SAFETY
LEGISLATION
UPDATE
Issue 66
January 2013
This Safety Legislation Update has been compiled by RSSB Ltd following consideration by
the Railway Safety Legislation Committee. Its aim is to identify emerging health and safety
legislation, which may affect the members of the railway industry. The Update is not a
definitive list of legislation and only represents the knowledge available at the time of going
to print. The Update is revised quarterly. No representations are made as to the accuracy
and completeness of the information provided.
Note: Entries in the Update are deleted once they become law. Significant changes to
entries since the previous issue are in bold. Each entry is dated with the month that the
entry was last updated.
RAILWAY SAFETY LEGISLATION COMMITTEE – Terms of Reference
The purposes of the Railway Safety Legislation Committee (RSLC) are to:


alert RSSB members to actual and potential changes to safety related legislation
likely to impact on their operations or business; and
seek to influence and respond in such a way as to ensure that RSSB member
interests are recognised, promoted and protected.
The RSLC will:
- Disseminate early indications and subsequent information regarding legislative
proposals concerning operational or occupational safety or the management/
reporting thereof. This includes European, UK national and rail industry specific
legislation.
-
Identify and consider the implications of such proposals for the UK rail industry
-
Inform and/or review RSSB activity in promoting/protecting its members’ interests in
seeking to influence and/or responding to such proposals1. This may include
preparing and making available to members template responses to formal
consultations.
-
Where appropriate set up working parties or authorise the engagement of specialists
to assist in meeting the above objectives
-
Approve the text of the quarterly Safety Legislation Update
1. The position adopted by RSSB will be in the interests of overall safety in the industry but should not be seen as
necessarily representing the views of all individual members
Safety Legislation Update – January 2013
2
Common abbreviations
ACoP
ACSH
ATOC
CER
CSI
CSM
CST
DfT
ECM
EMF
ERA
HSE
HSWA
IAB
ICNIRP
IM
NSA
NRV
NTR
ORR
RIDDOR
RISC
ROGS
RSD
RSSB
RU
SPG
SPWG
TSI
Approved Code of Practice
Advisory Committee on Safety and Health at Work
Association of Train Operating Companies
Community of European Railways
Common Safety Indicator
Common Safety Method
Common Safety Target
Department for Transport
Entity in Charge of Maintenance
Electro-Magnetic Fields
European Railway Agency
Health and Safety Executive
Health & Safety at Work Act
Impact Assessment Board
International Commission on Non-Ionising Radiation Protection
Infrastructure Manager
National Safety Authority
National Reference Value
National Technical Rule
Office of Rail Regulation
Reporting of injuries, diseases and dangerous occurrences
Regulations 1995
Railway Interoperability & Safety Committee
Railways & Other Guided Transport Systems
Railway Safety Directive
Rail Safety and Standards Board
Railway Undertaking
Safety Policy Group
Safety Performance Working Group
Technical Specification for Interoperability
Safety Legislation Update – January 2013
3
Useful websites
ATOC
BIS
DCLG
DEFRA
DfT
www.atoc.org
www.bis.gov.uk
www.communities.gov.uk
www.defra.gov.uk
https://www.gov.uk/government/organisation
s/department-for-transport
European Commission
ERA
Government News
Network
HSE
Law Commission
http://ec.europa.eu/index_en.htm
www.era.europa.eu/Pages/Home.aspx
http://www.knowledgeview.co.uk/node/10
Network Rail
ORR
RAIB
RSSB
Scottish Law Commission
UIC
Safety Legislation Update – January 2013
www.hse.gov.uk
http://www.justice.gov.uk/lawcommission/ind
ex.htm
www.networkrail.co.uk
www.rail-reg.gov.uk
www.raib.gov.uk
www.rssb.co.uk
http://www.scotlawcom.gov.uk
www.uic.org/
4
CONTENTS
IMPLEMENTATION DATES.................................................................................... 6
SECTION 1 ........................................................................................................ 7
EUROPEAN LEGISLATION (GENERAL) .................................................................. 7
Electro-Magnetic Fields Directive ............................................................................. 8
Musculoskeletal Disorders ......................................................................................... 9
SECTION 2 ...................................................................................................... 11
EU LEGISLATION (RAILWAYS) .......................................................................... 11
Safety Performance Working Group – Common Safety Indicators & Common
Safety Targets ............................................................................................................ 12
Common Safety Methods – Risk Evaluation & Assessment ............................ 14
Common Safety Methods – Conformity Assessment ........................................ 17
Common Safety Methods – Monitoring & Supervision ...................................... 19
SECTION 3 ...................................................................................................... 21
UK LEGISLATION (GENERAL) ........................................................................... 21
Reporting of Injuries, Diseases and Dangerous Occurrences Regulations
1995 (RIDDOR). .......................................................................................................... 22
CD248 – A consultation on the proposed removal of the requirement for the
Health and Safety Executive to approve first aid training and qualifications, a
review of the Approved Code of Practice and the content of associated
guidance...................................................................................................................... 24
CD241 – Proposals to review HSE’s Approved Codes of Practice (ACoPs) 26
CD242 Proposals to exempt from health and safety law those self-employed
whose work activities pose no potential risk of harm to others ...................... 28
Enforcement procedures against drink drivers and other offences ............... 30
SECTION 4 ...................................................................................................... 31
UK LEGISLATION (RAILWAYS) .......................................................................... 31
Level crossing legislation ........................................................................................ 32
Railways and Other Guided Transport Systems (Miscellaneous Amendments)
Regulations ................................................................................................................ 34
SECTION 5 ...................................................................................................... 36
OTHER RAILWAY RELATED CONSULTATIONS ....................................... 36
ORR’s Approach to Transparency ......................................................................... 37
SECTION 6 ...................................................................................................... 39
NEWS ............................................................................................................. 39
Safety Legislation Update – January 2013
5
IMPLEMENTATION DATES
Legislation
Implementation
(Where Known)
EUROPEAN LEGISLATION (GENERAL)
Electro-Magnetic Fields Directive
Musculoskeletal Disorders
October 2013
2013
EUROPEAN LEGISLATION (RAILWAYS)
Safety Performance Working Group – Common Safety
Indicators & Common Safety Targets
Common Safety Methods – Risk Assessment &
Evaluation
Common Safety Methods – Conformity Assessment
Common Safety Methods – Monitoring & Supervision
2nd set of CST’s
adopted April 2011
July 2010/July 2012
January 2011
June 2013
UK LEGISLATION (GENERAL)
Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995 (RIDDOR).
Health & Safety (First Aid) Regulations 1981 –
Proposed revision
CD241 – Proposals to review HSE’s Approved Codes
of Practice (ACOPs)
CD242 Proposals to exempt from health and safety law
those self-employed whose work activities pose no
potential risk of harm to others
Enforcement procedures against drink drivers and
other offences
2013
2012/2013
2013/2014
UK LEGISLATION (RAILWAYS)
Level crossing legislation
Railways and Other Guided Transport Systems
(Miscellaneous Amendments) Regulations
2013
Spring 2013
OTHER RAILWAY RELATED CONSULTATIONS
ORR’s Approach to Transparency
Safety Legislation Update – January 2013
N/A
6
SECTION 1
EUROPEAN LEGISLATION (GENERAL)
Safety Legislation Update – January 2013
7
Electro-Magnetic Fields Directive
BACKGROUND
This represents the third of the suite of physical agents’ directives.
MAIN PROVISIONS
Provisions cover risk assessments; control of exposure (with laid down action values and
limit values); health surveillance and information, instruction and training.
CURRENT STATUS
Although the Directive came into force in April 2004, it was postponed to April 2012, and
subsequently the Employment and Social Affairs committee further extended this to 31
October 2013, to allow further discussion on improvements to the Directive.
A revised draft document (with a corrigendum) has now been developed and passed to the
European Parliament for negotiation. The HSE, who act for the UK in the negotiations, state
that this does not signify political agreement, but is a very important stepping-stone, about
half way through the process. The European Parliament is now looking at both the original
Commission proposal, and the proposal that has emerged from Council, and working
towards a first reading relatively soon.
The draft documents are available at;
http://register.consilium.europa.eu/pdf/en/12/st14/st14020.en12.pdf
The corrigendum containing corrections to the text here:
http://register.consilium.europa.eu/pdf/en/12/st14/st14020-co01.en12.pdf
The draft directive is now based upon The International Commission on Non-Ionising
Radiation Protection (ICNIRP) recommendations and offers more flexibility than the original
published directive. It is intended that there will be a supporting Commission Practical Guide
that may simplify the compliance process by provision of information on the application of
the directive in practical situations.
The HSE (as the UK government representatives) continue to actively encourage the
European Commission to develop a Directive that is proportionate to the risks and does not
put unnecessary burdens on UK businesses.
Once the text of the Directive is finalised, the HSE will update the impact assessment and
prepare for transposing the regulations into UK law. Guidance for UK application is also
planned.
RAILWAY INDUSTRY POSITION
RSSB and LUL representatives will continue to monitor progress and attend industry
meetings to press the railway’s position that the legislation should be proportionate to the
risk. We will continue to brief interested stakeholders, the industry working group and
maintain contact with the HSE (as the UK representative at the EU). RSSB welcomes
industry comment on the drafts and will collate any comments on behalf of the UK rail
industry for forwarding to the HSE. Please email david.knights@rssb.co.uk.
OTHER INFORMATION
An RSSB report into the implications of the original directive is available at:
http://www.rssb.co.uk/SiteCollectionDocuments/pdf/reports/research/T515_rpt_final.pdf
DATE UPDATED:
November 2012
Safety Legislation Update – January 2013
8
Musculoskeletal Disorders
BACKGROUND
Following consultation exercises in 2004 and 2007 into the best way to provide increased
protection against musculoskeletal disorders (MSDs), the European Commission (EC)
proposed a new directive which would merge the existing manual handling and display
screen equipment directives.
In November 2008 the EC’s Advisory Committee on Safety and Health at Work (ACSH)
established a working party including UK employers’ representatives to prepare an opinion
on the development of further legislative initiatives on MSDs. In 2011 the Commission
decided that a new Directive combining and extending the Manual Handling Directive and an
updated VDU Directive should be developed.
Publication of the draft Directive had been expected in April 2012 following scrutiny of the
Impact Assessment by the Commission’s Impact Assessment Board (IAB) on 28th March
2012. However, the IAB rejected the proposal/assessment, because of concerns over the
impact of the proposal on SME’s. The IAB requested that DG Employment Health & Safety
Unit (DG Employment) resubmit a revised Impact Assessment (IA).
MAIN PROVISIONS
The proposal requires all tasks with a physical component to be assessed using four risk
factors: repetitive motion, awkward postures, force and contact stress – although these are
likely to be added to. Vibration is not included, however, as this is covered by the physical
agents’ directive. More workplaces are likely to be covered than hitherto (e.g. train driving
cabs).
CURRENT STATUS
The ergonomics/musculoskeletal disorders dossier is currently being blocked in the EC. An
inter-service steering group (comprising representatives of different Commission DGs)
discussed this dossier on 4th September 2012. There was dissatisfaction expressed with the
current impact assessment (IA), in particular the Commission Secretariat General
highlighted that the IA did not provide enough evidence to support the choice made to come
forward with a new directive in this area.
Following a meeting at the end of September 2012 between DG Employment Director
General and the Andor cabinet, it was decided that they needed to reflect and potentially
adapt the different options they were considering. The EC now favour a Council
Recommendation on Ergonomics (including MSDs) rather than a Directive. They want
to deliver this recommendation before the end of 2013. There is an ACSH Working
Party meeting scheduled to take place on 19th February 2013 to discuss the dossier.
Terry Woolmer, from EEF is the UK business representative on the Working Party.
UK POSITION
It is not yet known what impact a Recommendation might have on the UK. While it will
not be legally binding on Member States (MS), there is an expectation that MS will
take note of or act upon its contents. There is expected to be some formal negotiation
through the EC that HSE will feed in to.
Safety Legislation Update – January 2013
9
RAILWAY INDUSTRY POSITION
The potential impact on train driving cabs is could be significant to the industry, particularly
with older rolling stock.
RSSB’s research called ‘T940 - Identifying, quantifying and managing the risk of
musculoskeletal injuries and illness among train drivers’ was published on 17th April 2012.
The report can be viewed at:
http://www.rssb.co.uk/sitecollectiondocuments/pdf/reports/research/T940_rb_final.pdf
The launch of the MAT Tool (Musculoskeletal Disorder Risk Assessment for Train Drivers)
took place in March 2012, and was held at RSSB’s offices in Angel. The event was targeted
at individuals who are involved in assessing and managing health risks in train drivers.
The tools are available to RSSB member companies who employ train drivers.
OTHER INFORMATION
The HSE and the Health and Safety Laboratory (HSL) produced a downloadable tool called
The Assessment of Repetitive Tasks (ART) tool. This tool helps organisations reduce the
likelihood of their employees suffering from MSDs of the upper limbs associated with
repetitive tasks. http://www.hse.gov.uk/msd/uld/art/
For more information see:
http://www.hse.gov.uk/aboutus/europe/euronews/dossiers/msd.htm .
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
10
SECTION 2
EU LEGISLATION (RAILWAYS)
Safety Legislation Update – January 2013
11
Safety Performance Working Group – Common
Safety Indicators & Common Safety Targets
BACKGROUND
The Railway Safety Directive requires that a series of Common Safety Targets (CSTs) are
set by the ERA on each member state. Member states are required to provide Common
Safety Indicators data (as per Annex 1 of the Safety Directive) to the ERA annually.
MAIN PROVISIONS
The Safety Directive requires CSTs to be implemented for:
(a) individual risks relating to passengers, staff including the staff of contractors, level
crossing users and others, and, without prejudice to existing national and
international liability rules, individual risks relating to unauthorised persons on railway
premises;
(b) societal risks.
The first set of targets (known as the National Reference Values (NRVs)) was introduced in
April 2009 and the second set in April 2011.
CURRENT STATUS
Common Safety Targets:
First assessment of the second set of CSTs/NRVs (other two were against the first set).
Even though the second set of CSTs/NRVs have not yet been formally adopted they have
been used by the ERA in the assessment of the 2010 performance. Details are provided in
the following report.
Report 2012
assessment of CSTs-ver-1.0.pdf
The only member state to fail one of the NRVs was Sweden for NRV 5 relating to
unauthorised persons. The ERA has asked the Swedish NSA to investigate this increase
further. This highlights a problem with the NRV assessment process - although Sweden has
one of the lowest Fatality and Weighted Serious Injury (FWSI) rates of all the member states
for NRV 5 it is being asked to investigate the increase in risk further, when some of the other
member states, that have FWSI rates an order of magnitude higher, have achieved their
NRVs and no further action is required.
This was discussed with the working group and logged as an issue to be discussed when
the CSM for the CSTs are reviewed next year.
Work on the revision of the methodology for calculating the CSTs will start this year.
A recommendation to the EC on the next revision of CSM on CSTs/NRVs is due by 30
June 2015.
Common Safety Indicators guidance
A small number of additional changes to the CSI guidance document have been agreed and
a revised version of the document is now available on the ERA website.
Safety Legislation Update – January 2013
12
Potential future proposals for the further revision of Annex 1 are being developed but no
timescales are yet agreed for this revision. Please pass any suggestions you have for
required changes to Annex 1 to George Bearfield at RSSB so they can be logged with ERA
for consideration by the SPWG in due course. Transport Research Laboratory is working
with RSSB on behalf of ERA on a study of precursors (prospective study into
harmonized train accident precursors analysis and management). This work is due to
be completed by March 2013.
RAILWAY INDUSTRY POSITION
The railway industry, via RSSB, is responsible for providing the CSI data to the ORR by the
end of June each year and the ORR has to submit the data to the ERA by the end of
September. ORR sent its 2011 annual report to ERA at the end of September 2012. The
report is compiled using RSSB-collected CSI data and provides an overview of ORR’s
activities during the previous calendar year. The ERA uses a predefined methodology to
assess progress against the NRVs. Should performance fail to meet the NRVs, the
responsibility for initiating corrective actions rests with the member state (DfT and ORR)
although this will inevitably cascade down to the industry.
OTHER INFORMATION
The revised NRVs were published in the 2011/12 Annual Safety Performance Report
(ASPR), which is available on the RSSB website.
The ERA Safety Performance Annual Report for 2012 can be viewed on the ERA website.
For further information contact George Bearfield at RSSB on 020 3142 5464.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
13
Common Safety Methods – Risk Evaluation &
Assessment
BACKGROUND
The Railway Safety Directive requires that a series of Common Safety Methods (CSMs) are
developed by the ERA to describe how safety levels, achievement of safety targets and
compliance with other safety requirements are assessed in the different member states.
The “CSM on Risk Assessment & Evaluation” is being developed according to Article 6(3)(a)
of Directive 2004/49/EC (Safety Directive).
MAIN PROVISIONS
The Safety Directive requires that a first set of Common Safety Methods (CSM) covering risk
evaluation and assessment methods be adopted by the Commission by July 2012. The CSM
has been developed by the ERA based on an examination of existing methods in the
Member States.
The methods developed by the ERA (with the support of the CSM working group) are
predictive methods to be applied in order to assess the safety of any significant changes
brought to the railway system. The CSM applies to the whole rail system and covers the
assessment of the following changes:
 Construction of new lines or significant changes of existing lines.

Introduction of new and substantially modified technical systems/sub-systems/
equipment.

Operational changes (such as new or substantially modified operational rules and
maintenance procedures).

Significant changes within RU/IM organisations.
The overall process for the CSM relies on hazard identification followed by an assessment of
acceptability via a demonstration that the identified hazards are controlled by, either:

The application of codes of practice (TSIs, NTRs, recognised standards, etc),

Comparison with similar reference systems
or

The application of explicit risk assessment and comparison with risk-acceptance
criteria.
CURRENT STATUS
The first phase of the Regulation, implemented on 19 July 2010, applies to significant
technical changes affecting vehicles and all significant changes concerning structural
subsystems.
The regulation became applicable in full from 1 July 2012.
A guidance document has been issued by the ERA to accompany the Regulation. The CSM
Risk Assessment Working Group is expected to periodically review and update the ERA
Safety Legislation Update – January 2013
14
guidance to ensure it remains fit for purpose, and to monitor the output from the CSM task
forces.
The ORR updated their guidance in December 2012. This can be viewed on the ORR
website.
Three task forces were established to work on the various elements of the CSM – Risk
Assessment & Evaluation, these are Significant Change, Roles and Responsibilities of
Independent Assessment Bodies (RRIAB), and Risk Acceptance Criteria (RAC). The RRIAB
task force and the RAC task force have now concluded their work, and the outputs of these
two task forces were considered by the task force set up to develop the text of the
recommendations on the revised CSM Regulation
Significant Change Task Force
The task force is temporarily dormant but has not been disbanded.
A key element of the regulation is that a duty holder must use a consistent approach when
assessing and introducing a ‘significant’ change. The regulation contains guidelines on how
to assess the significance of the change, but it is left to the duty holder to determine whether
a change is ‘significant’ and therefore when the processes will apply.
Roles and Responsibilities of Independent Assessment Bodies Task Force
The regulations currently require that for projects intended for the international market, the
use of an accredited body should be mandatory. However, the ORR is proposing the
development of less rigorous requirements for purely domestic projects, which would allow
the use of internal assessment bodies.
The ORR has approached UK sector
representatives in order to determine whether to continue to pursue this approach for
domestic projects.
Risk Acceptance Criteria Task Force
In terms of explicit risk estimation, the regulation currently defines one specific example of
risk assessment criteria, for the case of failures of technical systems: For technical systems
where a functional failure has credible direct potential for a catastrophic consequence, the
associated risk does not have to be reduced further if the rate of failure is less than or equal
to 10-9 per operating hour.
Risk acceptance criteria are to be defined so that they are sufficient, but not necessary. The
main advantage of this approach is that equipment manufacturers will know what the
minimum risk criteria is to which a system must be built for it to be accepted in all member
states.
RAC for risks related to human actions
The ERA has established a new task force to make further progress on the topic of RAC for
risks related to human actions. In relation to this, ERA have launched a dedicated study.
The tender procedure ended with the selection of the Swedish company MTO Safety to be
responsible for its completion and the kick-off meeting took place in December 2011. The
first meeting of the new TF took place in March 2012. Part of the terms of reference for the
TF is to follow the work of the study, in order to enable its outcome to be used as a basis for
the development of a proposal for further harmonised RAC in the framework of the CSM
Regulation. Huw Gibson (RSSB) is one of the TF participants.
Safety Legislation Update – January 2013
15
Drafting task force to revise the CSM regulation
The aim of this drafting task force was to develop the text of the recommendations on the
revised CSM Regulation, taking into account the work done by the first three task forces.
One of the key aims of the task force was to expand the current criterion, as defined in the
Regulation, to cover functional failures of technical systems with direct potential for noncatastrophic outcomes. The task force met for the final time on 13 October 2011, and ERA
subsequently submitted a report to Commission at the end of December 2011. This report
summarised the experience collected on the use of the current CSM Regulation and
included as annex the draft text of the revised regulation (excluding modifications to
paragraph 2.5.4 on Risk Assessment Criteria, which were be delivered at a later date).
The proposed text for criteria of paragraph 2.5.4 was, at the request of ERA, subject to a
validation exercise by CER; a CER-agreed position paper was delivered to ERA, containing
the proposed modifications to paragraph 2.5.4. These modifications were considered by the
CSM WG on 21 February, but the WG did not feel in a position to accept the proposed
revisions at that time. This position remained at the ERA WG meeting on 31st May 2012,
and the text of 2.5.4 in the revised regulation therefore remains unchanged compared with
the existing Regulation.
RISC agreed the text of a revised CSM for risk assessment at their meeting held on
23rd & 24th January 2013. The main changes from the current regulation concern the
need for accreditation/recognition of assessment bodies used within the risk
management process. The regulation will come into force when it’s published in the
Official Journal (several months away) and will apply two years after that date.
RAILWAY INDUSTRY POSITION
As risk assessment is a familiar concept in the UK, it is not expected that the application of
the CSM will require any major changes in approach.
The ORR is required to report on the implementation of the CSM Regulation in its annual
safety report to ERA.
RSSB has developed a guidance note on how to apply the CSM to organisational change. It
is available on the RSSB website. The guidance will be included as an Annex to the revised
ORR guidance which is due to be published in December 2012.
OTHER INFORMATION
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
16
Common Safety Methods – Conformity Assessment
BACKGROUND
The Railway Safety Directive requires that a series of Common Safety Methods (CSMs) are
developed by the ERA to describe how safety levels, achievement of safety targets and
compliance with other safety requirements are assessed in the different member states.
The “CSM on Conformity Assessment” is being developed according to Article 6(3)(b) of
Directive 2004/49/EC (Safety Directive).
MAIN PROVISIONS
The CSM on conformity assessment sets out the criteria that National Safety Authorities will
use to assess railway undertakings and infrastructure managers safety management
systems (SMS) and network specific requirements. In order to be granted access to the
infrastructure, a railway undertaking and infrastructure manager must hold a safety
certificate or authorisation respectively. The package will contain the following elements –



Safety Certification Part A – SMS Assessment Criteria and Procedures;
o This is a standard European Certificate – designed to be transferable
between member states.
Safety Certification Part B – Harmonised Requirements, Assessment Criteria and
Procedures;
o This is a network-specific certificate to be issued to cover the particular
requirements of a member state’s network.
Safety Authorisation – SMS Assessment Criteria and Procedures, network specific
Harmonised Requirements, Assessment Criteria and Procedures;
o This is guidance and criteria for the assessment of safety authorisations for
infrastructure managers.
CURRENT STATUS
The CSM for Conformity Assessment was published in December 2010 and came into force
across Europe on 3 January 2011.
The new European assessment criteria can be found on the ORR website (http://www.railreg.gov.uk/server/show/nav.1520), and the revised ORR guidance document was published
on 13th April 2011, which can be viewed at:
http://www.rail-reg.gov.uk/upload/pdf/cert_auth_criteria_mainline.pdf
It is not foreseen that the new assessment criteria will mean many changes to existing safety
management systems, although there will be some changes to the information that needs to
be provided in support of an application for a safety certificate / authorisation.
Further amendments to the CSM are possible due to the difficulty some NSAs are
experiencing with the award of safety certificates under 2004/49.
A peer review on authorisations for placing into service began last year. The UK review took
place in early 2011. A final report was produced in November 2011.
Migration Strategy
As required by the Railway Safety Directive, the ERA has been planning a migration strategy
to a single safety certificate, valid across the EU. The ORR responded to the ERA’s
consultation on the migration strategy during May 2011. There was a workshop held by the
ERA on 29th June 2011 which discussed the results of the consultation exercise and the
Agency’s proposal for the migration to a single European safety certificate. The Commission
has asked ERA to set out in a recommendation what changes to the Safety Directive will be
Safety Legislation Update – January 2013
17
required, and if any new regulations will be needed. ERA has also committed to produce a
progress report on the implementation of the migration strategy, and intends to set up a
programme board to bring together input from work streams such as risk assessment and
operational rules.
The CSM also requires the National Safety Authorities (NSA’s) to supervise
Infrastructure Managers and Railway Undertaking in a consistent manner across
Europe. This is facilitated through Commission Regulation No 1077/2012 (CSM for
Monitoring & Supervision, see page 19), which comes into force on 07 June 2013
setting out the NSAs obligations.
RAILWAY INDUSTRY POSITION
The general position expressed by the sector at the workshop was largely positive in that the
concept of a move towards a single safety certification could indeed be a step forward in the
longer term. However there was a degree of caution expressed by certain sector bodies
(including CER) that it may be too soon to make such a significant change given that the
current system has not yet been fully implemented in all Member States and that there is still
a wide degree of variation in both experience and understanding in implementing the
requirements of the RSD.
These concerns were mitigated in part by the ERA stating that the timescales for introducing
a single safety certificate would be 2020 and that there would be a robust development and
transition strategy in place accordingly.
OTHER INFORMATION
ERA SMS Task Force has created SMS guidance to assist duty holders:
http://www.era.europa.eu/Document-Register/Pages/application-guide-for-SMS.aspx
New SMS web pages from the SMS Task Force are on the ERA Website:
http://www.era.europa.eu/Document-Register/Pages/Welcome-to-the-European-RailwayAgency-Safety-Management-Systems-Wheel.aspx
The final meeting of the ERA SMS Task Force took place on 22nd November 2012,
when it discussed the development of Safety Culture and Human Factors Guidance in
relation to SMS. This is expected to be published in early 2013.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
18
Common Safety Methods – Monitoring &
Supervision
BACKGROUND
The Railway Safety Directive requires that a series of Common Safety Methods (CSMs) are
developed by the ERA to describe how safety levels, achievement of safety targets and
compliance with other safety requirements are assessed in the different member states.
CSMs on Monitoring and Supervision are being developed according to Article 6(3)(c) of
Directive 2004/49/EC (Safety Directive).
The “CSM on Monitoring and Supervision” working group agreed the main concept of the
CSM in June 2010.
MAIN PROVISIONS
As part of the CSM monitoring, rules will be created, focussing on railway undertakings’ and
infrastructure managers’ self-supervision and audit to ensure ongoing compliance with safety
management systems after the award of a safety certificate. As this necessarily affected the
approach National Safety Authorities (NSA) should take to monitoring the SMS, the working
group also considered the NSAs’ role. This included developing harmonised principles for
post award supervision by NSAs in the CSM on Supervision.
CURRENT STATUS
Monitoring
The industry sector taskforce agreed that the CSM on Monitoring shall be applied by RUs,
IMs and ECMs who will also ensure that the risk control measures implemented by their subcontractors are also monitored in compliance with the CSM.
RUs, IMs and ECMs who already have methods or tools in place for monitoring may
continue to apply them so long as they are compatible with the provisions of the Regulation
and described in the SMS of the RU/IM or described in the system of maintenance of the
ECM.
The main requirements of the Regulations are that Transport Operators will need to write
Strategies and Plans for Monitoring, to be included in their SMSs or be referenced within the
SMS. These should coordinate the various monitoring activities such as audits, measuring
SPIs, inspections and recommendations from accident investigations. The monitoring
should prioritise resources on the basis of risk and should lead to action plans to do the
following where relevant:



correctly implement controls
improve existing controls
add new controls
The Task Force has been developing a guide on the CSM on Monitoring since early 2012
and it is proposed that this guide will be completed in early 2013.
Supervision
The separate task force drafting the Regulation on Supervision by NSAs agreed that all
NSAs undertake some sort of planning in order to carry out inspections and audits, and that
they are, or should be, risk-based. The NSA task force issued a draft regulation for task
force members to review. ERA proposed that the CSM contains a general requirement
Safety Legislation Update – January 2013
19
for NSAs to produce a strategy on how to supervise RUs and IMs and this links to
their supervision plan; however NSAs will be given freedom on how the supervision
plan is drawn up and executed, and on how they manage the competence of their staff
in order that they are appropriate to the NSA and the IM / RUs.
Under the regulation, an NSA will be required to:

Have a strategy and plan(s) for supervising IMs and RUs;

Have clear techniques for how to conduct their supervisory activities;

Have clear links between the assessment for safety certificates / authorisations
and supervision activity;

Operate a competence management system for those conducting supervision
activities;

Utilise decision making criteria when evaluating IM and RU activities;

Where necessary (such as cross border railway operation activity) that two or
more NSAs cooperate and coordinate their supervisory activity.
A Task Force made up of representatives across the NSA’s has met regularly, to
develop guidance on how the supervision will be conducted. ERA will shortly be
publishing the guidance on their website.
Regulation 1078/2012 the CSM on Monitoring and Regulation 1077/2012 – the CSM on
Supervision (covering IMs, RUs & ECMs) came into force on 07 December 2012 and
applies from 07 June 2013.
The Regulations were published in the official journal on 17th November 2012 and can be
viewed in the links below.
Regulation 1078/2012 – CSM on monitoring
Regulation 1077/2012 – CSM on supervision
RAILWAY INDUSTRY POSITION
The CSM is seen as high level and fits well with the current practices of the ORR and duty
holders, including ORR’s Risk Management Maturity Model (RM3).
OTHER INFORMATION
RSSB is producing guidance material on Safety Assurance in early 2013 and this will assist
transport operators with the CSM for monitoring requirements.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
20
SECTION 3
UK LEGISLATION (GENERAL)
Safety Legislation Update – January 2013
21
Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995 (RIDDOR).
BACKGROUND
HSE are leading a review of RIDDOR, following the Lofstedt Review, which made
recommendations that HSE should review all its regulations to see if there was scope for
clarification, simplification and removing burdens on industry.
Although the regulation recently changed the requirement for reportable injuries for
workforce from +3 days to +7 days lost, HSE have prioritised another review, and they have
consulted on proposals for further changes to the RIDDOR Regulations.
MAIN PROVISIONS
The aim of the HSE’s proposal to revise what is reported under RIDDOR 95. It is in response
to the Lofstedt review and aims to clarify and simplify RIDDOR, as well as to provide a
reporting mechanism which is appropriate for HSE’s current and anticipated needs.
Under the current proposals, the HSE intended to remove five reporting requirements:





cases of occupational disease, other than those resulting from a work-related
exposure to a biological agent
non-fatal accidents to people not at work
dangerous occurrences outside of higher risk sectors or activities
the reporting by self-employed persons of injuries or illnesses to themselves.
suicides on the relevant transport system.
The current requirement if there is a major injury to a worker is to notify the enforcing
authority by the ‘quickest practicable means’ and follow this up with a written report within 10
days. However, the HSE selects RIDDOR incidents for investigations against published
selection criteria (http://www.hse.gov.uk/enforce/incidselcrits.pdf) The HSE propose to
simplify the list of reportable major injuries to align with the incident selection criteria (apart
from item 10 below) as follows:
1.
2.
3.
4.
Any fracture other than to fingers, thumbs or toes
Any amputation
Crush injuries leading to internal organ damage
Head injuries that result in a loss of consciousness (guidance to be issued explaining
that fainting, seizures etc that lead to head injuries would not be included in the major
injury category)
5. Burns or scalds covering more than 10% of the body
6. Permanent blinding in one or both eyes
7. Any degree of scalping
8. Any asphyxiation from whatever cause
9. Any injury arising from working in a confined space resulting in hypothermia, heatinduced illness, requiring resuscitation or admittance to hospital for more than 24
hours
10. Any diagnosed illness requiring medical treatment, which is reliably attributed to a
work-related exposure to a biological agent or its toxins or infected material (this
enacts a specific requirements of an EU Directive).
Safety Legislation Update – January 2013
22
CURRENT STATUS
The HSE’s consultation on their proposals to simplify and clarify how businesses comply
with the requirements under the RIDDOR 95 began on 2nd August 2012 and closed on 28th
October 2012. They are now analysing the responses to the consultation.
RAILWAY INDUSTRY POSITION
RSSB has concerns about the implications and costs of changing the Safety Management
Information System (SMIS), and how the changes in definitions may affect historic data.
OTHER INFORMATION
The ORR responded to the consultation. They agreed with the HSE’s proposals for the
removal of reporting suicides and occupational diseases from RIDDOR. They disagreed with
the proposal to remove non-fatal injuries to people not at work from being reported under
RIDDOR in relation to railways due to the high passenger/public interface with railway
operations.
Click here to view their response.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
23
CD248 – A consultation on the proposed removal of the
requirement for the Health and Safety Executive to
approve first aid training and qualifications, a review of
the Approved Code of Practice and the content of
associated guidance
BACKGROUND
Following the recommendation made from the Lofstedt review of Health & Safety
Regulations in November 2011 the HSE are revising the Health & Safety (First Aid)
Regulations 1981.
Although the regulations do not state a particular number of first-aid personnel are required,
it does currently stipulate that the training and qualifications for the appointed first-aid person
must be approved by HSE. The Lofstedt report says that this appears to both go beyond the
requirements of the Directive and have little justification. So long as organisations meet a
certain standard, allowing businesses to choose training providers should allow them greater
flexibility to choose what is right for their workplace, and possibly reduce costs.
The review also found that a number of organisations felt the requirement under the
regulations to have a qualified first-aid person appointed in the workplace was an
unnecessary requirement for low-risk workplaces.
Lofstedt also suggested that there should be a revision of guidance clarifying what is suitable
for different environments to help businesses adopt measures that are suitable for their
workplace, and that explains clearly what the regulations actually require. It was therefore
recommended that HSE amends the Health and Safety (First Aid) Regulations 1981 to
remove the requirement for HSE to approve the training and qualifications of appointed firstaid personnel.
MAIN PROVISIONS
The policy objectives for the revision of the regulations are:


Removal of HSE approval of First Aid Training providers, to reduce the burden on
business;
To ensure that businesses can identify first aid courses that are appropriate for their
workplaces and select suitable training providers
To implement the recommendation there is a requirement to change legislation in order to
amend the Health and Safety (First Aid) Regulations 1981.
CURRENT STATUS
The HSE published a consultation document on 22nd October 2012, seeking views
on proposals from HSE to amend Regulation 3(2) of the Health and Safety (FirstAid) Regulations 1981 (S.I. 1981 No. 917) as amended and was intended to build upon the
views received by stakeholders via an online questionnaire in summer 2012.
The consultation proposed the removal of the requirement for HSE to approve first aid
training and qualifications and a review of the associated Approved Code of Practice
(ACoPs) and the content of revised guidance to support employers with the changes.
Specifically, HSE sought views on what guidance would be useful to businesses
when assessing what they need in terms of first aid provision for their particular
circumstances; and in the selection of training providers.
Safety Legislation Update – January 2013
24
These changes are part of HSE’s work to make it easier for businesses and other users to
understand what they need to do to comply with health and safety law, and will be of interest
to businesses of all sizes and from all sectors.
The consultation, which closed on 3rd December 2012, can be viewed on the HSE website.
RAILWAY INDUSTRY POSITION
The industry welcomes this revision and the possible cost reductions that could result.
OTHER INFORMATION
DATE UPDATED
November 2012
Safety Legislation Update – January 2013
25
CD241 – Proposals to review HSE’s Approved
Codes of Practice (ACoPs)
BACKGROUND
On 28 November 2011 Professor Ragnar Löfstedt published his independent review of
health and safety legislation ‘Reclaiming health and safety for all’. The review reported that
overall a wide range of stakeholders supported the principles of ACoPs; however, it was felt
by many that there was room for improvement.
In his report Professor Löfstedt made the following recommendation: “HSE should review all
its Approved Codes of Practice (ACoPs)”. The initial phase of the review should be
completed by June 2012 so businesses have certainty about what is planned and when
changes can be anticipated.
The Government accepted this recommendation and asked HSE to review its 52 ACoPs.
MAIN PROVISIONS
ACoPs are not law but do hold a special legal status. By adhering to the advice in ACoP
material in relevant circumstances duty holders can be confident they are complying with the
law.
HSE is currently reviewing its guidance and presenting it to users in increasing levels of
detail and specificity. These levels of guidance are arranged as follows:
• Level 1 – Health and Safety Made Simple and the revised Essentials of Health and Safety
• Level 2 – The ‘brief guide to…’ hazard based leaflets which explain risks in more detail and
provide information on effective control
• Level 3 – Guidance which goes into more detail and often includes case studies. This
includes:
a) Industry Guidance (INDGs) which are industry or topic based guidance leaflets aimed at
employers and workers.
b) Health and Safety Guidance (HSGs) which provide more comprehensive, detailed advice
often including case studies and can be either topic or sector based.
• Level 4 – Legal series guidance which present regulations, ACoP advice and guidance
The review of HSE guidance aims to make sure that HSE’s portfolio of guidance is useful
and balanced; making it easier for employers to understand and therefore meet their legal
responsibilities.
CURRENT STATUS
The HSE completed the initial review of 32 out of its 52 ACoPs. There are 20 other
ACoPs that have not been reviewed at this time, due to their association with ongoing sector specific consolidations or other regulatory amendments, and therefore
will be reviewed during the delivery of these processes.
At its 5th December 2012 meeting, the HSE Board agreed to the implementation of
most of the proposals set out in the 2012 consultation document. They did not
approve the proposal to withdraw the ACoP for the Management of Health and Safety
at Work Regulations 1999 (Management of health and safety (ACOP L21).
Safety Legislation Update – January 2013
26
The Board decided to look again at the issue once the HSE has published the revised
version of its core guidance on, Managing for health and safety(HSG65).
The HSE proposed a revision, consolidation or withdrawal of 15 ACoPs by the end of
2013.
The following was agreed:
The removal of the ACoPs on Agriculture (ACOP L116) and Pipelines (ACOP L81)
was valid; however, the HSE will put forward two separate papers to the board in
early 2013.
 The revision of Workplaces (ACOP L24) and Hazardous substances (ACOP L5)
 the Dangerous substances and explosive atmospheres (ACOPs L134 - 138)
Asbestos (ACOPs L127, L143), and Gas safety (ACOPs L56, COP20) , which all have
more than one ACoP associated with it, will be consolidated
 The ACoP on Legionella (ACOP L8) will be split into a code and guidance

From the responses received to the consultation, there was strong support to make
minor revisions to all the following 14 ACoPs by the end of 2014.








Diving (ACOPs L103 - 107)
Work equipment (ACOPs L22, L112, L114)
Lifting equipment (ACOP L113)
Confined spaces (ACOP L101)
Pressure systems (ACOP L122)
Hazardous substances - pottery production (ACOP L60)
Hazardous substances - lead (ACOP L132)
Quarries (ACOP L118)
The HSE stated it would make no changes to the ACoP on Worker involvement (ACOP
L146)
The Board agreed to drop the proposal to limit all ACoP documents to a maximum of
32 pages.
The full consultation document, which ended on 14th September 2012, can be viewed at:
http://consultations.hse.gov.uk/gf2.ti/f/16674/438181.1/PDF/-/CD241%20Complete.pdf
RAILWAY INDUSTRY POSITION
The review of ACoPs was supported by the industry and companies were encouraged to
respond to the subsequent consultations on specific ACoPs.
OTHER INFORMATION
For proposed consolidations or revisions of ACoPs there will be further opportunities to
comment on the detail of changes when HSE consults on the text of the revised ACoPs.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
27
CD242 Proposals to exempt from health and safety
law those self-employed whose work activities pose
no potential risk of harm to others
BACKGROUND
In response to a recommendation in the Lofstedt Report, the Government asked HSE to take
urgent action to draw up proposals for changing the law to remove health and safety
burdens from the self-employed in low-risk occupations, whose activities represent no risk to
other people.
The HSWA (section 53) gives a broad definition of a self-employed person. It states a “selfemployed person means an individual who works for gain or reward otherwise than under a
contract of employment, whether or not he himself employs others”.
MAIN PROVISIONS
Lofstedt’s recommendation centres on exempting those self-employed whose work activities
pose no potential risk of harm to others and thus it is appropriate to remove the unnecessary
application of health and safety law.
There are three options proposed to implement Lofstedt’s recommendation, and these have
been drawn as flow charts to explain the approach for each option. The three options
ensure the self-employed person constantly assesses the risk they pose to others and
consequently adjusting their behaviour. It is therefore proposed to exempt only those who
would not be expected to put others at risk at any point in the normal course of their work,
and all three options described are based on this premise.
Option 1 – Exempting from health and safety law, the self-employed who pose no potential
risk of harm to others
This would have the effect that a self-employed person who met the following preconditions
would be exempt from health and safety law:
1. They are self-employed;
2. They do not employ anyone; and
3. When carrying out their work activities/conducting their undertaking or by the
products and services created by the work activities, they must pose no potential risk
of harm to others.
Option 2 – Exempting from health and safety law, the self-employed who pose no potential
risk of harm to others (points 1 – 3 as above in option 1), and who do not work in a high risk
sector as prescribed by the Secretary of State. The ‘prescribed sectors’ who are out of scope
of this exemption are:
i.
Agricultural activities;
ii.
Construction;
iii.
Quarries;
iv.
Mining;
v.
Diving;
vi.
COMAH and sub-COMAH sites;
vii.
Offshire activities;
Safety Legislation Update – January 2013
28
Option 3 – Exempting from health and safety law, the self-employed who undertake officetype activities and pose no potential risk of harm to others. This is similar to option 1, with an
additional requirement to take into account work solely consisting of office-type activities. In
order to be exempt from health and safety, the following preconditions must be met:
1. They are self-employed;
2. They do not employ others;
3. Their work solely consists of office-type activities; and
4. When carrying out their work activities/conducting their undertaking or by the
products and services created by the work activities they must pose no potential risk
of harm to others.
A fourth option would be to make no changes to the legislation at all.
CURRENT STATUS
The HSE’s consultation closed for comments on 28th October 2012. The consultation can be
viewed on the HSE’s website.
The HSE Board will consider the outcome of the consultation at the end of January
2013 and make recommendations to the Minister following this meeting.
RAILWAY INDUSTRY POSITION
OTHER INFORMATION
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
29
Enforcement procedures against drink drivers and
other offences
BACKGROUND
In June 2010 Sir Peter North wrote a report on the review of drink and drug driving law, and
in November 2010 the Transport Select Committee wrote a report on Drink and Drug Driving
Law. The Government responded to both reports in March 2011 proposing legislative
changes on drink and drug driving.
MAIN PROVISIONS
The legislative changes proposed in this consultation relate to Great Britain (and not
Northern Ireland). The proposals are consistent with the devolution of the drink drive limit in
Scotland, through the Scotland Act 2012.
The Government is seeking views on the following proposed changes –





The withdrawal of the ‘statutory option’;
The statutory option gives people the right to replace their breath alcohol specimens
with either a specimen of blood or specimens of urine in cases where the lower of the
two breath readings provided does not exceed 50 microgrammes (mcg) of alcohol
per 100 millilitres (ml) of breath. The consultation seeks to withdraw this right.
Changes as to when preliminary breath tests are needed;
The consultation seeks to remove the requirement for preliminary testing to be done
where two evidential tests have been undertaken away from a police station.
Changes to the testing procedures in hospital;
The consultation seeks views to allow a wider range of registered healthcare
professionals to take evidential blood specimens, and not just hospitals.
Changes to who can assess if someone is under the influence of drugs;
Under the Road Traffic Act (1988) only a doctor can determine if a driver is under the
influence of drugs. The DfT are speaking to stakeholders on whether other
healthcare professionals can form this opinion.
Amendments to the regimes for aviation, rail and shipping which mirror the road
regime.
The legislative changes would apply to the Road Traffic Act 1988. This Act or other
parallel legislative provisions, apply similar measures to the drink drive offence to
railways, shipping and aviation. The consultation seeks views about whether any
changes here should also apply to these other transport sectors.
CURRENT STATUS
The consultation period began on 22nd November 2012 and closed for comments on
2nd January 2013. The DfT are currently analysing the responses.
The consultation paper is available from:
https://www.gov.uk/government/consultations/enforcement-procedures-against-drink-driversand-other-offenders
RAILWAY INDUSTRY POSITION
OTHER INFORMATION
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
30
SECTION 4
UK LEGISLATION (RAILWAYS)
Safety Legislation Update – January 2013
31
Level crossing legislation
BACKGROUND
Following a joint submission by the ORR and the DfT. The Law Commission, together with
the Scottish Law Commission, agreed to carry out a review of the law relating to level
crossings as part of the Law Commission’s Tenth Programme of Law Reform. The project
covers level crossings in Scotland, England and Wales. The Law Commission is a statutory
independent body whose role is to keep the law under review and recommend reform where
needed.
MAIN PROVISIONS
The Law Commission and the Scottish Law Commission are carrying out a project which
examines the legal framework relating to level crossings, with a view to simplify and
modernise. The legislation governing level crossings is complex and antiquated, much of it
dating back to the nineteenth century. At present, the provisions relating to level crossings
are scattered amongst legislation relating to different areas of law. With the legislation
currently contained in public Acts, private special Acts, bye-laws or subordinate legislation,
there is a requirement to attempt to consolidate the law in this area.
This consultation proposes a complete overhaul of existing level crossings legislation, and
particularly looks at:
 the creation of level crossings
 current regulation of level crossings
 level crossing closures
 rights of way and access issues
 criminal offences
 signs and highway code
CURRENT STATUS
Following a review of the current level crossing legislation, the Law Commission and
Scottish Law Commission published a joint consultation paper and wide consultation took
place between July and November 2010, including meetings with a variety of rail, road and
other interest groups and meetings with members of the Commissions’ advisory group. The
Commissions also carried out site visits to Network Rail, heritage railway and tramway
systems.
The Commissions published a paper in July 2010, starting a consultation period which ran
until the end of November 2010. One hundred and fourteen written submissions were
received.
The Commissions attended a large number of consultation events with interested groups,
including RSSB, train operating companies, the Office of Rail Regulation and Department for
Transport, Network Rail, heritage railway and tramway operators, British Transport
Police, dock and industrial site owners, highway authorities, passenger groups, disability
groups, and representatives of level crossing users. Visits were undertaken to level
crossings on the mainline railway, a heritage railway and a tramway system.
After the close of the consultation period, the Law Commissions analysed all the responses
and developed a joint policy paper, setting out their provisional recommendations for
consideration by the Commissioners. The Law Commissions held a meeting with their
advisory group at RSSB in April 2011 to update the group on these provisional conclusions.
Commissioners at the Law Commission and Scottish Law Commission then approved
provisional proposals, including the following:
Safety Legislation Update – January 2013
32

safety and convenience at level crossings should be regulated under the Health and
Safety at Work etc Act 1974 (HSWA 1974), along with regulations and approved
codes of practice made under it;

HSWA 1974 regulations should provide for the issuing of level crossing plans to be
agreed, which would provide site-specific information and directions for individual
level crossings while the generic safety measures would be set out in regulations;

the Secretary of State may direct the terms of a level crossing plan or even direct
maximum downtimes for level crossing barriers where necessary;

the draft bill should impose a duty on rail and highway/roads authorities to cooperate, a duty to consult stakeholders when changes to level crossing
arrangements are proposed, and a duty on the body proposing changes to publish
their proposals;

the draft Bill should provide for a new system for closing private and public level
crossings by means of level crossing closure orders;

ORR should retain primary responsibility for enforcing safety regulation at level
crossings;

no new criminal offences specific to level crossings should be created; and

a power should be created enabling the Secretary of State to make a single set of
regulations in relation to signs at level crossings.
The teams have been working with Parliamentary counsel to prepare a draft Bill
and regulations. These were shared with the Advisory Group on 17 July 2012. The
provisional proposals put forward in the consultation paper represented the Commissions’
initial view about how the law should be reformed. They have now reviewed these proposals
on the basis of the responses to the consultation paper, and the proposed policy has been
approved by the Commissioners of the Law Commission and the Scottish Law Commission.
A draft of the Level Crossings Bill, accompanying regulations and the final report are
expected to be published in early May 2013, together with an analysis of the
responses and a draft Bill.
The full consultation document can be viewed on the Law Commission website.
There is also a summary of the consultation paper available on the Law Commission
website.
RAILWAY INDUSTRY POSITION
RSSB, Network Rail and ATOC responded to this consultation.
OTHER INFORMATION
The ORR is currently in correspondence with Network Rail concerning AOCLs, and it will
also press the Sentencing Guidelines Council to increase the suggested penalties for level
crossing misuse by motorists.
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
33
Railways and Other Guided Transport Systems
(Miscellaneous Amendments) Regulations
BACKGROUND
The European Commission (EC) adopted Regulation 445/2011 on a system of certification
of Entities in Charge of Maintenance (ECM’s) for freight wagons on 10th May 2011. The
revised Railway Safety Directive, which amends the Railway Safety Directive (2004/49/EC),
requires that an ECM for freight wagons obtains a certificate from a certification body to
show that it has a satisfactory system of maintenance. The ORR will initially be a
certification body for ECMs.
Since the publication of the ECM Regulation in May 2011, the UK created a two-stage
implementation plan to transpose the requirements of the revised Railway Safety Directive
and give effect to the ECM. The first implementing instrument, the Railways and Other
Guided Transport Systems (Safety) (Amendment) Regulations 2011, came into force in
Great Britain on 26th August 2011 http://www.rail-reg.gov.uk/server/show/nav.1511
MAIN PROVISIONS
This consultation sets out the proposals for introducing the certification regime for ECM of
freight wagons required under European Directive 2008/110/EC (“the revised Railway Safety
Directive”) in Great Britain, and is the second stage of the ROGS implementation.
The proposed changes to ROGS include:
 Removing the current requirement for mainline operators to carry out safety
verification, which takes into account the introduction of the common safety method
(“CSM”) on risk evaluation and assessment. This will avoid duplication by removing
the need for mainline duty holders to carry out the existing safety verification
requirements in ROGS as well as applying the CSM on risk evaluation and
assessment.
 Amending the definition of ‘mainline railway’ in ROGs to explain what systems are
within scope and ensure that operators of heritage and light rail systems can be
excluded from the requirements applicable to mainline operators where appropriate.
An Approved List of Exclusions will be available on the ORR website.
 Removing the requirement for non-mainline operators to send annual safety reports
to ORR, this will reduce administrative burdens.
 Clarifying that controllers of ‘safety-critical work’ must have suitable and sufficient
monitoring arrangements in place.
 Ensuring that the 28-day ‘affected parties’ consultation period runs concurrently with
ORR’s 4-month processing time for applications for safety certificates and safety
authorisations. This will reduce the time it takes for applicants to receive a safety
certification or authorisation.
 Clarifying the meanings of ‘national safety rules’ and ‘placed in service’.
Train Driving Licences and Certificates Regulations 2010
The draft regulations also contain proposals to amend the Train Driving Licences and
Certificates Regulations 2010 to clarify the meaning of ‘in code form’ in relation to medical
restrictions in train driving licences and reflect the changes made to the definition of
‘mainline railway’ in ROGS.
Safety Legislation Update – January 2013
34
Changes to Health and Safety (Enforcing Authority for Railways and Other Guided
Transport Systems) Regulations 2006
The ORR is proposing to extend the powers of ORR inspectors to give them jurisdiction to
enter, and undertake enforcement in certain premises that are currently excluded from their
remit, i.e. warehouses and factories. This amendment will ensure that ORR inspectors have
the necessary powers to inspect and enforce, on railway operational matters only, in
premises where an ECM may have maintenance facilities.
CURRENT STATUS
The consultation document was published on 30th July 2012, and can be viewed on the ORR
website. The closing date for responses was 23rd October 2012.
ORR is currently analysing the responses to the consultation. The regulations are
expected to come into force in spring 2013 and the ORR’s response will be published
shortly before then. The guidance to ROGS will be amended to reflect the changes
made and will be published at the beginning of February 2013.
RAILWAY INDUSTRY POSITION
RSSB’s response was endorsed by SPG.
OTHER INFORMATION
DATE UPDATED
January 2013
Safety Legislation Update – January 2013
35
SECTION 5
OTHER RAILWAY RELATED CONSULTATIONS
Safety Legislation Update – January 2013
36
ORR’s Approach to Transparency
BACKGROUND
Openness and Transparency are both crucial elements in delivering the Governments’
objectives for strengthened public accountability; public service improvement; and
encouraging wider economic growth through the development of products and services
based on public sector information. Transparency is also a key factor in the Governments’
strategy, which was laid out in its document ‘Better Choices: Better Deals’. In support of this
strategy, the DfT published a Command Paper in March 2012 called ‘Reforming our
Railways: Putting the Customer First’ (http://www.dft.gov.uk/publications/reforming-ourrailways/), which details how this kind of approach could be used within the rail industry.
The ORR has supported this view of transparency in the railways and ‘believes it has a vital
role to play in driving the behavioural changes necessary for industry reform, delivering
better value for money and delivering a customer focussed industry’. In May 2011 the OR
launched the National Rail Trends (NRT) Portal, which provides the public access to a wide
variety of rail statistics. The NRT has a report wizard which enables users to query detailed
data and see key data via tables and charts.
MAIN PROVISIONS
The ORR has published a consultation document to gain views on the ORR’s approach to
transparency. They believe transparency is important in driving the behavioural changes
necessary for industry reform, delivering better value for money and a more customer
focussed industry.
The ORRs vision for the development of more transparency in the rail industry is:





Hold the sector to account by reputation in absolute terms and by comparison;
Hold ORR to account in how they discharge their statutory responsibilities, in the
substance of their decisions and what they spend;
Exposure where the industry spends the money it receives and on what, to enable
passengers, funders and taxpayers to consider whether they are getting value for
money and to support informed choices about future spends including at local level;
Enable passengers and freight customers to exercise choice where available and to
match the service or product to their needs; and
Stimulate the design and introduction of new consumer led services and products by
third party developers with potential downstream commercial applications.
CURRENT STATUS
The ORR has published a consultation document which describes why they believe
transparency is so important, and outlines the current focus and activities of ORR and the
industry. They are seeking views on how they should go about assessing the risks and
benefits of more transparency and what factors they should take into account, including how
we should measure whether their objectives are being achieved.
The consultation document and the responses received can be viewed on the ORRs
website. The closing date for responses was 19th October 2012.
ORR held a stakeholder workshop on 10th December 2012, which was attended by
Colin Dennis of RSSB and other industry stakeholders. This conference discussed
what transparency means in the context of the railways and how they can work
together to deliver the benefits that transparency can bring to passengers, taxpayers
and the industry.
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RAILWAY INDUSTRY POSITION
RSSB responded to the consultation. Click here to view this response.
OTHER INFORMATION
This year the ORR is establishing a way in which to evaluate their effectiveness. Results of
this evaluation will be published in spring 2013.
The ORR published two reports on 23rd November 2012. The first report compares the
expenditure of the 19 franchised Train Operating Companies (TOC’s). The second report
provides an analysis comparing TOCs in Great Britain to those in other European countries.
Both reports are available on the ORR’s website.
DATE UPDATED
January 2013
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SECTION 6
NEWS
Safety Legislation Update – January 2013
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News
HSE to introduce joint HSE/Local Authority Code
In response to a recommendation in the 2011 Lofstedt review, the HSE will introduce a
binding and enforceable code under s.18 of the HSE Act. The code will require Local
Authorities (LA’s) to make adequate arrangements for enforcement in accordance with HSE
guidance. There is a consultation on the HSE’s website, which asks for comments by 1st
March 2013.
ORR to undertake assessment of Network Rail’s Strategic Business Plan (SBP) 201419
On 8th January 2013, Network Rail published its SBP for 2014-19, which is written as a
formal response to the Governments High Level Output Specification (HLOS). The HLOS
details what the Government wants the industry to delivery in Control Period 5 (CP5), 201419. Network Rail’s SBP is a crucial document for ORR’s periodic review (PR13) – the
regulator’s assessment of what Network Rail must achieve during the five years from 2014
to 2019. As part of this assessment, the ORR is seeking the public’s views on Network
Rail’s SBP.
For more information visit the ORR website. The ORR will publish and consult
on the draft PR13 report in June 2013.
Court Cases
English, Welsh and Scottish Railways International (EWSI) prosecuted over teenage
death in disused depot
EWSI was fined £180,000 and told to pay £59,554 in court costs for health and safety
breaches over the death of a 13-year-old who was electrocuted whilst trespassing with two
friends at a disused depot in Allerton during 2009.
The group entered the depot via a gap in the boundary fence. The teenager climbed on top
of a rail wagon, and was electrocuted by the 25,000 Kv overhead power line. The ORR said
his death was caused by EWSI's failure to manage risks at the site, adding that the incident
"could have been prevented".
An enforcement action was taken requiring the company to repair the fence and to turn off
the power supply to the unused overhead lines.
In 2011, EWSI pleaded guilty to one charge under the Health and Safety at Work etc Act and
one charge under the Management of Health and Safety at Work Regulations.
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