Clause 9 - Requirement to investigate

Railways and Transport Safety Bill – in a Public Bill Committee at 9:15 am on 6th February 2003.

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

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

Good morning to you, Mr Hurst, and to the Committee?

I listened with interest to the questions raised by the hon. Member for Vale of York (Miss McIntosh), and I have considerable sympathy with many of her points. She is right that the Committee deserves more information about what regulations may contain and a better understanding of the Government's thinking on various aspects of the Bill. That is also true for clause 9. The hon. Lady will have several points to make, so, not wishing to steal her thunder, I will concentrate solely on two aspects.

I am looking in particular at subsection (2)(a). Subsection (1) says that the inspector will be able to

''direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances shall be investigated by each person who managed or controls, or participates in managing or controlling, all or any part of railway property.''

The chief inspector will rightly be able to direct persons to carry out investigations by the industry. However, subsection (2)(a) says that the directions

''shall specify the manner in which the investigation is to be conducted.''

My reading of that is that the direction will detail how the investigation is to be carried out. That is interesting because it implies that the rail accident investigation branch and chief inspector will tell the industry body—a train operating company, Network Rail or a rolling stock operating company, for example—how to go about an investigation rather than allow it to use any relevant expertise to search for the cause of that accident or incident.

It is equally interesting that having said that the chief inspector will specify the manner in which the investigation will be carried out, the direction appears not to detail the issues that the investigation will cover. Will the Minister make it clear that nothing in the direction will prevent an industry body from investigating any aspect of an accident or incident from which it believes it can learn lessons to improve future railway safety?

My second point is about subsection (6). Earlier parts of the clause specify that if a direction is given to a person to carry out an industry investigation and the person fails to do so, he or she will be deemed guilty of an offence. That is understandable. If there is a clear requirement to carry out an investigation and a person refuses to do so, there must be some sanction. However, I have some difficultly in understanding why subsection (6) says:

''But in proceedings against a person for an offence under subsection (3) of failing to comply with a direction it shall not be necessary to prove that he was aware of the direction.''

Will the Minister explain in what circumstances it would be appropriate for someone to be deemed to be guilty without clear evidence that they knew that they had been issued with a direction to carry out such an investigation? There may be good reasons for that, but it would be helpful for future cases if the Minister stated firmly for the record the cases in which the Government believe that the subsection is important and should apply.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport) 9:30 am, 6th February 2003

My questions are not dissimilar from those on the issues explored in the debate on clause 8.

Subsection (1) provides the chief inspector of rail accidents with the power to direct that an industry investigation be carried out by the relevant party. Subsection (3) creates a new offence and makes it an

offence for that party to ignore that direction. I shall dwell for a moment on subsection (1) and let the words speak for themselves:

''The Chief Inspector of Rail Accidents may direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances shall be investigated by each person who manages or controls, or participates in managing or controlling, all or any part of railway property—

(a) on which the accident or incident takes place; or

(b) which is involved in the accident or incident.''

Curiously, the explanatory notes, which are so helpful on other clauses, say nothing about clause 9. I question its drafting, as there appears to be another typographical error. There has already been at least one, and there are one or two more on today's amendment paper. The Department must be much more careless than it was when the Conservatives were in government, but the Minister is responsible and I am sure that he will give us good reasons for the errors.

Will the Minister say what is a railway accident or railway incident ''of a specified kind'', and what are ''specified circumstances''? On Second Reading and in Committee, we have explored at length what constitutes an accident or an incident, although I hesitate to suggest that the Opposition parties have been more helpful in defining an accident or incident than the Government or the Bill have been.

It is unacceptable that a new offence is created under the clause. Under subsection (4),

''a person who is guilty of an offence under subsection (3) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum or,

(b) on conviction on indictment, to a fine.''

Subsection (3) says:

''A person to whom a direction under subsection (1) applies commits an offence if he fails to comply with it.''

It is incumbent on the Committee to be able to explain to people what the specified circumstances are and what the specified railway accidents and railway incidents would be.

Again, subsection (2) is far reaching. It states:

''A direction—

(a) shall specify the manner in which the investigation is to be conducted; and

(b) may make provision for a case where more than one person would be required to conduct an investigation, whether by requiring a joint investigation or by requiring or enabling one or more persons to conduct an investigation on behalf of others.''

That is a very sweeping direction, and the Bill should be more specific.

Subsection (5) states:

''The Chief Inspector shall publish a direction issued by him under subsection (1) in a manner which he considers will bring it to the attention of each person who is likely to be required to comply with it.''

How does the Committee know that the manner in which the investigation is to be conducted will be sufficiently public and well directed? How do we know that the person to whom the direction has been issued will know that it is directed against him or that he will pay any attention to it? What is the purpose of the clause? It would seem to have a very serious purpose as it creates a new offence that carries a not insubstantial penalty. The chief inspector is given a specific power,

but we are no further forward in knowing what his function is under clause 8. We do not know how the person to whom the direction is issued will be informed of it, or whether he will have committed an offence.

On reflection, the Minister may feel that the clause is not as well drafted as it might be, and I would sympathise with him in that respect. However, if he honestly believes that the clause is well drafted, I have some substantive questions. In two or three years' time, hon. Members might be approached by a constituent who has been issued with a direction and not even known that he or she had committed an offence. The clause's drafting is questionable; if the Government want to create a new offence they should be much more specific in stating that the offence will be brought directly to the attention of the person concerned, and in specifying the manner in which the chief inspector will do that.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I hope that I can reassure the hon. Lady that directions will be sent to the train-operating companies and will be published. The purpose of the clause is to implement Lord Cullen's recommendation that the RAIB should regularly examine the reports of formal industry investigations, which would

''determine whether there are matters of local or national importance which should be brought to the attention of the industry, for example if a number of accidents suggested a significant trend.''

We want the industry to co-ordinate its actions to a greater extent in that regard and that is best done under the RAIB umbrella, in a similar way to how the shipping and aviation sectors operate. The clause will ensure that minimum standards are followed and that there is consistency in the procedures. I hope that, as a result, companies will draw to the attention of staff and managers, especially those who will conduct internal company investigations, what their rights and responsibilities are. The issue is slightly different from RAIB investigations, but the clause will enable us to drive safety right through the industry and provide the mechanism for doing so.

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

I am sorry that the Minister has finished his speech and is not just giving way, as he has failed to answer any of our questions. I hope that he will have another opportunity to respond later.

I asked why an industry investigation will be carried out under a direction that specifies how the investigation is to be carried out but not what issues will be covered. The hon. Member for Vale of York asked the same question in slightly different language. As the Minister was unable to answer my question, I shall express it differently: it would be most helpful if he could confirm that an industry body investigating an accident would be allowed to look at all the factors that it believes might have had a bearing on that accident or incident. For example, following a collision after a signal passed at danger, would it be permissible for the train operating company to consider issues that are outside its direct responsibility, such as those that relate to signalling or the track in that area?

The second point relates to someone being summoned for failing to follow a direction when he was simply unaware that the direction had been issued. Subsection (6) says:

''in proceedings against a person for an offence . . . of failing to comply with a direction it shall not be necessary to prove that he was aware of the direction.''

That seems totally unfair. There must be a clear requirement to demonstrate that the person was aware that he had received such a direction. If the Minister's answers so far are the best we are going to get from the Government, I remain totally unconvinced about the wording of various aspects of the clause and would be minded to suggest that the Committee vote on it.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I posed a number of questions to the Minister. The clause says:

''The Chief Inspector of Rail Accidents may direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances''.

One hates to repeat oneself, but will the Minister tell us precisely what the specified kind of accident or incident and the specified circumstances would be? He said that a notice would be given to the train operating company, presumably in the usual way. Being issued with a parking fine, which is not as serious as but not dissimilar to the penalty under subsection (4), is one way of being told that one has committed an offence. In planning consultations, the planning authority is effectively required only to fly post in the smallest available font. Displaying a poster is deemed to be notice. The Minister will have to do a little better to clarify the purpose of the clause, or we shall have to return to the issue.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I hope that I can help the hon. Lady and the hon. Member for Bath (Mr. Foster) a bit further. It will be for the chief inspector to decide. That is made quite clear in clause 1. The chief inspector can say that he is concerned about particular incidents that are taking place on the railway and say how he wants those investigations to be conducted. If, as the hon. Gentleman says, issues concern a number of operators the chief inspector may well be looking at an investigation by one of his own inspectors, whom he would direct. But he makes those judgments about the appropriate locus for such investigations.

The industry itself—the train operators or Network Rail—can and will make its own investigations. It will look at the causes of minor incidents, particularly if there is a series of incidents, to find out whether there is a fundamental problem. After all, that applies right across industry, not just transport. When difficulties arise, even if they are not related to safety and where there is no threat to life, industry will look at those incidents to establish causes and to remedy them. Rather than have his inspectors conduct all the investigations, the clause enables the inspector to tell companies how they should carry out investigations to get some sort of consistency. One important feature of such investigations, and this draws very much on the experience of the other two branches, will be examination of underlying problems to see whether

they have an industry-wide application and the dissemination of that information at the earliest possible date to spread best practice more rapidly.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 9:45 am, 6th February 2003

I hear what the Minister is saying, but he is now redefining the word ''manner''. Manner implies the way in which an investigation is carried out, not, as the Minister said a few moments ago, the locus of the investigation. We are told that the chief inspector will specify the locus of the investigation, not the way in which it is carried out. The record will clearly show what the Minister said.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I am clearly saying that the chief inspector determines the locus by deciding whether he wants the inspectors to investigate certain issues under his direction. Some issues will properly be investigated at company level. The inspector will be able to prescribe the procedures under which investigations take place in order to ensure consistency and to facilitate the spread of best practice. Other matters are consequential on having a regime to ensure that the directions are followed at company level.

Photo of John Randall John Randall Opposition Whip (Commons)

I am particularly concerned about subsection (6), under which the person committing an offence does not necessarily have to prove that he was aware of the direction. Why not? Is that normal? For a simple person like myself, a recorded delivery might constitute sufficient proof. What is the current maximum statutory fine?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

It is quite normal to provide that ignorance of a law or regulation is not necessarily a defence, and the maximum fine on the current scale is £5,000. A direction specifies the manner, but it can also specify the types of accident to be investigated—in this case, under clause 1. On the point raised by the hon. Member for Bath, clause 2 deals with the procedures under which the investigation is being conducted.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am going either deaf or mad—[Interruption.] That guarantees keeping the Under-Secretary awake. Did I hear the Minister say that the powers are being exercised under clause 1? Does he not mean subsection (1) of the clause, which would put a different gloss on the matter?

Photo of John Randall John Randall Opposition Whip (Commons)

A verbal typographical error.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

Indeed. I hope that we do not have too many of them.

I accept that ignorance of the law is no excuse, but I seek further clarification from the Minister. He said that a train-operating company would be notified that a direction had been issued against it. A £5,000 fine is not substantial, even in circumstances where not much money is being made and the franchises are being renegotiated. Precisely how will the company be informed about the direction, and how will it be made aware that the channels of information are working?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

The hon. Lady shows a considerable lack of confidence in the train operating companies set up under Conservative legislation. The various regulatory bodies for the railway industry regularly notify the companies of relevant procedures, any changes to them and subsequent directions. Whatever its problems, the rail industry has always benefited from good communications in respect of regulations. I find the idea of considerable ignorance in this sector an odd proposition. In some cases, people may not follow the procedures, but we all want to ensure that operators do follow them and promote best practice—precisely why the Cullen report recommended the establishment of an RAIB to identify the causes of accidents and to spread best practice by highlighting the lessons to be learned from them. We all agree with that and it is central to the Bill's purpose.

Photo of John Randall John Randall Opposition Whip (Commons)

I seek further clarification of how the notification will be delivered—by post or, in today's world, by e-mail? Could a receipt be sent in that way? It is not the same as a summons, which has to be issued in person.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

These could, if necessary, be sent by recorded delivery, but I stress again that directions to train operators can be published to facilitate broad knowledge of what is going on in the industry. The hon. Gentleman reveals a considerable lack of confidence in train operators. The Bill is about improving the safety culture in the industry and we are here providing the mechanism to achieve that.

Photo of John Randall John Randall Opposition Whip (Commons)

It is not so much a lack of confidence in the operators as in the postal system. We all have experience of letters going missing. I have no problem with the concept; I simply want a failsafe. I am interested in finding out how these important directions and notifications will normally be delivered to the persons concerned. As I said, the post, and even e-mails, can go wrong. We must be fair to the people involved. It is not that we want them to avoid the notifications; we want to ensure that they are aware of them so that they can get on with the job. That is my worry—not the principle, but the practicalities.

Photo of John Spellar John Spellar Minister of State (Department for Transport)

We will certainly draw those remarks to the chief inspector's attention, once he has been established.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I have one final question. The Minister mentioned publication, so what is the usual mechanism for publishing notices?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

The usual industry procedures provide for regular circulation of information to operators, and I can send the hon. Lady some examples.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

Does the Minister wish to add anything?

Photo of John Spellar John Spellar Minister of State (Department for Transport)

I shall write to the hon. Lady.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.