Railway Safety
Railway Safety Commission
The Railway Safety Act established the Railway Safety Commission. The Commission is an independent body. Its functions are to foster and encourage rail safety, enforce the relevant legislation and investigate and report on railway incidents.
The Commission may contract out certain of its functions subject to Departmental consent. It may enter agreements with others such as the health and safety authority for the performance of certain of its functions. Generally it advises the Minister/Department on railway safety issues.
The former functions of the department, CIE and other entities were transferred to the Commission in the context of railway safety. Further functions may be conferred on the authority by regulation
The Commission is to consist of at least one but no more than three members. The first Commissioner, was the chief railway inspecting officer of the department.Commissioners are appointed for periods between three and seven years. They act by a majority of where there are more than two. The Commission has its own staff officers who were transferred from the Department or otherwise retained and employed.
The Commission is financed by the Minister. Grants are made from public funds. There is also provision for a levy with the consent of the Minister and Minister of Finance on railway undertakings. There are provisions for assigning recordkeeping, recovery and collection of the levies.
The Commission is to adapt and submit to the Minister a strategy statement at least every three years. The Commission is accountable to the Oireachtas committees in connection with its financial performance.
Health and Safety
The legislation largely replicates many of the health safety and welfare of work act provisions and expands on them in the context of particular risks arising from railways.
It is the duty of a railway undertaking to ensure in so far as reasonably practicable, the safety of persons in the operation of its railway. It is the general duty of persons working in the course of the railway undertaking and any persons being on a railway premises to conduct themselves to ensure in so as far as reasonably practical that no person is exposed to danger as a consequence of any act or omission on his part.
It is a duty of a person working in a railway not to be under the influence of alcohol during employment to such extent as to expose any person, including himself to any risk or danger. It is the general duty of every person carrying out an activity at or near railway premises or railway land to ensure in so far as reasonably practicable that no person who is involved in the operation of the railway or who is being carried on the railway is exposed to danger in consequence of an act or omission of that person.
A railway undertaking must implement a safety management system and prepare a safety case describing the elements of that safety management system. It must show that the railway has the ability to properly assess and effectively control risks to persons in compliance with the above duties.
The elements of a safety case are set out where railway infrastructure of a railway undertaking is used by another railway undertaking of where they may affect each other. They must agree systems and procedures to ensure compliance with their duties. They must cooperate with each other and provide all requisite information. Entry f an agreement is a precondition to operating trains on another railway undertaking infrastructure.
Where the undertaking contravenes the requirement, a direction may be given by the Commission. Failure to comply with the direction is an offense prosecutable summarily or on indictment with a fine up to €500,000.
Safety Measures
A railway undertaking may not commence construction, installation or assembly of new works unless a safety assessment is undertaken and submitted to the Commission. The Commission may make requirements in relation to the assessment. The consent of the Commission is required before bringing into effect new works.
A safety assessment must be made of new rolling stock. This must be submitted to the Commission, which can make requirements. The Commission may amend the safety case. The rolling stock may not be used until Commission approval.
Where ownership of a railway undertaking is transferred, prior details must be given to the Commission of the proposed transfer. A new safety case is required and must be approved. There are procedures in relation to the acceptance by the Commission of the safety case. A safety certificate is issued. It may contain such conditions as may be specified. There are provision for revised safety cases and their approval.
The railway undertaking must implement the safety and management system, describing the case approved by the Commission. The railway undertaking is obliged to revise a safety case where it considers appropriate, where there are new works or rolling stock or where the Commission so requires.
The Commission may appoint independent persons to undertake a safety audit. Persons may be registered to undertake such audit. A railway undertaking must audit its safety and management system as described in its safety case. The objective is to confirm its adequacy that it adequately reflects the system and is in compliance. Recommendations may also be made.
Railway Incidents
A railway incident is
- an occurrence which takes place in the course of the operation of a railway which causes or results in loss of life or personal injury.
- a collision between trains or between a train and some other vehicle
- a train or any part of a train accidentally leaving the rails
- an occurrence of the kind mentioned above but which is of such a kind as to have caused or likely to have caused loss of life or personal injury or damage as specified in regulations occurring on railway infrastructure.
In the event of a railway incident, the railway undertaking must report it. A railway undertaking has a duty to investigate a reportable railway incident in order to establish its cause and assess what can be done to avoid a recurrence and improve the safety system.
There are provisions for investigation of railway incidents. Persons involved may be entitled to legal advice or to be present in some cases.
Employees must provide all reasonable assistance. The Commission may require an interim report. The report must be retained for inspection for five years. Where more than one railway undertaking is involved, each must investigate.
A member of a railway staff has a duty to disclose information relevant to a railway investigation, a railway incident or risks arising from the operation of the railway which are not in his opinion adequately controlled or mitigated by the undertaking. There are protections for the employee who must not be disciplined for disclosure.
Reports & Enquiries
The Commission maintains a railway incident investigation unit. It may investigate railway incidents in accordance with regulations prescribed. Class of railway incidents may be specified. The investigation unit is independent. The investigation unit has powers and duties to conduct investigations. It must include findings in its report.
Recommendations may be made on foot of the findings where warranted. A draft of the report is first prepared and observations are requested before confirmation.
The Minister may establish a tribunal of enquiry into a railway incident. It has the powers of a court in hearing an offence. It may summons, adMinister oath etc. Witnesses have much the same privileges and immunities as in other investigatory powers. An investigation may be suspended when an enquiry is ordered.
Where a coroner holds an inquest in the case of a death in a railway incident, he must notify the Commission of the time and place of the inquest. He may request the attendance of an inspector.
2020 Act Railway Accidents
The Railway Accident Investigation Unit is the independent body that carries out railway accident investigations in the State. Since 2014, railway accident investigation powers for all categories of rail are provided in secondary legislation (referred to in the Act as the “Regulations of 2014”) which transposed the existing EU Railway Safety Directive. This EU legislation sets out common criteria for accident investigations to distinguish between a serious accident, an accident and an incident.
The EU Railway Safety Directive was replaced and reduced in scope and does not apply to certain railways such as light railways (which includes the Luas light rail network in Dublin) or heritage railways. A set of transposition Regulations had been made to give effect to the new Directive from 31 October 2020. These Regulations (referred to in the Act as “Regulations of 2020”) give the RAIU statutory powers in respect of any accidents involving the main Iarnród Éireann railway system, which includes the DART.
The purpose of the 2020 Act is to provide that the RAIU will, from 31 October 2020, continue to have a statutory basis for reporting on and the investigation of accidents involving railways that fall outside the scope of the EU Directive, including the Luas light rail network. As the Act solely seeks to ensure the continuation of the ‘status quo’ in regard to the existing powers and functions of the RAIU, no additional Exchequer funding will arise.
The provisions relating to reporting and investigation of railway accidents contained in the “Regulations of 2020” apply to the below railways t These are any‑
- metro, tram or other light railway system,
- privately owned rail network that exists solely for use by the infrastructure owner for its own freight operations insofar as it has an interface with a public road or with another railway system,
- heritage railway vehicle that runs on the railway system in the State,
- heritage railway, museum railway or tourist railway that operates on its own network, including workshops, vehicles and staff, and
- any other railway, or person who operates a railway, to which the Regulations of 2020 do not apply by virtue of section 3.
Any investigation or the preparation of any investigation report (in relation to a railway covered by this Act) that has been commenced but has not been completed prior to 31 October 2020 can be continued under the Regulations of 2020. The Regulations of 2020 shall apply to any RAIU investigation report or other report (relating to a railway referred to in section 3) prepared or published prior to the Act coming into operation.
Regulations
The Commission with the consent of the Minister may make regulations in relation to
- standards of specifications for railway infrastructure and stock
- additional matters to be included in safety management statements,
- requirements and restrictions relating to management of passengers or other person’s property,
- levels of competence, qualification, training,
- disability awareness
- requirements relating to interface between railway undertakings
- requirements relating to reporting of incidents
- standard specifications and procedures for safely purposes
- special requirements of mobility impaired persons
It is the duty of the Commission to keep the legislation under review.
Investigation
Inspectors have extensive powers of enforcement. The Commission may appoint inspectors for the purpose of legislation.
They may
- travel on trains, enter property,
- make examinations
- require cooperation of employees,
- require production of records,
- inspect and take records,
- remove records,
- direct preservation of evidence,
- take samples, cause matters to be examined, take photographs etc.
They may require reasonable cooperation. In the usual manner with investigatory powers, it is an offence to obstruct or fail to cooperate.
The inspector may require production and delivery of records. A member of Garda Siochana accompanying an inspector may require a person to produce his name and address. Where a false name is given, or no name is given or a name which the Garda reasonably believes to be false, he may be arrested without warrant. An offence is also committed.
Directions and Plans
An inspector may serve an improvement plan specifying remedial action required to remediate the effect of a matter.
Where the inspector is of the opinion that the undertaking is contravening the act or an improvement plan, he may serve an improvement notice. There is a procedure associated with the service of a notice.
Where the inspector is of the opinion that an activity is being carried on in such a way that involves or is likely to involve substantial risk to safety of person’s on the railway or near, a prohibition notice may be served. The prohibition notice prohibits the matters set out in it.
Failure to comply with any of the notices is an offence subject on summary conviction to fines of up to €3,000 and three months’ imprisonment or on indictment, €1 million or two years imprisonment or both.
There are procedures in respect of appeals against notices by the railway undertaking.
Advisory Council
The Railway Safety Advisory Council is established under the legislation. It consists of 14 persons appointed by the Minister. It comprises representations of railway undertakings, staff, the public employees, and third persons.
The function of the council is to consider issues of railway safety and make recommendations to the Commission or the Minister. This includes recommendations in relation to
- regulation standard guidelines,
- codes of practice,
- railway safety policy,
- adequacy of legislation, assignment of functions to the Commission.
Critical Workers’ Duties
It is the duty of a safety critical worker not to perform a safety critical task while unfit and to comply with code of conduct and sampling procedures.
A railway undertaking may prepare a code of conduct in relation to intoxicants for safety critical workers. It may provide courses of action including dismissal, suspension, demotion, prohibition on working for failure to comply with the code.
There is provision for sampling for intoxicants and drugs. There are detailed provisions regarding the taking of the samples. Safety critical workers have obligations to cooperate.
A safety critical worker is one who undertakes a safety critical task. This includes driving a train or controlling train movements, controlling management and effecting movement of persons on a train platform across, a level crossing or working in a maintenance capacity or as a supervisor or lookout for persons working in that capacity.
The Medical Bureau of Road Safety undertakes the intoxicant and drug analysis. There are obligations to provide samples. Members of an Garda Siochana may arrest a safety critical worker where there is reasonable cause to believe that they are contravening the obligations above.
It is an offence for a safety critical worker to perform a safety critical task while being unfit. The legislation specified prohibited drugs, alcohol concentrations. There are obligations to provide specimens equivalent to those under road traffic legislation.
It is a duty of a safety critical worker not to perform a safety critical task in a public place without taking due care and attention. Contravention is an offence,
A safety critical worker may not perform the safety critical task in a manner which in the circumstances is dangerous to the safety of persons or poses an unreasonable risk of harm to persons. A supervisor or a manager should not perform a safety critical task in a manner that contravenes his obligation. A person who contravenes this obligation is subject on conviction and indictment to a fine up to €100,000 or five years imprisonment or both, or summary conviction €5,000 or six months imprisonment or both.
A railway undertaking may require safety critical workers to undergo assessment by medical practitioners. If the practitioner is of the opinion that the worker is unfit to perform a duty, he must notify the undertaking. If a safety critical worker becomes aware that he is suffering from any disease, or any physical or mental impairment, which, should he perform a safety critical task would be likely to cause him or her to expose a person to danger or risk, he must disclose the same.
Works near Railway
A person other than the road authority or a contractor may not commence work on a public road in the vicinity of railway infrastructure, where having regard to Commission guidelines, they may affect the safe operation of the railway infrastructure, without obtaining the prior consent of the road authority and such conditions of its consent.
Before giving consent, the road authority must notify the railway undertaking of the proposed work and consider its objections or representations.
A road authority, before undertaking works to commence a contract in its own behalf must notify a railway undertaking of its intention and consider its objections or representations.