Focusing on the cause of railway accidents
establishing a Rail Accident Investigation Branch
the TUC response to Establishing a Rail Accident Investigation Branch, Department for Transport Consultation Paper
The TUC supports the creation of a Rail Accident Investigation Branch (RAIB). We want to see the highest standards of safety on the railways, and that requires root cause examination of the causes of accidents so that lessons can be learnt for the future.
The RAIB needs to be:
· independent: of the industry, of Government and of the regulators in the industry, so that its integrity cannot be questioned, and so that there are no ‘no-go’ areas. In particular, the lesson of recent enquiries has been that if the RAIB is dependent on the railway industry, it will be unable to exercise sufficient independence to do the right things or maintain public confidence;
· funded properly: the RAIB needs high quality staff and adequate resources, but it must not be funded from taking money from the other vital tasks of enforcement and regulation (which is the role of the Health and Safety Executive railways inspectorate) nor the improvement of safety on the network. Prevention must have the highest priority and must therefore have the first call on available resources;
· boundaried: the relationship between the RAIB and other actors, such as HSE and British Transport Police, needs to be established clearly and early; and
· targeted on root cause analysis: the job of the RAIB is not to identify the immediate causes of an accident or any of the superficial circumstances. It must operate a no-blame approach to individuals in order to get to the heart of the problem and ensure that systemic management failings are identified and therefore can be remedied. But a no-blame approach from the RAIB should not prevent the HSE continuing to enforce health and safety standards on the railways, including serving notices, investigating possible breaches of the law, and prosecuting where appropriate in accordance with the HSC Enforcement Policy Statement.
The consultation paper Establishing a Rail Accident Investigation Branch, issued in July 2002 by the Department for Transport, asked a series of questions. Railway unions have made their own, more detailed responses. This chapter sets out the summary views of the trade union movement.
What will RAIB do?
Comments were invited on the proposal (3a) that it is made a specific statutory objective of the RAIB that its fundamental purpose should be to undertake investigations and enquiries which look for the root causes of accidents without apportioning blame or liability.
The TUC agrees with this approach, which borrows from the regimes in marine and aviation transport, which are reported by unions to be running well.
Comments were invited on the proposal (3b) that the RAIB be given the power to undertake an investigation on a railway (network, track or rolling stock), a tramway, or a transport system which uses another mode of guided transport but which is not a trolley vehicle system.
The TUC agrees with this proposal.
Comments were invited on the proposal (3c) that the RAIB should not be under a duty to investigate accidents in the Channel Tunnel or on or near the border with Northern Ireland, but it should have powers drawn widely enough to allow it to do so.
We agree with this proposal.
Comments were invited on the categories of occurrences, incidents (3e) and accidents (3d) that would be subject to RAIB investigations.
The TUC is concerned that the definition of accidents quoted in the consultation document are not those in use by Railway Safety - for example, accidents includes 'injuries to passengers, staff or members of the public that are not major injuries. Shock is not classified as a minor injury within RIDDOR 1995 although it has been included as a minor injury in the Safety Risk Model.' We believe that the RAIB should investigate a certain proportion of minor incidents as well as the major ones. We agree with the definition of an incident, and we agree with the proposal on occurrences.
How will RAIB work?
- Comments were invited on the proposal (4a) that a duty be placed on any relevant person, including any contractor or agent, to preserve evidence.
The TUC agrees with this proposal, although we would note that rail unions would want to see a major reduction in the use of outside contractors and agencies within the industry. All routine maintenance track work should be considered for bringing back in-house, by labour directly employed by Railtrack or Network Rail.
- Comments were invited on the proposal (4b) that the RAIB have an unfettered right of access to accident sites but be under a duty to protect the chain of evidence.
We agree with this proposal.
- Comments were invited on the proposal (4c) that certain categories of information or data, such as medical or private information or opinions expressed in the analysis of information or data, should not be disclosed without the order of the court.
We agree with this proposal.
- Comments were invited on the proposal (4d) that no statement made by any witness in connection with an RAIB investigation or inquiry may be disclosed to the police or the HSE save by the order of a judge unless the witness concerned agrees, and that a judge would need to consider whether the wider public interest outweighed any impact that disclosure might have on the investigation.
The TUC agrees with this proposal. We also believe that the judge would have to take account of the effect of any such decision on future investigations as well as the one underway - we note that no such application has been made successfully under the AAIB or MAIB regimes, because to grant such an application would undermine the whole point of the no-blame approach.
- Comments were invited on the proposal (4e) that the RAIB release details of those who had given evidence in the course of an RAIB investigation or inquiry.
We agree with this proposal. However, we believe that people who give evidence in the course of an RAIB investigation or inquiry should have the right to legal or union representation.
- Comments were invited on the proposal (4f) that a duty be placed on the Chief Rail Accident Inspector to ensure that infrastructure managers, railway undertakings, safety authority (HSE), bereaved and injured, emergency services, representatives of staff and users, owners of damaged property, and manufacturers are, as far as possible, kept informed about the progress of an investigation. In addition, where appropriate, arrangements should be made to provide a private briefing to those injured in a crash and to the next of kin and close families of fatalities before an RAIB investigation report is published.
The TUC believes that this proposal should refer directly to trade unions rather than just the ‘representatives of staff’, and we would include union representatives of work colleagues (albeit their briefing might be separate). We would also include the need to provide counselling to those injured and to the next of kin and close family of fatalities, and work colleagues of any railway personnel.
- Comments were invited on the proposal (4g) that no statutory provision be made in respect of inquiries, but the Chief Inspector should in due course develop the circumstances and means whereby observers might attend RAIB inquiries.
We agree with this proposal, and trust that the creation of the RAIB will remove or at least reduce the need for lengthy and expensive public enquiries. However, the issue needs to be kept under review.
- Comments were invited on the proposal (4h) that reports should be made publicly available normally within 12 months of the date of the accident or incident, or in the shortest possible time, in the manner that the Chief Railway Accident Inspector thinks fit.
The TUC agrees with this wording, but we would not want ‘the shortest possible time’ to be longer than 12 months. We do not want long waits because certain incidents are judged to be ‘abnormal’.
- Comments were invited on the proposal (4i) that reports should not be made public until any person or organisation whose reputation may be adversely affected by the report is informed by notice and has been given the opportunity to make representations.
We agree, but do not want this to be used as a delaying tactic - organisations in this position should be given a time limit in which to respond.
- Comments were invited on the proposal (4j) that the inspector be required to consider any representations made prior to the publication of the report.
Again, we agree with this proposal, but do not want this to lead to further delay or allow undue pressure to be put on the inspector. Perhaps another clause could be added making it clear that while the inspector is required to consider any representation, they are required neither to accept any representations or explain their reasons for not doing so.
- Comments were invited on the proposal (4k) that a copy of the report is sent to any person on whom notice has been served (4i), those injured or bereaved in an accident/incident, those persons or bodies to whom recommendations have been made and to the Secretary of State.
We assume that this includes trade unions in the industry, and in that circumstance, we agree. We generally believe that all those covered by 4f should be covered by the provisions in 4k.
- Comments were invited on the proposal (4l) that interim reports promulgating urgent safety lessons be published when necessary.
We agree.
- Comments were invited on the proposal (4m) that the power to hold public inquiries into rail crashes remains with the Health and Safety Commission and subject to the consent of the Secretary of State.
We agree.
Interfaces with other organisations
- Comments were invited on the proposal (5a) that all accidents be reported to the RAIB at the same time as they are reported to the HSE and BTP.
We agree.
- Comments were invited on the proposal (5b) that the RAIB would have the right to obtain HSE and industry reports and analysis.
We agree.
- Comments were invited on the proposal (5c) that the RAIB should issue guidance to the industry in regard to good practice on formal inquiries and accident investigation and that it should monitor the working of the co-ordinated arrangements in the industry.
We are concerned that while this might flow from accident investigations, the main function of the RAIB should be to conduct such investigations.
- Comments were invited on the proposal (5d) that the RAIB examine reports of industry investigations and that the Chief Rail Accident Inspector have the power to look for trends and lessons in near misses or precursors and to provide periodic short reports of any investigation recommendations to bring matters of local or national importance to the attention of the industry.
We agree.
- Comments were invited on the proposal (5e) that the undertaking of investigations by the RAIB will not affect the responsibilities of the industry, HSE or BTP to undertake their own investigations, or in the case of the BTP for the coroner, as required.
We agree, subject to the comments above.
- Comments were invited on the proposal (5f) that the RAIB and the HSE, BTP, the police service, Railway Safety (or its successor) and CPS should enter into non-statutory protocols for joint working.
The TUC believes that these protocols should be agreed well ahead of legislation, and need the force of a statutory basis, as there have been problems between some of these bodies in the past. This has happened most recently at Potters Bar, where Railway Safety have had problems in gaining access to technical evidence from HSE so that they can explore the causes of the malfunctions of the points. Assurances have been given that such information will be given, but there has been no indication of when.
- Comments were invited on the proposal (5h) that the Rail Industry Safety Body maintain records on the state of progress towards implementation of all recommendations arising from RAIB investigations and inquiries and industry formal inquiries, and that this not be set out in statute.
We agree.
Structure and governance
- Comments were invited on the proposal (6a) that the structure and governance of RAIB should follow the AAIB and MAIB models.
The TUC agrees. However, we are very concerned that there are implications in this chapter of the consultation document that staffing might be at the expense of HMRI. The skills and expertise of the Railways Inspectorate must be protected within HSE so that prevention has the highest priority.
- Comments were invited on the proposal (6b) that a non-statutory secondment programme of appointments to the RAIB from the rail industry be encouraged.
The TUC believes that there may be conflicts of interest for the individuals concerned, but there could be advantages in using the experience such individuals have. We therefore believe that clear guidelines, or a code of conduct, would need to be drawn up and monitoring (including seeking the views of unions) should take place to ensure they were fit for purpose and being applied.
Funding and resources
- Comments were invited on whether the provision of funding to the RAIB be made through grant in aid? (7a)
We agree. However, it is critical that this should not reduce the amount of money available for the HSE/HMRI to carry out its functions. Prevention, as indicated above, must have the first call on resources. The grant in aid should therefore be through the Department for Transport and not (nor at the expense of) the DWP.
- Comments were invited on whether industry would be prepared to provide assistance and access to specialist equipment either free of charge or at a nominal charge? (7b)
We agree that the industry ought to provide these services free or at minimal charge, and if industry proves reluctant then a levy should be introduced. We suggest that a review is carried out in due course to identify whether the provision is working. The TUC also believes that the RAIB should have ready access to HSL or equivalent bodies, and that free access to such resources should be underpinned by statute.
Scotland, Wales and Northern Ireland
- Comments were invited on the proposal (8a) that the RAIB would operate in Scotland and Wales on the same basis as the MAIB and AAIB.
We agree.
- Comments were invited on the proposal (8b) that Government provide a power to enable the RAIB to provide services in Northern Ireland if requested.
We agree.
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