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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> West Coast Railway Company Ltd, R (On the Application Of) v Office of Rail and Road [2023] EWHC 3338 (Admin) (22 December 2023) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2023/3338.html Cite as: [2023] EWHC 3338 (Admin), [2024] WLR(D) 3, [2024] 4 WLR 12 |
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AC-2023-LON-001563 |
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The King (on the application of WEST COAST RAILWAY COMPANY LTD) |
Claimant |
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- and - |
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OFFICE OF RAIL AND ROAD |
Defendant |
____________________
Hugh Davies KC and Daniel Mansell (instructed by the Office of Rail and Road) for the Defendant
Hearing dates: 21st – 22nd November 2023
____________________
Crown Copyright ©
Mrs Justice Thornton :
Introduction
i) The ORR misinterpreted the Railway Safety Regulations,
ii) The ORR unlawfully fettered its discretion,
iii) The ORR failed to take relevant considerations into account,
iv) The ORR's decision was a disproportionate interference with the Claimant's right to the protection of property under Article 1, Protocol 1 of the European Convention on Human Rights,
v) The ORR's decision was irrational at common law given its disproportionate and draconian effect.
Legal and policy framework
The Railway Safety Regulations
"(1) no person shall operate, and no infrastructure controller shall permit the operation of any rolling stock on a railway if the rolling stock has hinged doors for use by passengers for boarding and alighting from the train (other than doors which have a means of centrally locking them in a closed position).
(2) Paragraph (1) shall not apply to rolling stock which at the relevant time is being exclusively operated other than for the carriage of fare paying passengers."
"(1) The relevant authority may, by certificate in writing, exempt any person or class of persons, railway, part of a railway or class of railways, train or rolling stock, or class of train or rolling stock from any prohibition imposed by these Regulations and any such exemption may be granted subject to conditions and to a limit of time and may be revoked by a certificate in writing at any time.
(2) Before granting an exemption the relevant authority shall consult such persons as it considers appropriate.
(3) In deciding whether to grant any such exemption the relevant authority shall have regard to –
(a) the conditions, if any which it proposes to attach to the exemption;
(b) any other requirements imposed by or under any enactment which apply to the case;
(c) all other circumstances of the case."
ORR policy and guidance
Railway Safety Regulations 1999: Guide to operation of Mark 1 type and hinged door rolling stock
"(ii) criteria for ORR granting an exemption from regulation 5 concerning hinged door rolling stock not currently fitted with Central Door Locking
1.1 ORR will consider granting an exemption from regulation 5 where the applicant can demonstrate that there are exceptional circumstances, for example:-
(f) where a robust evidenced case is provided setting out alternative automated door locking or single-action multi-door locking solutions that provide an equivalent level of safety protection to CDL or
(g) where fitment of CDL cannot be completed by the expiry of current exemptions.
4.5 ORR expects any such application to demonstrate the requirements set out in ORR document (Railway Safety Regulations 1999, Assessment and Guidance Manual for Exemption Applications) are met by either:
(a) Setting out how the means of controlling risks associated with the operation of hinged doors other than the use of CDL as required under regulation 5:
i. are in line with the hierarchy of controls within the Management of Health and Safety at Work Regulations 1999;
ii. provide an alternative engineering solution not relying on individual human action to lock each door, that ensures doors are secondarily locked in position at all times the carriage is in the course of its journey; and
iii. is supported by a quantified risk assessment to demonstrate as a minimum, equivalence to CDL as a means of risk control;
or:
where fitment of a form of CDL to rolling stock with hinged doors is not achievable by the 31 March 2023 date; that a time bound programme of work is in hand for such fitment.
In such cases a limited period of exemption may be considered to allow the programme to be completed, so long as other methods of secondary door locking are in place and being operated effectively in the meantime."
The Railway Safety Regulations 1999 Assessment and Guidance Manual for Exemption Applications
"7.4 The evidence provided should clearly demonstrate the ability of the applicant to safely manage the operations or section of infrastructure from which they have requested to be exempt from the regulations.
7.5 Where supporting evidence is provided and additional information or clarity is required, the assessor should contact the applicant directly and obtain this. Once this additional evidence is obtained, it should be uploaded to the Box case.
……
7.7 If the case team have any serious concerns about the quality of supporting evidence provided or are not convinced or confident that existing control measures or those to be implemented are suitable measures of risk control, a meeting should be held with the applicant to set out these specific concerns."
Factual background
The decision letters
"4.6.3. There is a lack of clarity in the documents provided by the Applicant. In our letter to the Applicant dated 8 November 2021, we requested a risk assessment that set out why CDL fitment is disproportionate to risks identified. To date, we have not received this.
4.6.4. We note that the Applicant did not use a traditional risk assessment template. The hazard analysis tables in Appendix A identified the potential cause of a hazard, the resulting effect and control measures. Whilst the tables lack expected risk scoring they do manage to communicate whether control measures are 'As Low as Reasonably Practicable' ('ALARP'). However, to give us the understanding of how risks are being controlled as far as reasonably practicable, we would expect to see a full risk assessment which considers all hazards for operating passenger charters, control measures to mitigate any foreseeable risks and suitable quantification of risk.
…….
4.6.8. In addition, we note that there have been incidents involving the Applicant's operated services directly related to the operation of slam doors and which the fitment of CDL could have been mitigated against. We set out further detail at paragraph 4.6.15 below. Investigations into the incidents would require a review of the risk assessments and control measures in place.
….
4.6.14. In addition, Appendix J (Passenger Train Operation and Passenger Safety, Issue 13, 15 January 2020) sets out how passenger services are to be worked. However, this document does not contain how the staff are trained in the operation of hinged door rolling stock. We also require evidence as to how the staff are subjected to ongoing monitoring and competence assessments when working such rolling stock.
4.6.15. Operating instructions should ensure processes are in place to mitigate risks ALARP. We note that the Applicant has had two incidents relating to PTI and train dispatch in recent years, one before the application was made and one since. We consider that the fitment of CDL could have actively prevented these incidents occurring. However, in any event, our expectation when incidents occur is that an investigation would be undertaken.
As part of that investigation, we would expect an operator to, for example:
- review risk assessments to ensure that they are still valid,
- check existing instructions are workable,
- issue a bulletin to advise of an incident and a reminder for crews to ensure they dispatch in accordance with process in place.
4.6.16. If the risk assessment and work instructions need changing, our expectation is that the operator acknowledges this and provides timescales for producing updates, briefing them out, etc. It is not clear from the documentation provided whether these actions were undertaken for the incident that occurred prior to the application being submitted and that risk assessments and existing control measures have been reviewed and updated post incident, thereby providing sufficient assurance that existing arrangements are suitable for controlling risks of operating passenger charters. Certainly we have not received any additional information pertaining to the incident that has occurred since the application was made. Should the Applicant submit a new application, we would expect to see documentation pertaining to the review of risk assessments, etc. for incidents that occurred prior to the application being made and any that have occurred since."
"4.3.9 there has been a requirement to fit CDL in accordance with Regulation 5 since 1 January 2005. …..we have been clear about our expectations to industry about compliance with this Regulation via the fitment of CDL and the issuing of exemptions since 2018. Both the Assessment Manual and the Application Guidance reiterate our expectation that CDL will be fitted, or an alternative engineering solution provided by operators. To date, the Applicant has provided neither.
4.3.10. We recognise that the cost of fitting CDL to vehicles would likely be a significant outlay for the Applicant especially in the current economic climate, with the rising cost of living and absence of revenue during the Covid pandemic. However, even though operators have had a significant period to fit CDL since the Regulations came into force, we are not requiring operators or owners to cease using vehicles until CDL is fitted. Instead, we have requested that operators provide timebound plans for how they will fit CDL for our consideration, which include any financial, engineering, etc. limitations which means fitment might take longer. Other operators or owners of vehicles that travel on the mainline are in the process of, or have, fitted CDL. Where fitment is not complete, plans for completion have been submitted to us for our consideration. We remain open to considering the need for exemptions whilst fitment takes place but, noting the contents of our Impact Assessment, to ensure that staff and the public can expect comparable levels of safety regardless of the operator of the train service we expect costs provided by applicants to be used as a means of setting out how long it may take for CDL to be fitted. Cost of fitment is not sufficient reason for CDL not to be fitted at all. As such, we would expect the Applicant to provide a clear breakdown of the costs as part of its programme to fit CDL to vehicles, ensuring that it is clear whether figures provided relate to those stored or stopped from operational traffic.
4.3.11. As set out in section 2 above, the Applicant operates at speeds of up to 100mph on the mainline throughout Great Britain, interacting with different operators and stopping at various stations. We do not agree with the Applicant's assertions set out in DLA's letter of 21 November 2022 that the impacts of fitting CDL are clearly disproportionate in the context of a "vanishingly small risk to safety". We consider that familiarity with slam door stock, including with passengers travelling on the Applicant's services, is decreasing, because it has been phased out by the franchised operators. This increasing lack of familiarity could in turn result in an increased risk of a door being opened when it is not safe, for example, when the train is in motion or where the train exceeds platform length.
4.3.12. We note the information provided at Appendix E. It appears that most incidents relate to Mark 3 coaches which have door handles but which also have CDL fitted. We do not consider that this information of itself supports a case that CDL should not be fitted. Instead, our expectation is that this type of information should be used by other operators (including the Applicant) to better identify risks and mitigations so to reduce the likelihood of these incidents occurring elsewhere.
4.3.13. The clear and objective sufficiency of the Applicant's current approach to maintaining safety in connection with using historic rolling stock, and in the context of the safety record of the historic charter service sector, does not refer to incidents of doors open in traffic and dispatch irregularities at stations involving services operated by the Applicant (see paragraph 4.6.15 below for further details). We consider that having rolling stock fitted with CDL would reduce the risk of such incidents occurring because if CDL is fitted then doors can only be opened by a competent person as it needs to be energised from the Guards panel.
4.3.14. We would also expect operators to adopt the control measures that the Applicant has cited even where CDL has been fitted."
"3.12. The Applicant is correct in that no attempt was made in the Impact Assessment to analyse the risk of a fatality as a result of the Applicant's operations, that was not its purpose. That was analysis that the Applicant should have undertaken to support their position that their existing controls offered equivalence in risk mitigation to fitment of CDL.
3.13. We have used the HSE document 'Reducing Risks Protecting People-(R2P2)' in our review. We have been proportionate in our approach and considered in our assessment the specific characteristics of the Applicant's operations, the risks associated and the robustness of the risk controls in place. Following the guidance in R2P2, at section 19, we have not taken into account the ability of the Applicant to afford fitment of CDL, as this is "not a legitimate factor in the assessment of costs" to mitigate risk. We reiterate the position in our Decision Letter at paragraph 4.3.10 that "[c]ost of fitment is not sufficient reason for CDL not to be fitted at all".
3.14. In our Assessment Manual we set out at paragraph 5.3 "a risk assessment is mandatory for all applications". …
3.15. Inspectors have assessed the risk assessments provided….. Their conclusions are that, in relation to the risk of a door opening in traffic, there is not a suitable and sufficient assessment of the hazard, associated risk, mitigation in place, and remaining risk following mitigation. Therefore, equivalence to CDL is not demonstrated. The reasons for this view are:
3.15.1. The risk assessment provided uses a 5x5 methodology for the assessment of risk and is typically referred to as a qualitative risk assessment. This method is based on scenarios, subjectivity, and knowledge. This method of assessing risk, whilst quick and easy to implement, has significant limitations. It is this methodology that the Applicant has used to conclude that a likely chance of a lost time injury occurring is low risk. We do not consider that this is a suitable and sufficient assessment of risk. Important amongst those limitations is the analysis of likelihood and severity and in this instance, for each scenario, the Applicant has reduced the severity of harm once mitigations are applied. We consider that the severity of harm is unlikely to reduce with the mitigations identified, only the likelihood.
3.15.2. Consistent with our conclusion at paragraph 4.6.4 of the Decision Letter where we explain that "…we would expect to see a full risk assessment which considers all hazards for operating passenger charters, control measures to mitigate any foreseeable risks and suitable quantification of risk", we require a Quantified Risk Assessment ('QRA') from the Applicant so that we can understand whether the control measures the Applicant is relying on to mitigate the risk of doors open in traffic are equivalent to the risk control provided by CDL. QRA is based on data, objectivity, and measurements. It is more detailed and reliable than qualitative risk assessment, but also more complex and time-consuming. Industry accepted tools such as fatality and weighted injuries ('FWI') have not been used to quantify the likelihood of a fatality occurring and therefore the Applicant is unable to demonstrate a suitable and sufficient analysis of risk and equivalence in risk control of the measures it has in place compared to fitment of CDL.
3.15.3. There is a statement stating the costs are disproportionate, but there is no evidence that the Applicant has sought specialist advice on the cost of fitting CDL to their fleet of trains. Whilst no calculation has been provided to support this statement, and notwithstanding our position at paragraph 3.15.1 above, an accurate assessment of the cost of fitment by the Applicant would help us to determine what would be a reasonable timescale for fitment of CDL by the Applicant.
3.15.4. There is no evidence of consideration of the hierarchy of risk control (principles of prevention, Management of Health and Safety at Work Regulations 1999- MHSWR). The control measures identified rely on the lowest means of control within this hierarchy, giving instructions to employees.
3.15.5. We reiterate our conclusions in the Decision Letter at paragraph 4.6.14 that the document "Passenger Train Operation and Passenger Safety, Issue 13, dated January 2020" provided in September 2021, "does not contain information on how the staff are trained in the operation of hinged door rolling stock" and we "require evidence as to how the staff are subjected to ongoing monitoring and competence assessments when working such rolling stock". With significant reliance on operational control measures, the Applicant has given no consideration given to human failure, such as distraction or coercion of Stewards - the latter occurring at Reading on 18 June 2022. The risk assessment gives a minimum Steward of one per coach, with the responsibility for four sets of doors, meaning their attention is divided between all four and the likelihood of distraction increased.
3.15.6. The presence of the British Transport Police should not be listed as a control measure as the Applicant cannot guarantee their presence or attendance.
3.16. As set out at paragraph 2.2 of this letter, we have considered the requirements of the Assessment Manual and Application Guidance. This is demonstrable via our assessment of the Applicant's application where we have considered the specific characteristics of the Applicant's operations, the risks associated with those operations and the robustness of existing risk controls so as to determine whether or not to grant an exemption from the Regulation 5 requirement. As part of this assessment, we have also assessed the evidence provided by the Applicant to establish whether there is equivalent or better risk mitigation, through its existing risk control arrangements compared with CDL.
3.17. We have determined that the Applicant has not demonstrated equivalence, or better, in risk control and therefore has not provided cogent justification and reasoning why it should not progress with fitment of CDL.
…….
3.21. In summary, and as detailed in the Decision Letter at paragraph 4.6.15, we consider that the incidents at both York and Reading indicate that having CDL fitted to vehicles would have mitigated against the risk of these occurring.
3.22. The York incident would have been mitigated because the door being open would have stopped the interlocking. The Guard would then have needed to establish why this was and in turn, have secured the open door. Until this occurred, the station duties and train dispatch process would not be complete.
3.23. The incident at Reading, whilst not an emergency situation, did have an impact on the safe dispatch of the train. We acknowledge that the Steward was put in a difficult situation (as detailed in footnote 11 of our Decision Letter), but they did not act in accordance with their training, by releasing the secondary door lock and opening the doors whilst the train was in motion. If CDL was fitted to the vehicles, it would have been the Guard that would have needed to energise CDL, rather than the Steward, to allow a door to be opened and one or more passengers to disembark."
Events postdating the decision
Discussion
Introduction - the role of the Court in judicial review
"In general, a court hearing a judicial review claim does not resolve disputes about primary fact. Typically, the court focuses on the procedure adopted before the decision was made; whether the decision-maker was entitled to conclude the information before him was sufficient; and whether the decision-maker identified and answered what in law were the right questions, approached and structured his task in a logically acceptable way, gave adequate and intelligible reasons and reached a decision that was open to him on the evidence." (R (F) v Surrey County Council [2023] EWHC 980 (Admin), Chamberlain J at §46).
Ground 1 (Misinterpretation of the Regulations)
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court."
(Underlining is the Court's emphasis).
Ground 2 (Fettering of discretion)
"3.16. ….we have considered the specific characteristics of the Applicant's operations, the risks associated with those operations and the robustness of existing risk controls so as to determine whether or not to grant an exemption from the Regulation 5 requirement. As part of this assessment, we have also assessed the evidence provided by the Applicant to establish whether there is equivalent or better risk mitigation, through its existing risk control arrangements compared with CDL." (Second decision letter dated 16 March 2023.)
Ground 4 (Article 1 Protocol 1 of the European Convention on Human Rights)
Legal framework
"(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
Submissions
An interference, prescribed by law, in pursuit of a legitimate aim
The proportionality of the interference
The general interest - the safety case
"Inspectors have assessed the risk assessments provided. Their conclusions are that, in relation to the risk of a door opening in traffic, there is not a suitable and sufficient assessment of the hazard, associated risk, mitigation in place, and remaining risk following mitigation. Therefore, equivalence to CDL is not demonstrated."
"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. … a national court ……will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies. The intensity of review involved in deciding whether the test of proportionality is met will depend on the particular circumstances."
Impacts on the Claimant
"4.3.10. We recognise that the cost of fitting CDL to vehicles would likely be a significant outlay for the Applicant especially in the current economic climate, with the rising cost of living and absence of revenue during the Covid pandemic. However, even though operators have had a significant period to fit CDL since the Regulations came into force, we are not requiring operators or owners to cease using vehicles until CDL is fitted. Instead, we have requested that operators provide timebound plans for how they will fit CDL for our consideration, which include any financial, engineering, etc. limitations which means fitment might take longer…"
The balancing exercise
Ground 3 (Failure to take account of relevant considerations)
Ground 5 (Irrationality)
Conclusion