Safety Legislation Update
Issue 68
July 2013
Author:
Suzanne Taberneso
Operational Feedback Advisor
RSSB
Block 2, Angel Square
1 Torrens Street
London EC1V 1NY
020 3142 5492
suzanne.taberneso@rssb.co.uk
Safety Legislation Update No. 68; July 2013
1
Foreword
This Safety Legislation Update has been compiled by RSSB following consideration by the
Railway Safety Legislation Committee. Its aim is to identify emerging and revised health
and safety legislation and supporting documents, 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.
How to use this update
The Legislation implementation and update status table
This provides details on the proposed implementation dates of the updated/new legislation
contained in this update together with a column showing whether the entry has been
updated or is new to this issue.
Entries and updates

New entries to the update are identified as such in their titles

Significant changes to entries since the previous issue have been identified with a 15%
shading.

Each entry is dated at the end with the month that the entry was last updated.

Entries in the update are deleted once they become law.
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 proposals.1 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; July 2013
2
Contents
Foreword
2
How to use this update
2
Railway Safety Legislation Committee – Terms of Reference
2
Contents
3
Abbreviations and acronyms
4
Related websites
5
Legislation Implementation and update status
6
Section 1 - European Legislation (General)
7
Electro-Magnetic Fields Directive (2004/40/EC amended by 2008/46/EC)
Musculoskeletal Disorders
Section 2 - EU Legislation (Railways)
8
10
12
Safety Performance Working Group – Common Safety Indicators & Common Safety Targets 13
European Regulation on the Common Safety Methods – Risk Evaluation & Assessment
15
European Regulation on the Common Safety Methods – Conformity Assessment
18
European Regulation on the Common Safety Methods – Monitoring & Supervision
20
The Fourth Railway Package
22
Section 3 - UK Legislation (General)
CD241 – Proposals to review HSE’s Approved Codes of Practice (ACOPs)
25
26
CD242 – Proposals to exempt from health and safety law those self-employed whose work
activities pose no potential risk of harm to others
30
CD243 – Proposals to simplify and clarify Reporting of Injuries, Diseases and Dangerous
Occurrences Regulations 1995 (RIDDOR) reporting requirements.
32
CD248 – Proposal to remove the requirement for the HSE to approve first aid training and
qualifications under The Health and Safety (First-Aid) Regulations 1981 (as amended)
34
CD251 – Proposal to revise the guidance for duty holders to decide the appropriate
arrangements for the provision of first-aid under The Health and Safety (First-Aid)
Regulations 1981 (as amended)
36
Enforcement procedures against drink drivers and other offences
37
Section 4 - UK Legislation (Railways)
Level crossing legislation
38
39
Railways and Other Guided Transport Systems (Miscellaneous Amendments) Regulations
2013
41
Section 5 - Other railway related consultations
44
ORR’s Approach to Transparency
45
Consultation on the rules, Regulations, coroner areas and statutory guidance
47
Section 6 – News
49
News
50
Key Diary Dates
52
Court Cases
53
Safety Legislation Update; July 2013
3
Abbreviations and acronyms
ACOP
Approved Code of Practice
ACSH
Advisory Committee on Safety and Health at Work
ATOC
Association of Train Operating Companies
CER
Community of European Railways
CSI
Common Safety Indicator
CSM
Common Safety Method
CST
Common Safety Target
DfT
Department for Transport
ECM
Entity in Charge of Maintenance
EMF
Electro-Magnetic Fields
ERA
European Railway Agency
HSE
Health and Safety Executive
HSWA
Health & Safety at Work Act
IAB
Impact Assessment Board
ICNIRP
International Commission on Non-Ionising Radiation Protection
IM
Infrastructure Manager
MoJ
Ministry of Justice
NSA
National Safety Authority
NRV
National Reference Value
NTR
National Technical Rule
ORR
Office of Rail Regulation
RE&A
Risk Evaluation and Assessment
RIDDOR
Reporting of injuries, diseases and dangerous occurrences Regulations 1995
RISC
Railway Interoperability & Safety Committee
ROGS
Railways & Other Guided Transport Systems
RSD
Railway Safety Directive
RSSB
Rail Safety and Standards Board
RU
Railway Undertaking
SPG
Safety Policy Group
SPWG
Safety Performance Working Group
TSI
Technical Specification for Interoperability
Safety Legislation Update; July 2013
4
Related websites
ATOC
www.atoc.org
BIS
https://www.gov.uk/government/organisations/depart
ment-for-business-innovation-skills
DCLG
https://www.gov.uk/government/organisations/depart
ment-for-communities-and-local-government
DEFRA
https://www.gov.uk/government/organisations/depart
ment-for-environment-food-rural-affairs
DfT
https://www.gov.uk/government/organisations/depart
ment-for-transport
European Commission
http://ec.europa.eu/index_en.htm
ERA
www.era.europa.eu/Pages/Home.aspx
Government News Network
http://www.knowledgeview.co.uk/node/10
HSE
www.hse.gov.uk
Law Commission
http://www.justice.gov.uk/lawcommission/index.htm
Network Rail
www.networkrail.co.uk
ORR
www.rail-reg.gov.uk
RAIB
www.raib.gov.uk
RSSB
www.rssb.co.uk
Scottish Law Commission
http://www.scotlawcom.gov.uk
UIC
www.uic.org/
Ministry of Justice
https://consult.justice.gov.uk/
Safety Legislation Update; July 2013
5
Legislation Implementation and update status
Legislation
Implementation date Updated in
(where known)
this issue?
EUROPEAN LEGISLATION (GENERAL)
Electro-Magnetic Fields Directive
October 2013

Musculoskeletal Disorders
By end of 2013

Safety Performance Working Group – Common Safety Indicators &
Common Safety Targets
2nd set of CSTs
introduced Apr 2011

European Regulation on the Common Safety Methods
– Risk Assessment & Evaluation
July 2012 & May
2015

European Regulation on the Common Safety Methods
– Conformity Assessment
January 2011

European Regulation on the Common Safety Methods
– Monitoring & Supervision
June 2013

The Fourth Railway Package
Unknown

CD241 – Proposals to review HSE’s Approved Codes of Practice
By the end of 2013
CD242 – Proposals to exempt from H&S law, the self-employed
whose work activities pose no potential risk of harm to others
TBC


CD243 – Proposals to simplify and clarify the Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
October 2013

CD248 – Proposal to revise the approval of first aid training and
qualification under the Health & Safety (First Aid) Regulations 1981–
October 2013

CD251 – Proposal to revise guidance on the provision of first-aid
equipment under the Health and Safety (First-Aid) Regulations 1981
October 2013

Enforcement procedures against drink drivers and other offences
Unknown
EUROPEAN LEGISLATION (RAILWAYS)
UK LEGISLATION (GENERAL)
UK LEGISLATION (RAILWAYS)
Level crossing legislation
September 2013
Railways and Other Guided Transport Systems (Miscellaneous
Amendments) Regulations 2013 and supporting guidance
May 2013


OTHER RAILWAY RELATED CONSULTATIONS
ORR’s Approach to Transparency
Unknown
Consultation on the Rules, Regulations, coroner areas and statutory
guidance
25 July 2013
Safety Legislation Update; July 2013

6
Section 1 European Legislation (General)
Safety Legislation Update; July 2013
7
Electro-Magnetic Fields Directive (2004/40/EC amended by
2008/46/EC)
BACKGROUND
This is the third Directive of the suite of physical agents’ Directives. Directive 2004/40/EC
was published in 2004, but was never fully transposed by member states (including the UK)
on the advice of the Commission.
Directive 2013/35/EU of the European Parliament and of the council of 26 June 2013 on
the minimum health and safety requirements regarding the exposure of workers to the risks
arising from physical agents (electromagnetic fields) (20th individual Directive within the
meaning of Article 16(1) of Directive 89/391/EEC) and repealing Directive 2004/40/EC was
published in July 2013. The published document is available here: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:179:0001:0021:EN:PDF.
MAIN PROVISIONS
Provisions cover risk assessments; control of exposure (with laid down action values and
exposure limit values); health surveillance and information, instruction and training.
The Directive addresses the protection of workers exposed to electromagnetic fields and
the carrying out of effective and efficient risk assessments, proportional to the situation
encountered at the workplace.
It also defines a protection system that graduates the level of risk in a simple and easily
understandable way and commits the European Commission to producing practical
guidelines to assist employers in meeting their obligations under the Directive.
The Directive contains technical annexes setting out the exposure limit values. Member
States have the option of maintaining or adopting more favourable provisions for the
protection of workers, in particular the fixing of lower values for the “action levels” or the
“exposure limit values” for electromagnetic fields.
CURRENT STATUS
Although the initial Directive was published in April 2004, substantial issues arose with the
Directive as published, and it was postponed to April 2012, and subsequently to 31 October
2013, to provide time for new proposal to be developed and agreed. The UK HSE
Radiation Policy Team played leading role in the negotiations, with strong support from UK
stakeholders.
The new document updates the 2004 Directive that was never transposed into law in the
UK. Directive 2004/40/EC will be repealed by the new Directive and it is expected that that
the Directive will be transposed into national law by all Member States by July 2016.
Employers will control Electro–Magnetic Fields (EMF) exposure to avoid adverse health
effects and manage safety risks in a graded approach to control, based upon the
International
Commission
on
Non-Ionising
Radiation
Protection
(ICNIRP)
recommendations. It is more practicable to apply, with measurable ‘indicative’ action levels
and ‘limiting’ Internal exposure limit values (ELV). There are also derogations for those
justified to work above the ELV whilst avoiding adverse health effects and managing safety
risks
Further guidance will be available through the Commission Practical Guide and UK specific
guidance that will be developed by the HSE Radiation Team.
Safety Legislation Update; July 2013
8
The UK government is required to transpose the EMF Directive into the UK legislative
framework within three years of the publication in the EU Official Journal. Significant parts
of the Directive are already covered by the Management of Health and Safety at Work
Regulations 1999, but new legislation may be required, in which case the implementing UK
law will generally use the same wording as the Directive.
PRACTICAL GUIDES
In order to facilitate the implementation of the Directive, the Commission plan to issue nonbinding practical guides by 1 February 2016. Those practical guides may simplify the
compliance process by provision of information on the application of the Directive in
practical situations, and will include the following issues:
1. The determination of exposure, taking into account appropriate European or
international standards.
2. Guidance on demonstrating compliance in special types of non-uniform exposure in
specific situations, based on well-established dosimetry.
3. The description of the "weighted peak method" for the low frequency fields and of the
"multi-frequency fields summation" for high frequency fields.
4. The conduct of the risk assessment and, wherever possible, the provision of simplified
techniques, taking into account in particular the needs of SMEs.
5. Measures aimed at avoiding or reducing risks, including specific prevention measures
depending on the level of exposure and the workplace characteristics.
6. The establishment of documented working procedures, as well as specific information
and training measures for workers exposed to electromagnetic fields during MRI-related
activities falling under Article 10(1a).
7. The evaluation of exposures in the frequency range from 100 kHz to 10 MHz, where
both thermal and non-thermal effects are to be considered.
8. The guidance on medical examinations and health surveillance to be provided by the
employer in accordance with Article 8(2).
In addition, UK specific guidance will be developed by the HSE Radiation Team, working
closely with the UK industry.
RAILWAY INDUSTRY POSITION
RSSB and LUL representatives will continue to participate in the transposition process,
development of UK guidance and attend industry meetings to confirm 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. RSSB
welcomes industry comment 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
The Vehicle Traction Energy System Interface Committee has indicated that further
research may be needed to update this report in the light of the revised Directive.
DATE UPDATED: July 2013
Safety Legislation Update; July 2013
9
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 Display Screen Equipment 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 28 March
2012. However, the IAB rejected the proposal/assessment, because of concerns over the
impact of the proposal on small and medium enterprises. The IAB requested that DG
Employment Health & Safety Unit (DG Employment) resubmit a revised impact assessment
(IA).
Late in 2012 the European Commission announced that it was considering options to
progress work on this dossier. It appears that the EC is actively considering producing a
council recommendation rather than a new Directive.
The HSE expected the EC1 to consult on this proposal in spring 2013. The EC hopes that
the finalised text will be adopted by the European Council before the end of 2013.
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 –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 4 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. The ACSH Working Party met on the
19 February 2013 and the 13 March to discuss the dossier.
Terry Woolmer, from EEF is the UK business representative on the Working Party.
Information on the working party can be found here:
http://ec.europa.eu/social/BlobServlet?docId=8882&langId=en
1
There is no update on this
Safety Legislation Update; July 2013
10
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.
Although HSE welcomes the news that the Commission is considering alternatives to a
Directive, have not seen the draft text and is unable to provide any comments at this time
RAILWAY INDUSTRY POSITION
The potential impact on train driving cabs 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 research brief 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. The event was targeted at
individuals who are involved in assessing and managing health risks in train drivers.
The tool is available to RSSB member companies who employ train drivers and supports
companies in the assessment and management of MSD risk factors associated with the
cab design, the driving task and individual factors.
RSSB human factors specialists developed a guidance tool by drawing together information
from existing sources such as:

HSE's Assessment of Repetitive Tasks (ART) tool

People size (2008) anthropometric data

Health and safety legislation and guidance

Musculoskeletal disorder management guidance

Data supplied from train operators relating to: repetition involved in operating controls,
forces involved in operating controls and vibration exposure

Information from standards

Methodology for measuring anthropometric dimensions and train cab dimensions

Bespoke training material developed for the tool
The tool was authorised for publication by the project steering group and endorsed by the
ATOC Safety Forum and the Operations Focus Group, which has sponsored this research
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. The tool can be found here: 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
July 2013
Safety Legislation Update; July 2013
11
Section 2 EU Legislation (Railways)
Safety Legislation Update; July 2013
12
Safety Performance Working Group – Common Safety Indicators &
Common Safety Targets
BACKGROUND
The Railway Safety Directive (2004/49/EC) requires that ERA sets Common Safety Targets
(CSTs) for each member state. Member states are required to provide Common Safety
Indicators (CSIs) data to ERA on an annual basis (as per Annex 1 of the Safety Directive).
MAIN PROVISIONS
Common Safety Targets apply to all member states. Because of the different levels of
safety performance across the EU, ERA has supplemented these with National Reference
Values (NRVs), which are specific to each state. NRVs reflect baseline levels of safety in
each state and performance is assessed against these to ensure that safety levels are at
least being maintained.
NRVs and CSTs are expressed in terms of fatalities and weighted serious injuries
normalised by a measure of exposure, such as train km, and cover six areas: passengers,
workforce, unauthorised persons, level crossing users, others, and whole society.
The CSIs are primarily used to assess performance against the CSTs and NRVs, although
additional information is collected, for example on accident precursors and accident costs.
CURRENT STATUS

Common Safety Targets:
ERA published the 2013 Assessment of Achievement of Common Safety Targets in
March. It assesses performance for the calendar year 2011. UK performance was
deemed acceptable in all of the areas covered by CSTs / NRVs.
The ERA Task Force on the Common Safety Method for Assessment of Achievement
of Safety Targets held its second meeting on 28 May. Its remit is to define
requirements, evaluate the current method, and propose modifications. The next and
final meeting of the Task Force is 12 September, and after this an Evaluation and
Recommendations Report will be put forward to the Safety Performance Working Party.
There is unlikely to be radical change for the next revision, which must be submitted to
the EC by June 2015, but the Task Force will also consider the longer term
development of the assessment process.
The Task Force has identified several problems with the current method, including:
(i)
member states with the best performance may be most likely to fail the
assessment because the effect of statistical noise is greater;
(ii)
it does not encourage the harmonisation of safety levels and there is no evidence
that this is being achieved;
(iii) problems with data quality; and
(iv) a lack of clarity about what happens when a member state records a possible or
probable deterioration in performance.
Marcus Dacre (RSSB) is a member of the Task Force, on delegated authority from
ORR.
Safety Legislation Update; July 2013
13

Common Safety Indicators guidance
ERA published the latest version of the Implementation Guidance for CSIs in May. It
incorporates minor changes, as agreed at the February meeting of the Safety
Performance Working Party.
Additional proposals to revise Annex 1 have been agreed by the Safety Performance
Working Party. The main proposal relates the classification of level crossings.
Further proposals are still being debated, with input various industry bodies. These
include changes to the collection and calculation of economic indicators, following an
EC recommendation to omit these from the data collection process.
RAILWAY INDUSTRY POSITION
The railway industry is responsible for providing CSIs to the ORR by the end of June each
year. RSSB co-ordinates the collation of CSI data and reports this direct to ORR: there is
no longer a requirement for transport operators to include CSI data in the Annual Safety
Reports they submit to ORR. ORR will submit the national CSI data by end September
2013 as part of its Annual Safety Report to ERA.
The industry’s Annual Safety Performance Report 2012/13, published by RSSB, which can
be found here: http://www.rssb.co.uk/SPR/REPORTS/Pages/default.aspx presents a
provisional assessment of GB performance against the NRVs/CSTs for 2012 and
concludes that safety performance in all categories was acceptable.
Please pass suggestions for changes to Annex 1 to George Bearfield
george.bearfield@rssb.co.uk ; CER Deputy, or Peter Moran peter.moran@orr.gsi.gov.uk;
UK rail representative. So they can be logged with ERA for consideration by Safety
Performance Working Party; or
Please pass suggestions for changes to the method of assessing performance against
CSTs/NRVs to Marcus Dacre marcus.dacre@rssb.co.uk for consideration by the CST Task
Force.
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
14
European Regulation on the Common Safety Methods – Risk
Evaluation & Assessment
BACKGROUND
The Railway Safety Directive (2004/49/EC) 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.

Original Regulation
The CSM on Risk Evaluation & Assessment was developed according to Article 6(3)(a)
of Directive 2004/49/EC (Safety Directive). The Regulation has applied since 1 July
2012 to all significant changes to the railway system – ‘technical’ (engineering),
operational and organisational. The Regulation can be found here: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:108:0004:0019:EN:PDF

Revised Regulation
Following the work of the CSM on Risk Evaluation & Assessment working group and its
task forces, in January 2013, a revised version of the Regulation was adopted by the
Railway Interoperability & Safety Committee (RISC). The revised version was published
in the Official Journal of the European Union on 3 May 2013 and will apply from 1 May
2015. The principal amendments relate to the recognition and accreditation of
Assessment Bodies. The revised Regulation can be found here: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:121:0008:0025:EN:PDF
The ORR guidance will be amended in due course.
MAIN PROVISIONS
The CSM on Risk Evaluation and Assessment (CSM on RE&A) was developed by the ERA
based on an examination of existing methods for safety risk management in the Member
States. There are several task forces engaged with looking at how to interpret the current
and revised Regulations, they are 
Significant Change
The task force is dormant but has not been disbanded.

Roles and Responsibilities of independent Assessment Bodies (ABs).
To ensure trust in risk assessments, ABs should either, be accredited /certified or
recognised by the Member State. The accreditation scheme will be based on
recognised standards (ISO 17020 or EN45001) with additional specific requirements for
competence and independence.
ORR accepts the view that for projects intended for the international market, the use of
an accredited assessment body should be mandatory. However, we are proposing the
development of less rigorous requirements for purely domestic projects, which would
allow the use of internal assessment bodies.
At the final working group meeting the issues around the lesser requirements for
assessment bodies for significant changes which do not require mutual recognition
were dealt with by the insertion of some text to make it clear that only the requirements
of paragraph 1 of Annex II were to be relaxed i.e. those relating to compliance with
EN17020 ‘General Criteria for the Operation for Various Types of Bodies Performing
Inspection’
Safety Legislation Update; July 2013
15
The following text for ‘domestic changes’ has been agreed in the revised Regulation:
“Where the risk assessment for a significant change is not to be mutually recognised,
the proposer shall appoint an assessment body meeting at least the
competency, independence and impartiality requirements of paragraph 1 of Annex II.
The other requirements of Annex II may be relaxed in agreement with the NSA in a
non-discriminatory way.”

Risk Acceptance Criteria
ERA has circulated a document outlining a plan to take forward development of an
explicit harmonised RAC to be a part of a future revision of the CSM on RE&A. Initially
ERA has requested that concerned actors (NSAs, Representative Bodies, RUs, IMs
etc.) validate their proposed definition for the future RAC. They then plan to circulate a
first draft of the RAC as soon as possible. RSSB will coordinate a UK industry view to
inform ORR’s response to this paper.
During the next revision of the CSM on RE&A, ERA intended to include further RAC for
technical systems. CER/ EIM has launched an exercise to try and take the RAC forward
and feed into ERA’s work. RSSB has responded to a CER questionnaire.
ERA held a workshop on 25 to 26 June to discuss the CSM RAC. CER proposed a
longer timescale for their validation work as there consider there are a number of
questions and issues that ERA needs to address. However, ERA want to stick to the
existing plan and deadline of mid-October for input to the RAC validation. RSSB gave a
presentation outlining that validation needs to consider whether the functional failure
rate (less than or equal to 10-9) will be acceptable if achieved and what development
process could be accepted as appropriate demonstration for each level of functional
integrity.
RSSB will submit previous work on validation tailored to the RAC outlined in the ERA
proposals, and outlining clearly the assumptions made regarding the crucial RAC
issues as part of this work. RSSB’s work may form part of the CER submission
depending on progress with clarification of RAC issues within CER, EIM and ERA. If
this is not possible the work will be submitted by RSSB as an individual company,
rather than as part of the CER submission, although CER will be kept informed. ERA is
planning to present the validation work in mid-November.

RAC for risks related to human actions
The first meeting of the new ERA task force for RAC for risks related to human actions
took place in March 2012. Part of the terms of reference for the task force is to use the
outcome of the MTO Safety study as a basis for the development of further harmonised
RAC in the framework of the CSM on RE&A. Huw Gibson; huw.gibson@rssb.co.uk is
one of the TF participants.
As part of the work stream for the provision of a harmonised RAC for risks related to human
actions ERA has launched a Study on the assessment and the acceptance of risks related
to human errors within the European railways. The results are expected soon and a group
including NSA and GRB representatives will assess how they should be taken forward and
feed into a future revision of the CSM.
CURRENT STATUS
-
Safety Legislation Update; July 2013
16
RAILWAY INDUSTRY POSITION
As risk assessment is a familiar concept in the UK, it is not expected that the application of
the current and revised CSM on RE&A will require any major changes in approach.
The ORR is required to report on the implementation of the CSM on RE&A in its annual
safety report to ERA.
OTHER INFORMATION
Further information can be sourced from RSSB’s Management of Engineering Change
website page:http://www.rssb.co.uk/ManagementOfEngineeringChange/pages/default.aspx
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
17
European Regulation on the Common Safety Methods –
Conformity Assessment
BACKGROUND
The Railway Safety Directive (2004/49/EC) 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 CSMs on Conformity Assessment have been developed according to Article 6(3)(b) of
Directive 2004/49/EC (Safety Directive).
The CSM for assessing conformity with the requirements for obtaining railway safety
certificates was published on the 10 December 2010 and came into force across Europe on
3 January 2011. It can be found here: http://www.era.europa.eu/DocumentRegister/Documents/Regulation_1158_2010-CSM_on_Conformity_assessment.pdf
The CSM for assessing conformity with the requirements for obtaining railway safety
authorisations was published on the 11 December 2010 and came into force across Europe
on 3 January 2011. It can be found here: http://www.era.europa.eu/DocumentRegister/Documents/Regulation_1169_2010-CSM_on_Conformity_assessment.pdf
MAIN PROVISIONS
The CSMs on conformity assessment sets out the criteria that National Safety Authorities
(NSAs) 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;
– This is a standard European Certificate – designed to be transferable between
member states.

Safety Certification Part B – Harmonised Requirements, Assessment Criteria and
Procedures;
– 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;
– This is guidance and criteria for the assessment of safety authorisations for
infrastructure managers.
CURRENT STATUS
The new European assessment criteria can be found here:(http://www.railreg.gov.uk/server/show/nav.1520), and the revised ORR guidance document was
published on 13 April 2011, which can be viewed here: http://www.railreg.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.
Safety Legislation Update; July 2013
18
Further amendments to the CSMs are possible due to the difficulty some NSAs are
experiencing with the award of safety certificates under the Railway Safety Directive
2004/49/EC.
A peer review on authorisations for placing into service took place in the UK 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 29 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 asked ERA to set out in a recommendation what changes
to the Safety Directive will be required, and if any new Regulations will be needed. This
is now in the current draft of the revised safety Directive, under consultation as part of
the Fourth Railway Package. 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 NSA’s to supervise Infrastructure Managers and Railway
Undertaking in a consistent manner across Europe. This has been achieved through
Commission Regulation No 1077/2012 (CSM for Supervision, see page 22), which
came into force on 7 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 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. There is not currently a high degree of technical standardisation
across Europe, which implies some on-going need for Part B assessment.
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
Application guide for the design and implementation of a Railway Safety Management
System was published in May 2013 and can be found here:
http://www.era.europa.eu/Document-Register/Documents/ERA-GUI-10-2013SAF%20V%201.pdf
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
19
European Regulation on the 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 have been developed according to Article 6(3)(c) of
Directive 2004/49/EC (Safety Directive).
The Regulations were published in the official journal on 17 November 2012 and apply from
7 June 2013.
Regulation 1078/2012 CSM on monitoring can be found here: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:320:0008:0013:EN:PDF
Regulation 1077/2012 CSM on Supervision can be found here:
http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:320:0003:0007:EN:PDF
MAIN PROVISIONS
As part of the CSM on monitoring, rules will be created, focussing on railway undertakings’
and infrastructure managers’ self-supervision and audit to ensure on-going 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 sub-contractors 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 CSMs on Monitoring and Supervision are that Transport
Operators will need to write strategies and plans for monitoring, to be included in their
SMS 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
RSSB has published guidance for industry on the CSM for monitoring which can be
found here:
http://www.rssb.co.uk/NP/Documents/CSM%20Regulation%20A4%20Leaflet.pdf
Safety Legislation Update; July 2013
20

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 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. The International Liaison Group of
Government Railway Inspectorates (ILGGRI) has currently held three supervision task
force meetings. ERA has also held a task force and has produced guidance on how an
NSA can use the CSM to implement a supervision system it can be found here:
http://www.era.europa.eu/Document-Register/Documents/ERA-GUI-04-2012SAF_Guidance%20on%20CSM%20Supervision%201%200-clean.pdf
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): http://www.railreg.gov.uk/upload/pdf/management-maturity-model.pdf
OTHER INFORMATION
RSSB are developing industry guidance on Safety Assurance which will be published in
August 2013. This will assist transport operators with the CSM for monitoring requirements.
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
21
The Fourth Railway Package
BACKGROUND
The ERA published proposals for the ‘Fourth Railway Package’ on 31 January. The
package
is
a
complex
series
of
proposals,
summarised
at:
http://ec.europa.eu/commission_2010-2014/kallas/headlines/news/2013/01/fourth-railwaypackage_en.htm
There are three main components to the technical pillar of the package, where new
proposals for safety legislation are put forward:
•
Interoperability Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0030:FIN:EN:PDF
•
Safety Directive:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0031:FIN:EN:PDF
•
Agency Regulation:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0027:FIN:EN:PDF
MAIN PROVISIONS
The proposals in the Fourth Railway Package focus on four key areas, summarised by the
Vice-President of the European Commission in charge of transport as:

Standards and approvals that work:
The Commission wants to cut the administrative costs of rail companies and facilitate
the entrance of new operators into the market. Under the new proposals, the European
Rail Agency will become a “one stop shop”, issuing EU wide vehicle authorisations for
placing on the market as well as EU wide safety certificates for operators. Currently rail
authorisations and safety certificates are issued by each Member State. The stated
expectation is that these proposed measures would allow a 20% reduction in the time
to market for new railway undertakings and a 20% reduction in the cost and duration of
the authorisation of rolling stock, leading overall, to a saving for companies of €500
million by 2025.

Better quality and more choice through allowing new players to run rail services:
To encourage innovation, efficiency and better value for money, the Commission is
proposing that domestic passenger railways should be opened up to new entrants and
services from December 2019. Companies will be able to offer domestic rail passenger
services across the EU: either by offering competing commercial services or through
bidding for public service rail contracts, which account for a majority (over 90%) of EU
rail journeys and will become subject to mandatory tendering. The stated expectation is
that these proposals would bring clear benefits to passengers in terms of improved
services, increasing choice that, combined with structural reforms, could by 2035
produce more than €40 billion of financial benefits for citizens and companies involved
and would allow provision of up to an estimated 16 billion additional passenger-km.
Safety Legislation Update; July 2013
22

A structure that delivers:
To ensure that the network is developed in the interests of all players, and to maximise
operational efficiencies, the Commission is proposing to strengthen infrastructure
managers so that they control all the functions at the heart of the rail network –
including infrastructure investment planning, day-to-day operations and maintenance,
as well as timetabling. Faced with numerous complaints from users, the Commission
considers that the infrastructure managers must have operational and financial
independence from any transport operator running the trains. This is essential to
remove potential conflicts of interest and give all companies access to tracks in a nondiscriminatory way. It is stated that, as a general rule, the proposal confirms
institutional separation as the simplest and most transparent way to achieve this. Rail
undertakings independent of infrastructure managers will have immediate access to the
internal passenger market in 2019. However, the Commission can accept that a
vertically integrated or “holding structure” may also deliver the necessary
independence, with strict firewalls to ensure the necessary, legal, financial and
operational separation.
Compliance Verification Clause: To safeguard this
independence, in view of full passenger market opening in 2019, rail undertakings
forming part of a vertically integrated structure could be prevented from operating in
other Member States if they have not first satisfied the Commission that all safeguards
are in place to ensure a level playing field in practice, and a fair competition is possible
in their home market.

A skilled workforce:
A vibrant rail sector depends on a skilled and motivated workforce. Over the next 10
years, rail will face the combined challenges of attracting new staff to replace the third
of its workforce which will retire, while responding to a new and more competitive
environment. Experience in Member States which have opened their markets shows
this should lead to new and better jobs. Under the EU regulatory framework, Member
States will have the possibility to protect workers by requiring new contractors to take
them on when public service contracts are transferred, going beyond the general EU
requirements on transfers of undertakings.
CURRENT STATUS
The Commission’s proposals must be approved by the European Parliament and Member
State Governments, before being adopted. Discussions were brought to the Ministerial
level for the first time on 11 March 2013 in the occasion of the Transport Council. During
the debate, ministers broadly acknowledged the need to increase the efficiency of the
authorisation process. However, misgivings were expressed about the transfer of
competences from national authorities to the European Rail Agency as proposed by the
Commission. More specifically, several member states pointed out that responsibility for the
authorisation of vehicles used only on the national territory or on local or regional networks
should remain with national authorities, so that the specific situations in the different
countries can be properly taken into account. Some delegations argued that the
harmonisation of railway infrastructure was not yet advanced enough to justify a centralised
authorisation procedure and suggested that the role of the ERA should be enhanced
gradually. Several delegations were of the opinion that the ERA should be given a stronger
supervisory role, but not responsibility for authorisations. The issue of liability in the event
of accidents was also raised. Discussion of the proposal will continue in the Council’s
preparatory bodies in the light of the comments made by the ministers.
Safety Legislation Update; July 2013
23
European
Commission’s
website:
http://ec.europa.eu/commission_20102014/kallas/headlines/news/2013/01/fourth-railway-package_en.htm
RAILWAY INDUSTRY POSITION
In February 2013, the Commons Transport Select Committee launched a short inquiry into
the European Commission’s Fourth Railway Package. The Committee focussed on what
impact the package will have on rail in the UK. Evidence received from a number of
parties, including TFL, Network Rail and freight organisations, is published at:
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmtran/writev/ec/contents.ht
m.
The CER ERA Steering Unit is currently working on a position paper on proposed
amendments for the Interoperability Directive, Safety Directive, and ERA Regulation, with
the finalisation expected mid April 20131. ATOC are inputting via this process. The DfT
have invited input though their ‘Interoperability Newsflash’ service, and are holding industry
workshops to consider the proposals under the technical pillar of the package. RSSB has
responded directly to this invitation where appropriate (particularly in relation to the
proposals relating to ‘national rules’).
OTHER INFORMATION
DATE UPDATED
1
July 2013
Paper not published yet
Safety Legislation Update; July 2013
24
Section 3 UK Legislation (General)
Safety Legislation Update; July 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 ACOPs”. 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 (quasi-legal). By adhering to the
advice in ACOPs 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
This review 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
HSE has conducted an initial review of 32 of its 52 ACOPs. The remaining 20 ACOPs have
not been reviewed at this time as they are associated with ongoing sector specific
consolidations or other regulatory amendments and will be reviewed in the course of the
delivery of those processes. Only the ACOPs relevant to the rail industry are listed
below:

Section 1 – Proposals to revise, consolidate or withdraw ACOPs; to be delivered
by end-2013
The initial review identified 15 ACOPs that HSE proposes to revise, consolidate or
withdraw. If agreed these proposals will be taken forward by the review for delivery by
the end of 2013.
Safety Legislation Update; July 2013
26
Dangerous substances and explosive atmospheres

L134 Design of plant, equipment and workplaces – Dangerous Substances and
Explosive Atmospheres Regulations 2002

L135 Storage of dangerous substances – Dangerous Substances and Explosive
Atmospheres Regulations 2002

L136 Control and mitigation measures – Dangerous Substances and Explosive
Atmospheres Regulations 2002

L137 Safe maintenance, repair and cleaning procedures – Dangerous Substances
and Explosive Atmospheres Regulations 2002

L138 Dangerous Substances and Explosive Atmospheres Regulations 2002
Legionella

L8 Legionnaires’ disease
Asbestos

L127 The management of asbestos in non-domestic premises

L143 Work with materials containing asbestos
Gas safety

L56 Safety in the installation and use of gas systems and appliances

COP20 Standards of training in safe gas installation
Hazardous substances

L5 The Control of Substances Hazardous to Health Regulations 2002 Approved
Code of Practice and Guidance
Workplaces

L24 Workplace health, safety and welfare
Management of health and safety


L21 Management of health and safety at work
Section 2 – Proposals to make minor revisions or no changes – to be delivered
by end-2014
The initial review identified 15 ACOPs where HSE proposes to make minor revisions or
no changes. Subject to the outcome of the consultation, these changes will be taken
forward separately to the review for delivery by end-2014.
Work equipment

L22 Safe use of work equipment

L112 Safe use of power presses

L114 Safe use of woodworking machinery
Lifting equipment

L113 Safe use of lifting equipment
Confined spaces

L101 Safe work in confined spaces
Safety Legislation Update; July 2013
27
Pressure systems

L122 Safety of pressure systems
Hazardous substances

L60 Control of substances hazardous to health in the production of pottery

L132 Control of lead at work
Worker involvement


L146 Consulting workers on health and safety
Annex 1 – ACOPs to be revised or withdrawn
Two ACOPs were identified for revision or withdrawal without consultation, either
because changes had been consulted on prior to the Löfstedt review or because the
legal provisions with respect to which the ACOPs was approved have been revoked.
Lift trucks

L117 Rider-operated lift trucks: Operator training
Chemicals


L130 The compilation of safety data sheets
Annex 2 – ACOPs not reviewed due to ongoing sector specific consolidations of
legislation or other regulatory amendments
20 ACOPs have not been reviewed at this time as they are associated with ongoing
sector specific consolidations or other regulatory amendments and will be reviewed in
the course of the delivery of those processes.
Construction

L144 Managing health and safety in construction
Docks

COP25 Safety in docks
Explosives

L139 Manufacture of storage of explosives
Flammable substances

L93 Approved tank requirements – The provisions for bottom loading and vapour
recovery systems of mobile containers carrying petrol

L133 Unloading petrol from road tankers

COP6 Petroleum-spirit (plastic containers) Regulations 1982
Radiation

L121 Work with ionising radiation
First Aid

L74 First aid at work
Safety Legislation Update; July 2013
28
The Management of the Health and Safety at Work Regulations 1999 ACOPs was
considered by the HSE Board at their January 2013 meeting where they agreed the
ACOPs could be taken forward for withdrawal. The HSE propose to replace the ACOPs
with structured and well signposted guidance in revised versions of the following
publications:

Health and Safety Made Simple; which can be found here:
http://www.hse.gov.uk/pubns/indg449.pdf

The guidance previously branded as “Essentials”;
http://www.hse.gov.uk/toolbox/index.htm

The Five Steps to Risk Assessment;
http://www.hse.gov.uk/pubns/indg163.pdf; and

Management for Health and Safety (HSG65), which will now focus on a ‘Plan, Do,
Check, Act’ approach and include useful guidance on:
which

The core elements of managing for health and safety;

Deciding if you are doing what you need to do; and

Delivering effective arrangements.
which can be found here:
can
be
found
here:
This will be published later in 2013
The HSE has decided to proceed with the withdrawal, despite 52% of those who responded
to the consultation opposing it. The MHSWR themselves will remain unchanged, but the
ACOPs will cease to have effect following its withdrawal on 31 July 2013.
RAILWAY INDUSTRY POSITION
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
29
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 the 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 HASWA (section 53) gives a broad definition of a self-employed person. It states a
“self-employed 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:

They are self-employed;

They do not employ anyone; and

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 (see 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

Agricultural activities

Mining;

Construction

Diving;

Quarries;

COMAH and sub-COMAH sites;

Offshore activities;
Safety Legislation Update; July 2013
30
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:

They are self-employed;

They do not employ others;

Their work solely consists of office-type activities; and
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 4 – to make no changes to the legislation at all.
CURRENT STATUS
In March 2013 HSE published the consultation responses, they can be viewed at:
http://www.hse.gov.uk/consult/condocs/cd242-responses.pdf
A final impact assessment has been carried out by the HSE following the consultation, it
can be found here: http://www.hse.gov.uk/consult/condocs/cd242-update.pdf
The HSE Board has now agreed proposals for self-employed people whose work activities
pose no risk of harm to others to be exempted from health and safety law.
Self-employed workers in a defined list of high hazard industries or those carrying out high
risk activities where there is the potential to cause significant injury to others will remain in
the scope of the law. The change is expected to take 800,000 self-employed people out of
the scope of health and safety Regulations. ORR has asked for railways to be included in
the list of sectors that will not be covered by the proposed exemption.
The Deregulation Bill was published on 1 July 2013, which includes at Clause 1 an
amendment to HASAW to deliver option 2. The effect will be to alter the application of the
HASWA so that it applies to self-employed persons who conduct a relevant undertaking.
A relevant undertaking will include those of a prescribed description and those where other
persons are affected and, therefore, potentially exposed to risk.
Railways will be a relevant undertaking, and, therefore self-employed workers in the rail
sector will continue to be subject to the HSWA.
RAILWAY INDUSTRY POSITION
Industry feels that this proposal will have a limited impact as if contactors are exempt from
this proposal, they will still fall under individual Transport Operator’s Contractor
Management policies.
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
31
CD243 – Proposals to simplify and clarify Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR)
reporting requirements.
BACKGROUND
Following the recommendations made from the Lofstedt review of Health & Safety
Regulations in November 2011 the HSE is leading a review of the Reporting of Injuries,
Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR).
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 was to revise what is reported under RIDDOR in response
to the Lofstedt review and 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 proposals, the HSE intended to remove five reporting requirements:
1. Cases of occupational disease, other than those resulting from a work-related exposure
to a biological agent
2. Non-fatal accidents to people not at work
3. Dangerous occurrences outside of higher risk sectors or activities
4. The reporting by self-employed persons of injuries or illnesses to themselves.
5. 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 proposed to
simplify the list of reportable major injuries to align with the incident selection criteria (apart
from item 10) as follows:
1. Any fracture other than to fingers, thumbs or toes
2. Any amputation
3. Crush injuries leading to internal organ damage
4. 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 workrelated exposure to a biological agent or its toxins or infected material (this enacts a
specific requirements of an EU Directive).
Safety Legislation Update; July 2013
32
CURRENT STATUS
The HSE invited consultation on their proposals to simplify and clarify how businesses
comply with the requirements under the RIDDOR 95. The outcome of the consultation can
be viewed at: www.hse.gov.uk/aboutus/meetings/hseboard/2013/300113/pjanb1304.pdf
The impact assessment of the consultation was published in May 2013 and can be found
here http://www.hse.gov.uk/consult/condocs/cd243-update.pdf
The HSE dropped its proposal that employers and other duty holders should no longer
have to report occupational diseases, as agreed at a closed meeting on 30 January 2013.
The HSE board agreed to retain the duty to report non-fatal work-related accidents to
members of the public. The reforms to major injuries, dangerous occurrences and selfemployed workers have gone ahead. Duties to report fatal injuries to workers and the
public, and +7 day injuries to workers, remain unchanged. The HSE board advised the
minister to accept the modified package. The regulations will come into force on 1 October
2013 and can be found here: http://www.legislation.gov.uk/uksi/2013/1471/contents/made.
The HSE had proposed removing the requirement to report occupational diseases except
where they result from exposure to biological agents. Following concerns raised at
consultation, it decided that employers will have to report occupational cancers, diseases
attributable to biological agents and six short-latency diseases (hand-arm vibration
syndrome, dermatitis, carpal tunnel syndrome, severe cramp of the arm, tendonitis and
occupational asthma). The HSE had also proposed removing the requirement to report
work-related non-fatal injuries to members of the public who are taken to hospital for
treatment. In light of this the HSE has retained this requirement although it will make the
reporting stipulations and threshold clearer through improved guidance. The other reforms
proposed in the consultative document have gone ahead::

The list of major injuries will be simplified and reduced to 10 types, so that it is more
closed aligned with the HSE’s incident selection criteria;

The list of 25 dangerous occurrences will be simplified and reduced to 20 so that they
focus on higher-risk sectors and activities; and

Self-employed workers will no longer have to report injuries to themselves.
HSE has published draft guidance INDG453 that will apply from October 2013 and can
be found here: http://www.hse.gov.uk/pubns/indg453-rev1.pdf
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.
Industry has concerns over the alignment of the revised RIDDOR 95 and the Railway
Reporting guidance.
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.
ORR is developing guidance to RIDDOR 2013 for the rail industry, which is due to be
published in October 2013.
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
33
CD248 – Proposal to remove the requirement for the HSE to
approve first aid training and qualifications under The Health and
Safety (First-Aid) Regulations 1981 (as amended)
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 firstaid 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 first-aid 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
Following public consultation, HSE is working towards implementing the necessary
changes, subject to HSE Board and Parliamentary approval.
The anticipated changes to the Regulations are expected in October 2013.
HSE used the responses to the consultation exercise to shape draft guidance documents
that reflect the proposed changes in the Regulations and the arrangements necessary to
put adequate first aid provision in place.

The first draft guidance document will help businesses to make an assessment of the
first aid requirements within their specific workplace and to put the necessary provisions
and competent personnel in place: http://www.hse.gov.uk/pubns/priced/l74draft.pdf

The second guidance document will help businesses select an appropriate first aid
training provider to deliver their training requirements within the new system:
http://www.hse.gov.uk/pubns/geis3.pdf
Safety Legislation Update; July 2013
34

A third guidance document presents example first aid needs assessment scenarios that
will help to demonstrate to employers from all sectors the factors that they need to
consider to ensure they fully understand their first aid needs and put in place
appropriate
arrangements
in
order
to
comply
with
the
law:
http://www.hse.gov.uk/firstaid/case-studies.pdf
RAILWAY INDUSTRY POSITION
The industry welcomes this revision and the possible cost reductions that could result.
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
35
CD251 – Proposal to revise the guidance for duty holders to
decide the appropriate arrangements for the provision of first-aid
under The Health and Safety (First-Aid) Regulations 1981 (as
amended)
BACKGROUND
The HSE consulted in late 2012 on proposals to amend the Health and Safety (First Aid)
Regulations 1981. This was in response to Professor Ragnor Lofstedt’s recommendation in
his review of health and safety legislation Reclaiming health and safety for all: an
independent review of health and safety legislation to remove the requirement for HSE to
approve first aid training and qualifications.
MAIN PROVISIONS
This consultation sought views on the content of revised guidance to help duty holders
decide on appropriate arrangements for the provision of first aid at the business.
CURRENT STATUS
This consultation began on 25 March 2013 and ended on 3 May 2013
HSE used the responses to the consultation exercise to shape three draft guidance
documents that reflect the proposed changes in the Regulations and the arrangements
necessary to put adequate first aid provision in place.
The first draft guidance document will help businesses to make an assessment of the first
aid requirements within their specific workplace and to put the necessary provisions and
competent personnel in place: http://www.hse.gov.uk/pubns/priced/l74draft.pdf
The second guidance document will help businesses select an appropriate first aid training
provider to deliver their training requirements within the new system:
http://www.hse.gov.uk/pubns/geis3.pdf
A third document presents example first aid needs assessment scenarios that will help to
demonstrate to employers from all sectors the factors that they need to consider to ensure
they fully understand their first aid needs and put in place appropriate arrangements in
order to comply with the law: http://www.hse.gov.uk/firstaid/case-studies.pdf
RAILWAY INDUSTRY POSITION
Industry considers that this proposal will not require any changes to those operators who
have currently taken into account passenger first aid provisions at stations.
For those operators who haven’t taken passenger first aid provisions into account they
should consider this proposal and make a conscious decision as to whether it applies to
their operation.
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
36
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. 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 closed for comments on 2 January 2013 and the DfT are currently
analysing
the
responses.
The
consultation
paper
is
available
from:
https://www.gov.uk/government/consultations/enforcement-procedures-against-drinkdrivers-and-other-offenders
RAILWAY INDUSTRY POSITION
OTHER INFORMATION
DATE UPDATED
January 2013
Safety Legislation Update; July 2013
37
Section 4 UK Legislation (Railways)
Safety Legislation Update; July 2013
38
Level crossing legislation
BACKGROUND
Following a joint submission by ORR and 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 the GB rail network. 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

Rights of way and access issues

Current Regulation of level crossings

Criminal offences

Level crossing closures

Signs and highway code
CURRENT STATUS
Following a review of current level crossing legislation, the Law Commission and Scottish
Law Commission published a joint consultation paper. Consultation took place between
July and November 2010, including meetings with a 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. 114 written
submissions were received.
The Commissions attended a large number of consultation events with interested groups,
including RSSB, train operating companies, ORR, DfT, NR, heritage railways, tramway
operators, BTP, 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 updated their advisory group at RSSB in April 2011 on these
provisional conclusions. Commissioners at the Law Commission and Scottish Law
Commission then approved provisional proposals, including the following:

Safety and convenience at level crossings should be regulated under the Health and
Safety at Work etc. Act 1974 (HASWA 1974), along with Regulations and approved
codes of practice made under it;

ORR should retain primary responsibility for enforcing safety Regulation at level
crossings;
Safety Legislation Update; July 2013
39

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 co-operate,
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;

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.
The full consultation document can be found here:
http://www.justice.gov.uk/lawcommission/docs/cp194_Level_Crossings_Consultation.pdf
The summary of the consultation paper can be found here:
http://www.justice.gov.uk/lawcommission/docs/cp194_Level_Crossings_Consultation_Sum
mary.pdf
Following consultation the Law Commission hope to publish a Report, draft Bill, Health and
Safety Regulations, Analysis of Consultation Responses and impact assessment in
September 2013
On the 15 July 2013 The Transport Committee called for evidence on safety at level
crossings. This inquiry was outlined in the Committee’s recent report setting out its future
work programme for 2013/14.
If you would like to submit any evidence, it can be done through this webpage:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/transportcommittee/inquiries/parliament-2010/safety-at-level-crossings/
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
July 2013
Safety Legislation Update; July 2013
40
Railways and Other Guided Transport Systems (Miscellaneous
Amendments) Regulations 2013
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 (the ECM Regulation) on
10 May 2011. The revised Railway Safety Directive (2008/110/EC), 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.
The requirements of the revised Railway Safety Directive were transposed through the
Railways and Other Guided Transport Systems (Safety) (Amendment) Regulations 2011,
which came into force in Great Britain on 26 August 2011, this can be found here:
http://www.rail-reg.gov.uk/server/show/nav.1511.
MAIN PROVISIONS
The Railways and Other Guided Transport Systems (Miscellaneous Amendments)
Regulations 2013 (ROGS Miscellaneous Amendments) came into force on 21 May 2013
and amends the Railways and Other Guided Transport Systems (Safety) Regulations 2006
(ROGS) to give effect to the ECM Regulation in Great Britain. ROGS Miscellaneous
Amendments also makes some other regulatory changes in light of operational experience.
ROGS Miscellaneous Amendments:
a) Require entities in charge of maintenance (ECMs) of freight wagons to have an ECM;
b) Provide a mechanism for appeals in relation to applications for ECM certificates;
c) Amend the definition of “mainline railway” to clarify which rail systems are excluded
from the mainline railway;
d) Remove the requirement for mainline operators to carry out safety verification under
ROGS (this requirement has been superseded by the equivalent common safety
method for risk evaluation and assessment under Commission Regulation (EC)
352/2009);
e) Remove the requirement for non-mainline operators to send annual safety reports to us;
f)
Make the 28 day affected party consultation period run at the same time as the fourmonth period we have to process applications for safety certificates and safety
authorisations;
g) Clarify the meaning of ‘national safety rules’ and ‘placed in service’; and
h) Require controllers of safety critical work to have suitable and sufficient monitoring
arrangements in place.
The guidance to ROGS see http://www.rail-reg.gov.uk/upload/pdf/rogs-guidance.pdf has
been amended to reflect these changes. In addition, ORR has included some revised
guidance on CSMs; and the way ORR issues safety certificates to operators on both
mainline and non-mainline infrastructure.
Safety Legislation Update; July 2013
41
Details of where the changes have been made to the ROGS guidance
The table below sets out where in the guidance the changes have been made.
Subject
Location in the guidance
Requirement for ECMs for freight wagons to have
an ECM certificate
Pages 8, 12, 62 (paragraphs 8.1),
and 66 (paragraphs 8.13-8.14).
Appeals in relation to applications for ECM Page 66
certificates
Extending the powers of ORR inspectors so that Page 15
they can inspect and enforce in railway premises
where an ECM may have maintenance facilities
Amendment to the definition of “mainline railway”
Pages 9, 13 (tram-trains added and
ECMs clarified) and 17
Removal of the requirement for mainline operators Pages 24 (paragraph 2.2), and 25
to carry out safety verification under ROGS
(diagram)
Removal of the requirement for non-mainline Pages 47 (paragraph 5.1) and 50
operators to send annual safety reports to us
(paragraphs 5.10 and 5.11)
The 28 day affected party consultation period Pages 31 (diagram) and
running concurrently with ORR’s four-month (paragraph 3.25 plus blue box)
processing period
38
Requiring controllers of safety critical work to have Pages 57 (paragraphs 7.9-7.10)
suitable and sufficient monitoring arrangements and 59 (paragraph 7.12)
in place.
Common safety method for monitoring
Common safety method for risk evaluation and
assessment
Pages 22-23 and 43 (paragraph
4.3), and 47 (blue box)
Safety certificate for operators on both mainline Page 33
and non-mainline infrastructure
Common safety method for supervision
Page 41
Train Driving Licences and Certificates Regulations 2010
ROGS Miscellaneous Amendments also amends 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.
Changes to Health and Safety (Enforcing Authority for Railways and Other Guided
Transport Systems) Regulations 2006
ROGS Miscellaneous Amendments also extends 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 ensures 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.
Safety Legislation Update; July 2013
42
CURRENT STATUS
The Railways and Other Guided Transport Systems (Miscellaneous Amendments)
Regulations 2013 (S.I. 2013/950) came into force on 21 May 2013. A copy of the statutory
instrument can be found here: http://www.legislation.gov.uk/uksi/2013/950/contents/made
RAILWAY INDUSTRY POSITION
RSSB’s response was endorsed by SPG.
Miscellaneous Amendments.
The railway industry supports the ROGS
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
43
Section 5 Other railway related consultations
Safety Legislation Update; July 2013
44
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 ORR
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 closed on 19 October 2012 and the responses can be viewed here:
http://www.rail-reg.gov.uk/server/show/ConWebDoc.10984
Safety Legislation Update; July 2013
45
ORR held a stakeholder workshop on 10 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.
RAILWAY INDUSTRY POSITION
RSSB responded to the consultation. Their response can be viewed here http://www.railreg.gov.uk/server/show/ConWebDoc.10984
OTHER INFORMATION
In 2013 ORR are establishing a way in which to evaluate their effectiveness. Results of
this evaluation will be published in Spring 20131.
ORR published two reports on 23 November 2012. The first report compared the
expenditure of the 19 franchised Train Operating Companies (TOC’s). The second report
provided an analysis comparing TOCs in GB to those in other European countries, Both
reports can be viewed here: http://www.rail-reg.gov.uk/server/show/ConWebDoc.11052
DATE UPDATED
1
January 2013
Not published yet
Safety Legislation Update; July 2013
46
Consultation on the rules, Regulations, coroner areas and
statutory guidance
BACKGROUND
The current legislation governing the role of the coroner and the conduct of inquests is
primarily the Coroners Act 1988 and the Coroners Rules 1984.
Successive reviews of the coroner system – most recently those conducted by Tom Luce
and Dame Janet Smith in 2003 – identified much that is good in the current system, but
also some fundamental problems. These included a lack of consistency between coroner
districts and an absence of national supervision or leadership. Most importantly the reviews
highlighted a lack of clear participation rights for bereaved people, and a lack of standards
for the treatment and support of all those who come into contact with coroners.
The consultation paper sets out the proposals for implementing the coroner reforms in Part
1 of the Coroners and Justice Act 2009. It seeks views on proposed coroner investigation
Regulations, inquest rules, fee and allowance Regulations, coroner areas, and statutory
guidance for bereaved people.
This consultation is aimed at coroners, coroners’ officers and other staff, bereaved people,
voluntary organisations who help bereaved people, local authorities, and all those who
have an interest in coroner services.
MAIN PROVISIONS

Coroners and Justice Act 2009
These reviews – and the issues they identified – led to Part 1 of the Coroners and
Justice Act 2009 (‘the 2009 Act’). The objectives of the 2009 Act are:
–
To put the needs of bereaved people at the heart of the coroner system
–
For coroner services to continue to be locally delivered but within a new national
framework, with national leadership, and
–
To enable a more efficient system of investigations and inquests.
The 2009 Act provides for a number of structural changes to the coroner system. It
creates the new national head of the coroner system, the office of Chief Coroner. It
introduces the new concept of ‘investigations’ into deaths as well as inquests, as well
as making new provisions relating to coroner areas, creating new titles for coroners,
and removing barriers to where investigations can be held. The majority of the
provisions in Part 1 of the Act have not yet been implemented. They will be commenced
when the new rules, Regulations and orders on coroner areas come into force.
The Ministry of Justice (MoJ) intends to implement the majority of the provisions in Part
1 of the 2009 Act for which it is responsible. The main exceptions to this are the three
sections of the Act that have either been repealed or will shortly be repealed – the Chief
Coroner’s appeal function (section 40), inspection of the coroner system (section 39),
and public funding for advocacy (section 51).
Safety Legislation Update; July 2013
47

2010 policy consultation on implementing the 2009 Act
In spring 2010 the MoJ consulted on aspects of policy to inform the drafting of
secondary legislation to underpin the Coroners and Justice Act 2009. The consultation
sought views on issues such as:
–
Transferring cases from one coroner to another
–
Post-mortem examinations
–
Disclosure of relevant information by coroners
–
Conduct of inquests
–
The training of coroners, their officers and other support staff.
Where appropriate the responses to the 2010 consultation have fed into the draft rules
and Regulations which are now being consulted on.

Public Bodies Act 2011
Following a review of public bodies in 2010, the MoJ set out alternative proposals for
delivering coroner reform, including transferring the Chief Coroner’s statutory functions
to other office holders. However, Parliament agreed that the post of Chief Coroner
should be preserved, but with a more focused remit than originally intended. The 2011
Act therefore repealed the system of appeals to the Chief Coroner set out in section 40
of the 2009 Act. The MoJ intends to give the Chief Coroner all of the remaining
statutory powers in the 2009 Act.
CURRENT STATUS
The consultation ran from the 1 March 2013 to the 12 April 2013. Details can be found here
https://consult.justice.gov.uk/digital-communications/coroner-reforms
The MoJ published the government’s response to the consultation on 4 July
2013.http://www.parliament.uk/documents/commons-vote-office/July_2013/04-0713/14.JUSTICE-Implementing-coroner-reforms.pdf
The MoJ made some changes to the detail of their original proposal to reflect the
comments received during the consultation and on the 4 July laid in front of Parliament the
final version of the rules and Regulations that will underpin the reforms to the coroner
system. The changes will come into force on the 25 July.
In their response The MoJ confirmed that the aims of the 2009 Act are to put the needs of
bereaved people at the heart of the coroner system; for coroner services to be locally
delivered but within a new framework of national standards; and to enable a more efficient
system of investigations and inquests. I am confident that our reforms will enable these
aims to be met.
The revised Act will be published here:
http://www.legislation.gov.uk/ukpga/2009/25/contents
RAILWAY INDUSTRY POSITION
OTHER INFORMATION
DATE UPDATED
July 2013
Safety Legislation Update; July 2013
48
Section 6 – News
Safety Legislation Update; July 2013
49
News
Removal of strict liability for breaches of certain health and safety Regulations
By virtue of Section 69 of the Enterprise and Regulatory Reform Act 2013, Section 47 of
the Health and Safety at Work etc Act 1974 has been amended.
The amendment introduced legislation to remove "strict liability" for breaches of certain
health and safety Regulations, effectively removing civil liability on the part of employers for
breach of health and safety Regulations made under the contained within the 1974 Act.
This change is expected to come into force on 1 October 2013 and will only apply to
breaches that occur after the commencement date.

Current System
Under the current system, claimants are entitled to bring civil claims for damages
against employers who are in breach of certain health and safety Regulations unless
those Regulations expressly provide otherwise which, currently, they do not. The
Regulations in question include:

Management of Health and Safety at Work Regulations 1999

Workplace (Health, Safety and welfare) Regulation 1992

Health and Safety (Display Screen Equipment) Regulations 1992

Manual Handling Operations Regulations 1992

Personal Protective Equipment at Work Regulations 1998

Provision and use of work equipment 1998
Some duties imposed by these Regulations could be breached even if the employer
has done nothing wrong and has not been negligent.
For example, Regulation 5 of the Provision and Use of Work Equipment Regulations
1998 requires an employer to ensure "that work equipment is maintained in an efficient
state, in efficient working order and in good repair". This implies that if a piece of work
equipment fails in some way, the employer is in breach - even if that failure could not be
foreseen and the employer can prove that he has met the his statutory duty by carrying
out appropriate maintenance. Liability is said to be "strict" in those circumstances.

After commencement
No civil claim can be brought for a breach of a health and safety statutory duty unless
the Regulation expressly provides for it. This reverses the current position. In almost all
cases this change will require the claimant to prove that the employer was negligent
and his injury and losses were caused by the employer's negligence.
This change may reduce litigation, but to what extent remains to be seen. Claimants
will, of course, still be able to bring claims for negligence, and it is likely that the
Regulations in question will still be cited by the claimants in court as an example of
what a reasonable employer should be doing. Therefore is likely that that these
Regulations will still play an important role in civil claims.
Safety Legislation Update; July 2013
50
Consultation on a draft exemption for the placing on the market of rail vehicles and
components which contain asbestos
ORR is seeking views on a draft exemption to allow the placing on the market of railway
vehicles containing asbestos, and components of railway vehicles containing asbestos.
This stems from a consultation by The Department for Environment, Food and Rural Affairs
(DEFRA) on proposals for draft Regulations that would allow the placing on the market and
use of a second-hand asbestos-containing article under certain conditions.
The proposed Regulations will give ORR the power to issue exemptions, for articles within
the scope of its responsibilities, and which were installed or in service before 1 January
2005. This is to deal with the unintended consequences of a directly applicable European
Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals
(REACH) which, in 2009, introduced a very broad restriction on the supply of asbestoscontaining articles. REACH has since been amended to allow EU member states to
arrange for exemptions under certain conditions to ensure a high level of protection of
human health.
DEFRA is proposing to take up this exemption facility by amending the REACH
Enforcement Regulations 2008 to introduce ORR as an exempting authority. ORR is aiming
to have the new exemption in place to come into effect when the law changes later this
year. The consultation closes on 14 August and can be found here: http://www.rail-
reg.gov.uk/server/show/ConWebDoc.11218
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51
Key Diary Dates
Date
Item
6 Aug 2013
Consultation closes on the EU balance of competences review: transport call for
evidence
https://www.gov.uk/government/consultations/eu-balance-of-competences-reviewtransport-call-for-evidence
14 Aug 2013
Consultation closes on the draft exemption for the placing on the market of rail vehicles
and components which contain asbestos (European Regulation on the Registration,
Evaluation, Authorisation and Restriction of Chemicals (REACH))
http://www.rail-reg.gov.uk/server/show/ConWebDoc.11218
23 Aug 2013
Consultation closes on CD258 – Legionnaires' disease: The control of legionella bacteria
in water systems (L8)
http://www.hse.gov.uk/consult/condocs/cd258.htm
23 Aug 2013
Consultation closes on CD259 – Control of Substances Hazardous to Health Regulations
2002 (as amended)
http://www.hse.gov.uk/consult/condocs/cd259.htm
26 Aug 2013
Consultation closes on European Safety and Health Legislation
http://ec.europa.eu/social/main.jsp?langId=en&catId=699&consultId=13&furtherConsult=
yes
26 Aug 2013
Consultation closes on the new EU occupational safety and health policy framework
http://ec.europa.eu/social/main.jsp?langId=en&catId=699&consultId=13&furtherConsult=
yes
30 Sept 2013
Consultation closes on CD255 –draft revised Approved Code of Practice (ACOP)
Managing and working with asbestos
http://www.hse.gov.uk/consult/condocs/cd255.htm?ebul=gd-consult&cr=1/08-jul-13
29 Oct 2013
Train Driving Licences and Certificates Regulations 2010 (TDLCR) – Requirement for
new domestic drivers to hold licences and certificates comes into effect
http://www.rail-reg.gov.uk/server/show/nav.2447
29 Oct 2018
Train Driving Licences and Certificates Regulations 2010 (TDLCR) – Requirement for
existing drivers (cross-border and domestic) to hold licences and certificates comes into
effect
http://www.rail-reg.gov.uk/server/show/nav.2447
Safety Legislation Update; July 2013
52
Court Cases
Network Rail and GT Railway Maintenance Ltd have been fined a total of £312,500
following the death of a worker
On 30 September 2003, employees of GT Railway Maintenance were carrying out routine
maintenance on a rail engineering machine owned by Network Rail when an electrical fault
caused part of the machine to move whilst one of the workers, Mr Robinson, was working
inside it. He was trapped by the moving parts and subsequently died due to the injuries
sustained.
Network Rail were found guilty of failing to ensure that persons not in their employment
were not exposed to risks to their health and safety contrary to sections 3 of the Health and
Safety at Work etc. Act 1974 and failed to ensure that measures are taken which are
effective to prevent access to any dangerous part of machinery, under Regulation 11 of the
Provision and Use of Work Equipment Regulations 1998. Network were fined £200,000 and
ordered to pay costs of £140,000
GT Railway Maintenance (trading as Carillion Rail) pleaded guilty to failing to ensure that
persons in their employment were not exposed to risks to their health and safety contrary to
sections 2 of the Health and Safety at Work etc. Act 1974 and failed to ensure that
measures are taken which are effective to prevent access to any dangerous part of
machinery, under Regulation 11 of the Provision and Use of Work Equipment Regulations
1998. GT Railway Maintenance has been fined £112,500 and ordered to pay costs of
£40,000.
Network Rail fined £500,000 for Suffolk level crossing collision
Network Rail has been fined £500,000 and ordered to pay costs of £23,421 for a breach of
health and safety law which led to a 10 year old boy suffering serious injuries at a level
crossing on a private road near Beccles, Suffolk, in 2010.
On 3 July 2010 the 10 year boy was a passenger in a car that was involved in a collision
with a train at a level crossing between Beccles station and Oulton Broads South station in
Suffolk. The train was travelling at 55mph when it struck the car, causing it to spin and
throw the passenger through a window. The collision caused the passenger to suffer lifechanging injuries while the driver of the car received minor injuries.
The accident was caused by poor visibility of trains when approaching the crossing from
the south side. ORR found Network Rail failed to act on information obtained from its own
employees over a ten-year period which highlighted that users of the crossing were
exposed to an increased risk of being struck by a train. Network Rail pleaded guilty to the
charge on 13 March 2013, at Lowestoft Crown Court.
Babcock Rail and Swietelsky Construction fined £60,000 for Cambridgeshire incident
which left two workers seriously injured
Babcock Rail and Swietelsky Construction have been fined £60,000 and ordered to pay
costs of £29,728for breaches of sections 2(1) and 3(1) of the Health and Safety at Work Act
1974 that led to two rail workers being seriously injured in 2009 at the Whitemoor Rail
Depot in Cambridgeshire.
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53
On 25 March 2009, rail workers for both companies were carrying out repairs to a ballast
regulator. The maintenance workers were injured while using a hydraulic car jack to
support an internal part of the ballast regulator. The car jack, which should not have been in
use, collapsed causing the ballast regulator to crush a Swietelsky Construction employee.
He received multiple facial fractures and continues to suffer the effects of a brain injury,
while a Babcock Rail’s employee received injuries to his left eye and face.
The investigation found that Babcock Rail and Swietelsky Construction had failed to carry
out a specific risk assessment for replacing wear plates inside the ballast regulator. It also
found that no safety briefing or employee training for replacing the wear plates on the
ballast machine had taken place. This led to their employees deciding for themselves how
to carry out work, and therefore exposed them to unnecessary risks and ultimately an
incident that left the two workers hospitalised with serious head injuries.
Geoffrey Osborne Ltd and SSE Contracting Ltd were fined £48,000 for worker injury
at Winchester Station
On 9 December 2010, while rewiring an office within the station, an apprentice electrician
employed by SSE Contracting fell over five metres through a ceiling onto a stairwell and
suffered a dislocated elbow and a fractured foot. SSE Contracting had been sub-contracted
by Geoffrey Osborne to complete electrical installation work as part of its refurbishment of
Winchester Station.
The investigation found neither company had adequately planned for work taking place at
height within the station. A detailed assessment of safety risks was not carried out and
basic protective structures such as scaffold guardrails around the edge of the roof
bordering the suspended ceiling were not installed. Both companies pleaded guilty to
breaches of the Work at Height Regulations 2005 and were fined a total of £48,000 and
ordered to pay costs of £40,934
Barhale Construction fined £13,000 for failure to protect workers
On 2 July 2011, Barhale Construction, contracted by Network Rail, was undertaking work to
demolish and rebuild the River Gowy Bridge. During this work, the company operated
heavy machinery under live overhead electrical power lines.
The investigation found inadequate precautions had been taken in areas of danger around
the power lines and served an immediate prohibition notice to stop all work until adequate
safeguards were installed. Despite identifying the risks on site from overhead lines, the
company failed to address the safety risks. ORR found Barhale Construction had not
followed its own safety protocol for work under power lines, and safety equipment was not
in use on this site. Barhale Construction pleaded guilty to a breach of Electricity at Work
Regulations for failing to plan and effectively manage against the risks of working near
overhead power lines and were fined a total of £13,000 and ordered to pay costs of
£11,899
Darren Anderson, ORR’s Principal Inspector of Railways said about the case “ORR
inspectors will continue to focus on worker safety in the coming year, including those on rail
construction sites. There are still too many occasions where sensible procedures designed
to protect workers are ignored and the regulator will continue to press the industry, to
defend the safety of those working on Britain’s rail network.”
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