SESSION 2001/2002

SECOND REPORT

Report on
The Railway Safety Bill
(NIA Bill 3/01)

Ordered by the Committee for Regional Development to be printed 1 May 2002
Report: 02/01R (Regional Development)

COMMITTEE FOR REGIONAL DEVELOPMENT:
MEMBERSHIP AND POWERS

The Committee for Regional Development is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the Northern Ireland Act 1998 and under Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Department for Regional Development and has a role in the initiation of legislation.

The Committee has power to:

• Consider and advise on Departmental Budgets and Annual Plans in the context of the overall budget allocation;
• Approve relevant secondary legislation and take the Committee stage of relevant primary legislation;
• Call for persons and papers;
• Initiate inquiries and make reports; and
• Consider and advise on matters brought to the Committee by the Minister for Regional Development.

The Committee was established on 29 November 1999 with 11 members, including a Chairman and Deputy Chairman and a quorum of five.

The membership of the Committee is as follows:

• Mr Alban Maginness (Chairman)*
• Mr Alan McFarland (Deputy Chairman)
• Mr PJ Bradley (appointed on 26 January 2000 in replacement of Mr Alban Maginness who had become Chairman)
• Mr Joe Byrne
• Mr David Ervine
• Mr William Hay
• Mr Derek Hussey
• Mr Roger Hutchinson
• Mr Pat McNamee (appointed in replacement of Mr Conor Murphy on 18 September 2000)
• Mr Mark Robinson (appointed in replacement of Mr Jim Wells on 12th November 2001)
• Mr George Savage (appointed in replacement of Rt Hon John Taylor on 15 January 2001)

*Mr Denis Haughey was the Chairman of the Committee from 29 November to 16 December 1999.

TABLE OF CONTENTS

General

Deliberations of the Committee

Appendix 1: Minutes of Proceedings of the Committee relating to the Report

Appendix 2: Minutes of Evidence of the Committee relating to the Report

Appendix 3: Written Submissions

1. The Committee for Regional Development met on the dates given below to consider the Railway Safety Bill (NIA Bill 3/01). The Bill was referred to the Committee on 27 February 2002 for consideration under Standing Order 31 (1) of the Northern Ireland Assembly.

2. The Committee had before it the Railway Safety Bill and the Explanatory and Financial Memorandum to the Bill (NIA Bill 3/01-EFM) as introduced. The Committee was supported in its deliberations by a number of useful and informative papers provided by the Assembly's Research and Library Services.

3. The Minister in charge of the Bill, Mr Peter Robinson MP MLA, Minister for Regional Development has made the following statement under section 9 of the Northern Ireland Act 1998:

4. The Committee proposed the following motion seeking an extension to the Committee Stage of the Bill. The Assembly agreed the motion on 19 March 2002.

5 The purpose of the Bill is to update and replace existing legislation in the area of railway safety. Legislation governing the operations of railways in Northern Ireland goes back to the 1840s. Much of the regulations still in force today have been in place since 1871. Although there have been additions, amendments and repeals, the basic legislation remains Victorian in drafting and concept.

6 Following three minor accidents in Northern Ireland in 1998, Northern Ireland Railways commissioned a report on rail safety - the AD Little Review. A key recommendation in this report was that the legislation pertaining to railway safety should be updated. Recent major rail traffic accidents in England also heightened public awareness of rail safety issues.

7. The principal policy objective of the Bill is to provide a legislative basis for modern and 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.

8 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.

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

10. The Committee met to consider the Bill on the following dates:

27 February 2002 The Committee agreed to request an extension of the Committee Stage of the Bill and to invite certain organisations to give evidence.

6 March 2002 Consideration of the purpose and content of the Bill when representatives of Translink and the Railway Preservation Society of Ireland were questioned.

20 March 2002 Consideration of the purpose and content of the Bill when Mr Peter Rayner and Department for Regional Development officials were questioned.

27 March 2002 The Committee agreed to invite Mr Rick Eagar from AD Little consultants to give evidence.

17 April 2002 Consideration of the purpose and content of the Bill when Mr Rick Eagar from AD Little consultants was questioned.

24 April 2002 Clause-by-Clause scrutiny of the Bill.

1 May 2002 Consideration of draft report to Northern Ireland Assembly.

11. Extracts of the Minutes of Proceedings relating to the meetings are given in Appendix 1.

12. The Minutes of Evidence for each of the meetings when the Bill was considered formally are given in Appendix 2.

13. The Committee wrote to 33 interested bodies and individuals in March 2002 to seek their comments on the proposed Bill, and 5 responded in writing. The respondents were the General Consumer Council for Northern Ireland, the Ulster Farmers' Union, Lisburn Borough Council, Ballymena Borough Council and Banbridge District Council. Respondents were generally supportive of the aims of the Bill. A list of the 3 substantive responses that were received and a copy of their written submissions is given in Appendix 3. The responses from Ballymena Borough Council and Banbridge District Council had no comments to make.

DELIBERATIONS OF THE COMMITTEE

14. The Committee gave detailed consideration to each part of the Railway Safety Bill over a number of meetings and took evidence from the main interested parties: Translink, the Railway Preservation Society of Ireland and the Department for Regional Development. It also took evidence from two railway safety experts, Mr Rick Eagar (AD Little consultants) and Mr Peter Rayner. The record of the Committee's deliberations can be found in Appendix 1 - Minutes of Proceedings and Appendix 2 - Minutes of Evidence.

15. One of the key issues that was raised during the Committee consideration of the Bill was whether the Bill should be prescriptive, setting out on the face of the Bill all the main provisions, or whether it should be enabling legislation, with the main provisions introduced through secondary legislation. The Committee acknowledged that there were arguments for and against both approaches, but was in agreement that the overriding consideration is the swift introduction of effective railway safety guidelines and standards.

16. During the debate on the Second Reading of the Bill on 26 February 2002 the Minister confirmed that it was the Department for Regional Development's intention to introduce the secondary legislation as soon as possible. He stated that "most subordinate legislation will follow almost immediately subject to public consultation and consultation with the Assembly Committee". He went on to say that the Railway Safety Case Regulations will follow as soon as possible, as Northern Ireland Railways will require some time to finalise its safety case.

17. The Committee also received reassurance during its questioning of Department for Regional Development officials, that every effort would be made to ensure that Northern Ireland Railways was in a position to produce a safety case without undue delay.

18. There was some concern that the safety case model was flawed based on experiences in GB. However, the Committee heard evidence that part of the problem in GB stemmed from the fragmented nature of the industry due to privatisation. During the Second Reading debate the Minister stated that Northern Ireland would avoid such problems as he had no plans to change the integrated nature of our much smaller industry.

19. The Committee sought reassurance that safety cases would require independent audit and inspection. The safety case model puts in place procedures and practices to ensure that risk is minimised. However, it is important to audit procedures to ensure that they are being correctly and routinely implemented. It was explained to the Committee that Her Majesty's Railway Inspectorate would advise the Department for Regional Development whether the risks were being effectively managed.

20. The Committee noted that the Republic of Ireland is currently in the process of introducing railway safety legislation. It was explained to the Committee that the Republic of Ireland's legislation was also proposing to use a safety case approach similar to that in Northern Ireland. The Committee also heard evidence that the European Union is moving towards a safety case approach. The draft European Railway Safety Directive will require railways to submit annual safety reports which will require independent certification.

21. The Committee noted that the proposed secondary legislation would give a railway operator the power to enter private land to erect a sign beside or near a private crossing. The purpose of such a sign would be to explain procedures for the use of such a crossing and penalties for misuse. The Committee concluded that in the circumstances, this power was necessary to protect life, particularly those whose land would be used for the erection of such signs. The Committee noted that private crossings are of particular concern as regards railway safety.

22. The Committee concluded its deliberations with a clause-by-clause scrutiny on 24 April 2002 when the parts of the Bill were formally agreed.

23. Clause 1 - Safety of Railways

The Committee considered Clause 1 and concluded that it was content with the Clause.

24. Clause 2 - Approval of Railway Works, Plant and Equipment

The Committee considered Clause 2 and concluded that it was content with the Clause.

25. Clause 3 - Accidents, etc.

The Committee considered Clause 3 and concluded that it was content with the Clause.

26. Clause 4 - Directions Limiting Speed and Loads

The Committee considered Clause 4 and concluded that it was content with the Clause.

27. Clause 5 - Signs and Barriers at Private Crossings

The Committee considered Clause 5 and concluded that it was content with the Clause.

28. Clause 6 - Interpretation

The Committee considered Clause 6 and concluded that it was content with the Clause.

29. Clause 7 - Consequential Amendments and Repeals

The Committee considered Clause 7 and concluded that it was content with the Clause.

30. Clause 8 - Commencement

The Committee considered Clause 8 and concluded that it was content with the Clause.

31. Clause 9 - Short Title

The Committee considered Clause 9 and concluded that it was content with the Clause.

32. Schedule 1 - Signs and Barriers at Private Crossings

The Committee considered Schedule 1 and concluded that it was content with Schedule 1.

33. Schedule 2 - Repeals

The Committee considered Schedule 2 and concluded that it was content with Schedule 2.

34. Long Title

The Committee considered the Long Title and concluded that it was content with the Long Title.

MINUTES OF PROCEEDINGS

WEDNESDAY 27th FEBRUARY 2002
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Mr Alban Maginness (Chairman)
Mr Alan McFarland (Deputy Chairman)
Mr Joe Byrne
Mr David Ervine
Mr William Hay
Mr Derek Hussey
Mr Roger Hutchinson
Mr Pat McNamee
Mr Mark Robinson
Mr George Savage

Apologies: Mr PJ Bradley

In Attendance: Mr Liam Barr (Committee Clerk)
Mr Neil Currie (Assistant Clerk)
Mrs Sharon Young (Executive Support)
Miss Jennifer Massey (Administrative Support)

a) The Committee agreed that due to the number of witnesses expected, an extension of the Committee stage would be required and that the Chairman would put down the following motion once the Bill had been referred to the Committee:

"Proposed: That in accordance with Standing Order 31(5) the period referred to in Standing Order 31(3) be extended to 24th May 2002 in relation to the Committee Stage of the Railway Safety Bill (NIA 3/01)".

b) The Committee should invite NITHC/Translink, Transport 2000 and the Railway Preservation Society of Ireland to give oral evidence.

c) To invite written submissions from a number of interested groups.

WEDNESDAY 6TH MARCH 2002
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Mr Alban Maginness (Chairman)
Mr PJ Bradley
Mr Roger Hutchinson
Mr Pat McNamee
Mr Mark Robinson
Mr George Savage

Apologies: Mr Alan McFarland (Deputy Chairman)
Mr Joe Byrne
Mr David Ervine
Mr William Hay
Mr Derek Hussey

In Attendance: Mr Liam Barr (Committee Clerk)
Mr Neil Currie (Assistant Clerk)
Mrs Sharon Young (Executive Support)
Miss Clare Lagan (Executive Support)
Miss Jennifer Massey (Administrative Support)

Mr Ted Hesketh and Mr Alan Mercer, from Translink joined the meeting at 10.45 am and Mr Johnny Glendinning from the Railway Preservation Society of Ireland joined at 11.40 am. They gave presentations on their views and concerns about the Bill and answered Members' questions.

The Chairman thanked the representatives for their attendance. Mr Hesketh and Mr Mercer left the meeting at 11.40 am and Mr Glendinning left at 11.53 am

WEDNESDAY 20 MARCH 2002
IN ROOM 135,PARLIAMENT BUILDINGS

Present: Mr Alban Maginness (Chairman)
Mr Alan McFarland (Deputy Chairman)
Mr William Hay
Mr Derek Hussey
Mr Roger Hutchinson
Mr Pat McNamee
Mr Mark Robinson
Mr George Savage

Apologies: Mr PJ Bradley
Mr J Byrne
Mr D Ervine

In Attendance: Mr Liam Barr (Committee Clerk)
Mr Neil Currie (Assistant Clerk)
Miss Clare Lagan (Executive Support)
Mrs Sharon Young (Administrative Support)
Miss Jennifer Massey (Administrative Support)

Mr Peter Rayner, a railway safety expert, joined the meeting at 10.56am. He gave a presentation on his views and concerns about the Bill and answered Members' questions.

The Chairman thanked Mr Rayner for his attendance and he left the meeting at 11.41am.

Mr Richard Aiken and Mr Garry McKenna from the Department for Regional Development joined the meeting at 11.41am. They answered Members' questions on the Bill.

The Chairman thanked Mr Aiken and Mr McKenna for their attendance and they left the meeting at 12.17pm.

Agreed: Consideration should be given to identifying another witness with expertise in railway safety to give evidence on the Bill. If such a person is unavailable the Committee is content that no further evidence sessions are required.

WEDNESDAY 27MARCH 2002
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Mr A McFarland (Deputy Chairman)
Mr D Ervine
Mr W Hay
Mr D Hussey
Mr P McNamee
Mr M Robinson
Mr G Savage

Apologies: Mr A Maginness
Mr PJ Bradley
Mr J Byrne
Mr R Hutchinson

In Attendance: Mr L Barr (Committee Clerk)
Miss C Lagan (Executive Support)
Mrs S Young (Administrative Support)

The Committee discussed the possibility of inviting AD Little Consultants, who had previously completed a report on Railway Safety - N.I., to give evidence to the Committee.

Agreed: Contact AD Little to check if they could brief the Committee on their views on the Bill.

WEDNESDAY 17 APRIL 2002
IN ROOM 135, PARLIAMENT BUILDINGS

Present: Mr A Maginness (Chairman)
Mr A McFarland (Deputy Chairman)
Mr J Byrne
Mr W Hay
Mr R Hutchinson
Mr M Robinson
Mr G Savage

Apologies: Mr PJ Bradley
Mr D Ervine
Mr D Hussey

Absent: Mr P McNamee

In Attendance: Mr L Barr (Committee Clerk)
Mr N Currie (Assistant Committee Clerk)
Miss C Lagan (Executive Support)
Mrs S Young (Administrative Support)

Mr Rick Eagar from AD Little joined the meeting at 12.10pm. He gave a presentation on his views and concerns about the Railway Safety Bill and answered Members' questions.

The Chairman thanked Mr Eagar for his attendance and he left the meeting at 12.40pm.

Present: Mr A Maginness (Chairman)
Mr A McFarland (Deputy Chairman)
Mr PJ Bradley
Mr J Byrne
Mr D Ervine
Mr W Hay
Mr R Hutchinson
Mr P McNamee
Mr M Robinson
Mr G Savage

Apologies: Mr D Hussey

In Attendance: Mr L Barr (Committee Clerk)
Mr N Currie (Assistant Committee Clerk)
Miss C Lagan (Executive Support)
Mrs S Young (Administrative Support)

The Chairman welcomed Department Officials to the meeting who would be available to answer any questions that the Committee may have. The Committee then proceeded to a clause-by-clause consideration of the Bill.

Agreed: The Committee was content with the Clauses, Schedules and Long Title of the proposed Bill.

The Department to provide the Committee with the number of private crossings and the number of reported accidents at these crossings.

Present: Mr A Maginness (Chairman)
Mr A McFarland (Deputy Chairman)
Mr PJ Bradley
Mr D Ervine
Mr W Hay
Mr D Hussey
Mr P McNamee
Mr M Robinson
Mr G Savage

Apologies: Mr J Byrne

Absent: Mr R Hutchinson

In Attendance: Mr L Barr (Committee Clerk)
Mr N Currie (Assistant Committee Clerk)
Miss C Lagan (Executive Support)
Mrs S Young (Administrative Support)

The Committee deliberated on the draft report on the Committee Stage of the Railway Safety Bill.

Agreed: The Committee agreed the report and ordered it to be printed.

Wednesday 6 March 2002

Members present:
Mr A Maginness (Chairperson)
Mr PJ Bradley
Mr R Hutchinson
Mr P McNamee
Mr G Savage
Mr M Robinson

Witnesses:
Mr T Hesketh ) Translink
Mr A Mercer

1

The Chairperson (Mr A Maginness): The Committee welcomes Mr Hesketh and Mr Mercer from Translink to the first formal evidence session on the Railway Safety Bill. We will have a question and answer session after Mr Hesketh's submission.

2

Mr Hesketh: We are glad to be here again and pleased at the interest the Committee is taking in these matters, not least in the issue of railway safety, which is very important to us as a business. I am the author of the Northern Ireland Transport Holding Company (NITHC)/Translink's response, which I understand the Committee has copies of. Alan Mercer, who is director of human resources, aided and abetted me in the preparation of the submission. Mr Mercer is here not only as director of human resources, but as the senior manager at board level with responsibility for railway safety in the senior management team. He is involved in that work on a day-to-day basis.

3

Railway safety came to the fore as a result of the Northern Ireland Railways-commissioned A D Little safety report. At that time the board was becoming seriously concerned about railway safety and hired external specialist consultants to prepare a report on the state of the railway. Our primary concerns, as the Committee knows only too well, were the state of the infrastructure and the rolling stock. In the report, AD Little, rightly, highlighted the fact that most of the legislation governing railway safety was out of date and related to the nineteenth century. Some 10 years earlier, the same could have been said of the railway in GB, but in anticipation of privatisation, all railway legislation had been brought up to date there. Enabling legislation was passed and successive legislation prepared. Our Department proposed treading the same path of passing enabling legislation and introducing secondary legislation in steps.

4

In response to the consultation, Translink proposed taking advantage of the body of legislation already in existence in GB and passing it all in one fell swoop as the quickest way of bringing Northern Ireland up to date, in other words, replicating the consolidated weight of railway legislation that exists in GB. That view did not prevail with the current Bill. Nonetheless, we have received a detailed list of the proposed further legislation, which takes care of our objections.

5

There are two other matters, which I would like Mr Mercer to speak about, to do with legislation relating to drugs and alcohol and the policing of the transport system. However, before that, I would like to mention a few other points for the Committee's benefit. We have good relations with Irish Rail. Northern Ireland Railways (NIR) and Irish Rail meet regularly to discuss safety matters, because there are issues of interoperation between the North and the South. The other organisation that uses our network is the Railway Preservation Society of Ireland. We are working with that body to draw up a network agreement, which, if successful, will enable us to allow it to operate on the network. There are technical difficulties, mainly to do with insurance, but they are being addressed. However, until they are resolved, we cannot let the steam trains run, which is a very great pity, but we are endeavouring to deal with those matters properly.

6

Apart from the current Railway Safety Bill, developments on railway safety are coming over the horizon in Europe, and a fresh Directive is emerging on that. Among other things, it will deal with interoperability; the issuing of safety certificates; the recognition of each other's safety certificates by member states; setting down rules for accident investigation and the creation of bodies to investigate accidents; and a whole raft of other issues. That Directive will not have a direct bearing on this topic - I mention it only so that the Committee is aware of it. That is the end of my presentation. Perhaps Mr Mercer may address the issues that I mentioned.

7

The Chairperson: Yes, indeed.

8

Mr Mercer: Mr Hesketh referred to drugs and alcohol and security matters. Translink would have preferred the primary legislation, or the regulations that are planned, to make provision parallel to that of the Transport and Works Act 1992 in GB, which requires railway operators to carry out drugs and alcohol testing. NIR has a voluntary agreement with the trade union on drugs/alcohol testing, and we do so regularly. However, we would be happier if that were enshrined in law, because if a case involving an employee were to arise, it could be challenged under human rights legislation.

9

This is an opportunity that is being missed. We all know the societal issues involved, and as we test for drugs and alcohol at all levels throughout Translink, we regularly have people who fail the tests. We are concerned about people driving trains or being in other safety-critical roles slipping through the net.

10

The other issue is security provision. Attacks on public transport are well documented and attract a high level of publicity. We prefer formal policing arrangements for the security of public transport. It is not just a matter of employee protection, though we are very mindful of that. This problem undoubtedly gives us added difficulties when recruiting people for public transport jobs.

11

It is also well documented that a lack of personal security is a barrier to travel, and particularly so for women and evening travel. We want a resource, and we are not particularly concerned about who owns it. Special arrangements already exist - the Harbour Police and the airport police, so it might be appropriate for "transport police" to police the transport system, perhaps a dedicated unit of the Police Service. Regrettably the existing resource cannot meet our needs.

12

The Chairperson: Translink was hoping for a more comprehensive and substantive piece of legislation dealing with railway safety, and you adverted to this in your response to the Bill to the Department and in your comments this morning. The Department is not minded to go along that avenue and will introduce secondary legislation and create enabling legislation through the Railway Safety Bill. Are you content with that or is it simply a fait accompli that you are prepared to accept?

13

Mr Hesketh: The Department is the responsible body, and it decides the approach to be taken. I am happy with what is being done as long as secondary legislation follows quickly. My only concern is that there will be lengthy delays. We have had meetings with the Department, and satisfactory indicative timetables have been proposed. Where appropriate we take the GB position as best practice and anticipate implementation of the law here. We do not rely on the fact that just because the law does not apply here, we do not adopt the policy. Translink adopts a best practice attitude to this.

14

We are working with the Department. Complex approvals are required to introduce new trains. The Committee may have heard stories of large number of trains sitting in sidings across the water because of technical difficulties with approval procedures. We have worked closely with the Department to ensure that does not happen here. We have developed an outline approval procedure that is unique to our circumstances with the Department's wholehearted co-operation.

15

The Chairperson: To summarise: you welcome the Bill but have some concerns about it; you are prepared to live with the Department's approach; and you believe that delays would not be damaging.

16

Mr Hesketh: They would not be damaging because of the attitude the company is taking in anticipating the legislation. However, I would be concerned if there were lengthy delays, and the sooner that secondary legislation is on the books the better for everybody.

17

Mr R Hutchinson: I was trying to read a document and listen to Mr Mercer at the same time, and that was not a good idea. My ears pricked up when you spoke about testing for alcohol and drugs. Are you less than satisfied with the procedure? What would you prefer to happen?

18

Mr Mercer: We are operating a voluntary arrangement at present. We have consulted with the trade unions who have accepted, in principle and for the benefit of public safety, that drugs and alcohol testing should be carried out. However, they have reserved the right, if an employee falls foul of that, as is their role, to support that employee. As there is no legal basis for the tests, someone could take a case against the company under the human rights legislation.

19

Mr R Hutchinson: Are you saying that there is no mechanism for testing Joe Bloggs before he gets on the train?

20

Mr Mercer: We have a voluntary mechanism for testing at recruitment and promotion.

21

Mr R Hutchinson: There is a voluntary procedure, but if a driver has been drinking or taking drugs, obviously he will not volunteer to take a test.

22

Mr Hesketh: It is very simple: if a driver refuses a test, he does not drive. However, this is a grey area - and the Chairman knows a lot more about it than I. If somebody wants to leave the premises without being tested, and we say that he cannot go without taking the test, that could result in accusations of unlawful imprisonment under the human rights legislation. Mr Mercer was trying to show how complex this is, and if that were in the legislation, it would be a great help to us as employers.

23

Mr R Hutchinson: Have you any figures to show how many drivers have tested positive or been over the limit?

24

Mr Mercer: No drivers have tested positive for drugs or been over the limit for alcohol. Some employees have tested positive for drugs, and many job applicants have tested positive for drugs.

25

Mr R Hutchinson: Have many drivers been on the borderline?

26

Mr Mercer: There is no borderline for drugs.

27

Mr R Hutchinson: I am thinking about alcohol.

28

Mr Mercer: We have not had that situation with alcohol. By and large we work with very responsible people, but the regime is important. If someone refused to take a test, Translink would discipline him.

29

The Chairperson: If a person refuses to take a test and, as a consequence, is told that he cannot drive on that day, surely there is an element of compulsion there that contradicts the idea that the test was voluntary.

30

Mr Hesketh: "Voluntary" came after the agreement with the trade unions, acting on behalf of the employees.

31

The Chairperson: The employee/management agreement is that there will be tests and if you refuse to take a test, you will not be permitted to drive.

32

Mr Hesketh: That is correct.

33

Mr Mercer: I have some statistics from recent recruitment for bus drivers, and they show that there is a problem. Out of 18 people who applied to become bus drivers, four people failed an initial driving test, and four people failed a drugs test.

34

Mr R Hutchinson: That is a high number.

35

Mr Mercer: It is very high. It is over 20%, but I am not saying that is typical.

36

Mr R Hutchinson: Is it correct that 20% of people who applied to drive buses were refused because they tested positive for drugs?

37

Mr Mercer: I am quoting the last assessment that we carried out with 18 people. That is not a normal figure with all applicants.

38

The Chairperson: Would you like some part of the primary legislation to deal with the problem of drugs and alcohol being used by employees and drivers in particular?

39

Mr Hesketh: We would like to see it flowing quickly, if it is not in the primary legislation. We are asking for legislative back-up for what is there by agreement with the trade unions. What we have is working well, but it is open to challenge, and that is where we could be in difficulty.

40

The Chairperson: This is a grey area, given the human rights legislation, and you could find yourself in difficulty. However, I want to put on record your preference that any measure dealing with this should be in the primary rather than in the secondary legislation, though it is all well and good if it is in the secondary legislation.

41

Mr Mercer: If it comes in a reasonable time, it does not matter which vehicle it comes through.

42

Mr R Hutchinson: I would like some clarification on the 18 applicants. When did this happen?

43

Mr Mercer: Within the last month.

44

Mr R Hutchinson: That is awful.

45

Mr McNamee: Mr Hesketh said that initially there were concerns that the Bill was not comprehensive, but that you have been provided with the detail of the legislation that will flow from it, and that eventually you will be satisfied.

46

Other submissions evidence highlighted concerns about the piecemeal approach to producing legislation. Among the concerns - although I do not advocate this - were the division of responsibility for infrastructure, services and rolling stock under a public-private partnership. Piecemeal legislation could make it difficult, in cases of joint responsibility for a service, to apportion responsibility after an incident, or to determine who is responsible for an investigation. Are you satisfied that the legislation that is proposed to follow on from the Bill sufficiently identifies accountability for incidents and responsibility for investigations?

47

In your initial submission, you stated that having viewed the approach of Irish Rail, a comprehensive Bill would be preferable to enabling legislation, which would be followed by other legislation. Given that Translink will operate a service in conjunction with Irish Rail, are you satisfied that the Bill, and the detailed legislation that will flow from it, is compatible with the Southern legislation?

48

Mr Hesketh: I will answer the last question first. There have been discussions between the two departments and the two operating companies. That aspect has been fully catered for.

49

The Bill does not anticipate every possible case in a privatised situation in Northern Ireland. A recent, stark example was the tragic accident that took place on Translink's Bangor line while it was in the full possession of a contractor. Questions arose about who was responsible for carrying out the investigations, which have now been satisfactorily resolved.

50

Mr Mercer: We have not yet seen the detail of the supplementary regulations. We have an outline of their aims, but Translink will need to see them in detail before it can be certain about them. We expect that the regulations would cater for the points that Mr McNamee raised. The Department is keeping us fully abreast with its thinking, and it is liasing with its colleagues in the Republic who are dealing with the legislation there.

51

Mr Savage: Were the 18 Translink job applicants who tested positive for drugs or alcohol consumption male or female?

52

Mr Mercer: I do not have those figures.

53

Mr Savage: Soon of the new trains that are to be introduced soon will travel much faster than existing stock. Are the existing tracks capable of withstanding those new trains?

54

Mr Hesketh: That is, quite rightly, an issue. Translink was allocated, from the Budget that the Assembly agreed on 18 December 2000, the resources to upgrade the core network to an adequate standard. That work is ongoing, as evidenced by the re-laying of the Bangor line.

55

Mr Savage: Has anything been done to eliminate disruptions, including hoax calls, of the service between Moira and Lurgan?

56

Mr Hesketh: Translink has launched several initiatives to prevent false security alerts; for example, it is working with local businesses to help community members to develop a sense of ownership of the railway company. In addition, it has worked with local elected representatives and has been helped by church volunteers. Hoax calls are still made, but, thankfully, on a smaller scale. It is hard to judge whether such initiatives are successful, but disruptions happen less often now.

57

Mr Savage: A good deal of work is going on to eliminate hoax calls, which were very disruptive, and the Chairperson has thanked Translink for its initiatives.

58

Mr Bradley: Mr McNamee asked the question that I was going to ask. In view of Translink's links with rail services in the South, was it invited to provide input to the Republic of Ireland's Bill on railway safety, and did it do so?

59

Mr Hesketh: It did not make a direct input. However, because of the close working relationship between the two operating companies, Translink and Irish Rail, officials in Dublin were fully aware of Translink's views and the relevant issues. Therefore, although Translink was not directly consulted, its views were taken into account.

60

Mr Bradley: It would be ironic if Translink's views were taken into account in the South, despite the fact that the measures that it wants introduced here cannot be implemented.

61

Mr Hesketh: In transport terms, there are no borders. To operate railways on both parts of the island requires a professional working relationship, and Irish Rail and Translink work well together.

62

Mr Bradley: We have discussed the trains on Translink's tracks a good deal, but I assume that the Railway Safety Bill applies to all Translink property. For example, Translink's safety measures at railway stations such as Newry leave a lot to be desired, although they are the best that it can provide at the moment. Would those aspects be dealt with under the Bill?

63

Mr Hesketh: Many of those matters would be covered by general legislation.

64

The Chairperson: Mr Bradley is asking whether rail companies' premises come under the railway safety legislation.

65

Mr Mercer: The safety case regulations will be key to the Railway Safety Bill. Those regulations will require Translink, or NIR, to make a risk assessment throughout its operations and state what steps are taken to remove, control or deal with any residual risk. Therefore, those issues will be dealt with in the safety case that Translink must build.

66

Mr Bradley asked about the relationship between Translink and Irish Rail. In order to make the partnership work, the safety case regulations will be the key regulations on both sides of the border. The train operating companies will be in close liaison with their respective Departments and with each other. Translink will be required, as a train operator, to prepare a safety case to respond to the Irish legislation, just as Iarnód Éireann will be required to prepare a safety case to respond to ours. Close liaison will ensure that the process is seamless.

67

The Chairperson: Does the same requirement to provide a safety case apply, North and South, in both cases?

68

Mr Mercer: Yes.

69

The Chairperson: One would assume that the same criteria would underline each safety case, North and South.

70

Mr Mercer: The detailed regulations are not yet available, but both Departments are working on them, and both operating companies are working to ensure that co-ordination.

71

Mr R Hutchinson: We all want the highest standard of safety - that goes without question. How can we accommodate preservation societies and steam trains? Mr Hesketh, you and I travelled from Larne to Belfast on those trains when we were weans. How can we help those societies?

72

Mr Hesketh: The safety case concept applies to anyone who operates over the Northern Ireland Railways network, of which Translink is the custodian. The Railway Preservation Society of Ireland (RPSI) must satisfy Translink that it can operate safely. That is not simply a theoretical exercise. A historical train was derailed during my time as managing director, and that alerted us of the serious issues to be considered. Translink has been working with the RPSI for a long time to reach an agreement that will enable its trains to use the network. The process has involved both parties taking advice on the safest speeds at which to operate old trains and carriages.

73

Mr R Hutchinson: Is it possible to accommodate those trains? I would hate it if the steam train were to cease to operate. They work on a limited timetable, but it would be sad to lose them. Can an accommodation be reached between the preservation societies and Translink?

74

Mr Hesketh: I hope so, and, although certain constraints may have to be placed upon their operation, the RSPCI could live with that. On the mainland, most preservation societies' trains operate on closed lines. The RPSI does a good job, and it maintains people's interest in vintage rail travel - a bit of nostalgia does us no harm. Translink wants to reach an accommodation with the RSPCI, and it is working towards that.

75

Mr R Hutchinson: Is it the case, therefore, that the only obstacles to the RSPCI's operation are the minimum safety requirements? Could you confirm that Translink will work with the RSPCI, as opposed to pushing them aside?

76

Mr Hesketh: No, that is not the situation. The management team wants to maintain the preserved railway.

77

Mr R Hutchinson: Can I quote you on that, Mr Hesketh?

78

The Chairperson: It is on the public record.

79

Mr Savage: I love trains, and I take every possible opportunity to mention to Translink the need to develop the Belfast to Dublin line. Although there is no chance of getting a direct line to Banbridge, the stop at Scarva, which is only one mile outside Banbridge, could be upgraded to allow passengers to board trains for Dublin or elsewhere. Translink should explore that opportunity to promote the rail network.

80

The Chairperson: Are you thinking about the introduction of a park-and-ride scheme at Scarva?

81

Mr Savage: Such a development would enable passengers to travel to and from Scarva to Dublin, at a cost of up to £65 return. Translink should not miss that opportunity.

82

Mr Hesketh: I will bear that in mind. At present, Translink wants to provide 150 to 200 car parking spaces for Lisburn rail station, specifically for park and ride passengers.

83

Mr Savage: Can I quote you on that?

84

Mr Hesketh: Yes. We are on record.

85

Mr Savage: That opportunity is waiting to be developed.

86

The Chairperson: Mr Mercer mentioned that new European Directives on railway safety might be introduced in the near future. Might we have to review the Railway Safety legislation, once it is enacted, in the light of European Directives?

87

Mr Mercer: There might be a need to introduce additional regulations through the Railway Safety Bill. Our department will pick up the many European issues that will emerge over the next few years, and it does so at present.

88

The Chairperson: Can the Committee do anything in anticipation of those changes?

89

Mr Hesketh: The White Paper entitled 'European Transport Policy for 2010: Time to Decide', which comprises what is known as the railway package, contains five proposals, one of which relates specifically to a Directive on railway safety. I will leave samples of that with the Committee Clerk. Although the Department has examined the proposal in anticipation of its introduction, it is a fresh development, therefore no one will have had sufficient time to scrutinise it thoroughly.

90

The Chairperson: That would be helpful. You said that security on trains could be maintained by either a dedicated unit of the PSNI or a transport police. What would be your preference, and would such provision be necessary?

91

Mr Hesketh: The question of security provision refers to both buses and trains, and it is not unique to Greater Belfast. We must do something. Translink is having difficulty in coping with the increasing number of incidents and their growing seriousness. Great Britain has a transport police service. Translink has no strong view on how the resource should be provided, but it is certain that an additional resource is needed to "police" the transport network.

92

The Chairperson: If a transport police service were introduced, would they be under the authority of Translink, or an independent body?

93

Mr Hesketh: That is for others to decide. A consultation paper on the issue was published in Great Britain recently. It seems to favour the introduction of a separate arrangement, similar to that of the Police Authority. I would be happy to forward copies of that paper to the Committee Clerk.

94

The Chairperson: You have adverted to this problem in the context of your consideration of the Railway Safety Bill. Should the Committee examine the matter now, or are you merely signposting it?

95

Mr Hesketh: We are signalling that a problem exists. If it were decided that transport police were needed, legislation would be required to regulate that provision. However, that could be introduced much later.

96

The Chairperson: Are you happy that the Bill would cover cases where subcontractors are working on the railway service, and that those subcontractors would be obliged to adhere to the safety standards that the railway operator will establish?

97

Mr Hesketh: The safety-critical work regulations cover those matters; they will be dealt with in the secondary legislation. In our original submission, we identified that as the most urgent piece of legislation to be introduced.

98

The Chairperson: Are you content that that will be dealt with under the safety-critical work regulations?

99

Mr Hesketh: It will be subject to a study of the details. The advantage of doing that as the Department has chosen is that we will have more time to look at the details. There are swings and roundabouts in the approach that has been taken.

100

The Chairperson: I would like to tease that out a little further. There was a tragic incident recently in which a contract worker was killed. I will not go into the detail of that incident, as it is still under investigation. One would assume that under the safety-critical work regulations, a subcontractor carrying out work on a railway track, which involves the operation of the railway track, would be responsible. Would the subcontractor be obliged to provide a safety case before he carries out that work?

101

Mr Mercer: The safety case regulations would oblige subcontractors carrying out significant-sized work to provide a safety case. All work would have to go through a safety assessment process, whereby safe working practices would be agreed.

102

In future such an incident would come under different regulations. At present it is dealt with under the Health and Safety at Work (Northern Ireland) Order 1978.

103

The Chairperson: There would be separate, discrete, secondary legislation to deal with such situations.

104

Thank you for attending today's Committee meeting.

Wednesday 6 March 2002

Members present:
Mr A Maginness (Chairperson)
Mr Bradley
Mr R Hutchinson
Mr McNamee
Mr M Robinson
Mr Savage

Witnesses:
Mr J Glendinning ) Railway Preservation Society of Ireland

105

The Chairperson (Mr A Maginness): Mr Glendinning, welcome to our meeting about the Railway Safety Bill. We are interested in hearing your views about the position of heritage societies in Northern Ireland.

106

Mr Glendinning: We have outlined some concerns to the Department. One of them is the cost involved. We have to produce a full safety case for operations, and we are not quite sure what it will contain. Obviously, we will have to employ a consultant to vet our safety case and present it, and consultants are not generally cheap.

107

Another concern is whether we will be able to continue to operate heritage trains. I hope that we will. We have co-operated well with Northern Ireland Railways (NIR) in the past, which has always been a good friend to us, so I hope that we can negotiate with it again. We also operate short train rides at Whitehead, and they would have to be included in our safety case.

108

At present, we are writing a safety case for our Southern operation. We hope that we will only need to write one safety case. If we have to write two, there must be something wrong. That is our immediate concern, but we are starting to write it.

109

The Chairperson: Are you writing the safety case for CIE or Iarnród Éireann?

110

Mr Glendinning: We are doing the groundwork for both jurisdictions at present.

111

The Chairperson: You would assume that both cases would be the same. Mr Hesketh said that the safety cases would be the same for both jurisdictions.

112

You are concerned about the cost of implementing the safety cases. I am afraid that the Committee cannot reassure you on that. The Department and NIR must deal with that. However, the Committee can note your concerns, because an excessive financial burden on the Railway Preservation Society will make the operation of heritage railways impossible.

113

You are concerned also about how far your safety case would need to go to satisfy NIR. You seem to be hoping for some sort of exemption or to be able to make a more limited safety case, is that correct?

114

Mr Glendinning: When we first read the consultation document we noted the word "heritage" and the exemption clause, so we asked where our organisation stands. Is it a heritage operator with a case for an exemption, or must we write a full safety case or just a risk assessment? We suspected that we knew the answer to that, but we needed clarification. We must produce a full safety case because we operate on the main line, as I understand it. However, that case must dovetail with NIR's and Irish Rail's safety cases. The case that we are writing for the South dovetails very well with Irish Rail's safety case. We have not met with NIR yet to discuss its safety case. There is an interface between where NIR ends and the Railway Preservation Society begins, but there is a grey area in the middle, which is dangerous.

115

The Chairperson: Right, but there will be no exemption for the Railway Preservation Society?

116

Mr Glendinning: No. We cannot see that happening.

117

The Chairperson: I would have assumed that risk assessment was part of the safety case, is it not?

118

Mr Glendinning: Yes, it is.

119

Mr R Hutchinson: With the best will in the world, Mr Glendinning, no one can argue for safety exemption, because safety is of paramount concern to us all. However, I was very encouraged by NIR. You may have heard me challenge Mr Hesketh twice. NIR is willing to meet you and be helpful, so surely you can meet in the middle and come up with some sort of package, albeit limited, that will fit the railways. In England most of the heritage lines are not main rail lines, so perhaps that is why they can get away with more than your society can. I was very encouraged by what Mr Hesketh said.

120

Mr Glendinning: I was encouraged too. The only thing that I would take up with him is that he said that steam railways are limited. There are many main-line steam operations in GB, but they work differently. In GB the rail system is split up into different groups: the train operators and Railtrack. The steam-train or heritage railway operators who operate on the main lines use one or two particular train operators to run their trains. In a sense we are negotiating with both the rail operator and the train operator, because NIR does both. The Railway Preservation Society would not be where it is today without the goodwill of NIR, and I have no reason to believe that that is not still there.

121

Mr Hutchinson: And you will work on that?

122

Mr Glendinning: Yes.

123

Mr Savage: How many trains does the society have?

124

Mr Glendinning: We have nine steam locomotives and 33 carriages.

125

Mr Savage: How far can they travel?

126

Mr Glendinning: They can travel on any gauges of 5ft 3in, if there are no restrictions where the line has been regauged to a different size. I do not mean the gauge between the rails; I mean the gauge of bridges or platforms that have been modernised in some way that means that we can no longer operate on the line. So far we have been able to. The speed of other trains is the only problem.

127

Mr McNamee: Have you estimated the cost of preparing and implementing a safety case?

128

Mr Glendinning: We have not progressed that far yet, and we do not know exactly how much it will cost, because we must find a consultant. We are hoping that the Heritage Railway Association, which is an umbrella group for railway preservation societies, will be able to provide us with expertise, and we are hoping that it will not be as expensive as it might be otherwise. If it cannot provide us with that expertise, we will have to go shopping for it elsewhere in the UK. It is the same in the South, and the legislation is slightly different there. Private railways must produce a full-blown safety case, and they are in the same boat as we are. Consultants exist, but I do not have the costs.

129

Mr Bradley: We all agree that there can be no concessions on safety. However, with regard to the risk assessment, we could take a leaf out of the book of those who do risk assessments for vintage and classic cars. Insurance companies, for example, treat them with a degree of tolerance, and they do not give away money. I do not know how the case was made for vintage and classic cars, or what governing bodies made the case, but surely the same type of rules would apply. Any risk would be less, although there can be no concession on safety.

130

Mr Glendinning: The insurance premium would obviously not be as high. Compared to NIR, we operate only 20 or 30 trains a year, so our insurance is lower. However, a risk is a risk, and it is the same whether you have one train or 2,000, so to minimise that risk you must address it.

131

The Chairperson: Thank you very much. It has been helpful, and if in the course of your investigations you get any further information that you wish to convey to the Committee, we will be happy to receive it.

132

Mr R Hutchinson: I wish you well in your endeavours. Keep up the good work.

Wednesday 20 March 2002

Members present:

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

Witnesses:
Mr P Rayner ) Consultant

133

The Chairperson: At today's meeting the Committee will take oral evidence on the Railway Safety Bill from departmental officials and Mr Peter Rayner. Mr Rayner, whom we will hear from first, provided Transport 2000 with his views on the Railway Safety Bill consultation paper, as Transport 2000 does not have sufficient expertise in the area of railway safety. Mr Rayner is not a member of Transport 2000; however, it was agreed to call him as a witness to give his comments and share his expertise in the field. His curriculum vitae is included in your papers.

134

I have great pleasure in welcoming Mr Rayner, who has just got off the plane and has arrived here very quickly. We look forward to listening to what he has to say. You have already advised Transport 2000, and we have received their documentation, and we also have the letter you sent to our Assistant Committee Clerk. Perhaps you would like to make some opening comments, after which we can ask questions.

135

Mr Rayner: I am sorry I was late - I was delayed at Heathrow. In my second letter to the Committee staff, I stated that I would not need to add to what I had said to the Railway Development Society. However, when I read Mr McKenna's opposite opinion, I thought it would be helpful to the Committee to pick up on Mr McKenna's views and put my thoughts against them.

136

British Railways, which I knew very well and for whom I worked, was fragmented by hasty legislation at the end of the then Government's life, and introduced a system that relied heavily on safety cases. In that situation one was obliged to obey the rules that were laid down, and to ensure that a good system was in place. Then, once the responsibility for the safety case was yours, there was always a danger, as has happened in Britain, that people would not carry out what they promised to do in the safety case. This is the way that British Railways was privatised - and that is not an anti-privatisation remark. Had it been done in a geographically logical way, with a vertical chain of command and retaining the fat controller - in a "Thomas the Tank Engine" sense -, it would have been perfectly safe. However, the Government relied on safety case arrangements and fragmented the system. The vertical chain of command was replaced with approximately 1,000 legal contracts. With respect to the lawyers in this room, the only people who really benefited from the privatisation of British Railways were the lawyers, because we have had a succession of litigation following the accidents.

137

After reading the initial Bill, I was worried that Northern Ireland was moving towards safety case regulations, purely because that system existed in Britain. However, it only exists there because we have made such a muddle of our railway system. It does not exist anywhere else in Europe. So you really are finding a remedy for something that is not flawed, unless you suddenly do to Northern Ireland Rail (NIR) what has been done to British Railways - put your maintenance into contractors' hands, which then get sub-contractors and sub-sub-contractors, and the result is this business of a joint inquiry. When I spoke about the Paddington accident, 10 QCs cross-examined those who gave professional evidence, and that went on for nearly six months.

138

Northern Ireland has a small and understood railway, which I know quite well - I worked here a long time ago, but I was here for some time - and my real point to Dr Fawcett was, "If it is not absolutely necessary, do not change it. If it is necessary, do not introduce a fragmented system that relies on lawyers each time there is any difference of opinion". I have also said, in my letter to you that I do not agree fully with Mr McKenna's view.

139

Córas Iompair Éireann (CIE) is not introducing this system - yet there is a border crossing much the same as the Eurostar, which goes from Waterloo to Brussels and Paris. The Eurostar travels between two member states four or five times a day -so does the Enterprise. Therefore, I do not accept Mr McKenna's point that this is necessary to be in tune with European law. I believe that theory to be wrong. CIE will not do it, and neither will anybody else in Europe, because they do not have to.

140

The Chairperson: I want to clarify what you are saying. We can clearly see the fragmentation of the railway system in Great Britain. The one good thing here is that, although our system is very small, it is not fragmented. We have a unitary transportation company in public ownership, which is an advantage. Given those advantages, how would you approach legislative change to bring about railway safety?

141

Mr Rayner: Providing you have organisations in place, you can bring in the instructions. One good thing about privatisation - which has come about through accidents - is that it has forced people to adopt proper group standards, which people have to work to. There were group standards in the old railway system, but they were there merely because most of its employees were time-servers. Even when I worked for NIR, most workers were time-servers. Railway people tend to work a lifetime. Therefore, some of the things that are now written in tablets of stone were often unnecessary.

142

If there is a need to change there should be carefully written group standards, as one organisation does not necessarily need safety cases between each department. For example, safety cases are there because Balfour Beattie may wish to negotiate with Railtrack. I shall take the Paddington accident as an example. Railtrack owned the infrastructure; the signalling was maintained by another company; one train was owned by another company; the stock by a third. At the time of the accident, there was no vertical chain of command. Each company had group standards, but they all then retrenched behind lawyers, and Railtrack often retrenched behind its share price. It became a muddle, and is not necessary unless there is fragmentation.

143

If you change, you will need correctly documented safety group standards, which previously existed. The rulebook here is similar to the rulebook in Britain but is now encapsulated in a group standard. However, it is still the rulebook. Provided those standards are put in, I would merely alter the documentation. Mr McKenna quite correctly refers to Her Majesty's Railway Inspectorate (HMRI), which is part of Health and Safety Executive (HSE). They are the means by which your safety can be monitored. In Britain safety failed after privatisation because people were not doing the job properly, so the HMRI had to start issuing instructions. That is rather like the referee kicking the ball - once he does that he is no longer the referee. HMRI got into trouble over Paddington because it had issued instructions - it had become involved in the game, rather than standing off. I have doubts about the resourcing of HRMI, but, if it were properly resourced, there is no reason why HMRI could not monitor the way in which the railwaymen run the railway here. I shall choose my words carefully, but when I came here in 1981 the railway inspectors were Lt Col Townsend- Rose, Major Olver and others, and the inspectorate was "army-organised". It was decided that this was inappropriate, and I came here to monitor as a railway officer rather than as a military officer. Essentially, I was not here as part of the HMRI, but in that role.

144

Provided an inspectorate can monitor it, and your rules are right, what I found worrying about your legislation was that you believed it necessary to introduce the safety case to cover the cracks of fragmentation. If you are careful you will not fragment, and safety case will not be necessary. If I may quote from my letter to the Committee,

"Reference to contractors is made in Mr McKenna's 6th paragraph on page 2. This to me seems the one real reason for the NI DRD wanting to adopt a GB safety case regime. Do they want to privatise infrastructure maintenance? Here lies, in my view the nub, for a lot of money can be made by contractors, in property alone. May I suggest consideration is given to what has happened in Great Britain."

145

There is no doubt that the Hatfield crash was caused by a mismatch between the track owners and the contractors. Mr McKenna implies, and I may have misunderstood him, that you are considering putting your maintenance out to contractors. If you do that, you will need safety cases, and you will be in a situation where that contractor may subcontract and subcontract again.

146

Mr R Hutchinson: I understand the difficulties. We have all travelled on the railway in England and have seen the mess it is in. With our system being so small, would we necessarily experience the same difficulties if we went along the road taken by the UK? I do not want to use the wrong word, but with the system being so small are you not being over-alarmed?

147

Mr Rayner: I hope not. It is true that the rail system is small - I know it well as I worked on it and have great affection for it. It may be sufficiently local for the contractors. However, there must be clear-cut legal boundaries for work that goes out to contract, otherwise a contractor could put somebody on the track who is not capable of looking after his or her own safety. If that person is knocked over, many things ensue. It is a possible point of view. As the network is small and compact, it may well survive without the shambles that has happened in Britain. As I said in my letter to the Committee, there is no point in changing the system - if the bicycle is not broken, it does not need to be fixed. The safety case approach is only used if the work is to be fragmented.

148

The Chairperson: Returning to my original point, if the safety case approach is not used, what other approach do you suggest? We have a fairly centralised management structure, with quite transparent management control and so forth. What alternative is there to the safety case approach? I thought that the safety case approach was simply a model where certain criteria were applied to ensure that train travel was safe.

149

Mr Rayner: The safety case approach does not ensure that. It ensures that everything is properly documented when something goes wrong. The problem is that auditing is required. If you and I were operating together, I may decide to operate a safety case between us. Unless a third party actually monitors that we are doing that, the safety case is valueless. The safety case is no better than a good vertical chain of command with sensibly documented rules. Somebody is still needed - whether it is the HMRI or somebody else - to audit that you are carrying things out.

150

One of the difficulties that resulted from Paddington - and this comes from CIE as well - is that there is a danger, because of the shortage of drivers, that drivers have not gone through exactly the same rigorous apprenticeship that train drivers the world over traditionally went through. The young driver who died at Paddington was not to blame because the signalling was not good - but he was woefully lacking in experience. The safety cases all said that the drivers would be adequately trained. It is easy to write the safety case, but machinery needs to be in place to monitor the way that role is performed. Audit and inspectorate organisations are needed whether safety cases are applied or whether you rely, as I do, upon the vertical chain of command.

151

The Chairperson: I want to follow up on that point, and then I will let other Members ask questions. Are you saying that irrespective of the safety case, an audit body is required?

152

Mr Rayner: Yes.

153

The Chairperson: My understanding is that HMRI carries out auditing under this system. Is that correct?

154

Mr Rayner: The inspectorate is one stage away from the auditor. We used to audit in-house at British Rail, but that cannot be sustained in today's society. Auditing must be independent. Railtrack Rail Safety, an auditing body that was part of Railtrack, has been brought back. However, HMRI stands above that. The Health and Safety at Work Act 1974 now places enormous responsibilities on employers, which the Health and Safety Executive implements.

155

The Chairperson: Under the system proposed in the Bill, who would carry out the auditing?

156

Mr Rayner: That was my initial question to Dr Fawcett. It does not mention that in the Bill.

157

The Chairperson: Are you worried that there does not appear to be an independent body for auditing safety?

158

Mr Rayner: If there is an independent body, it is not mentioned.

159

The Chairperson: That is useful to know- we can ask the Department's officials about that aspect of the Bill.

160

Mr Rayner: I believe the Committee will want to know who will award the safety certificates, but it does not state who will perform those roles. The roles spoken about are admirable, but it does not state anywhere who will perform them. That brings me back to the point about whether the roles have to be performed in the first place, because you do not need to break up the network.

161

Mr McFarland: With your experience of Northern Ireland Railways, presumably the maintenance work is currently carried out in-house. As this is a small railway network, and given the way that maintenance is going generally, part of the logic is that it will be an expensive luxury to have a fully trained, fully operational team of people sitting about when we get our railway system improved. If the network is bad, there will be a lot of maintenance, but if we have all our lines relaid, which is the plan, then that level of activity may be questionable. This is looking ahead to a time when it may be cheaper to contract-out rail maintenance rather than keeping an in-house team, which seems to be the reason that the Department has for keeping that option open - presumably not tomorrow, but sometime in the future.

162

Mr Rayner: That may be the case. There is not much doubt that the Treasury certainly welcomes the privatisation of maintenance or the whole job, as there are always savings to be made by hiving it off. In theory, the Treasury saved money when maintenance was given out to large organisations such as Balfour Beattie and others- reputable engineering firms. Many things went with that including properties. I do not know the position in Belfast, but you will probably not be short of people wanting to be contractors for the same reason that money can be made from it. I do not know whether that saves the state money, but the Treasury - and I keep coming back to British Rail because it is the same Government and the same thing happened - undoubtedly saved a lot of money to start with. It now costs the taxpayer much more, because more subsidies go into the railway now than when it was nationalised. I shrink from making a political statement because I do not belong to a political party, but there is no doubt that it appeals to the Treasury to privatise and to hive things off. However, I would say that you only have to start killing people in minimal amounts and your savings have gone.

163

If the network is sufficiently small, and well monitored, you may get away with having a contractor who you have your finger on. The Bill does not tell you how you will get your finger on the contractor - you must find that out, but you need an audit mechanism and a strong, sufficient HMRI. One of the problems in the Paddington accident was that HMRI was insufficient - they had not inspected the signalling. I do not know how you will get HMRI to Northern Ireland when it cannot even inspect the signalling in England.

164

Mr McFarland: In England the track was sold off to Railtrack -they subcontracted the maintenance, which was then subcontracted again and again. If we were to keep the ownership of our system, and decided to use contracted maintenance for a particular length of rail, for example the Belfast to Bangor line, then presumably, as part of a contract - without legislation - we could write in safeguards or agreements for that particular job, for the length of the contract.

165

Mr Rayner: It is a safety case.

166

Mr McFarland: That is so. However, it does not need to be law. It could be part of the contract that is organised with the contractor. The deal would be that we want the contractor to carry out maintenance for five years on a rail line. We would write in the standards and rules of the game as part of the contract for that period, rather than putting a catchall into legislation. However, if you wanted a mass maintenance, or wanted to sell the track off, you would have to have rail safety cases. Can you have a rail safety case for individual contracts, rather than having to have it in legislation?

167

Mr Rayner: I have never thought of it like that, and I probably will not give you an adequate answer because it is not something that I have applied myself to. If you retain the ownership of the infrastructure, one legal part is taken out because you own it, and it would be simpler. One of the problems that Railtrack faced was that they only owned a part, and that is a difficulty you could draw into this. You can be the owner of the infrastructure, and hive off your maintenance to someone else after you have set out what you want him to do. You can do that, but unfortunately this is not what Railtrack did. Would you still retain the right to in-house engineering expertise to make sure that the contractor was doing it properly? In Hatfield the contractor was given a portion of line and told to maintain it to the specified standards. However, Railtrack did not retain in-house engineering skills. Therefore, when the Hatfield rail accident happened, we had 20 miles per hour speed restrictions placed on the entire railway network, which were, for the most part, unnecessary. It was not because the railway was unsafe, it was because they did not know, and they did not have records. Therefore as owner of the infrastructure, you have to be sure that you are not violating your ownership by not having records of what the contractor was doing.

168

Mr McFarland: If we contract out to a contractor, we need to have some form of inspection. However, it would not necessarily have to be in-house, as long there was an independent contract with an inspector to check what the contractor is doing. I appreciate that this is all hypothetical. However, it helps us to understand the rules of the game surrounding this and what the possibilities are, and to understand why the Department have constructed the legislation in this way.

169

Mr Rayner: If it is properly documented, with sufficient detail and in-house expertise, there is no reason why you cannot do it in the way you suggest. My view is that you are going down a road that you need not go down if you are not fragmenting your railway. These contracts are nowhere else in Europe. The Republic of Ireland, the French and the Germans do not have them, and they are supposed to be part of EU legislation. There is a little misunderstanding on what we are obliged to do under European law, of which I am not an expert. However, I tentatively disagree with Mr McKenna's remarks in his letter, and I think that that ought to be checked.

170

The Germans have split up their system more than you propose to, and they have a larger system, with interregional and intercity trains, and the U-bahn subway. They have different parts, yet they do not have anything like this safety case because Deutsche Bundesbahn still retains the vertical chain of command. The fat controller from 'Thomas the Tank Engine' is the best example - he is not always right, but he is always the fat controller. I do not wish to be frivolous Mr Chairperson, but it is a description that we can all understand.

171

Mr Hay: What you have said has been useful, and has given the Committee food for thought about policing whatever safety regulations will be introduced now and in the future. You mentioned Her Majesty's Railway Inspectorate and some type of independent audit. What would be the Department's role in that?

172

Mr Rayner: I do not know, and it is something I questioned in the original document. Who would the Department for Regional Development approach for expertise? The Department could take on the role, however, it would be most unlike the Civil Service to take on that type of responsibility - and I do not mean that as criticism. An independent audit could be undertaken, and there are firms in Great Britain - and there may well be firms here - with sufficient expertise to carry out such an audit.

173

I do not know what the Department's role will be. I was a little tongue-in-cheek originally, and in my follow up, because I do not think they have thought through the "how" in this. There has always been a tendency to slavishly follow the mainland example. When I was here in 1981 there was talk about restructuring Northern Ireland Railways based on what was then called sector management. We had difficulty stopping people doing something merely because it had been done on the mainland. That is not necessarily right - in fact, in this case it is manifestly wrong.

174

Mr Hay: The Committee needs to tease out what is best for Northern Ireland, what works, and ultimately what role the Department for Regional Development should play.

175

Mr Rayner: If they are brave and honourable they should have sufficient expertise in their Department to set standards and play a role. One problem we faced in England was that the mandarins in the Department of Transport, Local Government and the Regions are the same people who are now taking everything to bits and starting over again. They are supposed to be non- political. The Civil Service has a lot to answer for in these reorganisations, and it must take some responsibility. I do not know how it could be achieved in the Bill, as I am not a legislative expert - I am a simple railway man and I have worked for the railway all my life.

176

Mr Hussey: Is it correct to say that you do not have a problem with contracting out provided it is properly policed?

177

Mr Rayner: I do not have an ideological objection to state or private ownership.

178

Mr Hussey: Given the critical mass of our system, contracting out may be a necessity. The Royal College of Surgeons, for example, would say that there has to be a minimum number of operations to retain expertise. With a small railway system such as ours it is very hard to have the rollover of casework needed for a contractor to retain expertise. Contracting out can be a logical and safe option provided that the policing of the system is correct.

179

Mr Rayner: I agree, provided that policing of the system is impartial and some of the loose ends in the initial legislation are tied up. The Bill does not specify who will set the standards - it is imprecise. If we go down the road of private maintenance, rigorous standards must be set and the system must be policed to ensure that the owner of the infrastructure is held responsible. Accidents will happen, so a system must be put in place. If it is done properly, nothing will go wrong.

180

Mr Hussey: Mr Hay tried to tease out the departmental position. In your response, you said that railwaymen understand railways and departmental officials do not.

181

Mr Rayner: That is true.

182

Mr Hussey: I can understand the logic of the statement. Those who work with the system understand it. Strabane was a railwayman's town, where sons would follow their fathers into the trade, but that does not happen so much now.

183

Mr Rayner: My criticism of legislators was tongue in cheek because I am not a legislator. They may have ways of including certain things in the Act that I do not know about.

184

Mr Hussey: In your response, do you agree with Mr McKenna about the lack of expertise in HMRI or not?

185

Mr Rayner: There are not enough resources in HMRI.

186

Mr Hussey: So, do you agree with Mr McKenna?

187

Mr Rayner: Yes, but he says that he will provide HMRI with adequate resources. However, even Mrs Dunwoody, for whom I have the greatest respect, rebuked HMRI for its lack of resources. Civil servants who appeared before Ms Dunwoody's committee received a fairly short shrift for that reason. Her Majesty's Railway Inspectorate has become muddled, and the old fashioned inspectorate has been destroyed. It was removed from the Department's remit and became the responsibility of the HSE. I suspect that was done to reduce ministerial responsibility for railways. The expertise became diluted because there were fewer railwaymen and more HSE safety inspectors involved. I agree with Mr McKenna if he is saying that there is insufficient HMRI staff and a lack of knowledge in the Department, and that must be put right if the situation is to change.

188

Mr McNamee: This is a difficult subject, and I want to tease something out for my own understanding. You are saying that a contractor or subcontractor presents their own safety case system for approval by the owner/operator. Following approval, the contractor self-regulates the implementation of the safety case system, which leads to a breakdown in the vertical chain of command because each contractor, once their safety case system is approved, self-regulates. You also said that we do not need the safety case system unless the network is to become fragmented. In the initial presentation of the Bill, mention was made of legislation to allow more public-private partnership (PPP) arrangements for transportation systems in the future. Could a safety case system be satisfactorily adapted, if the Bill identified a mechanism to make provision for an independent audit system - identifying the body responsible for monitoring the implementation of safety cases?

189

Mr Rayner: Safety case systems have been proven to work. The safety case regime was introduced following the inquiry into the Piper Alpha disaster, chaired by Lord Cullen. The regime works very well, but it works best for infrastructures that are centrally regulated, rather than fragmented. One of the problems with the safety case system on the railways is that railways always move about. There is a safety case, but a driver books on in Belfast, is in Connolly Station at lunchtime, and back in Belfast in the middle of the afternoon, so his safety case is much more elastic. Safety cases tend to work extremely well on oil rigs, for example.

190

The answer to your question is "Yes", providing they are properly put in, monitored and documented, and with systems that could report back - statistical systems that would satisfy the politicians that the railways were safer. Anything is possible, but I am not sure that money would be saved. Most things start because people want to save money - they do not start because people want to make the railway better. To some extent the Committee is not doing this exercise to make the railway better; you are doing it because someone said that it must be done, and, probably it will eventually be a less expensive way of running it. It depends what lies behind it all. There is no doubt that John Major's Government privatised the railways very quickly at the end of their term. It was done hurriedly and there were gaps in the legislation. If it can be done in a better way here, then all things are possible.

191

Mr Savage: You state in your letter that the safest and most efficient railway is a geographically logical railway with a vertical chain of command running right through it. That is all very well, but we are living in the real world. What changes should be made to our railway system to bring it into line?

192

Mr Rayner: Money must be spent on modernising the equipment. It is a small and important system, with the Enterprise as an important link with Dublin. I do not think that much needs to be done with the structure, but money needs to be put in. There should be adequate professionally trained staff to operate it, and an inspectorate above that. There is not a lot wrong with Northern Ireland Railways - it is not big enough to fragment.

193

I say geographically logical because I believe that John Major thought he was bringing back the old Great Western Railway when he privatised the railways. He said that many times when he was Prime Minister, but he did not bring it back. Instead, he gave the fast trains to one company, the slow trains to another, and the freight to another. He gave the track to Railtrack, the signalling to somebody else to maintain, and someone else owned the coaches. Now the Government are talking about putting back geographical logic - and I confess to being part of that debate. There is nothing wrong with a private railways providing it is geographically logical and we all know who the governor is. Northern Ireland has a system that knows who the governor is because it is a small railway. When I was here Sir Myles Humphreys was chairman of NI Railways Co Ltd, and Roy Beattie was the chief executive. It was a very understood vertical chain of command. Do not throw that away unless you have to.

194

Mr R Hutchinson: You have thrown light onto areas that have been very dark, and where people did not know what they were talking about. You have helped with that. If the British Government had had their way, they would have closed our system down completely. The Department for Regional Development is 100% behind the railway system and maintaining it.

195

By way of clarification, if I am correct in your interpretation, you are actually saying that within our structure - our small network of management and drivers - we have an expertise that could maintain a safe and profitable railway network? Are you saying, "If it is not broken, do not try to mend it"?

196

Mr Rayner: That is what I am saying, and the railway here has a depth of expertise. This NIR tie was given to me 20 years ago in this city, and I wear it with pride.

197

You mentioned profit, and I am unsure whether there is much profit in any area of the railways. A good thing about a state-owned railway is that the profitable parts can help to subsidise the non-profitable ones. If there were conurbation flow into Belfast, the railways would not be profitable because it would essentially be a peak time service. However, if the Enterprise service is made to work profitably, it will turn over money. Therefore, the profit from that service could go towards local services. When railway services were fragmented in Britain, some people made a lot of profit, and others made losses. Therefore, a railway may not make profit quickly, but it is environmentally sensible.

198

The Chairperson: Thank you Mr Rayner. Your presentation has been helpful and worthwhile. I wish you a safe journey.

Wednesday 20 March 2002

Members present:
Mr A Maginness (Chairperson)
Mr A McFarland (Deputy Chairperson)
Mr W Hay
Mr D Hussey
Mr R Hutchinson
Mr P McNamee
Mr G Savage
Mr M Robinson

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

199

The Chairperson: 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?

200

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

201

The Chairperson: 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.

202

Mr Aiken: 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. Therefore, it is our intention to continue with an integrated system.

203

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, and it sets out how those risks will be managed and 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.

204

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.

205

The Chairperson: So, there is no substantive difference between the Republic and Northern Ireland if the Bill were to be passed.

206

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?

207

Mr Aiken: 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.

208

Mr McKenna: 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.

209

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 also be assessed as competent to carry out that level of work.

210

The Chairperson: Who would conduct the audit? Who would these independent bodies be?

211

Mr McKenna: There are a range of people. AD Little was mentioned.

212

The Chairperson: There are agencies.

213

Mr McKenna: They would be described as consultancy bodies.

214

Mr R Hutchinson: 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?

215

Mr McKenna: Potentially, yes.

216

Mr R Hutchinson: That does not give us much confidence, does it?

217

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

218

Mr R Hutchinson: 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.

219

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

220

Mr R Hutchinson: Is that not irrelevant?

221

Mr Aiken: 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.

222

Mr R Hutchinson: 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.

223

Mr McKenna: 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.

224

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

225

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

226

The Chairperson: 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?

227

Mr McKenna: 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.

228

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

229

Mr McKenna: 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.

230

Mr McFarland: Our legislation needs to be updated. If I were drafting the legislation, 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.

231

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?

232

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.

233

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.

234

I am trying to understand the motivation and the imperative behind this.

235

Mr Aiken: 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 give independent scrutiny and independent assessment of the safety case. Her Majesty's Railways Inspectorate would advise the Department whether or not the risks were being managed effectively.

236

Mr McFarland: 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 is the case, but at the moment is in-house. Is it correct that Northern Ireland Railway's own people do the maintenance?

237

Mr Aiken: By and large, Northern Ireland Railways do the maintenance.

238

Mr McFarland: Let us suppose that Northern Ireland Railways want 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 they are supposed to do and what the rules of the game are. An inspector can monitor the situation regularly.

239

Mr Aiken: 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 -

240

Mr McFarland: Like what?

241

Mr Aiken: How trains are operated, or how drivers are trained.

242

Mr McFarland: That is what Translink do. 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.

243

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.

244

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?

245

I am not having a go at you. I am desperately trying to understand.

246

Mr Aiken: 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.

247

Mr McFarland: 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.

248

Mr Aiken: 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.

249

Mr McFarland: 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 -

250

Mr McKenna: 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 in 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.

251

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.

252

Mr McFarland: 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.

253

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

254

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

255

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

256

Mr McFarland: 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.

257

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

258

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

259

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

260

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

261

Mr Aiken: Yes, but our powers of direction are limited.

262

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

263

Mr Aiken: That is slightly off the subject.

264

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

265

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

266

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

267

Mr Aiken: It is not a substitute for proper railway safety legislation.

268

Mr Hussey: 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?

269

Mr McKenna: 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.

270

Mr Hussey: 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?

271

Mr Aiken: The inspectorate does not now have any responsibility, and 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.

272

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

273

Mr Aiken: No, the Department for Regional Development has that responsibility.

274

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

275

Mr Aiken: No.

276

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

277

The Chairperson: 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 otherwise the whole thing will not work properly.

278

Mr McKenna: 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.

279

The Chairperson: Having said that, Mr Rayner said that Her Majesty's Railways Inspectorate's resources were limited.

280

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

281

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

282

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

283

Mr Hussey: If Her Majesty's Railways Inspectorate does not have the resources, it is not fulfilling the contract.

284

Mr Aiken: If Her Majesty's Railways 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.

285

Mr McNamee: I was going to ask for clarification on the role of Her Majesty's Railways 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 Railways Inspectorate's role to assess and monitor the implementation of safety cases?

286

Mr McKenna: If the Department were concerned that there were difficulties, as an option it would could call in Her Majesty's Railways 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 will 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 will also involve checking the records to find out what has happened in the 11½ months, or whatever the time may be, to satisfy themselves that Northern Ireland Railways is operating the system that it is meant to operate. The Department could ask Her Majesty's Railways 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.

287

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

288

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

289

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

290

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

291

Mr Aiken: Yes.

292

Mr Savage: How long will it take?

293

Mr Aiken: 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.

294

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

295

Mr Aiken: None.

296

Mr McFarland: 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.

297

Mr Aiken: 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.

298

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

299

The Chairperson: Thank you very much. Your evidence has been very helpful.

300

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

301

Mr McNamee: 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?

302

The Chairperson: Perhaps the Committee should consider that. If there is no one else, then 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.

303

Mr McNamee: 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.

304

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

Thursday 17 April 2002

Members present:
Mr A Maginness (Chairperson)
Mr A McFarland (Deputy Chairperson)
Mr J Byrne
Mr R Hutchinson
Mr W Hay
Mr M Robinson
Mr G Savage

Witnesses:
Mr Rick Eagar ) Arthur D Little Consultants

305

The Chairperson: I am pleased to welcome Mr Rick Eagar, a director at Arthur D Little Consultants. Mr Eagar was involved in compiling Arthur D Little's report on railway safety in Northern Ireland in 2000.

306

Mr Eagar: t is a pleasure to give evidence on an important piece of legislation governing rail safety in Northern Ireland. It may be useful to say a few words about my background. I have 22 years' industrial experience, 12 of them being spent in safety and risk- management work with Arthur D Little, an international technology and management consultancy. Well over half of my work is in the railway industry, but I also work on safety in such areas as the oil, gas, nuclear and chemical industries.

307

I also represent the expertise of my company. About half of its work is on rail safety and risk in the rail sector - not just in the UK but abroad, particularly in Italy, Switzerland and Hong Kong. The company worked on the prototype safety case in Great Britain in the early 1990s.

308

Since 1999 the company has advised Northern Ireland Railways (NIR) and the Northern Ireland Railways Transport Holding Company on safety issues. That began with the strategic safety review of NIR in 1999, which examined railway safety from top to bottom and resulted in the improvement programme now being implemented.

309

One of the 120 recommendations in that report was that, in the light of what we felt was a sparse regulatory framework for rail safety in Northern Ireland, NIR should lobby for more rail-specific safety legislation. The recommendation also suggested that, in the meantime, NIR should comply with principles of rail safety legislation developed in Great Britain insofar as those are applicable, given the scale and complexity of Northern Ireland's railway network. We believed that it was important, since it would provide the necessary backbone to underpin the safety improvement efforts of the railway. That is where legislation was mentioned in the report.

310

Assuming that implementation is timely and appropriate, we consider that the draft Bill, together with its secondary legislation, will have a beneficial and positive effect on safety. We feel that it will address the concern raised in the original report.

311

The safety-case approach was highlighted in the minutes of the previous evidence session. Fundamentally, it requires the duty-holder to conduct a systematic identification and assessment of safety risks and develop suitable control measures to address them. That assessment is documented, and that document is used as a means to provide acceptance or certification from the regulator. It is also used as a basis against which compliance can be audited.

312

I have four points to make about the safety-case approach's appropriateness for Northern Ireland Railways. Firstly, as has been said, safety cases are used across all the high-hazard industries, such as the railways, offshore oil and gas facilities, the chemicals industry and nuclear installations. That is part of a coherent "permissioning" regime operated for health and safety reasons in the UK. It is important to realise that that is based on the fundamental philosophy that safety is managed best through proactive measures. For example, safety is best managed if companies anticipate possible risks instead of merely complying with rules and legislation. In that sense, we can conclude that, if railways are considered a high-hazard industry - which I feel is a reasonable assumption - it is consistent to use a safety-case approach for them based on that used in other industries.

313

The second point relates to the direction in which legislation is moving in the European Union. While my understanding is that the interoperability Directives will not apply to Northern Ireland, it would be worthwhile considering the draft European railway safety Directive and its implications for the countries to which it will apply. The legislation will require countries to have a national railway safety authority. It will require railways to submit annual safety reports, and the authority will provide certification to those companies on that basis. In addition, the legislation is considering common safety methodologies and providing guidance on what those should include. The current guidance specifically includes risk management and the use of a risk-based system. It also includes risk-based targets that will require railway companies to conduct risk assessments. For the companies to secure certification, they will be required to demonstrate that they have assessed risks adequately and have the necessary controls in place. Although those measures may not be called a safety case, they are the fundamentals of one.

314

I shall give some examples. In Italy, there is already a system whereby long-term certification is provided on the basis of a satisfactory demonstration that risks have been assessed and that controls are in place. Again, that is analogous to the safety-case approach. As you know, the proposals in the Republic of Ireland are also to adopt a safety-case approach, although in that case with a railway safety authority. That would be more appropriate considering the scale of its railways. My point is that the safety-case approach is not unique to Great Britain; it is increasingly being used abroad.

315

Thirdly, the point was made that the safety-case approach is only relevant if you have a fragmented railway, which is fortunately not the case in Northern Ireland. That is not true. To some extent the railway safety- case regulations became associated with fragmentation, since they were introduced at the time of privatisation and were prompted by it. However - and this is completely hypothetical - even if that fragmentation had not taken place, we should have seen something similar to in the railways anyway, for it is consistent with "permissioning" regimes in other industries.

316

My fourth point is that, like everything else, a safety-case approach is not a panacea. It has drawbacks as well as advantages. As with any new piece of legislation, there have been problems over the years with safety cases. In particular, there was much over- quantification of risk in the early stages, which led to a spurious complexity without any real meaning. To a degree there was a problem with the safety case becoming a paper exercise and not really representing what happened in the railways.

317

The two advantages we now have in Northern Ireland are that we can learn from those lessons and that Northern Ireland Railways is already doing virtually everything which would be required by a safety case. In that respect we are not imposing anything completely new on it. Those were the main points I wished to make by way of introduction.

318

Mr R Hutchinson: Thank you for coming. My basic question is a little tongue-in-cheek - does it work? When I look at railways in the rest of the United Kingdom, I need proof that their system is working. I cannot see that happening, for at the moment it is horrendous there.

319

Mr Eagar: The evidence we have seen is that it works. There is a - probably incorrect - perception that railway safety has deteriorated significantly in Great Britain over the years. While I am the first person to agree that you can prove anything with statistics, the figures do not bear that out. Let us compare the most basic measure - fatalities per year. In the early 1990s, we were having 80 to 90 fatalities on Britain's railways each year. Even with the recent tragic accidents, that figure is lower than it was. It is currently around 40, and it was 65 in 1999-2000. Even with a 50% increase in traffic and the additional complications caused by the fragmentation of the railways, the figure is lower. Most people would accept that fragmentation has made railway safety more complicated to manage.

320

Mr R Hutchinson: Are you saying that some train companies are more compliant with safety standards than others?

321

Mr Eagar: Inevitably some companies perform better than others.

322

Mr McFarland: Your points were in reply to Mr Rayner's evidence. He focused on the fact that the safety case system was not used in mainland Europe or the Republic, but you have said that it would be introduced in both.

323

The railway here is small, and the logic for introducing this legislation is that at some stage in the future you might wish to sell it. If that happens, systems will have to be in place to ensure that the contractors do what they are told to do. At present, if in-house contractors are employed, the legislation, in theory, is not required because the contractors belong to you. If it is decided not to sell the railways but to contract out work, what would be wrong with having a contract that states that the contractor must maintain the railway for the next five years? That would set out the parameters within which they had to operate and keep some control over the subcontracting? Control of subcontracting, or lack of it, seems to have caused the problems in England.

324

Mr Rayner said that this has become a beanfeast for lawyers. The evidence of safety cases is that, if it does go wrong, lots of lawyers make lots of money. Why should we go in this direction, given that the rail system is small and that, at the moment, I think, there are no plans to sell it?

325

Mr Eagar: We must distinguish between a contractor safety case and a railway safety case. The proposed legislation is concerned with the requirement on the duty holder, Northern Ireland Railways (NIR), to prepare and submit a safety case for all its operations. The GB railway safety case regulations do not say anything specifically about the way in which contractors must be managed. They are concerned only with the duty holder. NIR will have its own safety management system that will include appropriate measures for managing contractor safety, and there are many different approaches to that. If, like NIR, a company is running a risk-based safety management system, the most logical approach to take to managing contractor safety is to ask the contractor to identify the risks associated with his activities and to satisfy you, as the client and the contract holder, that it has the right controls in place, such as safe systems of work, method statements and so on. However, that has nothing to do with the railway safety case regulations.

326

It is fair to say that the GB situation is a beanfeast for lawyers. That would not be the case here because there is not the same split of responsibilities, at least with the infrastructure controller and the operating and rolling stock companies et cetera. Clearly there is an interface if you contract out, but it is a matter of having suitable and appropriate measures to control safety across it.

327

Mr McFarland: A holding company in two parts runs this, and the job of Translink and NIR is to manage it, which is what we are talking about here. Why can they not just manage it without having an entire Bill? Parts of the Safety Bill are important, but why can the company not just get on and manage - which is what it is paid to do - without all these regulations? I could understand it if the railway was large and split up, but what is the imperative behind pushing this legislation rather than saying to this small railway company: "Get on and manage it"?

328

Mr Eagar: One imperative is to bring Northern Ireland's railway legislation into line with current legislation elsewhere, or legislation that will soon exist if it does not already. It is a matter of harmonisation. Also, by introducing any legislation, essentially you are saying that you want a higher degree of assurance that things are going to be done correctly - that is why there is any legislation, and safety case legislation is just part of that. It is not going to impose a huge complex burden. Indeed, the secret of ensuring that it works and is effective is that it should not be overly complex but fit for the purpose. To reflect the scale of the railway, it should also be relatively simple.

329

Mr Hay: Policing this arose at our earlier meetings. We know that we can have a good piece of legislation in place, but, as in England, there can be a problem with policing it. What do you feel about that?

330

Mr Eagar: By policing do you mean the role of an authority such as HMRI (Her Majesty's Railway Inspectorate) ?

331

Mr Hay: Yes, and the role of the Department. Where does all that fit in with what we are trying to do?

332

Mr Eagar: There is an additional role here, which is an implication of wanting more assurance. The set-up envisaged is to use HMRI to provide the specialist expertise to do that and the manpower to police it. I know that there are, and have been, problems with resources for HMRI, but I have also seen in the minutes of the previous evidence some of the measures that the Department is trying to introduce through contract with HMRI to make sure that this does not adversely affect the system altogether. Given the scale of the railway here, a new authority would be inappropriate - that would be overkill, and so I have some sympathy for the proposed solution.

333

Mr Byrne: With our small railway system there has been a consistent pattern to the fatalities over the last 10 or 15 years. Most seem to result from people crossing or trespassing on the lines at level crossings. Will the Bill only address the resource-management system for ensuring better safety, or will it address the resource implications also?

334

Mr Eagar: The safety case part of the Bill could have an impact on resources, because part of the safety case will include details on the resources that have been provided by NIR. However, that would be an indirect impact. Level crossing safety is a key problem, and lots of work is being done on it. Although it will include level crossing safety, the safety case will be general, covering all aspects. I am not sure whether that answers the question. The Bill will not impose resource requirements on NIR directly.

335

Mr Byrne: Will the Bill specify safety standards which will mean that resources will have to be put into signalling or modern level crossing barriers, for example?

336

Mr Eagar: The safety case will include a description of the safety standards that the railway complies with, and by accepting that safety case, one accepts that those standards are correct. In that sense, the Bill will cover standards.

337

Mr Savage: What is the lifespan of a locomotive, and is that gauged by the hours it has operated or its age?

338

Mr Eagar: I am not an expert on rolling stock, but the lifespan of a piece of rolling stock is approximately 30 years. However, that is flexible and can be extended considerably by refurbishment, for example. It is judged to be obsolete when its structural integrity or crashworthiness begins to fail or when it no longer complies with accepted international standards.

339

Mr Savage: In other words, the better a locomotive is looked after, the longer it will last.

340

Mr Eagar: Yes. That is true of anything.

341

The Chairperson: It has been said that the Bill is piece of enabling, rather than prescriptive, legislation. Will you comment on that?

342

Mr Eagar: I cannot comment on that, because I am not qualified give opinions on legal matters. As a safety adviser to the railway, my only concern is that any process that is adopted should not cause undue delay. If the process can introduce secondary legislation rapidly, it will be satisfactory.

343

The Chairperson: There are two separate approaches. However, you are happy if the safety matters are expedited?

344

Mr Eagar: Yes.

345

The Chairperson: There are no more questions. Thank you, Mr Eagar.

Wednesday 24 April 2002

Members present:
Mr A Maginness (Chairperson)
Mr A McFarland
Mr J Byrne
Mr PJ Bradley
Mr D Ervine
Mr R Hutchinson
Mr W Hay
Mr P McNamee
Mr M Robinson
Mr G Savage

Witnesses:
Mr G McKenna ) Department for Regional Development

346

The Chairperson: I welcome Mr McKenna from the Department for Regional Development. The Railway Safety Bill was introduced to the Assembly on 18 February 2002 and the Committee Stage commenced on 27 February 2002. The Committee first received briefing from departmental officials on the proposed Bill on 9 May 2001. Further discussion took place on 5 December 2001, following completion of the public consultation process. During the Committee Stage, evidence was taken from the main interested parties: Translink; Peter Rayner; The Railway Preservation Society of Ireland and the Department for Regional Development. Evidence was also taken from an independent railway safety expert, Mr Eagar, from AD Little Consultants.

347

The Committee's approach has been thorough and the key issues have been discussed at length. I do not wish to revisit those issues, however, a key point was whether the Bill should be prescriptive, and set out the main provisions, or take the form of enabling legislation, with the main provisions being introduced through secondary legislation. Clearly there are arguments for and against both approaches. Whatever approach is used, the overriding consideration is the swift introduction of effective railway safety guidelines and standards. During the debate on the Second Stage of the Bill on 26 February 2002 the Minister stated that

"Most subordinate legislation will follow almost immediately, subject to public consultation and consultation with the Assembly Committee". [Official Report, Vol 14, No 10, p430].

348

In the same paragraph of the Official Report he stated that

"The railway (safety case) Regulations will follow as soon as possible, allowing Northern Ireland Railways time to finalise its safety case and have it thoroughly examined". [Official Report, Vol 14, No 10, p430].

349

We will now move to a formal clause by clause consideration of the Railway Safety Bill. Officials from the Department for Regional Development are present, and may be called to answer Members' questions.

350

The Chairperson:This clause provides for the Department for Regional Development to make Regulations in respect of railway safety. The Department intends to introduce such Regulations as soon as possible. However, this will depend on Northern Ireland Railways giving priority to the preparation of a safety case priority. Translink, in its evidence, stated that it wished to see the speedy introduction of the provision.

Question, That the Committee is content with the clause, put and agreed to.

351

The Chairperson: Clause 2 provides the Department with power to make Regulations, giving it a veto over certain types of railway development. Prior departmental approval will be required before Northern Ireland Railways brings works, plant or equipment, including rolling stock, into use.

352

Mr Savage: When railway tracks are being repaired it is important that the rolling stock being used does not come into contact with moving trains on main lines. Does the Bill cover such a situation?

353

The Chairperson: Would you advise the Committee, Mr McKenna?

354

Mr McKenna: Yes. Mr Savage's point is covered in several ways. He is possibly referring to the fatal accident that took place on the railway recently. Railway (safety case) Regulations will require Northern Ireland Railways to satisfy itself that any contractor carrying out work on the railway has made proper arrangements for safe operations and systems of work.

355

I will not comment on the accident at Bangor as it is under investigation by the Health and Safety Executive because of non-compliance with safe systems of work. However, where rolling stock is on the track, the contractor's safety arrangements must clearly prevent such incidents from happening.

Question, That the Committee is content with the clause, put and agreed to.

356

The Chairperson: This clause gives the Department power to make regulations requiring and governing the reporting to it of certain accidents or situations involving risk of accident. Northern Ireland Railways will be required to report accidents formally to the Department.

Question, That the Committee is content with the clause, put and agreed to.

357

The Chairperson: This clause empowers the Department to give direction to a railway operator imposing maximum speeds and weights. There is currently no power to give directions limiting speed and loads.

358

Mr Byrne: Are there limits or controls on voluntary societies trying to get steam trains reactivated, given that they charge money and provide tourist expeditions? There is a question about liability and insurance.

359

Mr McKenna: The provision is primarily aimed at heritage railways. An operating condition of such railways would be that they operate within constraints on the weight of the train and the speed at which it can travel. A railway line opened recently under licence at Bushmills is limited to carrying trains that weigh less than six tonnes and travel no faster than 25 mph. That takes into account their level of operation.

360

Until now there have been no regulations allowing the Department to make similar provisions for Northern Ireland Railways. However, for the most part, we would expect Northern Ireland Railways to deal with this aspect under their operating requirements for speed limits on lines where work is being carried out or where they require reduced speed. We expect these restrictions to be carried out operationally, but the Department will have the power - if necessary - to give similar directions to Northern Ireland Railways.

Question, That the Committee is content with the clause, put and agreed to.

361

The Chairperson: This clause, together with Schedule 1, makes provision for the placing of signs and barriers on or near private roads or paths that cross a railway. Translink was keen to see this provision included as there is evidence that most railway accidents are connected with railway crossings. There is obviously some concern about having to place a sign on an individual's private property but the appropriate siting of signs may be of greater importance in the circumstances.

362

Mr Bradley: Where a sign instructs a person driving a long vehicle or agricultural machinery to telephone ahead when crossing a railway line, will that requirement apply in all cases? Will those who do not do so be liable to prosecution?

363

Mr McKenna: Secondary regulations will be made to prescribe the sign to be used and the wording on the sign. Much of the work will be done in consultation with Northern Ireland Railways. Local by-laws already require people using many of the crossings referred to by Mr Bradley to phone ahead when using them. It is a technical requirement and if it were not complied with, even though the individual were to cross successfully, they would technically be liable to prosecution. Northern Ireland Railways would not wish to take such action unless it were apparent that, by not phoning ahead, the individual had posed a risk to himself or to train passengers who would otherwise be using the crossing. Theoretically, prosecutions could be considered, because the individuals would not have complied with the requirement.

364

The Chairperson: Are you referring to Schedule 1, paragraph 4(1)?

365

Mr McKenna: Yes. If the requirement to phone ahead were necessary, the sign may state: "People wishing to use the crossing should use the telephone to ensure that it is clear to do so". By not complying with that sign people would be effectively committing an offence under the Bill.

366

Mr Byrne: There has been concern about this aspect in the past. I am not technically competent to proof-read or qualitatively assess the paragraph. Has the point been duly considered?

367

Mr McKenna: Yes. The powers will not apply until secondary regulations are made: a draft already exists and is being considered by the departmental solicitors and will be forwarded to the Committee for examination before it becomes law.

368

The Chairperson: The Committee will be able to consider the issue in more detail then.

369

Mr Savage: Mr Bradley has raised a very important point. An accident occurred in my constituency where a farmer, who was spreading slurry, crossed a railway line. It was a very serious accident and pieces of the tractor were never found. I do not know whether the tractor stalled or the driver panicked when he saw the train coming as he was crossing. Clear indications are needed on crossings so that such accidents do not happen again. Prevention is always better than cure. I hope that this point is well covered in Schedule 1, paragraph 4.

370

The Chairperson: The paragraph relates to signs and barriers at private crossings - not necessarily the public highway. Are there similar provisions for public crossings?

371

Mr McKenna: Yes. Regulations already govern public crossings. Each level crossing has it own set of Regulations, which make detailed provision about how the railway is to be operated, including how the barriers are to be operated and the action to be taken by people approaching the crossing. Normally, level crossings are open or closed, depending on whether a train is passing. The difficulty with private crossings is that they are operated by individuals wishing to cross the lines. Normally, such crossings are closed and are only opened as people need to use them - there are no set times. It is imperative that individuals wishing to use these crossing ensure that it is safe to do so. The signs will require them to do exactly that.

372

Northern Ireland Railways operates the publicly operated crossings, so whenever a train is coming, protective mechanisms will always be in place.

373

Mr Bradley: Modern technology has enabled there to be a facility in every train station to tell people when the next train is due. Is that technology too expensive to install at crossings?

374

Mr McKenna: Regulations governing a level crossing do not currently require that provision. The requirement is that certain protection systems are in place at level crossings.

375

Mr Bradley: The technology would not be too expensive to install.

376

The Chairperson: Perhaps the Department would take the suggestion on board?

377

Mr McKenna: The Department will contact Northern Ireland Railways and advise them that the Committee considers the matter to be significant.

378

Mr Ervine: How many private crossings are there?

379

Mr McKenna: There are well over 400 crossings. I do not have an exact figure, but I can arrange to have it provided to the Committee. The crossings are primarily rural and used for agriculture related activity. However, several crossings are on land close to private dwellings, which may have been farmhouses once, but because of agricultural practice are no longer operated as such. However, people who live and work on such premises regularly use the crossings.

380

Mr Savage: The problem arises when people get into the habit of using crossings routinely. They often forget about safety.

381

Mr Ervine: Are there any statistics on accidents or near misses at private crossings?

382

Mr McKenna: We have figures for the railway in general. We could easily disaggregate those figures to find out which accidents were at private crossings.

383

Such accidents tend to be serious and high profile. Recently, a contractor was seriously injured on the Antrim to Knockmore line because he was not expecting a train to be running on the track. Services were technically reduced, however, the contractor was hit by a ballast train as he drove a slurry tanker across the line. He had not checked with Northern Ireland Railways because he understood that there would not be a train on the line. However, although there was no scheduled service - a Northern Ireland Railways operational train hit him. It is imperative that people check what is happening on the line when they use the crossings. Accidents do not happen often, but they are serious when they do.

384

Mr Savage: That happened in Aghagallon.

385

Mr McKenna: That is correct.

Question, That the Committee is content with the clause, put and agreed to.

386

The Chairperson: This clause provides for definitions of words used in the in the Bill, such as Department, operator and railway. It is a necessary part of any Bill.

Question, That the Committee is content with the clause, put and agreed to.

387

The Chairperson: This clause provides for amendments to the Regulation of Railways Act 1871 and the repeal of legislation listed under Schedule 2.

Question, That the Committee is content with the clause, put and agreed to.

388

The Chairperson: This clause provides for most of the Bill to come into operation two months after the Bill receives Royal Assent. As mentioned earlier, safety case regulations may take slightly longer. However, in the debate on the Second Stage of the Bill the Minister stated that the Department will continue to urge Northern Ireland Railways to complete that work as quickly as possible.

Question, That the Committee is content with the clause, put and agreed to.

Question, That the Committee is content with the clause, put and agreed to.

389

The Chairperson: This schedule referes to the placing of signs and barriers at private crossings. The prupose of this schedule has been discussed under Clause 5.

Question, That the Committee is content with Schedule 1, put and agreed to.

390

The Chairperson: This has been covered under Clause 7 in relation to consequential amendments and repeals.

Question, That the Committee is content with Schedule 2, put and agreed to.

Question, That the Committee is content with the Long title, put and agreed to.

391

The Chairperson: I thank the Committee and Mr McKenna for their contributions.

A. General Consumer Council for Northern Ireland

B. Ulster Farmers' Union

C. Lisburn Borough Council

The Council welcomes the opportunity to comment to the Committee on the Railway Safety Bill. We have sought to take the wider passenger interest into account. As the passengers' representative, the Council's goal is that Northern Ireland ends up with a railway network that is at the forefront in terms of railway safety. We want to see adequate legislative provisions put in place quickly. However, it is clear that further consultation will be required on the subordinate legislation to the proposed Bill.

We hope that this submission will be of help to you in your deliberations.

At present in Northern Ireland we have elements of 19th Century legislation governing railway safety in the 21st Century. There is therefore a clear need to update legislation to match, and where possible, exceed current safety requirements elsewhere in UK and Europe.

Railway safety in Northern Ireland is generally good. In recent years there have been very few serious incidents that have occurred which were within the control of the rail operator. However, this in itself cannot be taken as an indication of relative safety because the scale of operations here cannot be compared with elsewhere in the United Kingdom, or Europe for that matter. Northern Ireland has a small network of roughly 220 track miles with around 30 train sets, including the Enterprise vehicles.

However, following a number of minor incidents Translink commissioned AD Little to carry out a Strategic Safety Review of Northern Ireland Railways. The final report was produced in March 2000. The outcome of the AD Little report has been well documented and indeed helped lead to the formation of the Railways Task Force. Subsequent to this the Northern Ireland Assembly pledged £105 million over 3 years to bring about a series of improvements to rolling stock and infrastructure which were identified with AD Little report.

One area that was not addressed by the Railways Task Force was the area identified by AD Little as the "Lack of railway-specific safety legislation". We therefore welcome the fact that legislation is now being brought forward to address the issue of railway safety.

The Railway Safety Bill will bring Northern Ireland into line with existing railway safety provision in Great Britain introduced in the early 1990's.

The railway network and level of traffic in Great Britain is much greater thus increasing the risk factor, particularly on busy commuter lines. It also has to deal with a number of private train operating companies (TOC's) operating on a network maintained and operated by Railtrack.

In recent years there have been a number of serious incidents on the GB network. As a result safety has been called into question. Some have argued that there is a reduced level of safety as a result of railway privatisation.

Following the Hatfield accident in October 2000 the resulting problems on the GB network have been well documented. At times chaos has ensued with passengers receiving a much lower level of service which is only beginning to get back to any level of normality now almost a year later.

As a result of the concern in Great Britain railway safety is high on the agenda and improvements are being sought. The Cullen Report into the Paddington accident contained 89 recommendations for change. While some of these were specific to the Paddington area many applied to the rail industry as a whole. Indeed, Lord Cullen is now preparing a further report on the safety of the railways as whole.

We believe that legislation introduced to Northern Ireland should reflect any improvements sought by Lord Cullen to the level of safety provision in Great Britain. Any such provisions should be introduced quickly and we should not have to wait for up to 10 years to bring Northern Ireland into line.

The Republic of Ireland is currently going through the same process as Northern Ireland - updating existing legislation. However, the proposed Railway Safety Bill 2001 being brought forward by the Department of Public Enterprise appears to go much further than that proposed for Northern Ireland. Rather than bring matters under other legislation the Bill brings all railway safety related matters within its remit.

Quite clearly the legislation, while making provision for future regulations, has addressed the detail of all other issues such as Railway Safety Cases and Report of Accidents within the terms of the bill rather than introducing this as subordinate legislation.

The legislation in the Republic sets up both a Railway Safety Authority to regulate safety and Railway Safety Advisory Council to advise on safety related issues. The roles of the Minister, Authority and Council are clearly outlined in the bill. This includes the powers of Minister and the Authority to introduce future regulations.

In addition, the legislation deals with the issue of transfer of ownership and how this could potentially be handled and the issue of testing staff for alcohol or substance use, but only in the event of an accident.

Therefore in conclusion the Republic of Ireland is seeking to emulate in many ways the existing provisions in Great Britain but have chosen to do so through primary legislation while maintaining the power to introduce further Regulations to reflect any future changes in railway safety. This is largely what we had expected to happen in Northern Ireland.

The Railway Safety Bill is an enabling bill which will bring existing railways legislation within the remit of the Health and Safety at Work (Northern Ireland) Order 1978. The Bill in itself will not bring about safer railways - it brings about the mechanism by which regulations can be introduced regarding safe railways.

As we understood it the Bill provides for separate regulations to reflect the way in which the changes were introduced to Great Britain under the Transport and Works Act 1992. It also provides the platform to introduce forthcoming EU Regulations on railway safety.

Given that much of the detail of the Regulations already exists in GB we are disappointed that it has not been incorporated into the primary legislation. We believe that this could have been done whilst making provision for future Regulations on railway safety issues if required.

On a separate point, much of the 'power' brought about by this Bill will be under the Health and Safety at Work Order. Is this what AD Little recommended when he called for 'railway specific legislation'? We regret that the 'Regulation making power' has not been included in the primary legislation.

Due to the lack of detail in the bill the Council is limited in the comments that we are able to make at this stage. However, any concerns regarding the proposed bill are outlined below. Of these the main concern is how the actual details of improving railway safety will be addressed and consulted on following the enactment of the legislation.

The Council is concerned that, as the legislation does not incorporate all of the issues, the actual details of railway safety may not be consulted on as widely as the Bill itself. At present there is no guarantee that there would be adequate, or any, consultation. However, following our submission to the Department's consultation process they did provide assurance that consultation would take place on each of the regulations. The Regulations represent the details and matters of importance for railway safety and failure to consult on these would seriously weaken the process.

• We recommend that there should be a clause in the Railway Safety Bill stating that any proposed Regulations will be subject to consultation.

Given that the Regulations largely follow from GB legislation we believe they should be brought forward for consultation immediately after the Bill has been enacted. This is to ensure that there is no delay in bringing about improvements to the safety of the network. Where possible the regulations should be updated to reflect best practice in Europe and to take on board any of the issue raised in Lord Cullen's two reports.

• We would want to see full consultation on any such regulations so that improvements can be made where necessary.
• We would also want to ensure that any areas where Northern Ireland has greater safeguards in place at present are not weakened by regulations in line with GB legislation which may be less stringent in parts.

Any use or abuse of drugs, alcohol or any other substance likely to affect performance of safety critical staff should be addressed within the legislation. Provision needs to be introduced to give railway operating companies the power to test staff on a random basis and not just allow such testing in the event of an incident or accident.

The issue of drivers' hours need to be addressed not only in terms of safety but also in line with the EU Working Time Directive. If provision is not made in this area it again allows the potential for incidents or accidents to occur in the event of driver fatigue.

There should be adequate provision to deal with any future private sector involvement in Northern Ireland's railway network. We accept that new legislation is likely to deal with any transfer ownership. However, the proposed legislation should be wide enough to minimise the need for any change to railway safety legislation in the event of any change of ownership or private involvement. This provision is being made in the Republic of Ireland.

We believe that summary convictions alone are not strong enough. There should be the facility for offences under the proposed primary subordinate legislation to be hybrid (either-way) offences which could, if necessary, be taken to a high court and greater penalties imposed.

While disappointed that the Railway Safety Bill is not more extensive the Council believes that it is important that adequate railway safety provision is introduced to Northern Ireland as possible. We consider that this could be achieved through the Primary legislation with additional powers for future regulations and that this would be the most appropriate way forward. However, following consultation an 'enabling bill' is what has been proposed to the Assembly. If this remains and is the legislation enacted we believe that the subsequent regulations should be brought forward for consultation immediately upon its enactment.

Our main concern with the Railways Safety Bill is that full and proper consultation takes place on the actual detail affecting railway safety. It is necessary that any changes made have been widely consulted on, so that relevant organisations are provided with an opportunity to have their views considered.

It is also important that, where possible, we extend the powers of railway safety and deal with issues that it has been shown are not covered by the legislative provision in Great Britain which we are proposing to copy here.

The Ulster Farmers' Union welcomes the opportunity to comment on the proposals contained in the above.

As the Union is the largest organisation representing farmers and their families in the province, it is highly appropriate that we comment fully on the proposals.

Under Schedule 1 regarding signs and barriers at private crossings the Union notes that there appears to be no advice on safety distances or obtaining Health and Safety approval. The Union is also concerned that any person who fails to comply with any requirement, restriction or prohibition conveyed by a crossing sign lawfully placed on or near a private road or near a path where it crosses a railway shall be guilty of an offence. The Union therefore would require clarification if a sign at the crossing instructed long vehicles or slow moving vehicles to use the telephone at the crossing and this was not carried out would they too be liable on summary conviction to a fine.

The Union also stresses the point that all work carried out regarding the erection of signs, obtaining rights to enter land i.e. enforcement costs must be carried out at the cost of the operator.

Consent must be sought at all times from the landowner before entering land, and adequate compensation relating to individual situations is essential.

The Union welcomes the facility for appeal to compensation amounts.

I trust that these comments are of use and will be fully considered by the Committee for Regional Development.

Yours

Gillian Briggs
Secretary Legal and Commercial

I would inform you that Lisburn Borough Council welcomes the introduction of the Railway Safety Bill and also the assurances given to the Assembly that there is no intention for Northern Ireland Railways to be fragmented in the manner which has been applied in Great Britain.

Furthermore, the Council would request that assurances are given that Her Majesty's Railway Inspectorate are adequately resourced to undertake the additional work involved in carrying out Health and Safety enforcement duties as an agent for the Department of Regional Development.

Maurice Woods
Assistant Director of Environmental Services