HC Deb 18 November 2003 vol 413 cc254-62WH
Mr. Michael Weir (Angus)

It will come as no surprise to the Minister that I originally proposed the debate in response to the actions of Network Rail, which unilaterally decided to close the vast majority of unmanned level crossings in Scotland. Strangely enough, since the debate was publicised I have received a considerable amount of correspondence, including e-mails, from all over the country describing various other problems with unmanned level crossings. However, I intend to confine myself to the original subject for debate.

The Minister of State, Department for Transport (Dr. Kim Howells)

I wish to say only that privately owned level crossings are being closed. They are not all unmanned level crossings.

Mr. Weir

I thank the Minister. The definition of what the railways own and what others own might form part of the argument that follows. It is certainly a problem in some areas.

The result of the action by Network Rail was severely to restrict access to many parts of the Scottish countryside. That has already had some crazy results, and is a problem apparent throughout Scotland. Examples spring to mind in Angus, Perthshire, Loch Awe, Helensburgh, Kincardine and the Highlands, to name a few. As some are very small, they inconvenience only a small number of people. However, some create severe difficulties.

In my own constituency of Angus, the level crossing at East Haven by Carnoustie was closed, with the result that the seaward side of the village was almost cut off. As the Minister knows, the only other access to the village is a low underpass that can take a motor car but little else. That level crossing was closed despite the fact that it had been in place since the construction of the railway in 1836. In effect, a crossing that had been in continuous use for 167 years was closed unilaterally.

In all, Network Rail has announced the closure of about 600 such level crossings in Scotland. As Alison Mitchell of the Ramblers Association in Scotland noted at the time: We are appalled at the dictatorial way in which Network Rail in Scotland is behaving. They have embarked on a major new policy initiative without any consultation of how this will affect other public interests. They have closed crossings without consultation with the emergency services, with local communities, local authorities or the organisations that represent walkers, cyclists or horse riders. When challenged they have made it clear that they have no intention of consulting and will reimpose their locks when local councils cut them off.

In my constituency, Network Rail gradually began discussing the situation only after much adverse publicity. It claimed that it had consulted the local ambulance service, but when the service was contacted it said that that was the first it knew about the closure of the crossing. In a letter to me, Network Rail stated: Whilst Network Rail is willing to consider special arrangements for access, this would be dependent upon the agreement of the landowner to allow access over his land to reach the level crossing. As has been pointed out, some of the crossings are on privately owned land, although there is a dispute about rights of access under other legislation. Network Rail went on to say: In order that Network Rail may give due consideration to special arrangements for essential access over the crossing we need details of essential services and frequency of access required to be provided by each resident in order that the proposed use can he risk assessed. An administration charge would be required to cover the costs associated with facilitating any future restricted access. In other words, Network Rail first tried to throw the matter back on the local farmer.

It is interesting to note that the local farmer in that case said that he had no objection to the residents using the level crossing. However, one has to ask why a company that is effectively owned by the Government can offer the landowner an effective veto. In that case, however, the problem appears to lie not with the landowner but with the Network Rail's attitude. Network Rail said that it would charge residents for the privilege of using the crossing, despite the fact that it had been in use for 167 years. Not even the much maligned Railtrack attempted that.

The problem arises partly because of the chronic underfunding of the railways over so many years, allied to the bizarre way in which the last Conservative Government chose to privatise the railways. Many of the level crossings cause little or no difficulty, but Network Rail seems to have taken the nuclear option of closing the lot. In many cases, the level crossings need investment; they need to be upgraded to bring them into the modern age, but that will cost money—in some cases, probably a great deal of money.

Lembit Öpik (Montgomeryshire)

The hon. Gentleman might be interested to know that I have been trying for seven years to get a bridge built to replace three level crossings on the farm of Mal Phillips, a constituent of mine, but even after all the fine words, not a single brick has been put in place to honour that promise.

Mr. Weir

I thank the hon. Gentleman for that intervention. I shall be making a similar point shortly.

I have to ask whether Network Rail is simply taking the easy way out: shutting the crossings means that it will not have to spend money on them. Given the Strategic Rail Authority's projected level of maintenance on many lines over the next few years, that is certainly a great suspicion.

When the right hon. Member for Tyneside, North (Mr. Byers) was the Secretary of State for Transport, I recall that his hon. Friends cheered when he announced the demise of Railtrack and that he was going to bring the rail infrastructure back into public ownership. He was not quite so popular later, when he sheepishly announced the compensation. I am sure the Minister will point out that Network Rail is an arm's-length company, but the Government are the only shareholder in that company, so it is effectively under their control. Why then, I ask the Minister, does his Department seem unable to exercise any control over its actions?

If money is not the reason for Network Rail's policy, what is the reason? Network Rail told me—again, I return to the Minister's intervention—that under the Arbroath and Forfar Railway Act 1836, which governed the original construction of the railway, the only authorised user was a local farmer. I pointed out to Network Rail that it was blindingly obvious that the main part of East Haven village was built after 1836, and that the only buildings of that age were a couple of fishermen's cottages. Most of the other houses are of Victorian design, with a few more modern ones. That raises the important point, which Network Rail has chosen to ignore, that access over the crossing must have been used with the knowledge or concurrence of its previous owners, particularly British Rail and Railtrack. In the 1980s, there was an agreement involving the rail company whereby new gates and a cattle grid were installed, so the rail company must have known 20 years ago that the level crossing was regularly being used. Anyone who has visited East Haven can see that it has been used for a very long time indeed. Why then did Network Rail decide that it could not be used?

I also took the matter up with the Minister's Department, but the response basically reiterated Network Rail's position. When challenged, Network Rail stated that there cannot be a right of access over the railway. The Minister may know that under Scots law, if an access is used for more than 20 years, a prescriptive right of access arises, irrespective of whether there is a legal right in any document. I do not know if the law is the same in England.

I did some research with the assistance of the House of Commons Library. Again, it appears that Network Rail's assertion does not hold water. I am told that section 57 of the British Transport Commission Act 1949 states that no prescriptive right can be acquired over a footpath on railway land that forms an access to a station or other specific railway premises mentioned in the section. Level crossings are not mentioned in that section. As the crossing is in farmland in the countryside, it seems that there is nothing to prevent a right of prescription arising over that part of the railway and the adjoining land. As the crossing at East Haven has been used by generations of villagers since 1836, they could have established such a right by prescription. The difficulty of establishing that right, as with all such rights, is that they would have to resort to an expensive and lengthy court action.

I ask the Minister why Network Rail, which is publicly funded, should be able to ride roughshod over the local community, who would have great difficulty in matching the deep pockets—our taxpayers' pockets—that would fund Network Rail in such a court action. It may well be that the unfortunate matter will result in court action because of Network Rail's attitude. Having said that, I must say that talks have been attempted over the months, to no avail as yet, to try to reach an accommodation.

I was interested to read in Scottish newspaper reports at the end of August that the Secretary of State for Transport—a Scottish MP—was to become involved, but that does not seem to have pushed matters forward to any extent. Network Rail had asked residents of the village of East Haven to fill in forms. Many of them did so, showing the access that they required. Network Rail's response was: It would appear from an initial review that the proposed levels of use are such that we could not accommodate special arrangements for access.

In one case, a resident requested permission to continue to use the crossing to take his caravan across the railway. That was refused by Network Rail, although that crossing had been made for many years, and we should take note of the Network Rail letter, which suggested that residents with caravans consider alternative arrangements, including the possibility of siting elsewhere. It was not clear whether that meant their caravans or homes, but either way Network Rail was unwilling to accede to a reasonable demand, even though there had been no incident involving the caravan during all the years that the crossing had been made.

We still do not have an answer to the question, "Why now?" The obvious answer, which I am sure the Minister will give, is one of safety, and Network Rail has stated that it is acting on safety grounds. No one wants to take a cavalier attitude to safety, but Network Rail has been cagey about the exact safety implications. I contacted the Health and Safety Executive to ask about any incidents on the level crossing, as Network Rail was being less than specific. The HSE's response reiterated much of what Network Rail had already stated, but then said that none of the alleged incidents were required to be notified to it. In effect, the only information it had was presented by Network Rail. It seemed that we were going round in circles.

Eventually, in a letter to the East Haven residents association in September—many months after the matter arose—the HSE listed incidents going back five years, all of them of a minor nature and some hotly disputed by the residents. In fact, the only recent incident on the stretch of line going through my constituency and into Dundee was at Broughty Ferry, where there was an alleged near miss on an automatic level crossing—not what we are discussing today.

Network Rail said to me in a letter: We have a statutory requirement to implement reasonable measures to prevent unauthorized use of level crossings. We have a corporate responsibility to fulfil this statutory requirement. Failing to do so would leave Network Rail potentially open to enforcement procedures and in the event of any incident potential prosecution. In other words, Network Rail is protecting its back in case there is an incident in the future. It is interesting that neither British Rail nor Railtrack considered it necessary to take such action.

The crux of the matter is that Network Rail is concerned that it could be found liable if there was an accident on the crossing. That brings me back to my earlier point about investment and costs and the point made by the hon. Member for Montgomeryshire (Lembit Öpik), who is no longer present. As I said, everyone wants a safe railway, but if safety is the only reason for pushing ahead, why is Network Rail not doing the same in England? Do the same safety rules not apply, or are the land access laws different?

As I said at the outset, I have tended to concentrate on the situation at East Haven because I am most familiar with it. My constituents are angry and upset at the actions of Network Rail. The advice that I received from the Minister that the local authority might have some funding that could be used to provide an alternative way over the railway is a non-starter, as anyone who is aware of the constraints on local authority finance would know.

That brings me back to the question of the original privatisation. Network Rail, as far as anyone is responsible for it, is a reserved matter, so the Scottish Parliament and Executive have no control over it or any of its actions. Yet when it acts in such a cavalier manner over the level crossings, they or Scottish local authorities are expected to come up with the funds to clear up the mess and consider alternatives to existing level crossings, sometimes at great expense. That is unacceptable. We are talking about traditional crossings that have existed for many years; if there is a genuine safety issue, it is one for Network Rail to deal with by upgrading and improving the crossings, not by taking away access rights.

As I said, the problem is appearing all over Scotland. I am sure that the Minister will tell me that Network Rail is an arm's-length company and that we are debating operational matters solely for it, but all over Scotland rights are being threatened by a company that is seen as under Government control. Action is required. Compromise may be possible for many of the crossings, and for others funding for alternatives is required and should come from central Government.

5.14 pm
The Minister of State, Department for Transport (Dr. Kim Howells)

I congratulate the hon. Member for Angus (Mr. Weir) on securing the debate. He raises an issue that is of considerable concern to some of his constituents and that has attracted debate throughout Scotland. I hope that I will be able to respond to some of his points, if not all of them.

Before I deal with that issue, I want to make some general points about Network Rail and its objectives, responsibilities and priorities, as it has a fundamental part to play in this discussion. I am only sorry that the hon. Member for Montgomeryshire (Lembit Öpik) disappeared after making a statement about a bridge for which he says he has waited seven years. We were blessed by another of his cameo appearances. He comes and goes like a bit-part actor in an amateur production in which, as usual, the theme is how the Government should spend more money and how the Liberals cannot possibly say how that money will be raised in the first place.

The hon. Member for Angus spoke about the Government's reluctance to spend money on the railways. We are, however, spending record amounts—billions of pounds—on railways, which I am sure he knows. Probably the largest single tranche of money ever spent on the railways in this country is being spent on upgrading the west coast main line, which will greatly benefit Scotland when it is finished. I was interested in why so many unmanned level crossings lacked adequate technology to guarantee safety and security. The costs involved are huge. I discovered that it costs £80,000 to install a phone at a level crossing, and upwards of £1 million to install flashing lights. These are huge sums.

5.17 pm

Sitting suspended for a Division in the House.

5.24 pm

On resuming

Dr. Howells

As I am sure the hon. Member for Angus is aware, Network Rail took over responsibility for the operation, maintenance and renewal of Britain's rail infrastructure in October last year, in the wake of Railtrack's entry into administration. Network Rail is a private, not-for-dividend company and is responsible to its membership: more than 100 organisations and individuals, representing railway industry stakeholders and the wider public. Level crossings are a serious concern for the company. In 2002–03, there were 27 train incidents at crossings, and 13 members of the public were killed: two of them were vehicle occupants and 11 were pedestrians.

I understand—and the hon. Gentleman, if my memory serves me, confirmed—that there are around 600 private level crossings in Scotland. Generally, they were established by 19th-century legislation authorising railway construction. Access to the crossings is normally restricted to authorised users, often farmers and landowners, and not granted to the general public. In carrying out a review of the use of the crossings, Network Rail has become aware that in a minority of cases there has been unauthorised use by members of the public. As a result, it has taken steps to restrict access: for example, securing crossings with lockable gates and ensuring that keys are issued only to authorised users.

The company has a legal duty to prevent unauthorised access to the operational railway under the Railway Safety (Miscellaneous Provisions) Regulations 1997. I would not wish to criticise the company for carrying out that duty, although the hon. Gentleman has given instances where, it seems, it could have consulted more rigorously. Nevertheless, safety on level crossings is an important issue. The Health and Safety Executive firmly supports the line that Network Rail is taking, particularly on unauthorised access to vehicles. Level crossings are potentially one of the most dangerous features of railway operation, as the incident near Evesham earlier this year illustrated all too clearly.

Network Rail has informed me that it has consulted Historic Scotland, VisitScotland, the National Farmers Union and the British Transport police on the measures that it is taking. Its policy of restricting the use of private level crossings in Scotland has attracted public criticism from ramblers groups and local residents who have been using the crossings for many years. In recent months, my Department has received representations calling for the Government to intervene, among them a letter from the hon. Gentleman. Representations have been made to the effect that in some circumstances, where access is available only on foot and where trains run relatively slowly and infrequently, the safety risks are relatively low and that restricting the use of the crossing is disproportionate.

I accept that Network Rail's actions may cause inconvenience to local residents and ramblers who may have become accustomed to using particular crossings, albeit that those were never intended for public use. I also accept that Network Rail's predecessors may have been less than diligent, as the hon. Gentleman reminded us, about enforcing those restrictions on the use of the crossings. However, I would be very reluctant to intervene on operational decisions made by Network Rail that are driven by safety considerations. At the end of the day, if there is no public right of way across a crossing, unauthorised users are trespassing, knowingly or unknowingly.

I would like to put the matter into context. According to Network Rail, its actions have proved contentious in only a relatively small number of cases. Network Rail could not close a private crossing without the agreement of the authorised crossing user. I am not sure whether the hon. Gentleman is aware of that, but it is a fact.

Mr. Weir

I appreciate what the Minister is saying, but at East Haven, irrespective of the original intended use of the level crossing, the crossing is a main access into the village. Given that the issue has developed over more than 150 years, does he consider that Network Rail has a duty in such circumstances to make an alternative access if it considers that a genuine safety issue is involved?

Dr. Howells

I can understand the hon. Gentleman's dilemma. I have his "Weir@Westminster" leaflet, which he distributes throughout his constituency. It contains a very fetching picture of him stretching his arm up to full length underneath a very low bridge. The notice on the bridge states: Low bridge headroom 2.2 metres". The answer would be for Angus council to build a more suitable access for the people who live in the village. If it considers that it cannot do that, the hon. Gentleman has pursued the right option. He has asked whether there might be a way to reach a better solution, perhaps using the existing private level crossing.

The problem to which the hon. Gentleman did not refer is that the crossing is one that crosses the main Dundee to Aberdeen line. More than 80 trains pass over it each day at speeds of between 60 and 100 mph. I have been informed that there have been two recorded near misses on the crossing and 11 recorded incidents of misuse. I have tried to dig into the matter to find out what the incidents consisted of, and I understand that one involved a minibus.

Mr. Weir

That is a disputed incident.

Dr. Howells

The hon. Gentleman said that the incident was disputed. However, if the minibus driver had not used the telephone to alert the signalman to the fact that he was about to cross the railway line, it would have become a serious problem. Trains travelling at 60 to 100 mph take a long time to stop. At speeds of 100 mph, it takes three quarters of a mile for a train to stop.

Let us consider the situation in which a person thinks that he can see well into the distance and decides that it is safe to cross the line. Well, that has happened on too many occasions. The number of casualties on level crossings remains high because people disobey and abuse the rules. I am not saying that that has happened on the level crossing under discussion, but the primary duty of the hon. Gentleman to his constituents on whose behalf he introduced the debate must be to ensure that they stay alive. The safety of people on level crossings is extremely important.

Mr. Weir

With respect to the Minister, I am not disputing that fact. However, whatever he says about the safety of the level crossing, I reiterate that it is an essential access into the village. The cost of a new road being built under the railway would be astronomical. It would involve heavy engineering works and disrupt the railway even more. Such costs could not be borne by any local authority. We are not talking here about a few ramblers going over a crossing—there are differences with all these crossings, and I accept that. We are talking about a main access into the village. That is the important difference.

Dr. Howells

I appreciate that the hon. Gentleman is worried about the access to the village. I am simply reiterating that the present access across the railway line is not safe. It might have been used for many years. It might be that Network Rail could have consulted local people better about what it intended to do. Nevertheless, Network Rail has a duty to ensure that people stay alive on its property. Trains are very dangerous vehicles when they travel at these kinds of speed. They cannot stop very quickly. I should have thought the hon. Gentleman would be very concerned about that. He argued that it would cost Angus council a lot to deepen the tunnel access under the railway or to construct a new road, yet he was keen to tell the Government that we should spend lots more money on the railways as if that money fell from heaven. Well, it does not.

Question put and agreed to.

Adjourned accordingly at twenty-five minutes to Six o'clock.