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A letter from Chief Inspecting Officer Vic Coleman to Railtrack's Operations Director Chris Leah makes it clear that HMRI approval does not necessarily mean that something is safe.
John Prescott, in his middle class way, accused Railway managers after Ladbroke Grove of trying to 'cover their backsides'. This column prefers more robust language so the Chaucerian CYA is our acronym of choice.
Last month's column revealed how the Government itself went in for post Ladbroke Grove CYA, spinning against Railtrack to save Deputy Prime Minister John Prescott's skin and job. And CYA appears to be spreading.
As readers will have noticed this column has been increasingly concerned about Her Majesty's Railway Inspectorate since it was subsumed within the Health & Safety Executive. These concerns are articulated with vigour and clarity in Stanley Hall's new book on safety under privatisation reviewed on page xx.
But briefly, the HMRI appears to have got in touch with its inner emotions and is trying to retreat from the rational approach to safety and safety related investment through the safety case system which the Inspectorate itself recommended for the privatised railway.
Take the case of Signal SN109, the signal fatally passed at danger in the Ladbroke Grove accident. Following the crash, the HMRI put a Prohibition Notice on the signal.
This suggested that SN109 was dangerous in some way, drawing the inference that Railtrack was responsible for the SPAD by the Thames Train's Turbo. And if you think this is improbable I had a big up and downer with an aggressive interviewer on a radio chat show who was convinced that Railtrack's faulty signal caused the accident.
Anyway, to clear its name, as it were, Railtrack decided to challenge the prohibition notice on SN109 and the improvement notices on the 22 worst signals for SPADs at an industrial tribulal. This has really annoyed Chief Inspecting Office Vic Coleman who keeps harping on about it.
But prohibition and improvement notices are as nothing to a letter Vic wrote to Chris Leah, Railtrack's Operations director, following Mr Leah's appearance in the Panorama programme on rail safety on 1 November.
Now I watched this pretty naff programme and thought Chris Leah stonewalled really well, but Vic took exception to one of Chris' cautious statements. He thought that Leah appeared to be saying that if Railtrack is not served with an enforcement notice then it will assume that what it is doing, or not doing, is satisfactory.
And what I can only describe as a tirade followed, as you can see from the text of the letter.
What seems to have lit Vic's fuse is the suggestion that that Railtrack would act on the HMRI's 'advice or exhortation' only if it were backed with formal enforcement.
And thereby hangs a tale. It still rankles with the HMRI that industry did not joyfully pick up the idea of cup and coning Mk1 stock. Of course it didn't because in terms of safety, as safety expert Prof Andrew Evans has pointed out, it doesn't survive cost benefit analysis by a long way.
That the HMRI, having got the Mk 1 crashworthiness bee in its bonnet went and spent £1.5million for a modification that didn't quite work as advertised in the 40mile/h crash test and will have a useful life of two years max is a mini-disgrace. It is also worth noting that were something to go wrong, and cup and cone failed to work as advertised again, possibly exacerbating the accident, it would be all down to whoever engineered the conversion and nothing to do with the HSE or HMRI.
This no-blame culture is highlighted in the Coleman-Leah letter. I quote
Let me make things crystal clear. Nothing that HSE does, or indeed does not, do can be taken in any way as confirming the adequacy of Railtrack's actions, or inaction, under the law. Only the courts can judge that.
And the letter goes on to explain that if the HSE reckons that something is OK for the time being, or thinks that it ought to allocate its finite resources on something really important, like cup and cone, and misses some other nasty accident waiting to happen as a result, then that is down to Railtrack.
How do we know that Railtrack is running a safe system? Well don't ask the HMRI, seems to be the message from the Chief Inspecting Officer of Railways. Railtrack is on its own until something goes fttang and then the courts will decide.
Presumably this also applies to the HMRI's responsibility for coach interiors in vehicle approvals. Supposing the Inspecting Officer approves the design of teddy bear cupboards in Pendolino Britannico (old car park watchers joke). Supposing in a subsequent incident a cupboard door bursts open and I am nutted by a flying bear? Can Virgin deny liability on the grounds that the cupboard had been approved by the HSE? Fat chance in CYA land.
So why bother to invite the HSE to inspect new vehicles or take any notice of what the inspector recommends? Or doesn't recommend in the blidnignly obvious case of markings on where to hit windows.
Read very carefully the Chief Inspecting Officer's views on approvals. This example of CYA is almost up there with Joseph Heller's 'Catch 22'.
This is how interpret the letter. 'We signed off the Paddington track remodelling and resignalling in 1993? Well, yes but that doesn't mean it complies with safety standards. Anyway, that was six years ago. We signed off SN109 in March? Oh come on, that was all of six months ago'.
More in sorrow than anger Coleman concludes by saying that he 'detects the heavy hand of public relations in some of Railtrack's utterances, possibly in an attempt to secure some 'damage limitation''. He cautions Railtrack 'not to be seduced by any false rhetoric'.
Well, as the saying goes, it takes one to know one. And it is sad to see the once great HMRI seeking to acquire the traditional prerogative of the oldest profession and the press - power without responsibility. This letter can only strengthen the case for a root and branch restructuring of transport safety, including rail, away from the HSE. But, depressingly, see below.
Chris Leah Director, Operations Our Ref. 53/1/102/95/3 Railtrack Plc Railtrack House Euston Square London NW1 2EE 4th November 1999
RAILTRACK'S LEGAL OBLIGATIONS
- I was dismayed to hear what you had to say in response to questions put during the Panorama programme broadcast on 1 November 1999 about the responsibilities for railway safety.
You appeared to be saying that if Railtrack plc is not served with an enforcement notice then it will assume that what it is doing, or not doing, is satisfactory.
While I accept that the snippets of an interview as used in the programme may have been taken out of a better considered context, I cannot allow the impressions you gave on the programme to pass without comment.
Railtrack plc is, of course, wholly and solely responsible for meeting all its legal responsibilities, including securing full compliance with it's railway safety case. This not only includes the obligations on Railtrack to conduct it's own undertaking to ensure safety, so far as is reasonably practicable, but also includes the requirement on Railtrack to manage and control the importation of risk into its network.
I should welcome your unambiguous agreement with the previous paragraph, otherwise you appear to be saying that Railtrack will only act on our advice or exhortation if it is backed with formal enforcement, and we would then indeed be heading for an extremely confrontational future. I would also find it odd given that, only this week, I understand that your lawyers are arguing that notices are inappropriate in circumstances where Railtrack had given undertakings to do what is necessary without enforcement action.
Let me make things crystal clear. Nothing that HSE does, or indeed does not, do can be taken in any way as confirming the adequacy of Railtrack's actions, or inaction, under the law. Only the courts can judge that. Even where we, as a regulatory or enforcement body, choose to allow some time for compliance or pass over one issue to concentrate (at a particular time) on one of a higher priority, Railtrack Plc will remain responsible for full compliance with all aspects of the law. It must remain eternally vigilant, determined and active.
Even where approvals are granted, they should never be regarded as any kind of guarantee of compliance - particularly as time passes and newer experience emerges. Railtrack is already well aware that approvals under the Railways and other Transport Systems (Approvals of Works, Plant and Equipment) Regulations 1994 is based squarely on certificates of compliance and completion submitted by the railway operators themselves and our scrutiny has always been, and will inevitably remain, selective.
I am afraid I detect the heavy hand of public relations in some of Railtrack's utterances, possibly in an attempt to secure some "damage limitation". Whether I am right in this, or otherwise, I caution Railtrack plc not to be seduced by any false rhetoric. Any failure, particularly any knowing failure, to avoid full compliance with statutory obligations, will render Railtrack plc (and any complicit managers) liable to legal proceedings.
I would naturally welcome some clarification from Railtrack plc of its understanding with respect to its own legal obligations, to its commitment to meet them in full and to keep its levels of compliance under review.
I am copying this letter to Sir Philip Beck, Gerald Corbett, Rod Muttram, Simon Osborne and to all Zone Directors. I am happy for this letter to be made available more widely.
Yours sincerely
V P Coleman HM Chief Inspector of Railways |