Railways and Transport Safety Bill

Public Bill Committee, 6 February 2003.

Standing Committee D

Clause 8 - Regulations

Anne McIntosh (Conservative, Vale of York)

I am pleased that you are in the Chair again, Mr. Hurst.

On Second Reading, my hon. Friend the Member for Buckingham (Mr. Bercow) said:

''Could we not have had a better idea of what the content of those regulations might be, and can he at least tell the House now whether they will be subject to the negative procedure of the House, or to its affirmative counterpart?''

The Secretary of State for Transport replied:

''That sounds to me like an extremely good bid to participate in the Committee stage of this Bill, when all these issues can be explored at length over several weeks.''—[Official Report, 28 January 2003; Vol. 398, c. 765.]

Unfortunately, my hon. Friend's bid was not successful, but three excellent colleagues are on the team.

I want to explore the scope of the regulations covered by clause 8. There are two schools of thought on the subject. The first holds that the Bill should say little, but be merely an enabling measure while most of the powers to implement its provisions should be left to regulations. The Government may argue that that applied in the case both of the Civil Aviation Act 1982 and the subsequent Civil Aviation Act (Investigation of Air Accidents and Incidents) Regulations 1996 and of the Merchant Shipping Act 1995 and the subsequent Merchant Shipping (Accident Reporting and Investigation) Regulations 1999.

The sweep of the clause is breathtaking; it goes much further than those Acts and enabling regulations. Subsection (1) gives the Secretary of State the power to make regulations about the way in which the rail accident investigation branch is to conduct its investigations. The clause sets out the scope of the regulations in detail. It states that the regulations may

''(a) confer a function on the Chief Inspector of Rail Accidents or on the Branch;

(b) make provision about the way in which a function of the Chief Inspector or the Branch is to be performed;

(c) permit or require the Chief Inspector to appoint a person to conduct or participate in an investigation''.

I should much prefer the functions of the chief inspector to have been set out in the Bill. Under other clauses, notably clause 5, the chief inspector may arrange for the rail accident investigation branch to assist any person. Elsewhere, he is able to rely on assistance from other people in the performance of his

function. The chief inspector's powers are far-reaching, so the clause should be much more specific about his functions.

The Government were concerned that the branch's investigation should not be delayed or constrained by any criminal investigation or judicial process. They consulted on a number of proposals that could be covered by the regulations. Why do those proposals not appear in the Bill? They included placing a duty on any relevant person, including any contractor or agent, to preserve evidence; giving the branch an unfettered right of access to accident sites but placing it under a duty to protect the chain of evidence; and preventing disclosure of certain categories of information or data, such as medical or private information or opinions expressed in the analysis of information without the order of the court.

It was further proposed that no statement made by a witness in connection with a rail accident investigation branch investigation or inquiry would be disclosed to the police or the Health and Safety Executive save by order of a judge, unless the witness had agreed it. A judge would have to consider whether the wider public interest outweighed any impact that disclosure might have on the investigation. The rail accident investigation branch could release details of those who had given evidence in the course of an investigation or inquiry.

Why, given that the Government consulted in such detail, are there no specific references to the proposals in subsection (1)? Subsection (2) allows regulations to be made that could require the rail accident investigation branch to ensure that its reports were not made public until any person or organisation whose reputation might be adversely affected had been given the opportunity to make representations on the draft report. Again the regulations are far-reaching and could jeopardise the thrust of the Bill. The Secretary of State and both the Minister of State and the Under-Secretary have told us that the purpose and objective is to have a swift investigation to get to the root cause of the accident and to share the results with the industry. That laudable objective is supported by all sides.

The philosophy behind the provisions in subsection (2) for the regulations to contain certain requirements about the report's publication and timing arises from the strictures of Lord Cullen. His report made it clear that he supported the aviation accident investigation branch's approach to publication. He reasoned that on completion of an investigation, the investigating inspector would be required to prepare a report, a copy of which would be submitted to the Secretary of State. The report would be required to contain relevant safety recommendations.

The aviation accident investigation branch regulations state that a recommendation should in no case create a presumption of blame or liability for an accident or incident. Aviation reports must be circulated to the parties likely to benefit from their findings in respect of safety and must be made public in the shortest possible time—if possible, within 12 months of the accident or incident—in such a manner

as the chief inspector thinks fit. If the investigating officer is of the opinion that publication is likely adversely to affect the reputation of any person or deceased person, he must give notice to that person or to a representative of the deceased. The notice must include particulars of any proposed analysis of facts and conclusions as to the cause or causes of the accident or incident that may affect the person on whom notice is served. In practice, the investigating officer sends the whole report.

The investigating officer is required to consider any representations made prior to the report's publication. In practice, where substantive representations are made, the person or representative, is invited to meet the investigating officer to discuss matters.

It is my understanding that the Government consulted on a proposal that the report should be made publicly available, normally within 12 months of the accident or incident. They also consulted on a proposal that the report should not be made public unless any person or organisation whose reputation might be adversely affected was informed by notice and given the opportunity to make representations. It is also my understanding that clause 8(2)(e) provides for the inclusion of those provisions.

It would benefit the Committee enormously if the Minister could tell us how the provisions have worked in practice for the aviation accident investigation branch. The report must be made public within 12 months of completion. What has been the effect of that on the investigator's ability to get to the root cause of the accident, to conclude his report and to share it with the industry? Have matters been delayed by 12 months, or have there been further delays? We all agree that we would like to get to the root cause of accidents through independent investigation and that the results should be shared at the earliest opportunity. That applies equally to the maritime accident investigation branch.

Consultation on subsection (2), which deals with publication of the findings of accident investigations, suggested that a duty should be placed on the chief rail accident inspector to ensure that infrastructure managers, railway undertakings, safety authorities—in this case, the Health and Safety Executive—the bereaved, the injured, emergency services, representatives of staff and users, owners of damaged property, and manufacturers are, as far as possible, kept informed about the progress of an investigation. Additionally, in-depth consultations and private briefings should be arranged before the rail accident investigation branch report is published for those injured in a crash, their next of kin and the close family of fatalities.

Clause 8(2)(e) and (f) enshrine the requirements that should appear in the regulations, following the recommendations of Lord Cullen, who said that the investigation of rail accidents and incidents of whatever nature should be brought under the overall control of the RAIB. However, those paragraphs do not result from consultation alone. The Secretary of

State on Second Reading and the two Ministers in Committee have reliably informed us that they draw heavily on the experience of the aviation and merchant shipping investigation branches. If the Committee is to agree to such wide-ranging powers, it would help if we knew more about the background to the drafting.

Under clause 8(4):

''The Secretary of State may make regulations about the use, disclosure and destruction of information acquired by the Branch; in particular, the regulations may—

(a) prohibit the disclosure of information in specified circumstances;

(b) permit the disclosure of information in specified circumstances;

(c) require the disclosure of information in specified circumstances;

(d) make provision by reference to whether or not a person consents to a disclosure which relates to him.''

Similar provisions apply to the enabling legislation that set up the aviation and marine accident investigation branches. On close inspection, however, marked differences are apparent.

I referred to two different schools of thought at the outset, and I personally come down on the side of building more detail into the Bill because it is only through primary legislation that we parliamentarians can exercise our right to scrutinise powers. When we debated clause 7, we saw what powers were being conferred on the investigator in each case. It is staggering that we are being asked to approve a clause conferring powers on the chief inspector of rail accidents in performance of his functions. That needs further elucidation and exploration.

The Minister may want to talk the Committee through the likely timetable of the enabling regulations. When will the Government state the functions of the chief inspector, who will be in an immensely powerful position? If the Committee now, and the House later, agree to the clause, we shall lose control over scrutiny of the powers and the exercise of that function, because it will be implemented in regulations.

To recap, there are two schools of thought. The Minister may reply that the Conservative Government who set up the two existing accident investigation branches fell into the category of taking sweeping powers, because they implemented measures in regulations rather than in Bills. I might disagree. I will admit to being confused, because we have been reliably informed by the Secretary of State and the two Ministers that we are using as a model two well-established, well-functioning, highly regarded and independent accident investigation branches, which look after two different sectors. Will the Minister say why the Bill parts company in style and content from the other two enabling Acts?

John Spellar (Labour, Warley)

I thank the hon. Lady for making my speech as well as hers.

Anne McIntosh (Conservative, Vale of York)

I am just practising.

John Spellar (Labour, Warley)

That is all right. A long apprenticeship is obviously needed.

The hon. Lady raised many points that I wanted to make about precedent and practicality. The Merchant Shipping Act 1995 is no more detailed about the marine accident investigation branch chief inspector's functions. It simply says that regulations may specify the functions of the chief inspector and MAIB inspectors. The powers of the rail accident investigation branch inspectors have been modelled on those of MAIB inspectors.

The hon. Lady rightly asked about the consultations that took place on the regulations. Those are intended to help us to draft the regulations, not just the Bill. We will consult on the regulations shortly after Royal Assent. She also asked about any differences in the aviation accident investigation branch and the experience of parallel bodies. The AAIB has seen the Bill and says that it has experienced no problems with similar provisions. The hon. Lady asked about our general consultation on the Bill and on what could be in draft regulations. We hope to publish a response to the consultation shortly—probably within the next month.

We have drawn on two successful models, exactly as Lord Cullen recommended, and we have asked how we can implement the best practice and procedures appropriate to the railways. How do we outline the functions of the inspector? In what framework will detailed regulations be drawn up and, if necessary, subsequently amended, without the need to return to primary legislation? Out of practicality, we are right to draw on experience, and we have struck the right balance between proper parliamentary scrutiny of the broad powers and a practical policy for implementation.

Anne McIntosh (Conservative, Vale of York)

I am most grateful to the Minister and may be able to assist him. He said that the Government would come forward with the regulations shortly after Royal Assent, but the word ''shortly'' means different things to different people. Will he put a time scale on that?

We have not yet reached the crux of the Opposition's concern. The enabling powers given under the Civil Aviation Act 1982, for which the most recent regulations were published in 1996, specify the powers of the inspector more precisely and define his functions. I am relatively new to politics, and so perhaps can still be surprised. I should like to know whether it is normal for a clause—in a Bill that is not the most controversial before the House—to state that a function shall be conferred on the chief inspector of a branch through regulations, without the House knowing when those regulations will come into force or having a chance to be consulted on the functions.

We discussed that matter at some length under clause 7, which covers the investigator's powers. The chief inspector's powers to inspect rail accidents and to enter land, which may include private property and dwelling houses, are very extensive. The 1996 implementing regulations of the Civil Aviation Act 1982 specifically state that the inspector shall be

equipped with a summons, albeit one made under his own hand. That gives the inspector very wide-ranging powers.

In the context of the Government's own Human Rights Act 1998, I am concerned that a number of people will object to the powers and the function of the chief inspector, and that we are being asked, in good faith, to agree that those functions will be decided later. I will revert to a similar point later in our discussions. The Minister is taking an awful lot for granted if he believes that the Opposition will agree to confer functions on the chief inspector through enabling legislation without having had any indication of what those functions might be.

The powers of the chief inspector are extensive, and the impact of a rail accident will be fairly localised. We are not considering the situation of a tanker accident at sea, or an air accident on the scale of Lockerbie, where damage and the fallout from the aircraft are spread over very large areas. The impact will be localised, and it should be easy to identify the affected areas. However, I ask the Minister to allow us to discuss the functions of the chief inspector. This is an appropriate point at which to discuss that, as the Secretary of State promised that we could have a lengthy and full debate in the Committee about the contents of the various clauses. Will the Minister share with us the functions of the chief inspector and the way in which the inspector will discharge those functions?

John Spellar (Labour, Warley)

We have been going over old ground already discussed under previous clauses. I stress again to the hon. Lady that the Merchant Shipping Act 1995 is brief about the functions of the chief inspector, and the details are left to the marine accident branch regulations. I do not want to be repetitious, and I have already outlined the reasons why we are acting in that way.

The hon. Lady also asked for a definition of ''shortly''. As ever in Government responses, ''shortly'' means shortly.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9 - Requirement to investigate

Don Foster (Liberal Democrat, Bath)

Good morning to you, Mr Hurst, and to the Committee?

I listened with interest to the questions raised by the hon. Member for Vale of York (Miss McIntosh), and I have considerable sympathy with many of her points. She is right that the Committee deserves more information about what regulations may contain and a better understanding of the Government's thinking on various aspects of the Bill. That is also true for clause 9. The hon. Lady will have several points to make, so, not wishing to steal her thunder, I will concentrate solely on two aspects.

I am looking in particular at subsection (2)(a). Subsection (1) says that the inspector will be able to

''direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances shall be investigated by each person who managed or controls, or participates in managing or controlling, all or any part of railway property.''

The chief inspector will rightly be able to direct persons to carry out investigations by the industry. However, subsection (2)(a) says that the directions

''shall specify the manner in which the investigation is to be conducted.''

My reading of that is that the direction will detail how the investigation is to be carried out. That is interesting because it implies that the rail accident investigation branch and chief inspector will tell the industry body—a train operating company, Network Rail or a rolling stock operating company, for example—how to go about an investigation rather than allow it to use any relevant expertise to search for the cause of that accident or incident.

It is equally interesting that having said that the chief inspector will specify the manner in which the investigation will be carried out, the direction appears not to detail the issues that the investigation will cover. Will the Minister make it clear that nothing in the direction will prevent an industry body from investigating any aspect of an accident or incident from which it believes it can learn lessons to improve future railway safety?

My second point is about subsection (6). Earlier parts of the clause specify that if a direction is given to a person to carry out an industry investigation and the person fails to do so, he or she will be deemed guilty of an offence. That is understandable. If there is a clear requirement to carry out an investigation and a person refuses to do so, there must be some sanction. However, I have some difficultly in understanding why subsection (6) says:

''But in proceedings against a person for an offence under subsection (3) of failing to comply with a direction it shall not be necessary to prove that he was aware of the direction.''

Will the Minister explain in what circumstances it would be appropriate for someone to be deemed to be guilty without clear evidence that they knew that they had been issued with a direction to carry out such an investigation? There may be good reasons for that, but it would be helpful for future cases if the Minister stated firmly for the record the cases in which the Government believe that the subsection is important and should apply.

Anne McIntosh (Conservative, Vale of York)

My questions are not dissimilar from those on the issues explored in the debate on clause 8.

Subsection (1) provides the chief inspector of rail accidents with the power to direct that an industry investigation be carried out by the relevant party. Subsection (3) creates a new offence and makes it an

offence for that party to ignore that direction. I shall dwell for a moment on subsection (1) and let the words speak for themselves:

''The Chief Inspector of Rail Accidents may direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances shall be investigated by each person who manages or controls, or participates in managing or controlling, all or any part of railway property—

(a) on which the accident or incident takes place; or

(b) which is involved in the accident or incident.''

Curiously, the explanatory notes, which are so helpful on other clauses, say nothing about clause 9. I question its drafting, as there appears to be another typographical error. There has already been at least one, and there are one or two more on today's amendment paper. The Department must be much more careless than it was when the Conservatives were in government, but the Minister is responsible and I am sure that he will give us good reasons for the errors.

Will the Minister say what is a railway accident or railway incident ''of a specified kind'', and what are ''specified circumstances''? On Second Reading and in Committee, we have explored at length what constitutes an accident or an incident, although I hesitate to suggest that the Opposition parties have been more helpful in defining an accident or incident than the Government or the Bill have been.

It is unacceptable that a new offence is created under the clause. Under subsection (4),

''a person who is guilty of an offence under subsection (3) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum or,

(b) on conviction on indictment, to a fine.''

Subsection (3) says:

''A person to whom a direction under subsection (1) applies commits an offence if he fails to comply with it.''

It is incumbent on the Committee to be able to explain to people what the specified circumstances are and what the specified railway accidents and railway incidents would be.

Again, subsection (2) is far reaching. It states:

''A direction—

(a) shall specify the manner in which the investigation is to be conducted; and

(b) may make provision for a case where more than one person would be required to conduct an investigation, whether by requiring a joint investigation or by requiring or enabling one or more persons to conduct an investigation on behalf of others.''

That is a very sweeping direction, and the Bill should be more specific.

Subsection (5) states:

''The Chief Inspector shall publish a direction issued by him under subsection (1) in a manner which he considers will bring it to the attention of each person who is likely to be required to comply with it.''

How does the Committee know that the manner in which the investigation is to be conducted will be sufficiently public and well directed? How do we know that the person to whom the direction has been issued will know that it is directed against him or that he will pay any attention to it? What is the purpose of the clause? It would seem to have a very serious purpose as it creates a new offence that carries a not insubstantial penalty. The chief inspector is given a specific power,

but we are no further forward in knowing what his function is under clause 8. We do not know how the person to whom the direction is issued will be informed of it, or whether he will have committed an offence.

On reflection, the Minister may feel that the clause is not as well drafted as it might be, and I would sympathise with him in that respect. However, if he honestly believes that the clause is well drafted, I have some substantive questions. In two or three years' time, hon. Members might be approached by a constituent who has been issued with a direction and not even known that he or she had committed an offence. The clause's drafting is questionable; if the Government want to create a new offence they should be much more specific in stating that the offence will be brought directly to the attention of the person concerned, and in specifying the manner in which the chief inspector will do that.

John Spellar (Labour, Warley)

I hope that I can reassure the hon. Lady that directions will be sent to the train-operating companies and will be published. The purpose of the clause is to implement Lord Cullen's recommendation that the RAIB should regularly examine the reports of formal industry investigations, which would

''determine whether there are matters of local or national importance which should be brought to the attention of the industry, for example if a number of accidents suggested a significant trend.''

We want the industry to co-ordinate its actions to a greater extent in that regard and that is best done under the RAIB umbrella, in a similar way to how the shipping and aviation sectors operate. The clause will ensure that minimum standards are followed and that there is consistency in the procedures. I hope that, as a result, companies will draw to the attention of staff and managers, especially those who will conduct internal company investigations, what their rights and responsibilities are. The issue is slightly different from RAIB investigations, but the clause will enable us to drive safety right through the industry and provide the mechanism for doing so.

Don Foster (Liberal Democrat, Bath)

I am sorry that the Minister has finished his speech and is not just giving way, as he has failed to answer any of our questions. I hope that he will have another opportunity to respond later.

I asked why an industry investigation will be carried out under a direction that specifies how the investigation is to be carried out but not what issues will be covered. The hon. Member for Vale of York asked the same question in slightly different language. As the Minister was unable to answer my question, I shall express it differently: it would be most helpful if he could confirm that an industry body investigating an accident would be allowed to look at all the factors that it believes might have had a bearing on that accident or incident. For example, following a collision after a signal passed at danger, would it be permissible for the train operating company to consider issues that are outside its direct responsibility, such as those that relate to signalling or the track in that area?

The second point relates to someone being summoned for failing to follow a direction when he was simply unaware that the direction had been issued. Subsection (6) says:

''in proceedings against a person for an offence . . . of failing to comply with a direction it shall not be necessary to prove that he was aware of the direction.''

That seems totally unfair. There must be a clear requirement to demonstrate that the person was aware that he had received such a direction. If the Minister's answers so far are the best we are going to get from the Government, I remain totally unconvinced about the wording of various aspects of the clause and would be minded to suggest that the Committee vote on it.

Anne McIntosh (Conservative, Vale of York)

I posed a number of questions to the Minister. The clause says:

''The Chief Inspector of Rail Accidents may direct that any railway accident or railway incident of a specified kind or which occurs in specified circumstances''.

One hates to repeat oneself, but will the Minister tell us precisely what the specified kind of accident or incident and the specified circumstances would be? He said that a notice would be given to the train operating company, presumably in the usual way. Being issued with a parking fine, which is not as serious as but not dissimilar to the penalty under subsection (4), is one way of being told that one has committed an offence. In planning consultations, the planning authority is effectively required only to fly post in the smallest available font. Displaying a poster is deemed to be notice. The Minister will have to do a little better to clarify the purpose of the clause, or we shall have to return to the issue.

John Spellar (Labour, Warley)

I hope that I can help the hon. Lady and the hon. Member for Bath (Mr. Foster) a bit further. It will be for the chief inspector to decide. That is made quite clear in clause 1. The chief inspector can say that he is concerned about particular incidents that are taking place on the railway and say how he wants those investigations to be conducted. If, as the hon. Gentleman says, issues concern a number of operators the chief inspector may well be looking at an investigation by one of his own inspectors, whom he would direct. But he makes those judgments about the appropriate locus for such investigations.

The industry itself—the train operators or Network Rail—can and will make its own investigations. It will look at the causes of minor incidents, particularly if there is a series of incidents, to find out whether there is a fundamental problem. After all, that applies right across industry, not just transport. When difficulties arise, even if they are not related to safety and where there is no threat to life, industry will look at those incidents to establish causes and to remedy them. Rather than have his inspectors conduct all the investigations, the clause enables the inspector to tell companies how they should carry out investigations to get some sort of consistency. One important feature of such investigations, and this draws very much on the experience of the other two branches, will be examination of underlying problems to see whether

they have an industry-wide application and the dissemination of that information at the earliest possible date to spread best practice more rapidly.

Don Foster (Liberal Democrat, Bath)

I hear what the Minister is saying, but he is now redefining the word ''manner''. Manner implies the way in which an investigation is carried out, not, as the Minister said a few moments ago, the locus of the investigation. We are told that the chief inspector will specify the locus of the investigation, not the way in which it is carried out. The record will clearly show what the Minister said.

John Spellar (Labour, Warley)

I am clearly saying that the chief inspector determines the locus by deciding whether he wants the inspectors to investigate certain issues under his direction. Some issues will properly be investigated at company level. The inspector will be able to prescribe the procedures under which investigations take place in order to ensure consistency and to facilitate the spread of best practice. Other matters are consequential on having a regime to ensure that the directions are followed at company level.

John Randall (Conservative, Uxbridge)

I am particularly concerned about subsection (6), under which the person committing an offence does not necessarily have to prove that he was aware of the direction. Why not? Is that normal? For a simple person like myself, a recorded delivery might constitute sufficient proof. What is the current maximum statutory fine?

John Spellar (Labour, Warley)

It is quite normal to provide that ignorance of a law or regulation is not necessarily a defence, and the maximum fine on the current scale is £5,000. A direction specifies the manner, but it can also specify the types of accident to be investigated—in this case, under clause 1. On the point raised by the hon. Member for Bath, clause 2 deals with the procedures under which the investigation is being conducted.

Anne McIntosh (Conservative, Vale of York)

I am going either deaf or mad—[Interruption.] That guarantees keeping the Under-Secretary awake. Did I hear the Minister say that the powers are being exercised under clause 1? Does he not mean subsection (1) of the clause, which would put a different gloss on the matter?

John Randall (Conservative, Uxbridge)

A verbal typographical error.

Anne McIntosh (Conservative, Vale of York)

Indeed. I hope that we do not have too many of them.

I accept that ignorance of the law is no excuse, but I seek further clarification from the Minister. He said that a train-operating company would be notified that a direction had been issued against it. A £5,000 fine is not substantial, even in circumstances where not much money is being made and the franchises are being renegotiated. Precisely how will the company be informed about the direction, and how will it be made aware that the channels of information are working?

John Spellar (Labour, Warley)

The hon. Lady shows a considerable lack of confidence in the train operating companies set up under Conservative legislation. The various regulatory bodies for the railway industry regularly notify the companies of relevant procedures, any changes to them and subsequent directions. Whatever its problems, the rail industry has always benefited from good communications in respect of regulations. I find the idea of considerable ignorance in this sector an odd proposition. In some cases, people may not follow the procedures, but we all want to ensure that operators do follow them and promote best practice—precisely why the Cullen report recommended the establishment of an RAIB to identify the causes of accidents and to spread best practice by highlighting the lessons to be learned from them. We all agree with that and it is central to the Bill's purpose.

John Randall (Conservative, Uxbridge)

I seek further clarification of how the notification will be delivered—by post or, in today's world, by e-mail? Could a receipt be sent in that way? It is not the same as a summons, which has to be issued in person.

John Spellar (Labour, Warley)

These could, if necessary, be sent by recorded delivery, but I stress again that directions to train operators can be published to facilitate broad knowledge of what is going on in the industry. The hon. Gentleman reveals a considerable lack of confidence in train operators. The Bill is about improving the safety culture in the industry and we are here providing the mechanism to achieve that.

John Randall (Conservative, Uxbridge)

It is not so much a lack of confidence in the operators as in the postal system. We all have experience of letters going missing. I have no problem with the concept; I simply want a failsafe. I am interested in finding out how these important directions and notifications will normally be delivered to the persons concerned. As I said, the post, and even e-mails, can go wrong. We must be fair to the people involved. It is not that we want them to avoid the notifications; we want to ensure that they are aware of them so that they can get on with the job. That is my worry—not the principle, but the practicalities.

John Spellar (Labour, Warley)

We will certainly draw those remarks to the chief inspector's attention, once he has been established.

Anne McIntosh (Conservative, Vale of York)

I have one final question. The Minister mentioned publication, so what is the usual mechanism for publishing notices?

John Spellar (Labour, Warley)

The usual industry procedures provide for regular circulation of information to operators, and I can send the hon. Lady some examples.

Alan Hurst (Labour, Braintree)

Does the Minister wish to add anything?

John Spellar (Labour, Warley)

I shall write to the hon. Lady.

Question put and agreed to.

Clause 9 ordered to stand part of the Bill.

Clause 10 - Accident regulations

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No.16, in

clause 10, page 6, line 32, at end insert

'Accident reports such as those conducted in the event of a road accident should be completed by the relevant investigators acting under the provision of this Bill, ensuring greater transparency and security across all modes of travel.'.

The amendment is designed to deal with a particular issue, so I request, particularly in view of yesterday's statement by the Secretary of State, a stand part debate on clause 10.

The amendment deals with the provision whereby:

''The Secretary of State may make regulations in connection with the investigation of railway accidents and railway incidents''

The explanatory notes say:

''Clause 10 allows the Secretary of State to make regulations which would allow, for example, requirements to be made on the reporting of accidents and incidents to the RAIB (so that they may then investigate those accidents and incidents). Such provision would not affect existing obligations to report accidents to HSE''—

the Health and Safety Executive.

The document that is referred to in respect of road accidents is called Stats15 or Stats19—I cannot remember which, but the Minister will know what I am talking about. My understanding is based on familiarisation that I have had with road accident cases, and I believe that the casebook ''Wilkinson's Road Traffic Offences'' is the authority, as it goes into great detail on the issues. The police fill in road accident reports primarily to record the root cause of the accident and, in doing so, they consider driver behaviour in terms of the vehicle's speed and whether the driver was under the influence of alcohol or drugs.

The accident report also goes into detail about the state of the road surface. It notes whether it was a dry day or whether the weather could have contributed to the accident. A wet road can affect a car's braking distance, and an icy road can affect a car's ability to stop in time or not to veer off the road or into the path of an oncoming vehicle. Poor visibility owing to fog or mist can also have an impact. The statistics noted in the road accident reports are vital to determining the root cause of an accident.

The thinking behind our amendment was summed up by my hon. Friend the Member for Westmorland and Lonsdale (Mr. Collins) clearly and poignantly on Second Reading, when he said:

''our starting point should be the fact that a life is a life is a life. Saving a life on the roads or in the air is at least as valuable to society as saving one in any other context.''—[Official Report, 28 January 2003; Vol. 398, c. 778.]

We enjoy an inherently good safety record on our railways and roads in this country. However, because by definition more people tend to get hurt in one railway accident or incident than in a huge number of accidents on our roads in any one day, rail accidents appear more graphic and horrific.We set great store by the fact that the loss of a life, or an injury incurred, is equally damaging and should have equal value whether it occurs on the railways, in the air, on the sea or on the roads. We want greater transparency in

respect of safety, and we want to see that we are working towards increasing the security and safety of all modes of transport. On Second Reading, we noted with regret that we should have liked the Bill to touch on aspects of road safety—but we can return to that at a later stage.

We have procedures in place. Clause 10(1) empowers the Secretary of State to

''make regulations in connection with the investigation of railway accidents and . . . incidents.''

We believe that, as part of that investigation, accident reports relating to railways could usefully draw on the experience with roads. Road accident reports have been in operation for some time. I understand that the authorities—the Under-Secretary might confirm that that includes the Highways Agency and the police—rely on them, for example, to improve the safety of a road. Clearly, if a road becomes known as an accident black spot, road accident reports will play a special role.

My next point will be particularly appropriate for the Under-Secretary. A rumour has reached me that Portland helicopter base may be under threat. In the context of saying that a life is a life and that equal value should be given to a life, whether it is lost on the railways, at sea or in the air, I hope that at some stage we can ask the Under-Secretary whether that rumour is true. It might be more appropriate to raise it under the maritime provisions of the Bill.

Alan Hurst (Labour, Braintree)

Order. Unless the hon. Lady can convince me that a helicopter base has any relationship to the Bill, I hope that the Minister will not deal with that matter when he replies.

Anne McIntosh (Conservative, Vale of York)

I hope to raise the matter at a later stage of this Bill, or under another Bill, which I believe will come to the Floor of the House at the end of this month. I am grateful to you for that helpful guidance, Mr. Hurst.

Knowing the spirit of generosity that the Under-Secretary demonstrates on these occasions, I hope that he will acknowledge that amendment No. 16 is a practical proposal. We have benefited from drawing on reports in connection with road accidents, and such reports could be used as the model for accident reports relating to the railways. When accident reports are drafted under regulations under the clause, will the Government, rather than just establishing the root cause and, under the previous clause, giving directions to the train operating company, investigate the possibility of examining the characteristics of a particular length of track, the speed at which the train was going and other factors relating to the accident? That would enable us to learn from those reports. I have explained the thinking behind the amendment and I hope that the Under-Secretary will see that it has merit.

Don Foster (Liberal Democrat, Bath)

Liberal Democrats are accused of using all sorts of parliamentary procedures to raise issues and then disseminating them in our infamous ''Focus'' leaflets, but the hon. Lady's raising of the rumoured

closure of Portland helicopter base beats even some of our attempts in Committee and on the Floor of the House.

The hon. Lady has moved an interesting amendment, suggesting that the way in which statistics on road accidents and incidents are collated should be used as a model for railways. I do not believe that it is necessarily a good model for us to follow. As she rightly says, data are collected under stats19, but if she studies the data in any detail she will see that they are relatively crude and simplistic. It is not really possible to glean from analysing the data the sort of helpful proposals that she mentioned.

The hon. Lady was right to say that it is important that such data be compiled and analysed in great detail. I hope that we will see improvements in the way road accident and incident data is gathered and analysed. The Committee will be interested—and, I am sure, Mr. Hurst, you will be delighted—to know that on Monday I was trudging through deep snow in Stockholm. My reason for going there was specifically to look at how the Swedish Government are using the collation of information on road accidents to influence vision zero, which is their scheme to reduce the number of road accidents.

The Committee will doubtless be interested to know that the Swedish Government have just established a new organisation called Strada, which is designed to bring together all the road accident and incident statistical data, not only from the police but from other bodies, including hospitals. That will be of particular relevance in respect of today's debate about data from hospitals on gunshot wounds being collated for police work.

In the same way, it is vital to ensure that detailed data on our railways are collected and that adequate information is available. I am sure that the hon. Lady is aware that such data are already collected by Railway Safety, which produces a statistical bulletin. The issue for the Minister is to give the Committee an assurance that, with the additional benefit of the work from the RAIB, we will look at ways of developing statistical analysis to ensure that we learn some significant lessons for the future improvement of rail safety.

I give an example. Strada was surprised to discover that the side of the road is more significant that previously thought. In a large number of accidents, the degree of injury was increased significantly where there were boulders on the side of the road. As a result of that research, a major programme to clear the sides of roads has begun. I am sure that other examples may arise from appropriately detailed analysis of railway statistics.

We are not minded to support the hon. Lady's amendment because we do not believe that the example she has chosen is a good one to follow. I am using this opportunity to try to obtain from the Minister a clear assurance that much more detailed gathering and analysis of statistics is intended.

I end by giving an example of where much more detailed information on the railways could be gathered and analysed. The Minister may be aware—I have received parliamentary answers on the matter—that many incidents on the railways that have led to deaths and serious injuries were the result of vandalism or the starting of fires. The Minister will also be aware that in many of those cases there is no statistical data to tell us where such incidents occur. It is therefore not possible to identify the hot spots of that sort—or black spots as the hon. Lady referred to them in relation to the roads—on the railways. Much progress is needed in that area. Will the Minister assure us that improvements will be made?

David Jamieson (Labour, Plymouth, Devonport)

This has been an interesting and wide-ranging debate, which, Mr. Hurst, must have tested your patience. I shall, of course, stick with your stricture and focus firmly on the issues under debate.

Clause 10 is not about the rail accident investigation branch report itself. That is covered elsewhere in the Bill. The clause concerns the reporting by industry to the rail accident investigation branch that an accident or an incident has occurred. It is then the responsibility of the rail accident investigation branch to analyse the data from those reports.

Don Foster (Liberal Democrat, Bath)

I apologise to the Minister for intervening so soon, but a further question has just occurred to me. We know that, very shortly, the rail safety and standards board will be set up. That will in part replace Railway Safety, which currently gathers the statistics and carries out the analysis. Will the Minister confirm that, in future, the rail accident investigation branch, and not the rail safety and standards board, will compile that information?

David Jamieson (Labour, Plymouth, Devonport)

I am reliably informed that RSSB will gather information and give it to the rail accident investigation branch. I hope that that addresses the hon. Gentleman's point.

Don Foster (Liberal Democrat, Bath)

It is clear from the clause that the regulations will require a person to notify the rail accident investigation branch. Will there be an equal requirement on people to notify the RSSB?

David Jamieson (Labour, Plymouth, Devonport)

The requirement in the clause is to inform the rail accident investigation branch.

The hon. Member for Vale of York made some interesting points, but sadly many of them were not relevant to the Bill. She made the good point that the importance of saving a life is just as relevant in one form of transport as it is in another. I accept the premise of that argument.

We have one of the best records on road safety in the world. Sweden also has a very good record in that area. The hon. Member for Bath went to Sweden, but he did not tell us what he did there other than look at road safety.

Don Foster (Liberal Democrat, Bath)

Would the Minister like the details?

David Jamieson (Labour, Plymouth, Devonport)

This may be testing your patience, Mr. Hurst, as well as that of the Committee.

Don Foster (Liberal Democrat, Bath)

I am delighted to tell the Minister what I did in Sweden, because a number of issues that I discussed there will come up later in the Bill. I discussed with the Swedish Ministry of Transport the improvements that it has made in dealing with road safety issues. I then met the police and was given a very nice Swedish police baseball cap. I discussed enforcement with the police, and will return to that matter when we discuss the British Transport police.

David Jamieson (Labour, Plymouth, Devonport)

I am sure that the Committee is endlessly grateful to the hon. Gentleman for telling us that, and I am sure that an account will appear in a ''Focus'' leaflet shortly.

The hon. Member for Vale of York made an important point about transparency, which we should address specifically. The rail accident investigation branch will carry out its investigations openly and transparently and will be required to keep all those affected by the accidents—the industry, regulators, owners, manufacturers and, importantly, the bereaved and injured—informed of the progress of the investigations. Following an accident, the rail accident investigation branch will publish a report as quickly as possible within 12 months on the accident and its causes. I assure the Committee that if urgent safety lessons emerge immediately, the rail accident investigation branch will publish interim reports so that the lessons can be shared with the industry as quickly as possible. If it became clear within days or weeks that a particular aspect of the track or a carriage had caused the accident, the branch would make an interim report to ensure that immediate action was taken, rather than wait for the final report to come out.

The hon. Member for Vale of York spoke about roads to say that investigations into rail accidents will continue to be conducted in much greater detail than the investigations that currently take place into road accidents. Most accidents on the road are not investigated at all, because the police are not called to those incidents. They may involve injury and considerable damage, and lessons could be learned from them, but many are not investigated at all. Indeed, it could be argued that it would be impractical to do so.

The rail accident investigation branch will gather all the relevant data and use them to inform safety recommendations. The hon. Lady gave the example of the state of the road or the weather, and the hon. Member for Bath asked whether the branch will analyse data fairly and draw lessons from them. The simple answer is yes. If a particular piece of rolling stock or line has a problem, it will be up to the branch to make the relevant report. I hope that hon. Members can draw comfort from that response.

I do not want to be drawn too much on helicopters, and I can say only that whether at sea, on road or on rail, we endeavour to ensure the maximum safety

commensurate with the standards set out in the relevant regulations. The hon. Lady will appreciate what I am saying.

The rail accident investigation branch will establish the root causes of rail accidents and incidents and publish detailed reports as soon as possible. That is designed to create the maximum possible transparency and security by sharing all safety lessons with the industry.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

On the point of transparency, will the Minister clarify whether the statistical information to which he referred will be available publicly rather than just to the industry, and whether the information will be broken down by train operating company, so that people can compare the safety record of each company?

David Jamieson (Labour, Plymouth, Devonport)

Yes, the aviation and marine accident investigation branch reports are public. I see them on a regular basis, and RAIB reports will be available publicly to all those who need to respond to them.

I hope that I have answered the questions of the hon. Member for Vale of York, and on that basis, I urge her to withdraw her amendment.

Anne McIntosh (Conservative, Vale of York)

Subject to any later developments, I must say that it is nice to see the Under-Secretary returning to better health. I am most grateful for his reply. The amendment was designed to prompt debate and to elicit the information that we have had. If it emerges from the root causes report and from the information that will be shared with the industry that there is an accident black spot on a particular line or stretch of line, that will be useful for the industry. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Anne McIntosh (Conservative, Vale of York)

I am grateful for the chance to talk about the background and thinking behind the clause. It allows the Secretary of State to make regulations that would allow requirements to be made in the reporting of accidents and incidents to the rail accident investigation branch so that it may investigate them. We are told that such provision would not affect existing obligations to report accidents to the Health and Safety Executive.

In a written ministerial statement—one of the curious new instruments that have replaced the old ''Gardeners' Question Time'' planted written question—the Secretary of State said yesterday:

''In April of last year my predecessor asked the Health and Safety Commission (HSC) for advice on the report of the rail industry's European Rail Traffic Management System (ERTMS) programme team on how best to take forward the recommendations from the public inquiry on train protection systems jointly chaired by Professor Uff and Lord Cullen. I have now received the Commission's advice, in a letter to me of 5 February from the Commission Chair. I have placed a copy in the Library.''

I do not yet have a copy of that letter, but when I do, I shall read it with great interest. It would be helpful, Mr. Hurst, if we could make use of your good offices to make representations on behalf of the Committee that what is probably quite a short letter should be published in Hansard for the benefit of hon. Members rather than our having to snaffle off to the Library to find our own copy.

The Secretary of State continued:

''The Commission says that the present programme of fitting the Train Protection and Warning System (TPWS) 'is already delivering real safety benefits'. The Commission 'accepts that the Uff/Cullen timetable for installing ERTMS is not viable' and that 'the current state of technology means that at the moment further use of health and safety law to mandate ERTMS is not appropriate'. They endorse Level 2 as the best system for this country, although the Commission's consultants describe Level 2 as still at an early stage of development, and accept that Level 1 will reduce capacity. The Commission recommends that the Strategic Rail Authority take the lead in developing a single national programme for ERTMS development. I have accepted the HSC's advice.'' —[Official Report, 5 February 2003; Vol. 399, c. 14-16WS.]

The Committee will recall that, in columns 769 and 770 on Second Reading, the Secretary of State helpfully set out the relevant merits and the state of play of each level.

Alan Hurst (Labour, Braintree)

Order. The hon. Lady's remarks are ranging much too widely. The clause is narrowly drawn, and I would be obliged if she could contain herself to it.

Anne McIntosh (Conservative, Vale of York)

I hear your strictures, Mr. Hurst, and will follow them to the letter.

The Ministers told us on Tuesday to expect an important announcement from the Health and Safety Commission that would have a bearing on the clause. In the absence of any further advice from the Ministers, I understand that that statement was released in the letter to which the Secretary of State referred, and which has now been put in the Library. The notes that the Library prepared refer to the role of the Health and Safety Executive:

''Clause 10 allows the secretary of state to make regulations which would allow requirements to be made for the reporting of both rail accidents and incidents to the RAIB. Currently all accidents are reported to the HSE and BTP when they occur and all incidents are reported to the HSE. The government proposed in the consultation document that the industry added another body, the RAIB, to the list of those who need to be reported to when an accident occurs. It did not propose the separate reporting of incidents to the RAIB and HSE but thought that the RAIB would have the right to obtain that information from the HSE as well as industry and HSE reports.''

I merely ask what bearing that work by the Health and Safety Executive will have on future work on the European rail traffic management system. Perhaps the Under-Secretary can confirm that the statement that we were expecting from the Health and Safety Executive is the one that has now been placed in the Library. That would be most helpful.

Subsection (2)(a) gives the Secretary of State far-ranging powers to make regulations that may

''require a person to notify the Rail Accident Investigation Branch of a railway accident or railway incident''.

Is that provision the same as those for, say, a serious road accident, when the drivers of the vehicles are obliged to report the accident to the police. Does subsection (2) create a new requirement for a person to give notification of such an accident? That raises the question of who that person might be. By implication, will the clause enable regulations to describe who that person should be? The clause is limited and could go much further by detailing what the regulations will specify. We are not assisted by the Library, which informs us that certain consultations took place, but does not report them in any detail.

Subsection (2) further says that the regulations may

''make provision about the timing, form and content of notice given by virtue of paragraph (a).''

It is important to elicit from the Government an indication of whether, for example, there will be a 24-hour period in which a person—again, it will be interesting to know who that person should be—should inform the railway accident investigation branch of a railway accident or incident. The Under-Secretary indicated that there are certain circumstances in which a person is not obliged to report a road accident. It is my clear understanding that a road accident must be reported if there is a fatality or a person is injured, even if only slightly. I seek an assurance that the regulations will specify that, because we are still in the dark about whether every accident will be deemed to be a railway accident or incident when a person is killed or seriously injured.

Can the Minister confirm that the regulations will specify the severity of the accident or incident and will state that precise circumstances? He alluded to circumstances in which an accident needs to be reported and there is substantial damage to property—presumably the carriage, the railway station or dwelling houses adjacent to or abutting the station. We need more information about the precise scope of the regulations.

Subsection (3) says:

''The regulations may, in particular, require a person to take or not to take specified action following an accident or incident—

(a) pending the commencement of an investigation, or

(b) during the process of an investigation.''

The Minister may like to draw on the experience of the other two branches of investigation, the marine and aviation accident investigation branches, to help us this morning. Subsection (3) is not sufficiently clear and we need further information.

Subsection (4) states that the regulation may create an offence. I imagine that it will be a new offence, but we are told that it would not be an offence

''punishable by a term of imprisonment exceeding the maximum term which may be imposed by a magistrates' court in accordance with section 78 of the Powers of Criminal Courts (Sentencing) Act 2000''.

It would be helpful to know what the terms of the offence are, even in the broadest outline. I am sure that the Minister must have some idea of that. When are the Government going to produce these regulations? The clause is illuminating up to a point but leaves huge scope for the enabling regulations. The Minister for Transport indicated earlier that the regulations would

be produced shortly after the Bill receives Royal Assent and he must have more detailed knowledge that could help us to understand the clause better. The Under-Secretary may be in a position to share that with us.

I am particularly concerned about subsection (4)(b). It confers on the Secretary of State ''a discretionary function''. I always shudder when I hear that expression, although less so when it applies to the present Secretary of State than when it applied to his predecessor. What will that discretionary function be? What is the purpose of conferring a discretionary function by regulation, rather than specifying it in the Bill? What is the remit of the function? Who would exercise it on behalf of the Secretary of State? We know that the present Secretary of State is a very busy man.

Can the Under-Secretary confirm that clause 10(4)(c) is the normal format for conferring jurisdiction on a court or tribunal? Obviously, the situation will be different in England and Wales, and Northern Ireland and Scotland, but will he confirm whether the clause will apply to all parts of the United Kingdom? As the explanatory notes do not specify anything else, I can only assume that it will.

The explanatory notes also say that the additional staffing needed by the Department for Transport for the rail accident investigation branch is identified in table 1 of the regulatory impact assessment. It is anticipated that 14 professional staff and eight support staff will be needed. I assume that those are the inspectors and investigators that were referred to earlier. Will the Under-Secretary put my mind at rest and assure me that clause 10 will not lead to further employment, but that the functions of clause 10 will be carried out by those who already work for the Department?

To recap, we believe that clause 10 is misleading and does not go far enough. We need to know who will be required to notify the rail accident investigation branch in the case of a fatality or serious injury and what the timing will be. Will it be 24 hours, three months or a year? We also need to know the content of the notice given under subsection (2)(a) and whether it will be published in the usual way or in the form of a letter, leaving it, as my hon. Friend the Member for Uxbridge (Mr. Randall) said, to the vagaries of the Post Office. Finally, I seek guidance on who will discharge the discretionary function, and would welcome a little more information about the offence created by the clause.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I shall make two brief points. First, subsection (3) refers to

''(a) pending the commencement of an investigation, or

(b) during the process of an investigation.''

Is it likely or possible that the regulations will require some action, such as monitoring a site, to be taken or not taken after an investigation?

Secondly, I want to reinforce the point made by the hon. Member for Vale of York about the discretionary function conferred by subsection (4)(b). What will be the range and remit of that function, and who will exercise it?

David Jamieson (Labour, Plymouth, Devonport)

This has been an interesting debate, in which a considerable number of questions have been raised, and I shall endeavour to answer them.

The Government have no wish to add an unnecessary layer of bureaucracy to the system of accident reporting. Subsection (2) simply allows the Secretary of State to add the rail accident investigation branch to the list of organisations to which accidents on the railway must be notified. I hope that that clears up one point raised by the hon. Member for Vale of York. Other organisations include the Health and Safety Executive, the police and, in some circumstances, the other emergency services. The Government intend to ensure as far as possible that the additional notification requirement to the rail accident investigation branch will operate in much the same way as existing notification requirements placed on the train companies.

The hon. Lady mentioned the European rail traffic management system. In the margins of Tuesday's sitting, we drew to the attention of the official Opposition and the Liberal Democrats the fact that a statement would probably be made this week. We felt that that information should be available to the Opposition. There is no link between the Bill and any decision or announcement made by the HSE, but because this is a safety issue, we felt that it would be helpful at least to say in the debate that such a statement would be made.

Anne McIntosh (Conservative, Vale of York)

That was most helpful. The Minister implied that the issue that formed part of yesterday's statement was of only marginal interest, but the Secretary of State devoted three columns of Hansard to it on Second Reading. I am mindful of your strictures, Mr. Hurst, but given that the Bill relates primarily to railways, yesterday's announcement should not be underplayed. The potential of the ERTMS—I recall, Mr. Hurst, that I am not allowed to use acronyms, so it is the European rail traffic management system—to prevent accidents is huge, so I hope that we will have some opportunity to debate its contribution. I seek guidance on what will be the appropriate stage to discuss that.

David Jamieson (Labour, Plymouth, Devonport)

The hon. Lady rightly says that the implications of rail traffic systems are huge. Alas, they are not relevant to the clause, but I hope that we may find an opportunity—with your permission, Mr. Hurst—to discuss them. The issue was discussed on Second Reading. There was also discussion of the difference between speed on the road and speed on the railways. That was also irrelevant to the Bill, but there was quite an interesting exchange.

The hon. Lady will know that clause 7, which we have passed, creates an offence of failing to disclose evidence or otherwise obstructing an investigation. Clause 10(3) will allow regulations to ensure that people do not tamper with or destroy evidence before or during an accident investigation—for example, by deleting a record—so that an investigator cannot use it later. Similar restrictions could be placed on a railway company, so that it would not be allowed to move a carriage that was involved in an accident until the

RAIB inspectors had finished examining it. The detail of what is reported and by whom will not change. It is just that people will now tell the RAIB as well as the HSE.

The time scale to which the hon. Lady referred would depend to some extent on the severity of the incident. For example, a lesser time may be expected for a minor incident. The normal expectation will be that reporting takes place within 24 hours. The hon. Lady asked what would be reported. That will be in reference to accidents and incidents, which will be defined in regulations under clause 2. The hon. Lady will recall my right hon. Friend the Minister for Transport saying that the regulations will be commensurate with European Union regulations.

The hon. Lady asked about clause 10(4)(b), which provides for a discretionary function. An example of that function would be if the chief inspector agreed to allow a train operating company 36 rather than 24 hours to report. The court or tribunal provision in paragraph (c) is a routine measure. She also asked about the staffing for the regulator. The figures in the impact assessment are indicative. The actual numbers will be a matter for the chief inspector to determine, but we have made an effort to indicate what we expect those figures to be. She asked about the offence in subsection (4)(a). That will be for failing to notify the rail accident investigation branch of an accident or incident.

The hon. Member for Carshalton and Wallington (Tom Brake) made a good point that some of the information that will be gleaned could be used to monitor a site by those who have responsibility. I hope that I have covered all the points that were raised.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

The Minister did not touch on the conferring of a discretionary function or set out the range of those functions. Will he indicate the remit and who may take on the functions?

David Jamieson (Labour, Plymouth, Devonport)

I mentioned what the discretionary function was. I said that it would give the chief inspector a small discretion over some issues and gave the example of the length of time that a train operating company had to report an incident. That is the type of discretion available.

I hope that I have been able to satisfy the Committee and that clause 10 will stand part of the Bill.

Anne McIntosh (Conservative, Vale of York)

I was interested in the Under-Secretary's remarks about the European element of the regulations. He will be aware of my long-standing interest in matters European, and I am fortunate enough, Mr. Hurst, to serve on the European Scrutiny Committee under the distinguished chairmanship of your co-Chairman, Mr. Hood.

The Minister for Transport said earlier in Committee, and the Secretary of State for Transport has said elsewhere, that if the Europeans came up with regulations that the Government deemed to be a better system of safety provision for railways, we would

adopt them. Will the Under-Secretary confirm that such regulations would be subject to the European Scrutiny Committee and could be referred for debate to one of the European Standing Committees? The contents of those regulations could have—

Alan Hurst (Labour, Braintree)

Order. I do not think that that is a matter on which the Under-Secretary should comment in debating clause 10.

Anne McIntosh (Conservative, Vale of York)

I will stick to what is within his competence, limited as you say it is, Mr. Hurst.

I understand the Minister's comment that the purpose of clause 10 is simply to add the rail accident investigation branch to the list of bodies to which accidents will be reported. I am still unclear who the person under clause 10(2)(a) would be, and about the fact that it would amount to an offence if the time limit before which the accident should be reported were not respected. Should the limit be 24 hours, three months or a year? Will that person be told what severity of accident would apply, to enable him to realise that he is that person and that there is that time limit?

David Jamieson (Labour, Plymouth, Devonport)

Let me cover a few of those points. The European Union regulations will be a minimum; some countries may decide, as we have, that standards should be higher. It would be nonsensical for our regulations not to be in line with, or at least commensurate with, those elsewhere in the EU. As for the European Scrutiny Committee considering the matter, I have to say that I do not call that Committee; it calls me. The train operator or Network Rail would report the accident.

The hon. Lady asked about delays in reporting. It would depend whether those organisations were unreasonably delaying or denying information. As a lawyer, she probably understands that expression, but I think that that is how it would be defined.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Crown application

Anne McIntosh (Conservative, Vale of York)

I rise to satisfy my curiosity. The clause relates to

''property irrespective of whether it belongs to or is used for the purposes of the Crown or a Duchy.''

Will the Minister for Transport elucidate what the property of the Crown might be? For instance, the royal train springs to mind. I wonder which duchies might be involved. I am aware that the Duchy of Cornwall has extensive interests; I presume that the Duchy of Lancaster has, too. It would be immensely helpful to know.

Is clause 11 a standard clause that applied to the accident investigation branches that were set up in 1982 and 1986? What are the implications if, God forbid, the royal train is involved in an accident? I presume that the royals would not be able claim royal

prerogative, saying that they did not wish the train to be subject to investigation. What property belonging to a duchy is covered by the Bill? Is it a standard clause, or was it dreamed up for the purposes of the Bill?

John Spellar (Labour, Warley)

My understanding is that it is a standard clause, to which the Queen's consent has to be obtained. Indeed, it has been obtained. It therefore means that wherever in the country an accident happens, the accident investigation branch will be able to work without fear or hindrance. Obviously, some railway lines run through royal lands, but inspectors would still need to investigate them. My suspicion that the royal train is not Crown property has been confirmed. It is provided by the rail industry, but it is owned by Network Rail.

The provisions will have been covered by existing clauses, but for the sake of clarity we have included the standard clause to enable the RAIB to go about its business.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Regulations and orders

John Spellar (Labour, Warley)

As we have already made clear in previous debates, the affirmative resolution would be used for regulations under clause 1(2). As hon. Members will recall, that allowed the Secretary of State to amend the definition of ''railway'' or ''railway property''. We have discussed the fact that it is a Henry VIII power allowing secondary legislation to amend primary legislation. Other regulations under this part of the Bill will be made by statutory instrument, as with the maritime and aviation branch regulations.

The regulations will set out detailed working arrangements for the branch in the same way as for the civil aviation and maritime branches. The equivalent regulations are made through the negative resolution procedure. As Lord Cullen recommended that the RAIB should be modelled on the AAIB, we see no reason why the RAIB regulations should not be made in the same manner. We intend to publish regulations soon after Royal Assent.

Anne McIntosh (Conservative, Vale of York)

We are still no nearer to defining the meaning of ''transitional''. If the regulations are modelled on those governing the marine accident investigation branch, which have existed for some considerable time, but not for as long as those that govern the aviation accident investigation branch, why should the Government need to have transitional provisions?

The Minister will know that, in most circumstances, the Opposition have a strong, almost religious, belief that all regulations should be passed under affirmative resolution procedure. However, as the Minister just reminded the Committee, the regulations under the two Acts that set up the marine and aviation equivalents were passed under statutory instrument, which weakens the argument. Will the Minister confirm that ''transitional'' regulations will be used only in the rarest of circumstances in cases where the regulations relating to transport bodies already exist? After all, he admitted that those bodies work extremely well under those regulations. I do not understand why we need transitional regulations.

John Spellar (Labour, Warley)

I wondered what the religion of the Conservative party was, now that the Church of England has deserted them.

The reason for transitional provisions is to allow a smooth transition to the new system. They will be used only where needed. The consequential provision is to allow regulations to deal with minor matters, where

required, as a result of making the RAIB regulations. The clause is designed for good order and smooth transition.

Question put and agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clause 13 - Extent

Anne McIntosh (Conservative, Vale of York)

Subsection (1) states:

''This Part extends to the whole of the United Kingdom.''

Subsection (2) states:

''In the application of this Part in relation to Scotland any reference to a tramway shall be disregarded.''

That raises two questions. First, I envisage a situation in which the clause would be dropped, especially in relation to cities such as Edinburgh and Glasgow that were sufficiently large to carry a tramway and used to have trams, and bearing in mind that the Government's adviser on integrated transport, Mr. Begg, comes from the Scottish capital. I do not know how the Government would deal with a Scottish city that wanted to apply to have a tramway.

Secondly, we had an interesting but bemusing discussion with the Under-Secretary, to which I shall return as soon as possible in the time left to us. I am still hesitant about the difference between a tram and a trolley bus. I would have accepted the Under-Secretary's explanation readily had he said simply that trolley buses do not exist in the United Kingdom. Such a factual statement would be acceptable. However, if trolley buses do exist in this country and are involved in a serious accident or incident that falls under the provisions of the Bill, they will be investigated by the police, which I take to be the British Transport police.

I therefore believe that a number of issues are at fault in part 1, which cannot now be amended. There are several uncertainties, such as what constitutes a trolley bus—do they exist in this country?—what constitutes a tram, and whether Scotland is to have a tramway. It is regrettable that it is not clear who the investigating authority will be for trolley buses.

Don Foster (Liberal Democrat, Bath)

On a point of order, Mr. Hurst. I am a little confused about the implications of new clause 5, which will follow our deliberations on clause 13. Subsection (1) states:

''This Part extends to the whole of the United Kingdom.''

Exceptions to that provision are given in subsections (2) and (3). New clause 5 would exclude that part of the channel tunnel that is currently part of the United Kingdom. If it were successful, would we find ourselves in some difficulty?

Alan Hurst (Labour, Braintree)

I think that that problem would find its resolution on Report.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

I do not want to pursue the philosophical question of the essential nature and concept of a trolley bus, which the hon. Member for Vale of York referred to, but I would like to say something about Scotland being excluded from the clause's provisions. Unlike the hon. Lady, I have some knowledge of Edinburgh and of Scottish legislation, so I know why tramways are being excluded. The tramways are a matter that is devolved to the Scottish Parliament and Executive, whereas railways are a matter for this Parliament. However, I wonder whether the clause is too restrictive.

As the Minister made clear in Tuesday's debate, it was always envisaged that the rail accident investigation branch would have discretionary powers to investigate accidents on tramways. The relevant Scottish authorities might not have the expertise to carry out an investigation into an accident that occurred on a Scottish tramway, and they might wish to ask the United Kingdom rail accident investigation branch to investigate. So far as I can see, the exclusion in clause 13(2), which deletes references to tramways in Scotland, means that the rail accident investigation branch, which is given its powers under clause 6, would not be able to investigate such an accident, even if it were invited to by the Scottish authorities. I am sure that that is not intended; I may have read the clause incorrectly. Will the Minister confirm whether the rail accident investigation branch would have the power to investigate an accident on a tramway in Scotland if it were asked to do so by the Scottish authorities?

John Spellar (Labour, Warley)

I think that I can assist my hon. Friend. Under clause 5, the chief inspector of rail accidents may arrange for the rail accident investigation branch to assist

''any person . . . with or without charge''.

That might appeal to the Scottish Executive. That help may be provided

''inside or outside the United Kingdom.''

That discretionary power would enable the investigation branch to provide assistance, should it be required, in the event of there being a tramway in Scotland.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

I thank my right hon. Friend for that welcome assurance. In case it was thought that my raising the point was unnecessary, given that there are no tramways in Scotland, I should explain that there are plans to develop tramways there. Indeed, thanks to the generous support of the Scottish Executive, plans are well advanced for a tramway in Edinburgh, the first line of which will run substantially through my constituency.

John Randall (Conservative, Uxbridge)

I seek further clarification of what the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz) has just spoken about. I accept what the Minister says. I simply wonder whether clause 13(2) takes precedence over what was said earlier, because it states:

''In the application of this Part in relation to Scotland any reference to a tramway shall be disregarded.''

I wonder whether lawyers will have a lot of fun over that, or whether the Minister's assurance in Committee will be sufficient.

John Spellar (Labour, Warley)

We first had questions about the differences between trolley buses and trams. Both run for part of the distance on roads, although trolley buses run on wheels and with no track, whereas trams run on tracks, some of which are on roads. To answer the question asked by the hon. Member for Vale of York, trolley bus accidents would be investigated by the local police force, not the British Transport police.

The hon. Member for Uxbridge is right that clause 13(2) takes precedence on the question of jurisdiction. To answer the question asked by my hon. Friend the Member for Edinburgh, North and Leith, clause 5 provides that the RAIB can assist if requested to do so by the body that has jurisdiction over the tramway system in Scotland. The question of which body has jurisdiction is clear from clause 13(2). As for the operational side, if there were a request from the body with jurisdiction—the relevant Scottish body—the RAIB could provide assistance and expertise, as it is given discretion to do under clause 5.

Anne McIntosh (Conservative, Vale of York)

I hate to speak in such bleak terms, but I shall put this as bluntly as I dare. The Government are in a mess over this provision. That emerged clearly on the Floor of the House in questions to the Secretary of State for Scotland. This touches on the pertinent point raised by the hon. Member for Edinburgh, North and Leith. The Under-Secretary of State for Scotland, who responded to my question on behalf of the Secretary of State, could not have put it more clearly. I do not have the Hansard in front of me, but if memory serves me correctly, she said that the issues in relation to what was devolved and what was reserved had not been resolved and were a matter of ongoing discussion.

We have waited a considerable time for the Bill to come before the House and the Committee. I think that it was promised at a very early stage of this Parliament and may even have been referred to—[Interruption.] There is no point in the two Ministers chuntering away with their hon. Friends. They are, rightly, deeply embarrassed. They have had plenty of time to avoid typographical errors such as we have seen.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

Having raised the issue, may I tell the hon. Lady that I for one am entirely satisfied with the answer given by the Minister? Rather than pursuing points about which she perhaps has not read as much recently as she should have, she should pursue schedule 6 to the Scotland Act 1998, which explains the way in which any disputes can be resolved.

Anne McIntosh (Conservative, Vale of York)

I shall respond in kind by referring the hon. Gentleman to the Hansard of Tuesday 4 February. As I said, the Under-Secretary, responding to my question, stated that the matters had not been resolved at the highest level and were subject to ongoing consultation. It is highly regrettable and

unacceptable that these provisions are before us when those matters could have been resolved before we reached this stage. The Bill will leave the House in a state of confusion.

Question put and agreed to.

Clause 13 ordered to stand part of the Bill.

New Clause 5 - Eurotunnel

Anne McIntosh (Conservative, Vale of York)

I beg to move, That the clause be read a Second time.

I hope that new clause 5 is fairly self-explanatory, since I established that Eurotunnel is not Crown property. With the help of the Clerks, I found the right place in the Bill for this new clause. The official Opposition were not privy to the full and comprehensive consultation undertaken over many months by the Government in preparation for the Bill. I remind the Committee that I am a shareholder of Eurotunnel, although happily my shares are not of significant pecuniary value.

In 1983-84, I worked in the humble capacity of adviser to the Conservatives in the European Parliament. I had meetings with a number of officials at No. 10 in the heyday when we were in power. The No. 10 policy unit was well known to me, as eventually was the then Secretary of State.

John Spellar (Labour, Warley)

Is this a declaration of interest or a confession?

Anne McIntosh (Conservative, Vale of York)

It is background information. I have long been a firm believer that there should be a fixed link. At the time, 20 years ago, we were all much younger than we are today—

Don Foster (Liberal Democrat, Bath)

Twenty years to be precise.

Anne McIntosh (Conservative, Vale of York)

I am most grateful to the hon. Gentleman for his mathematical prowess. I was a firm subscriber to the view that there should be a fixed link and in my view Eurotunnel was the best form for it to take. I put my money where my mouth was.

John Randall (Conservative, Uxbridge)

I am listening with great interest. At the risk of criticising my hon. Friend, I think I am correct in saying—this may help with her declaration of shares—that the tunnel under the channel is not called Eurotunnel; that is one of the companies involved. There is a slight fault in our new clause, which we should have corrected, but it is a probing measure. We want to know what the situation is. That mistake means that a very interesting debate is to come.

Anne McIntosh (Conservative, Vale of York)

I am extremely grateful to my hon. Friend. That typographical error is clear, so we will be enable to pursue the matter. I would have preferred the new clause to read that part 1 should not apply to the channel tunnel. For the purposes of history, may I say that I was delighted when the channel tunnel scheme was chosen for the fixed link. Eurotunnel was the company to which we were invited to subscribe by the then Government. I felt that someone like me who was passionate about the fixed link not so much with France but with the rest of the European continent should make a modest investment.

That is not to detract from my enthusiasm for the North sea ferries out of ports such as Harwich—you will know, Mr. Hurst, that I represented Harwich for 10 years in the European Parliament. I would not wish to have a dialogue with you wearing your hat as the hon. Member for Braintree.

I apologise to the Committee for the error. Obviously, part 1 should not apply to the channel tunnel, or Eurotunnel or Eurostar.

John Randall (Conservative, Uxbridge)

Or the shuttle.

Anne McIntosh (Conservative, Vale of York)

Indeed.

John Spellar (Labour, Warley)

Let us have a disquisition on the hovercraft.

Anne McIntosh (Conservative, Vale of York)

We will come to the hovercraft in due course.

Don Foster (Liberal Democrat, Bath)

Lest there be confusion in the record—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee D

New Clause 5 - Eurotunnel

Jimmy Hood (Labour, Clydesdale)

Due to the progress made by the Committee, I have issued a revised Chairman's selection list, which clarifies the selection of amendments up to schedule 5. I understand that some members of the Committee were feeling claustrophobic earlier. I can confirm that next week our sittings will be in Room 11.

Don Foster (Liberal Democrat, Bath)

It may be for the convenience of the Committee if I begin again. I was intervening on the hon. Member for Vale of York (Miss McIntosh), who had suggested that the new clause would apply to the various operators of the channel tunnel—Eurostar, Le Shuttle and so forth. Is that what she meant, or does it apply only to activities within the tunnel? Secondly, what would be the implication of the treaty of Canterbury for the second part of the new clause?

Anne McIntosh (Conservative, Vale of York)

I hope that that will be made clear by my speaking to the new clause and the Under-Secretary's response to it. The questions put by the hon. Member for Bath (Mr. Foster) are a helpful contribution.

In moving the new clause, I should admit to an error in respect of

''Part 1 shall not apply to Eurotunnel''.

Of course, I meant the channel tunnel. I refer again to the wide-ranging consultations on the proposals. Members of the Committee may recall that a fire broke out in the channel tunnel in November 1996. The regulator, the Channel Tunnel Safety Authority, carried out the inquiry, and it remains the authority for tunnel accidents or incidents. The new clause attempts to fill a gap in the Bill, which refers neither to the inclusion nor exclusion of the channel tunnel.

It is generally felt that any new investigating body should be equipped with suitably qualified professionals, with appropriate experience to deal with the tunnel. Will the Under-Secretary confirm that the rail accident investigation branch might be involved in the investigation of future accidents in the channel tunnel and that the people conducting the investigation would have the requisite experience?

I anticipate him saying that the RAIB will not have jurisdiction to investigate channel tunnel accidents, simply because no branch in this country could be permitted to carry out investigation of the French half of the system, or have the right to require French nationals to give evidence. The relevant part of the Bill covers properties of the United Kingdom, but could not possibly stretch to properties of another independent sovereign territory.

John Randall (Conservative, Uxbridge)

With her extensive knowledge of matters European, does my hon. Friend know whether a body equivalent to the RAIB exists on the other side of the channel?

Anne McIntosh (Conservative, Vale of York)

My extensive knowledge is not so extensive after all. Perhaps someone here today could put us out of our misery. My hon. Friend has touched on the question. Surely it must be right that the rail accident investigation branch will not be given a duty or a right to investigate tunnel accidents. The right approach in any conceivable circumstance would be to give the task of channel tunnel investigation to a suitable bi-national tunnel accident investigation body. I would be mildly surprised if such a body did not already exist. I believe that that responsibility is already given to the Channel Tunnel Safety Authority under article 2(1)(c) of the treaty of Canterbury. In those circumstances, we question the need for the rail accident investigation branch to have any direct responsibility for investigating tunnel incidents, although there may be a case for co-opting RAIB experts to assist with an investigation. This part of the Bill would allow for that, as would article 2(6) of the treaty.

This is a probing new clause. Will the Minister confirm that the RAIB will not amend the treaty of Canterbury, that this part of the Bill will not give powers to any RAIB inspector or investigator to investigate such incidents, and that any such investigation will be given to a bi-national body? I am sure that we would not wish to have French inspectors crawling over our side of the channel tunnel other than under arrangements already agreed—having been born a Scot, I am obviously more tolerant. This is a possible omission in the Bill and clarification would be helpful.

Don Foster (Liberal Democrat, Bath)

The hon. Lady has done the Committee a great service by moving this new clause, notwithstanding the typographical errors it contains. I have some concern with proposed subsection (2).

Anne McIntosh (Conservative, Vale of York)

In the spirit of generosity that has reigned supreme in the first week of the Committee, I point out that the hon. Gentleman's party has admitted to typographical errors, as have the Government. I did not wish to be left out.

Don Foster (Liberal Democrat, Bath)

The hon. Lady is right: there has been a great deal of good humour in the Committee and a willingness to admit to errors where they have occurred. It is apposite that that the score is 1-1-1 so far. Subsection (2) of the proposed new clause refers to the establishment of a new international body. As the hon. Lady said, there is already a body, the Channel Tunnel Safety Authority, which was established under the treaty of Canterbury, which was signed on

12 February 1986. It is our view that the most appropriate way forward would be to allow that body to continue to take responsibility for the investigation of accidents or incidents that occur within the confines of the channel tunnel. That will mean, perhaps to the hon. Lady's chagrin, that French investigators will be crawling over parts of the tunnel within the United Kingdom.

I believe that the arrangement has worked well, as has been demonstrated clearly by the investigation into the fire to which the hon. Lady referred. I hope that the Minister will make it clear that it is the Government's intention for those arrangements to continue. Will the Under-Secretary of State give us an absolute assurance that the continuation of the existing Channel Tunnel Safety Authority would not prevent one or more RAIB investigators from taking part in an investigation? Secondly, will he give an assurance that current arrangements for the reporting of investigations into the channel tunnel will continue and that we can expect copies of reports to be sent to the RAIB, so that it can learn any relevant lessons?

As members of the Committee will be aware, the channel tunnel police, who are part of Kent constabulary, are also quite properly involved in investigations. It may be more appropriate to debate that when we reach the provisions on a new structure for the British Transport police, but can the Minister give us some advance notice of the changes he envisages for the channel tunnel police?

Broadly speaking, we cannot support the new clause as it stands. The hon. Member for Vale of York said that it was a probing measure. However, I want it placed firmly on the record that we believe that the arrangements for investigating incidents and accidents within the channel tunnel should remain as now.

Mr. Hood, I asked your co-Chairman on a point of order what would happen if the new clause were successful. Clause 13 states:

''This Part extends to the whole of the United Kingdom'',

albeit with a couple of specified exceptions. If investigations into accidents in the channel tunnel continue to be carried out by the Channel Tunnel Safety Authority, a part of the United Kingdom is being excluded. We were told that the problem would be sorted out on Report. If the new clause is unsuccessful and the Under-Secretary assures us that the current arrangements will continue, would not an additional amendment be required to deal with a further exception in clause 13? The Under-Secretary might like to respond to that, too.

Jimmy Hood (Labour, Clydesdale)

I assume that the Under-Secretary will have checked the matter since it was first mentioned in Committee. If so, I invite him to clarify the position. If he has not checked it, I invite him to do so and report back later.

David Jamieson (Labour, Plymouth, Devonport)

Thank you, Mr. Hood.

This has been one of those interesting occasions when an Opposition Member moves a new clause, speaks in favour of it and then against it. The hon. Member for Uxbridge (Mr. Randall) told the hon. Member for Vale of York that the measure was deficient in any case. You were not present this morning, Mr. Hood, so I thought that I would enlighten you. The hon. Lady virtually made my speech for me, which was kind of her. Yesterday, we had the hon. Member for Bath doing his ''Just a Minute'' bit, and today we have had ''Whose Line Is It Anyway?'' from the hon. Lady.

This morning, the hon. Lady talked us through the merits of the channel tunnel, not to mention her various interests in that and other matters. I find it extraordinary that her new clause would establish yet another body. An international body—the Intergovernmental Commission—already exists, following the treaty of Canterbury of 1986. It was established on behalf of the Governments of France and Britain to oversee all matters relating to the operation of the channel tunnel. The Channel Tunnel Safety Authority, which was established by the same treaty, advises and assists the Intergovernmental Commission on all matters relating to the safety of the tunnel. Its functions include investigating incidents that affect safety in the tunnel, which by its very nature may often require specialist expertise.

The treaty empowers both bodies to invoke the assistance of any body or expert of their choice for the purpose of carrying out their functions. Under the provisions, the rail accident investigation branch could offer assistance to the Channel Tunnel Safety Authority, the Intergovernmental Commission or the French Government. We do not intend the rail accident investigation branch to have a duty or discretion to investigate in the tunnel, as regulations made under clause 2 would make clear. It could, however, undertake an investigation for any of those authorities if they requested it.

The new clause would preclude the intergovernmental commission or the CTSA from seeking any assistance from the RAIB—a body of people that may be extremely well equipped to give such extra assistance.

The hon. Member for Bath asked whether the RAIB would be precluded from help. From what I just said, the answer is obviously no. He asked about the current arrangements for reporting accidents and asked whether copies would be available to the RAIB. Yes, they will. He also asked about any changes in relationships in the policing of the channel tunnel. There will be no changes in the relationships, which will be governed by the existing non-statutory protocols. The UK half of the tunnel is still, of course, in the UK. The CTSA will investigate in the tunnel. The RAIB regulations will carve out the tunnel so that there is no role for the RAIB in the tunnel unless it is invited to have one.

The hon. Member for Vale of York asked about the French side of the tunnel. The European Commission

railway safety directive will require the French Government to set up a body similar to the RAIB.

Don Foster (Liberal Democrat, Bath)

I am sorry to be so pernickety, as I am aware that the total area covered by the UK side of the tunnel is relatively small. Nevertheless, the Minister just said that we will carve it out of the area of operation for the RAIB. I therefore ask him again how the Government intend to correct what is clearly an error in clause 13.

David Jamieson (Labour, Plymouth, Devonport)

I referred to clause 13 and the role of the British Transport police. It might be more appropriate for us to discuss the issue later.

Don Foster (Liberal Democrat, Bath)

Perhaps I should help the Minister by pointing out that clause 13 specifically refers to the extent of coverage of this part of the Bill on the work of RAIB. The Minister told us categorically that the RAIB will not operate in the tunnel on the UK side. An exclusion must therefore be added to clause 13(1).

David Jamieson (Labour, Plymouth, Devonport)

I apologise. I was looking at another amendment. This is not an error, typographical or otherwise. The regulations under clause 2 will deal with the issue that the hon. Gentleman raised.

Anne McIntosh (Conservative, Vale of York)

The Under-Secretary has confirmed why there is a need for a probing amendment. As the hon. Member for Bath said, a more specific exclusion should be added to clause 13. I do not disagree with what the Under-Secretary said, but I am concerned to hear that an important EU rail safety directorate is being considered that may amend a directive in which I would have been involved and in which I maintain a close interest, as you would expect, Mr. Hood, since you wear another hat as Chairman of the European Scrutiny Committee. I am concerned that we are discussing a Bill that will be affected by a subsequent adoption of a European rail safety directive, and had I not tabled the new clause, we would not have heard about it. I hope that there will be opportunities to discuss the matter, perhaps in the European Scrutiny Committee. It has been proved adequately that clause 13 is defective, and we retain the right to return to the point later.

Don Foster (Liberal Democrat, Bath)

While the hon. Lady has been speaking, I have had an opportunity to examine clause 2, which is where the Minister said that the solution to the dilemma might lie. Knowing the Bill as well as she does, the hon. Lady will know that clause 2(2)(b) refers to the ability to

''make provision about circumstances in which an accident or incident is to be or not to be treated as being relevant to the operation of a railway for the purposes of this Part''.

The Minister will undoubtedly tell us that if the accident or incident happens in the Channel tunnel, that is part of the relevant set of circumstances. However, if that is the Government's argument, why do we bother with the other exemptions in clause 13? Does the hon. Lady agree that the Government have got it wrong and that the paragraph that I quoted is a fig leaf that the Minister is using to try to cover it up?

Anne McIntosh (Conservative, Vale of York)

I have been accused of speaking for the Government twice today, but it is not my position to do so. I recall that the Minister for Transport said in the context of clause 2 that the European rail safety

directive is precisely the reason why nothing has been adopted. The Government did not know what definition the European Parliament, European Commission and Council of Ministers would choose. I am not a Eurosceptic; nothing could be further from the truth.

Kelvin Hopkins (Labour, Luton North)

The hon. Lady made some slighting remarks about the French.

Anne McIntosh (Conservative, Vale of York)

Since the place of my birth and France are two of the closest allies, I can put the hon. Gentleman's mind at rest about that point.

I am making a serious point. We wanted to scrutinise the clauses in part 1 as comprehensively and successfully as possible, and it would be helpful to have had more discussion about the implications for clauses 2 and 13 of the European rail safety directive. There may be another opportunity at a later stage to return to the point, so I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 14 - Establishment

Anne McIntosh (Conservative, Vale of York)

We turn now to part 2 of the Bill, which appears a rather innocent beast—I would almost, but not quite, call it a cheeky little number. Clause 14 refers simply to the establishment of the office of rail regulation:

''There shall be a body corporate to be known as the Office of Rail Regulation . . . Schedule 1 (which makes provision about the Office) shall have effect.''

I refer the Committee to the words of the Secretary of State on Second Reading:

''Part 2 provides that the Office of the Rail Regulator should be restructured. The rail regulator is working well, but we want to take this opportunity to bring the railways into line with other regulated industries, replacing the individual regulator with a regulatory board, which is consistent with the recommendations of the Better Regulation Task Force.

The Bill restructures the existing Office of the Rail Regulator, creates a statutory regulatory board in place of the regulator, building on the existing advisory board that he already has, and enables a wide range of experience and views to be brought to decision making. We will not make the change before mid–2004, which will enable the regulator to complete the useful work that he is doing in reviewing access charges.''—[Official Report, 28 January 2003; Vol. 398, c. 772–3.]

I record my enormous admiration for the rail regulator, who has been put through trying circumstances recently. I have a question for the Minister for Transport about the sequence in which the Government intend to implement the recommendations of the Better Regulation Task Force. Is the rail regulator being taken in sequence with the gas industry, the electricity industry and all the others, or is the rail regulator being taken out of turn, perhaps as a one-off? I ask that because it became a real issue to those of us who followed the scenario of Railtrack going into administration.

The former Secretary of State for Transport—the right hon. Member for Tyneside, North (Mr. Byers)—went on the record by giving evidence to the former

Transport, Local Government and the Regions Committee. He said, under the heading ''Ev 104'':

''It is for Parliament to decide the role and the responsibility of a regulator . . . whatever structure we come up with after administration there will be a need for independent, economic regulation.''

The Opposition are concerned, because the present rail regulator, who I hope will be allowed to serve out his term if the changes are not introduced before 2004, is a gentleman of the utmost integrity, who has shown in the most testing circumstances that he is fully independent of the Government of the day. We are concerned that the independence of the economic regulator, and therefore the economic regulation, of the rail sector is being compromised by this sweeping change, which I think is not in kilter with what is happening in the other regulated industries, such as gas, in sectors that are equally subject to the recommendations of the Better Regulation Task Force. The rail regulator has been singled out.

Under Ev 88 on 7 November 2001, the regulator, Mr. Winsor, told the Select Committee:

''My independence can only be taken away by Parliament and Parliament has not done that.''

This is the first opportunity that the Government have had to weaken the independence of the rail regulator, although that independence has worked extremely well. For that reason, I believe that the Bill is regrettable.

Clause 14, which sets out its provisions very simply, and the whole of part 2—we will come to schedule 1 in due course, under which functions are transferred—raises a number of questions to which we alluded earlier, and it would be appropriate to consider them now. What is the relationship between the new Office of Rail Regulation and other bodies? As the Committee will know, the Strategic Rail Authority, the rail regulator and the health and safety commissioner—the three pillars of railway regulation in Great Britain—are expected to work together to ensure that the railways are run safely and in the public interest, for effective and accountable regulation. The relative jurisdiction of the regulator and the Strategic Rail Authority, and the possibility of overlap, have also been issues.

Kelvin Hopkins (Labour, Luton North)

I am listening with interest. The hon. Lady suggests that regulators in the railway sector are becoming less significant. Regulators are established in naturally monopolistic industries, which were formerly publicly owned, in order to replace accountability to Parliament and the Government. Therefore, as the railway industry comes back towards Government and public ownership—I welcome that—is not it likely that the need for that kind of regulation will diminish?

Anne McIntosh (Conservative, Vale of York)

I will not rise to that challenge and say whether I think that there should be a return to a total monopoly of the railways, whereby just one provider supplies train services. Nor shall I say whether I would rather have a separate rail network that looks after the track. Even under the revised

structure that the Government propose, the Office of Rail Regulation, albeit supported by a board, will remain as, if not more, important as it is now, given how powerful the Strategic Rail Authority has become. The SRA said in December that its targets would be met, then reversed the announcement in January. However, I do not want to stray too far from my point.

The relative jurisdiction of the regulator and the Strategic Rail Authority and the possibility of overlap have been issues since the mid–1990s, when the structure was first set up under the Railways Act 1993. When the Government came to power, they passed the Transport Act 2000, which made an effort to rationalise the two roles. However, the Government were still not happy, and felt that the situation was inconclusive.

When Railtrack was put into administration, the then Secretary of State, the right hon. Member for Tyneside, North, announced that he planned to legislate when parliamentary time allowed—it seems that this is the first available occasion—to rationalise the regulatory structure to provide a stronger strategic direction. He also wanted to reduce the burdens of day-to-day interference in the industry, and the self-defeating system of penalties and compensation. We were told that that would deliver clearer accountability and end perverse incentives.

The proposals for reform in clause 14 and part 2 were put out to consultation in October 2002, but in a limited form. Only one change was proposed, and that was to establish a statutory regulatory board that would have all the powers currently exercised by the rail regulator. Part 2 and schedule 1 provide for that regulatory board. A further question is raised about the jurisdiction of the Bill. This part of the Bill applies to England and Wales and to Scotland but is not intended to extend to Northern Ireland. It would be helpful to know why that is so.

The full extent of the amendments that the Government propose is not immediately clear from the very limited drafting. The rail regulator helped the Transport and Regional Affairs Committee, and I think that he can help us to understand the fundamental relationships in the railway industry. The report states—

Jimmy Hood (Labour, Clydesdale)

Order. I do not want to restrain the hon. Lady too much, but it is a stand part debate on clause 14. She has been tempted into discussing amendments from the next debate. May I ask her to return to clause 14 stand part?

Anne McIntosh (Conservative, Vale of York)

I am most grateful, Mr. Hood. My point is pertinent to the Bill, because the clause says:

''There shall be a body corporate to be known as the Office of Rail Regulation.''

I want to find out the extent of that body corporate, without discussing any of the functions, which we will have ample opportunity to consider subsequently. Can the Minister explain where the Office of Rail Regulation will interface between the train-operating companies as the provider of the private sector funds and the Treasury as the provider of the public sector funds?

The fundamental point that I wish to raise in connection with the clause is not terribly complicated. To what extent will the Government's amendments strengthen the independence of the rail regulator? The Opposition have a deep-seated fear about that, having seen how the present occupant of the Office of the Rail Regulator has demonstrated his integrity, his independence and his ability to stick within his established office and the rules that set it up. How does the Minister think that the clause will enhance the independence of the regulation of the railway sector? Why is the railway industry being singled out in this way as the pioneer for the better regulation taskforce?

Don Foster (Liberal Democrat, Bath)

I fear, looking around the Room, that I may be occupying the crease but briefly.

First, may I place it firmly on the record that my party fully supports the proposals to establish the Office of Rail Regulation? Secondly, we do not believe that the move is a guinea pig measure for the Better Regulation Task Force, as it is the only regulator that has not already got a board or has plans to put a board in place. The proposal brings the rail regulator in line with all other regulators in the system.

Thirdly, when the hon. Member for Westmorland and Lonsdale (Mr. Collins) spoke on Second Reading he was completely wrong even to imply that the establishment of the Office of Rail Regulation was a means of the Government getting their own back on the individual who holds the current Office of Rail Regulator. Many of us are aware of the difficult relationships that have existed in the rail industry involving the current holder of the post, but many believe that he has done an extremely good job and has fought hard for what he believes to be right. That does not mean to say that it is not right to move forward in establishing the Office of Rail Regulation.

I also place on the record my huge disappointment that neither this nor subsequent clauses honours the pledge given by the former Secretary of State in relation to future plans for the regulatory regime. As I reminded the House on Second Reading, when the former Secretary of State announced his intention to turn Railtrack into a not-for-profit public interest company, he said categorically that it

''would need far less intense regulation. We therefore intend to streamline the existing structure''.—[Official Report, 15 October 2001; Vol. 372, c. 956.]

There is nothing in the proposals that would streamline the regulatory machinery.

The hon. Member for Vale of York who was a member of the Transport Committee will be well aware that in its first report of the 2001–02 session, published on 23 January 2002, the Committee argued strenuously in the light of the commitment made by the former Secretary of State for a more streamlined regulatory system. It stated:

''While the need for an independent economic regulator with clearly defined responsibilities, duties and objectives will continue, the respective roles of the Regulator and the Strategic Rail Authority should be reviewed.''

The Select Committee made a very clear recommendation, and I regret that in this and

subsequent clauses an opportunity has not been taken to review the respective roles of the Office of Rail Regulation and the Strategic Rail Authority. Notwithstanding those two major concerns, the broad principle of the establishment of such a board is welcome on the Liberal Democrat Benches.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.

Schedule 1 - Office of rail regulation

Anne McIntosh (Conservative, Vale of York)

I beg to move amendment No. 27, in

schedule 1, page 49, line 12, at end insert—

'(2A) In appointing members, the Secretary of State will have regards to regional representation.'.

The amendment relates to the vexed question of reserved and devolved matters in relation to the Scottish jurisdiction. The schedule does not allow for any form of regional representation, and that is important, as there will be queries about the role and jurisdiction of the Office of Rail Regulation. I hope that someone will be responsible for securing a degree of representation in that regard by adding a new subsection to schedule 1.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

Will the hon. Lady explain how the Strathclyde Passenger Transport Executive would be affected by the powers that she wants to confer on the Scottish Minister?

Anne McIntosh (Conservative, Vale of York)

I hope that the Under-Secretary or the Minister will explain the relationship with the Scottish Executive because the Bill is not entirely clear about it. I do not know whether the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz) has had a chance to read Hansard containing the Under-Secretary's answer to the question I referred to this morning.

Mark Lazarowicz (Labour/Co-operative, Edinburgh North and Leith)

I assure the hon. Lady that I have read the comments in Hansard to which she referred. As we are debating her proposal, however, will she tell the Committee how the Strathclyde Passenger Transport Executive, which is responsible for most of the passenger services in Scotland, would be affected? It is important for hon. Members such as myself, who represent Scottish interests, to understand that.

Anne McIntosh (Conservative, Vale of York)

It is not for me to usurp the Government's position. The Under-Secretary will have heard the hon. Gentleman's question and will take the opportunity to respond to it. Both the Under-Secretary and the Minister have told me several times that I should not usurp the Government's position, today or any other day, in Committee. I have explained the purpose of this probing amendment, and I look forward to hearing the Under-Secretary's response.

David Jamieson (Labour, Plymouth, Devonport)

There is no disagreement on the importance of properly reflecting regional interests in railway policy, but the amendment is not the way to

achieve it. It would put the independence of economic regulation at risk and cause confusion between the respective roles of the Strategic Rail Authority and the Office of Rail Regulation.

Let me detain the Committee a few moments to provide more detail. Broadly, the Strategic Rail Authority's role is to set policy and the Office of Rail Regulation's role is to ensure the fair implementation of that policy. Regional representation is appropriate for a policy body such as the Strategic Rail Authority, which is catered for in section 202(3) of the Transport Act 2000. In contrast, representation by regional interest is inappropriate for the Office of Rail Regulation. All appointments should be made on the basis of expertise and merit alone to reinforce the independence of the economic regulatory function.

Don Foster (Liberal Democrat, Bath)

I fully understand the Minister's concern that allowing some conditions would lead to others. He referred to selection on the basis of expertise, so will he give us an idea of the range of expertise likely to be sought by the Secretary of State in appointing people to serve on the board?

David Jamieson (Labour, Plymouth, Devonport)

The hon. Gentleman has pre-empted what I was about to say in a few moments.

Don Foster (Liberal Democrat, Bath)

I like to help.

David Jamieson (Labour, Plymouth, Devonport)

The hon. Gentleman always like to help, but on this occasion he has helped to detain the Committee from receiving an answer to the question that he put to me.

Having representative members of any interest, section or region in the country could call the independence of the body into question, but it is not only a matter of independence. An Office of Rail Regulation board member appointed to cover a sectional interest would start second-guessing railway policy in trying to serve that constituency. That would lead to confusion about who has the policy lead in the railway industry.

That is all set out in the consultation document sent out to interested parties in November. Responses came from across the industry, and there was a strong desire for members of the regulatory board to have appropriate expertise and to be independent. Only a handful of responses suggested regional or sectional representation, and although people from various parts of the United Kingdom may sit on the board, it will not be out of necessity. There is also a practical consideration. The Office of Rail Regulation covers Scotland, Wales and England. To have a representative from each country and English region would make the board unmanageably large, particularly as room has to be made for economists, industry experts, executive members and so on. That should answer the point of the hon. Member for Bath. However, to be selective could create concerns among the countries and regions not represented on the board.

Mr. Foster rose—

David Jamieson (Labour, Plymouth, Devonport)

I see that I have tempted the hon. Gentleman.

Don Foster (Liberal Democrat, Bath)

The Under-Secretary has tempted me. I am grateful that he has given us some examples, but I wonder whether other Committee members share my view that it is slightly odd that expertise on the railways was absent from the Under-Secretary's list.

David Jamieson (Labour, Plymouth, Devonport)

An economist may be an economist with an expertise on the railways; an industry expert could be a railway industry expert. None of the people whom I mentioned would be precluded from having railway industry expertise; indeed, one would expect them to have some interest and be able to contribute to the board. It would be strange if we appointed them and they did not have an interest in carrying out the job.

We cannot support the amendment. Regional interests are important, but only in the appropriate place. It is for the Strategic Rail Authority and the infrastructure manager in formulating their strategies to take into account the regulatory functions to ensure that they are implemented fairly, not to second-guess them through sectional representation on the board.

Anne McIntosh (Conservative, Vale of York)

It is clearly a source of disappointment to the Opposition that the Under-Secretary does not accept our amendment, but I have some sympathy with his point, which was well made, that the board should not be too big.

The hon. Member for Bath referred to conclusion T on page 39 of the Transport, Local Government and the Regions Committee report:

''While the need for an independent economic regulator with clearly defined responsibilities, duties and objectives will continue, the respective roles of the Regulator and the Strategic Rail Authority should be reviewed.''

I referred earlier to why it was so important to set out in the Bill, preferably in schedule 1, what those roles should be.

The hon. Member for Bath may not have had the benefit of reading the minority report, which was put together by my hon. Friends and me. It was the first time that I was—I hope the last time, too—put in the good offices of a Clerk, who is with us today, to put together a minority report, which obviously requires a lot of work. I draw to the Committee's attention conclusion B at paragraph 26 of that report:

''If the Strategic Rail Authority is to remain a viable force, the Government must allow the Authority to operate independently and free from Government interference. The Strategic Rail Authority must be held to its responsibility to publish an annual report and update its Strategic Plan.''

I note for the record that the SRA published its annual report this week, and the only parliamentary vehicle by which we could consider it was a written ministerial statement. It was three lines long and simply took note of the fact that two documents—the annual report and the annexe, which I obtained from the Vote Office—remain available. That progress report should be debated if Parliament is to have any hope of ensuring that the Strategic Rail Authority remains a viable force that operates independently.

The debate has been useful, and the amendment has served its purpose in probing the Government and

eliciting a sympathetic hearing. We will obviously return to the subject later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Joan Ryan.]

Adjourned accordingly at twenty-five minutes past Three o'clock till Tuesday 11 February at five minutes to Nine o'clock.