Mr A Maginness (Chairperson)
Mr McFarland (Deputy Chairperson)
Mr Hay
Mr Hussey
Mr R Hutchinson
Mr McNamee
Mr Savage
Mr M Robinson

Mr R Aiken ) Department for
) Regional Development
Mr G McKenna )

Good morning and thank you for coming. The Committee looks forward to hearing from you. Mr Rayner has given us an interesting presentation, and it is good that you heard it. Mr McKenna, I know that you responded in writing, but it would be helpful if you were to make further comment. How would you like to proceed?

I can see that you have a packed agenda. I do not have any remarks to add to those made by the Minister during the debate on the Second Stage of the Railway Safety Bill, so I am happy to begin the question-and-answer session.

Mr Rayner gave his views on the situation. His opinion is that the safety case approach is inappropriate, given the situation with Northern Ireland Railways (NIR), and he made that point forcibly. He thinks that the safety case approach is more suited to a fragmented system and was introduced to deal with cases in which there are several different owners and systems of control. We should ignore the fact that the system has been privatised.

If I understood Mr Rayner correctly, his main concern was that we might create a fragmented railway system as opposed to the integrated system that we have. Therefore, we would be introducing legislation to cope with a fragmented system. Given that, I refer members to Peter Robinson's comments during the debate on the Second Stage of the Bill. He was specific and said that he had no intention of breaking up our integrated railway system, so it is our intention to continue with an integrated system.

However, if we continue with an integrated railway, do we need the safety case legislation? I disagree with Mr Rayner in that I think it is needed because the genesis for the legislation arose from the AD Little Report on railway safety, which recommended that modern railway safety legislation should be introduced in Northern Ireland, and that is what the Bill is about. The safety case legislation is sensible even if there is an integrated railway because it involves a systematic and rigorous assessment of risk in the operation of the railway, it sets out how those risks will be managed and it provides for the independent enforcement of the system. That is a sensible approach that will provide a strong assurance of safety. However, this is an area where one can never be 100% sure. It should be borne in mind that the safety case approach is generally used in risky industries throughout the UK, such as offshore oil, nuclear power and the chemical industry, and it is generally regarded as a good system.

Contrary to what Mr Rayner said, the Department of Public Enterprise in Dublin is in the process of introducing legislation. It is taking a slightly different approach but the objective will be exactly the same. It will have safety documents or safety regulations rather than safety cases, but it is basically the same approach as ours.

So, there would be no substantive difference between the Republic and Northern Ireland if the Bill were to be passed.

I want to ask a couple of questions about auditing. Mr McFarland has asked a good question: who carries out the audit? He suggested that there should be an independent audit. I made the point that Her Majesty's Railway Inspectorate would deal with an audit, but I may be wrong. Can you enlighten us on that? Who will carry out the audit, and will it be independent or in-house?

There are two stages: the independent audit - which I will ask Mr McKenna to talk about in a moment - and the independent inspection. Responsibility for railways was devolved to the Northern Ireland Assembly, and the Assembly has placed that responsibility on the Department for Regional Development. The Department will issue certificates to enable railways to operate legally in the future; therefore, it is responsible in that sense. However, as was pointed out earlier, as departmental officials, we are not railwaymen, and we have no technical expertise. To overcome that difficulty we have come to an agreement with Her Majesty's Railway Inspectorate. It will act as our agents and advise us on safety matters. However, it will be up to the Department to issue certificates based on the inspectorate's advice.

It might be helpful if I outlined how the safety case regime is intended to work through the legislation. These will be secondary regulations made under the powers taken by the Railway Safety Bill. It will be the responsibility of the duty holder - in this case, primarily Northern Ireland Railways - to produce a safety case of the operations that it carries out. As part of that, it is required to obtain an independent assessment of that safety case. Who carries out that independent assessment is a matter for Northern Ireland Railways, but clearly the assessor must be properly qualified. That assessment, along with the safety case, will be submitted to the Department for approval and, as Mr Aiken has said, the Department will seek the advice of Her Majesty's Railway Inspectorate under its contractual arrangements.

Her Majesty's Railway Inspectorate will advise the Department whether or not the safety case is acceptable as it stands, needs certain amendments or, in the worst possible scenario, needs to be completely reworked. The Department would ask Northern Ireland Railways to carry out that work. On the assumption that it is acceptable, the Department would issue a certificate. Northern Ireland Railways would then operate that safety case and would be required to obtain annual audits. Independent bodies carry out those audits. The Department would not name those bodies (that is a matter for Northern Ireland Railways), but they must be assessed as competent to carry out that level of work.

Who would conduct the audit? Who would these independent bodies be?

There is a range of people. AD Little was mentioned.

There are agencies.

They would be described as consultancy bodies.

I am somewhat worried, but perhaps I have misunderstood. There have been many problems in Great Britain. Will the same people who have audited stretches of the line in Great Britain audit the line in Northern Ireland?

Potentially, yes.

That does not give us much confidence, does it?

It may be that the duty holders in Great Britain did not carry out the full requirements of their safety case properly, rather than that the people carrying out the assessment of that safety case were incompetent.

I am not trying to be awkward, and you may or may not agree with me that since the British system was privatised and has been split up here, there and yonder and assessed by such people, there have been many accidents. At some time those railway lines must have had a certificate that stated they were safe, issued by the very same people that the Department for Regional Development will employ to pass our system as safe.

The independent auditors audit the systems; they do not necessarily recheck the lines.

Is that not irrelevant?

It will be the responsibility of Northern Ireland Railways to check that the lines are safe. The auditor will assess whether their systems for checking the lines are adequate.

You will have to help me here. The systems that you would put in place here would probably be the same systems that have been put in place across the water.

Not necessarily. Mr Aiken has said that the important thing is that it is all risk-assessment based. The nature of the operation in Northern Ireland is not the same as a mainline operation in Great Britain because of the volume of traffic. The safety case and the risk assessment would reflect that.

I shall ask a straightforward question. Is the safety case applicable regardless of whether or not there is fragmentation?

Yes. However, fragmentation leads to more complications because of the greater number of interfaces.

In the concept of the safety case, the application of safety is the same in any system. Therefore, the argument about fragmentation or a unitary system is irrelevant. Is that what you are saying?

It is not. The Department does not accept that fragmentation is the only reason for a safety case. The point you are making is quite right. When a single body offers the service, the interfaces and the risks are reduced, and that has a bearing on the safety case. It does not remove the need for a safety case, but it makes that safety case easier to develop, audit and implement.

Fragmentation leads to complications in control, command, management and other intermeshed matters. There is a greater argument for a safety case in those circumstances.

The safety case would be more complicated. It would require more supervision with everyone concerned examining that safety case. It is important that a safety case is in place.

Our legislation needs to be updated. If I were drafting it, I would like to understand the logic behind it. Great Britain has brought in the legislation, but that is not a reason for other regions having it, given the problems that GB has experienced.

In Northern Ireland there is a unitary system. The logic of putting legislation in place is that Northern Ireland Railways might wish to do away with in-house maintenance and to contract out. From what we have heard it appears that if one wishes to contract out it is logical to have safety cases in place. Is the Department for Regional Development hedging its bets that at some stage in the future it might wish to do away with in-house maintenance and contract out?

As you know, I asked the same question when you last appeared before the Committee. Why is a safety case required if, in fact, the intention is to go out to contract? That situation is not unusual; the Water Service contracts out, as do other agencies. A contract is entered into with a company to maintain a length of track for a specific period of time, at a particular standard, with the relevant safety caveats. Why should we not have that system, given that we have ownership? The issue of fragmentation would not arise. Discussions could be held on how best to monitor the contracts.

If legislation were put in place, technically contracting out would be open to all the problems mentioned, whereas if it were to be done within the system I have described, there would be no need for it to be enshrined in law. It could be put into a contract, which could then be monitored by inspectors and be subject to all the normal contract conditions. I am trying to understand the motivation and the imperative behind this.

You stated that this legislation would update our railway safety legislation. There is very little railway safety legislation in Northern Ireland. The Bill introduces several pieces of legislation for the first time. You describe a system in which the railway is in public ownership and maintenance can be done by contract. Basically, that is the system that currently exists. AD Little and others have advised us that it would be better to have safety case legislation in place because that would allow for independent scrutiny and independent assessment of the safety case. Her Majesty's Railway Inspectorate would advise the Department whether or not the risks were being managed effectively.

That advice is being provided, and it is tied up with other issues. If the Belfast to Bangor line were to be maintained, it could be let out to a company for five years and rules could be laid down in whatever detail was considered necessary - various safety issues; who is allowed on the line; standards of drive; and so forth. All that could be laid out in the contract, which at the moment is in-house. Is it correct that Northern Ireland Railway's own people do the maintenance?

By and large, Northern Ireland Railways does the maintenance.

Let us suppose that Northern Ireland Railways wants to do away with your in-house team and go out to contract. A detailed contract could be drawn up with a firm, which could be examined by inspectors every three weeks or so, or whenever you wished them to examine it. Why are we being advised by AD Little to go for a safety case system? There is a much simpler and more controllable system in which the length of the contract can be determined. If the company is unsuitable, it can be sacked. One knows exactly what it is supposed to do and what the rules of the game are. An inspector can monitor the situation regularly.

The problem arises when something goes wrong. Does the work simply stop and nothing further happens? It is misleading to concentrate on the safety aspects of a track relay. Safety cases deal with all aspects of railway operation, some of which are more important than maintenance work. I do not see how they can be properly -

Like what?

How trains are operated, or how drivers are trained.

That is what Translink does. There is an entire company whose purpose it is to run railways and hire drivers and so on. That is not new. I am trying to understand why we are rushing into railway safety case systems, when there is a perfectly acceptable system in place.

There are questions about whether it is being managed properly. That is a different discussion. Why are we hurtling off into this new system that has been tried in Britain and has been proved problematical because of the system of lawyers that we heard about? It strikes me that if we get this wrong, the Department for Regional Development will spend all its time running back to the Assembly for money to pay for legal cases.

If there were to be a management system and a company that can find its way around the issue of maintenance contracts, why are we rushing headlong into this? What is the impetus behind the rush into this legislation? I am not having a go at you. I am desperately trying to understand.

In this day and age, we think that self-regulation by the railway company is not sufficient on its own. There has to be independent scrutiny. That is why we wish to proceed with the legislation.

Why can there not be an inspector who is independent of the railway company? That would not cost very much. An inspection could be carried out every month. However, a raft of new legislation would have a host of implications, with the potential of leading to enormous legal fees, all because someone is needed to monitor the competence of Translink and Northern Ireland Railways to run the railways.

The question of legal fees does not arise if we continue with an integrated system. That issue arises only with a fragmented system. Northern Ireland Railways will be responsible for all aspects of the operation. Translink is in favour of the legislation and is happy that it should be controlled independently.

All that the Department for Regional Development has to do is to say: "Here is Mr Jones. He will now inspect Translink." The only logic for doing what you propose is that if you wish to keep your options open down the line for contracting your in-house services -

We appear to be accepting the line here, as Mr Rayner outlined earlier, that the only reasons to have a safety case are fragmentation and focusing on external personnel who carry out operations. That is a mistaken belief. The reason for having a safety case is to codify precisely what happens in the operations of an organisation. You also suggested that much of this was new. The concept of a safety case as a piece of legislation is, indeed, new. The content of that safety case will most certainly not be new. It will be based on the aspects that you referred to, such as procedures, management and operational systems that Northern Ireland Railways already has in place.

It will ask Northern Ireland Railways to codify all this for the first time. When inspectors come in, as they do, they will then have something to examine. They can make a judgement based on the now-established systems that Northern Ireland Railways are working toward and whether those systems are being maintained correctly.

As a Department, why can you not simply tell Translink to do that now? You own Translink. Translink, albeit at a slight distance, is a public company owned by you. Why can you not simply tell it to do this? A raft of legislation and safety cases are not required to tell it to get on with managing the company.

Unfortunately, the Department cannot tell it to do that. It does not have those powers.

You have powers to hire and sack its chiefs, for goodness' sake.

Actually, we do not. The Department has powers to withhold money, but that is not a good solution.

So, you are saying that we must reorganise the relationship between the Department and Translink to make it accountable? Are you saying that Translink is not accountable to the Department? We thought that it was.

The Department is not responsible for the day-to-day operations.

That is running trade, but if there are enormous mess-ups or if the management is not working, are you saying that the Department does not have the power to tell Translink what to do?

The Department has powers to direct the Northern Ireland Transport Holding Company, but not to direct Translink.

Does the Northern Ireland Transport Holding Company, which technically owns Translink, not have powers to direct it?

Yes, but our powers of direction are limited.

Do we need to look at the Department's powers to organise our public transport system?

That is slightly off the subject.

It is inherent on this. If you do not have a grip -

The Minister has already said that he wants to look at the structure of public transport provision in Northern Ireland.

But should that be where the effort is going rather than on finding solutions for railway safety cases?

It is not a substitute for proper railway safety legislation.

I agree with Mr McFarland and not simply because we are party Colleagues. I agree with the logic of his argument about why the whole scenario cannot be included in contracts, even in-house contracts. I am trying to understand the role of Her Majesty's Railway Inspectorate, which has a responsibility to ensure that the system is safe. Mr McKenna, you would have heard me question Mr Rayner, and you were reported to have said that "it is assumed that they will resource accordingly". Is there a concern there? Has it been resourced accordingly, given the scenario with Her Majesty's Railway Inspectorate?

There was a resourcing difficulty with Her Majesty's Railway Inspectorate. The inspectorate has recently significantly increased the resources available to it, with a new intake of inspectors. As part of the contractual arrangements that the Department has entered into, each year it will inform the inspectorate in advance of the amount of support that the Department requires in a given year. That will cover not only railway safety casework but also a range of other works that the Department has contracted with it to deliver. As part of that contract, it has undertaken to make that resource available to the Department.

Perhaps I am being simplistic, but if we go into a situation of having contracts, even in-house contracts, and there is an inspectorate in place with responsibility for, I assume, ensuring operations and maintenance in the railway system, why do we need to go beyond that?

The inspectorate does not now have any responsibility, and it will not have responsibility unless legislation is introduced. Inspectors can act as advisers, but there is no legislative force without this legislative back-up power.

Does the legislative back-up power state that Her Majesty's Railway Inspectorate now has a statutory responsibility?

No, the Department for Regional Development has that responsibility.

Does the Department for Regional Development have the power to delegate that responsibility to Her Majesty's Railway Inspectorate?

No.

What is the point in having Her Majesty's Railway Inspectorate?

As I understand it, Her Majesty's Railway Inspectorate acts as the Department's agents in that situation. That is different. A principal appoints an agent. The principal in this circumstance is the Department, and that legal responsibility still rests with the principal. The agent is simply carrying out the instruction. That must be made clear in law or the whole thing will not work properly.

The other point which Mr Hussey may find useful, and Mr Rayner mentioned it in his evidence when he referred to the need for the Department to have the levels of expertise required, is that Her Majesty's Railway Inspectorate has 150 field inspectors who specialise in different areas such as signalling, infrastructure, rolling stock and so forth, and the Department requires access to all those levels of expertise. If we tried to create our own organisation, we would have to employ between 10 and 15 people to look after a railway network of our size, and that is simply impractical.

Having said that, Mr Rayner said that Her Majesty's Railway Inspectorate's resources were limited.

They are limited, but they are less limited than they previously were, because in the past year Her Majesty's Railway Inspectorate has made a significant attempt to obtain additional resources. The inspectorate will always argue that it needs more resources.

Even if the resources are limited, if the Department for Regional Development has a contract with Her Majesty's Railway Inspectorate, it has a legal obligation to fulfil that.

We have taken the necessary steps to ensure that we will have the resources that we require.

If Her Majesty's Railway Inspectorate does not have the resources, it is not fulfilling the contract.

If Her Majesty's Railway Inspectorate told us one year that it could not meet all our demands in time, we would have to contract with a private firm of consulting engineers to fill the gap.

I was going to ask for clarification on the role of Her Majesty's Railway Inspectorate and the consultancy bodies, but you have addressed that in your last answer. There will be an independent assessment of the safety case prior to its approval. The safety case will be audited annually, but in the interim who is responsible for monitoring the implementation of the safety case? I assume that initially the safety case presentation and assessment would be a paper exercise. People would outline how they will identify, measure and assess the risks. However, in the 12 months before the annual audit to find out whether that body has carried out and implemented its safety case, should it be Her Majesty's Railway Inspectorate's role to assess and monitor the implementation of safety cases?

If the Department was concerned that there were difficulties, as an option it would could call in Her Majesty's Railway Inspectorate at any stage to carry out a further inspection. The responsibility for operating the railways remains with Northern Ireland Railways. Under the safety case regime the system that it would put in place requires it to maintain records of its implementation of that system. Part of the audit would not be simply to turn up on a given day, have a look at two or three areas and say that everything looks OK. It would also involve checking the records to find out what had happened in the 11½ months, or whatever the time might be, to satisfy themselves that Northern Ireland Railways was operating the system that it is meant to operate. The Department could ask Her Majesty's Railway Inspectorate, as its independent advisers, to carry out, at an early stage, a review or to incorporate it as part and parcel of the audit reports that it receives.

Does the Department for Regional Development have the expertise to bring our rail network up to an acceptable standard?

We do not have the expertise, but we can employ it.

With regard to the physical work, much of the expertise necessary to bring the railways up to standard lies in Northern Ireland Railways itself.

That expertise is in Northern Ireland Railways and is within your grasp.

Yes.

How long will it take?

It is out of our control, but we hope that the legislation would be made before the summer recess. In that case, it would probably come into operation in October 2002. Subordinate legislation can then be introduced. That is currently being drafted, so it is hoped that there will not be a long delay between the Act coming into force and the first subordinate legislation being made. The only exception, and probably the most important part, is the safety case regulations. We must ensure that Northern Ireland Railways is in a position to produce its safety case and to have it audited and inspected before the introduction of safety case regulations. Once those are introduced, it will be an offence for Northern Ireland Railways and heritage railway operators to operate without a certificate.

How many former railwaymen are in the Department for Regional Development?

None.

With regard to full appreciation and understanding, is that not strange? I am curious to know why no one has any experience in the transport policy support division, which deals with railways.

Were the Department to employ one person, that person would have expertise in a particular field. As Mr McKenna said earlier, it would be necessary to employ a dozen people to have the full range of expertise. In those circumstances, therefore, it is probably best to buy in the expertise from consultants.

The important point is that legislation is necessary. There is no doubt that the meetings have been useful.

Thank you very much. Your evidence has been very helpful.

At the meeting on 27 February the Committee agreed to take evidence from the following groups: Translink, the Railway Preservation Society of Ireland, Transport 2000 (Mr Rayner) and the Department for Regional Development and its officials. Now that we have heard from all those groups, the Committee is content and will take no further evidence. The Committee needs to debate and assess the evidence it has heard.

With regard to the taking of evidence, Mr Rayner initially gave evidence on behalf of Transport 2000 and is the only person to provide independent information on railway safety. Should the Committee hear evidence from other agencies with expertise in railway safety?

Perhaps the Committee should consider that. If there is no one else, we will have to conclude that we have taken sufficient evidence in relation to this matter. Perhaps the Committee Clerk could investigate that point further.

In the evidence we have heard from Mr Rayner, on behalf of Transport 2000, and from the Department, there is a difference of opinion about safety case legislation as the best means of ensuring safety here or not. That is my reason for requesting further evidence.

The point is well made. We can explore this further, but if we cannot get any further assistance in this matter, we may have to conclude our evidence session.

6 March 2002 (ii) / Menu / 20 March 2002 (ii)