Railway Safety Act 2005

Appointment of independent persons for assessments and audits.

49

49.—(1) The Commission shall, as soon as practicable after the establishment day, prepare and publish guidelines on the nature of the independence deemed appropriate by the Commission for the purposes of this section and shall on request, in so far as is reasonably practicable, provide guidance in individual cases to persons in relation to the appropriateness of their expertise and independence.

(2) The Commission shall establish and maintain a register (in this section referred to as a “register”) of persons who in the opinion of the Commission are qualified persons and the Commission shall make the register available to all F70 [ railway organisation ]s.

(3) A person who is of the opinion that he or she is a qualified person for the purpose of subsection (2) may apply to the Commission to be placed on the register and an application under this section shall contain such information as may be specified by the Commission from time to time.

(4) The Commission shall review the register from time to time to confirm if the persons named therein remain qualified persons for the purposes of this section and such persons shall provide, on request from the Commission in writing, all relevant information required by the Commission for the purposes of the review.

(5) Where the Commission is of the reasonable opinion that a person who has made an application under subsection (3) or who has provided information under subsection (4) is not, on the basis of such application or information, a qualified person for the purposes of this section, the Commission shall notify the person in writing of its opinion and the reasons for such opinion.

(6) A person who fails to provide information on receipt of a request from the Commission under subsection (4) may be removed by the Commission from the register and, where the Commission proposes to do so, it shall issue a notification under subsection (5).

(7) A person who receives a notification under subsection (5) may, within a period of 21 days from the date of the notification, make representations to the Commission on the notification.

(8) Where representations are submitted to the Commission in accordance with subsection (7), the Commission shall consider the representations and—

( a) if it is satisfied that the person is a qualified person, shall include or, as the case may be, retain the name of the person on the register, or

( b) if it is not satisfied that the person is a qualified person, shall refuse to include or, as the case may be, refuse to retain the name of the person on the register,

and the person shall be notified in writing of the decision of the Commission within 14 days of the receipt of the submission.

F71 [ (9) Where a railway organisation proposes to appoint a suitably qualified person for the purposes of section 42(9), 43(8), 45(2), 46(3)( b ), 50(1) or 50(6) , the railway organisation shall notify the Commission in writing of the proposal not later than 21 days in advance of the proposed appointment date. ]

(10) A notification under subsection (9) shall include—

( a) the name of the person proposed for conducting the assessment or audit, and details of his or her employer,

( b) where a person is not listed in the register, details of the expertise of the person concerned,

( c) any current or previous relationships between the F70 [ railway organisation ] and the said person, or between the F70 [ railway organisation ] and the employers of such person, and

( d) a statement from the F70 [ railway organisation ] that, in the opinion of the F70 [ railway organisation ], the person—

(i) is independent of the F70 [ railway organisation ] having regard to the guidelines published by the Commission under subsection (1), and

(ii) has appropriate expertise for the purposes of carrying out an appropriate assessment or audit.

(11) Where, on receipt of a notification under subsection (9), the Commission is not satisfied as to the expertise or independence of the proposed person, the Commission shall communicate this, and the grounds for same, in writing to the F70 [ railway organisation ] within 14 days of receipt of the said notification.

(12) On receipt of a communication under subsection (11), a F70 [ railway organisation ] may, within a period of 21 days from the date of the communication, submit observations to the Commission on the communication.

(13) Where observations are submitted to the Commission in accordance with subsection (12), the Commission shall consider the submission and, having regard to the observations contained therein, shall within 14 days of the receipt of the submission communicate in writing to the F70 [ railway organisation ] that—

( a) it is satisfied as to the expertise and independence of the person or persons being proposed by the F70 [ railway organisation ], or

( b) it is not satisfied as to the expertise and independence of the person or persons being proposed by the F70 [ railway organisation ].

(14) A person in respect of whom a communication is issued by the Commission under subsection (13)(b) shall not be considered to be a suitably qualified person for the purposes of this Act.

(15) A F70 [ railway organisation ] which appoints a suitably qualified person under this section shall bear responsibility in all aspects for the appointment and the remuneration of such a person.

(16) Notwithstanding subsection (15) insofar as it relates to remuneration, in the case of a heritage railway the Commission may, with the consent of the Minister and the Minister for Finance and if it deems it appropriate to do so, agree to be responsible for the remuneration of the suitably qualified person and, where it gives its agreement to do so, may charge a fee to the heritage railway to offset in part the level of such remuneration and the level of the fee shall be decided by the Commission.

(17) Where the Commission proposes to be responsible for the remuneration of the suitably qualified person, it shall, before giving its final agreement to do so, be of the opinion that the scale of the remuneration required is appropriate and a heritage railway shall provide all necessary information to the Commission to enable it to reach an opinion.

(18) In this section—

“qualified person” means an individual who, in the opinion of the Commission, has appropriate expertise of railway operations or of a particular class or aspect of railway operations or other expertise relevant to safety management systems or aspects thereof; and

“suitably qualified person” means a qualified person who, having regard to guidelines published by the Commission, is sufficiently independent of F70 [ railway organisation ]s or of a particular class of F70 [ railway organisation ] or of a particular F70 [ railway organisation ].

Annotations:

Amendments:

F70

Substituted (25.11.2013) by European Union (Railway Safety) Regulations 2013 (S.I. No. 444 of 2013), reg. 20(1)(d).

F71

Substituted (25.11.2013) by European Union (Railway Safety) Regulations 2013 (S.I. No. 444 of 2013), reg. 20(1)(i).

Editorial Notes:

E33

Previous affecting provision: subs. (9) substituted (17.02.2011) by European Communities (Railway Safety) Regulations 2011 (S.I. No. 70 of 2011), reg. 2(g); substituted as per F-note above.

E34

Previous affecting provision: subs. (9) amended (6.03.2008) by European Communities (Railway Safety) Regulations 2008 (S.I. No. 61 of 2008), reg. 9(4); substituted as per F-note above.