Written evidence submitted by the Office of Rail and Road (ORR) (RLS0011)

Overview of ORR’s role and approach

1.             The Office of Rail and Road (ORR) welcomes the Transport Select Committee’s inquiry into railway safety and the opportunity to contribute to it.

2.             We are Britain’s rail regulator and the strategic roads monitor for England.  Our role in relation to some of the issues that are the subject of this inquiry relates primarily to our safety duties and powers under the Health & Safety at Work etc Act 1974, the Railways Act 2005 and the Health and Safety (Enforcing Authority for Railways and Other Guided Transport Systems) Regulations 2006.

3.             Under this legislation our role is to make sure that the health and safety of everyone associated with the rail industry is protected.  This is achieved by encouraging railway businesses to have excellent health and safety management, ensuring that they identify and assess risks properly, control them effectively, and comply with the law. We take account of health and safety in all of our activities as an integrated safety and economic regulator.

4.             Our specific roles in the regulation of health and safety on the railway are:

• inspecting, auditing and investigating duty holders’ compliance with health and safety law;
• granting permission for infrastructure managers and passenger and freight train operators to operate on the basis that they will use their management system effectively to control the risks they create when running their business;
• conducting investigations of accidents, incidents and complaints;
• using our enforcement powers, where appropriate, to drive improvement in risk management;
• taking criminal prosecutions to ensure that companies and individuals who breach health and safety law are held to account by the courts.

5.             There are a number of other bodies that also have a role.  These include:

• the Department for Transport (DfT), which is responsible for setting the overall strategy for the railways and for developing and reviewing railway safety legislation;
• the Rail Accident Investigation Branch (RAIB), which independently investigates accidents to establish the causes and makes recommendations for improvements. RAIB’s investigations do not apportion blame and RAIB do not prosecute for breaches of the law;
• the Railway Safety & Standards Board (RSSB), where the mainline industry collaborates to develop and agree common industry standards and risk management practices and who manage the industry’s safety incident reporting system;
• the Health & Safety Executive (HSE), which is the health and safety regulator and enforcing authority for most other industry sectors. HSE’s enforcement responsibilities are relevant to the rail sector, particularly in railway construction safety where the activities are carried out separately from the operational railway; and
• the British Transport Police (BTP), the national police service for Britain’s railways.
6. Britain’s railways are the safest they have ever been and are among the safest railways in Europe, but we can never be complacent. Our overall strategy in carrying out our role is:
• To ensure there is a clear evidence base for our activities, based on a detailed analysis of statistical trends, the findings of ORR’s inspectors - who spend the majority of their time out on the railway network – and on structured assessment of the industry’s risk management capability. 
• To set a clear expectation for the industry to deliver continuous improvement in the health and safety of passengers, the workforce, and the public, that includes a vision of “zero industry caused fatalities and major injuries”. We monitor and publicly hold the industry to account for its health and safety performance, for example through the publication of our annual safety reports[1].
• To take enforcement action, where we identify that duty holders are not controlling risk, to ensure that employees, passengers and members of the public are protected. This is supported by evidence-based and regularly reviewed enforcement and investigation policies to ensure our enforcement decisions are consistent and proportionate.
• To be “the world’s leading health and safety regulator for railways” through continuous improvement in all aspects of our own regulatory management.  We aim to achieve this by taking an efficient, targeted and risk-based approach to regulation through regular systematic evidence-based reviews of our priorities.
7. There have been improvements made by the industry in each of the policy areas covered in this submission, but there are areas where there is a need to drive further targeted change. We cover this under the individual sections below.
8. In 2009, we set a demanding vision for the industry of zero industry-caused fatalities. In 2015-16, for the first time ever, there were no worker fatalities on Britain's railways. For the ninth year in a row, we saw no passenger fatalities in train accidents - another tangible indicator of a decade of progress.
9. The progress of the last decade has been built on a shared commitment by industry leaders, managers, workers, trade unions, government and ourselves to improve risk management. This year saw the publication of a unified mainline railway health and safety strategy[2], a key milestone which we endorsed fully. It identifies improvements to the maturity of the industry’s collective risk management including important commitments on worker health and wellbeing.
10. Underpinning this shared commitment to improve risk management is a tried and tested regulatory framework which allows us to:
• ensure industry duty holders identify, predict and prevent risks so far as is reasonably practicable; and
• take proportionate and targeted action to protect workers, passengers and the public, if safety falls below required standards.
11. Britain’s railways are currently the safest they have ever been. However, there is still room for improvement as shown by the slightly worsening trends we are seeing in some areas, including high levels of earthwork failures and an increase in harm from accidents to passengers at stations.
12. Our enforcement activities serve as a reminder that inconsistencies in health and safety standards mean that we are still required to step in to ensure compliance with the law or to deal with an immediate risk. The serious incident at Wotton Bassett junction involving a train operated by West Coast Railway Company passing a red signal and which led to a swift and wide ranging response by our inspectors, is one such example.
13. The industry’s safety leadership has strengthened and broadened, but now must ensure that initiatives to control risk are cascaded consistently and implemented on the front line as well as providing additional focus on improving occupational health management. We have set clear expectations for the further strides the rail sector must make if it is to improve on a sickness absence rate that – at 3.9% - is over double that of the private sector[3].
14. The decade of progress in the rail sector’s health and safety performance has taken place against a backdrop of passenger numbers on the mainline network increasing by 57%; there were 1.69 billion passenger journeys in 2015-16. Managing the demands this continuing growth places on an ageing infrastructure and ever busier stations, particularly during train dispatch, whilst also delivering new infrastructure and more capacity, will be critical in managing future health and safety performance. Therefore, ensuring infrastructure is maintained in a safe, efficient and sustainable way and ensuring safety at the Platform-Train Interface (PTI) so that passengers get on and off trains safely, are high priority areas for us now and in the future.

ORR’s work in the areas of the Committee’s inquiry

‘The Department and Network Rail's progress in implementing recommendations made by the previous Transport Committee on level crossings, and further actions which could be taken to reduce harm at level crossings’

15. We welcome the Committee’s continued focus on the key risk area of level crossings. In this section we aim to provide the Committee with an update on the industry’s progress generally and on our implementation of those of the Committee’s recommendations that were within our purview.
16. Although ORR has not adopted formal target for zero fatalities at level crossings, as recommended by the Committee, level crossing safety risk continues to be among our top priorities. Following the previous inquiry of the Committee, we set out how we will act on this priority topic in a revised and updated published strategy for regulating level crossing safety[4]. Our approach includes ring-fencing dedicated funding for level crossing risk reduction as part of the CP5 settlement.
17. The harm posed by and from level crossings to their users and railway operations represents about 8% of overall system harm (excluding railways suicides). This has reduced gradually since 2010-11 following consistent focus by us, the industry and investment by the Government.
18. There were four fatalities, all pedestrians (the joint lowest level of fatalities since 1996-97) and four collisions between trains and road vehicles, the lowest level in the past decade, at level crossings in 2015-16.
19. As a consequence of the significant reduction in fatalities, overall harm reduced by a notable 69% compared to 2014-15 and harm at level crossings was at its lowest level on record. However, there was a 7% increase (to 296) in near misses involving pedestrians at crossings.
20. Since 2009-10, Network Rail has closed over 1,000 crossings, including 76 in 2015-16, but there is evidence that crossings are becoming more difficult to close. This is because addressing the remaining level crossings increasingly means dealing with those of higher amenity to local communities and their right of way. Prompted by our work in 2014-15, Network Rail continues to improve its level crossing managers’ qualitative risk assessments, a process that increases the industry’s understanding of crossing use and the correct specification of risk control measures at each site.
21. We continue to monitor the ring-fenced Control Period 5 (CP5) funding which Network Rail is using to reduce risks at crossings. It’s achieving this primarily by closing or upgrading the controls used at crossings, but also by commissioning new technologies aimed at reducing risks at user-worked and footpath crossings. We are also working with Network Rail and DfT to secure improvements to signage and warning systems at both private and public level crossings. This work arises from RSSB’s research, to which we contributed.
22. We have increased our focus on passive crossings and particularly foot crossings where the sighting is inadequate and users rely on hearing a train horn to know that a train is approaching. Near misses have increased gradually over the last decade and those incidents recorded have increasingly involved passive crossings. Our regulatory activity has led Network Rail to improve its asset data and gain a better understanding of the risks such crossings pose and the relevant controls needed.
23. We are continuing to work with DfT to press for modernisation and reform of the legal framework for level crossings. All parties are hindered by “complex and antiquated legislation governing the process of modification and closure”, as identified in the Law Commission’s review of Level Crossing Legislation, published in September 2013[5]. In accordance with the Level Crossings Act 1983, and on behalf of Secretary of State, we processed almost 100 Level Crossing Orders from Network Rail in 2015-16, as crossings were renewed or upgraded during new signalling schemes. Under the current law, proposing even simple safety and efficiency improvements, such as the installation of new LED lights, can require the crossing operator to apply for and obtain a new or modified Order before beneficial changes can be made, We would like to see a shift away from this prescriptive approach – which diverts focus and resource from front line safety activity on the network and constrains the rollout of new safety technologies - to a more modern, pragmatic and risk-based regime more closely aligned to how all other safety risks in the sector are managed and regulated.

‘The effectiveness of the current system of rail safety management, investigation, regulation, enforcement and policing, including the ability of industry and government bodies to coordinate effectively’

24. The framework for the management and regulation of health and safety on the UK’s railways has been in place and stable for a decade, building on the recommendations of the Cullen report into the Ladbroke Grove accident and the lessons that contained. 
25. Its fundamental principles are:

• clear and consistent application to the rail sector of the wider framework of UK health and safety legislation (and supporting regulations) and its core principles of safety management, risk control, inspection and enforcement.
• responsibility for the safety of the system being shared equally between operators of trains and managers of infrastructure, supported by collaborative industry-led development of common safety and technical standards. Evidence from a range of industry sectors shows that sustained improvements in the management of health and safety risk are more likely to be achieved where responsibility for understanding and managing risk is firmly owned by duty holders.
• a “permission to operate” regime for infrastructure managers and passenger and freight train operators, issued by an independent safety regulator, on the basis that duty holders will effectively control the risks they create when running their business using their management system. ORR reassesses that permission for each business at least every five years and - through inspection, audit, investigation and monitoring of performance – carries out continuous assurance that the business is controlling risk.
• a separate, independent accident investigation body, the Rail Accident Investigation Branch (RAIB) with a distinct role in investigating the causes of accidents and ensuring lessons are learned – including through the making of recommendations on Government and the regulator as well as on industry.
26. Delivering on these principles necessarily involves active collaboration between ORR, the industry and a number of other bodies (listed in the above overview). The following arrangements support this:
• All railway licence holders are required to be members of RSSB and to comply with applicable Railway Group Standards. RSSB facilitates industry co-operation on a wide range of safety activities, including the collation and analysis of safety performance data and the recent development of a cross-industry health and safety strategy. This approach promotes collective leadership of rail safety by the industry.  We support the work of RSSB by approving its constitution and its code and manual for the management of standards, attending its Board meetings and participating in a wide range of specific projects and working committees. We also carry out reviews (typically every five years) of the organisation at the request of its members, the latest of which we have carried out during 2016 and plan to report on in November.
• We have established, and regularly review, memoranda of understanding and/or agency agreements with DfT, RAIB, HSE and BTP. These agreements set out how we will work together to achieve shared objectives and how we co-ordinate our activities to ensure there are no gaps or overlaps.

‘The effect of the result of the EU referendum on the current framework for rail safety and security’

27. Railway security is a matter for Government and the relevant police and security services.
28. The legislative frameworks for rail safety in the UK and the EU are closely aligned and compatible, in line with the principles described in paragraph 23 above.  Changes to this framework following the UK’s exit from the EU are a matter for the Government and Parliament, to whom ORR will provide advice as appropriate.

‘The extent to which growing passenger numbers, infrastructure upgrades, and major infrastructure projects may impact on the safety of passengers, workers, and the public’

29. The growth in passenger numbers and large transformative railway construction projects puts additional pressure on the industry. Evidence from inspection and safety performance data shows there is scope across the industry to improve how it manages the challenges presented by growth and change, particularly in relation to station safety and at the platform edge when trains are not present. Harm to passengers and public in stations and on trains increased 8% in 2015-16, or 6% when normalised by the 2% increase in mainline passenger journeys.
30. Ensuring the sector maturely manages growth and change safely is a specific priority for us in 2016-17 and is likely to continue to remain a key area of focus. We are also working with the industry to improve safety by design, as ever busier stations are upgraded and modified. We recently entered a new agreement with HSE, which delegates enforcement functions for health and safety law at the design stage of new-build railway infrastructure projects to ORR. This is the phase of projects when risk management interventions are most effective and typically provide the best value for money.

‘The scope for further improving the management of infrastructure and train operation, including strategies for maintaining assets in poor weather conditions and minimising accidents and near misses caused by rail worker fatigue’

Overall industry management capability

31. The overall results of our inspections, interventions and assessment of duty holders’ health and safety risk management maturity, using our Risk Management Maturity Model (RM3)[6], found a largely unchanged performance in Network Rail compared to the previous year, with mostly level 2 ’managed’ and level 3 ‘standardised’ scores, and a slightly improved and predominantly level 3 ‘standardised’ in train operators’ overall scores compared to 2014-15.
32. Through our evidence-based evaluations of the industry’s management capability, we are finding progress in specific areas, such as Network Rail’s management of auditing and governance arrangements, level crossings risks, and asset stewardship. We have also seen broader improvements in around a third of our assessments of passenger train operators.
33. We had hoped to see more elements of Network Rail’s safety management system shift toward the higher ‘predictable’ and ‘excellent’ assessments. Our RM3 assessments of all train operators found a predominantly ‘standardised’ level 3 performance, with the passenger sector reaching an improved ‘predictable’ level 4 performance for a third of the RM3 assessment criteria. Wider achievement of these indications of enhanced management maturity would have provided us with assurance that risk management and resilience are embedded in the industry’s long-term capabilities.

Maintenance of assets

34. We took enforcement action in 2012 requiring better contingency arrangements for managing the impacts of severe weather. However, the evidence we collected from Network Rail’s management of the winter 2015-16 storms shows that its processes are not consistently effective.
35. Network Rail made significant revisions to its Business Plan in the second half of 2015-16 due to financial constraints, which led to deferral of many planned renewals. We scrutinised these proposals closely to ensure sensible risk-based prioritisation – in some areas we challenged them and secured improvements.
36. Earthworks failures, such as landslips, increased over 2015-16, due to some very wet weather in parts of the country, and the industry relied on effective consequence management to ensure there were no train derailments. We wrote to Network Rail to reinforce the importance of managing this key asset.
37. We are currently satisfied that the immediate safety risks arising from poor track geometry (a measure of different aspects of track quality) are being controlled, and track geometry has improved nationally since the start of CP5. Broken rails and fishplates[7] remain at historically low rates and repeat track twist faults have reduced by 22% since 2014, following our enforcement action in 2013. However, our examination of track-related incidents since 2008 showed how well-functioning assurance arrangements could further reduce the likelihood and consequences of such incidents.

‘The adequacy of measures to protect persons at the platform-train interface

38. Our inspection activity has identified that most operators now have good platform-train interface (PTI) risk management arrangements in place with good workforce engagement for dealing with the various train dispatch processes across the network.
39. Overall harm at the PTI increased by 48% in 2015-16, including a high (by comparison to longer-term trends) number of fatalities: five passengers and one non-travelling member of the public, none of which involved the boarding or alighting of trains. While none of these fatal incidents were industry-caused or involved crowded platforms, they highlight starkly the complexities of future growth challenges for the sector.
40. However, passenger platform crowding puts pressures on train dispatch, especially at curved platforms, or where station furniture obscures train dispatch sighting lines. These require regular risk assessment and review of the controls, including staff behaviours, levels of resource and proactive monitoring.
41. As passenger numbers and congestion at the PTI grows, risk reduction solutions, including platform edge fillers and other novel engineering solutions, will prove increasingly important. The significant recent increase in platform edge incidents not involving passenger boarding or alighting, which often cause serious harm, suggests an emerging risk trend.
42. We continue to press the industry to implement its January 2015 platform train interface risk reduction strategy as the impact of passenger numbers and infrastructure investment grow.
43. This is providing a focus for our inspections in 2016-17, as new rolling stock is introduced and train dispatch procedures evolve.

‘Progress on current initiatives to improve railway worker safety and further actions which could be taken to improve the safety of railway workers, including those individuals working on infrastructure construction and on the tracks, and those exposed to occupational hazards

44.      In 2009, we set a demanding vision for the industry of zero industry-caused fatalities. As already noted, there were no worker fatalities on the railway in 2015-6 and there was also a significant reduction in major injuries to workers. We are pressing the industry to build on this through cultural and behavioural change and the implementation and embedding of key planned safety initiatives.
45. Both of Network Rail’s Planning and Delivering Safe Work (PDSW) and Business Critical Rules (BCR) initiatives have the potential to improve occupational risk control on the network – as well as supporting greater efficiency in maintenance and improved asset performance and safety. In some Network Rail routes our inspectors have found some very encouraging signs of better planning and organising of track work, resulting in falling levels of open line working[8]. However our inspection and monitoring shows there is considerable scope to improve the consistency of rollout and to ensure the effectiveness of key safety initiatives, spreading more widely the good practice we have found in some routes.
46. We have set out a clear five-year agenda for the industry to achieve excellence in health risk management - including more robust control of health hazards such as hand-arm vibration, asbestos, or diesel engine fumes - through greater employee engagement; greater awareness of ill-health costs and impacts; and the need for the sector managers to improve their health management competencies. There have been improvements – particularly in terms of the industry’s engagement and commitment for addressing stress, mental health and trauma. However we are still seeing increases in harm from manual handling injuries (up 17% in 2015-6) and we have taken enforcement action, (we served three prohibition and two improvement notices on Network Rail in 2015-6). We welcome that the cross-industry health and safety strategy has recognise the importance of cross-industry collaboration to secure health and wellbeing improvements, and of addressing the impact that risks such as fatigue can have on health as well as on safety outcomes.

‘The effectiveness of measures to prevent trespass and fatalities on the railways and other approaches which could reduce the numbers of fatalities and injuries

47. Trespass and suicide account for the largest number of fatalities on the railway.
48. There were 252 suicides on the railway in 2015-16, a reduction of 12% on 2014-15 –and 71 attempted suicides, an increase of 22% compared to 2014-15. The mainline industry has shown considerable and commendable leadership and concerted efforts, including working closely with the Samaritans for the last five years, to prevent railways suicide and reduce their impact on the workforce and other witnesses. Over 10,000 railway industry staff have been trained in suicide prevention work and they made over 1,100 interventions in 2015-16 to prevent events that may have led to a suicide.
49. Trespass currently accounts for 24% of risk and 30% of actual harm to members of the public on the railway. ORR’s investigations into trackside and depot access-related incidents often focus on the provision and quality of fencing, controls to prevent trespass, and measures to reduce the risks posed to those who do gain unauthorised access to the railway. We have taken – and continue to take – enforcement action in this area. Since 2009, we have served six improvement notices and concluded one prosecution relating to the prevention or reduction of risks associated with unauthorised access. 
50. We believe it is important to maintain specific legal requirements on the industry to provide fencing and prevent unauthorised access, and this is why we have worked with DfT to ensure the revised and consolidated Railway Safety Regulations 1999 and Miscellaneous Provisions Regulations 1997 will continue to contain such a provision when they are laid before Parliament later this year.

October 2016

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