We should all have the expectation that when we get on a train, we will get off alive. The proliferation of crashes and derailments in recent years means that safety is a hot topic for those of us who use trains either for business or for leisure. How are our human rights affected? More importantly, how will our human rights affect the operators and companies involved in our railway system?
The Human Rights Act, brought into force in England on 2 October 2000, designates most of the companies dealing with train travel as 'public authorities'; this is because they are carrying out public functions i.e. public transport. As a result these companies now have obligations under the Human Rights Act.
Central Government, the Rail Regulator and the Health and Safety Executive are all public authorities. The companies providing public transport or other connected functions (e.g. contractors checking the rails) are also public authorities for the performance of these functions.
Article 2 of the European Convention on Human Rights (now a part of the Human Rights Act) states that "Everyone's right to life shall be protected by law". In 1978 the Commission of the Strasbourg Court stated that "this [Article 2] enjoins the state not only to refrain from taking life intentionally but, further, to take appropriate steps to safeguard life".
In 1998 the Commission considered that Article 2 imposes an obligation on a state to take adequate measures to protect life.
Prior to 2 October, all the case law surrounding this principle was heard in Strasbourg at the European Court of Human Rights; our courts will now have to take this case law into account, but not necessarily follow it.
Does privatisation of our railway system affect any potential claims? Its 'raison d'être' is now to make profits for the shareholders of the companies in the railway business. However, in the eyes of the law it is still performing a public service on behalf of the state and is therefore still viewed as a public authority, responsible for the issue of safety on the tracks and its other operations. Their status as a public authority means that they must comply with section 6 of the Human Rights Act - "it is unlawful for a public authority to act in a way which is incompatible with a Convention right".
In addition, Article 2 is a convention right so it reaffirms the fact that they have to uphold and safeguard a person's right to life.
The key issue here is how much weight is given to the issue of safety when companies take decisions about how to run their services. Lack of investment by Government and policy and operational decisions by companies are matters that will no doubt be investigated in the aftermath of the litany of rail crashes that have occurred in the last five years. With the implementation of the Human Rights Act in England, their investment and policy issues will have to consider safety and the right to life of users and of staff (and thus of the families left behind).
The responsibility does not just lie with the Government, the regulator, Railtrack and the rail companies. It also includes the contractors they employ to perform their public duties for them. Those companies are doing a public duty. Do they now have human rights obligations? Will this knowledge affect how they behave, e.g. how they check the track? Steps have been taken to close down lines for checks after the Hertfordshire train crash. Grave inconvenience has been caused to travellers and commuters. Tragic crashes have occurred before but have not produced such a reaction from the industry.
Until 2 October, claimants had to produce evidence of negligence to prove a cause of action for a personal injury claim. This will continue to be the case, but 'victims' will now also be able to make human rights claims. A 'victim' for the purposes of a human rights claim is a person who is actually and directly affected by an act or omission of a public authority. 'Victims' who lose their lives, or those acting on their behalf, can call all the public authorities involved to account. This means that those authorities will have to reconsider their priorities and liabilities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.