Level Crossings - Part 8: An Interlude

By Mike Lunan

In the summer of 2010 a Joint Consultation Paper was issued by The Law Commission and The Scottish Law Commission into the whole area of Level Crossing (LX) law. I wrote about this in FNE 51 (September, 2010) as follows:

The problem arises principally because of the very large numbers of Acts of Parliament governing LX use. The majority are Special and Local Acts authorizing construction, mostly dating from early in Queen Victoria's reign, and thought to number about 7,000. As the number of new railways increased, Acts were passed in 1845 and 1863 seeking to bring uniformity of wording, but with only partial success. The ultimate modern Act would seem to be the Health and Safety at Work etc Act 1974 (HSWA), but the lack of clarity is the heart of the problem. It is further complicated by the fact that both access and property rights play a big part, and these are of course widely different north and south of the Border.

The Report was issued in September, 2013 and runs to almost 300 pages. The supporting documentation is another 500 or so, making it difficult to summarise in a brief article. The central Recommendation is that safety at LXs should be governed solely by HSWA, and all references to safety in earlier Acts are overridden by this. Thus anyone wishing to deal with an existing LX in any way has only one Act which will be relevant. Naturally there are a host of other Recommendations dealing with particular aspects of how safety is to be managed, but the over-arching principle is clear. In practice it will be easier (i.e., quicker and therefore cheaper) for Network Rail (or any other infrastructure owner, for example, a Heritage Railway) to alter the arrangements at a LX as a new mechanism (a LX Plan) will be created bringing all relevant parties together.

Much of the detail is concerned with User-Worked Crossings (UWCs) where a private individual (e.g., a farmer) has the right of access but in general the public does not. There are provisions for some UWCs to become publicly available in certain circumstances, often in connection with land access rights. It is wisely regarded as safer for ramblers to be able to cross the line at a UWC than to cross it unlawfully in the middle of nowhere. The Report goes further in the access area by recommending (para.5.72 for those interested) that "Scottish Ministers should have the power ... to [require] the creation of new LXs, provided that ... any such new crossing is necessary for the enjoyment of access rights ..." Thus it would be open to someone - the Ramblers' Association for example - to seek to persuade Scottish Ministers that a foot crossing in a remote area where climbers need to cross the railway ought to be created. This is new, and likely to be put to use quickly once any legislation is passed. If Scottish Ministers so decide NR must comply.

The drawback, of course, is that enacting the Report's Recommendations will require primary legislation at both Westminster and Holyrood. When the Report was discussed at the October Railway Industry Health and Safety Advisory Committee (RIHSAC, previously known as RIAC) meeting, I asked ORR whether parliamentary time was likely to be found. I was assured that both the ORR and DfT were very keen on getting this onto the Statute Book. "In this Parliament?" I asked. "Yes." As the Holyrood legislation would be through a fast-track process it is therefore likely that the Level Crossings Act will be in force throughout Great Britain by April, 2015.

Mike Lunan is a member of the RIHSAC and is a former FoFNL Convener.