The Channel Tunnel (Safety) Order 2007

Statutory Instruments

2007 No. 3531

CHANNEL TUNNEL

HEALTH AND SAFETY

The Channel Tunnel (Safety) Order 2007

Made

13th December 2007

Laid before Parliament

18th December 2007

Coming into force in accordance with article 1(1)

The Secretary of State for Transport makes the following Order in exercise of the powers conferred by section 11(1) (a) and (g), (2) (a) and (b), and (3) (a), (b) and (f) of the Channel Tunnel Act 1987(1).

Citation, commencement and extent E+W+S

1.—(1) This Order may be cited as the Channel Tunnel (Safety) Order 2007 and comes into force on the date on which the Regulation comes into force in accordance with article 77 of the Regulation. That date will be notified in the London, Edinburgh and Belfast Gazettes.

(2) [F1 This] this Order does not extend to Northern Ireland.

F2 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Word in art. 1(2) substituted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by virtue of The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(2)

F2 Art. 1(3) omitted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by virtue of The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(3)

Commencement Information

I1 Art. 1 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Interpretation E+W+S

2.  In this Order—

“the 1974 Act” means the Health and Safety at Work etc. Act 1974(2);

“the Fixed Link” means the Channel fixed link as defined in Article 1(2) of the Treaty;

“the Intergovernmental Commission” means the Commission established under Article 10 of the Treaty to supervise, in the name and on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic, all matters concerning the construction and operation of the Fixed Link;

“railway undertaking” has the same meaning as in article 1xx of the Regulation;

“Regulation” means the provisions set out in the Schedule (being a regulation drawn up by the Intergovernmental Commission, under Article 10(3) (e) of the Treaty, on the safety of the Fixed Link); and

“the Treaty” means the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of the Fixed Link signed at Canterbury on 12th February 1986(3).

Commencement Information

I2 Art. 2 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Regulation has the force of law E+W+S

3.  The Regulation has the force of law.

Commencement Information

I3 Art. 3 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Enforcement of the Regulation E+W+S

4.—(1) Subject to paragraphs (5) and (6), it is the duty of [F3 the Office of Rail and Road] to make adequate arrangements for the enforcement of the Regulation.

(2) Subject to paragraphs (4) to (6), the provisions of the 1974 Act specified in paragraph (3) (the “specified provisions”) apply for the purposes of the enforcement of the Regulation as if in the specified provisions—

(a) a reference to the “enforcing authority” was a reference to [F3 the Office of Rail and Road];

(b) a reference to the “relevant statutory provisions” was a reference to the Regulation and to the specified provisions; and

(c) a reference to “health and safety regulations” was a reference to the Regulation.

(3) The provisions of the 1974 Act referred to in paragraph (2) are—

(a) sections 19 and 20 (appointment and powers of inspectors)(4), excluding section 20 (3);

(b) sections 21 and 22 (improvement and prohibition notices)(5);

(c) section 23 (provisions supplementary to sections 21 and 22)(6), excluding section 23(6);

(d) section 24 (appeal against improvement or prohibition notice)(7);

(e) section 25 (power to deal with cause of imminent danger);

(f) section 26 (power to indemnify inspectors);

(g) section 28 (restrictions on disclosure of information)(8);

(h) sections 33 (1) (c), (e) to (h), (k) to (o), (2), (2A) and (3), 34 (1) (c) and (d) and (2) to (5), 35, 36 (1) and (2), 37 to 41 and 42 (1) to (3) (provisions as to offences)(9); and

(i) section 46 (service of notices).

(4) For the purposes of the enforcement of the Regulation section 33(1)(c) of the 1974 Act (offences) only applies to contraventions of—

(a) articles 13 iv, 15 iv, 16, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) [F4 ,55A, 55B] and 61 of the Regulation; and

(b) any requirement or prohibition to which a person is subject by virtue of the terms of or any condition or restriction attached to any—

(i) [F5 vehicle authorisation];

(ii) safety authorisation; or

(iii) Part B certificate;

given under the Regulation, including any deemed authorisation or Part B certificate referred to in articles 66, 73 or 74 of the Regulation.

(5) Paragraphs (1) and (2) do not apply in respect of the following articles of the Regulation—

(a) articles 6 and 7 (safety authority);

(b) articles 56 to 60 (access to training facilities); and

(c) articles 67 to 72 (investigations into accidents and incidents).

(6) Paragraphs (1) and (2) do not apply for the purpose of enforcing the obligations of the Intergovernmental Commission under the Regulation.

Textual Amendments

F3 Words in art. 4 substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 10(r)

F4 Words in art. 4(4)(a) inserted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(4)(a)

F5 Words in art. 4(4)(b)(i) substituted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(4)(b)

Commencement Information

I4 Art. 4 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Access to training facilities E+W+S

5.—(1) Any railway undertaking whose train drivers or staff performing vital safety tasks are denied the entitlements conferred by articles 56, 57(a) and 58 of the Regulation has a right of appeal to [F6 the Office of Rail and Road].

(2) In relation to training services to which article 59 of the Regulation applies, a railway undertaking which considers that the price charged for access to those services is unreasonable or discriminatory has a right of appeal to [F6 the Office of Rail and Road].

(3) A person who is denied any entitlement conferred on him by article 60 of the Regulation has a right of appeal to [F6 the Office of Rail and Road].

(4) The provisions of regulation 5(3) to (5) of the Railways (Access to Training Services) Regulations 2006(10) (appeal to the regulatory body) apply to any appeal made under this article as if reference to an appeal in those provisions included reference to an appeal under this article.

Textual Amendments

F6 Words in art. 5 substituted (16.10.2015) by The Office of Rail Regulation (Change of Name) Regulations 2015 (S.I. 2015/1682), reg. 1(2), Sch. para. 10(r)

Commencement Information

I5 Art. 5 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Civil liability E+W+S

6.—(1) Breach of a duty requirement or prohibition imposed by articles 13 iv, 15 iv, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) [F7 ,55A, 55B] and 61 of the Regulation is, so far as it causes damage, actionable.

(2) Subject to paragraphs (1) and (3) and to article 5 of this Order, nothing in this Order is to be construed as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty requirement or prohibition imposed by the Regulation.

(3) Paragraph (2) is without prejudice to any right to apply for judicial review which an aggrieved person may have under article 76 of the Regulation.

(4) Paragraphs (1) and (2) are without prejudice to any right of action which exists apart from the provisions of this Order.

(5) Any term of an agreement which purports to exclude or restrict the operation of paragraph (1), or any liability arising by virtue of that paragraph, is void.

(6) In this article “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).

Textual Amendments

F7 Words in art. 6(1) inserted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(5)

Commencement Information

I6 Art. 6 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Investigations into accidents and incidents E+W+S

7.  Nothing in this Order or the Regulation prejudices or affects the provisions of Part 1 of the Railways and Transport Safety Act 2003(11) or the Railways (Accident Investigation and Reporting) Regulations 2005(12).

Commencement Information

I7 Art. 7 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Power to impose charges E+W+S

8.  The Intergovernmental Commission may impose charges reflecting their administrative costs of processing applications for the following—

(a) Part B certificates as required by article 39(ii) of the Regulation, including their renewal under article 50 or modification under article 52 of the Regulation, and

(b) authorisation under article 61 of the Regulation for operating rolling stock on the Fixed Link.

Commencement Information

I8 Art. 8 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

Amendments to the Channel Tunnel (International Arrangements) Order 2005 E+W+S

F8 9.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F8 Art. 9 omitted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by virtue of The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(6)

Amendment to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 E+W+S

10.  For paragraph 1 (b) (i) of Schedule 2 to the Railways and Other Guided Transport Systems (Safety) Regulations 2006(13) (application for a safety certificate) substitute—

“(i) a copy of a current certificate issued to the applicant by—

(aa) the Office of Rail Regulation, other than a deemed safety certificate;

(bb) a safety authority in another member State;

(cc) a safety authority in Northern Ireland; or

(dd) the safety authority for the tunnel system within the meaning of section 1(7) of the Channel Tunnel Act 1987(14),

under provisions giving effect to article 10(2)(a) of the Directive which relates to an equivalent railway operation; or”.

Commencement Information

I9 Art. 10 in force at 4.7.2008 as notified in the London Gazette dated 14.7.2008, see art. 1(1)

[F9 Review E+W+S

11.— (1) The Secretary of State must from time to time—

(a) carry out a review of this Order,

(b) set out the conclusions of the review in a report, and

(c) publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how Directive 2004/49/EC of the European Parliament and of the Council on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification(8), and Directive 2008/57/EC of the European Parliament and of the Council on the interoperability of the rail system within the Community (Recast) (9), are implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by this Order,

(b) assess the extent to which those objectives are achieved, and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this article must be published before the end of the period of five years beginning with the day on which the Channel Tunnel (Safety) (Amendment) Order 2013 comes into force.

(5) Subsequent reports under this Order are to be published at intervals not exceeding five years.]

Textual Amendments

F9 Art. 11 inserted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), art. 2(7)

Signed by authority of the Secretary of State for Transport

Tom Harris

Parliamentary Under Secretary of State

Department for Transport

13th December 2007

Article 3

F10 SCHEDULE E+W+S REGULATION OF THE INTERGOVERNMENTAL COMMISSION ON THE SAFETY OF THE CHANNEL FIXED LINK

Textual Amendments

F10 Sch. content substituted (26.3.2013 as notified in the London Gazette dated 2.4.2013) by The Channel Tunnel (Safety) (Amendment) Order 2013 (S.I. 2013/407), Sch.

Explanatory Note

(This note is not part of the Order)

This Order brings into effect, for the Channel Tunnel, Directive 2004/49/EC of the European Parliament and of the Council of 29th April 2004 (O.J. No. L 220, 21.6.04 p. 16), (“the Railway Safety Directive”). It does so by giving the force of law to a Regulation transposing that Directive (“the Regulation”) made on 24th January 2007 by the Channel Tunnel Intergovernmental Commission, (under Article 10(3) (e) of the Treaty of Canterbury, Cm 1827), on behalf of the Governments of the United Kingdom of Great Britain and Northern Ireland and the French Republic. The text of the Regulation is set out in the Schedule to the Order.

Article 1 provides that the Order comes into force on the date of the later of the notifications by the two Governments of the completion of their necessary internal procedures to give the Regulation the force of law in the respective countries. That date will be notified in the London, Edinburgh and Belfast Gazettes. It provides that the Order does not extend to Northern Ireland except for limited purposes.

Article 3 provides that the Regulation has the force of law.

Article 4 makes the Office of Rail Regulation responsible for the enforcement of the Regulation, (except for those matters identified in paragraphs (5) and (6)). It applies for this purpose various enforcement provisions of the Health and Safety at Work etc Act 1974, such as the powers to appoint inspectors and for inspectors to serve improvement and prohibition notices and institute proceedings for their breach or other offences. It identifies those articles of the Regulation which, if contravened, would give rise to an offence under section 33(1) (c) of that Act (ie where a contravention of the Regulation would give rise to an offence without an inspector having first to serve an improvement notice or a prohibition notice and show that the terms of the notice had been contravened).

Article 5 provides various rights of appeal to the Office of Rail Regulation for the benefit of railway undertakings, or persons currently or previously employed as train drivers or staff performing vital safety tasks, should they be denied any entitlement conferred upon them by articles 56 to 60 of the Regulation, (rights to fair and non discriminatory access to training facilities and rights to receive copies of documents verifying training, qualifications and experience).

Article 6 makes various provisions concerning civil liability. In particular it provides that a breach of a duty requirement or prohibition imposed by certain articles of the Regulation is, in so far as it causes damage, actionable.

Article 7 provides that the Order does not affect the operation of Part 1 of the Railways and Transport Safety Act 2003, or the Railways (Accident Investigation and Reporting) Regulations 2005, as these measures already implement the accident and incident investigation requirements of the Railway Safety Directive and also apply to the Channel Tunnel.

Article 8 empowers the Intergovernmental Commission to impose charges reflecting their administrative costs for processing applications for certain certificates and authorisations under the Regulation.

Article 9 makes amendments to the Channel Tunnel (International Arrangements) Order 2005 which are consequential upon article 75 of the Regulation and the Railway Safety Directive.

Article 10 re-enacts paragraph 1(b) (i) of Schedule 2 (application for a safety certificate) to the Railways and Other Guided Transport Systems (Safety) Regulations 2006 with the addition of the Intergovernmental Commission to the list of safety authorities whose certificates may be recognised by the Office of Rail Regulation for the purpose of their consideration of applications for “safety certificates” under regulation 7 of those Regulations. This gives effect to article 38 of the Regulation.

The key provisions of the Regulation itself are briefly as follows—

(1) The Intergovernmental Commission is made the safety authority for the Channel Tunnel (chapter 2).

(2) The Concessionaires, who are the infrastructure managers of the Channel Tunnel, are to draw up and put into effect a safety management system which shows their ability to assume responsibility for safety. They may only manage and operate the Channel Tunnel if they possess a safety authorisation from the Intergovernmental Commission (chapter 3).

(3) A railway undertaking may not operate through the Channel Tunnel unless it has a safety certificate. Part A of the certificate provides confirmation of the acceptance of its safety management system by the Member State in which it first established its operations. Part B confirms acceptance by the Intergovernmental Commission of the measures taken by the railway undertaking to comply with the specific requirements necessary for safe use of the Channel Tunnel (chapter 3).

(4) Provision is made for staff to have access to necessary training (chapter 4).

(5) Provision is made for requiring rolling stock to be authorised by the Intergovernmental Commission before it may be operated through the Channel Tunnel where, although it is authorised to be placed in service in a Member State, it is not fully covered by relevant technical specifications for interoperability (chapter 5).

(6) Provision is made relating to the investigation of accidents and incidents in the Channel Tunnel (chapter 6).

(7) Transitional and miscellaneous provisions are made (chapter 7).

An impact assessment of the effect that this Order will have on the costs of business can be obtained from the Department for Transport, Great Minister House, 76 Marsham Street, London SW1P 4DR. A transposition note in relation to the implementation of the Railway Safety Directive by this Order can also be obtained from this address. They are also annexed to the Explanatory Memorandum published with this Order on the Office of Public Sector Information website www.opsi.gov.uk

(1)

1987 c. 53. The Department for Transport is the Government Department concerned with the subject matter of this Order. The Secretary of State for Transport being the Minister in charge of this Department is, in accordance with section 13(1) of this Act, the “the appropriate Minister” referred to in section 11.

(2)

1974 c. 37.

(3)

Presented to Parliament by the Secretary of State for Foreign and Commonwealth Affairs by Command of Her Majesty February 1986. Published as Treaty Series No. 15 (1992), Command Paper 1827. (Out of print but copies may be obtained from the British Library.)

(4)

Section 20(7) was amended by the Civil Partnership Act 2004 (c. 33), section 261(1) and Schedule 27, paragraph 49.

(5)

Section 22(1) and (2) was amended by the Consumer Protection Act 1987 (c. 43), section 3 and Schedule 3. Section 22(4) was substituted by the Consumer Protection Act 1987, section 3 and Schedule 3.

(6)

Section 23(4) was amended by the Fire and Rescue Services Act 2004 (c. 21), section 53(1) and Schedule 1, paragraph 44, and by S.I. 2005/1541, article 53(1) and Schedule 2, paragraph 9.

(7)

Section 24 (2) and (4) was amended by the Employment Rights (Dispute Resolution) Act 1998 (c. 8), section 1(2) (a).

(8)

Section 28(3) and (5) were amended by the Environment Act 1995 (c. 25), section 120 and Schedule 22, paragraph 30(6) and Schedule 24; by the Water Act 1989 (c. 15), section 190 and Schedule 25, paragraph 46; and by S.I. 2004/3363, article 5(1) and (2). Section 28(4) was amended by the Environment Act 1995, section 120 and Schedule 22, paragraph 30(6) (e). Section 28(6) was substituted by the Local Government Act 1985 (c. 51), section 84 and Schedule 14, paragraph 52; and was amended by the Education Reform Act 1988 (c. 40), section 237 and Schedule 13, Part 1; and by the Greater London Authority Act 1999 (c. 29), section 328 and Schedule 29, Part 1 paragraph 23. Section 28(9) was inserted by the Employment Protection Act 1975 (c. 71), section 116 and Schedule 15, paragraph 9. Section 28(9A) was inserted by S.I. 2004/3363, article 5(1) and (4). There are other amendments to section 28 not relevant to this Order.

(9)

Section 33(1) (c) was amended by the Employment Protection Act 1975 (c. 71), sections 116 and 125(3) and Schedule 15, paragraph 11, and Schedule 18. Section 33(1) (h) was amended by the Consumer Protection Act 1987, section 36 and Schedule 3. Section 33(1) (m) was amended by the Forgery and Counterfeiting Act 1981 (c. 45), section 30 and Part 1 of the Schedule. Section 33(2A) was inserted by the Offshore Safety Act 1992 (c. 15), section 4(2), (3) and (6). Maximum fine referred to in section 33(2) increased by the Criminal Law Act 1977 (c. 45), section 31 and Schedule 6 and converted to a level on the standard scale by the Criminal Justice Act 1982 (c. 48), sections 37 and 46. Section 33(3) was amended by the Offshore Safety Act 1992, section 4(4) and (6); and by the Magistrates Courts Act 1980 (c. 43), section 32(2).

(10)

S.I. 2006/598.

(11)

2003 c. 20.

(12)

S.I. 2005/1992, amended by S.I. 2005/3261 and S.I. 2006/557.

(13)

S.I. 2006/599, to which there are amendments not relevant to these Regulations.

(14)

1987 c. 53.