UK: Government response to Pariamentary report

17 May

The UK Government has set out its response to the House of Commons Transport Committee’s Report into Safety at Level Crossings, published on March 7th, 2014.

The Government has made clear that it welcomes the Transport Committee’s interest in the subject of level crossing safety.

The Committee addressed its recommendations to a number of difference bodies and the Government’s response is consolidated and addresses recommendations targeting the Office of Rail Regulation (“ORR”), the Driver & Vehicle Standards Agency, the Department for Education, the Rail Accident Investigation Branch, the Chief Coroner and the Ministry of Justice. A significant number of recommendations were also addressed to Network Rail and the Government has sought advice from the company on the actions it intends to take in response. It should be noted that Network Rail will be reclassified as a public body on September 1st, 2014, whereas at this time it is a private company.

The Government response sets out its commitment to a safe railway and notes that the UK consistently has one of the best level crossing safety records in Europe and the Government welcomes the Committee’s recognition of recent improvements. However, any deaths or major injuries at level crossings are tragic and deeply regrettable and the rail industry must strive to further improve safety performance. The Government further notes that Network Rail has already exceeded its target to reduce risk at level crossings by 25% by March 2014 and the Government is supporting an extension of this work throughout 2014-19.

Self evidently, the Government adds that it is only through concerted effort and partnership working that a further step change in safety performance can be achieved. The Government believes the right framework is already in place within the rail industry to deliver this but also that the support and co-operation of other crossing users is necessary to further reduce risk. This position misses the importance of highways and planning authorities work to create a safe infrastructure for both road and rail users.

The Government’s response to the Transport Committee’s recommendations follow each of the numbered paragraphs:

How safe are level crossings?

1. Analysis of Network Rail and Department for Transport data shows that, if an average walking trip includes a level crossing, the fatality risk to a pedestrian is about double the risk of an average walking trip without a level crossing. Overall, there is an increase of around 8% in the risk of a fatality during an average car journey that includes a level crossing, compared to one that does not. We recommend that the Office of Rail Regulation adopt an explicit target of zero fatalities at level crossings from 2020.

The Government and ORR share the Committee’s aspiration of eliminating accidental fatalities at level crossings. ORR’s vision for the industry already states that, by 2020, Great Britain’s railway should be safe for its customers, workers and the wider public, with zero industry-caused fatalities. ORR’s published strategy for health and safety regulation aims to reduce harm and targets zero industry-caused fatalities, ever-decreasing health and safety risks and excellence in health and safety management and culture. There are positive indications that the industry is, in general, moving closer towards this.

The legal test which ORR has to apply is set out in the Health and Safety at Work etc. Act 1974. This requires employers to reduce risk by investing in safety up to the point at which the costs are grossly disproportionate to the risks posed. This is known as the “reasonably practicable” test. Adoption of the explicit target recommended by the Committee might therefore potentially be in conflict with the legal terms laid down under statute.

Making level crossings safer

2. We estimate that there may be many hundreds of crossings which exceed this limit. These should be prioritised for improvement or closure. Network Rail should publish the names and locations of the level crossings that it intends to target during Control Period 5 [2014-19], together with an indication of the work to be carried out and planned timescales.

The Government welcomes Network Rail’s commitment to publishing a list of level crossings with a clearer and consistent articulation of the risk a user may experience and its agreement, with ORR as part of its Final Determination for the current Control Period (2014 -2019) to publish its annual programme of risk reduction at the start of each year. The programme will include timescales for delivery against which it will be held to account by ORR.

The Government will continue to work with Network Rail and ORR to ensure that any risks are reduced so far as reasonably practicable at all level crossings.

3. The ORR should seek to improve its grip on overseeing how Network Rail identifies the highest risk level crossings, focusing on the assessment of risk and implementation of improvement programmes.

ORR takes its role in prompting the highest standards of risk assessment and management on level crossings very seriously. Network Rail’s systems for the management of crossings are audited by ORR to ensure that the risk profile of crossings is appropriately captured at its corporate governance level.

Significant ORR resource is devoted to level crossings work – a dedicated level crossings team plus engineers who provide technical expertise, and inspection teams which undertake level crossing work including hundreds of inspections, some of which lead to formal investigations, across the country.

ORR inspects the management of level crossings to check that legal safety requirements are being met and, where failings are found, it uses enforcement powers to ensure the crossing is made safe and its management improved. ORR also inspects crossings in detail following complaints and incidents. Any collisions or harm to users trigger a mandatory investigation by ORR. Inspections tend to be granular and highly detailed – checking sighting distances, for example, and examining level crossing usage together with the extent of improper use, how the crossing operates, signage at decision points, underfoot conditions and many other facets of crossing design, maintenance and operation.

ORR also ensures that the industry acts in response to known level crossing safety issues that are raised, including recommendations made by the Rail Accident Investigation Branch, and has a role in authorising Level Crossing Orders (on behalf of the Secretary of State), and then inspecting against them to ensure that the measures that are set out in the Level Crossing Order are actually in place and being complied with.

In the last five years, ORR’s proactive inspection and audit response has resulted in 23 targeted improvement/prohibition notices and eight successful prosecutions. A key focus of ORR’s work with Network Rail is to see the company improve its competence in suitable and sufficient risk assessment, given that it has the management responsibility for the vast majority of level crossings on the network (around 6,500). In particular, ORR is – through its inspection programme – auditing the management and activities of Network Rail’s 100-plus level crossing managers to ensure that more effective risk assessments result and safety arrangements at crossings are kept under review through regular re-assessment of risks.

Pressure from ORR for Network Rail to close crossings has resulted in the successful closure of 773 crossings during Control Period (“CP”) 4 – the five-year period to March 2013; 23 above target, and led to Network Rail exceeding its CP4 target of reducing level crossing risk by 25 per cent.

Moving forward, a ring-fenced fund of £109 million for continuing risk reduction at level crossings has been provided for CP5 (the five-year period to March 2019) to help achieve further reductions beyond those from renewals and upgrades required so far as is reasonably practicable, targeting an overall risk reduction of 25 per cent by the end of CP5 and further establishing ORR’s vision of zero industry-caused fatalities. In preparation for this, ORR has enhanced its central level crossings team to ensure Network Rail is effectively and efficiently held to account to deliver on its commitments.

4. The appointment of level crossing managers has made a significant contribution to the recent improvement in safety at level crossings: we recommend that Network Rail continue to use these posts to drive continuing improvements in safety.

The Government welcomes the Committee’s observation that the appointment of Level Crossing Managers by Network Rail has made a significant contribution to recent improvements in safety at level crossings. Network Rail has confirmed that Level Crossing Managers will continue to play an important role in reducing the risk posed to both passengers and members of the public when they encounter level crossings.

5. We recommend that Network Rail address criticism of its apparent preference for footbridges as replacements for level crossings and explain what assessment it makes of the impact on disabled people of replacing level crossings with footbridges rather than underpasses.

Network Rail takes a range of factors into account when determining how best to close a level crossing including its statutory obligations under the Equality Act 2010. The decision as to the best method of closing a specific level crossing depends on cost-benefit analysis to ensure resources are allocated to maximise the level of risk reduction to all users and often follows consultation with local stakeholders including organisations representing disabled people.

Transparency

6. We recommend that Network Rail work with the Information Commissioner’s Office and the Open Data Institute to develop protocols on publishing a fuller range of risk assessment material for each level crossing. Protocols should include data formats, publication frequencies and guidance material to aid usability, so that transparency is improved.

Network Rail has already voluntarily published a significant amount of information about level crossings but the company recognises the need to continue to make progress in this area. It is intending to publish full narrative risk assessments from September 2014 and is working with the Information Commissioner’s Office and the Open Data Institute to maximise the accuracy and accessibility of all level crossing risk data.

Closure of level crossings

7. We welcome the public interest tests for closure procedures. We see merit in applying a public safety test to any diversionary routes that may result from a level crossing closure and we recommend that the DfT consider this option as part of its consideration of the Law Commission’s proposals.

8. We are concerned that the proposed appeal mechanism for closure orders, using judicial review, will be out of reach for ordinary people and, increasingly, local authorities. We recommend that the DfT consider using alternative dispute resolution, such as mediation by the Office of Rail Regulation, to supplement judicial review.
The Government welcomes the Law Commission’s report into modernising and simplifying the legislative framework surrounding level crossings and will take the Committee’s recommendation into consideration when reviewing the proposals.

Specifically on the Law Commission’s proposed appeals mechanism, the Government will work with ORR to understand the implications of the Committee’s suggestion that it performs a mediation role. However, the Government notes that this may be incompatible with ORR’s existing enforcement duties.

Co-operation between railway operators, highway authorities and planning authorities

9. We welcome the duty of co-operation on railway operators, traffic authorities and highways authorities in respect of level crossings but recommend that it should also encompass planning authorities so that the impact of additional numbers of people using level crossings can be considered.

The Government is considering the Law Commission’s proposals as part of its broader report into the legislative framework surrounding level crossings and welcomes the Committee’s suggestions for further enhancements in this area.

The benefits and impacts of the extension of any duty of co-operation to planning authorities will need to be carefully considered in light of existing legislative provision in this area (such as the obligation to consult both the Secretary of State and the relevant network operator under the Town and Country Planning (Development Management Procedure) (England) Order 2010 where a proposed development might materially increase the volume or materially change the character of traffic using a level crossing and other elements of the Law Commission’s proposals).

The Government notes that the actions of the owners of land adjacent to level crossings also have a potentially significant impact on the levels of use at some level crossings and will consider whether any potential duty of co-operation, or other statutory obligations, should also be extended to this group.

Impact on heritage railways

10. We are concerned that the extension of the Health and Safety at Work etc Act 1974 to volunteer-run railways, could threaten the viability of the heritage sector. We recommend that any changes to the regulation of level crossings should include transitional arrangements aimed at protecting the viability of heritage railways.

The Government notes that the majority of the heritage sector is already subject to relevant health and safety law which obliges it to manage risk at level crossings so far as is reasonably practical. Given the large number of crossings on the heritage network, it is essential that they are correctly operated and managed in accordance with the law.

As with the development of any new legislative proposals, once it has completed its consideration of the Law Commission’s proposals, the Government intends to work closely with the heritage sector, and other stakeholders, to understand the impacts of any proposals more fully.

ORR oversight of level crossing safety

11. In not pressing for a higher standard of safety at the Moreton-on-Lugg crossing the ORR appears to have contravened the spirit of its own objectives for level crossing safety improvements, which state that ‘Simple renewal and retention of existing crossings should be seen as a last resort.’

ORR provided supplementary evidence to the Committee on this issue in its submission of 5 December 2013. This made it clear that ORR did not approve the renewal of Moreton-on-Lugg crossing without approach control locking; prior to the incident, approach locking had not been discussed with ORR.

Network Rail should have completed a suitable and sufficient risk assessment for the crossing to determine the correct risk controls which should be in place. This would have shown that approach locking was reasonably practicable and did not actually require a full renewal to achieve the desired level of safety. It should also be noted that the signaller was subsequently successfully prosecuted for failing to follow the well-established procedures in which he had been trained.

12. We are concerned that the ORR may not have enough appropriately qualified and experienced staff to provide adequate inspection of the rail network and of level crossings or to adequately challenge Network Rail’s signalling work plans. The ORR board should consider whether just seven professionally-qualified signalling engineers is an adequate number of staff to provide inspections nationally, both of existing installations and proposed works.

ORR regularly reviews, as a matter of course, the skills and capability required to fulfil all of its functions.

Although some signalling knowledge is important in assessing the risk at level crossings, it is more important to ensure there is a broad range of skills and an expert knowledge of the full range of potential safety risks, which include environmental factors, vegetation, signage, earthworks, drainage, sighting distances and human factors.

The significant resource devoted to level crossings work was set out in ORR’s supplementary evidence to the Committee as follows:

ORR has a team of 7 inspectors and 2 Railway Inspector Contract Officers who are dedicated specifically to level crossing work and 86 warrant holding health and safety inspectors who all have received extensive training in level crossings. All of ORR’s inspectors have level crossing expertise. Skills are developed through both its in-house competency management training and external training through Birmingham University’s School of Railway Engineering Integration Programme which includes specific technical based training on level crossings. ORR’s in-house training consists of theory and practical experience of level crossings which involves a large practical element. ORR’s inspectors also undertake other technical engineering training provided by industry experts.

Across ORR, there are 26 engineers (22 of whom are inspectors) and, of these, 7 have signalling engineering qualifications. All of ORR’s engineers have either Institution of Railway Signal Engineers and/or Institute of Engineering Technology qualifications (which is a broader qualification than the former). Level crossing engineering expertise is not unique to one engineering discipline. It requires a multi-disciplinary approach and ORR therefore draws on experience from across the office to perform its safety functions. It also has access to other consulting and expert engineers to support its work.

In addition, ORR has specialist in-house human factors expertise which it believes is as important as signalling and control system engineering in taking forward level crossing safety regulation.

In November 2011, the ORR Board commissioned an independent review of ORR which included an assessment of its capability against all its current functions. The review found widespread acknowledgement of the skill and dedication of the safety regulation capabilities from important stakeholders and noted the good and improved safety record of the railway as evidence of this.

Human factors

13. We recommend that the Office of Rail Regulation reviews level crossing guidance and standards in view of recent human factors research, including the impact of delays, visual perception of older people, different traverse speeds and ambiguity about where to stand safely before crossing.

ORR welcomes this recommendation and notes that a review of its level crossing guidance is already underway. Any revisions will continue to emphasise and promote the need for site-specific risk assessments at all level crossings to ensure that appropriate protections are in place for all crossing users, such as pedestrians, motorists, cyclists, horse riders or farmers and will take careful account of relevant human factors research. ORR does not set the standards for Network Rail but reviews their standards when undertaking audits, inspections and investigations. ORR’s inspectors are involved in the RSSB (formerly the Rail Standards and Safety Board) research project looking at crossing decision points and will be ensuring Network Rail take account of the findings including human factors research.

The Government understands that Network Rail has already given an undertaking to the Committee to review its internal risk assessment guidance to ensure it takes account of recent human factors research.

Highway Code and other road regulations

14. The DfT has not been proactive in assessing how it could make level crossings safer, for example by improving road signage. We recommend that, as part of the forthcoming overhaul of the Traffic Signs and General Directions 2002, DfT revise its guidance on signage and road layouts based on the latest research findings from TRL and RSSB.

The Government notes that Department for Transport officials are active on the steering groups of all relevant RSSB level crossing research projects and have been feeding back the findings as appropriate to inform national signing policy. Current projects are:
◾T756-02: Research into traffic signs and signals at level crossings;
◾T983: Research into signs at private level crossings; and
◾T984: Research into the causes of pedestrian accidents at level crossings.

A universal warning sign for barrier and open level crossings, and a revised ‘Large Slow’ vehicle information sign have been identified by RSSB research as having potential to improve safety at level crossings along with a number of more minor measures.

The Department for Transport looked to include this work in the forthcoming revision to the Traffic Signs Regulations and General Directions due in spring 2015. However, RSSB felt they required further time to conduct road trials of the proposed signs to assess the effect on driver understanding and behaviour. If further trials conclude the signs are of benefit, the Department for Transport will work with RSSB to look at ways to enable their wider use.

Although the Department for Transport is responsible for the traffic sign legislation that prescribes individual sign designs, advice on their combined placement and layout at level crossings is contained in ORR’s “Level crossings: A guide for managers, designers and operators” available from http://orr.gov.uk/__data/assets/pdf_file/0016/2158/level_crossings_guidance.pdf). A review of ORR’s level crossing guidance is already underway.

Motorists’ education

15. We note the strong evidence base for the hazard perception test and encourage its further development. The Driver and Vehicle Standards Agency (DVSA) should incorporate level crossings into the next version of the hazard perception test. As well as identification of the hazard, the DVSA should consider ways of ensuring that the test assesses actions to be taken in response to level crossings.

The Driver & Vehicle Standards Agency (“DVSA”) intends to incorporate level crossings into future versions of the hazard perception test (“HPT”). It is developing animated clips that will include level crossings which, as well as assessing a candidate’s ability to identify level crossings, will also assess their actions in response to the potential hazard caused by level crossings. DVSA also intends to illustrate the correct approach to a level crossing, with the car correctly coming to a stop after the lights have started flashing and the barriers are descending.

Scenarios for the new clips are currently under development with a view to their inclusion into the HPT by 2015.

Pedestrian education

16. The Department for Education’s PSHE curriculum only includes road safety in its coverage of transport safety. DFE should explicitly include rail safety (including level crossings) in the PSHE curriculum.

Schools develop their own Personal, Social, Health and Economic Education (“PSHE”) programmes which are tailored to the needs of their pupils. The Department for Education encourages teachers to draw on relevant resources – for example the suggested draft programme of study published by the PSHE Association. There is no statutory PSHE curriculum as PSHE is a non-statutory subject which can encompass a wide range of possible topics. Railway safety could be one such topic.

The Government notes that, in addition to its national “Don’t Run The Risk” and “See Track – Think Train” television and radio campaigns, Network Rail also has an on-going “Rail Life” campaign aimed specifically at primary and secondary school pupils. It has also provided education material to schools adjacent to level crossings and produced video material to explain the risks to children.

Part of the role of the Level Crossing Managers which Network Rail has recruited is to build relationships with all level crossing users as well as the wider community and the Government expects further safety benefits to accrue from these activities.

Network Rail’s treatment of families

17. Network Rail has admitted that its management of level crossings has previously been negligent and that its behaviour towards bereaved families has been appalling. Network Rail now owes each of the families it has let down a full, public apology, both for the mistakes which contributed to accidental deaths at level crossings and the subsequent treatment of bereaved families. We call on its chief executive to provide this.

This is a matter for Network Rail but the Government understands that the company’s Chief Executive made a full and un-reserved public apology for prior mistakes on 7 March 2014.

18. In relation to the Elsenham tragedy, Network Rail should disclose to the bereaved families the findings of all investigations into why ‘Part B’ of the risk assessment, the ‘Hudd Memo’ and the Health and Safety Executive report on Network Rail’s risk assessment methodology were not initially disclosed.

This is a matter for Network Rail but the Government understands that, as part of a comprehensive investigation into disclosure, ORR shared a copy of its findings with the bereaved families.

Whistleblowing

19. It is unlikely that Network Rail would have been prosecuted in relation to the Elsenham tragedy were it not for the actions of a whistleblower. The knock-on effects of the successful prosecution encouraged Network Rail to take level crossing safety much more seriously. The Government should consider adding confidential reporting schemes such as CIRAS to the list of prescribed persons and bodies under the Public Interest Disclosure Act 1998.

The Department for Business, Innovation and Skills published a call for evidence on The Whistleblowing Framework in November 2013 which demonstrated that the current framework works well in practice. However, the Government is considering whether further strengthening may be appropriate.

The Government notes that CIRAS is not a regulator or body with powers to investigate. Instead, they act on the basis of industry agreement and consent so that complaints about health and safety standards can be looked into and appropriate action taken.

The Government understands that, in addition to CIRAS, Network Rail has also introduced its own anonymous internal whistleblowing facility called “SpeakOut” as well as a Close Call system to provide employees with additional routes to raise any concerns. Network Rail has also implemented a Fair Culture process in collaboration with the National Union of Rail, Maritime and Transport Workers and the Transport Salaries Staffs’ Association which provides reassurance to staff that Network Rail will support anyone raising a Close Call.

ORR’s existing policy on whistleblowing already looks into complaints from whistleblowers where the allegation concerns potential breaches of health, safety or welfare legislation.

Senior accountability

20. Given that Network Rail has recently been held responsible for the serious accident at Beccles in July 2010 we would be very concerned if the Remuneration Committee awarded bonuses to executive directors this year. We recommend that Network Rail clarify the definition of “catastrophic” in its Management Incentive Plan so that it includes life-changing injuries. We call on Ministers to address this issue in discussions about Network Rail’s status.

Network Rail is currently a private sector company limited by guarantee, and the remuneration of its Executive Directors is therefore a matter for the company’s Remuneration Committee and its members. Under a condition of its network licence, Network Rail is required to maintain a Management Incentive Plan which links rewards to the company’s performance related to a number of objectives including safety, long-term sustainability, efficiency, transparency and accountability.

ORR’s role is to ensure that this licence condition is met. ORR also lays down the principles and objectives to guide Network Rail’s Remuneration Committee. In March 2011, ORR set high level objectives for Network Rail’s current Management Incentive Plan to 2015. In complying with these objectives, Network Rail’s proposed decisions on remuneration must set out how they take account of any financial penalties imposed by ORR or the Courts.

On 1 September 2014, Network Rail will be reclassified to the public sector. Work to decide on the best approach to governance, financing, and accounting/budgeting – including remuneration – has now begun. In advance of 1 September 2014, a Framework Agreement that explains these decisions will be published.

The Government believes that any incentive schemes should be both proportionate and performance related and will consider the Committee’s recommendation as part of this on-going work.

Duty of candour

21. We recommend that the Government consider whether Network Rail should be subject to a statutory duty of openness, transparency and candour, analogous to the recommendations of the Francis Inquiry into Mid Staffordshire NHS Foundation Trust. The Office of Rail Regulation should consider whether such a duty can be imposed as a licence condition. Network Rail should amend its internal code of conduct to reflect an expectation that the railway workforce should act with openness, transparency and candour.

The Government is considering the best approach to a number of corporate governance issues in advance of Network Rail being reclassified to the public sector from 1 September 2014. Network Rail already has strong transparency arrangements in place but these are being reviewed in light of the impending reclassification. The Government, in conjunction with ORR, will consider the Committee’s recommendation as part of this on-going work.

Amendments to Network Rail’s internal code of conduct are a matter for the company but the Government notes that it has worked hard to become more transparent and believes that it has already taken a number of significant steps to create an open culture where staff and contractors are able to report any concerns openly including those initiatives mentioned in response to Recommendation 19.

Family liaison

22. Network Rail must do more to improve its communications with the families of people killed or injured at level crossings. We recommend that Network Rail appoint single points of contact to communicate with affected families via the BTP until all legal proceedings have concluded. If the family so wishes, the Network Rail should then keep the family directly informed of safety upgrades or other positive measures as they are being implemented.

This is a matter for Network Rail which has publicly recognised its past failings in this area. The Government understands that Network Rail is working to strengthen its policies and procedures in relation to communication with the families of people killed or injured at level crossings including the appointment of a single point of contact for as long as the families feel that this is necessary.

Investigations and inquests

23. In the interests of transparent decision-making, the Rail Accident Investigation Branch should publish its rationale when it decides not to conduct an accident investigation.

The Rail Accident Investigation Branch (“RAIB”) has addressed the Committee’s recommendation by adding further explanation to the preliminary examination section of the “About Us” part of its web site (at http://www.raib.gov.uk/about_us/index.cfm) to include details of the factors that are taken into consideration when deciding whether or not to conduct a full investigation:

“The purpose of a preliminary examination is to gather sufficient details and evidence about an accident or incident to enable the RAIB to make an informed decision about whether or not to conduct a full investigation. This will often involve investigators going to site to collect or record physical evidence and witness accounts. The European Railway Safety Directive 2004 and the Railways (Accident Investigation and Reporting) Regulations 2005, require the RAIB to investigate serious accidents where this is consistent with the RAIB’s purpose to improve safety on the railways. This legislation also provides the RAIB with discretion to investigate other types of accidents and incidents if this would similarly improve the safety of the railways.

The circumstances of each accident are likely to be unique and hard and fast criteria dictating the decision on whether to conduct a full investigation would be inappropriate. However, the RAIB takes account of the information available shortly after the accident, and that obtained by the preliminary examination, and uses its professional judgement to consider each accident or incident to decide whether a full investigation would be appropriate. The overriding principle is the likelihood of the RAIB being able to make recommendations or share information to enable material improvements in railway safety for the benefit of the public, passengers and workers on the railway.
In addition, in forming the decision on whether to conduct a full investigation, the following factors will also be taken into account:

· The actual or potential seriousness of the accident or incident.

· Whether the accident is part of a series of accidents or accidents involving similar equipment, location, or causal factors.

· The potential for recurrence.

· The potential for material improvements in safety arising from an independent investigation by the RAIB.”

24. It is deeply regrettable that inquests into deaths at level crossings should be perceived by the bereaved families to be adversarial hearings at which they are disadvantaged because they cannot compete with Network Rail’s level of legal representation. Network Rail should consider what is an appropriate level of legal representation taking into account the impact on bereaved families.

This is a matter for Network Rail but the Government agrees with the Committee that it is deeply regrettable that inquests into deaths at level crossings are seen by some participants as adversarial in nature.

25. We invite the Chief Coroner to consider issuing guidance on whether a ‘McKenzie Friend’ is generally allowable in the coroner’s court to offer support to bereaved relatives. The Government should extend Legal Help to cover representation of bereaved families at inquests.

The Chief Coroner thanks the Committee for a copy of its report and the opportunity to consider carefully this recommendation.

Coroners’ courts are different to civil and criminal courts in the sense that there are no parties to litigation. The process is inquisitorial in nature, not adversarial and the objective is to make findings and come to conclusions as to the identity of the deceased person and how, when and where they came by their death.

Any Interested Person, including bereaved families, may ask relevant questions at court. In many inquests the process works well without the need for any form of representation. However, some inquests are more complex and difficult and it can be quite common for other Interested Persons (such as a local authority, a government organisation, the Police and the Independent Police Complaints Commission) to be represented, while bereaved families are not. Families are only granted legal aid for advocacy at inquests if they satisfy the stringent statutory requirements for ‘exceptional case funding’ (see below).

The Chief Coroner is therefore looking at the wider issue of representation in the coroners courts. McKenzie Friends were developed as a response to specific circumstances in the civil courts so their role in the coroners’ courts needs to be considered carefully.

In the short term, the Chief Coroner will be issuing guidance to coroners on how to deal with requests from bereaved families to support applications for exceptional case funding to the Legal Aid Agency. The Chief Coroner understands that complex coroner proceedings can be difficult for bereaved families who are not able to access legal representation. He is working with the Legal Aid Agency to train their staff on coroner law and procedure so they can better understand the reasons families make applications for funding. However, the ultimate decision for funding remains with the Legal Aid Agency.

The Government has specifically protected legal aid for inquests and Legal Help, the advice and assistance level of legal aid, remains available for inquests into the death of a member of the individual’s family. Legal Help can cover all of the preparatory work associated with the inquest, which may include preparing written submissions to the coroner. Legal Help can also fund someone to attend the inquest as a ‘Mackenzie Friend’, to offer informal advice in Court, provided that the coroner gives permission.

Funding for legal representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one. The role of the coroner is to question witnesses and to actively elicit explanations as to how the deceased came by his or her death. An inquest is not a trial. There are no defendants, only interested persons, and witnesses are not expected to present legal arguments. An inquest cannot determine civil rights or obligations or criminal liability, so Article 6 of the European Charter of Human Rights (“ECHR”) is not engaged.

There are two grounds for granting legal aid exceptionally for representation at an inquest where certain criteria are met. The first is that it is required by Article 2 of ECHR (the obligations on a State under Article 2 consist of three principal aspects: the duty to refrain from unlawful deprivation of life; the duty to investigate suspicious deaths; and in certain circumstances, a positive obligation to take steps to prevent avoidable losses of life). The second is where the Director of Legal Aid Casework at the Legal Aid Agency makes a “wider public interest determination” in relation to the individual and the inquest.

The Lord Chancellor has published guidance on exceptional funding for inquests, which the Director of Legal Aid Casework must have regard to, at http://www.justice.gov.uk/downloads/legal-aid/funding-code/chancellors-guide-exceptional-funding-inquests.pdf.

Media, communications and use of language

26. We recommend that the rail industry, government and Office of Rail Regulation stop using the term “misuse” in relation to accidents at level crossings and instead adopt “deliberate misuse” where the evidence supports this and “accident” where it does not.

The Government and ORR welcome the Committee’s recommendation and agree that the term “misuse” in this context is unhelpful. The Government will work with ORR, the industry and other stakeholders to develop and agree common language and definitions that should be used.

The LXinfo perspective

The number of times where politicians say one thing in an election campaign and don’t follow through when elected is too often the norm. If we treat the Government’s response to the Transport Committee as a manifesto within which the Government itself and the associated public agencies as a pledge of how level crossing safety will be addressed going forward, it can be seen as a commitment to address many of the shortcomings identified by the Transport Committee.

However, the big question is why has it taken being held to account by the Transport Committee to generate a cohesive and credible Government position on level crossing safety? Indeed, this doesn’t answer the question why, when giving evidence at the second of the Transport Committee’s oral hearings, the Secretary of State and his officials were not able to deliver a credible case that the Government was pro-active in delivering the changes required of it?

The real test will be behaviours going forward and the extent to which the changed culture regarding avoidable accidents at level crossings is embedded in Government, its officials and agencies. But, it is important that improving level crossing safety further is not at the expense of further improving railway safety more generally and given the harm arising on the public highway, driving further change in the wider road safety arena.

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