Railway Safety (Miscellaneous Provisions) Regulations 1997

Evaluation and consultation on next steps

April 2008 Railway Safety (Miscellaneous Provisions) Regulations 1997 Evaluation and consultation on next steps

Contents

Summary...... 1

Purpose of evaluation...... 1

Purpose and requirements of the regulations ...... 1

Intended effect of the regulations ...... 1

Consultation...... 2

1. Background to the regulations ...... 3

Introduction...... 3

Duties under the regulations...... 3

Exemption Provisions ...... 4

Annex A...... 5

Annex B...... 7

Annex C...... 9

OFFICE OF RAIL REGULATOR• April 2008 Railway Safety (Miscellaneous Provisions) Regulations 1997 Evaluation and consultation on next steps

Summary

Purpose of evaluation 1. This evaluation of the Railway Safety (Miscellaneous Provisions) Regulations 19971 (the regulations) is a formal part of the regulatory process required by the Government’s better regulation agenda. The evaluation’s aims are to: • assess the impact of the regulations against the policy objectives they were introduced to achieve, in terms of their effectiveness and value for money (i.e. cost to duty holders and stakeholders versus value of the benefits); and

• make recommendations either to keep the regulations as they are or review and revise them, or revoke them.

Purpose and requirements of the regulations 2. The regulations were introduced as part of a programme for modernising railway legislation. They replaced a large number of old provisions, dating back as far as 1839. They converted about 100 existing prescriptive requirements into five new goal-setting duties which cover: • preventing unauthorised access to the railway infrastructure (eg by means of lineside fencing);

• providing means of passenger communication with staff on trains;

• preventing collisions and derailments (eg by means of adequate signalling systems);

• providing adequate braking systems; and

• preventing accidents to staff (eg trackside workers) from moving vehicles.

Intended effect of the regulations 3. The regulations were not intended to change railway operators’ safety obligations (including their general HSWA duties), but rather to focus on important aspects of those obligations and to express them in a modern, goal-setting way. The regulations aimed to substantially reduce the total volume of legislation whilst maintaining standards of safety. The five duties are qualified by “so far as is reasonably practicable” and “where appropriate” in order to ensure that safety

1 Statutory Instrument 1997 No. 553 attached at Annex C

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measures are required only if they are necessary in the particular circumstances, taking account of cost as well as benefit. Consultation 4. We are seeking your views to help us determine if the regulations have delivered the objective of providing a coherent, manageable and easily understood package of law, and to help us decide on their future. 5. The enclosed response sheet at Annex A has been developed to allow you to have your say and to influence the way forward. A list of organisations we are consulting is at Annex B. 6. We intend to publish all responses on our website and make them available in our library. Please indicate if you wish all or part of your response to remain confidential to ORR. If your response is made in confidence, please provide us with a statement which we can publish instead, summarising as much of it as is not confidential. 7. We would prefer to receive your responses by Email. You should send these to [email protected] by 12 July 2008. 8. You can also post your comments to: Mrs Chandrika Shah, Domestic Legislation, 2nd Floor, Office of Rail Regulation, 1 Kemble Street, London WC2B 4AN

2 April 2008 • OFFICE OF RAIL REGULATION Railway Safety (Miscellaneous Provisions) Regulations 1997 Evaluation and consultation on next steps 1. Background to the regulations

Introduction 1.1 These regulations were introduced as the last phase in a programme to modernise railway safety legislation following the introduction (in 1994) of new regulations covering railway safety cases, railway safety critical work, the approval of works, plant and equipment and the carriage of dangerous goods by rail. 1.2 Much of the legislation the regulations replaced was very old, some dating back to 1839. It was also prescriptive, and reflected practices and equipment which were uncommon on a modern railway. It needed a thorough overhaul to ensure that standards of safety on the modern railway were maintained and that sufficient flexibility was introduced to accommodate continuing technical developments. The regulations converted requirements dating back as far as 1839 into 5 key, goal-setting duties and repealed other provisions including those of 1871 concerning accident investigations and inquiries (which had been rendered superfluous by clauses in the Health and Safety at Work etc Act 1974 (HSWA) covering similar legal ground). Duties under the regulations 1.3 The regulations (copy attached) place duties on a number of different people. The guiding principle was to place the duty to comply with each of the five requirements on the party most likely to be in control of the matter in question. So the duty to comply with regulations 3 and 5, concerning the prevention of unauthorised access to the railway, collisions and derailments, is placed on the infrastructure controller, while the duty to comply with regulations 4 and 6 concerning the provision of means of passenger communication and suitable and sufficient braking systems rests on vehicle operators. However in the case of regulation 7, which concerns the prevention of accidents to persons at work from moving vehicles, the duty is placed on a number of different people, reflecting the different situations and employment relationships covered by the requirement. 1.4 The regulations apply to ‘transport systems’ as defined. This term covers railways, tramways (but only where they are not operating along a street or other public place) and prescribed systems of guided transport (such as cable railways). Sidings and depots are covered, as well as running lines. Excluded from the scope is any part of the transport system which is: (i) part of a factory or within a maintenance or goods depot, if the gauge is less than 920 mm;

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(ii) above ground at a mine or quarry, if the gauge is less than 1.432 m; (iii) below ground at a mine; (iv) used solely for the purpose of carrying out construction work. 1.5 The duties in regulations 3 to 7 apply to both passenger carrying and non- passenger carrying transport systems which differ widely in nature, size, complexity and in potential risks. Exemption Provisions 1.6 Regulation 8 allows ORR to exempt a duty holder (or class of duty holder) from any of the duties in the Regulations, with or without time limit or conditions. This provision is designed to meet practical difficulties in applying the new requirements to certain kinds of railway. The exemption meant that affected operators would not have to change current practice, but an administrative cost would be incurred in preparing an application for exemption.

4 April 2008 • OFFICE OF RAIL REGULATION Railway Safety (Miscellaneous Provisions) Regulations 1997 Evaluation and consultation on next steps Annex A

Your views Organisation: Your contact details (in case we need to seek more information): Your role in organisation:

Introducing the Regulations 1. How was your organisation affected by the Regulations?

2. If your organisation was affected by them, do you think the new regulations have allowed your organisation to focus more effectively on the five duties?

3. Do you think that the Regulations have enabled better management of safety on the modern railway? (tick which applies)

Yes No Don’t know

Please explain your answer

Outputs of the regulations

4. Did your organisation have to take any new measures to comply with the duties in the Regulations? (tick which applies)

Yes No Don’t know

If you have answered “Yes” above, what were these?

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5. Do you think that the Regulations have achieved savings in management time and costs? (tick which applies)

Yes No Don’t know

If you have answered “Yes” or “No”, please provide details.

Future of the Regulations

6. Is your organisation or industry experiencing difficulties in complying with the Regulations in their present form? (tick which applies)

Yes No Don’t know

If you have answered “Yes”, please explain why.

7. Do you think these Regulations should be retained? (tick which applies)

Yes No Don’t know

Please give reasons for your answer

8. If they are retained, can you suggest any ways in which the Regulations could be improved?

9. If they are revoked, can you foresee any difficulties which would result? (tick which applies)

Yes No Don’t know

Please give reasons for your answer. If you have answered “Yes”, please suggest how these difficulties could be overcome or mitigated.

6 April 2008 • OFFICE OF RAIL REGULATION Railway Safety (Miscellaneous Provisions) Regulations 1997 Evaluation and consultation on next steps Annex B

Angel Trains London Underground Arriva Trains Plc Merseyrail Arriva Trains Wales Merseytravel Arriva Trains Cross Country Ltd Metro ASLEF National Express East Coast Association of Train Operating Companies National Express East Anglia BAA Rail National Express Group c2c Rail Ltd National Union of Rail, Maritime and Transport Workers (RMT) Centro Network Rail Chiltern Railways Nexus Confederation of Passenger Transport UK Northern Rail Ltd Department for Transport Parliamentary Advisory Council for Direct Rail Services Transport Safety (PACTS) Docklands Light Railway Ltd Passenger Focus East Midlands Trams Ltd Permanent Way Institution Eurostar (UK) Limited Leasing Co English, Welsh and Scottish Railway Rail Freight Group First Capital Connect Railway Forum First Group plc Railway Industry Association First Great Western Rail Safety and Standards Board First ScotRail Riviera Trains Ltd Freightliner Ltd Serco Metrolink Gatwick Express Ltd South Yorkshire PTE GB Railfreight Southern Railway Grand Central Southeastern Railway Greater Manchester PTE Midlands Heritage Railways Association Western Trains HSBC Rail UK Strathclyde PTE Hull Trains TransPennine Express Institute of Railway Signal Engineers Transport and General Workers Union Light Rail & Tramways and Metros (TGWU) London & Continental Railways Transport for London (TfL London Rail) London Midland Transport Salaried Staffs’ Association London Overground Rail (TSSA) London Travel Watch Transport Scotland

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Trades Union Congress (TUC) VTG Rail UK Ltd UKTram West Coast Railway Company Unite the Union Wrexham & Shropshire Ltd

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Annex C

STATUTORY INSTRUMENT

1997 No. 553

HEALTH AND SAFETY

TRANSPORT

The Railway Safety (Miscellaneous Provisions) Regulations 1997

Made 28th February 1997

Laid before Parliament 10th March 1997

Coming into force 10th May 1997

The Secretary of State, in exercise of the powers conferred on him by sections 15(1), (2), (3)(a) and (6)(a) and (b), 18, 47(2) and 82(3)(a) of, and paragraphs 1(1)(c) and 18(a) of Schedule 3 to, the Health and Safety at Work etc. Act 1974[1]("the 1974 Act") and of all other powers enabling him in that behalf, and for the purpose of giving effect without modifications to the proposals submitted to him by the Health and Safety Commission under section 11(2)(d) of the 1974 Act after the carrying out by the said Commission of consultations in accordance with section 53(3) of that Act, hereby makes the following Regulations -

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Citation and commencement 1 . These Regulations may be cited as the Railway Safety (Miscellaneous Provisions) Regulations 1997 and shall come into force on 10th May 1997.

Interpretation 2 . - (1) In these Regulations, unless the context otherwise requires -

"1992 Act" means the Transport and Works Act 1992[2]; "1994 Regulations" means the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994[3];

"construction work" has the meaning assigned to it by regulation 2(1) of the Construction (Design and Management) Regulations 1994[4];

"factory" means a factory within the meaning of section 175 of the Factories Act 1961[5] and premises to which section 123(1) or (2) or 125(1) of that Act applies;

"harbour" and "harbour area" have the meanings assigned to them by regulation 2(1) of the Dangerous Substances in Harbour Areas Regulations 1987[6];

"mine" and "quarry" have the meanings assigned to them by section 180 of the Mines and Quarries Act 1954[7];

"prescribed system of guided transport" means a system using a mode of guided transport prescribed by regulation 3 of the 1994 Regulations;

"railway" has the meaning assigned to it by section 67(1) of the 1992 Act;

"station" means a passenger station or terminal of a transport

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system but does not include any permanent way or plant used for signalling or exclusively for supplying electricity for operational purposes to the transport system;

"street" has the meaning assigned to it by section 67(1) of the 1992 Act;

"train of vehicles" means two or more vehicles attached to each other;

"tramway" has the meaning assigned to it by section 67(1) of the 1992 Act;

"transport system" means a railway, tramway or prescribed system of guided transport, except that it does not include any part of such a system which -

(a) employs parallel rails forming a track of a gauge of less than 920 millimetres and is -

(i) part of a factory;

(ii) within a maintenance or goods depot;

(b) employs parallel rails forming a track of a gauge of less than 1.432 metres and is above ground at a mine or quarry;

(c) is below ground at a mine;

(d) runs along and at the same level as a street or in any other place to which the public has access (including a place to which the public has access only on making a payment);

(e) is used solely for the purpose of carrying out construction work;

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"vehicle" means a vehicle which is being used on a transport system and includes a mobile traction unit.

(2) Any reference in these Regulations to the infrastructure of a transport system is a reference to the fixed assets used for the operation of the transport system including its permanent way and plant used for signalling or exclusively supplying electricity for operational purposes to the transport system, but does not include a station.

(3) Any reference in these Regulations to a person in control of any infrastructure of a transport system is a reference to a person who, in the course of a business or other undertaking carried on by him (whether for profit or not), is in operational control of that infrastructure, except that where such control is for the time being exercised by a person undertaking maintenance, repair or alteration work on the infrastructure, it is a reference to a person who would be in operational control of the infrastructure if such work were not being undertaken.

(4) Any reference in these Regulations to a person operating a vehicle is a reference to the person operating the vehicle for the time being in the course of a business or other undertaking carried on by him (whether for profit or not), but it does not include a self-employed person by reason only that he himself drives or otherwise controls the movement of a vehicle.

(5) Any reference in these Regulations to the maintenance of any equipment is a reference to -

(a) the maintenance of that equipment in an efficient state, in efficient working order and in good repair; and (b) where appropriate, subjecting that equipment to a suitable system of maintenance.

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Unauthorised access 3 . - (1) So far as is reasonably practicable, a person in control of any infrastructure of a transport system to which this regulation applies shall ensure, where and to the extent necessary for safety, that unauthorised access to that infrastructure is prevented.

(2) In paragraph (1) "access" means access by any person not at work on the transport system or by any animal.

(3) This regulation applies to any transport system except that it does not apply to any part of such a system which -

(a) is within a harbour, harbour area, maintenance or goods depot; or

(b) is part of a factory, mine or quarry,

where access to the harbour, harbour area, maintenance or goods depot, factory, mine or quarry is adequately controlled.

(4) Breach of a duty imposed by this regulation shall not confer a right of action in any civil proceedings.

Means of communication 4 . The operator of a vehicle which is being used for the carriage of fare paying passengers shall ensure that there is provided and maintained on such a vehicle suitable and sufficient means whereby passengers can communicate with a person who is in a position to take appropriate action in the event of an emergency.

Measures to prevent collisions and derailments 5 . - (1) A person in control of any infrastructure of a transport system shall ensure, so far as is reasonably practicable, that -

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(a) appropriate procedures are in place;

(b) where appropriate, equipment which is suitable and sufficient is provided and maintained,

for the purpose of preventing any of the events referred to in paragraph (2).

(2) The events referred to in paragraph (1) are -

(a) collisions between vehicles;

(b) collisions between vehicles and buffer-stops;

(c) the derailment of vehicles on account of excessive speed or incorrectly set points.

Brakes 6 . The operator of a vehicle shall ensure that a suitable and sufficient braking system is provided and maintained for that vehicle and, where the vehicle is part of a train of vehicles, for that train of vehicles.

Accidents to persons at work from moving vehicles 7 . - (1) A person to whom this regulation applies shall ensure, so far as is reasonably practicable and insofar as they are matters within his control, that -

(a) appropriate procedures are in place; (b) where appropriate, equipment which is suitable and sufficient is provided and maintained,

for the purpose of preventing any person at work on a transport system from being struck by, or falling from, a moving vehicle.

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(2) This regulation applies to -

(a) a person in control of any infrastructure of a transport system; (b) an operator of a vehicle; (c) an employer of a person at work on a transport system; (d) a self-employed person as it applies to an employer and a person at work on a transport system as if that self-employed person were both the employer and the person at work.

Exemptions 8 . - (1) Subject to paragraph (2) and to any Community obligation of the United Kingdom the Health and Safety Executive may, by a certificate in writing, exempt any person or class of persons from any requirement imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by a further certificate in writing at any time.

(2) The Health and Safety Executive shall not grant any such exemption unless, having regard to the circumstances of the case, and in particular to -

(a) the conditions, if any, which it proposes to attach to the exemption; and (b) any other requirements imposed by or under any enactment which apply to the case,

it is satisfied that the health and safety of persons who are likely to be affected by the exemption will not be prejudiced in consequence of it.

(3) Subject to any Community obligation of the United Kingdom, the Secretary of State for Defence may, in the interests of national security, by a certificate in writing exempt any person or class of persons from the requirements of these Regulations and any such exemption may be granted subject to conditions and to a limit of time

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and may be revoked by the said Secretary of State by a further certificate in writing at any time.

Defence 9 . - (1) In any proceedings for an offence for a contravention of any of the provisions of these Regulations it shall be a defence for the person charged to prove -

(a) that the contravention was due to the act or default of another person not being one of his employees (hereinafter called "the other person"); and (b) that he took all reasonable precautions and exercised all due diligence to avoid the contravention.

(2) The person charged shall not, without leave of the court, be entitled to rely on the defence referred to in paragraph (1) above unless, within a period ending seven clear days -

(a) before the hearing to determine mode of trial, where the proceedings are in or Wales; or (b) before the trial, where the proceedings are in Scotland,

he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of the other person as was then in his possession.

(3) Where a contravention of any of the provisions of these Regulations by any person is due to the act or default of some other person, that other person shall be guilty of the offence which would, but for any defence under this regulation available to the first- mentioned person, be constituted by the act or default.

Transfer of functions from the Secretary of State to the Health and Safety Executive 10 . - (1) Any reference to the Secretary of State in -

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(a) sections 41 (other than sub-section (1)) and 45 of the 1992 Act; and (b) the 1994 Regulations,

shall have effect as if it were a reference to the Health and Safety Executive. (2) Any approval, dispensation, notice or written consent granted or given under the 1994 Regulations or direction given under section 45 of the 1992 Act, by the Secretary of State, prior to the coming into force of these Regulations, shall have effect as if it had been granted or given, as the case may be, by the Health and Safety Executive.

Amendments to the Health and Safety (Enforcing Authority) Regulations 1989 11 . The Health and Safety (Enforcing Authority) Regulations 1989[8] shall be amended by -

(a) in regulation 2 -

(i) the substitution of the following for the definition of "railway" -

" "railway" means a railway or tramway with (in either case) a gauge of 350 millimetres or more or a prescribed system of guided transport;";

(ii) the addition of the following after the definition of "preparation dangerous for supply" -

" "prescribed system of guided transport" means a system using a mode of guided transport prescribed by regulation 3 of the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994;";

(b) in regulation 3 -

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(i) the substitution of the following paragraph for paragraph (5) -

" (5)

Notwithstanding paragraph (3), the Executive shall be the enforcing authority for the common parts in a railway station or terminal or in a goods yard which is served by a railway.";

(ii) the deletion of paragraph (6).

Repeals and revocations 12 . - (1) The enactments specified in column 1 of Part I of the Schedule shall be repealed to the extent specified in the corresponding entries in column 2.

(2) The instruments specified in column 1 of Part II of the Schedule shall be revoked to the extent specified in the corresponding entries in column 2. Signed by authority of the Secretary of State for Transport

John Watts Minister of State, Department of Transport 25th February 1997 Signed by authority of the Secretary of State for the Environment

Sir Paul Beresford Parliamentary Under-Secretary of State, Department of the Environment 28th February 1997

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SCHEDULE

Regulation 12

REPEALS AND REVOCATIONS

PART I

Column 1 Column 2

Enactment Extent of repeal

The Highway (Railway In section 1, the words from Crossings) Act 1839 "and any complaint" to the end.

Section 2.

Railway Regulation Act 1842 Section 10.*

Regulation of Railways Act Section 22.* 1868

Regulation of Railways Act The whole Act.* 1871

Regulation of Railways Act Sections 1 and 4.* 1889

Railway Employment The whole Act.* (Prevention of Accidents) Act 1900

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Transport Act 1968 Section 125.

Transport and Works Act 1992 Section 42.

PART II

Column 1 Column 2

Instrument Extent of revocation

The Prevention of Accidents Rules The whole Rules.* 1902

The Locomotives and Wagons (Used Regulations 1 and 2, 5 in Lines and Sidings) Regulations to 7 and 9 to 19. 1906

The Prevention of Accidents Rules The whole Rules.* 1907

The Prevention of Accidents Rules The whole Rules.* 1911

The Coal and Other Mines (Sidings) Regulations 2(2) to 5 Regulations 1956 and 7 to 20.

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The Quarries (General) Regulations Regulations 24 to 26, 1956 27(2) to (5), 28 to 35.

* to the extent that they relate to Great Britain

EXPLANATORY NOTE

(This note is not part of the Regulations)

1. These Regulations make provision with regard to the safe operation of transport systems. They also make other provision. Regulation 2 defines transport systems as meaning, subject to specified exceptions, railways, tramways and prescribed systems of guided transport.

2. Regulation 3 places a duty on infrastructure controllers, so far as is reasonably practicable and where and to the extent necessary for safety, to prevent unauthorised access to the infrastructure of transport systems (subject to specified exceptions).

3. Regulation 4 places a duty on operators of vehicles being used for the carriage of fare paying passengers to provide and maintain means of communication between passengers and a person who in an emergency is in a position to take appropriate action.

4. Regulation 5 provides for infrastructure controllers to ensure so far as is reasonably practicable, that procedures are in place and equipment is provided and maintained for the purpose of preventing collisions and derailments.

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5. Regulation 6 places a duty on vehicle operators to provide and maintain suitable and sufficient braking systems for their vehicles.

6. Regulation 7 provides for specified persons to ensure, so far as is reasonably practicable, that procedures are in place and equipment is provided and maintained for the purpose of preventing persons at work on a transport system from being struck by or falling from a moving vehicle.

7. Regulation 8 provides for certificates of exemption to be granted by the Health and Safety Executive. Regulation 9 provides a defence to any offence under these Regulations where the person charged has taken all reasonable precautions and exercised all due diligence.

8. Regulation 10 provides for certain functions of the Secretary of State under the Transport and Works Act 1992 and the Railways and Other Transport Systems (Approval of Works, Plant and Equipment) Regulations 1994 (approvals of works, plant and equipment and directions limiting speeds and loads) to be transferred to the Health and Safety Executive.

9. Regulation 11 makes minor amendments to the Health and Safety (Enforcing Authority) Regulations 1989 and regulation 12 the repeals and revocations specified in the Schedule.

Notes:

[1] 1974 c. 37; sections 15 and 50 were amended by the Employment Protection Act 1975 (c. 71) Schedule 15, paragraphs 6 and 16 respectively; the general purposes of Part I referred to in section 15(1) were extended by section 117 of the Railways Act 1993 (c. 43). back

[2] 1992 c. 42. back

[3] S.I. 1994/157. back

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[4] S.I. 1994/3140. back

[5] 1961 c. 34. back

[6] S.I. 1987/37. back

[7] 1954 c. 90. back

[8] S.I. 1989/1903 amended by S.I. 1994/669. back

ISBN 0 11 064052 7

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