The Train Driving Licences and Certificates Regulations 2010

PART 1 GENERAL

Citation and commencement

1.—(1) These Regulations may be cited as the Train Driving Licences and Certificates Regulations 2010.

(2) Subject to regulation 39 (transitional provisions), these Regulations come into force on 6th April 2010.

Interpretation

2.  In these Regulations—

“the 1974 Act” means the Health and Safety at Work etc Act 1974(1);

“the Agency” means the European Railway Agency established by Regulation (EC) No 881/2004 of the European Parliament and of the Council establishing a European Railway Agency(2);

“the Department for Regional Development” means the Department for Regional Development established by article 3(1) of the Departments (Northern Ireland) Order 1999(3);

“the Directive” means Directive 2007/59/EC of the European Parliament and of the Council on the certification of train drivers operating locomotives and trains on the railway system in the Community(4);

“employed” means engaged to do something whether under a contract of employment, or as an independent contractor or as a volunteer and related expressions must be construed accordingly;

“infrastructure manager” means the holder of a safety authorisation issued by—

(a)

the ORR in accordance with regulation 10 or 12 of ROGS; or

(b)

the Intergovernmental Commission pursuant to the requirements of article 27 of the Regulation set out in the Schedule to the Channel Tunnel (Safety) Order 2007(5);

“Intergovernmental Commission” means the Commission established under article 10 of the Treaty of Canterbury of 12th February 1986(6) 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 Channel Tunnel;

“mainline railway” has the same meaning as in regulation 2(1) of ROGS but includes the “tunnel system” within the meaning of section 1(7) of the Channel Tunnel Act 1987(7);

“ORR” means the Office of Rail Regulation;

“railway undertaking” means the holder of—

(a)

a safety certificate issued by the ORR in accordance with regulation 7 or 9 of ROGS; or

(b)

a Part B certificate issued by the Intergovernmental Commission pursuant to the requirements of article 39(ii) of the Regulation set out in the Schedule to the Channel Tunnel (Safety) Order 2007;

“recognised doctor” means a registered medical practitioner whose name appears in a register of doctors that the ORR has published, or caused to be published, under regulation 23(1);

“recognised examiner” means a person whose name appears in a register of examiners that the ORR has published, or caused to be published, under regulation 23(1);

“recognised psychologist” means a person who holds the qualification of the British Psychological Society Certificate in Occupational Testing (Level A) and whose name appears in a register of psychologists that the ORR has published, or caused to be published, under regulation 23(1);

“recognised trainer” means a person whose name appears in a register of trainers that the ORR has published, or caused to be published, under regulation 23(1);

“ROGS” means the Railways and Other Guided Transport Systems (Safety) Regulations 2006(8);

“safety authority” means an authority established in an EEA State, other than in the United Kingdom and other than the Intergovernmental Commission, in accordance with article 16(1) of 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 infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification(9);

“safety management system” in relation to a railway undertaking or infrastructure manager means the organisation and arrangements established by it, under regulation 5 of ROGS or articles 22 to 25 of the Channel Tunnel (Safety) Order 2007, to ensure the safe management of its operation;

“train” includes a locomotive, a shunting locomotive, a work train and a maintenance railway vehicle;

“train driving certificate” means a certificate, required by article 4(1)(b) of the Directive, indicating the rolling stock which the holder is authorised to drive and the infrastructure on which the holder is authorised to drive it;

“train driving licence” means a licence, required by article 4(1)(a) of the Directive, indicating the holder satisfies medical, educational and professional skills requirements for train driving.

Application and extent

3.—(1) Subject to paragraphs (2) and (3), these Regulations apply in relation to the driving of trains on the mainline railway.

(2) These Regulations do not apply in relation to the driving of trains on track which is temporarily closed to normal traffic for the purpose of maintaining, renewing or upgrading railway infrastructure.

(3) These Regulations do not extend to Northern Ireland.

PART 2 LICENSING AND CERTIFICATION OF TRAIN DRIVERS

Requirement for licences and certificates

4.—(1) Subject to paragraph (12), a railway undertaking, or infrastructure manager, must not deploy a person to drive a train unless that person is authorised to do so by a train driving licence issued by the ORR, the Department for Regional Development or a safety authority.

(2) Subject to paragraphs (7) and (12), a railway undertaking must not deploy a person to drive a particular type of train, or to drive a train on particular infrastructure, unless that person is authorised to do so by a train driving certificate issued by it.

(3) Subject to paragraphs (7) and (12), an infrastructure manager must not deploy a person to drive a particular type of train, or to drive a train on particular infrastructure, unless that person is authorised to do so by a train driving certificate issued by it.

(4) Subject to paragraphs (7) and (12), a person must not drive a train unless that person is authorised to do so by—

(a) a train driving licence issued by the ORR, the Department for Regional Development or a safety authority; and

(b) a train driving certificate for the type of train driven and the infrastructure driven on issued by the railway undertaking, or infrastructure manager, by whom that person is deployed to drive the train.

(5) Subject to paragraphs (7) and (12), a person who drives a train must have the required train driving licence and train driving certificate with them whilst driving it, or otherwise be able on board the train to satisfy the ORR, or their inspector duly appointed under regulation 38, that they are so authorised to drive the train by the required train driving licence and train driving certificate.

(6) Subject to paragraphs (7) and (12), a railway undertaking, or infrastructure manager, must take reasonable steps to ensure that a person it deploys to drive a train has the required train driving licence and train driving certificate with them whilst driving it, or are otherwise able to satisfy the requirements of paragraph (5).

(7) Subject to paragraph (8), and if a railway undertaking so decides, a train driver it deploys to drive a train on specific infrastructure need not be authorised by a train driving certificate to drive it on that infrastructure in the following cases—

(a) where a disturbance to railway services has occurred which requires the re-routing of the train or the maintenance of tracks, as specified by the infrastructure manager concerned;

(b) an exceptional one-off service which uses a historical train;

(c) an exceptional one-off freight service provided that the infrastructure manager concerned has agreed;

(d) the delivery of, or demonstration of, a new train; or

(e) to enable the training or the examination of the train driver.

(8) Paragraph (7) does not apply unless—

(a) subject to paragraph (9), another train driver, who holds a train driving licence and a train driving certificate relating to the specific infrastructure, accompanies and supervises the driver in the cab whilst the train is driven on that infrastructure; and

(b) the infrastructure manager of the specific infrastructure is given prior notice.

(9) Before the 29th October 2018, the reference in paragraph (8) (a) to “another train driver, who holds a train driving licence and a train driving certificate relating to the specific infrastructure” includes a train driver who neither holds, nor is yet required to hold, such a licence or certificate but whom the railway undertaking is satisfied has sufficient knowledge and experience of the specific infrastructure to give the necessary supervision.

(10) An infrastructure manager may not oblige a railway undertaking to make a decision under paragraph (7).

(11) A train driving licence issued otherwise than by the ORR on the basis of an exemption from the medical requirements set out in Schedule 1 is not valid in Great Britain, and the holding of such a licence will not satisfy the requirements of paragraphs (1) or (4)(a).

(12) A person who is training to be train driver (“the trainee driver”) may drive a train without being authorised to do so by a train driving licence and a train driving certificate provided that an authorised driver—

(a) accompanies and supervises the trainee driver in the cab whilst the trainee driver drives the train, and

(b) complies with the requirements of paragraph (5) as if the authorised driver was the driver of the train.

(13) Subject to paragraph (14), in paragraph (12) “authorised driver” means a train driver who is authorised to drive the train by a train driving licence and a train driving certificate issued by the railway undertaking, or infrastructure manager, for whom the train is driven relating to the type of train driven and the infrastructure driven on.

(14) Before the 29th October 2018, in paragraph (12) “authorised driver” includes a train driver who neither holds, nor is yet required to hold, a train driving licence or a train driving certificate but whom the railway undertaking, or infrastructure manager, for whom the train is driven is satisfied has sufficient knowledge and experience of the type of train driven and infrastructure used to give the necessary supervision.

Licence and certificate characteristics

5.—(1) The form of a train driving licence issued by the ORR, and a train driving certificate issued by a railway undertaking or infrastructure manager, under these Regulations must comply with the requirements set out in Schedule 2.

(2) In particular, a train driving certificate must show the categories of train which the train driver may drive comprising either or both of—

(a) Category A – shunting locomotives, work trains, maintenance railway vehicles and all other locomotives when they are used for shunting; and

(b) Category B – trains for the carriage of passengers or goods or both.

Ownership of licence

6.  A train driving licence is owned by the holder to whom it is issued.

Ownership of certificate

7.  A train driving certificate is owned by the railway undertaking or infrastructure manager which issues it to the holder.

PART 3 CONDITIONS FOR OBTAINING LICENCES AND CERTIFICATES

Conditions for obtaining a licence

8.—(1) The ORR may only issue a train driving licence to an applicant if it is satisfied the applicant fulfils the conditions indicated in paragraph (2), and must issue one if so satisfied.

(2) The conditions are that the applicant has—

(a) attained the age of 20 years;

(b) completed at least nine years’ education (primary and secondary);

(c) successfully completed basic training equivalent to at least level 3 referred to in Council Decision 85/368/EEC on the comparability of vocational training qualifications between the Member States of the European Community(10);

(d) passed the required medical examination;

(e) passed the required occupational psychological fitness examination; and

(f) passed the required general professional competence examination.

(3) For the purpose of paragraph (2)(d) the required medical examination means a medical examination that covers the criteria set out in paragraph 1 of Schedule 1, includes the minimum content set out in paragraph 2(1) of Schedule 1 and is conducted by or under the supervision of a recognised doctor.

(4) For the purpose of paragraph (2)(e) the required occupational psychological fitness examination means an examination that includes the minimum content set out in paragraph 2(2) of Schedule 1 and is conducted by or under the supervision of a recognised psychologist or recognised doctor.

(5) For the purpose of paragraph (2)(f) the required general professional competence examination means an examination that covers the objectives and requirements set out in Schedule 3.

Conditions for obtaining a certificate

9.—(1) A railway undertaking or infrastructure manager may only issue a train driving certificate to an applicant if it is satisfied the applicant holds a train driving licence and fulfils the conditions indicated in paragraph (2), and must issue one if so satisfied.

(2) The conditions are that the applicant—

(a) is employed by it to be a train driver;

(b) possesses the required language skills;

(c) has passed the required specific professional knowledge examinations; and

(d) has been trained by it in relation to its safety management system.

(3) For the purpose of paragraph (2)(b)—

(a) the required language skills means knowledge of the language relevant to the infrastructure to which the certificate is to relate that meets the language test requirements set out and referred to in paragraph 8 of Schedule 4; and

(b) to test this a railway undertaking or infrastructure manager may include a language component in the examinations referred to in paragraph (2)(c).

(4) For the purpose of paragraph (2)(c)—

(a) the required specific professional knowledge examinations means examinations of professional knowledge and competence relating to the rolling stock and to the infrastructure for which the certificate is sought (including route knowledge and operating rules and procedures) and covers the subjects set out in paragraphs 1 to 7 of Schedule 4 and in Schedule 5; and

(b) those examinations must comprise both theoretical and practical assessment including assessment of the driving ability of the applicant during driving tests on the infrastructure.

(5) For the purpose of paragraph (4)(b) simulators may be used for examining the application of operational rules and driver performance in particularly difficult situations.

(6) When determining whether to issue a train driving certificate the railway undertaking or infrastructure manager must take account of any document presented to it by the applicant that the applicant has obtained by virtue of regulation 16(4).

PART 4 PROCEDURES FOR OBTAINING LICENCES AND CERTIFICATES

Procedures for obtaining a licence

10.—(1) The ORR must have and publish on its website application procedures for the issue of a train driving licence, for the updating of the particulars of such a licence, for the renewal of such a licence and for the issue of a duplicate licence, and indicate on its website the availability of an appeal under regulation 35.

(2) All applications must be submitted to the ORR by the applicant, or an entity acting on the applicant’s behalf, and must be made in accordance with the published procedures.

(3) The ORR must within one month of receiving all necessary documents and information determine the application.

(4) Where satisfied that a train driving licence should be issued, updated or renewed the ORR must issue it as a single original licence.

(5) The ORR may issue duplicates of the train driving licence.

Procedures for obtaining a certificate

11.—(1) Each railway undertaking and infrastructure manager must have, as part of its safety management system, and publish on its website, application procedures for the issue of a train driving certificate, for the updating of the particulars of such a certificate, for the renewal of such a certificate and for the issue of a duplicate certificate, and indicate on its website the availability of an appeal under regulation 36.

(2) All applications must be submitted to the railway undertaking or infrastructure manager by the applicant and must be made in accordance with the published procedures.

(3) Each railway undertaking and infrastructure manager must update a train driving certificate issued by it whenever the holder has obtained additional authorisations from it relating to rolling stock or infrastructure.

(4) Where satisfied that a train driving certificate should be issued, updated or renewed the railway undertaking or infrastructure manager must issue it as a single original certificate.

(5) The railway undertaking or infrastructure manager may issue duplicates of the train driving certificate.

PART 5 VALIDITY OF LICENCES AND CERTIFICATES

Validity and renewal of licences

12.—(1) Subject to regulations 18 and 21 and paragraph (3), a train driving licence is valid for 10 years.

(2) The ORR must not renew a train driving licence unless it is satisfied that the holder complies with regulation 13, passes any examinations undergone in pursuance of it, and undergoes continuous training, as required by regulation 29(d), to ensure the driver’s general professional knowledge is maintained.

(3) A train driving licence ceases to be valid once it is suspended or withdrawn.

Periodic checks to maintain validity of licence

13.—(1) The holder of a train driving licence must pass periodic medical and psychological examinations meeting the requirements described in regulation 8(3) and (4).

(2) For the purpose of paragraph (1) periodic medical examinations means examinations conducted at the minimum frequency and at other times set out in paragraph 3 of Schedule 1.

Validity of certificate

14.  A train driving certificate ceases to be valid once it is suspended or withdrawn, or regulation 16(3) applies.

Periodic checks to maintain validity of certificate

15.—(1) The holder of a train driving certificate must pass periodic language and specific professional knowledge tests or examinations meeting the requirements described in regulation 9(3) and (4), and periodic tests relating to their employer’s safety management system.

(2) For the purpose of paragraph (1), the frequency of periodic tests and examinations must be as determined by the railway undertaking or infrastructure manager that issued the certificate in accordance with its safety management system, but must not be less than the minimum frequencies set out in Schedule 6.

(3) When the holder of a train driving certificate passes the tests and examinations required by paragraph (1) the certificate must be endorsed with a statement to that effect by the railway undertaking or infrastructure manager that issued it.

Cessation of employment

16.—(1) A railway undertaking or infrastructure manager must give written notice to the ORR when a person ceases to be employed by them as a train driver.

(2) Where a person is so employed as an independent contractor or volunteer, if they do not drive a train for the railway undertaking or infrastructure manager for a period of twelve months, their employment will be deemed to have ceased upon the expiry of that period if it has not otherwise been terminated.

(3) When a person ceases to be employed by a railway undertaking or infrastructure manager as a train driver, a train driving certificate issued by them in relation to that person ceases to be valid.

(4) If a train driving certificate becomes invalid by virtue of paragraph (3), the railway undertaking or infrastructure manager that issued it must provide the train driver with—

(a) a certified copy of it endorsed to indicate when it ceased to be valid; and

(b) a copy of all documents providing evidence of the driver’s training, qualifications, experience and professional competence relevant to train driving undergone, obtained or achieved by the driver whilst employed as a train driver by that body.

Monitoring

17.—(1) A railway undertaking or infrastructure manager must have a system for monitoring train drivers employed by them to check that the requirements of these Regulations which apply to them are adhered to.

(2) If the results of that monitoring call into question a train driver’s competence for the job, or the continuing validity of their train driving licence or train driving certificate, the railway undertaking or infrastructure manager must immediately take any necessary action which may include—

(a) informing the ORR of matters relevant to the continuing validity of the licence;

(b) requiring the driver to undergo the relevant examinations or tests referred to in regulations 13 or 15; or

(c) suspending or withdrawing the driver’s train driving certificate.

(3) A train driver who considers that his state of health calls into question his fitness to drive trains must immediately inform the railway undertaking or infrastructure manager by whom he is employed.

(4) A railway undertaking or infrastructure manager that becomes aware that a train driver employed by them has failed to comply with regulation 13 or 15, or has failed an examination or test required by those regulations, or that the health of the train driver has deteriorated to a point where the driver’s fitness to drive trains is called into question, must immediately take any necessary action which may include—

(a) informing the ORR of matters relevant to the continuing validity of the driver’s train driving licence;

(b) requiring the driver to undergo the relevant examinations or tests referred to in regulations 13 or 15; or

(c) suspending or withdrawing the driver’s train driving certificate.

(5) A railway undertaking or infrastructure manager must inform the ORR when a train driver employed by them has suffered work incapacity for a period of more than three months.

PART 6 SUSPENSION AND WITHDRAWAL OF LICENCES AND CERTIFICATES

Suspension or withdrawal of licences issued by the ORR

18.—(1) Without prejudice to regulation 21, if the ORR considers that the holder of a train driving licence issued by the ORR no longer satisfies a condition required for the holding of it, or decides to suspend or withdraw the licence pursuant to paragraph (3), the ORR must—

(a) suspend or withdraw the licence; and

(b) inform the holder and his employer of—

(i) the suspension or withdrawal;

(ii) the reason for it;

(iii) the availability of the appeal procedure under regulation 35; and

(iv) any procedure to be followed to seek reinstatement of the licence.

(2) If the ORR suspends or withdraws a train driving licence the holder must surrender it to the ORR.

(3) If a safety authority, the Department for Regional Development or the Intergovernmental Commission—

(a) informs the ORR that it considers the holder of a train driving licence issued by the ORR no longer satisfies a condition required for the holding of it, and

(b) gives the ORR a reasoned request for a review of the holder’s eligibility to hold the licence, or for the licence to be suspended or withdrawn,

the ORR must consider that request and, within four weeks, notify the safety authority, the Department for Regional Development or the Intergovernmental Commission, as the case may be, of its decision whether to suspend or withdraw the licence or take any other action.

Suspension or withdrawal of other train driving licences and driver prohibition

19.—(1) Without prejudice to regulation 21, if the ORR considers that the holder of a train driving licence issued by another safety authority, or by the Department for Regional Development, no longer satisfies a condition required for the holding of it the ORR must—

(a) inform the safety authority or the Department for Regional Development, as the case may be, of this view;

(b) give that authority or Department, as the case may be, a reasoned request for a review of the holder’s eligibility to hold the licence, or for the licence to be suspended or withdrawn; and

(c) notify the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission of the request.

(2) Pending any suspension or withdrawal of the licence, or other conclusion on the request, the ORR may prohibit the holder from driving a train in Great Britain.

Suspension or withdrawal of certificates and driver prohibition

20.—(1) Without prejudice to regulation 21, if the ORR considers that the holder of a train driving certificate no longer satisfies a condition required for the holding of it the ORR must—

(a) inform the railway undertaking or infrastructure manager which issued it of this view; and

(b) give that body a reasoned request for a review of the holder’s eligibility to hold the certificate, or for the certificate to be suspended or withdrawn.

(2) Upon receipt of such a request the railway undertaking or infrastructure manager must consider it and, within four weeks, notify the ORR of its decision whether to suspend or withdraw the certificate or take any other action.

(3) Where the railway undertaking or infrastructure manager concludes that the holder no longer satisfies a condition required for the holding of the train driving certificate, it must take appropriate measures which may include—

(a) requiring the holder to undergo the relevant tests or examinations referred to in regulation 15; or

(b) suspending or withdrawing the holder’s train driving certificate.

(4) Pending any suspension or withdrawal of the train driving certificate, or other conclusion on the request, the ORR may prohibit the holder from driving a train in Great Britain.

(5) If the ORR exercises the power in paragraph (4) it must inform the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission.

Serious threat to the safety of the railway

21.—(1) If the ORR considers that a train driver is a serious threat to the safety of the railways it must immediately take any necessary action.

(2) For the purpose of paragraph (1) any necessary action may include—

(a) requesting the railway undertaking or infrastructure manager to stop any train being driven by the driver;

(b) suspending or withdrawing the driver’s train driving licence, if issued by the ORR; or

(c) prohibiting the driver from driving a train in Great Britain.

(3) If the ORR takes any action under this regulation it must inform the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission.

Appeal to the Commission

22.—(1) If the ORR considers that a decision of a safety authority on a request made to it by the ORR under regulation 19 does not comply with the relevant criteria it must refer the matter to the Commission in pursuance of article 29(5) of the Directive.

(2) For the purposes of paragraph (1), “the relevant criteria” means any criteria set out in the Directive which are relevant to the decision.

(3) If the ORR has referred a matter to the Commission under paragraph (1), any prohibition imposed by the ORR under regulation 19 may be maintained in force until the matter is concluded.

PART 7 REGISTERS AND INFORMATION

Registers of recognised persons

23.—(1) The ORR must have, keep up to date and publish registers of—

(a) doctors,

(b) examiners,

(c) psychologists, and

(d) trainers,

recognised by the ORR as competent to carry out functions under, or referred to in, regulations 8, 30 and 31.

(2) Trainers and examiners may be individuals or bodies of persons corporate or unincorporate.

(3) Subject to paragraphs (4) and (5), the inclusion of a person in a register referred to in paragraph (1) must be based on the criteria of independence, competence and impartiality.

(4) Paragraph (3) does not apply if and to the extent that the Commission approves an exception under article 20(2) of the Directive.

(5) The criterion of independence referred to in paragraph (3) does not apply in respect of a trainer referred to in regulation 30.

Registers of licences

24.—(1) The ORR must have and keep up to date a register of train driving licences issued by it or on its behalf, and in particular the register should include details of any updating, renewal, amendment, expiry, suspension or withdrawal of any such licence, and record any loss, theft or destruction of any such licence.

(2) The register must contain the data required for each licence by paragraph 4 of Schedule 2, and it must be possible to find the data for each licence on the register by the use of a national number allotted to each train driver.

Registers of certificates

25.—(1) Each railway undertaking and infrastructure manager must have and keep up to date a register of all train driving certificates issued by it, and in particular the register should include details of any updating, renewal, amendment, expiry, suspension or withdrawal of any such certificate, and record any loss, theft or destruction of any such certificate.

(2) The register must contain the data required for each certificate by paragraph 4 of Schedule 2.

Information relating to the status of licences

26.  The ORR must, upon request, provide information on the status of train driving licences issued by it or on its behalf to safety authorities, the Department for Regional Development, the Intergovernmental Commission, the Agency or any employer of train drivers.

Information relating to certificates etc.

27.  Railway undertakings and infrastructure managers must, upon request, provide to the ORR any information relating to train driving certificates issued by them or any other functions carried out by them under these Regulations.

Information in relation to international train services

28.  Railway undertakings and infrastructure managers must, upon request, provide to the ORR, safety authorities, the Department for Regional Development and the Intergovernmental Commission information on the content of train driving certificates issued by them in relation to train drivers engaged on international train services.

PART 8 TRAINING AND EXAMINATION

Training content

29.  Each railway undertaking and infrastructure manager that employs train drivers must ensure that their training—

(a) complies with the requirements of, and takes into account the guidance given in, Schedule 7;

(b) includes instruction on train driving licences and covers the general professional knowledge, and meets the objectives, set out in Schedule 3;

(c) includes instruction on train driving certificates, and covers the professional knowledge, and meets the objectives, set out in Schedules 4 and 5; and

(d) meets the requirements for continuous training which—

(i) are set up to ensure that staff competencies are maintained; and

(ii) form part of the safety management system of the railway undertaking or infrastructure manager.

Trainers

30.—(1) Subject to paragraph (2), a person may only provide training intended to enable a another—

(a) to pass the examination required by regulation 8(2)(f),

(b) to satisfy the condition in regulation 9(2)(b), or

(c) to pass the examinations required by regulation 9(2)(c),

if that person is a recognised trainer, or a trainer accredited or recognised to act as a trainer in another Member State in accordance with the requirements of article 20 of the Directive.

(2) Training relating to infrastructure knowledge, including route knowledge and operating rules and procedures, may only be provided by a recognised trainer.

Examinations

31.—(1) The ORR must—

(a) set or approve the general professional competence examination referred to in regulation 8(2)(f);

(b) designate the examiner; and

(c) include guidance and information about the examination in the publication it makes on its website in pursuance of regulation 10(1).

(2) Each railway undertaking and infrastructure manager must—

(a) set or approve the specific professional knowledge examinations relevant to its rolling stock or infrastructure, as the case may be, as referred to in regulation 9(2)(c);

(b) designate the examiner for the examinations it sets or approves; and

(c) include guidance and information about these examinations in the publication it makes on its website in pursuance of regulation 11(1).

(3) Subject to paragraph (4), a person may only be designated as an examiner under paragraphs (1)(b) or (2)(b) if that person is—

(a) a recognised examiner; or

(b) an examiner accredited or recognised to act as a examiner in another Member State in accordance with the requirements of article 20 of the Directive.

(4) In so far as an examination set or approved under paragraph (2)(a) is for infrastructure knowledge evaluation, including evaluation of route knowledge and operating rules and procedures, the examiner must be a recognised examiner.

(5) The ORR, railway undertaking or infrastructure manager, as the case may be, must ensure that any examination referred to in paragraphs (1)(a) or (2)(a) which they set or approve are organised in such a way as to avoid any conflict of interest arising.

(6) Notwithstanding paragraph (5), a railway undertaking or infrastructure manager may designate a recognised examiner under paragraph (2)(b) who is also its employee, provided the examiner has not trained the candidate for the examination.

PART 9 REVIEWING STANDARDS

Quality standards

32.—(1) Subject to paragraph (2), the ORR must have a system to monitor and keep under continuous review the training, skills assessment and examination of train drivers who are required to hold train driving licences and train driving certificates under these Regulations, and the keeping of train driving licences and train driving certificates up to date, with a view to ensuring appropriate standards are achieved and maintained.

(2) Paragraph (1) does not require the duplication of any monitoring and review already required by and carried out under the safety management system of a railway undertaking or infrastructure manager.

Independent assessment

33.—(1) Subject to paragraph (2), within five years after this regulation comes into force, and thereafter within five yearly intervals, the Secretary of State must cause to be carried out, by an appropriately qualified and independent person, an assessment of—

(a) the procedures for the training, skills assessment and examination of train drivers, and

(b) the system for the issue of train driving licences and train driving certificates,

under these Regulations.

(2) Paragraph (1) does not require the duplication of any assessment already required by and carried out under the safety management system of a railway undertaking or infrastructure manager.

(3) The Secretary of State must provide the results of each assessment to the ORR, railway undertakings and infrastructure managers.

(4) The ORR, railway undertakings and infrastructure managers must give due consideration to the results of each assessment and any recommendations given in them and take any action reasonably appropriate to remedy any shortcomings identified.

PART 10 DELEGATION OF FUNCTIONS BY THE ORR

Delegation of functions by the ORR

34.—(1) Subject to paragraph (3), the ORR may delegate to any person the exercise of the following functions—

(a) dealing with and determining (including issuing any associated documents) applications under regulation 10 for—

(i) train driving licences,

(ii) their update or renewal, or

(iii) duplicates of them;

(b) recognising trainers and examiners under regulation 23;

(c) having, keeping up to date and publishing registers of persons recognised under regulation 23(1);

(d) having and keeping up to date a register of train driving licences under regulation 24.

(2) A delegation—

(a) may be made either wholly or to such extent as the ORR may determine;

(b) may be made either generally or in such cases or areas as the ORR may determine;

(c) may be made subject to such conditions and for such period as the ORR may determine;

(d) may be revoked by the ORR at any time;

(e) will not prevent the ORR from exercising the function delegated.

(3) The ORR may only delegate a function referred to in paragraph (1)(a) to a railway undertaking—

(a) for the purposes of that undertaking carrying out that function in relation to persons employed by the undertaking as train drivers or trainee train drivers; or

(b) if the function is not delegated exclusively to that undertaking.

(4) If the ORR delegates a function it must establish a system for monitoring how that function is carried out.

PART 11 APPEALS AGAINST DECISIONS OF THE ORR

Appeals against decisions of the ORR

35.—(1) A person concerned (“ the appellant”) may appeal to the Secretary of State against—

(a) a decision of the ORR referred to in paragraph (2); or

(b) a decision of a person duly delegated under regulation 34(1)(a) not to grant an application for a train driving licence, its update or renewal or for the issue of a duplicate of it.

(2) The decisions of the ORR referred to are decisions—

(a) not to grant an application for—

(i) a train driving licence,

(ii) its update or renewal, or

(iii) a duplicate of it;

(b) to suspend or withdraw a train driving licence; or

(c) to prohibit a person from driving a train in Great Britain.

(3) A person is concerned if that person is the applicant, the owner of the train driving licence, the person prohibited from driving or a railway undertaking or infrastructure manager which employs that person.

(4) The Secretary of State may, in such cases as the Secretary of State considers it appropriate to do so, having regard to the nature of the questions which appear to the Secretary of State to arise, direct that an appeal under this regulation will be determined on behalf of the Secretary of State by a person appointed by the Secretary of State for that purpose.

(5) Before the determination of an appeal the Secretary of State must ask the appellant, and the party against whose decision the appeal is brought, whether they wish to appear and be heard on the appeal and—

(a) the appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard;

(b) the Secretary of State must, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.

(6) The Tribunals and Inquiries Act 1992(11) applies to a hearing held by a person appointed in pursuance of paragraph (4) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on behalf of the Secretary of State by that person.

(7) A hearing held by a person appointed in pursuance of paragraph (4) is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council)(12).

(8) Without prejudice to the right of any person to make an application for judicial review—

(a) a determination by the Secretary of State, or by a person appointed to make a determination on the Secretary of State’s behalf, on an appeal brought under this regulation is binding on all parties affected by that determination;

(b) the Secretary of State, or person so appointed, may give such directions as they consider appropriate to give effect to the determination; and

(c) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

(9) The Secretary of State may pay to any person appointed to hear or determine an appeal under this regulation such remuneration and allowances as the Secretary of State may with the approval of the Treasury determine.

(10) A failure of the ORR, or a person duly delegated to determine applications on its behalf under regulation 34(1) (a), to make a decision on an application for a train driving licence, or for its update or renewal or for a duplicate of it, within one month of receiving all the necessary documents may be treated as a refusal of the application for the purpose of making an appeal under this regulation.

(11) Where under paragraph (5)(b) a party expresses a wish to appear and be heard, the Health and Safety Licensing Appeals (Hearings Procedure) Rules 1974(13), as respects England and Wales, and the Health and Safety Licensing Appeals (Hearings Procedure) (Scotland) Rules 1974(14), as respects Scotland, apply to any appeal under paragraph (1) as they apply to an appeal under section 44(1) of the 1974 Act (appeals), but with the modification that references to a licensing authority are to be read as references to the party against whose decision the appeal is brought.

PART 12 APPEALS AGAINST DECISIONS OF RAILWAY UNDERTAKINGS AND INFRASTRUCTURE MANAGERS

Appeals against decisions of railway undertakings and infrastructure managers

36.—(1) A person concerned (“ the appellant”) may appeal to the ORR against a decision of a railway undertaking or infrastructure manager referred to in paragraph (2).

(2) The decisions of a railway undertaking or infrastructure manager referred to are decisions—

(a) not to grant an application for—

(i) a train driving certificate, or

(ii) its update or renewal; or

(b) to suspend or withdraw a train driving certificate.

(3) A person is concerned if that person is the applicant in question or the holder of the train driving certificate in question.

(4) The ORR may, in such cases as it considers it appropriate to do so, having regard to the nature of the questions which appear to it to arise, direct that an appeal under this regulation will be determined on its behalf by a person appointed by it for that purpose.

(5) Before the determination of an appeal the ORR must ask the appellant, and the party against whose decision the appeal is brought, whether they wish to appear and be heard on the appeal and—

(a) the appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard;

(b) the ORR must, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.

(6) The Tribunals and Inquiries Act 1992 applies to a hearing held by a person appointed in pursuance of paragraph (4) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on behalf of the ORR by that person.

(7) A hearing held by a person appointed in pursuance of paragraph (4) is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council).

(8) Without prejudice to the right of any person to make an application for judicial review—

(a) a determination by the ORR, or by a person appointed to make a determination on the ORR’s behalf, on an appeal brought under this regulation is binding on all parties affected by that determination;

(b) the ORR, or person so appointed, may give such directions as they consider appropriate to give effect to the determination; and

(c) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

(9) The ORR may pay to any person appointed to hear or determine an appeal under this regulation such remuneration and allowances as the ORR may with the approval of the Treasury determine.

(10) A failure of a railway undertaking or infrastructure manager to make a decision on an application for a train driving certificate, or for its update or renewal, within one month of receiving all the necessary documents may be treated as a refusal of the application for the purpose of making an appeal under this regulation.

(11) Where under paragraph (5)(b) a party expresses a wish to appear and be heard, the Health and Safety Licensing Appeals (Hearing Procedure) Rules 1974, as respects England and Wales, and the Health and Safety Licensing Appeals (Hearing Procedure) (Scotland) Rules 1974, as respects Scotland, apply to any appeal under paragraph (1) as they apply to an appeal under section 44(1) of the 1974 Act (appeals), but with the modification that references to a licensing authority are to be read as references to the party against whose decision the appeal is brought.

PART 13 ENFORCEMENT

Anti-fraud measures

37.  The ORR, railway undertakings and infrastructure managers must take such steps as are reasonably necessary to avoid—

(a) the falsification of train driving licences and train driving certificates, and

(b) the tampering with the registers required by regulations 24 and 25.

Enforcement

38.—(1) It is the duty of the ORR to make adequate arrangements for the enforcement of these Regulations.

(2) Subject to paragraph (5), the provisions of the 1974 Act specified in paragraph (3) (“the specified provisions”) apply for the purposes of the enforcement of these Regulations as if in the specified provisions—

(a) a reference to the “enforcing authority” was a reference to the ORR;

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

(c) a reference to “health and safety regulations” was a reference to these Regulations.

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

(a) sections 19 and 20 (appointment and powers of inspectors)(15), excluding section 20(3);

(b) sections 21 and 22 (improvement and prohibition notices)(16);

(c) section 23 (provisions supplementary to sections 21 and 22), excluding section 23(3), (4) and (6);

(d) section 24 (appeal against improvement and prohibition notices)(17);

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

(f) section 28 (restrictions on disclosure of information)(18);

(g) sections 33(1)(c), (e) to (h), (j) to (o), 34(2), 36(1) and (2), 37 to 41 and 42(1) to (3) (provision as to offences)(19); and

(h) section 46 (service of notices).

(4) The mode of trial and maximum penalty applicable to each offence under section 33 of the 1974 Act so applied and listed in the first column of the following table are set out opposite that offence in the subsequent columns of the table.

Offence	Mode of trial	Penalty on summary conviction	Penalty on conviction on indictment
An offence under section 33(1) (c), (e), (f), (g), (j), (k), (l), (m) or (o).	Summarily or on indictment.	Imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale as it has effect from time to time (as if the offence was triable only summarily), or both.	Imprisonment for a term not exceeding 2 years, or a fine, or both.
An offence under section 33(1) (h).	Summarily only.	Imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale as it has effect from time to time, or both.
An offence under section 33(1) (n).	Summarily only.	A fine not exceeding level 5 on the standard scale as it has effect from time to time.

(5) A failure to discharge a duty placed on the Office of Rail Regulation by these Regulations is not an offence under section 33(1)(c) of the 1974 Act.

PART 14 TRANSITIONAL PROVISIONS

Transitional provisions

39.—(1) Regulation 4 comes into force—

(a) on the 29th October 2011 in relation to the driving of trains by a person who—

(i) is to drive trains both on the mainline railway and in at least one other Member State, and

(ii) has not driven trains both on the mainline railway and in at least one other Member State before that date, (excluding any such driving experience gained as a trainee driver);

(b) on the 29th October 2013 in relation to the driving of trains by a person who has not driven trains on the mainline railway before that date, (excluding any such driving experience gained as a trainee driver); and

(c) on the 29th October 2018 in so far as it has not already come into force under sub-paragraph (a) or (b).

(2) Subject to paragraph (3), regulations 5 to 18, 20, 23, 26 to 32, 35 to 37 and the Schedules come into force on the 6th April 2011.

(3) For the purposes of appeals against decisions of the ORR referred to in regulation 35(2)(c), regulation 35 comes into force on 6th April 2010.

(4) Regulations 24 and 25 come into force on the 29th October 2011.

(5) Where this paragraph applies, in determining a first application for a train driving licence the ORR—

(a) must take into account any train driving qualifications, experience and competencies acquired by the applicant prior to the application;

(b) in exceptional cases may waive, in whole or in part, the requirement in regulation 8(2)(d) if it thinks it appropriate to do so provided that the validity of any train driving licence issued on the basis of such exemption is limited to Great Britain;

(c) may waive, in whole or in part, the requirements in regulation 8(2)(e) and (f) if it thinks it appropriate to do so; and

(d) may require the applicant to pass other examinations or tests, or undertake further training, if it thinks it appropriate to do so.

(6) Where this paragraph applies, in determining a first application for a train driving certificate a railway undertaking or infrastructure manager—

(a) must take into account any train driving qualifications, experience and competencies relevant to the rolling stock or infrastructure in relation to which the certificate is sought, acquired by the applicant prior to the application;

(b) may waive, in whole or in part, the requirement in regulation 9(2)(c) if it thinks it appropriate to do so; and

(c) may require the applicant to pass other examinations or tests, or undertake further training, if it thinks it appropriate to do so.

(7) Paragraphs (5) and (6) apply to a first application for a train driving licence, or train driving certificate, made before the 29th October 2018.

Signed by authority of the Secretary of State

C.D. Mole

Parliamentary Under Secretary of State

Department for Transport

9th March 2010