Official Report: Minutes of Evidence

The Chairperson (Mr Martin): I welcome Graeme, Suzanne and Linda to the Committee. I need Committee agreement that the evidence session will be recorded by Hansard. Are members agreed?

The Chairperson (Mr Martin): I invite the representatives to make an opening statement of up to 10 minutes, after which you might expect some questions from members. The floor is yours.

Mr Graeme Banks (Department for Infrastructure): Thank you, Chair. I will make quick introductions: I am the head of rail safety in the Department for Infrastructure; to my right is Linda Buick, who is head of public transport policy; and to my left is Suzanne Breen, who is on our legislation team.

Chair and members, thank you for the opportunity to come here today and, hopefully, give you a bit of an overview of the potential Bill and answer any questions that you have. The Department is committed to maintaining a safe, efficient and well-regulated rail network in Northern Ireland. Rail safety is a devolved matter, and the Department acts as the rail safety authority for Northern Ireland. Historically, rail safety policy was shaped by EU membership. Following EU exit, policy responsibility was returned to the UK Government, with safety matters being within the competence of the devolved Assembly. That shift has meant that the Department must develop and implement its own policy and legislation, rather than simply transpose EU directives.

The most recent major review of rail safety legislation was back in 1999, and that led to the Railway Safety Act 2002. Between then and EU exit, we transposed EU directives; a series of directly applicable EU legislation was made in that policy space. Noting the implications of EU exit and the fact that we now had responsibility to lead on policy development, we undertook a comprehensive review, which commenced in 2022 and was structured in three phases. The first phase was a legislative review to identify potential gaps and the full extent of our statutory duties and where those were vis-à-vis EU exit. The second phase was to explore organisational models for rail regulation, based on those in other jurisdictions. We also looked at Northern Ireland-based regulators in other policy areas to see what lessons we could learn. The final phase of our review involved engaging with stakeholders on their preferred structures for rail regulation. That led to the policy proposals that were put out to consultation in June this year. A 12-week consultation was held on the proposed legislative provisions for a potential rail and transport Bill. The proposals include establishing an independent rail regulatory body with enforcement powers; granting powers to order the construction of new railways; creating new offences in relation to drugs and alcohol, and in relation to fare evasion on the Glider; and modernising the legal framework for rail regulation. A lot of our railway legislation dates back to the Victorian era. There is an opportunity to modernise that legislation.

One hundred and twenty three invitations were issued to a range of organisations, including statutory consultees. We received 31 responses, 18 of which were from interested individuals, with the remaining 13 coming from organisations in the sector. Overall, there is broad support for most of the proposals that were put forward. A little bit of concern was raised about the potential introduction of a safety levy. Most of those concerns came from heritage rail organisations and were about implications. Any cost for that sector would be challenging, so that would represent a potentially difficult situation for it. Officials are due to meet the Minister to look at the findings of the consultation and agree next steps. The safety levy and the challenges around that will require a bit of careful consideration, as it must be ensured that the cost of the regulatory burden is shared properly and is manageable. We will continue to engage with stakeholders as we develop the work to support the potential introduction of a rail and transport Bill, which will be informed by the consultation feedback and ongoing engagement with the Minister and officials.

I am happy to take questions on the results of the consultation.

The Chairperson (Mr Martin): Graeme, I love how precise all our officials are. I have been on other Committees where the officials take 15 minutes. You guys take three and a half minutes and I am left going, "What's my question?". I am only joking. Well done.

I have a couple of specific questions and a couple of general ones. You got 31 responses to the consultation. I know that this is not perhaps a — I am trying to find the right word — dynamic area for some people in Northern Ireland. Were you disappointed to get only 31 responses? Were you expecting more, or did you think "Well, this is a very specific area"?

Mr Banks: It is a very specific area. There are a small number of key stakeholders in the sector, all of whom participated in the consultation. It is positive that we got their feedback. When you ask the general public to participate in a consultation, it is difficult to anticipate their response. It would have been great to have had more responses. There are a number of very keen railway enthusiasts, and, while there are many people who travel on the railways, they are perhaps not quite as interested in how the railway is regulated. The railways is a niche topic, and the regulation of the railways is potentially even more niche.

The Chairperson (Mr Martin): Even more niche — the "nichest"? I think that I have invented a word for Hansard there.

I completely understand that the number of responses was low because it is a niche area. The responses to the consultation indicate that, in general, it was very warmly received. There was very positive feedback. I am looking at your summary and conclusions in your consultation analysis document. The sample size was quite small, and, as you state:

How has that consultation response informed departmental thinking around the annual safety levy?

Mr Banks: There are a mix of views. One interesting thing, which is not quite reflected in the numbers but is evident in the comments, is that there is generally an acceptance that rail regulation has to be properly funded. The concern is more around the impact of that on organisations. Is there a possibility that Translink or Irish Rail may end up passing some of that cost on to the consumer? We have to look at this carefully to ensure that organisations, particularly smaller organisations such as our heritage railways, are not adversely impacted on by the introduction of a safety levy. Nobody wants to put a burden on a charitable organisation that might result in its going out of business. We have to be very careful.

That is where we are at the moment. We are looking at how to structure the levy in such a way that it will result in properly funded regulation but is not such a burden on small organisations and is not passed on to passengers. We have to look at whether there are things that can be done as regards how Translink is funded and whether there is a need for ring-fenced funding for rail regulation. Those are all options that need to be carefully thought through and considered to make sure that we address the concerns that have been raised.

The Chairperson (Mr Martin): That is fine. I have a slightly more general question about timing, intent and what happens next. The Committee is already considering the Water, Sustainable Drainage and Flood Management Bill from the Department, and we expect the ports Bill to come at some point. Is it your view that we will see a rail safety and transport Bill in this mandate?

Mr Banks: Ultimately, that will be up to the Minister. The Minister has a range of priorities that she will want to get through. This will have to be carefully considered within that range of priorities. Equally, you mentioned the time that has already been allocated to the Bills that you are considering. If there is an intention to go forward with this Bill in this mandate, we will have to work with Committee Clerks to make sure that there is sufficient time to do so. There are also resourcing implications as regards departmental officials' time and drafting lawyers' time. All of that has to be put into the mix so that, if there is a decision to go ahead in this mandate, sufficient resourcing is put in place and sufficient time is given for scrutiny.

The Chairperson (Mr Martin): I suspect that you might even have had a chat with the Minister before your Committee appearance. You spoke about priorities. Let us take as a given that that sustainable drainage systems (SuDS) Bill and the ports Bill are ministerial priorities. The Committee has already said that it will do its absolute best to get those through. Have you had any indication from the Minister as to the likelihood of this Bill finding its way through in this mandate?

Mr Banks: We are due to meet the Minister in the coming weeks, so we will hopefully have a clearer indication then. It is in the mix with the other priorities. I cannot say any more than that.

The Chairperson (Mr Martin): OK, fair enough. That is great. Thank you very much, Graeme.

Mr Stewart: Folks, thanks so much for coming along and for your concise presentation. It is a really interesting topic. Graeme, you said that this arose out of Brexit. The UK Government had the responsibility previously, and the onus and requirement to legislate are now on the Department. Is there a time frame for that? Are we sitting in limbo land in the absence of departmental legislation, or are we being guided by Westminster? If we are in limbo land, and given what the Chair asked about in the previous question, do you have any concerns that, if this is not legislated for in the current mandate, it could drag on and leave a widening gap?

Mr Banks: There are gaps that have to be addressed. We have railways legislation. As I said, a lot of that legislation is from the Victorian era and dates back to the 1840s.

The Deputy Chairperson (Mr Stewart): Yes, it is not quite up to date. [Laughter.]

Mr Banks: It was introduced for a very different sector, one that was predominantly made up of private companies. That legislation may be not quite be fit for purpose, but that does not mean that we do not have a modern rail regulatory framework. We have that as a result of legislation that was made during our period of EU membership. We have powers in many of those areas, but they may not be as clear-cut or as encompassing as what the Bill would propose.

Yes, there are gaps that have to be addressed. As for the immediacy of those issues, obviously, the sooner you deal with them the better, but there would not be too adverse an impact if the Bill ended up coming in the next mandate, having taken two, three or four years. If it drags on beyond that, I would be concerned. There are many unknown unknowns in the implications that could result from developments in EU legislation and GB legislation. We want to do it timeously so that we can manage those, but there are no obvious immediate impacts that mean that we desperately need this Bill.

The Deputy Chairperson (Mr Stewart): There is nothing keeping you, as the Department's rail safety guru, up at night with regard to the existing gaps or the potential for widening gaps as the EU goes one way and the UK and we go another. Quite often, legislation in this place moves at a snail's pace. We have only to look at the ports Bill, which is still not in: that has been talked about for almost 20 years. We would not want that when it comes to a rail safety Bill. This goes back to the Chair's point: how important is it that we push it and try to squeeze it into this mandate or, at the very least, into the earliest part of the next one?

Mr Banks: It is reasonably important that we get this done in the time frames that you are talking about — the remainder of this mandate or early in the next mandate. If it went on longer than that and took until towards the end of the next mandate, I would not be kept up at night too much by that. It is once you start talking about it taking 10, 15 or 20 years to do it — not that I imagine that it will take that long — for whatever reason, that I would be a bit more concerned.

The Deputy Chairperson (Mr Stewart): If I am still sitting here in two mandates' time, I will hold you to that, and you can come back. [Laughter.]

Hopefully, that will not be the case.

Mr Stewart: Chair, I am still on my first question, you'll be glad to know.

The Chairperson (Mr Martin): Very poor, very poor. [Laughter.]

Mr Stewart: This question will stray past the consultation: given the nature of cross-border travel on our rail networks, how integrated and overlapping does the legislation need to be with that in the Republic of Ireland?

Mr Banks: Having as similar regulatory regimes as possible brings obvious benefits when it comes to the regulatory and administrative burden on the organisations. There are already differences. Equally, if we go back five or 10 years, even though it was all essentially the same legislation under the European framework, there was always the opportunity for regulators to interpret and apply legislation slightly differently and for differences in how they seek compliance with the regulatory framework. That has been the experience on this island. There have always been differences between how regulation is done in Ireland and how it is done here in Northern Ireland. Even if we end up with very similar legislation, there will probably be differences in approach.

Mr Stewart: Yes, no doubt.

Mr Banks: The organisations are experienced in dealing with that. Whilst having radically different regimes is not a good idea, differences are commonplace and are accepted and managed.

Mr Stewart: This is my penultimate question. You said that the only real difference in opinion was on the introduction of the annual safety levy, and you have articulated — correctly, in my opinion — that heritage rail organisations should not be penalised by that. I assume that it is mostly them that have concerns about that.

Mr Banks: Yes, but, equally, our mainline operators have concerns. Translink and Irish Rail do not have unlimited budgets. Some of the individual respondents expressed concern about the cost implications and whether the cost burden will be passed on. It is difficult to say. There are different models for applying an annual safety levy. In GB, it is 0·1% of an organisation's turnover. In Ireland, each year, a statutory instrument is passed that specifies how much each organisation will pay in the safety levy. There is a range of models, but, wherever we end up, it needs to be done in a way that is fair and equitable; that distributes the cost burden between the sector and government; and that ensures that smaller organisations, in particular, are not unfairly penalised but also that we are not adding a burden for larger organisations that ends up impacting on the ticket price.

Mr Stewart: Maybe you do not want me to pin you down on this given that it is a legislative point of view, but we, as a Committee, can all agree that we have excellent heritage rail organisations in our constituencies that do a wonderful job in historical preservation and in promoting the rail sector, but they run on shoestring budget. Given how tight moneys can be, do you anticipate that the legislation — maybe you have not even thought about this yet — will exclude them from any burdens in that regard?

Mr Banks: We seek not necessarily to exclude heritage rail organisations but to clarify what exists, because the regulation of heritage rail organisations is done under the Regulation of Railways Act 1868, and there is potential for quite wide-ranging criteria to be placed in the new legislation. It is not that we, as a rail safety authority, want to do that — we try to be proportionate — but, because of the potential breadth required and the lack of detail in the existing legislation —. At the time that it was designed, that legislation was not really for heritage railways. Part of what we would seek to do through the Bill's provisions is provide clarity for the heritage sector so that it has a better and clearer understanding of the regulatory criteria that apply to the heritage sector and of how we work with our regulator to implement that in a way that is manageable for those organisations and also ensures that the people who are enjoying those services and experiences are safe when they do so.

Mr Stewart: OK. I have one last point, if I may, Chair. Is there anything in the consultation or potential legislation that anyone in your team would have liked to see go further? Did you ever consider extending it to protecting passengers on board trains rather than it being solely about the safety of the rail network? I say that because, recently, we have seen more and more tragic events on our railways across the United Kingdom. Hopefully, further such events can be prevented. We praise the police and everyone else for all the work that they do, but we may need to look at how we seek to do whatever we can, within the parameters of the law, to better protect passengers on board. Was that even considered?

Mr Banks: It was not considered within the scope of this Bill, but we are aware of the work that goes on between Translink and the safe transport team in the PSNI. A lot of good work is done through that partnership. There are patrols at stations and on trains to provide a bit of comfort and security for passengers. As I said, that is beyond the scope of what was considered here. If, in the future, it was thought to be more of an issue, it could be looked at then.

Mr Stewart: OK. No problem. Thank you so much, and sorry for all the questions.

Mr Harvey: Thank you. Initially, when I read that an independent rail regulator would be established, I thought that it would be a person. From reading more into it, it seems as though it would be a body of people. Are you thinking of using existing staff, or would you need more staff? Would it be able to function with your existing staff?

Mr Banks: That is a possibility. We would have to consider how that would be done, if it was felt that the staff who work in that area should be transferred out to an independent body. There are staff who, essentially, have the same qualifications as health and safety inspectors who undertake some of that work at the moment. The Department does not have the breadth of railway expertise that an organisation such as the Office of Rail and Road (ORR) in GB has, so we have had to rely on its expertise and support, even on more general railway health and safety matters that, if we had sufficient expertise here, we could probably handle locally. There would be certain benefits to that, such as better local understanding of the network. There are particular differences that date back to when the railways were first put in. Take, for instance, the gauge of the railway here: it is different from what it is in GB, and that had many implications for how stations were designed and built at that time.

There are differences. It is challenging when we have to get support over from the Office of Rail and Road, as you have to explain the peculiarities of our network to those people, who are used to the GB rail network. That adds a bit of time that could probably be better spent doing the work of regulation. Yes: it may be that it would be better to have some local inspectors, but, equally, as I said, we need to have access to a breadth of expertise. We are a small railway network, and, if we want to ensure that we are as efficient as we possibly can be when it comes to rail regulation, it is appropriate that, in some instances, we continue to rely on the expertise that exists elsewhere.

Mr Harvey: The rail network is extremely safe as it is, so you are doing a good job. What other jurisdictions did you look at and base your model on?

Mr Banks: We looked at the models in Great Britain, Ireland, Australia, South Africa, Canada and America. There was real breadth.

Mr Harvey: That is good.

Mr Banks: I will be honest: the reason that we picked those jurisdictions was the availability of documents in the English language. We would have liked to have looked at models elsewhere, but the availability of information in English elsewhere was not where it needed to be to help us to research and understand how they worked in practice. That was our focus. We certainly learned a lot from looking at those different models. Some of that is reflected in the proposals that were brought together and consulted on.

Mr Harvey: That is very interesting. That is good.

I have divided rail safety into three sections: safety on the train; safety in the station, on the platforms and whatever; and safety on the track. Looking at all that, where do you see the biggest gaps in safety?

Mr Banks: The biggest gaps in safety? Wow. We are very fortunate in that we have a very safe network.

Mr Harvey: I think so, yes.

Mr Banks: The publications that we produce each year demonstrate that we often score particularly well when compared with other jurisdictions across Europe. There are things that could be better, but we have to remember that the baseline is very good. It is hard to pinpoint that. Things are done now around human and organisational factors. Very often, when things go wrong, it comes down to individual choice. It is about looking at how individuals are managed and trained, and at how such issues as fatigue and the environment in which people are working impact on decision-making. Those are the areas to focus on to make things safer than they are now. That would not necessarily be within the scope of the Bill, but, if you are asking me for a priority for safety, I will say that it would be reasonable to invest in that area.

Mr Harvey: I see some of the dates that are bandied about: there is the 1871 Regulation of Railways Act, for instance. Have we ever had a regulator in this jurisdiction?

Mr Banks: The Department has acted as rail safety regulator since 2006. Prior to that, it was Her Majesty's Railway Inspectorate.

Mr Harvey: OK. I appreciate you mentioning heritage railways and tramways, as those are very important as well. Thank you.

The Chairperson (Mr Martin): Harry finished off on heritage railways. I give a big shout-out to Downpatrick and County Down Railway and Giants Causeway and Bushmills Railway, in case they are listening in. The Downpatrick railway has been built to the Irish gauge. That goes all the way back to 1840, which is incredible.

Mr Harvey: It is very narrow.

The Chairperson (Mr Martin): I think that it is the only one in Northern Ireland. A big shout-out to those two organisations.

Mr McMurray: You stole my thunder, Chair.

The Chairperson (Mr Martin): I honestly did not do that on purpose. I am so sorry.

Mr McMurray: I was teeing up a mention of my constituency and Downpatrick and County Down Railway, and there goes the Chairman. Jeepers, oh. What a shocker. [Laughter.]

Thanks for the briefing. A lot of the main questions have been asked, so I will not go on too long. The Chair pointed out the sterling work of heritage railways. There is concern among heritage railways, not least Downpatrick and County Down Railway. Is a levy is the best way to ensure safety on heritage railways? That is the first question. I will come on to a few others, but that is the main thing.

Mr Banks: We need to, one, carefully consider whether a levy will be introduced; and, two, ensure that it is affordable if it is introduced. Levies apply in GB and, I believe, in Ireland, although the amounts might be different. It is around £5,000 in GB. A lot of heritage operators, particularly the smaller heritage operators, are charged for regulation by the ORR. I think it is a similar amount in Ireland. Five thousand pounds for such an organisation is a lot of money, but the benefits of proper regulation of the heritage sector by regulators that are more experienced in dealing with such organisations can only be beneficial for the heritage sector due to the safety standards that apply. We need to be very careful about how it is funded so that we do not drive heritage organisations out of business.

Mr McMurray: The point is that, for any charity, £5,000 goes a long way. Where would that £5,000 be better spent: on providing for safety or on paying a levy? I do not know if you want to answer that. Will we leave it hanging?

Mr Banks: We have to be very careful on the model. It is absolutely not the intention to endanger any of the organisations. It is about how to achieve equitable distribution of the cost of regulation.

Mr McMurray: We have already had the Henry VIII powers, and, to touch on what Mr Stewart said, there was the awfulness of last weekend. Are there things that might flow from that into railway regulations here?

Mr Banks: In terms of security on the railway?

Mr McMurray: Yes.

Mr Banks: It is possible. We have not looked at that as part of the scope of the Bill. It is unfortunate that those incidents happen. There are teams in Translink and the PSNI. It is difficult to say, without conducting research work in that area, whether or not there would be any benefit in having different, more or new regulation.

Mr McMurray: Thank you.

Mr McNulty: Thank you, Graeme, Suzanne and Linda. Your presentation was wonderfully interesting. We are all rail enthusiasts at heart. Brexit has a had a devastating impact across these islands on so many fronts. It has been most devastating for my four-year-old, who is a train enthusiast and is specifically interested in steam trains. Since Brexit, the Steam Enterprise train has not travelled North. Why is that? How can that situation be changed so that it can come North?

Mr Banks: OK. My understanding is that there are currently no qualified steam drivers to operate a steam service in Northern Ireland. There are no restrictions on whether or not the train is allowed to run — it is allowed to run — but there are simply no persons who are qualified to operate the train in Northern Ireland.

Mr McNulty: Surely the same train driver can cross the border.

Mr Banks: If he is licensed and certified and has the experience to operate the service, yes, but there currently is no such driver. That is my understanding.

Mr McNulty: Much to the disappointment of many four-year-olds — and 40-year-olds.

The Chairperson (Mr Martin): Justin, maybe you would consider taking a steam-driver course. You could be a steam-driver MLA: there must be votes in that down there. [Laughter.]

Mr McNulty: I would say there would be votes in that everywhere. We are all steam train enthusiasts at heart. Thank you for that clarification, Graeme.

On rail safety, what are the regulations around working in proximity of a railway line? What consents and permissions must be sought, and what are the consequences of proceeding with construction works in proximity of a railway line without having sought those permissions?

Mr Banks: Forgive me: I am not particularly familiar with the construction works regulations. If you are working in the vicinity of a railway line, you have to comply with the construction works regulations. If you are working on or near the line — within the boundary of the railway — the construction works regulations apply, as do the railway safety management regulations and the common safety method regulations.

Mr McNulty: OK. Thank you, Graeme.

The Chairperson (Mr Martin): I will take a quick scan round to see whether anyone else has any questions. I do not want to dispossess anyone of their chance. That is probably it.

The only other thing that I want to ask is whether the Committee can get a list of the consultees that were written to and of those that responded. Will it be possible to provide that to the Committee?

Ms Suzanne Breen (Department for Infrastructure): Yes, we will certainly have a look at that.

Mr Banks: Yes, absolutely.

The Chairperson (Mr Martin): OK. That is us. Thank you very much for your time. We really appreciate it. It was very interesting evidence. Thank you.