Clause 6 - Investigations

Railways and Transport Safety Bill – in a Public Bill Committee on 4th February 2003.

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Amendment moved [this day]: No. 5, in

clause 6, page 3, line 24, at end insert—

'(9) The Rail Accident Investigation branch may not use contractors and subcontractors to assist in their investigations.'.—[Mr. Don Foster.]

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 2:30 pm, 4th February 2003

I am delighted to chair—[Interruption.]—to serve under your chairmanship, Mr. Hurst. I can see it is going to be one of those days. Before we broke this morning, I was occupying the crease for a couple of minutes to avoid getting into detail on the amendment. On my way out of the Room, I was pleased when the hon. Member for Uxbridge (Mr. Randall) suggested that I was in good training for a likely appearance one day on ''Just a Minute''. But as those listening will be aware, I would have been rapidly called to order there for using the phrase, ''Order, order'' within the first two seconds.

I gave a clear hint to Committee members that there would be great merit in their using the lunch break to read the Under-Secretary of State's written answer to one of my parliamentary questions from last summer. Although we heard this morning that the Under-Secretary was suffering from a cold and a sore throat, I am delighted to have goaded him so much by referring to his silence that he is going to respond on the Government's behalf to the amendment this afternoon. We will give him a great deal of silence while he speaks and hope that he succeeds.

Before I say anything specific about the amendment, I want to place it firmly on the record that any reference I make to a particular company is in no way intended to be a criticism of that company or its work. Lord Cullen, in recommending the establishment of the rail accident investigation branch, said that he believed it should be an independent body. He meant by that that it should be primarily independent of the body or bodies responsible for setting railway safety standards, but it was also implied, although stated less explicitly, independent from railway companies.

Many railway companies, especially the train operating companies and Network Rail, make extensive use of contractors and sub-contractors. It would therefore be reasonable to assume that in calling for the rail accident investigation branch to be independent, Lord Cullen intended it to be independent of the contractors and sub-contractors that work on the railway. That view is clearly shared by the Under-Secretary. In our exchange through the parliamentary question of 10 June 2002—for the

convenience of members who may not have had time during lunch to read it—I asked him:

''when the proposed railway safety body will be established; what its remit is; what the role of (a) contractors and (b) sub-contractors will be within this body; and if he will make a statement.

He replied:

''We expect to consult this summer on proposals for the establishment of an independent rail accident investigation branch (RAIB) before publishing the necessary primary legislation. The remit of the RAIB will be subject to consultation but will reflect the recommendations made by Lord Cullen in his part 2 report on the Ladbroke Grove Rail Inquiry. The role of contractors or sub-contractors within RAIB would be as witnesses, when appropriate, during investigations.''—[Official Report, 10 June 2002; Vol. 386, c. 781W.]

Clearly, the Under-Secretary does not envisage the use of such contractors directly in the RAIB's work.

I would be the first to acknowledge the difficulty of defining exactly who is the contractor and sub-contractor in particular circumstances. On Second Reading and this morning, I referred to the need for the RAIB to use forensic laboratory facilities, perhaps to examine a piece of rail, as in the Potter's Bar inquiry, or a whole carriage. The Minister responded that that would be possible and that RAIB would be expected to pay for the use of such facilities. The laboratory facility could therefore be defined as a contractor or sub-contractor.

We could go further. RAIB might need to bring in heavy lifting equipment to move a carriage or train off the track; or it might need transportation facilities to take a train or track to the forensic laboratory. Providers of such services could again be thought of as contractors or sub-contractors, so I accept the problem of definition. Under clause 8(1):

''The Secretary of State may make regulations about the conduct of investigations by the Rail Accident Investigation Branch'',

and under paragraph (e) he may

''permit or require the Chief Inspector to request assistance from another person'',

which could again cause confusion as to whether that person is a contractor or sub-contractor. We need to distinguish more clearly between bodies that can be viewed as contractors or sub-contractors and bodies assisting with the inquiry that have no direct bearing on any aspect of the problems leading to the investigation.

In referring to a couple of firms as examples, I make no criticism of their work. WS Atkins plc is part of the Metronet consortium, one of the London Underground infrastructure companies. It would be strange if it provided assistance to the RAIB in connection with an incident on the tube. It would be difficult to use the firm in any circumstances involving the railways because it has provided so much advice, support and contract work in the railway sector.

It is interesting to see the range of activities with which WS Atkins has been associated—work for the Health and Safety Executive, for example. It has carried out a range of research contracts on supporting investigations into accidents and on safety cases since 1997. It examined Railtrack's responses to improvement notices, took part in investigations into

danger signals passed and looked into crash worthiness developments in mark 1 rolling stocks.

That is only one company. On 23 January last year, the Health and Safety Executive referred to a report by Her Majesty's rail inspectorate that had been compiled jointly with WS Atkins in response to the improvement notice served after the Ladbroke Grove train crash of October 1999. I have been surprised about the extent to which this and other companies have been involved in railway work. I note that the Health and Safety Executive recently signed agreements with five major businesses for the supply of technical support for its work. In a press release, the HSE stated that it had

''awarded technical support 'framework agreements' to five international organisations . . . The agreements cover the provision of technical support and analyst services across the industry sectors in which HSE are involved including: rail''.

The organisations were AEA Technology, Amey Vectra, BOMEL of Maidenhead, NEL of East Kilbride and WS Atkins of Warrington.

Some bodies will quite properly provide support for the work of the rail accident investigation branch. On the other hand, I know from the Under-Secretary's reply, with which I agree, that it would be inappropriate for certain other bodies to be involved in the branch's work. The amendment gives the Under-Secretary the opportunity to tell the Committee how he proposes to live up the answer that he gave to a parliamentary question on how the roles of the two sorts of support organisation—the contractors and sub-contractors, and others—can be clearly defined and separated.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

May I say what a pleasure it is to serve under your chairmanship, Mr. Hurst?

I intend to support my hon. Friend the Under-Secretary, although the Liberal Democrat spokesman was right to table the amendment. However, the world has moved on since the Under-Secretary gave his answer. Contractors are no longer as highly regarded as they were. That is certainly true of the rail industry in the light of recent accidents and since the establishment of Network Rail, which recently decided to take some of its maintenance contracts in-house and extend them. The costs of contracting are now seen to be much higher than direct employment. I hope that that will influence any decision about using contractors in railway safety. As the hon. Member for Bath (Mr. Foster) pointed out, there is scope for using outside assistance in providing services during an investigation, such as hiring a minibus and providing sandwiches for the investigators. Even photographers might be on contracts and might be seen as contractors.

The wording of the amendment suggests too wide a scope. It might be stronger and more precise if it read, ''to undertake investigations'', rather than to ''assist'' in them. I will vote against it, but it is appropriate to raise the issue. I hope that the Under-Secretary and the Minister will consider direct employment for those who undertake the investigations.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

May I welcome you to the Committee and say what a pleasure it is to serve under your chairmanship, Mr. Hurst? I am sure that we will all get to know each other much better during the course of the Committee.

I shall be brief, as I would like a debate on clause 6 stand part. I thank the hon. Member for Bath for his amendment. I draw the attention of the Committee to comments made by the Secretary of State on Second Reading.

''No one branch could include the expertise necessary to consider every aspect of a train incident, for example. I am certain that, from time to time, the new branch will need to go to outside bodies to get the expertise that it needs, and that is what people would expect.''—[Official Report, 28 January 2003; Vol. 398, c. 767.]

The Secretary of State's comments and amendment No. 5 raise a question to which the Under-Secretary might respond. If the new branch is to be encouraged to get outside assistance, will the Under-Secretary clarify which bodies it might be expected to turn to and under what circumstances?

I have a problem with amendment No. 5. I can see where the hon. Member for Bath is coming from, as it harks back to previous times and perhaps to a body in which I declared an interest this morning. For your information, Mr. Hurst, I still have half my shares in Railtrack, having failed to sell them at their peak. I am still due a second instalment on them, although it is not a substantial amount of money, as we discussed this morning. Will the Under-Secretary confirm what the Minister for Transport said this morning? In circumstances in which the Secretary of State believes that there is a case for outside assistance, will there be a strong and direct chain of command and control back to the chief inspector? The Bill is silent about that.

Regrettably, the alliance is not dead in the water just yet, but on this issue we will wait for the Minister's comments.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport 2:45 pm, 4th February 2003

I welcome you, Mr. Hurst. It is a pleasure to sit again under your careful and watchful eye. I have been uncharacteristically quiet so far in this Committee, and as you can hear from my voice, that is probably for the best.

I thought that it would be appropriate for me to reply to the amendment tabled by the hon. Member for Bath. As he said, he took the crease just before we finished our morning sitting, and he kindly referred me to a question that I answered last June. He need not have done that. Although I have answered 3,000 or 4,000 questions since then, I am fully familiar with all my answers. Nevertheless, I welcome the opportunity to explain that one. I hope to show the hon. Gentleman that his amendment is unworkable, impractical and out of step with the current practice of the air and marine accident investigation branches and Health and Safety Executive investigations.

The query about my answer may be explained by different meanings of the word ''contracting'' in two

contexts. The hon. Gentleman mentioned Lord Cullen's inquiry into Ladbroke Grove in his question, and the inquiry referred directly to the use of contractors. As my hon. Friend the Member for Luton, North (Mr. Hopkins) implied, it was not just a matter of contractors, but the management of those contractors. The hon. Member for Vale of York (Miss McIntosh) also mentioned that.

In my answer of 10 June, I was referring to contractors involved in general maintenance work on the railways. The only context in which those contractors would have been used in investigation would have been as witnesses to whether the work was carried out properly. I do not think that there was any intention to rule out the use of those contractors in an inquiry or the ability of the rail accident investigation branch to call in assistance other than from people working directly for the branch. The hon. Member for Bath will appreciate that it would be almost impossible for the branch to carry out its work without calling in other forms of advice and assistance.

Both the highly respected air and marine accident investigations branches use outside contractors to assist them during their investigations. The marine accident investigation branch, with which I am very familiar and from which I see a lot of reports, uses salvage experts to lift wreckage from the sea bed, and uses metallurgists to inspect or test different parts of a vessel. The aviation accident investigation branch may also use outside experts: for example, it may call on the expertise of those in the aircraft manufacture laboratories. Both those bodies use such experts extensively because of the level and type of work that they do.

It would be impossible for the rail accident investigation branch to avoid using contractors. For example, it might need to move and test train wreckage, and if it could not use contractors, it might be unable to find out what went wrong. In those circumstances, its ability to carry out effective investigations would be very limited.

In relation to the question raised by the hon. Member for Bath this morning about the establishment of the rail accident investigation branch, it would be impractical for it to retain the level of expertise needed on a permanent basis in anticipation of there being an accident.

The hon. Member for Vale of York asked me to give some examples. I gave examples from the aviation and maritime areas, but I will give examples specific to rail. The rail accident investigation branch would sometimes need laboratory facilities, or heavy lifting equipment to move train wreckage, and a range of other facilities. I am sure that the hon. Lady has enough experience in the area to imagine what other facilities might be required.

Although I understand the comments that have been made by the hon. Member for Bath and by my hon. Friend the Member for Luton, North, and notwithstanding what the hon. Member for Vale of York said, there must be proper supervision of any contractor. There must be a proper chain of command.

The Minister for Transport set that out clearly this morning in his reply to an earlier debate.

I hope that I have addressed the concerns raised by my hon. Friend and by Opposition Members, and that the amendment will be withdrawn.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

I congratulate the Minister on getting through that, and on his reasonably helpful reply.

I am grateful for the comments made by the hon. Member for Luton, North, who reminded us of the ongoing debate about the use of contractors and sub-contractors, particularly in rail maintenance work. I chose not to refer to that debate, as I did not wish to appear critical of individual companies to which I might refer in my subsequent remarks. The hon. Gentleman was right to do so, however, and many of us are delighted that Network Rail has decided to bring back in house the work in the Reading area. That will give us a comparator benchmark against which we can examine costs in other parts of the network, although many of us believe that we do not need to wait for the comparator information and that Network Rail should get on with that work quickly.

I was also grateful for the comments made by the hon. Member for Vale of York. She reminded us, quite rightly—I hoped that I had referred to that in my own remarks—that it would be almost impossible to envisage the rail accident investigation branch doing all the necessary work itself. I understand that it would be necessary to use such external contractors, and gave specific examples about the use of forensic laboratories or heavy gear lifting.

My concern throughout has been with the conflict of interest that might arise if certain contractors were used. The Minister has not completely reassured me. I referred earlier to the recent contract that the Health and Safety Executive had entered into with five major companies. The HSE's press release states:

''Famous five scoop top HSE awards.''

The HSE contract means that any of the companies to which I referred could be involved in the provision of a range of services. The deputy director general said of the awarding of that contract:

''These companies will be providing invaluable technical support and contributing to the robust service the HSE provides in helping make working environments safer.''

That includes rail environments.

Not until the RAIB is a long way into its investigation will we necessarily have any indication of the cause. Safety standards may have been incorrectly applied. The standards themselves might be incorrect or the advice that has come from one of those many different contractors may have contributed to the accident or the incident. It will be difficult for the RAIB to decide which contractors it can use. Contractors will have been involved in setting or advising on safety standards or a whole range of issues, and not just, as the hon. Member for Luton, North said, on maintenance of the track. Notwithstanding the Minister's response, there is still a legitimate concern about conflicts of interest between the bodies that might be brought in to assist the RAIB in its work and the nature of the investigation being

carried out. The Minister has an inquisitive frown on his face.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

That might indicate that he is minded to go back and look at this issue in a little more detail. On the basis of the Minister's thoughtful frown, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I refer the Committee to the Secretary of State's comments on Second Reading. He said:

''the Bill . . . gives a fair amount of latitude to the chief inspector as to what he investigates. In some cases it would be mandatory; in others there would be a discretion . . . there is sufficient latitude under clause 6 to allow the chief inspector to take a decision as to whether or not he ought to investigate. The circumstances that might lead to his investigation would depend on the information that he had before him, and existing health and safety legislation would be of help. Again, if hon. Members feel that the situation could be improved, of course the Government are open to their suggestions.''—[Official Report, 28 January 2003; Vol. 398, c. 771–2.]

This is the challenge to the Committee this afternoon. We can come forward with a number of suggestions. I should like to take the Committee through both the definitions in the Railways Act 1993 and the definitions that form the background to the clause. The clause states:

''The Rail Accident Investigation Branch

(a) shall investigate any serious railway accident''.

There is no scope for discretion. However, subsections (b) and (c) provide discretion because the RAIB

''(b) may investigate a non-serious railway accident or a railway incident, and

(c) shall investigate a non-serious railway accident or a railway incident if required to do so by or in accordance with regulations made by the Secretary of State.''

I remind the Minister that the Opposition would prefer all the powers and procedures to be set out in the Bill so that the Committee and those who implement the Bill may be clear what we are talking about. I understand that definitions were deliberately not included in the Bill but will be in regulations.

The consultation paper that preceded the Bill proposed that the jurisdiction of the rail accident investigation branch should take as its starting point the definition of a ''railway'' in section 81(2) of the Railways Act 1993. That definition describes ''a railway'' as a network, rolling stock or track, and

''a tramway, or . . . a transport system which uses another mode of guided transport but which is not a trolley vehicle system''.

I am sure that the Under-Secretary would want to make it clear that this country does not have trolley vehicle systems. I may be wrong—perhaps Bristol or Manchester is an exception—but I presume that such systems are excluded for the simple reason that we do not have them at present, in the same way that tramways were excluded in relation to Scotland. Perhaps further clarification is required.

Clause 6(2) provides for the chief inspector of the rail accident investigation branch to exercise discretion when considering whether to investigate a serious accident on a tramway. I understand that that is because the investigation of an accident affecting a road-running part of a tramway would fall to the police. Again, that raises the question of the relationship between the police and the rail accident investigation branch. Perhaps it would be useful for the Under-Secretary to clarify that.

Photo of John Randall John Randall Opposition Whip (Commons) 3:00 pm, 4th February 2003

I am glad that my hon. Friend has referred to tramways, because I was a little concerned that one minute they were included and the next they were not. She thinks that, if they are along a road, the police would be involved. However, tramways are sometimes separate from roads. Does my hon. Friend believe that there would be a difference in that respect?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I hope that the Under-Secretary will put our minds at rest on that. To be honest, I do not have a clue, so I should be grateful if he would take this opportunity to clarify that. We need to be sure whether we are talking about a tram running on a tramway or running on a road that operates as a tramway, and whether trolley vehicle systems—they were called trolley buses when I was a little girl—are specifically excluded because we do not have them. I am grateful to my hon. Friend for seeking that further clarification from the Government.

It is expected that an accident affecting a rail-running part of a tramway would be investigated by the rail accident investigation branch. This is no joking matter. I am a non-practising lawyer, but I might in future have to interpret the provision on behalf of a client. It would therefore be helpful to know the circumstances in which the rail accident investigation branch and the police will conduct investigations.

Will the Under-Secretary elaborate on the extent to which a further definition set out in section 83 of the 1993 Act is still relevant? Obviously, that was a very good Act, passed under a very good Government. We applaud their achievements and pause to pay homage to them. One definition in that section relates to premises, which are described as including

''any land, building or structure''.

I presume that the Under-Secretary will confirm today that that definition stands unamended and that we are not diluting that interpretation in any shape or form.

At the consultation stage, comments were invited on the proposal that a statutory objective of the rail accident investigation branch should be that its fundamental purpose is to undertake investigations and inquiries that look for the root causes of accidents, without apportioning blame or liability. On the face of it, the Bill does not deal with manslaughter and whether criminal responsibility will arise, and nor does it state whether the branch will investigate such matters under clause 6. Will the Under-Secretary put our minds at rest and say whether the Bill also covers corporate liability?

I am grateful to the Library for giving me a full copy of the relevant regulations. Regulation 4 of the Civil Aviation (Investigation of Air Accident and Incidents) Regulations 1996 states that

''the sole objective of the investigation shall be the prevention of accidents and incidents. It shall not be the purpose of such an investigation to apportion blame or liability.''

We discussed this morning the extent to which the rail safety and standards board will have a role to play in the prevention of accidents, and the Bill should refer to that work. The Bill is wrongly silent on the subject and it should have been more specific.

Regulation 4 of the Merchant Shipping (Accident Reports and Investigation) Regulations 1999 implemented provisions in the Merchant Shipping Act 1995, which is obviously a laudable provision as it was enacted under a Conservative Administration. It states that

''the fundamental purpose of investigating an accident under these regulations is to determine its circumstances and the causes with the aim of improving the safety of life at sea and the avoidance of accidents in the future. It is not the purpose to apportion liability, nor, except so far as is necessary to achieve the fundamental purpose, to apportion blame.''

We are asked to take it as read that clause 6(3) and (5) taken together provide that although the rail accident investigation branch is not to consider blame or liability, it can still make a report or a determination of the cause from which liability or blame may be inferred. I have difficulty with the breathtaking sweep of clause 6, especially subsections (3) and (5). Subsection (3) states:

''In investigating an accident or incident the Branch shall try to determine what caused it.''

Subsection (5) states:

''In performing a function in relation to an accident or incident the Branch—

(a) shall not consider or determine blame or liability''.

Why are those provisions in the Bill rather than in regulations, as was the case with the maritime and aviation legislation? What the Under-Secretary proposes is most welcome, and it is something I have argued for. It would be nice to know that it is not a typographical error but an opportunity for the Government to sing their own praises.

Clause 6(6) states:

''The Branch may conduct an investigation and report whether or not civil or criminal proceedings are in progress or may be instituted''.

Will the Under-Secretary say whether the rail accident investigation branch will decide whether criminal or civil proceedings will be brought if it is acting independently or whether it will work closely with the police?

In subsection (7) the chief inspector of rail accidents is given the power to apply to the High Court or the Crown court

''for a declaration that the making of a report in connection with a specified accident or incident will not amount to a contempt of court in relation to civil or criminal proceedings which have been or may be instituted in connection with the accident or incident''.

That raises a practical problem that must be overcome. As the Secretary of State said on Second Reading, the

Bill's objective is a swift investigation leading to a speedy outcome.

If the prospect raised under subsection (7) is that either the court proceedings or the investigation will be delayed so that court proceedings can conclude, which of the proceedings will have priority? Will it be the proceedings of the rail accident investigation branch under clause 6 or would the normal criminal or civil proceedings be allowed to run their course?

Subsection (8) states:

''The Chief Inspector of Rail Accidents may reopen an investigation if he believes that significant new evidence may be available''.

If my distant memory serves me, the statutory limitation period is seven years if an accident or incident, non-serious or serious, takes place. One would normally expect seven years to be sufficient time for all the evidence to emerge.

We support in principle the setting up of the rail accident investigation branch. However, I find breathtaking the extent to which we are being asked to give an open-ended commitment to allow the chief inspector of rail accidents to act completely on his own without applying to a court of law or seeking any authorisation other than his own hand. As a non-practising lawyer I have some difficulty with that. It would assist us if the Under-Secretary would say whether the seven-year statutory limitation will apply.

Clause 6 is not as innocent as one might imagine on the first reading. The Government have departed from the practice set out in connection with the Civil Aviation Act 1982 which relies heavily on the helpful latest regulations under the Civil Aviation Act (Investigation of Accidents) Regulations 1996, as well as from the procedures set up by the Merchant Shipping Act 1995, as elaborated in the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999. It would help us to know the reasons for those departures, which may be welcome. The Minister may agree that it is best that the regulations are written into the Bill rather than implemented under it. We need to know whether the proceedings of the RAIB have priority over civil and criminal court proceedings. We also need to know whether there is a statutory element of limitation, or whether, as it would appear, the chief inspector of rail accidents is given a completely open-ended power to re-open an investigation at any time if he believes that significant new evidence may be available. It may also be helpful to know what that significant new evidence might entail.

Photo of Tom Brake Tom Brake Opposition Whip (Commons), Shadow Secretary of State for Communities and Local Government, Liberal Democrat Spokesperson (Communities and Local Government), Liberal Democrat Whip 3:15 pm, 4th February 2003

I had intended to reserve the most devastating of my arguments on this subject until the debate on clause 7, when we were to debate our amendment No. 10. However, due to a minor typographical error, the amendment appears against clause 7, when it should appear against clause 6, which hampers my attempt to support it.

Amendment No. 10 is pertinent to clause 6(5), which relates to blame or liability. As hon. Members

are aware, at the Ladbroke Grove inquiry, Dr. Walter of Railtrack's Safety and Standards Directorate said:

''a fear of prosecution''

was

''hampering the free and open recognition of error and hence the proper learning of lessons''.

Furthermore, Railtrack, as it then was, argued that a potential benefit of a rail accident investigation branch in separating operation from safety regulation was

''the greater ability to focus on root causes and to identify the lessons without blame requiring to be apportioned.''

Paragraphs (a) and (b) do not clarify liability. Paragraph (a) says that the branch

''shall not consider or determine blame or liability''.

However, paragraph (b) says that the branch can still allow liability to be inferred from a report on the cause of an accident or incident. I shall be honest and admit that we do not have a ready answer to this dilemma, but I hope that the Minister will say how he will be able to balance the need for investigations that are unhampered by the risk of prosecution, as stated by Dr. Walter, with the understandable need for people to be satisfied that those responsible are dealt with so that public confidence is restored.

Photo of John Randall John Randall Opposition Whip (Commons)

If my hon. Friend the Member for Vale of York had some difficulty with the clause with her extensive legal background, 17 years spent selling furniture has not put me in the best position to understand it either. I may not have the greatest intellect, but I have trouble understanding the clause. I shall not discuss its finer detail, as my hon. Friend and the hon. Member for Carshalton and Wallington (Tom Brake) made some cogent points, but I would like the Under-Secretary to clarify a couple of matters.

The first of those points relates to tramways. As the Under-Secretary is doubtless aware, there are plans for a tramway running from my constituency in west London to Shepherd's Bush. There are problems further up the line, although the Uxbridge section is quite happy about it. I want to know who would carry out an investigation in the event of a serious accident, and whether it would depend on the type of line or where exactly the accident had happened.

I find subsection (2) rather confusing, but subsection (5) is even more problematic. It states that the branch

''shall not consider or determine blame or liability, but . . . may determine and report on a cause of an accident or incident whether or not blame or liability is likely to be inferred from the determination or report.''

For my benefit and that of other members of the Committee, would the Minister put that in plain English? Does it mean that a report will contain not only the cause of the accident, but who, in the branch's opinion, was to blame, with consequent liability? As I look further into the provisions, I know that my abilities will be taxed further, but I am prepared to listen and learn from wise members of the Committee.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

What debate this clause has stimulated! I shall make a few general comments,

which should deal with some of the particular points made.

The clause outlines the aim of the rail accident investigation branch, which is to establish the root causes of railway accidents. As recommended by Lord Cullen, it is not the purpose of RAIB to apportion blame or liability. Those responsible for death or injury can be brought to account through prosecutions, which will remain the responsibility of the police and the Health and Safety Executive.

The RAIB will be under a duty to investigate all serious railway accidents. As my right hon. Friend the Minister for Transport made clear earlier today, the definition of serious accidents comes later and must be consistent with the EU directive, for reasons that we all understand.

The RAIB will also have discretion over whether to investigate tramway accidents. As the hon. Member for Vale of York pointed out, tramways run in a discrete area, sometimes in conjunction with roads. It may be appropriate for the police to investigate a problem on the tramways where it is seen largely as a road incident; on other occasions, it may be more appropriate for RAIB to investigate, especially where the event is associated with the running of the rail line rather than the road.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Will that be the same in Scotland as in England? In Scotland, the procurator fiscal may form a view of the severity of the offence in certain circumstances, and I wonder whether that would apply under this clause—I am even more confused now, but that is more a reflection on myself than on the Minister. We need to be clear about which option applies. If the incident or accident takes place on a rail-running part, will the branch always investigate, and will the police always investigate events on road-running parts? Is that what the Minister is saying?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

No, it is not. It would be safe to say that where a tram runs on a discrete area set aside specifically for the tram with no road in the vicinity, the RAIB clearly would investigate. However, if an accident happened where a road and a light rail tramway ran close to each other, it would be up to the chief inspector to consider the circumstances and decide which was the most appropriate body to investigate. In some cases, it may be most appropriate for the police to investigate.

Photo of John Randall John Randall Opposition Whip (Commons)

The Minister raises the question of light rail. Does that count as a tramway or railway? Will the branch always investigate accidents on level crossings?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Again, those would be decisions for the chief inspector to make after having considered the circumstances of a particular accident. We are in danger of trying to pin down precise examples, which is inappropriate. Where there is an interface between road and rail, it will be for the chief inspector to decide which body is the most appropriate to undertake an investigation.

The hon. Member for Vale of York asked about trolley systems. I do not want to state the obvious, but

trolley systems have been excluded because they do not run on rails. This is a railway Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am sorry, but that does not wash. The rest of the clause clearly relates to trams or trolleys—whatever one calls them—that run on the road. The Committee needs a definition about what runs on rail and what on road. Without such a definition, there will be an unnecessary and regrettable delay before the chief inspector can decide which agency should investigate.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

Trolley buses probably draw electricity from above and run on tyres, rather like buses. The trams, for which the Bill provides, are on rails and draw their electricity from above. I hope that shows the distinction between the two.

The rail accident investigation branch will be able to carry out investigations and issue reports even if criminal proceedings are in progress or may be instigated in future. That will ensure that safety lessons can be shared with the industry as quickly as possible. If necessary, the chief inspector of the rail accident investigation branch will be able to apply to the courts for a declaration that publishing its reports will not amount to contempt of court for any civil or criminal proceedings.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport

Given the point about the pre-eminence of learning lessons, will the Minister comment on the rumours that are circulating ever more widely that the industry investigation into the Potters Bar accident is being increasingly frustrated by the police's failure to make available forensic evidence that the inquiry believes that it needs but that the police are not prepared to release? How does the pre-eminence of learning lessons apply in that case?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

I am not in a position to comment on rumour. We are looking forward rather than backward, and it would be inappropriate for me to comment. However, it would be appropriate to explore the interface between the police and the rail accident investigation branch. As the hon. Member for Vale of York said, after the investigation has been concluded, new evidence may come to light and necessitate reopening the investigation. Clause 6 will allow the chief inspector to do that.

The hon. Member for Vale of York asked about limitations. The law on limitations applies to court proceedings and would not apply to the rail inspector. It is highly unlikely that new evidence will come into play after some years, but I do not see any reason why the Bill should inhibit the chief inspector from carrying out further investigation some years later if new evidence comes to light. The hon. Lady will know from her background that there are particular reasons in criminal and civil courts for the seven-year limitation. She also asked about the rail accident investigation branch and prosecution. The RAIB can investigate the causes and publish a report on the lessons to be learned, but any prosecution would be secondary to that.

The hon. Member for Carshalton and Wallington asked about the fear of prosecution in respect of

subsection (5)(a) and (b). The hon. Member for Uxbridge claimed to have been a furniture seller, so I shall try to put the provision into everyday language for him. Under paragraph (a), the branch

''shall not consider or determine blame or liability'',

so that makes it clear that such determination is not the prime purpose of the RAIB. Paragraph (b) goes on to provide that the RAIB should not be inhibited from publishing information in its report that might lead others to draw inferences. In other words, there are no limitations on what the branch can include in its report, though its prime purpose is not to determine blame or liability. It is for others to make appropriate inferences.

Photo of John Randall John Randall Opposition Whip (Commons) 3:30 pm, 4th February 2003

I am beginning to see some light at the end of the tunnel, but could the report state the prime reason for the accident and attribute it to someone having done something wrong? Are we excluding the possibility of the report doing that in black and white, leaving it instead to inference, or can the branch say who, in its considered opinion, was to blame?

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

May I provide an example to help? If a train driver working for a particular company drove through a red light and the RAIB put that information into its report, it would be difficult not to infer liability from it, but it is not the purpose of RAIB to attribute liability. It is for others to draw inferences, and, if appropriate, to occasion a prosecution. I hope that that explains the position clearly.

Photo of Tom Brake Tom Brake Opposition Whip (Commons), Shadow Secretary of State for Communities and Local Government, Liberal Democrat Spokesperson (Communities and Local Government), Liberal Democrat Whip

I thank the Minister for his explanation, which I understand, but it does not deal with the problem that I mentioned—that the fear of prosecution, arising out of the inference, if not the apportionment, of blame in the report, risks hampering the free and open recognition of error and hence the learning of lessons.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

People should be able to speak to RAIB without any fear of prosecution. Unless the court applied for it, evidence would be used only in the RAIB report. If the report made statements that clearly followed from its investigations, it would be for others to decide whether liability for the cause of an incident had been occasioned. As I said, it is not the prime purpose of the RAIB investigation to attribute liability.

If civil proceedings are likely or in progress, it may not be clear whether publishing the report would put the RAIB in contempt—it applies when an order of a court is not complied with—so it could apply to the court for guidance. Nothing is to stop the RAIB making its recommendations. I have covered most of the points raised and I hope that on that basis the Committee will support clause 6.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

We have teased out one or two issues on which perhaps the Government themselves were not clear. I reserve the right to return to these matters to seek further clarification and to give a greater steer. I do not want to pun that we have driven a coach and horses through clause 6, but the circumstances in which an accident involving a road-running vehicle or a rail-running vehicle would be investigated are still not entirely clear.

Photo of John Randall John Randall Opposition Whip (Commons)

There is a further point, although I should perhaps not raise it at this time. When we are talking about the police, I shall be interested to know whether the road traffic police or police constables will investigate.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

That is the second point. The first point is that it is as clear as mud what constitutes a road-running vehicle and what constitutes a rail-running vehicle. The Minister describes two different types of vehicle, both of which draw electricity from overhead. What differentiates them is that one is on a track and one is on a road. We still have not had satisfaction on that point. As my hon. Friend the Member for Uxbridge eloquently and succinctly put it, in which circumstances would the police investigate and in which circumstances would the branch investigate? Secondly, which arm of the police would conduct the investigation—the British Transport police or the British police force?

I take issue with the Minister over another issue to which the Committee may wish to return. He draws a distinction, with which I have some sympathy, between the statutory limitations referring to a court case, particularly for criminal proceedings and those for civil proceedings. However I think civil actions also have a statutory limitation relating to clause 6(8). I refer to note 15 on the reopening of the investigation in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996. The Minister may assure us that the Government want to implement this regulation after the Bill's adoption. It states specifically:

''(1) The Chief Inspector may cause the investigation of any accident or incident to be reopened and shall do so—

(a) if, after the completion of the investigation, evidence has been disclosed which is in his opinion both new and important; or

(b) if for any other reason there is in his opinion ground for suspecting that the reputation of any person has been unfairly and adversely affected.

(2) Any investigation reopened shall be subject to and conducted in accordance with the provisions of these Regulations''.

I welcome the Minister's earlier explanation of why the aviation and maritime Acts left to regulations the implementation of provisions that appear in clause 6 for the rail accident investigation branch. But there is a serious omission in clause 6(8), in that the Bill does not go on to specify either the limited time within which the investigation may be reopened—so it would be time-barred—or the circumstances in which there would be a new investigation. I am sure that the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 are equally reflected in the maritime regulations.

Photo of Mr David Jamieson Mr David Jamieson Parliamentary Under-Secretary, Department for Transport

The hon. Lady asks about the circumstances in which an investigation would be reopened, but the Bill is quite clear on that. It says

''if . . . significant new evidence may be available.''

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I hear what the Under-Secretary says, and that is helpful as far as it goes. However, regulation 15 of the 1996 regulations specifically deals with the circumstances in which the chief inspector may reopen an investigation:

''if . . . evidence has been disclosed which is in his opinion both new and important; or . . . if for any other reason there is in his opinion

ground for suspecting that the reputation of any person has been unfairly and adversely affected.''

Clause 6 has been drawn very loosely—I use that word advisedly. We may seek to revisit it at a later stage, but we have used this opportunity to have a very good explanatory and probing debate. A number of questions remain to be answered. It is welcome that the clause goes further than equivalent provisions in maritime and aviation legislation, but it does not go far enough.

I have referred to the Secretary of State's comments. He said that the Bill

''gives a fair amount of latitude to the chief inspector as to what he investigates.''—[Official Report, 28 January 2003; Vol. 398, c. 771.]

I would go further. The Bill does not just give a fair amount of latitude. Clause 6 is too wide, too loosely drafted and deserves to be revisited.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.