New clause 18 - Coordination between Health and Safety Executive and the Office of Rail Regulation

Railways and Transport Safety Bill – in a Public Bill Committee at 10:30 am on 11th February 2003.

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'The Memorandum of Understanding between the Health and Safety Executive and the Office of Rail Regulation shall be replaced by a new memorandum, the purpose of which is to promote effective coordination of the regulatory orders of each body and cooperation between them.'.—[Miss McIntosh.]

Brought up, and read the First time.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I beg to move, That the clause be read a Second time.

I am grateful for the opportunity to move this new clause. The Minister and the Under-Secretary have both referred to the aviation accident investigation branch as the model organisation for accident investigation. I understand that work done in Farnborough often proves the key to swift investigation of aviation accidents. I personally become confused when I hear talk about the protocol, and the hon. Member for Bath spoke about a memorandum of understanding.

The railway industry raised various concerns about the Bill. It welcomed what the Bill was designed to achieve. It has seen for itself the work of the aviation accident investigation branch, and in particular the protocols and memorandum of understanding to which it works. My understanding is that they are tight documents. By comparison, the protocols and memorandum of understanding relating to the rail industry are voluminous and include several annexes. It is my wish that we should use as the model for the documents that flow from this legislation the protocols and memorandum of understanding drafted by the aviation accident investigation branch. I wonder whether the Minister has given any thought to that.

I understand that there is currently a memorandum of understanding—probably a hefty document—between the Health and Safety Executive and the Office of Rail Regulation, and I am sure that the Minister will confirm that there are memorandums of understanding or protocols between the Strategic Rail Authority and the HSE.

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

Lest the hon. Lady should mislead the Committee, it is hardly a voluminous document. It is three and a half pages long. I have a copy here.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am most grateful to the hon. Gentleman for clarifying that. Representatives of the industry gave me the impression that many of the protocols were lengthy, certainly in comparison with the protocol of the AAIB, which probably does not even run to three pages and uses a bigger font.

There is a memorandum of understanding between the Health and Safety Executive and the Office of Rail Regulation or, as it stands at the moment, the rail regulator. I think the Minister said that that would stay in place until April 2004. The new clause gives us the opportunity to consider the relationship, as set out in the memorandum of understanding, between the HSE and the new Office of Rail Regulation, and also—the Select Committee made a plea for this—to examine the scope of the relationship between the Strategic Rail Authority and the Office of Rail Regulation. As the hon. Member for Bath mentioned, that will be a difficult issue. I am sure that when we consider part 3 of the Bill, we will discuss the relationship between the rail accident investigation branch and the police.

There is some merit and strength in the argument that the rail accident investigation branch, as is the case with the aviation and marine accident investigation branches, will be first on the scene and will have a clear right to inspect and to take statements, so it would be helpful to set out what that relationship will be in a memorandum of

understanding at the earliest possible stage. We all agree that the priority should be for a swift and comprehensive investigation in every case. It is clearly understood that any statement given to the aviation accident investigation branch will, in no circumstances, be made available to anyone else, even if the person who made the statement wishes its contents to be made available at a later date. The reasons for that were set out by the Secretary of State and supported by my hon. Friend the Member for Westmorland and Lonsdale on Second Reading, so there is no argument there. The purpose is to ensure a speedy investigation, which reaches a swift conclusion and goes to the root causes of the accident. That should be shared with the industry at the earliest opportunity.

The memorandum of understanding has not done what we are seeking to do with the Health and Safety Executive and the Office of Rail Regulation, nor has the other memorandum of understanding, or protocols as they are often known. Regrettably, there is a lacuna in our understanding of what will be the status of these statements. My understanding is that in the case of the aviation accident investigation branch, it was clear at the outset that any statement made could not be prejudiced or released to anyone else, but would be dealt with in good faith, and that the lessons to be learned, the root causes and the prevention of similar accidents would immediately be passed on to the entire industry.

Our new clause 18 states:

''The Memorandum of Understanding . . . shall be replaced by a new memorandum, the purpose of which is to promote effective coordination of the regulatory orders of each body and cooperation between them.'

This is a useful opportunity not only to suggest that the memorandum of understanding should be replaced, but to determine what a memorandum of understanding should say if the parties to the investigation are to know exactly where they stand and if we are to learn what the status of their statements will be. That applies as much to the marine accident investigation branch as it does to the aviation accident investigation branch.

I admit that I have some difficulty in knowing what the role of the Health and Safety Executive will be following enactment of the Bill. We discussed that at some length on Second Reading. In the interests of clarity, however, it would be helpful to get to grips with these different memorandums and protocols, to look to the models of the two other investigation branches, as we have throughout our consideration, and to state clearly that the memorandums of understanding will run only until, say, April 2004 and will be replaced. We know what the model and the status of evidence given to each of them will be.

We submitted the new clause in the spirit of helpfulness, and I hope that the Government will look generously on it. I do not want to labour the point, but I have some concern about the role of the Health and Safety Executive, and what its relationship will be with the rail accident investigation branch and the Office of Rail Regulation. I am aware of the raft of

memorandums or protocols in the railway industry. I know that the industry envies the clarity of the aviation accident investigation branch's memorandum of understanding, and I hope that the Government will look favourably on our new clause.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 10:45 am, 11th February 2003

I am sure that the hon. Lady anticipates, rightly, that the Minister will reject her new clause as unnecessary. Nevertheless, it raises a point that we touched on before and, as she rightly says, that we will touch on again. Members of the Committee will know that with all the various bodies operating on our railways, there is potential for confusion about their responsibilities and joint working arrangements. The hon. Lady did not say so, but I am sure that she would agree that it is crucial that the new Office of Rail Regulation is an independent body that should not be fettered by any outside influences. At the same time, its work will inevitably have an impact on the working of other bodies, so there needs to be some arrangement to determine how joint working will happen.

The hon. Lady obviously did not have the opportunity to read the existing memorandum. It is worth reading clause 5 of that memorandum, which clearly sets out the principles of how these documents should operate. It states:

''The parties recognise the importance of maintaining a clear distinction between the health and safety responsibilities of HSE and the wider duties of the Rail Regulator. However, they recognise that actions by each party in performance of its duties may on occasion impinge on the other party's performance of its duties, and that therefore a framework of effective working arrangements is necessary to ensure mutual co-operation whenever appropriate. The following paragraphs set out such a framework of mutual co-operation.''

We can see that the document contains nothing particularly riveting or surprising. It says that the rail regulator undertakes to consult, to take account of, to notify, to send copies and so on. Similarly, the HSE undertakes to consult, to provide with timely advice, to notify, to ensure that the regulator is included in all relevant consultations and to inform. That is eminently sensible and straightforward.

I hope that the Minister will say that, with the establishment of the Office of Rail Regulation, a new memorandum of understanding will inevitably need to be drawn up. Much more importantly, the new clause gives him an opportunity to make it clear that, with all the new bodies being established and changes being made—the new arrangements for the British Transport police, the new rail accident investigation branch and the establishment of a board with the Office of Rail Regulation—we will need to keep under fairly constant review the relationships between those bodies.

Although the hon. Member for Vale of York did not highlight it, she raised the unasked question. What precisely will be the role of the HSE, given that the establishment of the Railway Safety and Standards Board is about to be formally announced? Many changes are taking place, and we are considering the working relationships in a wide variety of contexts, whether it be the investigation of an accident, the

regulatory framework or the new, dynamic and growing powers, as they appear to be, of the Strategic Rail Authority. The SRA is getting involved even in negotiations about pay and conditions for employees of the train operating companies. Given all those changes, there are changing dynamics in the railway system. I hope that the Minister will tell us how all those relationships will operate, not just about the relationship between the ORR and the HSE.

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

May I clarify something for the hon. Member for Vale of York? Each of the aviation, marine and rail bodies is a branch, not a board.

As the hon. Member for Bath intimated, we are considering the relationships between various bodies, although the provision refers to the relationship between two bodies: the Office of Rail Regulation and the HSE. They have distinct but complementary roles, and have to work closely together.

Section 4(3)(a) of the Railways Act 1993 places a duty on the regulator in exercising his functions to take account of safety and in particular any advice given to him by the HSE. Arising from that, as the hon. Member for Vale of York said, the two organisations have had a memorandum of understanding since 1998. That explains how they have agreed to work together and lists undertakings by each body to the other, as the hon. Member for Bath described. Those organisations are working together on revising the memorandum to ensure that it fully reflects what has become a close working relationship.

The memorandum of understanding is with the rail regulator, but it will, along with a number of other agreements, flow to the Office of Rail Regulation in a seamless transfer. The change in the internal administration and mechanics will not mean that all agreements are voided and would have to be renegotiated, although, as I said, they might be revised as part of the ongoing process. There would be a transfer to the new body.

The hon. Member for Bath asked what the position of the HSE would be. He went slightly wider than the new clause, but it could impinge on that. The HSE will continue to be the safety regulator for the railways, drawing its powers from the Health and Safety at Work, etc. Act 1974. The rail accident investigation branch will establish the causes of accidents and seek to spread the lessons from that and best practice throughout the industry. The HSE will continue to ensure that an appropriate health and safety regime is in place on the railways. The new clause seeks to establish a memorandum of understanding to define the roles and to ensure co-operation between these bodies. It is unnecessary because it seeks to enshrine in legislation best practice that is best left to independent authorities drawing from their own statutory basis.

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

I apologise to the Minister for my ignorance, but he says that the HSE will continue to be the safety regulator for the railways. Will the new body—the rail safety and standards board—be responsible for setting safety standards and will the HSE regulate to check whether those standards are in

place? I am oversimplifying, but is that broadly speaking the nature of the relationship?

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

The Rail Safety and Standards Board is an industry body, whereas the HSE is the statutory body. Inevitably there will be considerable co-operation between them. If the hon. Gentleman is asking who is the formal safety regulator for the railway industry, the answer is the HSE. Inevitably, even as a result of the Railways Act, it will interact with the office of the rail regulator. As the hon. Gentleman rightly says, the memorandum defines a whole number of ways in which those interfaces take place and how they will be dealt with. Both bodies draw their powers and their roles from statute. The successor to the rail regulator—the Office of Rail Regulation—will also draw its powers from statute but it will need to have those relationships.

It is not necessary to enshrine such a memorandum in legislation, because that is best practice between those bodies. They will obviously continue to do that but legislation should set up the functions and duties of the bodies. It is for the bodies themselves to decide how best to organise their work so that they can fulfil those duties and take account of best practice. I hope with that assurance that the hon. Lady will withdraw the motion.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am most grateful to the Minister and to the hon. Member for Bath. It has become apparent from this short debate that the Committee is not uniformly convinced that we know what the role of the HSE is at present and it should be in future. The Minister concluded by saying that the purpose of the legislation is to set out what the functions and duties of the respective bodies should be. I can only speak from a personal capacity, but I think that the Bill and the present legislation are defective. There will be greater confusion after the rail safety and standards board and the railways accident investigation branch comes into being and after the Office of Rail Regulation replaces the rail regulator.

Wearing my European hat, because I know the right hon. Gentleman would be disappointed if I did not bring in Europe at some stage, in Europe there are many amending treaties that refer to previous treaties rather than one text to consolidate and replace them. This amending Bill may lead us into similar muddles.

The Select Committee made the same request in respect of the Strategic Rail Authority. Perhaps the hon. Member for Bath has gone further than I dared by saying that we need to go further in defining the role of the Health and Safety Executive.

Photo of Don Foster Don Foster Shadow Secretary of State for Transport 11:00 am, 11th February 2003

The hon. Lady honestly said that she was genuinely confused, as I am, about the HSE's current role, and increasingly confused about its future role. The Minister has tried to be helpful, but he has not helped me much. I suspect that we need to go away with a damp cloth to try to work it out. Does the hon. Lady agree that there is confusion about who sets the standards, because there is conflict between the industry standards and the technical specifications for interoperability from Europe? No one has ever told me who is responsible for resolving conflict between

them. We have difficulty knowing which standards are set by the HSE, yet the HSE monitors the standards. I confess that I am confused. Does the hon. Lady share my confusion?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I will admit to being confused. The hon. Gentleman is also being honest in admitting his confusion. The existing regulations specify that the ultimate responsibility for safety on rail tracks and at stations rests with Her Majesty's rail inspectorate, which I understand to be within the Health and Safety Executive. Its responsibilities and statutory background remain as they were before the passing of the Railways Act. That is my understanding, on the highest authority of the House of Commons Library.

Day-to-day responsibility for safety belongs to Network Rail—formerly Railtrack—and the train-operating companies. I am confused by the plethora of legislation. The Railways Act brought all railway safety legislation within the framework created by the Health and Safety at Work Act 1974, and confirmed the Health and Safety Commission as a principal provider of policy advice to Ministers on railway safety issues. We may seek clarification later as to whether the Health and Safety at Work Act is still the legal basis for some of the investigations into rail accidents.

Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I took the opportunity last night to have dinner with two friends from the railway industry and showed them the Bill. They thought that it was very good and that it restored necessary safety legislation on the railway industry that had been mistakenly removed in previous years. The hon. Lady suggests that the plethora of legislation is a problem, but experts from the industry say that it is necessary and appropriate.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

I am pleased that the hon. Gentleman had a good dinner. I had a cup of tea with two of my new friends from the railway industry, so they did not do quite so well out of it. I understand that the Act on which one chooses to base the investigation could affect its outcome. If one uses the Health and Safety at Work Act, the Health and Safety Executive may carry out an investigation that may be critical of the Health and Safety Executive. It was put to me, and I now put it to the Minister, that it would be better for inquiries to be conducted under the Tribunals and Inquiries Act 1992. I leave the Minister with that thought, as we may not have reached the appropriate part of the Bill.

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

Before the hon. Lady ends, will she reflect on this scenario? What would she think if someone from the rail industry who had had dinner with me—we have all, apart from the hon. Lady, done well for food—argued that on branch lines, the standards should be the same as for main lines, so that a little train pottering along slowly still had to meet high standards in case it crashed into a high-speed train, even though no high-speed trains would ever be allowed on that branch line? I tried to work out with my industry representative who would have the authority to change the level of standard that applied in order to reduce costs and make branch lines more effective. Between us, we could not work out who,

ultimately, could take that decision. Does the hon. Lady know?

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

If I had the answer, I would be sitting on the Government Benches and the Minister would be sitting on the Opposition Benches.

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

If you had more votes, you would be sitting here.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

All right, I give in.

Let me develop the point. I have mentioned the Railways Act, the Health and Safety at Work Act, and the memorandum of understanding signed by the Health and Safety Commission and the Department of the Environment, Transport and the Regions on 10 October 1996. The memorandum replaced the previous agency agreement between the Health and Safety Commission and the Secretary of State for Transport; Her Majesty's rail inspectorate was transferred from the Department to the Health and Safety Executive on 1 December 1990. I am not sure what Department the Health and Safety Executive is in. I believe that it is still in the Department of Health

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Transport)

It seems that it has now moved to the Department for Work and Pensions—yet another Department to add to the confusion.

Under the memorandum of 10 October 1996, the Health and Safety Executive carries out certain functions on behalf of the Health and Safety Commission for the Secretary of State through Her Majesty's rail inspectorate. The purpose of new clause 18 is simply to draw the various threads together.

I understand that the chief inspector of the rail inspectorate advises the Secretary of State on behalf of the Health and Safety Commission and the Health and Safety Executive on such matters as the approval of new railway works—that does not help the hon. Member for Bath with his branch lines—and monitoring the effectiveness of the new safety regime following the privatisation of British Rail. The chief inspector also has responsibility for producing reports on serious accidents and dangerous occurrences.

Additionally, a separate memorandum of understanding exists between the Health and Safety Executive and the Office of the Rail Regulator. Its purpose is to promote effective co-ordination of the regulatory roles of each body and co-operation between them. Under the memorandum, the rail inspectorate is required to produce an annual report on the safety record of Britain's railways, focusing on the work of the inspectorate and highlighting issues of concern.

New clause 18 was drafted by my hon. Friends and me, and the hon. Member for Bath has raised pertinent points. It would have been helpful to have greater clarification. I am now even less certain about the future roles of Her Majesty's rail inspectorate, the Health and Safety Executive and the Health and Safety Commission—much more uncertain now than I was at the start of the debate. I do not know whether the Minister wants to end my confusion. We have had

a good debate. We shall want to return to the issue later, but I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.