Rail Regulator considers licence breach following Paddington crash

11 October 1999
ORR/99/43

The Rail Regulator, Tom Winsor, today announced that he had asked the Health and Safety Executive (HSE) for advice to enable him to determine whether or not there has been or is likely to be a licence breach by any of the parties involved in the Paddington crash.

Tom Winsor said: "I asked for formal advice last Friday from the HSE following publication of its prohibition notice against Railtrack regarding the continued use of signal 109 outside Paddington, and the related improvement notices.

"I am seeking the HSE's advice both in relation to a breach or a possible breach by Railtrack and the train operators of their licence obligations in respect of Railway Group Standards as well as a possible serious breach of the Railway Safety Case Regulations.

"I am also asking the HSE whether the HSC report published today on Railtrack's safety role indicates that Railtrack is or is likely to be in breach of its licence obligations concerning the independence of its Safety and Standards Directorate.

"On receipt of that advice, I will consider what enforcement action is warranted having regard to my duties under the Railways Act 1993."

Notes to Editors

1. The text of the letter from the Regulator to the HSE is attached.

2. The Regulator enforces railway operating licences under the Railways Act 1993. Railtrack holds a network licence authorising it to operate the national track and signalling network. Great Western Trains Company and Thames Trains hold passenger train operating licences authorising them to operate passenger trains on Railtrack's network.

3. Amongst other things, those licences contain certain conditions which concern safety and safety-related matters, although the principal safety jurisdiction is with the HSE under the Railways (Safety Case) Regulations 1994. In safety and safety-related matters, section 4 of the Railways Act 1993 requires the Regulator to take the advice of the HSE into account.

4. In 1994 the Regulator and the HSE established reporting and liaison arrangements in relation to these matters. These arrangements require the HSE to advise the Regulator of possible breaches of safety cases or safety-related licence obligations. Liaison officers of the two organisations meet and exchange information regularly. The HSE/ORR liaison arrangements were last revised on 1 March 1998. A copy of the document is on the ORR website: http://www.rail-reg.gov.uk.

5. The operating licences require the licence holder to comply with Railway Group Standards. These are technical standards with which railway assets or equipment used on or as part of railway assets must conform, and operating procedures with which the operators of railway assets must comply.

6. If a continuing or likely licence breach is established, the Regulator may take enforcement action against the licence holder under section 55, Railways Act 1993. Enforcement action can include the imposition of monetary penalties and the obtaining of a High Court injunction. Breach of an enforcement order is a ground for revocation of the holder's licence. Revocation on these grounds would take several months.

7. A serious breach of the Railways (Safety Case) Regulations 1994 is also a ground for revocation of a licence. In this case, immediate revocation is possible.

8. In the case of Railtrack, licence revocation is in the hands of the Secretary of State after consulting the Regulator and the Franchising Director. In the case of the train operators, revocation is the decision of the Regulator after consultation with the Franchising Director.

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Text of the letter sent to the Director General of the Health and Safety Executive

11 October 1999

Miss Jenny Bacon CB
Director General
Health and Safety Executive
Rose Court
2 Southwark Bridge
London SE1 9HS

PADDINGTON TRAIN CRASH

1. This letter is my formal request for advice from the Health and Safety Executive, as contemplated by section 4(3)(a) of the Railways Act 1993, in relation to:

(a) compliance by Railtrack PLC with Condition 3 of its network licence, paragraph 4.6 of Railway Group Standard GA/RT6001 and other applicable Railway Group Standards; and

(b) compliance by the licensed operators of the trains involved in the Paddington train crash, namely Great Western Trains Company Limited and Thames Trains Limited, with applicable Railway Group Standards.

2. It follows my conversation with Mr Vic Coleman, HM Chief Inspecting Officer of Railways, on Friday last week in which I asked for advice in relation to the compliance by the companies involved in the Paddington train crash with their licence obligations insofar as safety is concerned. It also coincides with the publication of the Health and Safety Commission's report on Railtrack's safety role.

3. Condition 3 of its network licence requires Railtrack to:

(a) "establish and maintain within its organisation a directorate to be responsible for safety and standards [which will] have no commercial functions or responsibilities other than those relating to safety and standards";

(b) "ensure that at all times the [Safety and Standards Directorate has] funds which are sufficient for the proper carrying out of its functions";

(c) establish a code which requires the Safety and Standards Directorate, where it has reasonable grounds for considering that any revision of a Railway Group Standard is required, to propose such a revision and pursue it in accordance with the code; and

(d) comply with authorised Railway Group Standards so far as applicable to its licensed activities.

4. Paragraph 4.6 of Railway Group Standard GA/RT6001 provides that:

"the [Safety and Standards Directorate] shall be responsible for the ongoing review of [Railway Group Standards] to ensure their fitness for purpose and for making any necessary proposals for change".

5. Condition 1 of the passenger train operating licences held by each of Great Western Trains and Thames Trains requires each company to comply with authorised Railway Group Standards so far as applicable to its licensed activities.

6. Please will you let me have your advice as to whether:

(a) in relation to matters (whether at Paddington or any other location on the network) which have a bearing on the circumstances of the accident at Paddington and also today's HSC report on its safety role, Railtrack has been, is and is likely to be in compliance with its obligations under Condition 3 of its network licence;

(b) in relation to matters (whether at Paddington or any other location on the network) which have a bearing on the circumstances of the accident at Paddington, Great Western and Thames Trains have been, are and are likely to be in compliance with Condition 1 of their passenger train operating licences; and

(c) any of these companies has committed a serious breach of the Railways (Safety Case) Regulations 1994 in relation to the Paddington train crash.

7. In particular, in relation to Railtrack, please will you advise me:

(a) whether Railtrack's Safety and Standards Directorate is being maintained within Railtrack in a manner which keeps its functions completely separate from the commercial functions and responsibilities of the company;

(b) whether Railtrack's Safety and Standards Directorate has or has had reasonable grounds for considering any revision to a Railway Group Standard and has failed, is failing or is likely to fail to propose and pursue it in accordance with its obligations under the Railway Group Standards Code;

(c) whether Railtrack's Safety and Standards Directorate has complied, is complying and is likely to comply with its obligations under paragraph 4.6 of Railway Group Standard GA/RT6001 in relation to the fitness for purpose of any Railway Group Standard;

(d) whether Railtrack's Safety and Standards Directorate has been, is and is likely to be sufficiently resourced for the proper carrying out of its functions; and

(e) whether Railtrack has complied, is complying and is likely to comply with applicable Railway Group Standards.

8. In particular, in relation to Great Western and Thames Trains, please will you advise me separately in relation to each company whether it has complied, is complying and is likely to comply with applicable Railway Group Standards.

9. These requests for advice are specific ones in addition to the established arrangements between our two offices for regular liaison, including in relation to timely reporting on compliance with railway safety cases and Railway Group Standards.

10. Your advice is requested in order for me to make a judgement as to whether any of the companies concerned is or is likely to be in breach of its licence in relation to these matters.

11. Please may I have your advice on these matters as soon as reasonably practicable? However, if you consider that there is a case for urgent action, please would you let me have an interim report as soon as possible? I intend to publish your advice.

12. I am copying this letter to the Deputy Prime Minister, the Minister for Transport, the Chair of the Health and Safety Commission, HM Chief Inspecting Officer of Railways, the Chairman and Chief Executive of Railtrack, the Managing Directors of all licensed train operating companies and the Chairman and Chief Executive of the Shadow Strategic Rail Authority. I am also publishing it.

TOM WINSOR