The Train Driver Licences and Certificates Regulations 2009 Consultation document
Contents
Introduction Background to the Directive Overview of GB proposals Part-by-part explanation and consultation questionnaire Response sheet
Annex 1: Draft Regulations
Annex 2: Directive 2007/59/EC
Annex 3: Licence and certificate templates (from draft ERA recommendations)
Annex 4: Impact assessment (DfT)
Annex 5: List of consultees
Annex 6: Government “Code of Practice” on consultations
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Introduction
The Train Driving Licences and Certificates Regulations 2009 are being introduced to implement the requirements of European Commission Directive 2007/59/EC (on the certification of train drivers) in Great Britain.
The Directive was adopted in December 2007 and must be transposed into UK law by December 2009.
The draft Regulations presented here for consultation have been developed with input from industry representatives. This formal consultation is open from 25 June to 16 September 2009.
This consultation document includes the full Regulations and provides a commentary to help explain the requirements. The consultation seeks your views on the areas where the Directive allows the UK some options in our implementation.
Please use the response sheet on page 22 to record your feedback. You do not have to answer all the questions for your response to be considered. The deadline for return of responses is 16 September 2009. We cannot guarantee that responses received after this deadline will be taken into account.
If you would like further copies of this consultation document it can be found at (web address) or you can contact Mike Franklyn below if you would like alternative formats (braille, audio CD, etc).
When responding, please state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of a larger organisation please make it clear who the organisation represents, and where applicable, how the views of members were assembled.
A list of organisations/stakeholders that we have sent this consultation to is included in Annex 5. If you have any suggestions of others who may wish to be involved in the consultation process please let us know.
This consultation has been produced in accordance with the principles of the Government’s "Code of Practice on Consultation" which are included at Annex 6.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document A summary of responses to this consultation will be published on our website: www.dft.gov.uk/consultations/closed after the consultation period has closed. Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004).
If you want information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence.
In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Department.
The Department will process your personal data in accordance with the DPA and in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.
Responses are welcome via email or post to:
Mike Franklyn Rail Network Strategy Division Rail and National Networks Group Department for Transport Zone 5/29 Great Minster House 76 Marsham Street London SW1P 4DR
Email: mike.franklyn@dft.gsi.gov.uk
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Overview of Directive 2007/59/EC on the certification of train drivers
As well as the following summary, the full text of the Directive is included in Annex 2.
Purpose of the Directive
The Directive forms part of the European Commission’s strategy to improve the efficiency and competitiveness of Europe’s railways. The key objectives of the Directive are to: make it easier for cross-border rail services to operate; create a more flexible labour market for train drivers; introduce common standards of driver and train crew competence across Europe; and increase public confidence in the rail system through the statutory licensing of train drivers.
The Directive was published in the Official Journal in December 2007. Member States, including the UK, have two years to make Regulations that implement the Directive in their national legislation. The outcome of this process will be: It will be easier for train drivers to move employment between member states and between railway undertakings. Physical and psychological fitness and general driving competence will be assessed against EU-wide minimum requirements. Driver licences and certificates will be recognised by all railway sector stakeholders Member states will respect the validity of licences issued in other member states A single certification model for training and competence management of drivers by train operators will be established. Management of driver competence will remain a key part of an operator’s safety management system.
Summary of Directive requirements
Under the Directive, train drivers must hold a licence stating they meet minimum requirements of fitness, basic education and professional skills. The licence is owned by the driver and is recognised across the European Union (EU). Member States must establish a register of licences issued.
The licence is to be supported by certificates describing the rolling stock the driver is competent to drive, the infrastructure they can drive on, and the type of driving they are allowed to do. The certificates are issued and owned by train operators. Train operators must keep a register of certificates held by their drivers.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
The Directive also requires Member States to introduce common requirements for the training and assessment (including medical assessment) of drivers – and to accredit or recognise those bodies or persons that carry it out.
Scope of the Directive
The Directive comes into effect in three phases: New cross-border drivers will need licences and certificates from June 2011; new domestic drivers from June 2013; and existing drivers from June 2018. The UK may seek a derogation that will exempt all domestic drivers for 10 years, subject to the industry presenting a robust business case.
The Directive permits Member States to exclude metros, trams, light rail and other ‘nonmainline’ railways (such as heritage operations) from driver licensing requirements. We have done so.
The Directive requires that the national safety authority for each Member State should act as the “competent authority” for train driver licensing and certification. In Great Britain, this authority is ORR.
Overview of proposals for Great Britain
General
The Regulations must transpose the requirements of the Directive into UK law and create powers for ORR to define processes for meeting them.
The Regulations will apply to Great Britain, which includes the Channel Tunnel up to its midpoint. The Department for Regional Development (Northern Ireland) will be preparing separate Regulations for Northern Ireland.
The Regulations do not describe in detail the administrative processes that drivers and train operating companies will have to go through to ensure they meet the requirements. These processes will be developed by ORR, working closely with industry, and will be explained in guidance.
The draft Regulations with full explanation are attached in part two of this document. They follow a necessarily detailed regulation-by-regulation format, but can be summarised as follows:
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Holding a train driver’s licence
The Directive requires our Regulations to create a licence that identifies the driver and attests to their fitness and general competence to drive trains. The licence is owned by the driver and is valid across the EU for 10 years subject to periodic medical assessments. It is the employer’s responsibility to ensure the drivers they employ hold valid licences where required.
Holding harmonised certificates of competence
Drivers are also required to hold certificates that identify the rolling stock they are competent to drive and the infrastructure they are competent to drive on. Employers own the certificates and are responsible for ensuring drivers hold valid ones. We consider that the task of training and maintaining competence of drivers is a matter for train operators’ safety management systems, so the only new requirements introduced by the Regulations relate to drivers having to hold documentation in a prescribed format.
The use of ‘recognised’ training and assessment bodies
The Directive requires that drivers are trained and assessed only by bodies recognised as able to do so by the competent authority (ORR in Great Britain). Reflecting that the vast majority of driver training and assessment is carried out by train operators, we are proposing a simple ‘recognition’ model where driver training and assessment arrangements are certificated by ORR as part of an operator’s safety management system assessment under the Railways and Other Guided Transport Systems (Safety) Regulations (ROGS). Independent training providers, who provide training outside a safety management system, will be able to apply for recognition against the same criteria which will be published on the ORR website by the time the Regulations come into effect.
The role of ORR
The draft Regulations give ORR a range of duties, some of which can be delegated (with some limitations) or contracted out to other bodies (including railway undertakings). These can include the issuing of licences, establishing and maintaining the licence register, and recognising and registering persons or bodies who carry out driver training and assessment – including medical and psychological assessment. The approaches we propose to take are described in the relevant parts of this document.
The Regulations give ORR some additional powers and obligations which cannot be delegated - mainly to enable us to carry out inspections, and if necessary to suspend or withdraw licences. We also act as a review or appeals body and will develop a transparent review or appeals process for matters relating to licence and certificate applications which will be published on the ORR website by the time the Regulations come into effect.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Draft Regulations and explanation
Part 1: General
Regulation 1 - Citation, commencement and effect
Although the Regulations will come into force in December 2009, the earliest date for compliance (for new drivers of cross-border trains and their employers) with the provisions is June 2011. (See Regulation 41 for full details of phasing in.)
Regulation 2 - Interpretation Important definitions to note:
“Department for Regional Development”. DRD will be responsible for driver licensing in Northern Ireland. They are mentioned in the GB Regulations so as to give licences issued by them the same status as licences issued by national safety authorities in other Member States.
“Employed”. This definition gives a wide meaning, including both permanent employees and contractors. It is designed to ensure that train operators who use an agency or contractor driver have the final responsibility for checking that driver is appropriately licensed and certificated (and hence is competent and fit). Agencies or contractors who provide such drivers will have a role to play in this consistent with their duty in ROGS to co-operate in ensuring the competence and fitness of safety critical staff (such as drivers). It will be in their commercial interest to be able to provide licensed drivers.
“Recognised doctor” and “recognised psychologist”. The Regulations require ORR to ensure an effective register of people qualified to carry out medical and psychological fitness assessments for train drivers is available. The references to “registered medical practitioners” (for medical fitness) and holders of BPS certificates (for psychological assessment) are intended to provide an appropriate minimum qualification for being on such a register. ORR will work closely with the industry and its occupational health providers to develop an appropriate process and criteria for achieving recognition.
“Railway undertakings” and “infrastructure managers” are the holders respectively of safety certificates or authorisations issued under ROGS, or the Channel Tunnel equivalent, (including the holder of a Part B certificate relating to the Channel Tunnel).
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The Train Driver Licences and Certificates Regulations 2009 Consultation document “Mainline railway” follows the definition in ROGS.
Regulation 3 - Application and extent
The Regulations apply in relation to the driving of trains on the main line railway in Great Britain. This means they apply to the Channel Tunnel up to its mid-point, but they do not apply in Northern Ireland.
We would like to limit the scope of the Regulations to these operations as we feel this best meets the intention of Article 2.1 of the Directive.
Consultation questions on Part 1 Q1. Do the Regulations cover agency and contractor drivers adequately?
Q2. Have we selected the appropriate minimum level of qualifications for assessors of physical and psychological fitness?
Q3. Should any of the excluded sectors be included in the scope of the Regulations? For what reasons?
Part 2: Licensing and certification of train drivers
Regulation 4 - Requirement for licences and certificates
This regulation requires drivers’ employers to ensure their drivers hold the relevant valid licences and certificates confirming their medical fitness and driving competence. This is in keeping with the principles set out in ROGS that employers are responsible for managing the competence and fitness of safety critical workers (such as drivers).
There is also a duty on drivers to hold the relevant documentation when on duty. (A template of the documents is at Annex 2.)
The regulation also describes the circumstances where the Directive allows a driver not to hold a certificate provided he is accompanied by an appropriately licensed and certificated driver on the train (subject to a transitional provision in regulation 41(8)). These Directive requirements are generally consistent with current practice, with the exception of the requirement at regulation 4(7) (b) to notify the infrastructure manager first. The industry will need to agree a suitable industry arrangement for meeting this requirement. Suggestions include agreeing with the infrastructure manager that one phone call to the route controller is adequate. For more complex routes involving several infrastructure
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The Train Driver Licences and Certificates Regulations 2009 Consultation document managers it could be easier to send an email. Some duty holders may schedule their training for the coming months and, if acceptable to both parties, the training schedule could be shared with the infrastructure manager in advance of the activity.
Regulation 5 - Licence and certificate characteristics
This regulation concerns the format of the licences and certificates, as prescribed by the European Railway Agency (their draft recommendation is reproduced at Annex 3) and described in more detail in Schedule 2.
Regulation 6 - Ownership of train driving licence
Licences are owned by drivers, not their employers.
Regulation 7 - Ownership of train driving certificate
Certificates are owned by the railway undertakings or infrastructure managers who issue them, not by drivers.
Consultation questions on Part 2 Q4. Have we provided the right balance of duties between drivers and their employers?
Q5. Has the impact assessment identified all the costs and difficulties for employers associated with drivers having to carry their documentation?
Q6. What do you think is the most sensible approach for train operators to meet the Directive requirement to “notify the infrastructure manager” when a non-certified driver is being accompanied?
Part 3: Conditions for obtaining licences and certificates
Regulation 8 - Conditions for obtaining a train driving licence
This regulation sets out the minimum requirements for obtaining a train driving licence.
The regulation also requires drivers to pass fitness and competence examinations that cover the areas set out in the annexes to the Directive. The medical requirements are included in
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The Train Driver Licences and Certificates Regulations 2009 Consultation document Schedule 1 of our draft Regulations, and the general competence requirements are included in Schedule 3.
We believe these are consistent with current equivalent assessments that already take place in the UK. All assessments must be carried out by recognised persons or bodies (see also Regulation 21 on the recognition process).
The regulation sets the minimum age for train driving at 20. Currently, Railway Group Standards set the minimum age at 21. If we wish to retain the higher age limit, we will need to provide justification for it.
Regulation 9 - Conditions for obtaining a train driving certificate
Similarly to Regulation 8 for licences, Regulation 9 sets out the minimum requirements for obtaining certificates and the subject areas that must be covered in assessments by recognised persons or bodies. Again, we believe the competence criteria described in the Directive and included in Schedules 4 and 5 of our draft Regulations are broadly consistent with what industry currently requires of drivers in Great Britain.
This regulation also ensures that new employers must take account of drivers’ past competence when making their assessment.
Consultation questions on Part 3 Q7. Is there any evidence to show that lowering the current UK minimum age (as set out in Railway Group Standards) from 21 to 20 will have a negative effect on safety?
Part 4: Procedure for obtaining licences and certificates
Regulation 10 - Procedure for obtaining a train driving licence
This regulation restricts the ability to receive applications and issue licences (including duplicates) to ORR or anyone we delegate or contract to do so (under Regulation 20). The regulation also allows for applications to be submitted on a driver’s behalf (e.g. by his employer).
The Regulations do not describe the licence issuing process, but they do require ORR to publish it. This is to allow ORR the flexibility to work with industry to establish a suitable process and review (and if necessary modify) it without changing the legislation.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document We believe that the recruitment and selection process is likely give employers sufficient information to prepare a licence application on a new driver’s behalf once they have decided to employ him. Train operators will need to be able to certify on the application that the driver has passed the relevant fitness and general professional competence assessment within the selection process.
Note that regulation 4(10) allows trainee drivers to drive under supervision so they can gain practical experience on the job without having to hold a licence or certificate. Similar provision is made in regulation 4(6) (e) for the holder of a licence and a certificate to drive on infrastructure not covered by the certificate in order to gain familiarity with the new route.
Regulation 11 – Procedure for obtaining a train driving certificate
The employing train operator must have the necessary arrangements in place to ensure his drivers achieve the required competence to obtain certificates. This regulation requires train operators to set up and publish a process within their safety management system for issuing and updating certificates.
Train operators only issue certificates to drivers they employ. The only reason infrastructure managers are included in the Regulations as issuing bodies is for their own drivers - they have no role in the certification of train operators' drivers. The oversight of train operators’ certification arrangements (which are part of their SMS) is a matter for the relevant competent authority not the infrastructure manager for the route. So ORR (or the IGC in the Channel Tunnel) must satisfy itself through the safety certification process that train operators’ arrangements are adequate.
The regulation also requires employers to have a review process in place in the event of a disagreement relating to a driver’s certificate(s). There is a right of appeal to an independent body if this review process does resolve the disagreement. As drafted, ORR is the appeals body for certificate issues. However, there may be other bodies who are better equipped to arbitrate on very specific issues relating to an individual driver’s employment. We are considering other possibilities, such as using employment tribunals or another industry body.
Consultation questions on Part 4 Q8. Is the proposed licensing process appropriate and realistic?
Q9. For certificates, is ORR the best body to deal with disputes between individuals and their employer?
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Part 5: Validity of licences and certificates
Regulation 12 - Validity and renewal of train driving licences Regulation 13 - Periodic checks to maintain validity of licence
Licences are valid for ten years (unless suspended or withdrawn by ORR) and are not linked to employment. Validity is subject to periodic fitness checks (by recognised persons or bodies) and participation in training as required by the driver’s employer’s safety management system. If periodic checks are failed or training is not completed, the driver is subject to reassessment by his employer and/or withdrawal/suspension of his certificate (note that employers cannot withdraw/suspend a licence).
The annexes to the Directive set the frequency for physical fitness assessments, but not for psychological assessment. While a detailed psychological assessment should be carried out when the driver is recruited, subsequent periodic general medical assessments should be sufficient to identify any potential psychological issues. We consider that a psychological assessment on appointment, followed by full reassessment only if deemed necessary following a periodic general medical or through existing management arrangements is sufficient to meet the requirements.
Regulations 14 and 15 - Validity and periodic checks to maintain validity of certificate
It remains the responsibility of train operators to periodically assess the competence of their drivers and to set the frequency of assessments – provided they at least meet the minimum frequency set out in Schedule 6. If competence checks are not passed, reassessment is required and certificates may be withdrawn by the employer who issued them.
Regulation 16 - Cessation of employment
Train operators must notify ORR when a driver ceases to work for them (to enable the register of licences to be kept up to date). Unlike licences, certificates cease to be valid when employment ceases – though drivers are entitled to a certified copy of their certificate(s) and other competence records when they leave employment.
Regulation 17 - Monitoring
Train operators who employ drivers are responsible for monitoring their competence and fitness, and for taking the appropriate action where competence or fitness is called into question.
The Directive is silent on what the appropriate action should be where competence is called into question, so regulation 17 provides a similar requirement to reassess and, if necessary,
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The Train Driver Licences and Certificates Regulations 2009 Consultation document withdraw certificates as is required when fitness is the problem. We believe this is consistent with the approach taken to monitoring the competence of safety critical workers in ROGS.
It is up to the employer to decide whether to notify the licence issuing body if they believe a driver’s fitness or competence might affect the driver’s suitability for holding a licence.
Consultation questions on Part 5 Q10. Is the proposed approach to psychological assessment sensible?
Q11. Have we identified the right action to be taken if a driver’s competence is called into question?
Part 6: Review of ORR decisions
Regulation 18 - Review of decisions of ORR Regulation 19 - Review process
This part requires ORR to provide decisions on licence applications or suspensions/withdrawals in writing and to set up and publish an internal review process to allow drivers or their employers to challenge that decision.
By the time the Regulations come into effect, ORR will develop clear guidance on the reasons why licences may be suspended or withdrawn. We are required to publish an internal review process. We believe that suspensions and withdrawals will be rare events. They are likely to occur only where we have evidence from a recognised assessor of competence or fitness (i.e. a recognised doctor, psychologist, examiner or examination body) that the holder no longer meets the conditions on which we issued the licence.
Should the driver or employer disagree with the outcome of the review, they may ultimately seek judicial review of the decision we make.
Consultation questions on Part 6 Q12. Do the Regulations contain sufficient right of appeal and review for decisions relating to licences?
Part 7: Delegation of functions by ORR
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Regulation 20 - Delegation of functions by the ORR
This regulation sets out the tasks that ORR may delegate certain functions.
It requires ORR to ensure that tasks it delegates or contracts out are undertaken properly.
Subject to the outcome of the regulatory impact assessment, ORR are proposing the following approach to each of the tasks (excluding those where we do not have the flexibility to delegate):
Issuing etc licences – We believe the efficiencies and savings generated by having a single issuing body are greater than the costs of any “time lag” involved in obtaining a licence from a third party. ORR will retain responsibility for issuing licences, though it may contract someone to process applications and/or manufacture documents.
Recognising trainers and examiners – We plan to recognise training and examination bodies rather than the individual trainers or examiners who work for them. Train operators will be able to achieve recognition through the assessment of their training and competence management arrangements in their safety management system, though the specific criteria and process for achieving recognition as a training and examination body will also be available to independent trainers and examiners (including where they are an independent individual). For train operators who operate in the Channel Tunnel, this recognition will be carried out by ORR inspectors working on behalf of the Channel Tunnel Intergovernmental Commission.
Register of recognised trainers, examiners, doctors and psychologists – ORR already has a register of certificated train operators and we will add bodies recognised through that process as training and examination bodies to that register. Keeping a register of doctors and psychologists is more problematic and we are seeking views on the best way of doing this. Bodies recognised by the Channel Tunnel Intergovernmental Commission will be added to the ORR register.
Register of licences – ORR will keep the register, but may contract out the development and maintenance of it.
Tasks associated with inspection – ORR will carry these out as part of our general inspection and investigation activity. ORR is reviewing its arrangements for inspecting the management of train drivers to ensure it undertakes sufficient activity to give it enough oversight of RUs’/IMs’ arrangements. In the Channel Tunnel, inspections will be carried out by ORR inspectors working on behalf of the Channel Tunnel Intergovernmental Commission.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document Consultation questions on Part 7 Q13. Is ORR well placed to act as licensing body or should operators or another industry body issue licences to drivers?
Q14. Does using inspection and safety certification give adequate oversight of the industry’s arrangements for certifying drivers?
Part 8: Registers and information
Regulation 21 - Registers of recognised persons
ORR must recognise various persons or bodies for the purposes of these Regulations, and must ensure that a register of these persons or bodies is kept. ORR does not have to keep that register itself and could ask a third party to do this.
The Directive allows us the option of setting up a system of formal accreditation for training and examination bodies. However, we believe that existing safety certification arrangements are sufficiently robust and that the potential cost and bureaucracy involved in a formal accreditation system cannot be justified.
Trainers and examiners – The vast majority of driver training and examination in Great Britain is carried out by or is the responsibility of train operators. We see no reason to change this arrangement. As part of ORR’s safety certification of train operators’ safety management systems under ROGS, ORR already assesses train operators’ arrangements for training and maintaining the competence of staff (including the arrangements for contracting it out to independent providers). We believe this provides sufficient scrutiny of driver training and assessment arrangements, so train operators will be able to achieve recognition as training and examination bodies via ROGS safety certification. ORR will review its assessment criteria relating to training and competence management to ensure they cover the ERA criteria for recognition as training bodies.
ORR will establish a limited certification process based on only these specific criteria for training and examination providers who are not also train operators.
Doctors and psychologists – We are working with the industry and the relevant professional bodies to better understand current practice and how an effective recognition/registration system can best be achieved.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Regulation 22 - Registers of train driving licences
ORR will be responsible for the register of licences issued in GB (though it may contract the task out). The format of the register and information it must contain will be prescribed by the European Commission, based on the recommendation of ERA. Their draft recommendation is at Annex 3.
Regulation 23 - Registers of train driving certificates
Train operators must keep registers of the certificates they issue to drivers. The format of the registers and the information they must contain will be prescribed by the European Commission, based on the recommendation of ERA. Their draft recommendation is at Annex 3.
Regulation 24 - Information for the register of train driving licences
Any railway undertaking to whom the licensing function may be delegated must provide the ORR with any information it obtains required to keep the register of licences up to date.
Regulation 25 - Information relating to the status of train driving licences
ORR must share information held in the register with any employer of drivers, the Northern Ireland competent authority and the competent authorities of other Member States.
We believe that current data protection legislation is sufficient to ensure the information is not shared inappropriately.
Regulation 26 - Information relating to train driving certificates etc. Regulation 27 - Information in relation to international train services
Train operators must share information held in their registers with ORR, any employer of drivers, the Northern Ireland competent authority and the competent authorities of other Member States.
We believe that current UK data protection legislation is sufficient to ensure the information is not shared inappropriately.
Information only has to be shared with foreign competent authorities or employers where it is relevant to international train services.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Consultation questions on part 8 Q15. Is the proposed approach to recognition of training and examination bodies sufficiently robust and workable?
Q16. Would you prefer a system of formal accreditation to be available? How could the costs of this system be met?
Q17. Is the proposed process accessible to independent training providers?
Q18. What do you think is the most sensible approach to ensuring that doctors and psychologists who carry out driver fitness assessments are recognised and registered to do so?
Q19. In your view, is existing data protection legislation adequate to ensure information about drivers is safeguarded and only shared when strictly necessary?
Part 9: Training and examination
Regulation 28 - Training content
Train operators are responsible for ensuring that training enables drivers to gain the knowledge and competence required in Schedules 4 and 5 of the Regulations. The training method should meet the requirements of Schedule 7. We believe the requirements, which are derived from the annexes to the Directive, are broadly consistent with what the GB railway industry currently requires of drivers.
Regulation 29 - Trainers
Trainers can be bodies or persons, though we do not intend recognising individual trainers within a training body (such as an RU). The recognition process is described at Regulation 21.
Training can be carried out by a training body that is recognised or accredited by any Member State for the purposes of the Directive. The exception is infrastructure knowledge (which includes route knowledge and operating rules) – this training must be carried out by a body recognised in GB.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document Note that this requirement will apply in other Member States subject to the Directive i.e. training on route knowledge and operating rules in France must be carried out by a training body that is recognised or accredited by the French National Safety Authority.
Regulation 30 - Cost of training
The Directive requires us to make sure measures are in place to ensure train operators do not get undue benefit from taking on a driver who has been trained at the cost of another train operator. These measures could include existing industry agreements or provision in drivers’ contracts.
If we can demonstrate that sufficient existing measures are in place, this Regulation may not be necessary.
If not, the draft Regulations will need to entitle the train operator who has trained the driver to a reasonable contribution to the cost of training from the train operator who next employs him and requires the ORR to produce guidance for industry on this issue.
Regulation 30 sets out the requirements in basic terms. But if this area does indeed need to be regulated this regulation would probably need to be developed further.
Feedback would therefore be helpful on what circumstances should trigger the reimbursement obligation (e.g. a driver leaves up to three years after completion of training, training to include training as a new driver or additional training for an experienced driver) the level of contribution appropriate (e.g. a fixed percentage contribution, which may decrease depending on time elapsed since training completed) and how best to ascertain the amount of the training investment made by the railway undertaking or infrastructure manager in providing the training.
Regulation 31 - Examinations
Drivers must pass examinations on general professional competence (for the licence) and specific rolling stock and infrastructure knowledge (for the certificate). Note that “examinations” does not necessarily mean sitting a formal written test in an exam room – practical examinations, riding in the cab, or the use of simulators will continue to be valid (and in some cases required) means of assessment.
Similarly to training, examinations must be carried out by recognised persons, or for route knowledge and operating rules persons or bodies recognised in Great Britain. The frequency of examinations is to be decided by the employing train operator – but must at least meet the minimum frequencies included in Schedule 6 of the Regulations.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document We see no reason why train operators cannot continue to assess their drivers as now (see Regulation on recognition of bodies). We believe conflict of interest can be avoided provided the individual who assesses the driver is not the same individual responsible for his training.
The Directive (Article 25) requires ORR to have a role in determining the content of examinations relating to the licence. We believe it is best for industry to set the requirements for its own drivers, and that we can ensure consistency through our monitoring and recognition of train operators’ arrangements.
Consultation questions on part 9 Q20. Are existing industry agreements sufficient to ensure that no undue benefit is accrued by a train operator who employs a driver who has only recently been trained by another train operator? If so, what are these arrangements and how do they ensure fairness? If not, how do you suggest regulation 30 should be developed?
Q21. Will you be able to meet the requirement of having a suitably independent assessment of drivers?
Part 10: Reviewing standards
Regulation 32 - Quality standards
The processes that support the Regulations must be subject to quality standards, except for those that form part of Train operators’ safety management systems. In practice, only the licence issue/updating process is outside the safety management system so is the only element that requires a quality standards system. ORR will publish the quality standards system we use in our guidance on the licensing process. If ORR contracts out the production and issue of licences, the quality standards are likely to form part of the contractor’s service level agreement.
Regulation 33 - Independent assessment
This requires us to carry out an independent evaluation of driver licensing in GB every five years, and for ORR and the industry to act on any problems that are identified.
Consultation questions on Part 10 Q22. Are the arrangements for ensuring quality standards sufficient?
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Part 11: Suspension and withdrawal of licences and certificates
Regulation 34 - Suspension or withdrawal of a train driving licence issued by ORR
This regulation allows ORR to suspend (temporarily) or withdraw (permanently) a driver’s licence issued in GB if we consider the driver no longer meets the requirements to hold it. This is subject to review/appeal.
The regulation also requires us to consider suspending/withdrawing a licence issued in GB if DRD or another Member State’s national safety authority ask us to do so.
Regulation 35 - Suspension or withdrawal of other train driving licences and prohibition on driving
As licences will be valid across the EU, some drivers operating in GB will hold licences that are not issued under the authority of ORR. This regulation obliges ORR to request a suspension/withdrawal of a licence by the relevant competent authority (including DRD for Northern Irish licences) should ORR consider the driver no longer meets the requirements to hold one. ORR may prohibit the driver from driving pending the other competent authority’s deliberations. In the case of licences from other Member States (but not Northern Ireland) we must inform the European Commission if we make such a request.
Note that other Member States’ authorities will have the same rights and obligations relating to drivers with GB licences operating on their territory.
Regulation 36 - Suspension or withdrawal of train driving certificates and prohibition on driving
Similarly, ORR can request that an employer reviews a driver’s certificate(s) if an inspection/investigation leads us to conclude they do not meet the requirements to hold it.
The train operator must take action within four weeks of ORR’s request, this could include reassessing the driver, suspending or withdrawing his certificate. ORR’s guidance on driver certification will set out this process in more detail.
We can prohibit a driver pending action by the employer, but we must inform the European Commission if we do so.
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Regulation 37 - Serious threat to the safety of the railway
This puts a range of actions at ORR’s disposal should we consider a driver creates an immediate safety risk. These actions would only be taken by ORR in extreme circumstances – and ORR must inform the European Commission if it takes them.
Regulation 38 - Appeal to the Commission
This requires ORR to appeal to the EC if we are not happy with decisions taken by the authorities of other Member States in response to a request we make under Regulation 36 or 37.
Consultation questions on Part 11 None
Part 12: Enforcement
Regulation 39 - Anti-fraud measures
The prescribed formats for the licence and certificates contain all the necessary anti-forgery measures. Establishing registers in keeping with existing data protection requirements should be sufficient to meet the requirements here.
Regulation 40 - Enforcement
These Regulations are not being made under the Health & Safety at Work etc Act 1974 (HSWA), so ORR does not automatically have HSWA powers available to it when enforcing these Regulations. However, as the HSWA regime is familiar to the duty holders and ORR’s enforcement officers, we have adopted the relevant HSWA powers for enforcement of these Regulations. We took a similar approach to enforcement of requirements made by the Railways (Interoperability) Regulations 2006.
Schedule 8 sets out the relevant offences
We believe that creating a bespoke approach to enforcement for these Regulations would add a layer of complexity with no net safety or convenience gain.
Consultation questions on Part 12 Q23. Is enforcement using HSWA provisions the best way of ensuring compliance by drivers and their employers with these Regulations?
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The Train Driver Licences and Certificates Regulations 2009 Consultation document
Part 13: Transitional provisions
Regulation 41 - Transitional provisions
The Regulations require the following groups of drivers to be licensed from the following dates: New cross-border drivers: from June 2011 New domestic drivers: from June 2013 All drivers: from June 2018
Existing train drivers (both cross-border and domestic) can continue to drive without licences or certificates until June 2018. Previous experience and competence of these drivers must be taken into account by ORR and train operators when issuing these drivers with licences and certificates for the first time.
ORR and train operators must ensure the gradual application of periodic checks, even for drivers not required to hold licences and certificates. We consider this requirement may not need to be transposed in the Regulations as existing periodic check requirements in GB probably satisfy it already. But feedback on this point is requested.
The Regulations are drafted on the basis that a ten-year derogation for domestic drivers in Great Britain does not exist. (If Great Britain makes an application for a derogation, we will not learn of the outcome until after the Regulations must be made.) If a derogation is granted by the EC, we will amend the Regulations so that they do not come into force for domestic drivers until 2022.
Consultation questions on Part 13 Q24. Do you have any comments on the transitional provisions?
Q25. Would regulating for periodic checking of driver competence / fitness for drivers not yet required to hold licences and certificates duplicate existing safety management system requirements for such drivers ?
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