Health and Safety Executive

The Department For Transport's (DFT) Rail Review: Response from the Health and Safety Commission (HSC) and Health and Safety Executive (HSE)

HSC press release: C032:04 - 15 July 2004

The Secretary of State for Transport announced today moves to transfer responsibility for railway safety regulation from HSE to the new Office of Rail Regulation (ORR).

HSC Chair Bill Callaghan said:

"The Commission is naturally disappointed at this decision. Both HSC and HSE have presented robust arguments, factually based with supporting evidence, to DfT during the Review. It is our firm belief that safety regulation should be independent of its industry and that any regulator should have teeth to be able to enforce measures where necessary.

"However, I have assured the Secretary of State that we will do everything we can to make this transition from HSE to ORR work smoothly. The Commission will continue its work to ensure that standards of safety for rail workers and passengers alike are maintained. We are pleased that the Government has clearly indicated that the proposed changes will not see any reduction in levels of railway safety and that the Health and Safety at Work Act will continue to apply. I welcome the assurances from the Secretary of State and his support for HSE's work.

"The Commission appreciates the outstanding contribution made to railway safety by all HSE rail staff; both in the day to day oversight of safety by HM Railway Inspectorate and the rail policy work to take forward the recommendations made by Lord Cullen following the Ladbroke Grove Inquiry.

HSE Director General Timothy Walker said:

"I share the Commission's disappointment in this outcome. I too am grateful for the work of all my colleagues engaged in railway safety. During its time in HSE, HM Railway Inspectorate's oversight of the rail industry's management of health, safety and welfare has seen an overall improvement in safety indicators despite recent serious incidents. Our rail policy advisers have been dedicated to the task of reviewing and revising railway safety legislation and guidance in the light of recommendations made following these incidents, and measures from Europe to modernise the rail regulatory framework. HSE rail staff have set high standards of professionalism and should be proud of what they have achieved within HSE.

"I echo the commitment to ensure that safety standards are maintained. HSE will work closely with DfT and the ORR to ensure a smooth handover of responsibilities; I know that my rail colleagues are capable of meeting this challenge. For my part, I am committed to ensuring that HSE will manage this change effectively and secure comparable terms and conditions for staff who transfer to ORR."

Until the transfer HSE will retain their statutory responsibilities in respect of the regulation of railway safety as set out in the Health and Safety at Work Act 1974.

A recent exchange of correspondence between the HSC Chair and the Secretary of State is below.

Notes to editors

1. The Health and Safety Commission (HSC) and the Health and Safety Executive (HSE) are responsible for the regulation of almost all the risks to health and safety arising from work activities in Britain. HSE's responsibilities derive from the Health and Safety at Work etc Act 1974 (HSWA), which aims to protect workers and the public (e.g. passengers) affected by work activities in all industries. Railway safety has been covered by the HSWA since 1974. Following privatisation railway-specific legislation was revised to address the potential risks from the disaggregation of the industry. Significant change is currently underway driven by proposals - both trade and safety based - for a common European framework for rail and the agenda raised by recommendations made by Lord Cullen following his Inquiry into Ladbroke Grove. The proposed European regime is broadly in line with existing GB health and safety practice.

2. The parts of HSE specifically concerned with rail are: HM Railway Inspectorate (HMRI) and the Policy Group's Rail Policy and Cullen (RPC) Divisions. HMRI includes inspectors and other staff involved in promoting compliance with health and safety law. HMRI is located in HSE offices throughout Great Britain. RPC is based in HSE's London HQ and is responsible for developing and reviewing rail health and safety law and guidance. RPC also provides support to the Channel Tunnel Safety Authority. The Railway Inspectorate was transferred from the then Department of Transport in 1990. Since that transfer key rail safety indicators have shown a steady improvement, despite recent major incidents. Lord Cullen, in his report on the Ladbroke Grove Rail Inquiry recommended that HSE, through HMRI, should continue to fulfil the function of safety regulator for the railways.

3. The Secretary of State for Transport announced the Rail Review on 19 January 2004. The HSC published an immediate response, see press release C003-04 dated 19 January 2004.

4. HSC made public its formal response to the Review on 13 April 2004; see press release C015-04. Documents submitted by to the Review and other relevant material can be viewed at http://www.hse.gov.uk/railways/railreview.htm

5. Letter from HSE chair to SOS transport 1 July 2004

Rt Hon Alistair Darling MP
Secretary of State for Transport
Department for Transport
Great Minster House
76 Marsham Street
LONDON
SW1P 4DR

1 July 2004

Andrew Smith has told me that you have now decided that responsibility for rail safety regulation should be moved from HSE to ORR. You will not be surprised that I am disappointed by this; however now the decision has been taken, it is in everyone's interest that we all do everything that we can to make what could be a prolonged transition work smoothly. I give you my assurance that I, the HSC and the HSE will do so.

HSE have done an excellent job on rail safety over the last 13 years. While there have been a number of serious incidents, all safety indicators have improved over that period. HMRI staff are both competent and dedicated, and will continue to carry the burden of day to day regulation, whoever they work for. Maintaining their morale and commitment is vital. It is important that you recognise publicly HSE's success and the performance of its staff, including those who have worked on the policy side. We will also need your active support during the transitional period.

I assume the reasons for the change are specific to the mainline railway industry which, although improving since the days of Railtrack, still needs to improve its safety culture along with other aspects of performance. The problems were highlighted by the Cullen report. It is vital that HSE's work in the rest of industry is not affected adversely by this decision. We need your help to ensure that HSE's reputation is not damaged by its dealings with an industry that has often preferred recalcitrance to implementation of what is no more than good practice in other industries. The industry also needs to do much better to demonstrate safety leadership. Despite the efforts of Denis Tunnicliffe and Len Porter, RSSB has not achieved that. Indeed the industry responses to your review demonstrated that there is still no unity of purpose here. Although your decision overturns one of Cullen's recommendations it is essential that the wider Cullen agenda is maintained.

In answering the inevitable questions after the announcement, I would like to be able to say that you have given me your personal commitment to safety, reflecting what you have said to me in the past. This means:

  • Ensuring safety is maintained, or improved so far as is reasonably practical. The purpose of the change is not to relax the safety regime as some in the industry appear to want.
  • Continued application of the Health and Safety at Work Act.
  • Having adequate resources for RI work on inspection, enforcement and promotion of good practice to give assurance to the public and to ensure compliance with the law
  • Enforcement action will continue to be taken where that meets the better regulation tests, including of proportionality and transparency.
  • Effective consultation with all stakeholders (not just the railway companies) about the overall approach to regulation, as well as any other proposals.
  • A governance structure for ORR that demonstrates the independence necessary for a safety regulator, including from its other functions, as well as safety competence.

An exchange of letters before the announcement confirming this approach would help provide public reassurance.

I am copying this letter to Andrew Smith.

Yours sincerely

Bill Callaghan
Chair, Health & Safety Commission

6. Letter from SOS transport to HSC chair 14 July 2004

Bill Callaghan Esq
Chair
Health & Safety Commission
Rose Court
2 Southwark Bridge
LONDON
SE1 9HS

Thank you for your letter of 1 July about the Government's intention to transfer rail safety regulation from HSE to the Office of Rail Regulation.

I note your disappointment at the decision which has been taken but I am particularly grateful for your assurance that you, your fellow Commission members and the Executive are committed to ensuring a smooth transition. For my part, I acknowledge the commitment and competence of HSE Rail staff (Both HMRI and the policy staff) and agree that we will need to work closely together if we are to retain their experience, skills and motivation during the transition. I understand that a transition manager has been identified within HSE who can work with DfT and ORR officials on the detailed arrangements.

As I have explained, the change forms part of wider changes to simplify the regulatory regime for the railways and does not stem from criticism of HSE. I do not intend to say anything critical of HSE and would be concerned if others parts of British industry were to interpret the move adversely in their own dealings with HSE. If that does happen, please let me know. Andrew Smith and I will do what we can to emphasise the good work that you are doing.

Until legislation is enacted and a transfer date to ORR agreed, HSE will remain as rail safety regulator with the full powers of the Health & Safety at Work Act. We need to work together in an open way to ensure a successful transition and to ensure that rail safety remains paramount. I will continue to make clear to the industry that I expect them to co-operate with HSE during the transition and that the move is not about giving any less priority to safety matters.

I agree with you that the industry needs to do more to demonstrate safety leadership and, although RSSB has made progress in its first year, it needs to become more effective. This is an area in which I expect to see change from the industry.

Turning to your specific points:

  • I can confirm that I remain personally committed to ensuring that safety remains a priority for the industry. I want to see proportionate, risk-based safety decisions, and to ensure duty holders take responsibility for assessing and managing risk. That does not mean a reduction in the levels of safety. As you are aware, the European rail safety directive requires member states to maintain safety levels and, where reasonably practicable, improve them.
  • Following the transition to ORR, the Health & Safety at Work Act will continue to apply.
  • Providing adequate resources for the railways inspectorate in the future will be a matter for the ORR Board but I do not see why this should be any more of an issue than it has been under HSE.
  • HMRI inspectors will continue to operate under the same statutory framework as now so I would not expect any significant change in enforcement policy. I am sure that the ORR Board will want to ensure the proportionality and transparency which you seek.
  • Questions of how best to consult stakeholders will also become a matter for the ORR Board but again I would not expect any significant change from the commitment to wide consultation which HSE have shown.
  • We will be strengthening the ORR Board so that it is fully able to deal with safety regulation before any transfer from HSE takes place. If we are to achieve a proportionate, risk-based safety regime, I see advantages from safety regulation being located within a body with a broader remit across the industry.

Can I conclude by once again thanking you for the material which HSE have supplied during the review, the professionalism, and commitment which your staff have displayed during these past few months when they have been subject to unfounded criticism from certain sections of the media, and for your support as we move into the transition.

I am copying this to Andrew Smith.

Alistair Darling

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