Independent Accident Investigation— the Right of Each Citizen and Society’S Duty Pieter Van Vollenhoven

Feature Railway Accidents and Safety

Independent Accident Investigation— The Right of Each Citizen and Society’s Duty Pieter van Vollenhoven

In this article I want to turn a spotlight on But Why Independent step, it was limited in some ways because a subject that is very close to my heart— Investigations? the required investigation was not independent investigations into the causes specifically independent and only applied of transport-related accidents and Let me now turn to the need for to the aviation sector. I believe this was incidents. My interest dates from my independence. Why do I believe that because society of the 1950s was unaware national service days as a pilot in the accidents and incidents should be that the scope of a criminal inquiry is Royal Netherlands Air Force. I gained my investigated independently? Because a restricted to discovering the direct cause first experience of investigating accidents judicial inquiry attempting to apportion of an accident, not the underlying causes. as a lawyer and reserve officer and after blame (and perhaps financial Moreover, any possible suspects identified returning to civilian life, I have been compensation for the victims) is not the during such a criminal inquiry are not privileged to chair a number of boards on right ‘instrument’ for finding exactly what obliged to make statements that might transport safety, starting first with the happened. If lessons are to be learned incriminate them. Dutch Road Safety Board. Although the for the future and steps are to be taken to Clearly, establishing the truth by main task of this Board is to advise the prevent the same thing happening again, independent investigation requires Dutch government on road safety policy, it is essential to find out what went wrong statutory guarantees to ensure that we also managed to gain some experience and caused the accident. witnesses are free to tell the truth without of investigating accidents. I have also In fact, it has been known since 1951 that fear of legal consequences. An chaired the Railway Accident Board, a different type of accident investigation, independent investigation cannot be which was established 43 years ago to or what we now call in-depth successful if a government simply carry out independent investigations into investigation, is needed. Although the establishes a committee. Successful, the causes of accidents. The Dutch term ‘independent’ was not used at the independent investigations need to be Transport Safety Board (DTSB) was time, Annex 13 to the International Civil anchored in law with regulations and established on 1 July 1999 for the same Aviation Organization (ICAO) Convention provisions governing the investigators’ purpose to investigate accidents and adopted in 1951 specified that an powers, such as the power to decide incidents occurring anywhere in the investigation into the causes of an which statements and reports can be made transport sector—even including pipelines. accident had to be held separately from public. Moreover, the final report may the investigation into the party or parties not be used as admissible evidence in Why A Right to Independent to blame. subsequent judicial or civil proceedings. Investigations? Although this was a major conceptual In other words, we are talking about two

Because independent investigations are the only way to establish exactly what happened and by establishing exactly what happened, they put an end to any public concern in the aftermath of the accident. In addition to the humane aspect of helping the victims and their families come to terms with their suffering, independent investigations teach lessons for the future to prevent similar accidents happening again. Furthermore, independent investigations make our actions transparent, which helps democracy function properly. In other words, independent investigations are of great significance to society. But only if people have a right anchored in law to independent investigations can we guarantee that they will be carried out. Mr van Vollenhoven (second from left) at site of fatal railway crossing accident in Voorst on 16 June 2000 (DTSB)

14 Japan Railway & Transport Review 33 • December 2002 Copyright © 2002 EJRCF. All rights reserved. entirely different methods—independent and responsibility for the accident, which was other words, the rules of practice—which judicial—with a completely different legal caused by unrepaired track, when it said were being applied even in training— framework for the independent investigation. that it knew the track section was in poor were at odds with the paper rules. And it I have many reasons for feeling so strongly condition and that 81 more sections were turned out that the engineers who had about the need for independent in a similar state. At the time of the 1999 written the rules had never discussed investigations—transparency is one Paddington crash, Railtrack was making matters with the maintenance workers or reason. Safety is a complex subject in all profits of £1.9 million a day but found better vice versa. business sectors and is beset by many safety systems too expensive to install! In the end, the independent investigation conflicting interests. All too often, safety I should like to give two examples that led to very different conclusions about the takes a back seat when profits come into clearly demonstrate the striking difference causes of the accident and the report of play. Indeed, in some cases, the parties between investigation to apportion blame, the Safety Board led to the decision to involved stand to gain if the true causes and investigation into the causes of an drop all criminal charges. of an accident are never revealed. accident. In Holland, a motorist caused Some examples of where safety has played a very serious accident by apparently Tensions between Independent a secondary role to other interests include ignoring a red light. Witnesses stated that and Criminal Investigations designers cutting the number of expensive the light was red, but he insisted that he emergency exits in tunnels; haulage had not seen the light. To the police, it It cannot be denied that there is some companies dangerously overloading seemed quite obvious that he was to tension between the two types of trucks to increase profits; ferry boat blame. But a similar accident occurred investigations. The body of civil law on operators who avoid port delays by not at the same junction 2 years later and the the subject is expanding rapidly and chaining down vehicles in bad weather; witnesses’ statements were almost where criminal proceedings are instituted, or individuals like you and me breaking identical to those of the previous accident. there is an increasing tendency to speed limits because we are in a hurry to Subsequent accident investigation prosecute rather than to drop charges. meet a deadline or get to a meeting. showed that a wet road in combination Moreover, it is impossible to give A recently leaked letter in the aviation with light at a certain angle produced an watertight legal guarantees that the results sector said, ‘It is not the purpose of optical illusion that prevented motorists of independent investigations will not be maintenance to discover defects, but to seeing the traffic lights. used in criminal or civil proceedings. This establish whether the plane can still safely My second example has to do with a train conflict has been the subject of many be used for the coming period.’ that jumped wrongly switched points at international conferences but experience In short, business is often a question of 120 km/h when the normal maximum has shown that independent investigations priorities and sadly, safety is not always a speed for the points in that switched can be carried out in good faith. People priority. I feel that this fact alone is position was 40 km/h. Luck prevented attach so much value to them that the sufficient to justify the need for the train derailing at high speed but the general view expressed at conferences is independent investigations. police were interested because two track that there is a moral obligation to enhance Long before the Space Shuttle Challenger workers were killed. The points were safety through independent investigations crash, there had been memoranda with being serviced when the disaster nearly and if litigation is a risk, then so be it. warnings about possible leaks in the O- happened and had moved because the But there is one another essential rings of the solid-fuel boosters, but maintenance workers had not secured difference between two criminal and suspending the space shuttle programme them according to the rules. At first it independent investigations. I refer here would have been very expensive. seemed clear who was to blame but to independent investigations called Two days before the 2000 Hatfield rail independent investigation showed that incident studies, which are very important crash, Railtrack Chief Executive Gerald no-one had been following the written in enhancing safety. Corbett said that the British railway rules for years. Why? Because if the Since prevention is better than cure, safety privatization had made the nation’s workers followed the book they could boards are now increasingly turning their railways less safe and more chaotic. only service one or two sets of points each attention to incident studies. I recall an Privatization put a structure in place to day, but they were expected to service six incident involving a Boeing 747 that had produce maximum returns for Railtrack or seven sets. been cleared for take-off to Los Angeles shareholders with profits taking priority Moreover, train services were not to be at the same moment a tractor was given over safety. Railtrack admitted disrupted by the maintenance work. In permission to tow an aircraft across the

runway. Weather conditions were poor, solely responsible for investigating their recently, the public has begun questioning but the Boeing 747 pilot was able to abort causes. Not only were such committees the worth of such investigations. If the the take-off at the last minute. It is unlikely regarded as unnecessary, but it was also intention is to learn and if so many that any of the passengers would have felt that their members would soon lose conflicting interests are involved, survived had there been a crash. Although their expertise due to lack of work. investigations must be carried out criminal justice authorities take no action Therefore, in many cases, independent independently of all interests except one— when such incidents occur, they are of investigations are carried out by safety. There must not be even the slightest vital importance to independent government inspectors. The government hint that any other interest has influenced investigations. has increasingly adopted responsibility for the investigation’s findings or Despite the strict distinction between the safety, has largely gained a monopoly over recommendations. But government two types of investigation, there is some safety, and is responsible for both drafting inspectors can never be truly independent cooperation with the justice authorities. At regulations and monitoring compliance. because they are closely involved in the start of an investigation, the police can In fact, modern society identifies drafting regulations and monitoring play a useful role as fact finders. In the government with safety so strongly that compliance, making them both judge and Netherlands, the DTSB gives police officers safety and government have long been jury. As a consequence, people— extra training to enable them to carry out two sides of the same coin. especially victims—have increasingly on-the-spot investigations. We also brief In some cases, to ensure the independence started asking what any involved parties them on the type of accident that should of an investigation, the government might be concealing, although there is be getting their closest attention. appoints a special committee, chaired by nothing to conceal. Any hint of partiality The police reports are sent to both the an independent person, such as a judge. is enough to lead to a public outcry. justice authorities and the DTSB. In turn, But the committee itself is usually made In short, the call for truly independent the DTSB has agreed to report serious up of government inspectors, or people investigations into the causes of accidents offences that it encounters in the course working for them. After all, they have the has become louder and louder but the of its work. We do not report more minor needed expertise and society usually word ‘independent’ has many different offences. For example, if we come across accepts this. Furthermore, this setup is often interpretations. The American Heritage a captain who has been sailing a ship the only practical way of performing an Dictionary defines independent as ‘free without proper papers, we will point this investigation apart from calling in private from the influence, guidance, or control out to him ourselves. consultants or university experts. More of another or others.’ Regretfully, this But if independent investigations are used, any serious accident will require simultaneous independent and criminal investigations, which can lead to problems but is not a reason to abandon independent investigations.

Is the Need for Independent Investigations Still a Subject of Debate?

Whenever a serious accident occurs, the media, general public, victims and their families, members of parliament and the government usually all call for an independent investigation. In short, no- one questions the need for them. But how independent are these investigations in practice? Since serious accidents happen infrequently, few countries have Getting to Amsterdam Airport Schiphol by train is convenient. It is only 15 minute from Amsterdam Central Station permanent independent committees to Schiphol Station directly underneath the airport. (Amsterdam Airport Schiphol)

16 Japan Railway & Transport Review 33 • December 2002 Copyright © 2002 EJRCF. All rights reserved. definition does not apply to many Work frequently gets done twice or not at claiming the same number of lives each independent investigations. all. In practice this means we are faced year as the number of American soldiers In my experience as Chairman of the with an army of inspectors and supervisors lost in 14 years of war in Viet Nam. This International Transportation Safety responsible for enforcing a maze of laws huge loss clearly could not be allowed to Association (ITSA), I have found and regulations. The enforcers seldom grow unchecked and in February 1990, governments reluctant to relinquish their know the powers that each group has or as Chairman of the Dutch Road Safety authority for holding independent what problems they can expect to find. Council and acting on behalf of the investigations. They are convinced that They have no idea when the other groups Deutsche Verkehrssicherheitsrat and the their inspectors act in good faith and they will be holding inspections or what they British Parliamentary Advisory Council for often interpret critical findings as a motion will inspect. Situations like this are both Transport Safety I advised Mr Karel van of no confidence. But what governments a breeding ground for corruption and a Miert, the European Transport fail to understand is that however well threat to safety in general. And when it Commissioner to set up a European Road they carry out investigations, they are comes to projects, safety is often Safety Council. always open to criticism that can only be overlooked completely as in the previous In our talks, Mr van Miert asked us to stopped by setting up independent safety example of tunnel designs with investigate whether the remit could be boards that are publicly funded, anchored insufficient fire escapes. extended to cover the entire transport in law, and address recommendations These types of problems became so sector. We presented our final report in directly to the concerned parties. commonplace in the Netherlands that October 1991, concluding that the Of course, total independence can never government ministries introduced Safety European Commission (EC) did indeed be achieved because a board has to be Impact Reports using checklists covering need an independent advisory council for appointed and funded by government. all safety aspects to prevent corners being transport safety. Unfortunately, the EC did Although some existing safety boards have cut by planners, etc. not adopt our recommendations. their own budgets, they do not have the A third factor that complicates matters is Although such an arrangement would be $60 million needed to salvage an the changing notion of safety as a shared quite normal in the Netherlands, perhaps aeroplane that has crashed into the sea responsibility. Since the 1980s, it was asking too much to expect the like the TWA 800 crash off Long Island government has started to view safety as Commission to fund a permanent and the Swiss Air crash off Halifax a responsibility of society as well. This organization that could be expected to However, both methods of making change has its roots in crime prevention criticize it! appointments and providing funding can as an increasing number of agreements Consequently, in 1993 the Dutch, be transparent and free of allegations of and social ‘covenants’ call on the public German and British safety boards decided partiality. to do their share in crime prevention. I to take matters into their own hands by Another factor making the subject of safety am alarmed at the speed with which this independently establishing the European so complex is what I would call pigeon- notion is spreading to other safety-related Transport Safety Council (ETSC) modelled holing. As I have pointed out, safety has fields. In its report on the TWA 800 crash, on the British Parliamentary Advisory slowly but surely become a government the White House Commission on Aviation Council for Transport Safety (PACTS). responsibility. Often several government Safety and Security (Gore Commission) As a founding and board member, I am departments are responsible for the many recommended, ‘…that government and delighted to say that ETSC has grown into issues that fall under the safety heading. industry come together in a new an authoritative advisor on transport As a result, the wheel is being invented partnership—this new partnership is in safety, serving both the European Union many times over and safety thinking has fact our first recommendation.’ (EU) and its Member States. The Council become very sectional with the result that I am convinced that public-private has been successful due to the inspiring independent investigations may be partnerships of this kind will leave a mark leadership of our Chairman, Herman de completely accepted in one sector and a on the way we tackle the whole issue of Croon, and our Director, Jeanne Breen taboo subject in another. safety in the future. who brought vital experience as Executive As an example, in the Netherlands we Director of PACTS to ETSC. I also like to now have 32 different inspectorates as Establishment of European mention our close cooperation with the well as the regular police force. These Transport Safety Council European Commission, which supports inspectorates compete with each other our reports financially, and the European and have different enforcement regimes. In the late 1980s, Europe’s roads were Parliament.

Madurodam miniature city near The Hague is a 1/25 scale model of famous Dutch buildings and towns. It also has various transport modes including 4 km of railway tracks, etc. (Netherlands Board of Tourism (left) and EJRCF)

International Transportation into aircraft accidents were linked to accidents in every sector, not just Safety Association disciplinary procedures. Our laws were transport. Canada, New Zealand, the only amended in 1990 to bring them into Netherlands, Australia and Indonesia, and In the same year that the ETSC was line with the 1951 ICAO Convention. It many other countries, have set up multi- established, I was working with transport took us 40 years to comply with an modal transport safety boards. safety boards in the USA, Canada and international agreement and I regret to say Third, a permanent independent Sweden to set up ITSA with the aim of that the Netherlands is not an exception. organization like the NTSB can ensure that uniting all the world’s multi-modal safety its recommendations are followed up. boards and several single-mode safety Establishment of National boards with responsibility for carrying out Transportation Safety Board Importance of Following Up independent inquiries into the causes of Recommendations accidents and incidents. ITSA members The only truly independent accident exchange a lot of information, help each investigation board was for many years An independent investigation can only be other with investigations and promote America’s National Transportation Safety successful if the investigators and the report independent investigations worldwide. As Board (NTSB), which was set up in 1967. they produce are of the highest standard. The Chairman of ITSA, one of my jobs is Right from the start, the NTSB was accepted procedure is to send a confidential promoting independent inquiries! responsible for investigating all transport draft report, sometimes complete with accidents in aviation, shipping, railways, recommendations, to all parties for The Roots of Accident roads and pipelines. comments. The board approves the final Investigations In general, the NTSB is the godparent of report. By using this method a consensus can independent investigations; its be reached on what exactly happened. But As I have already pointed out, the roots independence was guaranteed because it apart from the accident analysis, the report of accident investigations date from the was set up as a permanent, autonomous also contains recommendations addressed aviation industry of the 1950s but it took organization with a remit covering all directly to the parties concerned. In the some 30 years until the ICAO Convention transport accidents. In doing so, the Netherlands, these parties are legally obliged concluded that investigations should be Congress aimed to put safety in the to respond within 1 year of the report’s carried out independently. spotlight and a sector-by-sector approach publication. In the USA and Canada, only The EU went a step further in 1994 when would have made this far more difficult. the departments of transport are obliged to EU Directive 94/56 specified that accident The American experience has left a very report back within 90 days. Other parties investigations should be carried out by a strong mark on further developments in respond on a voluntary basis! However, the permanent, independent organization. this field. First, since the NTSB is NTSB places the recommendations (and the As I have said, I firmly believe people independent, no one questions its names of the people involved) on a Most should have a legal right to independent impartiality and its recommendations Wanted list. As a consequence, 80% of the investigation and now they can claim that have great authority. NTSB’s 11,000 recommendations on right in Europe based on this EU Directive. Second, the American experience has improving safety issued over 35 years have However, many countries have been slow taught us that every accident investigation been followed up. I chaired the Dutch Road to transpose both the ICAO Convention and follows the same procedure. As a result, Safety Board for nearly 20 years. Looking the EU Directive into national law. In the Sweden and Finland have set up accident back, our recommendations disappeared into Netherlands, for many years investigations investigation boards to investigate desk drawers much more often than the

18 Japan Railway & Transport Review 33 • December 2002 Copyright © 2002 EJRCF. All rights reserved. NTSB’s recommendations! In short, NTSB has organization like ETSC that would both independent investigations to this taught us many useful lessons. provide a European viewpoint on the sector. various recommendations of the boards • Independent investigations should be Single-sector or and identify where the EC needs to act. anchored in law so that they can be Multi-modal Boards? Later, the national boards could merge kept strictly separate from judicial into a single European Safety Board investigations to apportion blame. Another sensitive issue is the question of comparable to the NTSB. Whenever a serious accident, disaster whether independent investigations or incident occurs, two separate should be organized sector-by-sector or investigations will needed: one into on a multi-modal basis. Are we talking Proposals the causes and another to assign about an Aviation Safety Board, a Railway blame. Accident Investigation Board or a multi- To sum up, I would like to make the • Members of Parliament, government modal Transport Safety Board? following comments. ministers, victims and their families, Experience shows that each transport • Independent investigations into the media, and the public should sector is extremely reluctant at first to work disasters, accidents and incidents are actively lobby for independent together in a multi-modal board. Typically invaluable to society in general and inquiries in their countries. they ask, ‘What has aviation to do with to ensuring safety. They put an end to • The EC should declare EU Directive shipping, or shipping with railways?’ Most public concern in the wake of an 94/56 applicable to all transport multi-modal safety boards are set up under accident, help the victims and their sectors. Later on, independent pressure from parliament usually through families to come to terms with what investigations can be introduced in motions of individual members. has happened, teach lessons for the sectors such as defense, industry, I do not advise countries to set up single- future, and prevent the same thing health, environment, etc. sector boards. The trend is now towards happening again. an integrated approach to safety. They are an important aid in The public has a right to live in a society Investigators need training and safeguarding democracy by making where causes of accidents, etc., are investigations always follow the same our actions transparent. investigated truly independently. I procedure whatever the accident. • In many cases, investigations to sincerely hope that the EC and the Recommendations have to be followed up apportion to blame are not the right European Parliament will do all in their and the procedure is the same whatever instrument to discover exactly what power to promote independent the accident. Practice has shown that went wrong because they tend to look investigations in the EU. I separate boards are too poorly equipped at direct causes and not underlying to do their job properly and they are causes. Moreover, suspects are not Acknowledgement always at risk of cost-cutting. obliged to make self-incriminating This article is a synthesis of two speeches presented The key to high-quality investigations is statements. in 1999 at the International Symposium on to join forces, to work together, both • Under the provisions of the ICAO Independent Accident Investigation in Tokyo and in nationally and internationally. I do not know Convention and EU Directive 94/56, 2001 at the European Transport Safety Council in of a single multi-modal transport safety board people can only claim a legal right to Brussels. that would want to split into five separate independent investigations in the sector-based boards. The international aviation sector. However, there is no trend is to set up multi-modal boards. legal or moral logic to restricting

National or Single EU Board? Pieter van Vollenhoven Mr van Vollenhoven is Chairman of the International Transport Safety Association (ITSA), board member This brings me to my final point—should of the European Transport Safety Council (ETSC), and husband of HRH Princess Margriet of the Netherlands. After graduating in law from Leiden University in 1965 he became a pilot in the Royal Europe be aiming for national boards or a Netehrlands Airforce. He has been Chairman of the Dutch Road Safety Council, the Railway Accident single European board? I believe our first Board and many other victim support, wildlife and other organizations. aim should be to set up national boards under the umbrella of a European