Complying with legislation

Changes have been made to the Railways (Interoperability) Regulations 2011 (as amended) (RIR 2011) by EU Exit Regulations, which take effect from 1 January 2021. The Department for Transport (DfT) has published the following guidance:

• Guidance on Railways Interoperability EU Exit Regulations
• Keeling Schedule providing an ‘at a glance’ view of the changes made to RIR 2011 by the EU Exit Regulations

RIR 2011 concerns the ‘placing in service’ of a structural subsystem after it has been designed and constructed, renewed or upgraded (and the placing on the market of interoperability constituents). The five structural subsystems are infrastructure, energy, trackside control-command and signalling, on-board control-command and signalling and rolling stock. The three functional subsystems are operation and traffic management, maintenance and telematic applications for passenger and freight services.

A person ‘placing in service’ a structural subsystem can be either a manufacturer or a ‘contracting entity’. (A contracting entity is a person who contracts or intends to contract with another person for that other person to design, construct, renew, or upgrade a subsystem). It can also be an authorised representative of these. Under RIR 2011 this person is known as the ‘project entity’.

Before completing the design stage or starting the manufacture stage of a structural subsystem (whichever is earlier), the project entity must engage an Approved Body or a Designated Body. The Approved Body assesses conformity of the subsystem with National Technical Specification Notices (NTSN) and the Designated Body assesses conformity with National Technical Rules (NTRs). RSSB proposes to the DfT, on behalf of the rail industry, standards that should be NTRs, which are published by the Secretary of State on the DfT website.

NTRs are contained in Railway Group Standards (RGSs), which cover the mainline railway in Great Britain. They are approved by Standards Committees and authorised by RSSB under the Railway Group Standards Code and in accordance with the Standards Manual. The Industry Standards Coordination Committee provides advice and guidance on matters such as reconciling uncertainty or conflict between Standards Committees, and the impact of any changes in legislation on the content of RGSs. 

NTRs can only exist if the purpose is to: 

1. fill an ‘open point’ or meet specific cases in an NTSN; or
2. maintain technical compatibility between existing assets that do not conform to NTSNs and new, upgraded or renewed assets that do. 

Some European Standards (ENs) are referenced in NTSNs, RGSs and Rail Industry Standards (RISs).

Before a structural subsystem can be ‘put into use’ the Office for Rail and Road (ORR) must grant an ‘authorisation for placing in service’ (APIS) for that subsystem. A structural subsystem is ‘put into use’ when it is first used on, or as part of, the rail system in the UK to transport passengers or freight, or for the purpose for which it was designed. This is after construction, upgrade or renewal. An APIS is granted by the ORR if: 

1. The project entity has properly drawn up a ‘verification declaration’ to show that it is satisfied that the essential requirements are met. The structural system must have a technical file and a certificate of verification prepared by the Notified Body and the Designated Body;
2. The project subsystem is technically compatible with the rail system (the network) into which it is being integrated; and 
3. The subsystem has been so designed, constructed and installed as to meet the essential requirements relating to it. (The six essential requirements are safety, reliability and availability, health, environmental protection, technical compatibility and accessibility.)

The Approved Body checks conformity of the subsystem with NTSNs and compiles a technical file. It is also responsible for assessing the interface between the project subsystem and the rail system, to the extent that such an assessment is possible. The assessment is based on information available in the relevant NTSN and any register or lists kept in accordance with:

• regulation 8 of RIR 2011 (Determination of type);
• regulation 35 of RIR 2011 (Register of infrastructure); and
• regulation 36 of RIR 2011 (National Vehicle Register).

Once an APIS has been granted, the subsystem can be put into use. It is then the responsibility of the railway undertaking or the infrastructure manager to manage, under its safety management system (SMS), the risks relating to the subsystem’s ongoing use.

Changes have been made to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 (ROGS) by EU Exit Regulations which take effect from 1 January 2021. The DfT has published guidance on railway safety from 2021 following these changes.

ROGS specify that a train cannot be operated on the mainline railway unless the railway undertaking (called a transport undertaking under ROGS) has established an SMS and obtained a safety certificate from the ORR. A person responsible for developing and maintaining mainline railway infrastructure or managing and operating a mainline station must have established an SMS. They must also obtain a safety authorisation from the ORR to manage or use it, or permit it to be used.

An SMS must be established so that, among other things, it:

• applies the relevant parts of common safety methods (CSM)
• controls all categories of risks
• meets certain requirements and contains basic elements.

The requirements and basic elements (see Schedule 1 of ROGS) include:

• Procedures to meet relevant technical and operational standards (this can include RGSs, RISs and company standards) or other requirements as set out in NTSNs and other relevant safety requirements. These include procedures to ensure compliance with these requirements throughout the lifecycle of any relevant equipment or operation.
• Procedures and methods for carrying out risk evaluation and implementing risk control measures when (a) there is a change in the way in which the operation is carried out, or (b) new material is used, which gives rise to new risks.

The CSM for risk evaluation and assessment (CSM RA) is used whenever there is a technical, operational or organisational change on the mainline railway that affects safety. If the change is not significant, the proposer of the change must keep a record of its decision. If the change is significant then the proposer must apply the risk management process under the CSM RA. The risk management process is based on the analysis and evaluation of hazards using one or more of the three risk acceptance principles. These principles are: application of codes of practice, comparison with similar systems (reference systems), and explicit risk estimation. “Codes of practice” can include RGSs, RISs and company standards (see section G8.3 of Rail Industry Guidance Note GEGN8646).

As part of the risk management process, the proposer must engage an assessment body to carry out an independent evaluation of how it applied the process, and the results of this evaluation.

The ORR has published guidance on the application of the CSM RA. Further guidance on the CSM RA in the context of managing change on the GB mainline railway can also be found on the ‘Management of change’ page of this website.

In addition, ROGS also require that:

• Duty holders work together to make sure the transport system is run safely (regulation 22) (see RSSB guidance on the duty of cooperation, parts 1 and 2, in the resources section below).
• Those responsible for the maintenance of a rail vehicle (known as an entity in charge of maintenance or ECM) have a maintenance system in place to ensure the vehicle is safe to operate. If the vehicle is a freight wagon, or if it is used for cross-border services through the Channel Tunnel, the ECM must have an ECM certificate. See ‘Certification of entities in charge of maintenance’ for more information.

Anyone operating a railway asset on the mainline railway in Great Britain will require a licence from the ORR under section 6 of the Railways Act 1993. Railway assets are any network; station; or train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever; or light maintenance depot.

An operator of freight and passenger train services requires a railway undertaking licence and the accompanying Statement of National Regulatory Provisions (SNRP). These are provided by the ORR under the Railway (Licensing of Railway Undertakings) Regulations 2005 (as amended).The licence ensures operators are fit to operate on a railway and have good repute, professional safety competence, financial fitness, and insurance cover for civil liabilities.

A licence or SNRP has many conditions that allow the holder to operate the railway asset. These include:

1. Compliance with applicable RGSs
2. Compliance with applicable RISs. This is unless the licence or SNRP holder has, following consultation with those likely to be affected, identified an equally effective measure which will achieve the purpose of the standard. The SNRP or licence holder must then adopt and comply with that measure.

See the ‘Applicability and relevance of RGSs and Rail Industry Standards’ section of the National Technical Rules page for information on the relationship between the licence condition and NTRs in RGSs. That confirms that RGSs are only compulsory when compliance with NTRs is required by RIR 2011. In all other scenarios, the applicability of RGSs and RISs is to be assessed and established as part of a robust risk assessment. Even when requirements in RGSs become compulsory as NTRs, there are occasions when projects require alternative measures to those in the standard. Standards Committees can approve an application for a deviation from an RGS if it is sufficiently complete and the deviation:

1. Enables the railway system and its subsystems to meet the essential requirements; and
2. Promotes the long-term best interests of the whole mainline railway system.

An application should be submitted only when an alternative has been identified and all parties affected by it have been consulted.

'Common Safety Methods’ (CSMs) describe how safety levels, achievement of safety targets and compliance with other safety requirements are assessed. Currently, there are five CSMs:

• CSM for assessing conformity with the requirements for obtaining a railway safety authorisation
• CSM for assessing conformity with the requirements for obtaining railway safety certificates
• CSM for supervision by national safety authorities
• CSM for monitoring to be applied by railway undertakings, infrastructure managers and entities in charge of maintenance
• CSM for risk evaluation and assessment (CSM RA)

Find out more about the ‘Common Safety Methods'.

Health and Safety at Work Act

The Health and Safety at Work etc Act 1974 (HSWA) provides for the duties of employers towards employees, so far as is reasonably practicable, to ensure their health, safety and welfare at work. Similar duties extend to people who are not employees, and to others who visit work premises. HSWA also provides for other duties, particularly around the use of articles and substances for use at work and the release of harmful emissions into atmosphere.

You can find more detail of these duties and other supporting information on the Health and Safety Executive website.

Construction Design and Management Regulations 2015

The Construction (Design and Management) Regulations 2015 (CDM Regulations) describe law that applies to a construction site during the period when construction work is being carried out.

For example, a station platform, usually subject to the requirements of a transport operator’s SMS, would become subject to CDM Regulations while any construction work is being carried out.