a railway. Contravention of this clause will, on summary conviction, attract a fine not exceeding level 3 on the standard scale. These powers are modelled on sections 52 to 56 of the Transport and Works Act 1992 (c. 42).

    Clause 6: Interpretation

    This clause provides for definitions of "the Department", "operator", "railway" and railway "vehicle" for the purposes of this Bill.

    Clause 7: Consequential Amendments and Repeals

    This clause provides for amendments to the Regulation of Railways Act 1871 (c.78). Clause 1(4)(b) makes the Regulation of Railways Act (1871) "existing statutory provision" (see commentary on clause 1). This clause amends that Act to refer to regulations made under this Bill. The definition of an accident is also extended. This clause also provides for the legislation listed in Schedule 2 to be repealed.

    Clause 8: Commencement

    This clause provides for most of the Bill to come into operation two months after the date it receives Royal Assent. However, clauses 2 and 3 provide powers for the Department to make regulations that will replace existing legislation. Clause 7 and Schedule 2 are connected to clauses 2 and 3. This clause provides for clauses 2, 3 and 7 and Schedule 2 to come into operation later than the rest of the Bill. The intention is to bring these provisions into operation at the same time as the new regulations come into operation. This mechanism will ensure that the old legislation remains in force until it is superseded by the new legislation in the regulations.

    Clause 9: Short Title

    This clause provides for the Bill to be called the Railway Safety Act (Northern Ireland) 2002.

    Schedules

    Schedule 1: This contains the provisions for the placing of signs and barriers at private crossings.

    Schedule 2: This lists the repeals of existing legislation no longer necessary due to new powers provided by the Bill.

FINANCIAL EFFECTS OF THE BILL

12. Existing services are already subject to safety arrangements, which are the responsibility of Northern Ireland Railways. Under the new arrangements, NIR will still have primary responsibility for safety but will in addition incur the expense of preparing and keeping its Safety Case up to date. Initial costs in the first year are likely to be about £80k and on going costs in subsequent years about £20k. NIR will also incur a new additional expense for signage as a result of new provisions in Schedule 1 of the Bill requiring the placing of signs and barriers at private crossings. This additional cost will not be significant. However all of the additional costs outlined above will marginally increase the railways running cost deficit (currently £12.5m per annum) and consequently will have to be met by the Department for Regional Development. The Department will also incur enforcement costs estimated at about £20k in first year and £10k thereafter per annum. Costs on the operators of heritage railways will be much less, as it is anticipated they will wish to avail of exemption provisions and will then only be required to produce a risk assessment.

EFFECTS ON EQUAL OPPORTUNITY

13. The impact of the Bill on equality of opportunity affecting the groups listed in Section 75 of the Northern Ireland Act has been considered and no adverse or differential aspects were identified. A formal screening out process has been completed as part of the Equality Impact Assessment procedures and was published with the draft Bill proposals.

HUMAN RIGHTS ISSUES

14. No human rights implications have been identified.

EQUALITY IMPACT ASSESSMENT

15. The Bill has been assessed under the Equality Impact criteria and it does not adversely affect any of the target groups. A formal Screening Exercise has been conducted and the results are published with this Memorandum.

SUMMARY OF THE REGULATORY APPRAISAL

16. A full Regulatory Impact Assessment of the costs and benefits of the proposed measures is not considered necessary, since they impact directly on a public body. Also, they do not impose significant additional costs.

SECRETARY OF STATE'S CONSENT

17. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.

LEGISLATIVE COMPETENCE

18. The Minister for Regional Development has made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Railway Safety Bill would be within the legislative competence of the Northern Ireland Assembly."