I8C68C69 Part I The Provision of Railway Services
Pt. I (ss. 1-83) modified (18.12.1996) by 1996 c. 61, s. 21(6)
Pt. 1 (ss. 1-83) applied (S.) (27.4.2006) by Edinburgh Tram (Line Two) Act 2006 (asp. 6), s.78 (with s.75)
Pt. 1 (ss. 1-83) applied (S.) (8.5.2006) by Edinburgh Tram (Line One) Act 2006 (asp. 7), s.79 (with ss.76, 84)
Introductory
1 The Rail Regulator. . ..
F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2F2Passengers’ Committees.
F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I14 General duties of the Secretary of State and the Regulator.
C1C79C831
F5the Office of Rail RegulationF6shall have a duty to exercise the functions assigned or transferred to F7it under or by virtue of this Part F8or the Railways Act 2005 that are not safety functions in the manner which F7it considers best calculated—
F9zb
to promote improvements in railway service performance;
a
otherwise to protect the interests of users of railway services;
b
to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that F7 it considers economically practicable;
F10ba
to contribute to the development of an integrated system of transport of passengers and goods;
bb
to contribute to the achievement of sustainable development;
c
to promote efficiency and economy on the part of persons providing railway services;
d
to promote competition in the provision of railway services F11for the benefit of users of railway services;
e
to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;
f
g
to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance.
C832
Without prejudice to the generality of subsection (1)(a) above, F5the Office of Rail RegulationF14shall have a duty, in particular, to exercise the functions assigned or transferred to F7it under or by virtue of this Part F8or the Railways Act 2005 that are not safety functions in the manner which F7it considers is best calculated to protect—
a
the interests of users and potential users of services for the carriage of passengers by railway provided by a private sector operator otherwise than under a franchise agreement, in respect of—
i
the prices charged for travel by means of those services, and
ii
the quality of the service provided,
F15. . . ; and
b
the interests of persons providing services for the carriage of passengers or goods by railway in their use of any railway facilities which are for the time being vested in a private sector operator, in respect of—
i
the prices charged for such use; and
ii
the quality of the service provided.
C833
F5the Office of Rail RegulationF16 shall be under a duty in exercising the functions assigned or transferred to F7it under or by virtue of this Part F8 or the Railways Act 2005 that are not safety functions—
a
to take into account the need to protect all persons from dangers arising from the operation of railways, F17. . . ; and
b
to have regard to the effect on the environment of activities connected with the provision of railway services.
C83F183A
Subsections (1) to (3) above shall have effect in relation to the Secretary of State as in relation to F5the Office of Rail Regulation except that in their application to the Secretary of State—
a
F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
c
the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to the Secretary of State under or by virtue of the provisions of Part 4 of that Act other than section 39.
C83F223B
Subsections (1) to (3) above shall have effect in relation to the Scottish Ministers as in relation to the Office of Rail Regulation except that, in relation to those Ministers—
a
the references in each of the subsections to functions transferred or assigned to those Ministers under or by virtue of Part 1 of this Act include only the functions transferred or assigned under or by virtue of sections 16A to 16G of this Act; and
b
the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to those Ministers under or by virtue of Part 4 of that Act.
C833C
Subsections (1) to (3) above shall have effect in relation to the National Assembly for Wales as in relation to the Office of Rail Regulation except that, in relation to that Assembly, the references in each of the subsections to functions transferred or assigned under or by virtue of Part 1 of this Act or the Railways Act 2005 include only the functions transferred or assigned to the Assembly under or by virtue of the provisions of Part 4 of that Act of 2005 other than section 39.
C834
The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part F23or the Railways Act 2005 , to promote the award of franchise agreements to companies in which qualifying railway employees have a substantial interest, “qualifying railway employees” meaning for this purpose persons who are or have been employed in an undertaking which provides or provided the services to which the franchise agreement in question relates at a time before those services begin to be provided under that franchise agreement.
C835
F5the Office of Rail Regulation shall also be under a duty in exercising the functions assigned or transferred to F7it under this Part F24or the Railways Act 2005 that are not safety functions—
F25a
to have regard to any general guidance given to F7it by the Secretary of State about railway services or other matters relating to railways;
F26aa
to have regard to any general guidance given to it by the Scottish Ministers about railway services wholly or partly in Scotland or about other matters in or as regards Scotland that relate to railways;
ab
in having regard to any guidance falling within paragraph (aa), to give what appears to it to be appropriate weight to the extent (if any) to which the guidance relates to matters in respect of which expenditure is to be or has been incurred by the Scottish Ministers;
b
to act in a manner which F7it considers will not render it unduly difficult for persons who are holders of network licences to finance any activities or proposed activities of theirs in relation to which F5the Office of Rail Regulation has functions under or by virtue of this Part F27or that Act (whether or not the activities in question are, or are to be, carried on by those persons in their capacity as holders of such licences); F28. . .
F29c
to have regard to the funds available to the Secretary of State for the purposes of his functions in relation to railways and railway services;
ca
to have regard to any notified strategies and policies of the National Assembly for Wales, so far as they relate to Welsh services or to any other matter in or as regards Wales that concerns railways or railway services;
cb
to have regard to the ability of the National Assembly for Wales to carry out the functions conferred or imposed on it by or under any enactment;
C83F325A
Before giving any guidance for the purposes of subsection (5)(a) above the Secretary of State must consult the National Assembly for Wales.
C835B
In exercising its safety functions, other than its functions as an enforcing authority for the purposes of the Health and Safety at Work etc. Act 1974, the Office of Rail Regulation shall be under a duty to have regard to any general guidance given to it by the Secretary of State.
C835C
In performing its duties under subsections (1) to (5A) above in relation to—
a
any matter affecting the interests of users or potential users of railway services,
b
any matter affecting the interests of persons providing railway services, or
c
any matter not falling within paragraph (a) or (b) but falling within subsection (5D),
the Office of Rail Regulation must have regard, in particular, to the interests, in securing value for money, of the persons mentioned in paragraphs (a) and (b) above, of the persons who make available the resources and other funds mentioned in that subsection and of the general public.
C835D
A matter falls within this subsection if the Office of Rail Regulation has been informed that—
a
public financial resources (within the meaning of paragraph 1D of Schedule 4A to this Act), or
b
funds that do not comprise such resources but are provided in whole or in part by Transport for London, the National Assembly for Wales, a Passenger Transport Executive or any other body in receipt of such resources,
are or are likely to become available to be applied for purposes connected with that matter.
C836
7
Without prejudice to the generality of paragraph (e) of subsection (1) above, any arrangements for the issue and use of through tickets shall be regarded as a measure falling within that paragraph.
F337ZA
Where any general guidance is given to the Office of Rail Regulation for the purposes of subsection (5)(a) or (aa) or (5B)—
a
it may be varied or revoked by the person giving it at any time; and
b
the guidance, and any variation or revocation of the guidance, must be published by that person in such manner as he considers appropriate.
F347A
7B
F5the Office of Rail Regulation may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which F35the Office of Fair Trading could have regard when exercising that function.
8
F36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
In this section—
F37“ the environment” means all , or any, of the following media, namely , the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground);
F38“notified strategies and policies”, in relation to the National Assembly for Wales, means the strategies and policies of that Assembly that have been notified by that Assembly for the purposes of this section to the Office of Rail Regulation;
“the passenger transport market” means the market for the supply of services for the carriage of passengers, whether by railway or any other means of transport;
F39“railway service performance” includes, in particular, performance in securing each of the following in relation to railway services—
- a
reliability (including punctuality);
- b
the avoidance or mitigation of passenger overcrowding; and
- c
that journey times are as short as possible;
- a
“safety functions” means functions assigned or transferred to the Office of Rail Regulation—
- a
under this Part,
- b
under or by virtue of the Railways Act 2005, or
- c
under or by virtue of the Health and Safety at Work etc. Act 1974,
so far as they are being exercised for the railway safety purposes (within the meaning of Schedule 3 to the Railways Act 2005) or for purposes connected with those purposes.
- a
F40. . .
F415. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Licensing of operators of railway assets
I26 Prohibition on unauthorised operators of railway assets.
C2C801
Any person who acts as the operator of a railway asset is guilty of an offence unless—
a
he is authorised to be the operator of that railway asset by a licence; or
b
he is exempt, by virtue of section 7 below, from the requirement to be so authorised.
F421A
This section does not apply to a person who acts as the operator of a railway asset to the extent that the asset is operated for the purpose of providing F43services for which a European licence is required
2
In this Part—
F44 “European licence” means a licence granted pursuant to a provision contained in any instrument made for the purpose of implementing Council Directive 1995/18/EC dated 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26th February 2001 and Directive 2004/49/EC dated 29th April 2004, both of the European Parliament and of the Council, or pursuant to any action taken by an EEA State for that purpose;
F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“operator”, in relation to any railway asset, means the person having the management of that railway asset for the time being;
“railway asset” means—
- a
any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;
- b
any network;
- c
any station; or
- d
any light maintenance depot.
- a
F462A
In subsection (2) above, “EEA State” means a member State, Norway, Iceland or Liechtenstein.
3
Any person who is guilty of an offence under this section shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
4
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or F47the Office of Rail Regulation .
7 Exemptions from section 6.
C31
The Secretary of State may, after consultation with F48the Office of Rail RegulationF49. . . , by order grant exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.
2
A licence exemption under subsection (1) above may be granted either—
a
to persons of a particular class or description; or
b
to a particular person;
and a licence exemption granted to persons of a particular class or description shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class or description.
3
If any person makes an application under this subsection to F48the Office of Rail Regulation for the grant of an exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as he may specify in the application, F48the Office of Rail Regulation , after consultation with the Secretary of State F49. . . —
a
may either grant or refuse the exemption, whether wholly or to such extent as F50it may specify in the exemption; and
4
Before granting a licence exemption under subsection (3) above, F48the Office of Rail Regulation shall give notice—
a
stating that F50it proposes to grant the licence exemption,
b
stating the reasons why F50it proposes to grant the licence exemption; and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence exemption may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
5
A notice under subsection (4) above shall be given by publishing the notice in such manner as F48the Office of Rail Regulation considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence exemption.
F525A
6
If any condition (the “broken condition") of a licence exemption is not complied with—
a
the Secretary of State, in the case of a licence exemption under subsection (1) above, or
b
F48the Office of Rail Regulation, in the case of a licence exemption under subsection (3) above,
may give to any relevant person a direction declaring that the licence exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.
F526A
7
For the purposes of F53this section—
“condition”, in relation to a licence exemption, means any condition subject to compliance with which the licence exemption was granted;
“relevant person”, in the case of any licence exemption, means a person who has the benefit of the licence exemption and who—
- a
is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or
- b
is the operator of any of the railway assets in relation to which the broken condition is not complied with.
- a
8
Where the Secretary of State or F48the Office of Rail Regulation gives a direction under subsection (6) above to any person, he F54or it may also direct that person to refrain from being the operator of any railway assets or of such railway assets, or railway assets of such a class or description, as may be specified in the direction by virtue of this subsection.
F528A
9
Subject to F55subsection (6) above, a licence exemption, unless previously revoked in accordance with any term contained in the licence exemption, shall continue in force for such period as may be specified in, or determined by or under, the licence exemption.
F5610
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Any application for a licence exemption under subsection (3) above must be made in writing; and where any such application is made, F48the Office of Rail Regulation may require the applicant to furnish him with such information as F48the Office of Rail Regulation may consider necessary to enable F50it to decide whether to grant or refuse the licence exemption.
12
Licence exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.
13
In this Part “licence exemption” means an exemption, granted under any provision of this section in respect of a railway asset or in respect of railway assets of any class or description, from the requirement to be authorised by licence to be the operator of that railway asset or, as the case may be, railway assets of that class or description.
7A Consumer protection conditions.
F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C48 Licences.
1
Subject to the following provisions of this section—
b
may grant to any person a licence authorising the person to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the licence.
2
Any general authority given to F58the Office of Rail Regulation under subsection (1)(b) above
b
may include a requirement for F58the Office of Rail Regulation either to consult the Secretary of State, or a requirement to obtain his approval before granting a licence;
but a failure to comply with such a requirement shall not affect the validity of the licence.
3
Any application for a licence—
a
shall be made in the prescribed manner;
b
shall be accompanied by such fee (if any) as may be prescribed in the case of a licence of the description in question; and
c
shall, if the Secretary of State so requires, be published by the applicant in the prescribed manner and within such period as may be notified to the applicant by the Secretary of State;
and, on any such application, the Secretary of State or, as the case may be, F58the Office of Rail Regulation may either grant or refuse the licence.
4
Before granting a licence, the Secretary of State or F58the Office of Rail Regulation shall give notice—
a
stating that he F63or it proposes to grant the licence,
b
stating the reasons why he F63or it proposes to grant the licence, and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
5
A notice under subsection (4) above shall be given by publishing the notice in such manner as the Secretary of State or F58the Office of Rail Regulation considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.
6
A licence shall be in writing and, unless previously revoked or surrendered in accordance with any terms contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence; and a licence shall not be capable of being surrendered F64unless F58the Office of Rail RegulationF65consents to the surrender if it is—
a
a passenger licence;
b
a network licence;
c
a station licence; or
d
a light maintenance depot licence.
7
As soon as practicable after the granting of a licence, the grantor shall send a copy—
a
8
9
Different fees may be prescribed under subsection (3) above in respect of licences authorising a person to be the operator of railway assets of different classes or descriptions.
F7010
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Any sums received by the Secretary of State or F58the Office of Rail Regulation under this section shall be paid into the Consolidated Fund.
9Conditions of licences: general.
1
A licence may include—
a
such conditions (whether or not relating to the licence holder’s being the operator of railway assets under the authorisation of the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by section 4 above; and
b
conditions requiring the rendering to—
i
the Secretary of State,
ii
F71the Office of Rail Regulation, or
iii
any other person, or any other person of a class or description, specified in the licence, except a Minister of the Crown or Government department,
of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.
2
Conditions included in a licence by virtue of subsection (1)(a) above—
a
may require the licence holder to enter into any agreement with any person for such purposes as may be specified in the conditions; and
b
may include provision for determining the terms on which such agreements are to be entered into.
3
Conditions included in a licence by virtue of subsection (1)(a) above may require the licence holder—
a
to comply with any requirements from time to time imposed by a qualified person with respect to such matters as are specified in the licence or are of a description so specified;
b
except in so far as a qualified person consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;
c
to refer for determination by a qualified person such questions arising under the licence as are specified in the licence or are of a description so specified;
d
to refer for approval by a qualified person such things falling to be done under the licence as are specified in the licence or are of a description so specified;
e
to furnish to a qualified person such documents or other information as he may require for the purpose of exercising any functions conferred or imposed on him under or by virtue of the licence;
F743A
Conditions included in a licence by virtue of subsection (1)(a) above may include provision about any matter which is dealt with (whether in the same or a different manner) by an access agreement.
4
Conditions included in a licence may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions; and any provision included by virtue of this subsection in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.
5
Subsections (2) to (4) above are without prejudice to the generality of subsection (1)(a) above.
6
Any reference in subsection (3) above to a “qualified person” is a reference to—
a
a person specified in the licence in question for the purpose in question, or
b
a person of a description so specified,
and includes a reference to a person nominated for that purpose by such a person pursuant to the licence.
7
Any sums received by the Secretary of State or the F71the Office of Rail Regulation in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.
10 Conditions of licences: activities carried on by virtue of a licence exemption.
1
If and so long as a person is a licence exempt operator—
a
there shall not be included in any licence granted to him any condition which relates to his licence exempt activities, except to the extent permitted by virtue of subsection (2) below; and
b
any such condition which is included in a licence which has been granted to him shall, except to that extent, be of no effect so far as so relating.
2
A condition which relates to both—
a
a licensed activity carried on by a person (“the licensee"), and
b
a licence exempt activity carried on by him,
may be included in a licence, but only if and to the extent that, in the opinion of the person granting the licence, the condition must, in consequence of the licensee’s carrying on of a mixed activity, necessarily have effect in relation to the whole, or some part, of so much of the mixed activity as consists of the licence exempt activity if the condition is to have full effect in relation to so much of the mixed activity as consists of the licensed activity.
3
There shall not be included in a licence any condition relating to the fares that may be charged in respect of train journeys involving licence exempt travel, other than train journeys which also involve—
a
licensed travel; and
b
at least two consecutive scheduled calls at stations during any one continuous spell of licensed operation.
4
For the purposes of subsection (3) above and this subsection—
F75. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“licence exempt travel” means travel by means of a train whose operator is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of that train for the whole, or for some part, of the train journey in question;
“licensed travel” means travel by means of a train whose operator is authorised by licence to be the operator of that train for some part of the train journey in question;
“spell of licensed operation”, in the case of any train journey, means any part of the journey throughout which the operator of the train in question lawfully acts as such by virtue only of holding one or more licences;
“train journey” means a journey between any two stations which is scheduled to be made by means of one train (irrespective of where the train in question begins or ends its journey).
5
Subsection (3) above has effect notwithstanding anything in subsection (1) or (2) above; and section 9 above is subject to the provisions of this section.
6
In this section—
“licence exempt activity” means any activity which a person carries on in his capacity as a licence exempt operator;
“licence exempt operator” means an operator of railway assets, or railway assets of a class or description, who is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of those railway assets or of railway assets of that class or description;
“licensed activity” means any activity which a person carries on in his capacity as a licence holder;
“mixed activity” means any activity which is carried on by a person who is both a licence holder and a licence exempt operator and which is carried on by him in part as a licensed activity and in part as a licence exempt activity.
11 Assignment of licences.
1
A licence shall be capable of being assigned, but only if it includes a condition authorising assignment.
2
A licence shall not be capable of being assigned except with the consent of—
F76a
the Secretary of State, if he is specified for the purpose in the licence; or
F793
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
5
A licence may include conditions which must be complied with before the licence can be assigned.
6
An assignment, or purported assignment, of a licence shall be void—
a
if the licence is not capable of assignment;
b
if the assignment, or purported assignment, is in breach of a condition of the licence; or
c
if there has, before the assignment or purported assignment, been a contravention of a condition subject to compliance with which the consent required by subsection (2) above is given.
7
A licence shall not be capable of being assigned under or by virtue of any other provision of this Act, other than paragraph 4 of Schedule 7 to this Act.
8
In this section “assignment” includes any form of transfer and cognate expressions shall be construed accordingly.
9
Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.
Modification of licences
12 Modification by agreement.
1
Subject to the following provisions of this section, F82the Office of Rail Regulation may modify the conditions of a licence if the holder of the licence consents to the modifications.
1A
F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1B
F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1C
F83. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Before making modifications F84under this section , F82the Office of Rail Regulation shall give notice—
a
stating that F85it proposes to make the modifications and setting out their effect,
b
stating the reasons why F85it proposes to make the modifications, and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall F86, before making the modifications, consider any representations or objections which are duly made and not withdrawn.
3
A notice under subsection F87. . . (2) above shall be given—
a
b
by serving a copy of the notice on the holder of the licence.
4
F90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C513 Modification references to the Monopolies Commission.
1
F91the Office of Rail Regulation may make to the Monopolies and Mergers Commission (in this Act referred to as the F92Competition Commission) a reference which is so framed as to require the Commission to investigate and report on the questions—
a
whether any matters which—
C6i
relate to the provision of any railway services by means of a railway asset, or railway assets of a class or description, whose operator acts as such by virtue of a licence, and
ii
are specified in the reference,
operate, or may be expected to operate, against the public interest; and
b
if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.
1A
F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1B
F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1C
F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F91the Office of Rail Regulation may, at any time, by notice given to the F92Competition Commissionvary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.
3
F91the Office of Rail Regulation may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the F92 CompetitionCommissionin carrying out the investigation on the reference—
a
any effects adverse to the public interest which, in F94its opinion, the matters specified in the reference or variation have or may be expected to have; and
b
any modifications of the conditions of the licence by which, in F94its opinion, those effects could be remedied or prevented.
4
As soon as practicable after making a reference under this section or a variation of such a reference, F91the Office of Rail Regulation—
a
shall serve a copy of the reference or variation on the holder of the licence; and
b
shall publish particulars of the reference or variation in such manner as F95it considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.
5
F91the Office of Rail Regulation shall also send a copy of a reference under this section, or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the F92Competition Commission not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.
6
It shall be the duty of F91the Office of Rail Regulation , for the purpose of assisting the F92Competition Commission in carrying out an investigation on a reference under this section, to give to the Commission—
a
any information in F96the possession of F91the Office of Rail Regulation which relates to matters falling within the scope of the investigation and—
i
is requested by the Commission for that purpose; or
b
and the Commission, for the purpose of carrying out any such investigation, shall take account of any information given to them for that purpose under this subsection.
7
In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the F92 Competition Commission shall have regard to the matters as respects which duties are imposed on F97. . . F98the Office of Rail Regulation by section 4 above.
8
F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8A
F99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.
C713AF100 References under section 13: time limits
1
Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
2
A report of the Competition Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by F101the Office of Rail Regulation under subsection (3) below.
3
F101the Office of Rail Regulation may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
4
No more than one extension is possible under subsection (3) above in relation to the same reference.
5
F101the Office of Rail Regulation shall, in the case of an extension made by it under subsection (3) above—
a
publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
b
send a copy of what has been published by it under paragraph (a) above to the holder of the licence.
F102C813B References under section 13: application of Enterprise Act 2002
1
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
2
Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—
a
subsection (2) were omitted; and
b
in subsection (9) the words from “or section" to “section 65(3))" were omitted.
3
Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—
a
for the words “published (or, in the case of a report under section 50 or 65, given)" there were substituted “made";
b
for the words “published (or given)", in both places where they appear, there were substituted “made"; and
c
the words “by this Part" were omitted.
4
Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 13 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words F103 “the OFT, OFCOM,” and “or the Secretary of State" were omitted.
5
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders), shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by those subsections.
6
Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.
C914 Reports on modification references.
1
In making a report on a reference under section 13 above, the F104Competition Commission—
a
shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;
b
where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and
c
where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.
F1051A
For the purposes of sections 15 to 15B below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
1B
If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 13 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1063
For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 13 above.
3A
In making any report on a reference under section 13 above the Competition Commission must have regard to the following considerations before disclosing any information.
3B
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
3C
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
3D
The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.
4
5
Subject to subsection (6) below, F107the Office of Rail Regulation—
a
shall, on receiving such a report, send a copy of it to the holder of the licence to which the report relates and to the Secretary of State; and
b
shall, not less than 14 days after that copy is received by the Secretary of State, publish the report in such manner as F108it considers appropriate for bringing the report to the attention of persons likely to be affected by it.
5A
F109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in paragraph (b) of subsection (5) above, direct F110the Office of Rail Regulation to exclude that matter from every copy of the report to be published by virtue of that paragraph.
7
Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.
C1015 Modification following report.
1
F111This section applies where a report of the F112 Competition Commission on a reference under section 13 above—
a
includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest,
b
specifies effects adverse to the public interest which those matters have or may be expected to have,
c
includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence, and
d
specifies modifications by which those effects could be remedied or prevented,
F113. . .
C11F1141A
Where the report is made to F115the Office of Rail RegulationF116it shall, subject to the following provisions of this section and to section 15A below, make such modifications of the conditions of the licence as appear to F116it requisite for the purpose of remedying or preventing the adverse effects specified in the report.
F1171B
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
3
Before making modifications under F120subsection (1A) above, F115the Office of Rail Regulation shall give notice—
a
stating that F116it proposes to make the modifications and setting out their effect,
b
stating the reasons why F116it proposes to make the modifications, and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
F1213A
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
A notice under subsection (3) F122. . . above shall be given—
a
b
by serving a copy of the notice on the holder of the licence.
F1234A
4B
4C
If the period within which a direction may be given by the Competition Commission under section 15A below expires without such a direction being given, F115the Office of Rail RegulationF119. . . shall make, or require the making of, the modifications set out in the notice given under subsection (4A) above.
4D
F1265
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.
C1215AF127 Competition Commission’s power to veto modifications following report.
1
The Competition Commission may, within the period of four weeks beginning with the day on which they are given notice under section 15(4A) above, give a direction to F128the Office of Rail RegulationF129. . . —
a
not to make, or require the making of, the modifications set out in the notice; or
b
not to make such of those modifications as are specified in the direction.
2
The Secretary of State may, if an application is made to him by the Competition Commission within that period of four weeks, extend the period within which a direction may be given under this section to one of six weeks beginning with the day on which the Competition Commission are given notice under section 15(4A) above.
3
The Competition Commission may give a direction under this section only if the modifications to which it relates do not appear to them requisite for the purpose of remedying or preventing the adverse effects specified in their report on the reference under section 13 above.
4
If the Competition Commission give a direction under this section, they shall give notice—
a
setting out the modifications contained in the notice given under section 15(4A) above;
b
setting out the direction; and
c
stating the reasons why they are giving the direction.
5
A notice under subsection (4) above shall be given—
a
by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the direction; and
b
by serving a copy of the notice on the holder of the licence.
F130C1315B Making of modifications by Competition Commission.
1
If the Competition Commission give a direction under section 15A above, they shall themselves make such modifications of the conditions of the licence as appear to them requisite for the purpose of remedying or preventing—
a
the adverse effects specified in their report on the reference under section 13 above; or
C142
In exercising the function conferred by subsection (1) above, the Competition Commission shall have regard to the matters as respects which duties are imposed on F131the Office of Rail Regulation by section 4 above.
3
Before making modifications under this section, the Competition Commission shall give notice—
a
stating that they propose to make the modifications and setting out their effect,
b
stating the reasons why they propose to make the modifications, and
c
specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
4
A notice under subsection (3) above shall be given—
a
by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and
b
by serving a copy of the notice on the holder of the licence.
5
F134C1515C Sections 15A and 15B: supplementary.
F1351
For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15A(4) or 15B(3) above.
2
In giving any notice under section 15A(4) or 15B(3) above, the Competition Commission must have regard to the following considerations before disclosing any information.
2A
The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.
2B
The second consideration is the need to exclude from disclosure (so far as practicable)—
a
commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
b
information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.
2C
The third consideration is the extent to which the disclosure of the information mentioned in subsection (2B)(a) or (b) above is necessary for the purposes of the notice.
2D
The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2E) and (2F) below, for the purposes of any investigation by the Competition Commission for the purposes of the exercise of its functions under section 15A or 15B above, as they apply for the purposes of any investigation on references under that Part—
a
section 109 (attendance of witnesses and production of documents etc.);
b
section 110 (enforcement of powers under section 109: general);
c
section 111 (penalties);
d
section 112 (penalties: main procedural requirements);
e
section 113 (payments and interest by instalments);
f
section 114 (appeals in relation to penalties);
g
section 115 (recovery of penalties); and
h
section 116 (statement of policy).
2E
Section 110 shall, in its application by virtue of subsection (2D) above, have effect as if—
a
subsection (2) were omitted;
b
in subsection (4), for the words “the publication of the report of the Commission on the reference concerned" there were substituted “the sending of a copy to F136the Office of Rail Regulation under section 15B(5) of the Railways Act 1993 of the modifications made by the Commission in connection with the reference concerned or, if no direction has been given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
c
in subsection (9) the words from “or section" to “section 65(3))" were omitted.
2F
Section 111(5)(b) shall, in its application by virtue of subsection (2D) above, have effect as if for sub-paragraph (ii) there were substituted—
“
if earlier, the day on which a copy of the modifications made by the Commission in connection with the reference concerned is sent to F136the Office of Rail Regulation under section 15B(5) of the Railways Act 1993 or, if no direction is given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. ".
2G
Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 15A and 15B above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words F137 “the OFT, OFCOM,” and “or the Secretary of State" were omitted.
2H
Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those subsections.
2I
Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.
2
The provisions are—
a
sections 82(1) and (2) (general provisions as to reports), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;
b
Part II of Schedule 7 to the M1Competition Act 1998 (performance of the Competition Commission’s general functions); and
c
section 24 of the 1980 Act (modification of provisions about performance of such functions).
3
For the purpose of assisting the Competition Commission in exercising their functions under sections 15A and 15B above, F136the Office of Rail RegulationF138. . . shall F138. . . give to the Competition Commission any information in F139. . . its possession which relates to matters relevant to the exercise of those functions and—
a
is requested by the Competition Commission for that purpose; or
b
is information which, in F139. . . its opinion, it would be appropriate for that purpose to give to the Competition Commission without any such request;
and any other assistance which the Competition Commission may require, and which it is within F139. . . its power to give, in relation to any such matters.
4
For the purpose of exercising those functions, the Competition Commission shall take account of any information given to them for that purpose under subsection (3) above.
C1616 Modification by order under other enactments.
F1401
Where the OFT, the Competition Commission or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.
2
In subsection (1) above “relevant order” means—
C17a
an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—
i
one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the supply of services relating to railways; or
ii
one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the supply of services relating to railways; or
b
an order under section 160 or 161 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the supply of services relating to railways.
3
4
Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.
F1445
Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part; and in subsection (2) above “services relating to railways” has the same meaning as in section 67(2A) of this Act.
F179 Directions to provide, improve or develop railway facilities
S. 16A cross-heading inserted (15.10.2005) by 2000 c. 38, ss. 223, 275; S.I. 2005/2862, art. 3
F14516A Provision, improvement and development of railway facilities.
1
F146the Office of Rail Regulation may, on an application—
a
made by the F147appropriate facilities authority , or
b
made by any other person with the consent of the F147appropriate facilities authority ,
give to the operator of a network, station or light maintenance depot a direction to provide a new railway facility if F146the Office of Rail Regulation considers him to be an appropriate person to provide the new railway facility.
2
F146the Office of Rail Regulation may, on an application—
a
made by the F147appropriate facilities authority , or
b
made by any other person with the consent of the F147appropriate facilities authority ,
give to a person who has an estate or interest in, or right over, an existing railway facility a direction to improve or develop the railway facility if F146the Office of Rail Regulation considers him to be an appropriate person to improve or develop the railway facility.
3
The F148consent of the appropriate facilities authority to the making by any other person of an application under subsection (1) or (2) above may be given subject to compliance with conditions (and may be withdrawn if any condition is not complied with before F146the Office of Rail Regulation decides whether to give the direction).
F1493A
In this section and sections 16B to 16G below `the appropriate facilities authority'—
a
in relation to facilities in Scotland, means the Scottish Ministers; and
b
in relation to any other facilities, means the Secretary of State.
F15016B Exemption of railway facilities from section 16A.
1
The F151appropriate facilities authority may, after consultation with F152the Office of Rail Regulation , by order grant exemption from subsection (1) or (2) of section 16A above (or from both of those subsections) in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.
2
An exemption under subsection (1) above may be granted in respect of—
a
railway facilities of a particular class or description, or
b
a particular railway facility,
or in respect of part only of railway facilities of a particular class or description or a particular railway facility.
3
An exemption under subsection (1) above may be granted generally, to persons of a particular class or description or to a particular person.
4
If a person fails to comply with any condition subject to compliance with which an exemption was granted, the F153appropriate facilities authority may give a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.
5
Subject to subsection (4) above, an exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in force for such period as may be specified in, or determined by or under, the exemption.
6
Exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.
F1547
A statutory instrument containing an order made under this section by the Scottish Ministers shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.
F15516C Making of applications for directions.
1
An application for a direction under section 16A above must be made to F156the Office of Rail Regulation in writing.
2
The application must—
a
specify the person to whom the direction would be given;
b
state what it would require him to do; and
c
give the applicant’s reasons for considering that person to be an appropriate person to do what the direction would require him to do.
3
The applicant may at any time vary what the direction would require that person to do by giving to F156the Office of Rail Regulation notice in writing of the variation; but if the applicant is a person other than the F157appropriate facilities authority such a notice may only be given with the consent of the Authority.
4
The application or notice of a variation may be accompanied by any written representations which the applicant wishes to make in relation to the direction.
F15816D Procedure for considering applications.
1
When F159the Office of Rail Regulation has received the application or notice of a variation, F160it
a
b
invite them to make written representations within a period specified in the invitation.
2
If the person specified in the application makes representations that he is not an appropriate person to do what the direction would require him to do, F159the Office of Rail Regulation must decide that issue in advance of considering any other matters which may be relevant in deciding whether to give the direction.
3
If that person makes such representations but F159the Office of Rail Regulation decides that he is an appropriate person to do what the direction would require him to do, F159the Office of Rail Regulation must—
a
notify him of that decision; and
b
invite him to make written representations within a period specified in the invitation about any other matters which may be relevant in deciding whether to give the direction.
4
F159the Office of Rail Regulation must—
a
send the applicant a copy of any representations received by F160it in response to any invitation under subsection (1) or (3) above; and
b
invite him to make further written representations within a period specified in the invitation.
5
Subject to subsection (6) below, F159the Office of Rail Regulation may substitute as the applicant any other person if—
a
the applicant,
b
the other person, and
c
the F161appropriate facilities authority (if it is neither the applicant nor the other person),
consent to the substitution.
6
7
F159the Office of Rail Regulation may direct—
a
the person specified in the application,
b
the applicant, or
c
any other person (apart from the F161appropriate facilities authority ),
to provide him with any information required by him in order to decide whether to give the direction.
8
If a person fails to comply with a direction under subsection (7) above, the High Court or the Court of Session may, on the application of F159the Office of Rail Regulation make such order as it thinks fit for requiring the failure to be made good.
9
Such an order may provide that all the costs or expenses of and incidental to the application shall be borne by—
a
the person who failed to comply; or
b
in the case of a company or other association, any officers who are responsible for the failure to comply.
F16216E Decisions on applications: adequate reward.
1
F163the Office of Rail Regulationmay only give a direction to a person under section 16A above to provide, improve or develop a railway facility if he is satisfied that the person will be adequately rewarded for providing, improving or developing the railway facility in accordance with the direction.
2
In considering whether he is so satisfied F163the Office of Rail Regulation shall take into account (in particular)—
a
any receipts obtained or likely to be obtained by the person (from the F164appropriate facilities authority , passengers, operators of railway services or any other persons) in connection with, or as a result of, the provision, improvement or development of the railway facility; and
b
any other benefit obtained or likely to be obtained by him in consequence of its provision, improvement or development.
3
Representations made by the applicant for a direction—
a
under section 16C(4) above, or
b
in response to an invitation under section 16D(4) above,
may, in particular, include representations as to matters which he considers F163the Office of Rail Regulation should take into account in deciding whether the person to whom the direction would be given would be adequately rewarded for doing what it would require him to do.
F16516F Other provisions about decisions.
1
2
F166the Office of Rail Regulation may include supplementary provisions in any direction under section 16A above, including (in particular)—
a
provision adding detail (for instance, as to the time by which, or standard to which, the person to whom it is given is to do anything which it requires him to do); and
b
provision imposing requirements on the applicant (for instance, to make arrangements for rewarding the person to whom the direction is given or to make payments to him).
3
Before giving a direction under section 16A above which is in modified terms or includes supplementary provisions, F166the Office of Rail Regulation shall—
a
b
invite them to make written representations within a period specified in the invitation;
and if the applicant makes representations that the direction should not be given, F166the Office of Rail Regulation shall not give it.
4
Whatever F166the Office of Rail Regulation’s decision on an application F167it shall notify the decision to—
a
the person specified in the application;
b
the applicant; and
c
any other persons who F167it considers ought to be notified.
5
F166the Office of Rail Regulation may direct the person specified in the application or the applicant to pay to—
a
the other of those persons, or
b
any other person directed to provide information under section 16D(7) above,
any such amount as F167it considers appropriate in respect of costs incurred in connection with the application.
F17016G Directions: compliance, variation and revocation.
1
A person shall not be regarded as failing to comply with a direction under section 16A above if he has done everything which it is reasonably practicable to do in order to comply with the direction.
2
If a person is unable to comply with such a direction because he does not have the necessary powers or rights (including rights over land), he shall not be taken to have done everything which it is reasonably practicable to do in order to comply with the direction unless he has done everything which it is reasonably practicable to do in order to obtain those powers or rights.
3
A direction under section 16A above may only be revoked or varied by F171the Office of Rail Regulation—
a
on the application of the person to whom the direction was given, the applicant for the direction or the Authority (if it was not the applicant); and
b
after consultation with the other persons with power to apply for a revocation or variation.
4
Such a direction may only be varied on an application by the applicant for the direction or the F172appropriate facilities authority if F171the Office of Rail Regulation is satisfied that the person to whom the direction was given will be adequately rewarded for providing, improving or developing the railway facility in accordance with the varied direction, taking into account (in particular) the matters specified in section 16E(2) above.
5
F171the Office of Rail Regulation may grant an application for the variation or revocation of a direction under section 16A above by the applicant for the direction or the F172appropriate facilities authority on condition that he or it secures that any such compensation as F171the Office of Rail Regulation may specify is paid to the person to whom the direction was given in respect of any liabilities incurred, or other things done, by him in complying with the direction.
F17316H Code of practice.
1
2
3
The code of practice may (in particular)—
a
set out minimum periods to be specified in invitations to make representations;
b
include provision about requesting the provision of information prior to giving a direction under section 16D(7) above;
c
specify principles according to which directions to pay costs are to be given under section 16F(5) above; and
d
make provision about the consultation required by section 16G(3)(b) above.
F17716I Supplementary.
1
References in sections 16A to 16H above and this section to a railway facility include part of a railway facility.
2
Nothing in any of those sections or a direction under section 16A above—
a
limits any power of F178the Office of Rail Regulation under any other provision of this Act; or
b
affects any obligation to provide a new railway facility, or to improve or develop an existing railway facility, arising otherwise than from such a direction.
Access agreements
C1817 Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities.
C191
F180the Office of Rail Regulation may, on the application of any person, give directions to a facility owner requiring him to enter into an access contract with the applicant for the purpose specified in subsection (2) below; but no such directions shall be given if and to the extent that—
a
the facility owner’s railway facility is, by virtue of section 20 below, an exempt facility;
b
c
as a result of an obligation or duty owed by the facility owner which arose before the coming into force of this section, the consent of some other person is required by the facility owner before he may enter into the access contract; F184. . .
d
F184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
The purpose for which directions may be given is that of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his)—
a
from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;
b
from a facility owner whose railway facility is a station, permission to use that station for or in connection with the operation of trains by the beneficiary;
c
from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;
d
from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or
e
from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;
but this subsection is subject to the limitations imposed by subsection (3) below.
3
In subsection (2) above—
a
paragraph (a) does not extend to obtaining permission to use track for the purpose of providing network services on that track;
b
paragraph (b) does not extend to obtaining permission to use a station for the purpose of operating that station;
c
paragraph (c) does not extend to obtaining permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;
d
if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—
i
of providing network services on that track, or
ii
of operating any network in which that track is comprised,
except where the purpose for which directions are sought is to enable the beneficiary to operate on behalf of F185the Secretary of State a network in which the track in question is comprised;
e
if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—
i
of providing station services at that station, or
ii
of operating that station,
except where the purpose for which directions are sought is to enable the beneficiary to operate the station on behalf of F185the Secretary of State ;
f
if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—
i
of carrying out light maintenance at that light maintenance depot, or
ii
of operating that light maintenance depot,
except where the purpose for which directions are sought is to enable the beneficiary to operate the light maintenance depot on behalf of the F186Authority.
4
Any reference in this section to a person operating a network, station or light maintenance depot "on behalf of the F187Secretary of State is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the F188Secretary of State or the Scottish Ministers for the purpose of performing a duty imposed upon F189him or them , or exercising a power conferred upon F189him or them , under or by virtue of this Part F190or Part 4 of the Railways Act 2005 (network modifications etc.) to secure the operation of that network, station or light maintenance depot.
5
Nothing in this section authorises F180the Office of Rail Regulation to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility.
6
In this Part—
“access contract” means—
- a
a contract under which—
- i
a person (whether or not the applicant), and
- ii
so far as may be appropriate, any associate of that person,
- a
obtains permission from a facility owner to use the facility owner’s railway facility; or
b
a contract conferring an option, whether exercisable by the applicant or some other person, to require a facility owner to secure that—
i
a person (whether or not the applicant or that other), and
ii
so far as may be appropriate, any associate of that person,
obtains permission from the facility owner to use his railway facility;
and any reference to an “access option” is a reference to an option falling within paragraph (b) above;
“facility owner” means any person—
- a
who has an estate or interest in, or right over, a railway facility; and
- b
whose permission to use that railway facility is needed by another before that other may use it;
- a
F191but also includes a person before he becomes a facility owner;
and any reference to a facility owner’s railway facility is a reference to the railway facility by reference to which he is a facility owner.
7
In this section—
“the applicant” means the person making the application for directions;
“associate”, in relation to any person, includes—
- a
any servant, agent or independent contractor of his;
- b
any passenger of his;
- c
any person engaged in the provision of goods or services to or for him; and
- d
any other person who deals or has business with him;
- a
“the beneficiary” means the person mentioned in paragraph (a)(i) or, as the case may be, paragraph (b)(i) of the definition of “access contract” in subsection (6) above, according to the description of access contract in question;
“directions” means directions under this section;
F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease.
F1937A
Any reference in this section to obtaining permission to use a railway facility includes, where the facility is track, permission to connect other track to it.
8
Any reference in this section to obtaining permission to use a railway facility includes—
a
a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that railway facility, whether the facility owner in question is to provide those services himself or to secure their provision by another; and
b
a reference to obtaining permission—
i
to enter upon the facility land, with or without vehicles,
ii
to bring things on to that land and keep them there,
iii
to carry out works on that land, and
iv
to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land,
“facility land” meaning in this paragraph the land which constitutes the railway facility in question;
and, in subsection (2)(c) above, the reference to obtaining permission to use a light maintenance depot includes a reference to obtaining power to obtain light maintenance services at that light maintenance depot, whether the facility owner is to provide those services himself or to secure their provision by another.
9
Any reference in this section to a railway facility includes a reference to a part of a railway facility.
10
Schedule 4 to this Act shall have effect with respect to applications for directions.
F19411
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2018 Access agreements: contracts requiring the approval of the Regulator.
C211
A facility owner shall not enter into an access contract to which this section applies unless—
a
he does so pursuant to directions under section 17 above; F195. . .
b
c
the access contract is of a class or description specified in a general approval given by F196the Office of Rail Regulation ;
and any access contract to which this section applies F198shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.
2
The access contracts to which this section applies are those under which the beneficiary obtains, or, in the case of an access contract conferring an access option, may obtain, (whether for himself alone or for himself and associates of his)—
a
from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;
b
from a facility owner whose railway facility is a station, permission to use that station, for or in connection with the operation of trains by the beneficiary;
c
from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;
d
from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or
e
from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;
but this subsection is subject to subsections (3) and (4) below.
3
This section does not apply to an access contract—
a
if and to the extent that the railway facility to which the access contract relates is, by virtue of section 20 below, an exempt facility; F199. . .
b
F199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
In subsection (2) above—
a
paragraph (a) does not extend to permission to use track for the purpose of providing network services on that track;
b
paragraph (b) does not extend to permission to use a station for the purpose of operating that station;
c
paragraph (c) does not extend to permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;
d
if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—
i
of providing network services on that track, or
ii
of operating any network in which that track is comprised,
unless the purpose of entering into the access contract is to enable the beneficiary to operate on behalf of F200the Secretary of State a network in which the track in question is comprised;
e
if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—
i
of providing station services at that station, or
ii
of operating that station,
unless the purpose of entering into the access contract is to enable the beneficiary to operate the station on behalf of F200the Secretary of State ;
f
if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—
i
of carrying out light maintenance at that light maintenance depot, or
ii
of operating that light maintenance depot,
unless the purpose of entering into the access contract is to enable the beneficiary to operate the light maintenance depot on behalf of F200the Secretary of State .
5
In any case where—
a
a facility owner and another person (the “other party") have agreed the terms on which they propose to enter into an access contract to which this section applies, but
b
the circumstances are such that, by virtue of subsection (1)(b) above, those terms must be approved, and directions must be given, by the Regulator before the facility owner may enter into the proposed access contract,
it shall be for the facility owner to submit the proposed access contract to F196the Office of Rail Regulation for approval of its terms.
6
If, on the submission of a proposed access contract pursuant to subsection (5) above, F196the Office of Rail Regulation approves its terms, F201it shall issue directions to the facility owner—
a
requiring him to enter into the proposed access contract within such period as may be specified for the purpose in the directions; but
b
releasing him from his duty to do so if the other party fails to enter into the proposed access contract within such period as may be specified for the purpose in the directions;
and F196the Office of Rail Regulation shall send a copy of the directions to the other party.
F2026A
The grounds on which F196the Office of Rail Regulation may reject, or approve subject to modifications, a proposed access contract submitted to F201it pursuant to subsection (5) above include that F201it considers that the use of the facility for which it provides might impede the provision of services—
a
under a franchise agreement; or
7
If, on the submission of a proposed access contract pursuant to subsection (5) above, F196the Office of Rail Regulation does not consider it appropriate to approve its terms without modification (or to reject it), F201it may, after consultation with the facility owner and the other party, issue directions to the facility owner—
a
approving the terms of the proposed access contract, but subject to such modifications as may be specified in the directions; and
b
requiring the facility owner to enter into the proposed access contract on those terms, as so modified; but
c
releasing him from his duty to do so if either—
i
the facility owner gives F196the Office of Rail Regulation notice of objection before the expiration of the period of fourteen days beginning with the day after that on which the directions are issued; or
ii
the other party fails to enter into the proposed access contract, on the terms as modified under this subsection, before the date specified for the purpose in the directions;
and F196the Office of Rail Regulation shall send a copy of the directions to the other party.
F2047A
7B
The revocation of a general approval given under subsection (1)(c) above shall not affect the continuing validity of any access contract to which it applied.
8
In this section, “associate”, “the beneficiary”,F205. . . and “lease” have the same meaning as they have in section 17 above.
9
The following provisions of section 17 above, that is to say—
a
subsection (4),
F206aa
subsection (7A),
b
subsection (8)(a) and (b), and
c
subsection (9),
apply for the purposes of this section as they apply for the purposes of that section; and the words following paragraph (b) of subsection (8) of that section apply in relation to subsection (2)(c) of this section as they apply in relation to subsection (2)(c) of that section.
10
This section shall not prevent a facility owner from granting a lease of any land which consists of or includes the whole or any part of his railway facility.
F20711
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19 Access agreements: contracts for the use, on behalf of F208the Secretary of State, of installations comprised in a network.
C221
F209the Office of Rail Regulation may, on the application of any person, give directions to an installation owner requiring him to enter into an installation access contract with the applicant for the purpose of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his) permission to use the installation owner’s network installation for the purpose of operating, on behalf of F208the Secretary of State, the network in which the network installation is comprised.
2
Directions shall not be given under subsection (1) above in the case of any network installation if and to the extent that, as a result of an obligation or duty owed by the installation owner which arose before the coming into force of this section, the consent of some other person is required by the installation owner before he may enter into the installation access contract.
3
An installation owner shall not enter into an installation access contract to which this subsection applies unless—
a
he does so pursuant to directions under subsection (1) above; F210. . .
b
c
the installation access contract is of a class or description specified in a general approval given by the Regulator;
and any installation access contract to which this subsection applies F212shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.
4
The installation access contracts to which subsection (3) above applies are those under which the beneficiary obtains (whether for himself alone or for himself and associates of his) from an installation owner permission to use the installation owner’s network installation for the purpose of operating, on behalf of F208the Secretary of State , the network in which the network installation is comprised.
5
Subsections (5) to (7) of section 18 above shall apply in relation to installation access contracts to which subsection (3) of this section applies as they apply in relation to access contracts to which that section applies, but with the following modifications, that is to say—
a
for any reference to a facility owner there shall be substituted a reference to an installation owner;
b
for any reference to an access contract to which that section applies there shall be substituted a reference to an installation access contract to which subsection (3) above applies;
c
for the reference to subsection (1)(b) of that section there shall be substituted a reference to subsection (3)(b) of this section.
F2135A
5B
The revocation of a general approval given under subsection (3)(c) above shall not affect the continuing validity of any installation access contract to which it applied.
6
Nothing in this section—
a
authorises F209the Office of Rail Regulation to give directions to an installation owner requiring him to grant a lease of the whole or any part of his network installation; or
b
prevents an installation owner from granting a lease of any land which consists of or includes the whole or any part of his network installation.
7
Any reference in this section to a person operating a network “on behalf of F208the Secretary of State” is a reference to his operating the network in pursuance of any agreement or other arrangements made by F208the Secretary of State for the purpose of performing a duty imposed upon him, or exercising a power conferred upon him, under or by virtue of this Part F215or Part 4 of the Railways Act 2005 (network modifications etc.) to secure the operation of that network.
8
Any reference in this section to obtaining permission to use a network installation includes—
a
a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that network installation, whether the installation owner in question is to provide those services himself or to secure their provision by another; and
b
a reference to obtaining permission—
i
to enter upon the installation land, with or without vehicles,
ii
to bring things on to that land and keep them there,
iii
to carry out works on that land, and
iv
to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land;
and in paragraph (b) above “installation land” means the land which constitutes the network installation in question.
9
In this Part—
“installation access contract” means a contract under which—
- a
a person (whether or not the applicant), and
- b
so far as may be appropriate, any associate of that person,
obtains permission from an installation owner to use the installation owner’s network installation;
- a
“installation owner” means any person—
- a
who has an estate or interest in, or right over, a network installation; and
- b
whose permission to use that network installation is needed by another before that other may use it;
- a
F216but also includes a person before he becomes an installation owner;
and any reference to an installation owner’s network installation is a reference to the network installation by reference to which he is an installation owner.
10
In this section—
“ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use a network installation;
“the applicant” means the person making the application for directions under subsection (1) above;
“associate” has the meaning given by section 17(7) above;
“the beneficiary” means the person mentioned in paragraph (a) of the definition of “installation access contract” in subsection (9) above;
“lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease;
“network installation” means any installation (other than track) which is comprised in a network.
11
Any reference in this section to a network installation includes a reference to a part of a network installation F217and to one which is proposed to be constructed or is in the course of construction..
12
Schedule 4 to this Act shall have effect with respect to applications for directions under subsection (1) above as it has effect with respect to applications for directions under section 17 above, but with the following modifications, that is to say—
a
for any reference to an access contract, there shall be substituted a reference to an installation access contract;
b
any reference to an application for directions under section 17 above shall be taken as a reference to an application for directions under subsection (1) above;
c
for any reference to the facility owner, there shall be substituted a reference to the installation owner mentioned in subsection (1) above;
d
for any reference to section 17 above (but not to any specific provision of that section) there shall be substituted a reference to this section.
F21813
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19AF219 Review of access charges by Regulator.
Schedule 4A to this Act (which contains provision about the review of access charges by F220the Office of Rail Regulation ) shall have effect.
C2320 Exemption of railway facilities from sections 17 F221, 18 and 22A.
1
The Secretary of State may, after consultation with F222the Office of Rail Regulation , by order grant exemption from sections 17 and 18 above F223and section 22A belowin respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.
2
A facility exemption under subsection (1) above may be granted—
a
to persons of a particular class or description or to a particular person; and
b
in respect of railway facilities of a particular class or description or a particular railway facility, or in respect of part only of any such railway facilities or facility;
F224. . .
3
If a facility owner makes an application under this subsection to F222the Office of Rail Regulation for the grant of an exemption from sections 17 and 18 above F223and section 22A below in respect of the whole or any part of his railway facility, F222the Office of Rail Regulation , after consultation with the Secretary of State—
a
may either grant or refuse the exemption, whether wholly or to such extent as F225it may specify in the exemption; and
4
Before granting a facility exemption under subsection (3) above, F222the Office of Rail Regulation shall give notice—
a
stating that F225it proposes to grant the facility exemption,
b
stating the reasons why F225it proposes to grant the facility exemption, and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed facility exemption may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
5
A notice under subsection (4) above shall be given by publishing the notice in such manner as F222the Office of Rail Regulation considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the facility exemption.
6
If any condition (the “broken condition") of a facility exemption is not complied with—
a
the Secretary of State, in the case of a facility exemption under subsection (1) above, or
b
F222the Office of Rail Regulation, in the case of a facility exemption under subsection (3) above,
may give to any relevant person a direction declaring that the facility exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.
7
For the purposes of subsection (6) above—
“condition”, in relation to a facility exemption, means any condition subject to compliance with which the facility exemption was granted;
“relevant person”, in the case of any facility exemption, means a person who has the benefit of the facility exemption and who—
- a
is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or
- b
is the facility owner in the case of the railway facility in relation to which the broken condition is not complied with.
- a
8
Subject to subsection (6) above, a facility exemption, unless previously revoked in accordance with any term contained in the facility exemption, shall continue in force for such period as may be specified in, or determined by or under, the facility exemption.
F2279
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
Any application for a facility exemption under subsection (3) above must be made in writing; and where any such application is made, F222the Office of Rail Regulation may require the applicant to furnish F225it with such information as F222the Office of Rail Regulation may consider necessary to enable F225it to decide whether to grant or refuse the facility exemption.
11
Facility exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.
F22812
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
In this Part “facility exemption” means an exemption from sections 17 and 18 above F223and section 22A below granted under any provision of this section in respect of the whole or any part of a railway facility; and a railway facility is an “exempt facility” if and to the extent that it is the subject of such an exemption.
21 Model clauses for access contracts.
1
F229the Office of Rail Regulation may prepare and publish model clauses for inclusion in access contracts.
2
Different model clauses may be prepared and published in relation to different classes or descriptions of railway facility.
3
F229the Office of Rail Regulation may from time to time revise any model clauses published under this section and may publish those clauses as so revised.
4
5
22 Amendment of access agreements.
1
2
F233the Office of Rail Regulation may, for the purposes of subsection (1) above, give the parties to any particular access agreement F235its general approval to the making to that access agreement of amendments of a description specified in the approval; and any approval so given shall not be revoked.
3
4
5
The revocation of a general approval given under subsection (3) above shall not affect the continuing validity of any amendment made in accordance with, and before the revocation of, that approval.
F2376
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2386A
F2386B
Subsection (6A) does not apply to the exercise of the powers given by section 35(2) in respect of conduct—
a
which is connected with an access agreement; and
b
in respect of which section 35(1)(b) of that Act applies.
22AF240 Directions to require amendment permitting more extensive use.
1
F241the Office of Rail Regulation may, on the application of the person permitted by an access agreement to use the whole or part of a railway facility or network installation, give directions requiring the parties to the access agreement to make to the agreement—
a
amendments permitting more extensive use of the railway facility or network installation by the applicant; and
b
any amendments which F241the Office of Rail Regulation considers necessary or desirable in consequence of those amendments.
2
In subsection (1)(a) above “more extensive use” means—
a
increased use for the purpose for which the applicant is permitted by the access agreement to use the railway facility or network installation, or
b
(in the case of a railway facility) use for any other permitted purpose,
and if the applicant is permitted to use only part of the railway facility or network installation, includes use for the purpose for which he is permitted to use it, or (in the case of a railway facility) for any other permitted purpose, of any other part of the railway facility or network installation.
3
In subsection (2) above “permitted purpose”, in relation to a railway facility, means a purpose for which directions may be given in relation to the railway facility under section 17 above.
4
No directions shall be given under this section in relation to a railway facility if and to the extent that—
a
the railway facility is, by virtue of section 20 above, an exempt facility; or
b
performance of the access agreement as amended would necessarily involve the facility owner in being in breach of another access agreement F242. . . .
5
No directions shall be given under this section in relation to a railway facility or network installation if and to the extent that, as a result of an obligation or duty owed by the facility owner or installation owner which arose before the coming into force of section 17 or 19 above, the consent of some other person is required by him before he may make the amendments.
6
Nothing in this section authorises F241the Office of Rail Regulation to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility or network installation.
7
In this section and section 22B below—
a
F243 “lease” hasthe same meaning as in section 17 above; and
b
“network installation” has the same meaning as in section 19 above.
F24422B Applications for directions under section 22A: procedure.
1
Schedule 4 to this Act shall have effect with respect to applications for directions under section 22A above as it has effect with respect to applications for directions under section 17 above (but subject as follows).
2
In its application by virtue of this section Schedule 4 to this Act has effect with the following modifications—
a
in paragraph 1, in the definition of “the facility owner", for “17(1)" there shall be substituted “22A" and, in the definition of “interested person", for “enter into the required access contract" there shall be substituted “make the amendments";
b
in paragraph 2(1), for “which the applicant proposes should be contained in the required access contract" and “to be contained in the required access contract" there shall be substituted “of the proposed amendments";
c
in paragraph 5(2), for “to the facility owner requiring him to enter into an access contract" there shall be substituted “under section 22A of this Act";
d
for paragraph 5(2)(a)(i) and (ii) there shall be substituted “the amendments to be made and the date by which they are to be made; and";
e
in paragraph 6(2), for the words from “facility owner’s" to the end of paragraph (c) there shall be substituted “making of the amendments, the performance of the access agreement as amended or failing to take any step to protect the interests of the interested person in connection with the application for directions or the making of the amendments,"; and
f
in paragraph 6(3), for “any access contract which is entered into" there shall be substituted “the amendments made";
and the definition of “the required access contract", and the words following that definition, in paragraph 1 and paragraph 5(4) shall be omitted.
3
In its application by virtue of this section in relation to an application relating to an installation access contract Schedule 4 to this Act has effect with the following further modifications—
a
references to the railway facility shall have effect as references to the network installation;
b
references to the facility owner shall have effect as references to the installation owner; and
c
in the definition of “interested person" in paragraph 1, for “17" there shall be substituted “19".
4
The Regulator may determine that, in their application by virtue of this section in relation to any particular application, paragraphs 3 and 4 of Schedule 4 to this Act shall have effect as if for any of the numbers of days specified in them there were substituted the lower number specified by the Regulator.
F24522C Amendment: supplementary.
C241
2
F246the Office of Rail Regulation shall not have power to direct or otherwise require amendments to be made to an access agreement except in accordance with section 22A above, subsection (1) above or Schedule 4A to this Act.
3
If an access agreement includes provision for any of its terms to be varied—
a
by agreement of the parties, or
b
by direction or other requirement of F246the Office of Rail Regulation ,
a variation made pursuant to that provision shall not be regarded for the purposes of section 22 above or subsection (2) above as an amendment of the agreement.
Franchising of passenger services
I323 Passenger services to be subject to franchise agreements.
C251
It shall be the duty of the F248appropriate designating authority from time to time to designate F249such services for the carriage of passengers by railway (other than services which are, by virtue of section 24 below, exempt from designation under this subsection) as it considers ought to be provided under franchise agreements..
2
F2512ZA
Where the Scottish Ministers designate Scotland-only services, they may also designate cross-border services which—
a
they consider should be provided under the same franchise agreement as particular Scotland-only services or a particular class of them; and
b
are not exempt from designation under subsection (1) by virtue of section 24.
2ZB
Nothing in this section requires the Secretary of State to designate a cross-border service already designated by the Scottish Ministers.
2ZC
Before the Secretary of State or the Scottish Ministers designate a cross-border service he or they must consult the other.
F2522A
A designation may be varied or revoked; but a variation or revocation of the designation of particular services, or services of a class or description, shall not affect any franchise agreement previously entered into with respect to those services or services of that class or description.
2B
F253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
In this Part—
F254“the appropriate designating authority”—
- a
in relation to Scotland-only services, means the Scottish Ministers; and
- b
in relation to all other services, means the Secretary of State;
- a
“the appropriate franchising authority”—
- a
in relation to a Scottish franchise agreement, means the Scottish Ministers; and
- b
in relation to any other franchise agreement, means the Secretary of State;
- a
“franchise agreement” means an agreement F255with the Secretary of State, with the Scottish Ministers or with the Secretary of State and the National Assembly for Wales jointly,under which another party undertakes either—
- a
to provide, or
- b
to secure that a wholly owned subsidiary of his provides,
throughout the franchise term those services for the carriage of passengers by railway to which the agreement relates;
- a
“franchise operator”, in relation to any franchise agreement, means the person (whether the franchisee or, as the case may be, the wholly owned subsidiary of the franchisee) who is to provide the franchised services;
“franchise period”, in relation to any franchise agreement, means the franchise term, except where the franchise agreement is terminated before the end of that term, in which case it means so much of that term as ends with that termination;
“franchise term”, in relation to any franchise agreement, means the period specified in the franchise agreement as the period throughout which the franchisee is to provide, or secure that a wholly owned subsidiary of his provides, the franchised services, and includes any such extension of that period as is mentioned in section 29(3) below;
“franchised services”, in relation to any franchise agreement, means the services for the carriage of passengers by railway which are to be provided under that franchise agreement;
“franchisee” means—
- a
in relation to a franchise agreement under which a party undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the party so undertaking; or
- b
in relation to any other franchise agreement, the person who is to provide the franchised services.
- a
4
Any reference in this Part to the provision of services under a franchise agreement is a reference to the provision of those services by the franchise operator; and where the franchise operator is, or is to be, a wholly owned subsidiary of the franchisee, any reference to the provision of services by the franchisee under a franchise agreement shall accordingly be construed as a reference to his securing their provision by the franchise operator.
24 Exemption of passenger services from section 23(1).
1
The F256appropriate designating authority may by order grant exemption from designation under section 23(1) above in respect of such services for the carriage of passengers by railway as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.
2
A franchise exemption under subsection (1) above may be granted—
a
to persons of a particular class or description or to a particular person; and
b
in respect of services generally, services of a particular class or description or a particular service, or in respect of part only of any such services or service;
and a franchise exemption granted to persons of a particular class or description shall be published in such manner as the F256appropriate designating authority considers appropriate for bringing it to the attention of persons of that class or description.
3
If a person who provides, or who proposes to introduce, services for the carriage of passengers by railway makes an application to the F256appropriate designating authority under this subsection for the grant of an exemption from designation under section 23(1) above in respect of any such service which he provides or proposes to introduce, the F256appropriate designating authority , after consultation with F257the Office of Rail RegulationF258. . . —
a
may either grant or refuse the exemption, whether wholly or to such extent as F259the appropriate designating authority may specify in the exemption; and
F2603A
Before granting a franchise exemption in respect of a cross-border service, the Secretary of State must consult the Scottish Ministers.
4
Before granting a franchise exemption under subsection (3) above, the F256appropriate designating authority shall give notice—
a
stating that F261it proposes to grant the franchise exemption,
b
stating the reasons why F261it proposes to grant the franchise exemption, and
c
specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed franchise exemption may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
5
A notice under subsection (4) above shall be given by publishing the notice in such manner as the F256appropriate designating authority considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the franchise exemption.
6
If any condition (the “broken condition") of a franchise exemption F262granted by the appropriate designating authority is not complied with, it may give to any relevant person a direction declaring that the franchise exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.
7
For the purposes of subsection (6) above—
“condition”, in relation to a franchise exemption, means any condition subject to compliance with which the franchise exemption was granted;
“relevant person”, in the case of any franchise exemption, means a person who has the benefit of the franchise exemption and who—
- a
is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or
- b
provides any of the services in relation to which the broken condition is not complied with.
- a
8
Subject to subsection (6) above, a franchise exemption, unless previously revoked in accordance with any term contained in the franchise exemption, shall continue in force for such period as may be specified in, or determined by or under, the franchise exemption.
9
Any application for a franchise exemption under subsection (3) above must be made in writing; and where any such application is made, the F256appropriate designating authority may require the applicant to furnish F263it with such information as the F256appropriate designating authority may consider necessary to enable F263it to decide whether to grant or refuse the franchise exemption.
10
Any franchise exemption granted under subsection (3) above shall be in writing.
11
Subsections (1) and (3) above apply in relation to the grant of a franchise exemption whether it is to become effective on, or after, the day on which section 23(1) above comes into force.
12
Franchise exemptions may make different provision for different cases.
F26412A
A statutory instrument containing an order under this section by the Scottish Ministers is subject to annulment in pursuance of a resolution of the Scottish Parliament.
13
In this Part, “franchise exemption” means an exemption from designation under section 23(1) above granted under any provision of this section in respect of any service for the carriage of passengers by railway.
I4C8125 Public sector operators not to be franchisees.
1
The following bodies and persons (in this Part referred to as “public sector operators”) shall not be franchisees—
a
any Minister of the Crown, Government department or other emanation of the Crown;
b
any local authority;
F265bb
the Greater London Authority;
F266bc
Transport for London;
c
F713ca
any combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;
d
any body corporate whose members are appointed by a Minister of the Crown, a Government department, a local authority F267, the Greater London Authority, Transport for London or F732a metropolitan county passenger transport authorityF714, an Integrated Transport Authority for an integrated transport area in England or a combined authority or by a body corporate whose members are so appointed;
e
a company—
i
a majority of whose issued shares are held by or on behalf of any of the bodies or persons falling within paragraphs (a) to (d) above;
ii
in which the majority of the voting rights are held by or on behalf of any of those bodies or persons;
iii
a majority of whose board of directors can be appointed or removed by any of those bodies or persons; or
iv
in which the majority of the voting rights are controlled by any of those bodies or persons, pursuant to an agreement with other persons;
f
a subsidiary of a company falling within paragraph (e) above.
F7072
Expressions used in sub-paragraphs (i) to (iv) of subsection (1)(e) that are defined for the purposes of the Companies Acts (see section 1174 of, and Schedule 8 to, the Companies Act 2006) have the same meaning in those sub-paragraphs.
F2683
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2684
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2685
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2686
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2687
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2688
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2689
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26 Invitations to tender for franchises.
1
F269The appropriate franchising authority may select the person who is to be the franchisee in relation to a franchise agreementfrom among those who submit tenders in response to an invitation to tender under this section for the right to provide, or to secure that a wholly owned subsidiary provides, services for the carriage of passengers by railway under that franchise agreement.
2
3
The F270appropriate franchising authority shall not issue an invitation to tender under this section to (or entertain such a tender from) any person unless F271it is of the opinion that the person has, or is likely by the commencement of the franchise term to have, an appropriate financial position and managerial competence, and is otherwise a suitable person, to be the franchisee.
F2734
F693. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2744A
The Secretary of State and the Scottish Ministers shall each publish a statement of policy about how he proposes, or (as the case may be) they propose, to exercise the power under subsection (1) above.
4B
The statement must in particular include the policy of the Secretary of State or the Scottish Ministers about—
a
when his or their selection of the person to be a franchisee under a franchise agreement is likely to be from those submitting tenders in response to an invitation to do so;
b
when it is likely such an invitation will not be issued; and
c
the means by which he is, or they are, proposing that the selection will be made in cases where there is no such invitation.
4C
In deciding whether to select the person who is to be the franchisee under a franchise agreement by means of an invitation to tender and whom so to select, the appropriate franchising authority must have regard to its statement of policy.
4D
The Secretary of State or Scottish Ministers—
a
may at any time alter or replace the statement of policy which he has made or (as the case may be) which they have made; and
b
where that statement is altered or replaced, must publish the altered or replacement statement.
4E
Before preparing, altering or replacing a statement of policy—
a
the Secretary of State must consult the National Assembly for Wales and undertake such other consultation as he considers appropriate; and
b
the Scottish Ministers must undertake such consultation as they consider appropriate.
4F
Where a statement of policy is prepared, altered or replaced, a copy of it must be laid—
a
in the case of a statement prepared, altered or replaced by the Secretary of State, before Parliament; and
b
in the case of a statement prepared, altered or replaced by the Scottish Ministers, before the Scottish Parliament.
F27526ZA No adequate tender for franchise received.
1
This section applies in the case of an invitation to tender under section 26 for the provision of services if—
a
the appropriate franchising authority receives no tender in response to the invitation; or
b
it receives a tender but considers that the services would be provided more economically and efficiently if they were provided otherwise than under a franchise agreement entered into in response to the tender.
2
The appropriate franchising authority may —
a
issue a new invitation to tender under section 26 for the provision of the services;
b
decide to secure the provision of the services under a franchise agreement with a person who did not submit a tender; or
c
decide not to seek to secure the provision of the services under a franchise agreement.
3
Nothing in this section prevents the appropriate franchising authority, where it has decided not to seek to secure the provision of services under a franchise agreement, from subsequently making a decision to issue a new invitation to tender for the provision of those services.
F27626B No adequate tenders for franchise.
1
The Authority shall give notice under subsection (2) below if—
a
it has issued an invitation to tender for the provision of any services under section 26 above (otherwise than in compliance with a direction under subsection (3)(b) below); but
b
although it has received a tender or tenders in response to the invitation, it considers that the services would be provided more economically and efficiently than under a franchise agreement entered into pursuant to the tender or any of the tenders if the Authority provided them or secured their provision otherwise than under a franchise agreement.
2
The notice shall be given to—
a
the Secretary of State; and
b
the person, or each of the persons, who submitted a tender.
3
On receipt of the notice under paragraph (a) of subsection (2) above the Secretary of State shall (after considering the matter and any representations duly made in response to a notice under paragraph (b) of that subsection and not withdrawn) give to the Authority—
a
a direction to reconsider the tender or tenders with a view to selecting a franchisee, or
b
a direction to issue new invitations to tender for the provision of the services under section 26 above,
as he considers appropriate.
4
The Authority shall give notice under subsection (5) below if it has issued an invitation to tender for the provision of any services under section 26 above in compliance with a direction under subsection (3)(b) above but either—
a
it has received no tenders in response to the invitation; or
b
although it has received a tender or tenders in response to the invitation, it considers that the services would be provided more economically and efficiently than under a franchise agreement entered into pursuant to the tender or any of the tenders if the Authority provided them or secured their provision otherwise than under a franchise agreement.
5
The notice shall be given to—
a
the Secretary of State; and
b
if the Authority received a tender or tenders, the person, or each of the persons, who submitted a tender.
6
In a case where the Authority has received no tenders, on receipt of the notice under subsection (5)(a) above the Secretary of State shall give to the Authority a direction not to seek to secure the provision of the services under a franchise agreement.
7
In a case where the Authority has received a tender or tenders, on receipt of the notice under paragraph (a) of subsection (5) above the Secretary of State shall (after considering the matter and any representations duly made in response to a notice under paragraph (b) of that subsection and not withdrawn) give to the Authority—
a
a direction to reconsider the tender or tenders with a view to selecting a franchisee, or
b
a direction not to seek to secure the provision of the services under a franchise agreement,
as he considers appropriate.
8
Any notice under subsection (2)(b) or (5)(b) above shall specify a period (not being less than 28 days from the date of the service of the notice) within which representations may be made to the Secretary of State.
9
The Secretary of State may at any time—
a
revoke a direction under subsection (6) or (7)(b) above; and
b
instead direct the Authority to issue new invitations to tender for the provision of the services under section 26 above.
F27726C Review of directions.
1
If the Secretary of State gives a direction under section 26B(3) or (7) above, he shall give notice to the person or persons who submitted the tender or tenders that he has done so.
2
An application for the review of a decision of the Secretary of State to give a direction under section 26B(3) or (7) above may be made to the court by any person who submitted a tender within 42 days from the date of service on him of the notice under subsection (1) above.
3
Except as provided by subsection (2) above, a direction under section 26A or 26B above shall not be questioned by any legal proceedings whatever.
4
In subsection (2) above “the court” means—
a
the High Court in relation to England and Wales; and
b
the Court of Session in relation to Scotland.
27 Transfer of franchise assets and shares.
1
It shall be the duty of the F278appropriate franchising authority before entering into a franchise agreement to satisfy F279itself that if the franchise agreement is entered into—
a
the initial franchise assets (if any) for that franchise agreement will be vested in the person who is to be the franchise operator; and
b
if the franchise agreement is to be one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, that the franchise operator will be a wholly owned subsidiary of the franchisee.
2
After a franchise agreement has been entered into, it shall be the duty of the F278appropriate franchising authority , before any property, rights or liabilities are subsequently designated as franchise assets in accordance with the terms of, or by amendment to, the franchise agreement, to satisfy F279itself that, if the property, rights or liabilities in question are so designated, they will be vested in the franchise operator.
3
Without the consent of the F278appropriate franchising authority , the franchise operator shall not—
a
if and to the extent that the franchise assets are property or rights—
i
transfer or agree to transfer, or create or agree to create any security over, any franchise assets or any interest in, or right over, any franchise assets; or
ii
create or extinguish, or agree to create or extinguish, any interest in, or right over, any franchise assets; and
b
if and to the extent that the franchise assets are liabilities, shall not enter into any agreement under which any such liability is released or discharged, or transferred to some other person.
4
Where the franchise agreement is one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the franchisee shall not, without the consent of the F278appropriate franchising authority , take any action which would result in the franchise operator ceasing to be a wholly owned subsidiary of his.
5
Any transaction which is entered into in contravention of subsection (3) or (4) above shall be void.
6
In England and Wales, no execution or other legal process may be commenced or continued, and no distress may be levied, against any property which is, or rights which are, franchise assets in the case of any franchise agreement.
7
In Scotland, no diligence or other legal process may be carried out or continued against any property which is, or rights which are, franchise assets in the case of any franchise agreement.
8
In any case where—
a
there are to be initial franchise assets in relation to a franchise agreement,
b
a franchise agreement is to be one which provides for subsequent designation of property, rights or liabilities as franchise assets, or
c
property, rights or liabilities are to be designated as franchise assets by an amendment made to a franchise agreement,
the F278appropriate franchising authority shall ensure that the franchise agreement includes provision specifying, or providing for the determination of, amounts to be paid in respect of the property, rights and liabilities which, immediately before the end of the franchise period, constitute the franchise assets in relation to that franchise agreement if and to the extent that they are transferred by F280a scheme under F281section 12 of the Railways Act 2005at or after the end of that period.
9
Without prejudice to the generality of the provisions that may be included in a franchise agreement with respect to the acquisition, provision, disposal or other transfer of property, rights or liabilities (whether franchise assets or not), the F278appropriate franchising authority may undertake in a franchise agreement to exercise F282its powers under F281section 12 of the Railways Act 2005 to transfer franchise assets to F282itself or another in such circumstances as may be specified in the franchise agreement.
10
The F278appropriate franchising authority shall ensure that every franchise agreement includes such provision (if any) as F283it may consider appropriate in the particular case for the purpose of securing—
a
that the franchise assets are adequately maintained, protected and preserved; and
b
that, at the end of the franchise period, possession of such of the franchise assets as may be specified for the purpose in the agreement, or by the Franchising Director in accordance with the agreement, is delivered up to the Franchising Director or such other person as may be so specified.
11
In this Part, “franchise assets”, in relation to any franchise agreement, means—
a
any property, rights or liabilities which are designated as franchise assets in the franchise agreement as originally made (in this section referred to as the “initial franchise assets”), and
b
any property, rights or liabilities which, after the making of the franchise agreement, are designated as franchise assets in accordance with the terms of, or by an amendment made to, the franchise agreement,
but does not include any property, rights or liabilities which, in accordance with the terms of, or by an amendment made to, the franchise agreement, have for the time being ceased to be designated as franchise assets.
12
No rights or liabilities under contracts of employment shall be designated as franchise assets.
13
In this section “security” has the meaning given by section 248(b) of the M2Insolvency Act 1986.
F28414
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F28415
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28 Fares and approved discount fare schemes.
1
A franchise agreement may include provision with respect to the fares to be charged for travel by means of the franchised services.
2
Subject to the other provisions of this Act, if it appears to the F285appropriate franchising authority that the interests of persons who use, or who are likely to use, franchised services so require, F286it shall ensure that the franchise agreement in question contains any such provision as F286it may consider necessary for the purpose of securing that any fares, or any fares of a class or description, which are to be charged are, in F286its opinion, reasonable in all the circumstances of the case.
3
Every franchise agreement shall include provision requiring the franchise operator—
a
to participate in every approved discount fare scheme,
b
to charge fares, in cases to which such a scheme applies, at rates which are not in excess of the levels or, as the case may be, the maximum levels set by the scheme, and
c
otherwise to comply with the requirements of every such scheme,
if and to the extent that the franchised services are services, or services of a class or description, in relation to which the approved discount fare scheme in question applies.
4
5
In this section—
“discount fare scheme” means any scheme for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance with such conditions (if any) as may be imposed by or under the scheme;
“discounted fare” means a lower fare than the standard fare for the journey in question;
“scheme” includes any agreement or arrangements.
I529 Other terms and conditions of franchise agreements.
1
The F289appropriate franchising authority may enter into a franchise agreement on conditions requiring—
a
the rendering to the Franchising Director by the franchisee or the franchise operator of payments of such amounts and at such intervals as may be specified in, or determined by or under, the franchise agreement; F290. . .
F290b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
A franchise agreement may include provision requiring the franchisee—
a
to operate any additional railway asset; or
b
to secure the operation of any additional railway asset by the franchise operator or any other wholly owned subsidiary of the franchisee.
3
A franchise agreement shall include provision specifying the franchise term and may include provision enabling that term to be extended by such further term as may be specified in the franchise agreement.
4
Without prejudice to the generality of the provisions relating to property, rights and liabilities that may be included in a franchise agreement, a franchise agreement may include provision requiring the franchise operator—
a
to acquire from such person as may be specified in the franchise agreement, and to use, such property or rights as may be so specified; or
b
to undertake such liabilities as may be so specified.
5
Subject to any requirements imposed by or under this Act, a franchise agreement may contain any such provisions as the F289appropriate franchising authority may think fit.
F2916
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F2917
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
In this Part, “additional railway asset” means any network, station or light maintenance depot, and any reference to an additional railway asset includes a reference to any part of an additional railway asset.
F29230 Duty of Authority in absence of franchise.
1
The Authority shall provide, or secure the provision of, services for the carriage of passengers by railway where—
a
a direction not to seek to secure the provision of the services under a franchise agreement has been given to the Authority under section 26A or 26B above (and not revoked); or
b
a franchise agreement in respect of the services is terminated or otherwise comes to an end but no further franchise agreement has been entered into in respect of the services (otherwise than because of such a direction).
2
The duty in subsection (1) above in relation to any services ceases if the services begin (or again begin) to be provided under a franchise agreement.
3
Subsection (1) above does not—
a
require the Authority to provide or secure the provision of services if and to the extent that, in its opinion, adequate alternative railway passenger services are available;
b
preclude it from giving notice under subsection (5) of section 38 below in relation to any of the services, in which case its duty under this section to secure the provision of the services to which the notice relates will (subject to subsections (5) and (6) of that section) terminate on the day specified in the notice in pursuance of paragraph (b) of that subsection; or
c
preclude it from ceasing to provide or secure the provision of any of the services in any case falling within any of paragraphs (a) to (d) of subsection (2) of that section.
31 Leases granted in pursuance of franchise agreements: no security of tenure.
1
In any case where—
a
a franchise agreement makes provision for the franchisee, the franchise operator or a wholly owned subsidiary of the franchisee to enter into an agreement (“the contemplated agreement") with a person who has an interest in a network or a railway facility,
b
the network or railway facility is to be used for or in connection with the provision of any of the franchised services, and
c
the contemplated agreement creates a tenancy of any property which (whether in whole or in part) constitutes, or is comprised in, the network or railway facility,
2
For the purposes of this section, a person shall be regarded as having an interest in a network or railway facility if he has an estate or interest in, or right over, any of the property which constitutes, or is comprised in, the network or railway facility.
3
Any reference in this section to a network or a railway facility includes a reference to any part of a network or railway facility.
4
In this section—
“agreement” includes a lease, underlease or sublease (as well as a tenancy agreement or an agreement for a lease, underlease or sublease);
“tenancy” has the same meaning as it has in Part II of the M5Landlord and Tenant Act 1954 or, in Scotland, as it has in the M6Tenancy of Shops (Scotland) Act 1949.
Passenger Transport Authorities and Executives
F29332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F29433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34 Passenger Transport Authorities and Executives: franchising.
35 Termination and variation of section 20(2) agreements by the F296Authority.
36 Miscellaneous amendments of the Transport Act 1968.
1
In section 10 of the M7Transport Act 1968, in subsection (1) (which specifies the powers of Passenger Transport Executives) after paragraph (vi) there shall be inserted—
(via) with the approval of the Authority, to enter into and carry out agreements with any person who is the operator of, or who has an estate or interest in, or right over, a network, station or light maintenance depot or some part of a network, station or light maintenance depot, in connection with the building, replacement, redevelopment, refurbishment, repair, maintenance, operation or staffing of the network, station or light maintenance depot or any part thereof;
2
After paragraph (viii) of that subsection there shall be inserted—
viiia
to let locomotives and other rolling stock on hire to any person who is (within the meaning of Part I of the Railways Act 1993) the franchisee or the franchise operator under a franchise agreement to which the Executive is a party;
viiib
to let locomotives and other rolling stock on hire to a person not falling within paragraph (viiia) above—
a
for or in connection with the provision of railway passenger services within that area or within the permitted distance; or
b
with the written consent of the Secretary of State, for or in connection with the provision of railway passenger services outside that area and beyond the permitted distance;
viiic
with the approval of the Authority, to enter into and carry out agreements with the owner of any locomotive or other rolling stock concerning the persons to whom, or the terms on which, the locomotive or other rolling stock may be let on hire;
3
In section 20(2) of that Act, in paragraph (a) (duty of Passenger Transport Executive to keep under review the railway passenger services provided by the Railways Board for meeting the needs of persons travelling between places in the Executive’s passenger transport area etc) for the words “by the Railways Board" there shall be substituted the words “
by passenger service operators (within the meaning of Part I of the Railways Act 1993)
”
.
4
After section 23 of that Act there shall be inserted—
23A Interpretation of certain provisions of this Part relating to railways.
1
For the purposes of sections 10, 15 and 20 of this Act—
a
“light maintenance depot”, “locomotive”, “network”, “railway passenger services”, “rolling stock” and “station” have the meaning given in section 83(1) of the Railways Act 1993; and
b
“operator” has the meaning given in section 6(2) of that Act.
2
For the purposes of sections 10(1)(vi), 15(1)(d) and 20(2)(b), (4) and (6) of this Act “wholly-owned subsidiary” has the meaning given by section 736 of the M8Companies Act 1985.
5
In section 159(1) of that Act (general interpretation), in the definition of “subsidiary" and “wholly-owned subsidiary", for the words “subject to section 51(5)" there shall be substituted the words “
subject to sections 23A(2) and 51(5)
”
.
Closures
37 Proposals to discontinue non-franchised etc. passenger services.
F298. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38 Proposals to discontinue franchised etc. passenger services.
F299. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39 Notification of proposals to close operational passenger networks.
F300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40 Proposals to close passenger networks operated on behalf of theAuthority.
F301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41 Notification of proposals to close railway facilities used in connection with passenger services.
F302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42 Proposals to close passenger railway facilities operated on behalf of the Authority.
F303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43 Notification to, and functions of, theSecretary of State and the relevantRail Passengers Committees.
F304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45 Closure conditions: general.
F306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46 Variation of closure conditions.
F307. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46A General determinations of minor closures.
F308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46B Notification of minor closures to Regulator.
F309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47 Withdrawal of bus substitution service.
F310. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47A Objections to withdrawal of bus substitution service.
F311. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
47B Revocation or variation of bus substitution conditions.
F312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48 Experimental railway passenger services.
F313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
49 Abolition of former closure procedures, exemptions from new procedures and imposition of alternative procedure.
F314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C2950 Exclusion of liability for breach of statutory duty.
1
The obligations of the F315Secretary of State and of the Scottish Ministers, so far as imposed by or under any provision of this Part—
a
F316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F317b
. . .
c
to secure the provision of any services, or
d
to secure the operation of any additional railway asset,
shall not give rise to any form of duty or liability enforceable by civil proceedings for breach of statutory duty.
2
F316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Supplementary powers of the Franchising Director etc.
F31851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F31952. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F32053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I654 Exercise of functions for purpose of encouraging investment in the railways.
1
The F321Secretary of State or the Scottish Ministers—
a
in exercising or deciding whether or not to exercise any of F322his or their franchising functions, may take into account the desirability of encouraging railway investment; and
b
may exercise any such functions for the purpose of encouraging railway investment or for purposes which include that purpose.
F3232
The Secretary of State and the Scottish Ministers shall each have power to enter into agreements under which an undertaking is given by him or them—
a
to exercise his or their franchising functions;
b
to refrain from exercising them; or
c
to exercise them in a particular manner.
3
In this section—
“franchising functions”, in relation to the F324Secretary of State or the Scottish Ministers, means—
- a
any F325of the functions of the Secretary of State or of the Scottish Ministers under sections 17 to 19, 23, 24, 26 to F32631F327. . . above;
- b
any power conferred on the F324Secretary of State or the Scottish Ministers under or by virtue of F328section 1(2) of the Railways Act 2005 ; and
- c
any other functions of the F324Secretary of State or the Scottish Ministers which relate to the provision of railway passenger services, or the operation of additional railway assets, under or by virtue of franchise agreements;
- a
F329 “franchising functions”, in relation to a Passenger Transport Authority or Passenger Transport Executive, means any functions conferred or imposed on the Authority or, as the case may be, the Executive under or by virtue of section 34 above;“railway investment” means investment in assets for use in the provision of railway services.
Enforcement by the Regulator and the F405Authority
Words in the heading before section 55 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 35(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))
C30C8455 Orders for securing compliance.
1
Subject to subsections (2) to F330(5C) and section 56 below, where the appropriate F331authority is satisfied that a relevant operator is contravening, or is likely to contravene, any relevant condition or requirement, F331it shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.
2
a
that a relevant operator is contravening, or is likely to contravene, any relevant condition or requirement, and
b
that it is requisite that a provisional order be made,
3
In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the appropriate F331authority shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made.
4
Subject to F332subsections (5) toF330(5C) and section 56 below, the appropriate F331authority shall confirm a provisional order, with or without modifications, if—
a
F331it is satisfied that the relevant operator to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and
b
the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.
5
The appropriate F331authority shall not make a final order, or make or confirm a provisional order, in relation to a relevant operator if F331it is satisfied—
C31a
F335b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F335c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3365ZA
F337Neither the Secretary of State nor the Scottish Ministers shall make a final order, or make or confirm a provisional order, in relation to a licence holder or person under closure restrictions unless—
a
F338the Secretary of State has or (as the case may be) those Ministers havegiven notice to F339the Office of Rail Regulation specifying a period within which F340it may give notice to F341him or them if F340it considers that the most appropriate way of proceeding is under the M9Competition Act 1998;
b
that period has expired; and
F3435A
F3455B
If the appropriate authority is satisfied—
a
that the relevant operator has agreed to take, and is taking, all such steps as it appears to the appropriate authority for the time being to be appropriate for the relevant operator to take for the purpose of securing or facilitating compliance with the condition or requirement in question, or
b
that the contravention or apprehended contravention will not adversely affect the interests of users of railway services or lead to any increase in public expenditure,
it shall only make a final order, or make or confirm a provisional order, if it considers it appropriate to do so.
F3465C
Neither the Secretary of State nor the Scottish Ministers shall be required, in respect of any contravention or apprehended contravention of the terms of a franchise agreement, to make a final order, or to make or to confirm a provisional order, if he considers or (as the case may be) they consider—
a
that the contravention or apprehended contravention is trivial; and
b
that it would be inappropriate, for that reason, to make or to confirm the order.
5D
The appropriate authority must comply with subsection (6)—
a
in a case where the appropriate authority is the Secretary of State or the Scottish Ministers, if that authority decides not to make a final order, or not to make or to confirm a provisional order, because of provision contained in subsection (5) or (5ZA) above; or
b
in the case of the Office of Rail Regulation, if it decides not to make a final order, or not to make or to confirm a provisional order, because of provision contained in subsection (5), (5A) or (5B) above.
F3476
Where the appropriate authority must comply with this subsection, it must—
a
serve notice of its decision on the relevant operator; and
b
publish the notice in such manner as F331it considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.
7
A final or provisional order—
a
shall require the relevant operator to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;
b
shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and
c
may be revoked at any time by the appropriate F331authority.
F3487A
The provision that may be made in a final or provisional order includes, in particular, provision requiring the relevant operator to pay F349 in the event of a specified contravention of the order—
a
in the case of an order made by the Scottish Ministers, to them, and
b
in any other case, to the Secretary of State,
such reasonable sum in respect of the contravention as is specified in, or determined in accordance with, the order in such manner, at such place and by such date as is so specified or determined.
7B
The amount of the sum may not exceed 10 per cent. of the turnover of the relevant operator determined in accordance with an order made by the Secretary of State; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.
7C
If the whole or any part of the sum is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the M10Judgments Act 1838.
9
Without prejudice to F350section 44 of the Railways Act 2005 (exclusion of liability for breach of statutory duty) , nothing in this section or in sections 56 to 58 below shall exclude the availability of any remedy in respect of any contravention or apprehended contravention of a relevant condition or requirement.
10
In this Part—
“the appropriate F351authority” means—
- a
in relation to any relevant condition or requirement in the case of a licence holder, F352. . . , F353. . . F339the Office of Rail Regulation ;
- aa
F354in relation to any relevant condition or requirement in the case of—
- i
a franchisee under a Scottish franchise agreement,
- ii
a franchise operator in relation to such an agreement, or
- iii
a person under Scottish closure restrictions,
the Scottish Ministers; and
- i
- b
in relation to any relevant condition or requirement in the case of—
- i
a franchisee not falling within paragraph (aa)(i),
- ii
a franchise operator not falling within paragraph (aa)(ii), or
- iii
a person under closure restrictions that are not Scottish closure restrictions,
the Secretary of State;
- i
- a
“final order” means an order under this section, other than a provisional order F355or an order under subsection (7B);
“provisional order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order;
“relevant condition or requirement” means—
- a
in the case of a licence holder, any condition of his licence;
- b
in the case of a franchisee, or any franchise operator who is a party to the franchise agreement, any term of the franchise agreement;
- c
F356in the case of a person under closure restrictions, any duty mentioned in subsection (11) to which he is subject;
- a
F357“relevant operator” means—
- a
a licence holder;
- b
a franchisee;
- c
a franchise operator who is a party to the franchise agreement;
- d
a person under closure restrictions.
- a
11
In F358subsections F359(5ZA)and (10)above, “person under closure restrictions” means a personF360 who is under—
a
a duty under section 22(8), 26(8), 29(8) or 37(2) of the Railways Act 2005 not to discontinue a railway passenger service or an experimental passenger service or not to discontinue the operation or use of a network or station, or part of a network or station;
b
a duty to comply with any requirement imposed under section 33(2)(i) of that Act (closure requirements imposed on operators); or
c
a duty to comply with conditions to which he has agreed under section 34(5) of that Act (conditions of minor modification determination).
F36111A
In the definition of “the appropriate authority” in subsection (10) above the reference to a relevant condition or requirement in the case of a person under Scottish closure restrictions is a reference to a relevant condition or requirement which—
a
falls within paragraph (c) of the definition in that subsection;
b
is imposed or arises in the case of a closure; and
c
is so imposed or so arises in a Scottish case;
and the reference to a relevant condition or requirement in the case of a person under closure restrictions that are not Scottish closure restrictions is a reference to any relevant condition or requirement in relation to which paragraphs (a) and (b) are satisfied, but not paragraph (c).
11B
In subsection (11A), “a Scottish case”, in relation to a closure, means—
a
a case in which the Scottish Ministers are the national authority for the purposes of provisions of Part 4 of the Railways Act 2005 relating to the proposal for the closure;
b
a case in which it is the Scottish Ministers who make a determination under section 34 of that Act (minor modifications) in relation to the closure; or
c
a case in which the closure is a closure notice of which is given under section 37 of that Act (experimental passenger services) and the proposal relates to a Scotland-only service.
F36212
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C32C8456 Procedural requirements F363for section 55 orders.
1
Before F364it makes a final order or confirms a provisional order, the appropriate F365authority shall give notice—
a
stating that F364it proposes to make or confirm the order and setting out its effect,
b
setting out—
i
the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed,
ii
the acts or omissions which, in F366its opinion, constitute or would constitute contraventions of that condition or requirement, and
iii
the other facts which, in F366its opinion, justify the making or confirmation of the order, and
c
specifying the period (not being less than F36721 days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
2
A notice under subsection (1) above shall be given—
a
by publishing the notice in such manner as the appropriate F365authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
b
by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the relevant operator to whom the order relates.
F3682A
3
The appropriate F365authority shall not make a final order with modifications, or confirm a provisional order with modifications, except—
a
with the consent to the modifications of the relevant operator to whom the order relates; or
b
after complying with the requirements of subsection (4) below.
4
The requirements mentioned in subsection (3) above are that the appropriate F365authority shall—
a
serve on the relevant operator to whom the order relates such notice as appears to him requisite of F366its proposal to make or confirm the order with modifications;
b
F371unless the proposed modifications are trivial, in that notice specify a period (not being less than seven from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and
c
consider any representations or objections which are duly made and not withdrawn.
5
As soon as practicable after making a final order or making or confirming a provisional order, the appropriate F365authority shall—
a
serve a copy of the order on the relevant operator to whom the order relates; and
b
publish the order in such manner as F364it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.
6
Before revoking a final order or a provisional order which has been confirmed, the appropriate F365authority shall give notice—
a
stating that F364it proposes to revoke the order and setting out the effect of its revocation, and
b
specifying the period (not being less than F37221 days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
7
8
A notice under subsection (6) or (7) above shall be given—
a
by publishing the notice in such manner as the appropriate F365authority considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and
b
by serving a copy of the notice on the relevant operator to whom the order relates.
C33C8457 Validity and effect of F373section 55 orders.
1
If the relevant operator to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground—
a
that its making or confirmation was not within the powers of section 55 above, or
b
that any of the requirements of section 56 above have not been complied with in relation to it,
he may, within 42 days from the date of service on him of a copy of the order, make an application to the court under this section.
2
On any such application the court, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the relevant operator have been substantially prejudiced by a failure to comply with those requirements—
a
may quash the order or any provision of the order; F374. . .
F375b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F3762A
If such an application is made in relation to a provision of an order requiring the payment of a sum in the event of a contravention and the sum would be payable before the time when the application is determined, it need not be paid until that time.
2B
Where such an application is so made the court, if satisfied as mentioned in subsection (2) above, may (instead of quashing the order or the provision of the order) make provision under either or both of paragraphs (a) and (b) of subsection (2C) below.
2C
The provision referred to in subsection (2B) above is—
a
provision substituting for the sum, or provision for determining a sum, specified in the order such lesser sum, or such other provision for determining a sum, as the court considers appropriate in all the circumstances of the case; and
b
provision substituting for the date by which the sum is to be paid specified in or determined in accordance with the order such later date as the court considers appropriate in all the circumstances of the case.
2D
Where the court substitutes a lesser sum, or different provision for determining a sum, it may require the payment of interest on the new sum at such rate, and from such date, as it determines; and where it specifies as the date by which the sum is to be paid a date before the determination of the application it may require the payment of interest on the sum from that date at such rate as it determines.
3
Except as provided by this section, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.
4
The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.
5
Where a duty is owed by virtue of subsection (4) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.
6
In any proceedings brought against a relevant operator in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.
7
Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the appropriate F377authority for an injunction or for interdict or for any other appropriate relief or remedy.
8
Where a relevant operator to whom a final or provisional order relates has made an application pursuant to subsection (1) above questioning the validity of that order, the making of that application shall not affect—
a
his obligation to comply with the order, or
b
the right which any person may have to bring civil proceedings against him in pursuance of subsection (5) or (7) above.
9
In this section and F378sections 57F and 58 below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.
C84C3457AF379 Penalties.
1
If the appropriate authority is satisfied that a relevant operator has contravened or is contravening—
a
a relevant condition or requirement, or
b
a final or provisional order made by the appropriate authority,
the appropriate authority may impose on the relevant operator a penalty of such amount as is reasonable.
2
A penalty is payable
F380a
in the case of a penalty imposed by the Scottish Ministers, to them; and
b
in any other case, to the Secretary of State.
3
The amount of a penalty imposed on a relevant operator may not exceed 10 per cent. of his turnover determined in accordance with an order made by the Secretary of State; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.
4
No penalty may be imposed in respect of any contravention of a final or provisional order if provision was made in the order by virtue of section 55(7A) above in relation to the contravention.
5
F381Neither the Secretary of State nor the Scottish Ministers shall impose a penalty on a licence holder or person under closure restrictions unless—
a
F382the Secretary of State has or (as the case may be) those Ministers have given notice to F383the Office of Rail Regulation specifying a period within which F384it may give notice to F385him or them if F384it considers that the most appropriate way of proceeding is under the M11Competition Act 1998;
b
that period has expired; and
6
F387C35C8457B Statement of policy.
1
2
A statement of policy may include provision for a decision whether to impose a penalty, or the determination of the amount of any penalty, in respect of the contravention of any relevant condition or requirement or order to be influenced by—
a
the desirability of securing compliance with that relevant condition or requirement or order;
b
the consequences or likely consequences of anything which has been or is being done or omitted to be done in contravention of that relevant condition or requirement or order; and
c
the desirability of deterring contraventions of relevant conditions and requirements and final and provisional orders.
3
In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention the F388Secretary of State, the Scottish Ministers and Regulator shall have regard to any statement of F390his, their or its F391. . . policy published at the time when the contravention occurred.
4
a
b
shall publish the altered or replacement statement.
5
6
7
This section applies in relation to sums required to be paid by virtue of section 55(7A) above as to penalties, but as if—
a
references to the imposition of penalties were to the inclusion in an order of a requirement to pay a sum;
b
references to relevant conditions or requirements were omitted; and
c
the reference in subsection (2)(b) above to anything which has been or is being done or omitted to be done included a reference to anything which is likely to be done or omitted to be done.
F393C36C8457C Procedural requirements for penalties.
1
Before it imposes a penalty on a relevant operator, the appropriate authority shall give notice—
a
stating that it proposes to impose a penalty on the relevant operator and the amount of the penalty proposed,
b
setting out the relevant condition or requirement or order in question,
c
specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or order and the other facts which, in its opinion, justify the imposition of a penalty and the amount of the penalty proposed,
d
specifying the manner in which, and place at which, it is proposed to require the penalty to be paid, and
e
specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
2
A notice under subsection (1) above shall be given—
a
by publishing the notice in such manner as the appropriate authority considers appropriate; and
b
by serving a copy of the notice on the relevant operator.
3
4
The appropriate authority shall not modify a proposal to impose a penalty except—
a
with the consent of the relevant operator;
b
where the modifications consist of a reduction of the amount of the penalty or a deferral of the date by which it is to be paid; or
c
after complying with the requirements of subsection (5) below.
5
The requirements mentioned in subsection (4)(c) above are that the appropriate authority shall—
a
give to the relevant operator such notice as appears to it requisite of its modified proposal;
b
unless the proposed modifications are trivial, in that notice specify a period (not being less than seven days from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and
c
consider any representations or objections which are duly made and not withdrawn.
6
As soon as practicable after imposing a penalty, the appropriate authority shall give notice—
a
stating that it has imposed a penalty on the relevant operator and its amount;
b
setting out the relevant condition or requirement or order in question;
c
specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or order and the other facts which, in its opinion, justify the imposition of the penalty and its amount;
d
specifying the manner in which, and place at which, the penalty is to be paid; and
e
specifying the date (not being less than fourteen days from the date of publication of the notice) by which the penalty is to be paid.
7
A notice under subsection (6) above shall be given—
a
by publishing the notice in such manner as the appropriate authority considers appropriate; and
b
by serving a copy of the notice on the relevant operator.
8
The relevant operator may, within 21 days of the date of service on him of the notice under subsection (6) above, make an application to the appropriate authority for it to specify different dates by which different portions of the penalty are to be paid.
F396C37C8457D Time limits.
1
No penalty may be imposed in respect of a contravention by a relevant operator—
a
by virtue of paragraph (a) of subsection (1) of section 57A above in a case where no final or provisional order has been made in relation to the contravention, or
b
by virtue of paragraph (b) of that subsection,
unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator within two years of the time of the contravention.
2
No penalty may be imposed in respect of a contravention by a relevant operator by virtue of section 57A(1)(a) above in a case where a final or provisional order has been made in relation to the contravention unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator—
a
within three months of the confirmation of the provisional order or the making of the final order; or
b
where the provisional order is not confirmed, within six months of the making of the provisional order.
F397C38C8457E Interest and payment of instalments.
1
If the whole or any part of a penalty is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the M13Judgments Act 1838.
2
If an application is made under subsection (8) of section 57C above in relation to a penalty, the penalty need not be paid until the application has been determined.
3
If the appropriate authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the appropriate authority under that subsection, so much of the penalty as has not already been paid is to be paid immediately.
F398C39C8457F Validity and effect of penalties.
1
If the relevant operator to whom a F399penalty notice relates is aggrieved by a penalty and desires to question its validity on the ground—
a
that it was not within the powers of section 57A above,
b
that any of the requirements of section 57C above have not been complied with in relation to it and his interests have been substantially prejudiced by the non-compliance, or
c
that it was unreasonable of the appropriate authority not to grant an application under section 57C(8) above;
he may make an application to the court under this section.
2
An application under this section by a person shall be made—
a
where it is on the ground mentioned in subsection (1)(c) above, within 42 days from the date on which he is notified of the decision not to grant the application under section 57C(8) above, and
b
in any other case, within 42 days from the date of service on him of the notice under section 57C(6) above.
3
If an application is made under this section in relation to a penalty, the penalty need not be paid until the application has been determined.
4
On an application under this section on the ground mentioned in subsection (1)(a) or (b) above the court, if satisfied that the ground is established, may quash the penalty or (instead of quashing it) make provision under either or both of paragraphs (a) and (b) of subsection (5) below.
5
The provision referred to in subsection (4) above is—
a
provision substituting a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; and
b
provision substituting as the date by which the penalty, or any portion of the penalty, is to be paid a date later than that specified in the notice under section 57C(6) above.
6
On an application under this section on the ground mentioned in subsection (1)(c) above the court, if satisfied that the ground is established, may specify different dates by which different portions of the penalty are to be paid.
7
Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it determines; and where it specifies as the date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application it may require the payment of interest on the penalty, or portion, from that date at such rate as it determines.
8
Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.
C40C8458 Power to require information etcF400for purposes of sections 55 and 57A.
1
Where it appears to the appropriate F401authority that a relevant operator F402may have contravened or be contravening—
a
a relevant condition or requirement, or
b
a final or provisional order made by the appropriate authority,
2
A notice under this subsection is a notice signed by the appropriate F404authority and—
a
requiring the person on whom it is served to produce, at a time and place specified in the notice, to the appropriate F404authority or to any person appointed by the appropriate F404authority for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
b
requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the appropriate F404authority such information as may be specified or described in the notice.
3
No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.
4
A person who without reasonable excuse fails to do anything required of him by notice under subsection (2) above is guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
5
A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (2) above to produce is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
6
If a person makes default in complying with a notice under subsection (2) above, the court may, on the application of the appropriate F404authority, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
7
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
Railway administration orders, winding up and insolvency
59 Meaning and effect of railway administration order.
1
A “railway administration order” is an order of the court made in accordance with section 60, 61 or 62 below in relation to a protected railway company and directing that, during the period for which the order is in force, the affairs, business and property of the company shall be managed, by a person appointed by the court,—
a
for the achievement of the purposes of such an order; and
b
in a manner which protects the respective interests of the members and creditors of the company.
2
The purposes of a railway administration order made in relation to any company shall be—
a
the transfer to another company, or (as respects different parts of its undertaking) to two or more different companies, as a going concern, of so much of the company’s undertaking as it is necessary to transfer in order to ensure that the relevant activities may be properly carried on; and
b
the carrying on of those relevant activities pending the making of the transfer.
3
Schedule 6 to this Act shall have effect for applying provisions of the M14Insolvency Act 1986 where a railway administration order is made.
4
Schedule 7 to this Act shall have effect for enabling provision to be made with respect to cases in which, in pursuance of a railway administration order, another company is to carry on all or any of the relevant activities of a protected railway company in place of that company.
5
Without prejudice to paragraph 20 of Schedule 6 to this Act, the power conferred by section 411 of the M15Insolvency Act 1986 to make rules shall apply for the purpose of giving effect to the railway administration order provisions of this Act as it applies for the purpose of giving effect to Parts I to VII of that Act, but taking any reference in that section to those Parts as a reference to those provisions.
C416
For the purposes of this Part—
F406za
“appropriate national authority”—
i
in relation to a Scottish protected railway company or a company subject to a railway administration order that was such a company when the order was made, means the Scottish Ministers; and
ii
in relation to any other protected railway company or company subject to a railway administration order, means the Secretary of State;
a
“protected railway company” means a company which is both a private sector operator and the holder of—
i
a passenger licence F407or a European licence which authorises the carriage of passengers by railway (or both) ; or
ii
a network licence, a station licence or a light maintenance depot licence; F408. . .
b
the “relevant activities”, in relation to a protected railway company, are—
i
in the case of a company which is the holder of a F407or a European licence which authorises the carriage of passengers by railway (or both) passenger licence, the carriage of passengers by railway; or
ii
in the case of a company which is the holder of a network licence, a station licence or a light maintenance depot licence, the management of a network, a station or a light maintenance depot, according to the description of licence in question.
F409c
“Scottish protected railway company” means a protected railway company that is such a company only in respect of activities carried on by it as franchise operator in relation to a Scottish franchise agreement.
7
In this section—
“business” and “property” have the same meaning as they have in the M16Insolvency Act 1986;
F708“the court”, in relation to a protected railway company, means the court—
- a
having jurisdiction to wind up the company, or
- b
that would have such jurisdiction apart from section 221(2) or 441(2) of the Insolvency Act 1986 (exclusion of winding up jurisdiction in case of companies having principal place of business in, or incorporated in, Northern Ireland);
- a
“the railway administration order provisions of this Act” means this section, sections 60 to 65 below and Schedules 6 and 7 to this Act.
C4260 Railway administration orders made on special petitions.
F4101
If, on an application relating to a protected railway company the court is satisfied that either or both of the grounds specified in subsection (2) below is satisfied in relation to that protected railway company, the court may make a railway administration order in relation to that company.
2
The grounds mentioned in subsection (1) above are, in relation to any company,—
a
that the company is or is likely to be unable to pay its debts;
b
that, in a case in which the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the company under section 124A of the 1986 Act (petition by the Secretary of State following inspectors’ report etc), it would be just and equitable, as mentioned in that section, for the company to be wound up.
3
Notice of any petition under this section for a railway administration order shall be given forthwith to such persons and in such manner as may be prescribed by rules made under section 411 of the 1986 Act; and no such petition shall be withdrawn except with the leave of the court.
4
Subsections (4) and (5) of section 9 of the 1986 Act (powers on application for administration order) shall apply on the hearing of the petition for a railway administration order in relation to any company as they apply on the hearing of a petition for an administration order.
5
Subsections (1), (2), (4) and (5) of section 10 of the 1986 Act (effect of petition) shall apply in the case of a petition for a railway administration order in relation to any company as if—
a
the reference in subsection (1) to an administration order were a reference to a railway administration order;
b
paragraph (b) of that subsection did require the leave of the court for the taking of any of the steps mentioned in paragraphs (b) and (c) of subsection (2) (appointment of, and exercise of functions by, administrative receiver); and
c
the reference in paragraph (c) of subsection (1) to proceedings included a reference to any proceedings under or for the purposes of section 55 F411or 57A above.
6
For the purposes of this section a company is unable to pay its debts if—
a
it is a company which is deemed to be so unable under section 123 of the 1986 Act (definition of inability to pay debts); or
b
it is an unregistered company, within the meaning of Part V of the 1986 Act, which is deemed, by virtue of any of sections 222 to 224 of that Act, to be so unable for the purposes of section 221 of that Act (winding up of unregistered companies).
7
In this section—
“the 1986 Act” means the M17Insolvency Act 1986;
“the court” has the same meaning as in section 59 above.
C4361 Restriction on making winding-up order in respect of protected railway company.
1
Where a petition for the winding up of a protected railway company is presented by a person other than the Secretary of State, the court shall not make a winding-up order in relation to that company on that petition unless—
a
notice of the petition has been served on—
i
the F412appropriate national authority ; and
ii
F413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
a period of at least fourteen days has elapsed since the service of that notice.
2
Where a petition for the winding up of a protected railway company has been presented—
b
F414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
may, at any time before a winding-up order is made on the petition, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of a winding-up order.
3
Where, on a petition for the winding up of a protected railway company, the court makes, or proposes to make, a railway administration order by virtue of subsection (2) above, subsections (4) and (5) of section 9 of the M18Insolvency Act 1986 (powers on application for administration order) shall apply on the hearing of that petition as they apply on the hearing of a petition for an administration order.
4
In this section “the court” has the same meaning as in section 59 above.
C4462 Restrictions on voluntary winding up and insolvency proceedings in the case of protected railway companies.
1
No resolution for voluntary winding up shall be passed by a protected railway company without leave of the court granted on an application made for the purpose by the company.
2
No such leave shall be granted unless—
a
notice of the application has been served on—
i
the F415appropriate national authority ; and
ii
F416. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
a period of at least fourteen days has elapsed since the service of that notice.
3
Where an application for leave under subsection (1) above has been made by a protected railway company—
b
F417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
may, at any time before leave has been granted under subsection (1) above, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of granting leave under subsection (1) above.
4
Where, on an application for leave under subsection (1) above, the court makes, or proposes to make, a railway administration order by virtue of subsection (3) above, subsections (4) and (5) of section 9 of the M19Insolvency Act 1986 (powers on application for administration order) shall apply on the hearing of that application as they apply on the hearing of a petition for an administration order.
5
No administration order under Part II of the M20Insolvency Act 1986 shall be made in relation to a protected railway company unless—
a
notice of the application for the order has been served on—
i
the F415appropriate national authority ; and
ii
F418. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
a period of at least fourteen days has elapsed since the service of that notice.
6
Where an application for an administration order under Part II of the M21Insolvency Act 1986 has been made in the case of a protected railway company—
b
F419. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
may, at any time before such an order has been made on that application, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of an administration order under Part II of the M22Insolvency Act 1986.
7
No step shall be taken by any person to enforce any security over a protected railway company’s property, except where that person has served fourteen days’ notice of his intention to take that step on—
b
F420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8
C4563 Government financial assistance where railway administration orders made.
1
Where a railway administration order is for the time being in force in relation to a company F421other than a Scottish protected railway company , the Secretary of State may, with the consent of the Treasury—
a
make to the company grants or loans of such sums as appear to him to be appropriate for the purpose of facilitating the achievement of the purposes of the order;
F422b
agree to indemnify a relevant person in respect of—
i
liabilities incurred by that person in connection with the carrying out by the railway administrator of his functions under the order; and
ii
loss or damage incurred by that person in that connection.
2
The Secretary of State may, with the consent of the Treasury, guarantee,F423. . . the repayment of the principal of, the payment of interest on and the discharge of any other financial obligation in connection with any sum which is borrowed from any person by a company F424 where that company—
a
is a company in relation to which a railway administration order is in force at the time when the guarantee is given; and
b
is not a Scottish protected railway company.
a railway administration order is in force at the time when the guarantee is given.
F4252A
A grant, loan, indemnity or guarantee under this section may be made or given in whatever manner, and on whatever terms and subject to whatever conditions, the Secretary of State considers appropriate.
3
Without prejudice to any provision applied in relation to the company by Schedule 6 to this Act—
a
the terms and conditions on which a grant is made to any company under this section may require the whole or a part of the grant to be repaid to the Secretary of State if there is a contravention of the other terms and conditions on which the grant is made; and
b
any loans which the Secretary of State makes to a company under this section shall be repaid to him at such times and by such methods, and interest on the loans shall be paid to him at such rates and at such times, as he may, with the consent of the Treasury, from time to time direct.
F4263A
The power of the Secretary of State under this section to agree to indemnify a relevant person—
a
is confined to a power to agree to indemnify that person in respect of liabilities, loss and damage incurred or sustained by him as a relevant person; but
b
includes power to agree to indemnify persons (whether or not they are identified or identifiable at the time of the agreement) who subsequently become relevant persons.
3B
A person is a relevant person for the purposes of this section if he is—
a
the railway administrator;
b
an employee of the railway administrator;
c
a member or employee of a firm of which the railway administrator is a member;
d
a member or employee of a firm of which the railway administrator is an employee;
e
a member of a firm of which the railway administrator was an employee or member at a time when the order was in force;
f
a body corporate which is the employer of the railway administrator; or
g
an officer, employee or member of such a body corporate.
3C
For the purposes of this section—
a
the references in this section to the railway administrator, in relation to a railway administration order, are references to the person appointed to achieve the purposes of the order and, where two or more persons are so appointed, are to be construed as references to any one or more of them; and
b
the references to a firm of which a person was a member or employee at a particular time include references to a firm which holds itself out to be the successor of a firm of which he was a member or employee at that time.
4
Any grant or loan made under this section and any sums required to be paid by the Secretary of State in respect of an indemnity given under this section shall be paid out of money provided by Parliament.
F4274A
If sums are paid by the Secretary of State in consequence of an indemnity agreed to under this section in the case of a company in relation to which a railway administration order is in force, the company must pay him—
a
such amounts in or towards the repayment to him of those sums as he may direct; and
b
interest, at such rates as he may direct, on amounts outstanding under this subsection.
4B
Payments to the Secretary of State under subsection (4A) must be made at such times and in such manner as he may determine.
4C
Subsection (4A) does not apply in the case of a sum paid by the Secretary of State for indemnifying a person in respect of a liability to the company in relation to which the railway administration order in question was made.
4D
The consent of the Treasury is required for the giving of a direction under subsection (4A) and for the making of a determination under subsection (4B).
5
Any sums received under subsection (3) above by the Secretary of State shall be paid into the Consolidated Fund.
C4664 Guarantees under section 63.
1
This section applies in relation to any guarantee given by the Secretary of State under section 63 above.
2
Immediately after a guarantee to which this section applies is given, the Secretary of State shall lay a statement of the guarantee before each House of Parliament.
3
Where any sum is paid out for fulfilling a guarantee to which this section applies, the Secretary of State shall, as soon as possible after the end of each financial year (beginning with that in which the sum is paid out and ending with that in which all liability in respect of the principal of the sum and in respect of the interest thereon is finally discharged), lay before each House of Parliament a statement relating to that sum.
4
Any sums required by the Secretary of State for fulfilling a guarantee to which this section applies shall be paid out of money provided by Parliament.
5
Without prejudice to any provision applied in relation to the relevant company by Schedule 6 to this Act, if any sums are paid out in fulfilment of a guarantee to which this section applies, the relevant company shall make to the Secretary of State, at such times and in such manner as the Secretary of State may from time to time direct—
a
payments of such amounts as the Secretary of State may so direct in or towards repayment of the sums so paid out; and
b
payments of interest, at such rate as the Secretary of State may so direct, on what is outstanding for the time being in respect of sums so paid out;
and the consent of the Treasury shall be required for the giving of a direction under this subsection.
6
Any sums received by the Secretary of State under subsection (5) above shall be paid into the Consolidated Fund.
7
In subsection (5) above “the relevant company” in relation to a guarantee, means the company which borrowed the sums in respect of which the guarantee was given.
64AF428Financial assistance by Scottish Ministers
1
Where a railway administration order is for the time being in force in relation to a Scottish protected railway company, the Scottish Ministers may—
a
make grants or loans to the company of such sums as appear to them to be appropriate for the purpose of facilitating the achievement of the purposes of the order; or
b
agree to indemnify a relevant person in respect of—
i
liabilities incurred by that person in connection with the carrying out by the railway administrator of his functions under the order; and
ii
loss or damage incurred by that person in that connection.
2
The Scottish Ministers may guarantee—
a
the repayment of the principal of any sum borrowed by a Scottish protected railway company in relation to which a railway administration order is in force when the guarantee is given;
b
the payment of interest on a sum so borrowed; and
c
the discharge of any other financial obligation in relation to a sum so borrowed.
3
A grant, loan, indemnity or guarantee under this section may be made or given in whatever manner, and on whatever terms and subject to whatever conditions, the Scottish Ministers consider appropriate.
4
The terms on which a grant may be made under this section include, in particular, terms requiring the whole or a part of the grant to be repaid to the Scottish Ministers if there is a contravention of the other terms on which the grant is made.
5
The terms on which a loan may be made under this section include, in particular, terms requiring—
a
the loan to be repaid at such times and by such methods, and
b
interest to be paid on the loan at such rates and at such times,
as the Scottish Ministers may from time to time direct.
6
The power of the Scottish Ministers under this section to agree to indemnify a relevant person—
a
is confined to a power to agree to indemnify that person in respect of liabilities, loss and damage incurred or sustained by him as a relevant person; but
b
includes power to agree to indemnify persons (whether or not they are identified or identifiable at the time of the agreement) who subsequently become relevant persons.
7
A person is a relevant person for the purposes of this section if he is—
a
the railway administrator;
b
an employee of the railway administrator;
c
a member or employee of a firm of which the railway administrator is a member;
d
a member or employee of a firm of which the railway administrator is an employee;
e
a member of a firm of which the railway administrator was an employee or member at a time when the order was in force;
f
a body corporate which is the employer of the railway administrator; or
g
an officer, employee or member of such a body corporate.
8
In this section—
a
references to the railway administrator, in relation to a railway administration order, are references to the person appointed to achieve the purposes of the order and, where two or more persons are so appointed, are to be construed as references to any one or more of them; and
b
the references to a firm of which a person was a member or employee at a particular time include references to a firm which holds itself out to be the successor of a firm of which he was a member or employee at that time.
9
If sums are paid out by the Scottish Ministers in respect of an indemnity or guarantee under this section, the company in relation to which the indemnity or guarantee was given must pay them—
a
such amounts in or towards the repayment to them of those sums as they may direct; and
b
interest, at such rates as they may direct, on amounts outstanding under this subsection.
10
Payments to the Scottish Ministers under subsection (9) must be made at such times and in such manner as they may determine.
11
Subsection (9) does not apply in the case of a sum paid by the Scottish Ministers for indemnifying a person in respect of a liability to the company in relation to which the railway administration order in question was made.
C4765 Meaning of “company" and application of provisions to unregistered, foreign and other companies.
F7091
In the railway administration order provisions of this Act—
“company” means—
- a
a company registered under the Companies Act 2006, or
- b
an unregistered company; and
- a
“unregistered company” means a company that is not registered under that Act.
2
In the application of section 59(1) above in a case where the protected railway company there mentioned is a foreign company, the reference to the affairs, business and property of the company shall be taken as a reference to the affairs and business of the company, so far as carried on in Great Britain, and the property of the company within Great Britain.
3
In the application of section 9(5) of the 1986 Act by virtue of subsection (4) of section 60 above or subsection (3) of section 61 above where the petition mentioned in the subsection in question relates to a company which is a foreign company, the reference to restricting the exercise of any powers of the directors or of the company shall be taken as a reference to restricting—
a
the exercise within Great Britain of the powers of the directors or of the company; or
b
any exercise of those powers so far as relating to the affairs, business or property of the company in Great Britain.
4
In the application of provisions in section 10 of the 1986 Act by virtue of subsection (5) of section 60 above where the company mentioned in that subsection is a foreign company—
a
paragraph (a) of subsection (1) shall be omitted;
b
any reference in paragraph (b) or (c) of that subsection to property or goods shall be taken as a reference to property or (as the case may be) goods for the time being situated within Great Britain;
c
in paragraph (c) of that subsection—
i
the reference to the commencement or continuation of proceedings shall be taken as a reference to the commencement or continuation of proceedings in Great Britain; and
ii
the reference to the levying of distress against the company shall be taken as a reference to the levying of distress against the foreign company to the extent of its property in England and Wales; and
d
any reference in subsection (2) to an administrative receiver shall be taken to include a reference to any person performing, in relation to the foreign company, functions equivalent to those of an administrative receiver, within the meaning of section 251 of the 1986 Act.
5
Subsections (1) to (4) of section 62 above shall not have effect in relation to a protected railway company which is a foreign company.
6
In the application of subsection (7) of that section where the protected railway company there mentioned is a foreign company, the reference to the company’s property shall be taken as a reference to such of its property as is for the time being situated in Great Britain.
7
In this section—
“the 1986 Act” means the M25Insolvency Act 1986;
“foreign company” means a company incorporated outside Great Britain;
“the railway administration order provisions of this Act” means sections 59 to 64 above, this section and Schedules 6 and 7 to this Act.
Consumer protection
66 Amendments of the Fair Trading Act 1973.
1
F429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F430C483
For the purposes of Part 3 of the Enterprise Act 2002 (merger references), where a person enters into a franchise agreement as a franchisee, there shall be taken to be brought under his control an enterprise engaged in the supply of the railway services to which the agreement relates.
4
In section 137 of the 1973 Act, in subsection (3) (meaning of the expression “the supply of services"), after paragraph (f) there shall be inserted the words
and
g
includes the supply of network services and station services, within the meaning of Part I of the Railways Act 1993;
5
F431. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4326
Expressions used in subsection (3) above and in Part 3 of the Enterprise Act 2002 have the same meaning in that subsection as they have in that Part.
67 Respective functions of F433the Office of Rail Regulation and the F434OFT, and functions of the Monopolies Commission.
1
F435. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C49C50F4362
The functions to which subsection (2A) below applies shall be concurrent functions of F433the Office of Rail Regulation and the OFT.
2A
This subsection applies to the functions of the OFT under Part 4 of the Enterprise Act 2002 (other than sections 166 and 171) so far as relating to the supply of services relating to railways.
2B
So far as necessary for the purposes of, or in connection with, subsections (2) and (2A) above, references in Part 4 of the Act of 2002 to the OFT (including references in provisions of that Act applied by that Part) shall be construed as including references to F433the Office of Rail Regulation (except in sections 166 and 171 of that Act and in any other provision of that Act where the context otherwise requires).
F437F4383
F433the Office of Rail Regulation shall be entitled to exercise, concurrently with the OFT, the functions of the OFT under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) and 51), so far as relating to—
a
agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,
b
conduct of the kind mentioned in section 18(1) of that Act,
c
agreements, decisions or concerted practices of the kind mentioned in F725Article 101(1) of the Treaty on the Functioning of the European Union , or
d
conduct which amounts to abuse of the kind mentioned in F726Article 102 of the Treaty on the Functioning of the European Union ,
which relate to the supply of services relating to railways.
F4393ZA
In F440subsections (2A) and (3) above “services relating to railways” means—
a
railway services;
b
the provision or maintenance of rolling stock;
c
the development, maintenance or renewal of a network, station or light maintenance depot; and
d
the development, provision or maintenance of information systems designed wholly or mainly for facilitating the provision of railway services.
3ZB
The Secretary of State may by order amend subsection (3ZA) above; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.
3A
So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to F441the OFT are to be read as including a reference to F433the Office of Rail Regulation (F442except in sections 31D(1) to (6), 38(1) to (6) , 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).
F443C514
Before the OFT or F433the Office of Rail Regulation first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other.
4A
Neither the OFT nor F433the Office of Rail Regulation shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.
5
It shall be the duty of F433the Office of Rail Regulation , for the purpose of assisting the F444Competition Commission in carrying out an investigation on a reference falling within subsection (6) below, to give to the Commission—
a
any information which is in F445its possession and which relates to matters falling within the scope of the investigation and—
i
is requested by the Commission for that purpose; or
ii
is information which in F445its opinion it would be appropriate for that purpose to give to the Commission without any such request; and
b
any other assistance which the Commission may require and which it is within F445its power to give, in relation to any such matters;
and the Commission shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.
6
The references which fall within this subsection are—
a
b
any reference made to the Commission by the Secretary of State under section 11 of the 1980 Act, if the person who is the subject of the reference is—
i
F447. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
a publicly owned railway company which supplies network services or station services.
7
A copy of any report of the F444 Competition CommissionF448under section 136 or 142 of the Enterprise Act 2002 which relates to F449the supply of services relating to railways may be transmitted by the Commission to F433the Office of Rail Regulation , notwithstanding that the reference F450. . . could not have been made by F433the Office of Rail Regulation .
8
If any question arises F451in any particular case as to the jurisdiction of F433the Office of Rail Regulation under any of the provisions mentioned in subsection F452(2A) or (3) above F453. . . . F454. ., that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—
a
F455Part 4 of the Enterprise Act 2002, or
F4589
Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by F433the Office of Rail Regulation by virtue of subsection (2) above as if the references in section 117(1)(a) and (2) to the OFT included references to F433the Office of Rail Regulation .
10
F459. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other functions of the Regulator
C5268 Investigatory functions.
1
Subject to subsection (2) below, it shall be the duty of F460the Office of Rail Regulation to investigate any alleged or apprehended contravention of—
F463b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
F460the Office of Rail Regulation may, if F464it thinks fit, require F465the F718Passengers’ Council to investigate and report to F464it on any matter falling within subsection (1) above which relates to—
a
the provision of services for the carriage of passengers by railway, or
b
the provision of station services,
and which it would otherwise have been F466its duty to investigate.
69 General functions.
1
It shall be the duty of F467the Office of Rail Regulation , so far as it appears to F468it practicable from time to time to do so—
a
to keep under review the provision, both in Great Britain and elsewhere, of railway services; and
b
to collect information with respect to the provision of those services, with a view to facilitating the exercise of F469its functions under this Part.
2
The Secretary of State may give general directions indicating—
a
3
It shall be the duty of F467the Office of Rail Regulation , where either F468it considers it expedient or F468it is requested by the Secretary of State or F470the OFT to do so, to give information, advice and assistance to the Secretary of State or F470the OFT with respect to any matter in respect of which any function of F467the Office of Rail Regulation under this Part is exercisable.
4
F471. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F47270. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71 Publication of information and advice.
1
2
In arranging for the publication of any such information or advice F473the Office of Rail Regulation shall have regard to the need for excluding, so far as that is practicable—
a
any matter which relates to the affairs of an individual, where publication of that matter would or might, in the opinion of F473the Office of Rail Regulation , seriously and prejudicially affect the interests of that individual; and
b
any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of F473the Office of Rail Regulation , seriously and prejudicially affect the interests of that body.
3
F480 Other functions of the Authority
S. 71A and cross-heading inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 14 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)
71A Investigatory functions.
F477. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71BF478 Code of practice for protection of interests of rail users who are disabled.
1
The F479Secretary of State shall—
a
prepare and from time to time revise, and
b
publish and otherwise promote the adoption and implementation of,
a code of practice for protecting the interests of users of railway passenger services or station services who are disabled
2
Registers and reports of the Regulator and the F534Authority
Word in cross-heading substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 43; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))
72 Keeping of register by the Regulator.
C531
2
Subject to subsection (3) and to any direction given under subsection (4) below, F481the Office of Rail Regulation shall cause to be entered in the register—
C54a
in relation to licences F484and European licences , the provisions of—
ii
every assignment of a licence of which notice is received by F481the Office of Rail Regulation;
iii
iv
v
vi
every requirement imposed, or consent or approval given, under a licence by any person (other than F481the Office of Rail Regulation ) who is a qualified person, within the meaning of section 9(3) above, for the purpose in question, being a requirement, consent or approval whose provisions have been notified to F481the Office of Rail Regulation pursuant to a condition of the licence;
vii
F492viii
every scheme made by the Secretary of State under section 7A(4) above or paragraph 2 of Schedule 28 to the Transport Act 2000;
x
every statement of policy published by F481the Office of Rail Regulation under that section;
and notice of every surrender of a licence F494or European licence ;
b
in relation to access agreements, access contracts and installation access contracts, the provisions of—
i
every facility exemption granted under section 20(3) above;
ii
every direction to enter into an access contract or an installation access contract;
iii
every access agreement;
iv
every amendment (however described) of an access agreement;
v
every general approval given under section F49518(1)(c), 19(3)(c) or 22(3) above which is for the time being in force;
F496va
every direction under section 22A above;
vb
every notice given by or to F481the Office of Rail Regulation or the Competition Commission under Schedule 4A to this Act;
vi
every document issued or made by F481the Office of Rail Regulation under an access agreement;
F497c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
in relation to experimental passenger services, within the meaning of F498Part 4 of the Railways Act 2005 , the provisions of—
F499i
every designation under section 36 of that Act of a service as experimental;
ii
every notice under section 37(1) or (2) of that Act of the proposed discontinuance of a service designated as experimental;
F500da
in relation to closures, the provisions of—
i
every closure ratification notice or closure non-ratification notice (within the meaning of Part 4 of the Railways Act 2005) issued by it;
ii
every closure requirement imposed by it;
e
the provisions of every railway administration order and of every discharge of such an order.
C563
In entering any provision in the register, F481the Office of Rail Regulation shall have regard to the need for excluding, so far as that is practicable, the matters specified in section 71(2)(a) and (b) above.
C574
If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or the commercial interests of any person, he may direct F481the Office of Rail Regulation not to enter that provision in the register.
5
Where an access agreement is entered into or amended, the facility owner or installation owner concerned shall send a copy of the access agreement or amendment to F481the Office of Rail Regulation not later than 14 days after the date on which the access agreement is entered into or the amendment is made, as the case may be.
6
A person who fails to comply with subsection (5) above is guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
C587
The contents of the register shall be available for inspection by the public during such hours and subject to the payment of such fee as may be specified in an order made by the Secretary of State.
C598
Any person may, on the payment of such fee as may be specified in an order so made, require F481the Office of Rail Regulation to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by F481the Office of Rail Regulation to be a true copy or extract.
9
The contents of the register shall be available for inspection at any time by the F501Authority, without payment of any fee; and the F501Authority may require F481the Office of Rail Regulation , without payment of any fee, to supply F502itwith a copy of, or extract from, any part of the register, being a copy or extract which is certified by F481the Office of Rail Regulation to be a true copy or extract.
10
Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.
C6011
Any sums received by F481the Office of Rail Regulation under this section shall be paid into the Consolidated Fund.
73 Keeping of register by the F503Secretary of State.
1
2
Subject to F506subsections (3) and (4) below, the F503Secretary of State shall cause to be entered in the register F507(except so far as they are required to be entered in the register maintained under section 73A below) the provisions of—
a
every franchise exemption;
b
every franchise agreement;
F508c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
d
every amendment (however described) of a franchise agreement F509other than any which are not likely to have a material effect on the provision of services under the agreement or on any sums payable under the agreement.;
F510da
every determination made by him under section 34 of the Railways Act 2005 that a closure is a minor modification or that closures of a particular description are minor modifications;
db
every revocation of a determination made by him under that section in relation to a description of closures;
dc
every condition agreed to under subsection (5) of that section in connection with a determination made by him;
e
every final or provisional order F511made by the F503Secretary of State in relation to F512. . . a franchise agreement F513or to any closure or proposed closure or to any closure requirement , every revocation of such an order and every notice given by the F503Secretary of State under section 55(6) above that F514he is satisfied that F514he does not need to make such an order;
g
every statement of policy published by the F503Secretary of State under that section;
F516ga
every designation under section 23 and every variation or revocation of such a designation;
h
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
j
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
k
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
m
F517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
and, without prejudice to the generality of paragraph (d) above, “amendment" in that paragraph includes any variation of the property, rights and liabilities which from time to time constitute the franchise assets in relation to the franchise agreement in question, whether the variation is effected in accordance with the terms of, or by an amendment made to, the franchise agreement.
F5183
The Secretary of State may enter the provisions of anything in the register in a manner that excludes, so far as practicable, so much of the details of those provisions as he considers it appropriate to exclude for the purpose of maintaining the confidentiality of—
a
matters relating to the affairs of an individual the publication of which would or might, in the Secretary of State's opinion, seriously and prejudicially affect the interests of that individual; and
b
matters relating specifically to the affairs of a particular body of persons the publication of which would or might, in the Secretary of State's opinion, seriously and prejudicially affect the interests of that body.
4
If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest F519he may decide not to enter that provision in the register.
5
F520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
The contents of the register shall be available for inspection at any time by F521the Scottish Ministers orF522the Office of Rail Regulation , without payment of any fee; and F523the Scottish Ministers and the Office of Rail Regulation may each require the F503Secretary of State , without payment of any fee, to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the F503Secretary of State to be a true copy or extract.
F5088
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
73AF535Keeping of register by the Scottish Ministers
1
The Scottish Ministers must maintain a register.
2
The register must be kept in such form and at such premises as the Scottish Ministers determine.
3
Subject to subsections (4) and (5) below, the Scottish Ministers must cause the provisions of each of the following to be entered in the register—
a
every designation made by them under section 23 of this Act, and every variation or revocation of such a designation;
b
every franchise exemption granted by them;
c
every franchise agreement to which they are a party;
d
every amendment of such a franchise agreement, other than those that are unlikely to have a material effect on the provision of services under the agreement or on the sums payable under it;
e
every determination made by them under section 34 of the Railways Act 2005 that a closure is a minor modification or that closures of a particular description are minor modifications;
f
every revocation of a determination made by them under that section in relation to a description of closures;
g
every condition agreed to under subsection (5) of that section in connection with a determination made by them;
h
every final or provisional order made by them;
i
every revocation by them of such an order;
j
every notice given by them under section 55(6) of this Act of a decision not to make such an order;
k
every penalty imposed by them under section 57A of this Act;
l
every statement of policy published by them under section 57B of this Act.
4
The Scottish Ministers may enter the provisions of anything in the register in a manner that excludes, so far as practicable, so much of the details of those provisions as they consider it appropriate to exclude for the purpose of maintaining the confidentiality of—
a
matters relating to the affairs of an individual the publication of which would or might, in the Scottish Ministers' opinion, seriously and prejudicially affect the interests of that individual; and
b
matters relating specifically to the affairs of a particular body of persons the publication of which would or might, in the Scottish Ministers' opinion, seriously and prejudicially affect the interests of that body.
5
If it appears to the Scottish Ministers that the entry of any provision in the register would be against the public interest, they may decide not to enter it in the register.
6
The contents of the register must be available for inspection, at any time and free of charge, by the Secretary of State or the Office of Rail Regulation.
7
The Secretary of State and the Office of Rail Regulation may each require the Scottish Ministers to supply him or (as the case may be) it free of charge with a certified copy of a part of the register or with a certified extract from it.
8
The references in subsection (7) to a certified copy or a certified extract are references to a copy or extract that has been certified by the Scottish Ministers to be a true copy or extract.
9
In subsection (3)(d) “amendment”, in relation to a franchise agreement, means any amendment however described, including variations (whether or not effected in accordance with the terms of the agreement or by a modification of it) of the property, rights and liabilities which from time to time constitute the franchise assets.
74 Annual and other reports of F524the Office of Rail Regulation.
C611
F524the Office of Rail Regulation shall, as soon as practicable F525after the end of each financial year,, make to the Secretary of State a report on—
a
his activities during that year; and
2
Every such report shall include—
a
a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of F527its functions;
F528b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C613
The Secretary of State shall lay a copy of every report made by F524the Office of Rail Regulation under subsection (1) above before each House of Parliament and shall arrange for copies of every such report to be published in such manner as he may consider appropriate.
F5293A
Where a report is made by F524the Office of Rail Regulation under subsection (1) above to the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), the Scottish Ministers shall lay a copy of the report before the Scottish Parliament and shall arrange for copies to be published in such manner as they consider appropriate.
4
5
6
In making or preparing any report under this section, F524the Office of Rail Regulation shall have regard to the need for excluding, so far as that is practicable, the matters specified in section 71(2)(a) and (b) above.
7
8
In this section—
“financial year” means a period of twelve months ending with 31st March; and
F532. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
75 Annual reports of the Franchising Director.
F533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The F558F715Passengers’ Council and Rail Passengers’ Committees
Words in cross-heading substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(10); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)
Words in s. 76 cross-heading substituted (25.2.2010) by The Passengers’ Council (Non-Railway Functions) Order 2010 (S.I. 2010/439), art. 1, Sch. para. 6(4)
C62C63C64C8576F716General railway duties of Passengers’ Council .
1
It shall be the duty of F719the Passengers’ Council to investigate any matter which relates—
F536a
to the provision of railway passenger services, or
b
to the provision of station services by any person in a case where the operator of the station in question is authorised by a licence to be the operator of that station,
if the condition specified in subsection (2) below is satisfied in relation to the matter in question.
2
The condition mentioned in subsection (1) above is satisfied if—
a
c
the matter appears to F719the Passengers’ Council to be one which it ought to investigate.
F5382A
If any matter falling within subsection (2)(a) appears to F719the Passengers’ Council to relate only to—
a
the provision of railway passenger services wholly within the London railway area (within the meaning of section 252A of the Greater London Authority Act 1999), or
b
the provision of station services within that area,
that Council must refer the matter to the London Transport Users' Committee.
3
F539. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
If, on investigating any matter, F719the Passengers’ Council considers it appropriate to do so, F719the Passengers’ Council shall make representations to the person providing the F540secured service (within the meaning of Part 4 of the Railways Act 2005) which is in question and—
a
in the case of a service provided under a franchise agreement, to the franchisee, or
b
about the matter, or any matter to which it relates or which appears to F719the Passengers’ Council to be relevant to the subject of the matter investigated.
C655
Where F719the Passengers’ Council —
a
having made representations under subsection (4) above, is of the opinion that it is unable to achieve a satisfactory resolution of the matter by that means, or
b
on investigating any matter, has reason to believe that F541a franchisee is contravening, or is likely to contravene, any term of the franchise agreement or that the holder of a passenger licence or a station licence is contravening, or is likely to contravene, any condition of the licence,
F719the Passengers’ Council shall F542, unless representations about the matter have been made to the F537Secretary of State by F719the Passengers’ Council , refer it to the F537Secretary of State with a view to the F537Secretary of State exercising such of F543his powers as F544he considers appropriate in the circumstances of the case..
F5455A
But if the F537Secretary of State considers that it would be more appropriate for a matter referred to it by F719the Passengers’ Council to be considered by the Office of Rail Regulation , the F537Secretary of State shall refer it to F546the Office of Rail Regulation , with a view to F547it exercising such of F548its powers as F547it considers appropriate in the circumstances of the case.
6
Where F719the Passengers’ Council investigates any matter—
7
Where F719the Passengers’ Council has investigated any matter under this section, it shall neither—
a
include in any report or representations a proposal for any steps to be taken by any person in relation to that matter, nor
b
refer the matter to the F537Secretary of State under subsection (5)(a) above by reason only of the failure of any person to take any steps in relation to that matter,
unless, balancing the cost of taking those steps against the benefits which F719the Passengers’ Council considers will be enjoyed by any person in consequence of the taking of those steps, F719the Passengers’ Council is of the opinion, on the basis of the information available to it, that the expenditure involved represents good value for money.
F5507A
It shall also be the duty of F719the Passengers’ Council , so far as it appears expedient from time to time to do so—
a
to keep under review matters affecting the interests of the public in relation to railway passenger services and station services;
b
to make representations to, and consult, such persons as they think appropriate about those matters; and
c
to co-operate with other bodies representing the interests of users of public passenger transport services.
7B
The Secretary of State may, after consultation with F719the Passengers’ Council , make an order excluding services from the duties imposed by this section; and an order under this subsection—
a
may exclude services of a particular class or description, particular services or services provided by a particular person;
b
may provide that services are excluded subject to compliance with specified conditions; and
c
may not revoke an exclusion except for breach of condition or in accordance with the order which made it.
7C
The Secretary of State may, after consultation with F719the Passengers’ Council , make an order providing that the duties imposed by this section apply to services of a particular class or description, particular services or services provided by a particular person—
a
only to such extent as is specified by the order; or
b
with such modifications as are so specified.
8
F551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
In this section, any reference to railway passenger services includes a reference to bus substitution services required to be provided in place of any such services; F552. . ..
76AF559Delegation of duties under section 76(7A)
1
The F720Passengers’ Council and any other public body may enter into an agreement for that other body to be responsible, in accordance with the agreement, for —
a
determining what is expedient for the purposes of subsection (7A) of section 76 above in relation to an area specified in the agreement; and
b
otherwise performing that Council's duties under that subsection in relation to that area.
2
So long as an agreement under this section is in force—
a
the duties of the F720Passengers’ Council under subsection (7A) of section 76 above shall be deemed, in relation to the area specified in the agreement, to fall on the other party to it, instead of on that Council; but
b
that Council is not to be prevented from doing anything mentioned in that subsection in relation to that area.
3
An agreement under this section—
a
may be entered into on such terms and conditions as the parties to it may agree; and
b
may contain provision for determining for the purposes of this section in what circumstances things done under or for the purposes of section 76(7A) are to be treated as done in relation to the area specified in the agreement.
4
The consent of the Secretary of State is required before the F720Passengers’ Council and another public body may enter into an agreement under this section.
5
In this section “public body” means any authority or other body on which functions are conferred by or under an enactment.
6
In subsection (5) “enactment” includes an enactment comprised in an Act of the Scottish Parliament.
77 General duties of F553Rail Passengers’ Committees.
F554. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78 Functions under section 56 of the Transport Act 1962.
F5551
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5552
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5553
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5554
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
After subsection (6) of that section there shall be inserted—
6ZA
If the Secretary of State so directs in the case of any consultative committee, subsections (4) to (6) of this section shall have effect in relation to that committee and the Central Committee as if the reference in subsection (4) of this section to services and facilities provided by any of the Boards included a reference to any such ferry service as may be specified in the direction, whether provided by a Board or by some other person; and, in the application of subsections (4) to (6) of this section in relation to any such ferry service, any reference in those subsections to a Board shall be taken to include a reference to the person providing the ferry service.
F5556
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F5557
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79 Annual reports by the F556Rail Passengers’ Council and the Rail Passengers’ Committees.
F557. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Information
C6780 Duty of certain persons to furnish information to the F560Secretary of State, the Scottish Ministers or the Office of Rail Regulation on request.
1
F561Licence holders shall be under a duty to furnish to the F560Secretary of State, the Scottish Ministers or the Office of Rail Regulation in such form and manner as F562he, they or it may by notice request such information as F562he, they or it may so request, being information which the F560Secretary of State, the Scottish Ministers or the Office of Rail Regulation considers necessary for the purpose of facilitating the performance of any F563functions of the Secretary of State, the Scottish Ministers or (as the case may be) that Office under this Part F564, the Transport Act 2000 or the Railways Act 2005 or any other function or activity of his, theirs or its in relation to railway services.
F5651A
Holders of European licences shall be under a duty to furnish to the Office of Rail Regulation in such form and manner as it may by notice request such information as it may so request, being information which the Office of Rail Regulation considers necessary for the purpose of facilitating the performance of any of its functions under any instrument made for the purpose of implementing Council Directive 95/18/EC dated 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26th February 2001 and Directive 2004/49/EC dated 29th April 2004, both of the European Parliament and of the Council.
2
A request under subsection (1) F566or (1A) above must be complied with within such time (being not less than 28 days from the making of the request) as may be specified in the request.
3
F5683A
If a request under subsection (1A) above is not complied with, the Office of Rail Regulation may serve a notice under subsection (4) below on the person from whom the information was requested under subsection (1A) above.
4
A notice under this subsection is a notice signed by the F560Secretary of State, the Scottish Ministers or the Office of Rail Regulation and—
a
requiring the person on whom it is served to produce, at a time and place specified in the notice, to the F560Secretary of State, the Scottish Ministers or the Office of Rail Regulation or to any person appointed by the Franchising Director for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
b
requiring that person to furnish, at a time and place and in the form and manner specified in the notice, to the Franchising Director such information as may be specified or described in the notice. F569In its application to a notice served by virtue of subsection (3A) above this subsection has effect with the omission of the references to the Secretary of State and the Scottish Ministers.
5
No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.
F5706
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (4) above to produce is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
8
If a person makes default in complying with a notice under subsection (4) above, the court may, on the application of the F560Secretary of State, the Scottish Ministers or the Office of Rail RegulationF571in the case of a request under subsection (1) above, or the Office of Rail Regulation in the case of a request under subsection (1A) above, , make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
9
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
10
In this section “the court” means the High Court, in relation to England and Wales, and the Court of Session, in relation to Scotland.
Interpretation
81 Meaning of “railway".
1
Subject to subsection (2) below, the definition of “railway” in section 67(1) of the M27Transport and Works Act 1992 shall have effect for the purposes of this Part as it has effect for the purposes of that Act, and cognate expressions shall be construed accordingly.
2
Where it is stated for the purposes of any provision of this Part that railway has its wider meaning, “railway” shall be taken, for the purposes of that provision, to mean—
a
a railway,
b
a tramway, or
c
a transport system which uses another mode of guided transport but which is not a trolley vehicle system,
and cognate expressions shall be construed accordingly.
3
In paragraphs (a) to (c) of subsection (2) above “guided transport”, “railway”, “tramway” and “trolley vehicle system” have the meaning given by section 67(1) of the M28Transport and Works Act 1992.
82 Meaning of “railway services" etc.
1
In this Part, “railway services” means services of any of the following descriptions, that is to say—
a
services for the carriage of passengers by railway;
b
services for the carriage of goods by railway;
c
light maintenance services;
d
station services;
e
network services.
2
In this Part—
“light maintenance services” means services of any of the following descriptions, that is to say—
- a
the refuelling, or the cleaning of the exterior, of locomotives or other rolling stock;
- b
the carrying out to locomotives or other rolling stock of maintenance work of a kind which is normally carried out at regular intervals of twelve months or less to prepare the locomotives or other rolling stock for service;
- a
“network services” means any service which consists of, or is comprised in, the provision or operation of a network (or of any of the track or other installations comprised in a network), but does not include any service which falls within paragraphs (a) to (d) of subsection (1) above;
“services for the carriage of passengers by railway” includes services for and in connection with the carriage of luggage, parcels or mail on trains which at the time are available, and primarily intended, for use by passengers; and references to carrying, or to the carriage of, passengers by railway shall be construed accordingly;
“station services” means any service which consists of, or is comprised in, the provision or operation of a station;
and, for the purposes of the above definitions of “network services" and “station services", where a person permits another to use any land or other property comprised in a network or station he shall be regarded as providing a service which falls within the meaning of “network services" or “station services", as the case may be.
3
Without prejudice to the generality of the definition in subsection (2) above, “network services” includes services of any of the following descriptions, that is to say—
a
the construction, maintenance, re-alignment, re-configuration or renewal of track,
b
the installation, operation, maintenance or renewal of a railway signalling system or of any other railway communication equipment,
c
the construction, control, maintenance or renewal of electrical conductor rails or overhead lines, of any supports for such rails or lines, and of any electrical substations or power connections used or to be used in connection therewith, and the provision of electrical power by means thereof,
d
the provision and operation of services for the recovery or repair of locomotives or other rolling stock in connection with any accident, malfunction or mechanical or electrical failure,
e
the provision and operation of services for keeping track free from, or serviceable notwithstanding, obstruction (whether by snow, ice, water, fallen leaves or any other natural or artificial obstacle or hindrance) or for removing any such obstruction,
f
the provision, operation, maintenance and renewal of any plant, equipment or machinery used in carrying on any of the activities specified in paragraphs (a) to (e) above,
g
the exercise of day to day control over train movements over or along any track comprised in the network,
h
the preparation of a timetable for the purposes of such control as is referred to in paragraph (g) above,
and it is immaterial for the purposes of this subsection and that subsection whether or not the person who provides the service in question also provides or operates a network, or any of the track or other installations comprised in a network, or provides the service on behalf of a person who does so.
4
In determining whether any service is a station service, it is immaterial whether or not the person who provides the service also provides or operates a station, or any part of a station, or provides the service on behalf of a person who does so.
5
In this section, “maintenance” includes the detection and rectification of any faults.
6
“Railway” has its wider meaning in the application of this section in relation to any provision of this Part for the purposes of which “railway” has that meaning.
I783 Interpretation of Part I.
1
In this Part, unless the context otherwise requires—
“the 1973 Act” means the M29Fair Trading Act 1973;
“the 1980 Act” means the M30Competition Act 1980;
“access agreement” means—
“access contract” has the meaning given by section 17(6) above;
“access option” shall be construed in accordance with section 17(6) above;
“additional railway asset” has the meaning given by section 29(8) above;
“ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use any track, station or light maintenance depot;
F574“appropriate authority” has the meaning given by section 55(10) above;
F575“appropriate designating authority” has the meaning given by section 23(3) above;
“appropriate franchising authority” has the meaning given by section 23(3) above;
“appropriate national authority” has the meaning given by section 59(6)(za) above;
F576“bus substitution service” means a service for the carriage of passengers by road that is provided as an alternative to the whole or a part of a railway passenger service that has been discontinued, reduced or modified (whether temporarily or permanently);
F577. . .
F578“closure” has the same meaning as in Part 4 of the Railways Act 2005 (see section 45 of that Act);
“closure requirement” means a requirement imposed under section 33 of that Act;
F579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F580“cross-border service” means a railway passenger service starting either in England and Wales or in Scotland and ending, or otherwise making at least one scheduled call, in the other;
F577. . .
F581. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F582“European licence” has the meaning given by section 6(2) above;
“exempt facility” shall be construed in accordance with section 20(13) above;
“experimental passenger service” has the meaning given by section 48(6) above;
“facility exemption” has the meaning given by section 20(13) above;
“facility owner” has the meaning given by section 17(6) above;
“final order” and “provisional order” have the meaning given by section 55(10) above;
“franchise agreement” has the meaning given by section 23(3) above;
“franchise assets” has the meaning given by section 27(11) above;
“franchise exemption” has the meaning given by section 24(13) above;
“franchise operator” has the meaning given by section 23(3) above;
“franchise period” has the meaning given by section 23(3) above;
“franchise term” has the meaning given by section 23(3) above;
“franchised services” has the meaning given by section 23(3) above;
“franchisee” has the meaning given by section 23(3) above;
“goods” includes mail, parcels, animals, plants and any other creature, substance or thing capable of being transported, but does not include passengers;
“information” includes accounts, estimates, records and returns;
“installation access contract” has the meaning given by section 19(9) above;
“installation owner” has the meaning given by section 19(9) above;
F583'international licence’ has the meaning given by section 6(2) above;
“licence” means a licence under section 8 above and “licence holder” shall be construed accordingly;
“licence exemption” has the meaning given by section 7(13) above;
“light maintenance” (without more) means—
- a
the refuelling, or the cleaning of the exterior, of locomotives or other rolling stock; or
- b
the carrying out to locomotives or other rolling stock of maintenance work of a kind which is normally carried out at regular intervals of twelve months or less to prepare the locomotives or other rolling stock for service;
and, for the purposes of paragraph (b) above, “maintenance work” includes the detection and rectification of any faults;
- a
“light maintenance depot” means any land or other property which is normally used for or in connection with the provision of light maintenance services, whether or not it is also used for other purposes;
“light maintenance depot licence” means a licence authorising a person—
- a
to be the operator of a light maintenance depot; and
- b
to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, the provision of light maintenance services;
- a
“light maintenance services” has the meaning given by section 82 above;
“locomotive” means any railway vehicle which has the capacity for self-propulsion (whether or not the power by which it operates is derived from a source external to the vehicle);
“network” means—
- a
any railway line, or combination of two or more railway lines, and
- b
any installations associated with any of the track comprised in that line or those lines,
together constituting a system of track and other installations which is used for and in connection with the support, guidance and operation of trains;
- a
“network licence” means a licence authorising a person—
- a
to be the operator of a network;
- b
to be the operator of a train being used on a network for any purpose comprised in the operation of that network; and
- c
to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, using a train as mentioned in paragraph (b) above;
- a
“network services” has the meaning given by section 82 above;
F579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F584“the OFT” means the Office of Fair Trading;
“operator”, in relation to a railway asset, has the meaning given by section 6(2) above;
“passenger licence” means a licence authorising a person—
- a
to be the operator of a train being used on a network for the purpose of carrying passengers by railway; and
- b
to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, using a train as mentioned in paragraph (a) above;
- a
“passenger service operator” means a person who provides services for the carriage of passengers by railway;
“premises” includes any land, building or structure;
“prescribed” means prescribed by regulations made by the Secretary of State;
“private sector operator” means any body or person other than a public sector operator;
“protected railway company” has the meaning given by section 59(6)(a) above;
“public sector operator” has the meaning given by section 25 above;
“railway” shall be construed in accordance with section 81 above;
“railway asset” has the meaning given by section 6(2) above;
“railway facility” means any track, station or light maintenance depot;
“railway passenger service” means any service for the carriage of passengers by railway;
“railway services” has the meaning given by section 82 above;
“railway vehicle” includes anything which, whether or not it is constructed or adapted to carry any person or load, is constructed or adapted to run on flanged wheels over or along track;
“records” includes computer records and any other records kept otherwise than in a document;
“relevant activities”, in relation to a protected railway company, has the meaning given by section 59(6)(b) above;
“relevant condition or requirement” has the meaning given by section 55(10) above;
“relevant operator” has the meaning given by section 55(10) above;
“rolling stock” means any carriage, wagon or other vehicle used on track and includes a locomotive;
F585“scheduled call”, in relation to a service or journey, means a scheduled stop at a station for the purpose of allowing passengers to join or leave the service or train (including the stops where the service or journey starts and ends);
“Scotland-only service” means a railway passenger service which starts and ends in Scotland and is not a cross-border service;
“Scottish franchise agreement” means a franchise agreement the franchised services under which—
- a
consist of or include Scotland-only services; and
- b
so far as they include other services, include only cross-border services designated by the Scottish Ministers;
- a
“station” means any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes;
“station licence” means a licence authorising a person to be the operator of a station;
“station services” has the meaning given by section 82 above;
F586“through ticket” means—
- a
a ticket which is valid for a journey which involves use of the services of more than one passenger service operator; or
- b
a combination of two or more tickets issued at the same time which are between them valid for such a journey;
and “through ticketing” shall be construed accordingly;
- a
“track” means any land or other property comprising the permanent way of any railway, taken together with the ballast, sleepers and metals laid thereon, whether or not the land or other property is also used for other purposes; and any reference to track includes a reference to—
- a
any level crossings, bridges, viaducts, tunnels, culverts, retaining walls, or other structures used or to be used for the support of, or otherwise in connection with, track; and
- b
any walls, fences or other structures bounding the railway or bounding any adjacent or adjoining property;
- a
“train” means—
- a
two or more items of rolling stock coupled together, at least one of which is a locomotive; or
- b
a locomotive not coupled to any other rolling stock;
- a
“vehicle” includes railway vehicle.
F5871A
In sections 17 to 22C above (and Schedule 4 to this Act) references to a railway facility (including references to any track, station or light maintenance depot) or a network include references to a railway facility (or any track, station or light maintenance depot) or a network which is proposed to be constructed or is in the course of construction.
2
For the purposes of this Part, a person shall be regarded as providing or operating services for the carriage of goods by railway notwithstanding that he provides or operates the services solely for the carriage of his own goods or otherwise for his own benefit.
F588. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C71Part II Re-organisation of the Railways
Pt. II (ss. 84-116) excluded (retrospective to 5.11.1993) by 1994 c. 9, s. 252, Sch. 24 para. 4(1)
Pt. II (ss. 84-116) excluded (retrospective to 11.1.1994) by 1994 c. 9, s. 252, Sch. 24 para. 8(4)
Pt. II (ss. 84-116) excluded (retrospective to 5.11.1993) by 1994 c. 9, s. 252, Sch. 24 para. 17(2) (with s. 252(2))
New companies, transfer schemes and disposals
84 Powers of the Board to form companies.
1
The Board shall have power to form, or take part in forming, companies—
a
for the purposes of the Board’s business;
b
for the purpose of facilitating the disposal of—
i
the whole or any part of the undertaking, or any property, rights or liabilities, of the Board or of any wholly owned subsidiary of the Board; or
ii
without prejudice to the generality of sub-paragraph (i) above, any securities of any subsidiary of the Board;
c
for the purpose of facilitating the performance by the Franchising Director of his functions under sections 23 to 36 above;
d
for such other purposes as may be specified by the Secretary of State in a direction to the Board.
2
The Secretary of State may, after consultation with the Board, direct the Board to exercise any power conferred by paragraph (a), (b), (c) or (d) of subsection (1) above; and, if he so directs, he may also give the Board directions with respect to—
a
the nature and objects of the company which is to be formed;
b
the manner in which, and time within which, it is to be formed.
3
The Board shall not exercise any power conferred by subsection (1) above, except—
a
in the case of the power conferred by paragraph (a), with the consent of, or pursuant to a direction given under subsection (2) above by, the Secretary of State; or
b
in any other case, pursuant to such a direction.
4
Each of the powers conferred on the Board by this section—
a
is in addition to, and not in derogation from, any other powers of the Board; and
b
relates only to the capacity of the Board as a statutory corporation;
and nothing in this section shall be construed as authorising the disregard by the Board of any enactment or rule of law.
85 Powers of the Board to make transfer schemes.
1
The Board shall have power to make schemes for the transfer of the whole or any part of the undertaking, or any property, rights or liabilities, of—
a
the Board,
b
any wholly owned subsidiary of the Board,
c
any publicly owned railway company,
d
the Franchising Director, or
e
any company which is wholly owned by the Franchising Director,
to any other person falling within paragraphs (a) to (e) above or to a franchise company.
2
In relation to the transfer or disposal (or the proposed transfer or disposal) of the whole or any part of an undertaking, any reference in this Part to property, rights or liabilities includes a reference to the undertaking or part (and, accordingly, to the property, rights and liabilities comprised in that undertaking or part).
3
The powers conferred on the Board by subsection (1) above shall only be exercisable—
a
for the purposes of the Board’s business, or to facilitate a disposal in the ordinary course of that business;
b
for the purpose of effecting or facilitating the disposal of such property, rights or liabilities as the Secretary of State may direct; or
c
for the purpose of facilitating the performance by the Franchising Director of his functions under sections 23 to 36 above,
and paragraph (a) above accordingly applies only in relation to transfers between the Board and any of its wholly owned subsidiaries or between two or more of its wholly owned subsidiaries.
4
The Secretary of State may, after consultation with the Board, direct the Board to exercise any power conferred by subsection (1) above; and, if he does so, he may also give the Board directions with respect to—
a
the manner in which, and time within which, the power is to be exercised;
b
the property, rights or liabilities to be transferred;
c
the person to whom the transfer is to be made.
5
The Board shall not exercise the power conferred by subsection (1) above—
a
for a purpose falling within paragraph (a) of subsection (3) above, except with the consent of, or pursuant to a direction given under subsection (4) above by, the Secretary of State; or
b
for a purpose specified in paragraph (b) or (c) of subsection (3) above, except pursuant to such a direction.
C706
Subject to the following provisions of this Part, on the day on which a scheme under subsection (1) above comes into force (in this Part referred to as the “transfer date”) the property, rights and liabilities affected by the scheme shall, subject to section 97 below, be transferred and vest by virtue of, and in accordance with, the scheme.
7
Each of the powers conferred on the Board by this section—
a
is in addition to, and not in derogation from, the other powers so conferred and the other powers of the Board; and
b
relates only to the capacity of the Board as a statutory corporation;
and nothing in this section shall be construed as authorising the disregard by the Board of any enactment or rule of law.
8
In this Part, “franchise company” means any body corporate which is, or is to be, the franchisee or the franchise operator under a franchise agreement.
9
Expressions used in subsection (8) above and in Part I above have the same meaning in that subsection as they have in that Part.
86 Powers of the Franchising Director to make transfer schemes.
1
The Franchising Director shall have power to make schemes for the transfer, at or after the end of the franchise period, of property, rights and liabilities which, immediately before the end of that period, are for the time being designated as franchise assets for the purposes of the franchise agreement in question to—
a
the Franchising Director;
b
a company which is wholly owned by the Franchising Director; or
c
a franchise company.
2
In the following provisions of this section—
a
the “transferor” means the person from whom any such property, rights or liabilities as are mentioned in subsection (1) above are transferred by a scheme under this section; and
b
the “transferee” means the person to whom any such property, rights or liabilities are so transferred.
3
Subject to any contrary agreement or arrangements which may be made between the transferor and the transferee, where any property, rights or liabilities are transferred by a scheme under this section, there shall be paid by the transferee to the transferor or, as the case may require, by the transferor to the transferee, on the day on which the scheme comes into force such sums as may be specified in, or determined in accordance with, the franchise agreement mentioned in subsection (1) above.
4
Subject to the following provisions of this Part, on the day on which a scheme under this section comes into force, the property, rights and liabilities affected by the scheme shall, subject to section 97 below, be transferred and vest by virtue of and in accordance with the scheme.
5
Except as otherwise provided by this Act—
a
any reference in this Act to a “transfer scheme” shall be taken as including a reference to a scheme under this section;
b
in the application of any provision of this Act in relation to a scheme under this section, any reference to the “transfer date” shall be taken as a reference to the date on which the scheme comes into force.
6
In this section “franchise agreement”, “franchise period” and “designated as franchise assets” have the same meaning as they have in Part I above.
7
Any sums required by the Franchising Director for the purpose of making payments in respect of property, rights or liabilities transferred by a scheme under this section shall be paid by the Secretary of State out of money provided by Parliament.
8
Any sums received by the Franchising Director in respect of property, rights or liabilities so transferred shall be paid into the Consolidated Fund.
I987 Transfer to the Secretary of State or the Franchising Director of the Board’s function of making transfer schemes.
1
The Secretary of State may by order transfer any functions of the Board under section 85 above to himself or to the Franchising Director.
2
An order under this section may provide for the transfer of the function in question for all purposes or for such purposes as may be specified in the order.
3
Where any function is transferred to the Franchising Director under this section, the Secretary of State may, after consultation with the Franchising Director, direct the Franchising Director to exercise the function by making a scheme for the transfer of an undertaking or part of an undertaking, or any property, rights or liabilities, to a publicly owned railway company, a company wholly owned by the Franchising Director or a franchise company; and, if the Secretary of State gives such a direction, he may also—
a
give the Franchising Director directions with respect to any matter specified in paragraph (a), (b) or (c) of section 85(4) above; or
b
if the transfer is directed to be made to a publicly owned railway company which has not yet been formed, direct the Franchising Director to form, or take part in forming, a company for the purpose.
4
In relation to any function transferred to the Franchising Director under this section, subsection (3) above shall have effect in substitution for subsection (4) of section 85 above and any reference in this Act to a direction under the said subsection (4) shall be construed accordingly.
5
An order under this section may make such modifications of this Part as may be consequential upon, or incidental or supplemental to, the transfer effected by the order.
88 Transfers of interests in certain companies: provisions supplemental to sections 84 to 87.
1
Where the Secretary of State gives the Board directions—
a
under section 84 above, with respect to the formation of a wholly owned subsidiary of the Board, and
b
under section 85 above, with respect to the making of a scheme for the transfer of anything to that wholly owned subsidiary,
the wholly owned subsidiary of the Board shall remain such until the transfer under the scheme has taken effect.
2
Where the Secretary of State gives the Board directions under section 85 above with respect to the making of a scheme for the transfer of anything to a company which is wholly owned by the Crown, that company shall remain wholly owned by the Crown until the transfer under the scheme has taken effect.
3
Where the Secretary of State gives the Franchising Director directions under or by virtue of section 87 above with respect to the making of a scheme for the transfer of anything to a publicly owned railway company, that company shall remain a publicly owned railway company until the transfer under the scheme has taken effect.
4
Where a wholly owned subsidiary of the Board is formed pursuant to a direction under section 84 above, none of the following persons, that is to say, the Board, any wholly owned subsidiary of the Board or any person acting on behalf of the Board or its wholly owned subsidiaries, shall dispose of any interests in that subsidiary except—
a
with the consent of the Secretary of State and subject to compliance with such conditions (if any) as he may impose in connection with that consent; or
b
pursuant to a direction of the Secretary of State under subsection (6) below or section 89 below.
5
None of the following persons, that is to say, the Franchising Director, any company which is wholly owned by the Franchising Director or any person acting on behalf of the Franchising Director or any such company, shall dispose of any interests in a company which is wholly owned by the Franchising Director except—
a
with the consent of the Secretary of State and subject to compliance with such conditions (if any) as he may impose in connection with that consent; or
b
pursuant to a direction of the Secretary of State under subsection (7) below.
6
The Secretary of State may at any time direct the Board to transfer, or arrange for there to be transferred, to him or such other person as may be specified in the direction any interests in a company so specified, being a wholly owned subsidiary of the Board formed pursuant to a direction under section 84 above, which are for the time being held by or on behalf of the Board.
7
The Secretary of State may at any time direct the Franchising Director to transfer, or arrange for there to be transferred, to the Secretary of State or such other person as may be specified in the direction any interests in any company so specified which are for the time being held by the Franchising Director, any company which is wholly owned by the Franchising Director or any person acting on behalf of the Franchising Director or any such company.
8
Where the Secretary of State gives a direction under subsection (6) or (7) above, it shall be the duty of the Board or, as the case may be, the Franchising Director to secure that the interests in question are transferred in accordance with the terms of the direction in such manner, and on or before such date, as may be specified for the purpose in the direction, and notwithstanding any duty imposed upon the Board by section 3(1) of the M31Transport Act 1962.
89 Disposals by the Board and its subsidiaries.
1
If the Secretary of State, after consultation with the Board, so directs, the Board shall dispose or secure the disposal (whether by way of sale, lease or exchange and, if by way of sale or lease, whether for nominal or valuable consideration) of—
a
the whole or any part of the undertaking, or any property, rights or liabilities, of the Board or of any wholly owned subsidiary of the Board; or
b
without prejudice to paragraph (a) above, any securities of any subsidiary of the Board which are held by or on behalf of the Board or any other subsidiary of the Board.
2
The directions that may be given under this section by the Secretary of State include directions specifying—
a
the manner in which, and time within which, the disposal is to be effected;
b
that which is to be disposed of;
c
the person to whom the disposal is to be made.
3
No disposal shall be made by the Board, or by any subsidiary of the Board, in pursuance of a direction under this section except with the consent of the Secretary of State and subject to compliance with such conditions (if any) as he may impose in connection with that consent.
4
The powers of disposal conferred on the Board by virtue of this section are in addition and without prejudice to those conferred by section 14(1)(e) of the M32Transport Act 1962 (power to dispose of any part of the Board’s undertaking, or any property, no longer required for the purposes of the Board’s business) which shall accordingly also continue to be exercisable by the Board.
5
In section 27 of the M33Transport Act 1962, in subsection (4) (which provides that the Secretary of State may direct the Board and the British Waterways Board to discontinue any of their activities, dispose of any part of their undertaking, dispose of any assets held by them, call in any loan made by them or exercise any power they may possess to revoke any guarantees given by them) the words “dispose of any part of their undertaking, dispose of any assets held by them" shall cease to have effect in so far as relating to the Board.
90 Directions to the Board about the exercise of rights conferred by holdings in companies.
1
The Secretary of State may, after consultation with the Board, give directions to the Board with respect to the exercise of any rights conferred on the Board by the holding of interests in companies.
2
A direction under subsection (1) above may be general in character or may relate to the manner in which such rights as are mentioned in that subsection are to be exercised in a particular case.
3
In section 27 of the M34Transport Act 1962, in subsection (1) (which provides that the Secretary of State may give general directions to the Board as to the exercise and performance of their functions in relation to matters appearing to him to affect the national interest, including the exercise of rights conferred by the holding of interests in companies) the words “
(including the exercise of rights conferred by the holding of interests in companies)
”
shall cease to have effect so far as relating to the Board.
4
Subsection (5) of that section (which provides that the Secretary of State may, after consultation with the Board, direct the Board to exercise control over a subsidiary of the Board so as to require the subsidiary to discontinue any of their activities, dispose of any part of their undertaking, dispose of any assets held by them, call in any loan made by them or exercise any power they may possess to revoke any guarantees given by them) shall cease to have effect so far as relating to the Board.
Transfer schemes: supplemental provision
91 Transfer schemes: general.
1
A transfer scheme may—
a
define the property, rights and liabilities to be transferred to the transferee—
i
by specifying or describing the property, rights and liabilities in question;
ii
by referring to all (or all but so much as may be excepted) of the property, rights and liabilities comprised in a specified part of the transferor’s undertaking; or
iii
partly in the one way and partly in the other;
b
provide that any rights or liabilities specified or described in the scheme shall be enforceable either by or against the transferor or transferee (or both of them);
c
impose on the transferor or transferee an obligation to enter into such written agreements with, or execute such other instruments in favour of, the transferor or transferee or such other person as may be specified in the scheme;
d
make such supplemental, incidental, consequential or transitional provision as the maker of the scheme considers appropriate.
2
An obligation imposed by a provision included in a transfer scheme by virtue of paragraph (c) of subsection (1) above shall be enforceable by civil proceedings by the transferor or transferee or other person mentioned in that paragraph for an injunction or for interdict or for any other appropriate relief or remedy.
3
A transaction of any description which is effected in pursuance of such a provision as is mentioned in subsection (2) above—
a
shall have effect subject to the provisions of any enactment which provides for transactions of that description to be registered in any statutory register; but
b
subject to that, shall be binding on all other persons, notwithstanding that it would, apart from this subsection, have required the consent or concurrence of any other person.
4
No right of reverter (or corresponding right in Scotland), right of pre-emption, right of forfeiture, right of re-entry, right of irritancy, option or similar right affecting land shall operate or become exercisable as a result of any transfer of land—
a
by virtue of a transfer scheme;
b
by or under an agreement or instrument made or executed pursuant to any provision of Schedule 8 to this Act or pursuant to any directions given, or requirement imposed, under that Schedule; or
c
pursuant to an obligation imposed by a provision included in a transfer scheme by virtue of paragraph (c) of subsection (1) above;
and, without prejudice to paragraph 8 of Schedule 8 to this Act, any such right or option shall accordingly have effect in the case of any such transfer as if the transferee in relation to that transfer were the same person in law as the transferor and as if no transfer of the land had taken place.
5
Subsection (4) above shall have effect in relation to—
a
the grant or creation of an estate or interest in, or right over, land, or
b
the doing of any other thing in relation to land,
as it has effect in relation to a transfer of land; and any reference in that subsection or in the following provisions of this section to the transferor or the transferee shall be construed accordingly.
6
In any case where—
a
any such right or option as is mentioned in subsection (4) above would, apart from that subsection, have operated in favour of, or become exercisable by, a person, but
b
the circumstances are such that, in consequence of the operation of that subsection, the right or option cannot subsequently operate in favour of that person or, as the case may be, become exercisable by him,
such compensation as may be just shall be paid to him by the transferor or the transferee (or by both) in respect of the extinguishment of the right or option.
7
Any dispute as to whether any, and (if so) how much, compensation is payable under subsection (6) above, or as to the person to or by whom it shall be paid, shall be referred to and determined by—
a
an arbitrator appointed by the President for the time being of the Royal Institution of Chartered Surveyors; or
b
where the proceedings are to be held in Scotland, an arbiter appointed by the Lord President of the Court of Session; or
c
where the proceedings are to be held in Northern Ireland, an arbitrator appointed by the F589Chairman of the Royal Institution of Chartered Surveyors in Northern Ireland .
8
If it appears to the transferor that a person is or may be entitled to compensation under subsection (6) above, he shall—
a
notify that person that he is or may be so entitled, and
b
invite him to make such representations as he wishes to the transferor not later than fourteen days after the date of issue of the document containing the notification required by paragraph (a) above,
or, if the transferor is not aware of the name and address of the person concerned, shall publish, in such manner as he considers appropriate, a notice containing information about the interest affected and inviting any person who thinks that he is or may be entitled to compensation to make such representations to the transferor within such period (being not less than 28 days from the date of publication of the notice) as may be specified in the notice.
92 Functions under local or private legislation etc.
1
A transfer scheme may provide that any functions of the transferor under a statutory provision—
a
shall be transferred to the transferee;
b
shall be concurrently exercisable by two or more transferees; or
c
shall be concurrently exercisable by the transferor and one or more transferees.
2
Subsection (1) above applies in relation to any function under a statutory provision if and to the extent that the statutory provision—
a
relates to any part of the transferor’s undertaking, or to any property, which is to be transferred by the scheme; or
b
authorises the carrying out of works designed to be used in connection with any such part of the transferor’s undertaking or the acquisition of land for the purpose of carrying out any such works.
3
Subsection (1) above does not apply to any function of the Board or of any of the Board’s subsidiaries under any provision of this Act or of—
a
the M35Transport Act 1962;
b
the M36Transport Act 1968;
c
section 4 of the M37Railways Act 1974; or
d
sections 119 to 124 of the M38Transport Act 1985.
4
A transfer scheme may define any functions of the transferor to be transferred or made concurrently exercisable by the scheme in accordance with subsection (1) above—
a
by specifying the statutory provisions in question;
b
by referring to all the statutory provisions (except those specified in subsection (3) above) which—
i
relate to any part of the transferor’s undertaking, or to any property, which is to be transferred by the scheme, or
ii
authorise the carrying out of works designed to be used in connection with any such part of the transferor’s undertaking or the acquisition of land for the purpose of carrying out any such works; or
c
by referring to all the statutory provisions within paragraph (b) above, but specifying certain excepted provisions.
5
In this section “statutory provision” means a provision whether of a general or of a special nature contained in, or in any document made or issued under, any Act, whether of a general or a special nature.
I1093 Assignment of employees to particular parts of undertakings.
1
Schemes may be made—
a
assigning such qualifying employees, or qualifying employees of such a class or description, as may be specified in the scheme to such part of their employer’s undertaking as may be so specified;
b
modifying the terms and conditions of employment of those employees; and
c
providing for the payment of compensation to any of those employees by his employer in respect of any overall detriment incurred by the employee in consequence of any modifications made by the scheme to his terms and conditions of employment.
2
A scheme shall be made only for the purpose of facilitating, or otherwise in contemplation of, or in connection with,—
a
the disposal of the undertaking, or part of the undertaking, of the Board or of a wholly owned subsidiary of the Board;
b
the transfer, by virtue of a transfer scheme, of any property, rights or liabilities—
i
from the Board or a wholly owned subsidiary of the Board to any such subsidiary or to a publicly owned railway company or a company wholly owned by the Franchising Director; or
ii
from a company wholly owned by the Franchising Director to another such company;
c
the provision of railway passenger services, or the operation of additional railway assets, under a franchise agreement, in circumstances where a previous franchise agreement relating to the provision of those services or the operation of those assets comes, or has come, to an end;
d
the performance of any duty imposed on the Franchising Director by any provision of Part I above to secure—
i
the provision of any railway passenger services;
ii
the operation of any network or part of a network;
iii
the operation of any station or light maintenance depot, or any part of a station or light maintenance depot; or
e
the exercise of the power conferred on the Franchising Director by section 30 above to secure the operation of any additional railway assets.
3
The power to make a scheme shall be exercisable—
a
by the Board, in respect of employees of the Board or of any wholly owned subsidiary of the Board; or
b
by the Franchising Director, in respect of employees of any company which is wholly owned by the Franchising Director.
4
Where a scheme modifies the terms and conditions of employment of any person, the person’s terms and conditions of employment after the modification takes effect must overall, and taking account of the amount or value of any compensation payable to him by virtue of subsection (1)(c) above in respect of any such detriment as is there mentioned, be no less favourable to him than his terms and conditions of employment before the modification takes effect.
5
The duty imposed on an employer by section 4 of F590the Employment Rights Act 1996 (requirement for written statement in respect of certain changes relating to an employee’s employment) shall extend to all of the modifications made by a scheme to a qualifying employee’s terms and conditions of employment, as if those modifications were changes required to be dealt with in a written statement under that section.
6
If any qualifying employee whose terms and conditions of employment are modified by a scheme is aggrieved—
a
at the provisions made by the scheme with respect to the payment of compensation, so far as applicable in his case, or
b
at the fact that the scheme does not make any such provision,
he may make a written complaint to the maker of the scheme not later than twelve weeks after the date of issue of the written statement required by section 4 of F590the Employment Rights Act 1996in consequence of the modifications made by the scheme in the qualifying employee’s terms and conditions of employment.
7
Any complaint under subsection (6) above shall be referred to, and determined by, such arbitrator as may be agreed by the qualifying employee and the person to whom the complaint was made or, at the request of either of them, by a panel of three arbitrators appointed by the Secretary of State and consisting of—
a
a person who appears to the Secretary of State to be representative of employers in the railway industry;
b
a person who appears to the Secretary of State to be representative of employees in the railway industry; and
c
an independent chairman.
8
A scheme may make such incidental, consequential, supplemental or transitional provision as appears necessary or expedient to the person making the scheme.
9
A scheme may make different provision for different qualifying employees or for qualifying employees of different classes or descriptions.
10
A scheme shall not come into force unless it has been approved by the Secretary of State or until such date as the Secretary of State may, after consultation with the maker of the scheme, specify for the purpose in giving his approval.
11
In the application of this section in relation to Scotland, any reference to an arbitrator shall be taken as a reference to an arbiter.
12
13
In this section—
“qualifying employee”, in the case of any scheme, means a person who, immediately before the coming into force of that scheme—
- a
is an employee of—
- i
the Board;
- ii
a wholly owned subsidiary of the Board; or
- iii
a company which is wholly owned by the Franchising Director; and
- b
is not assigned solely to duties in that part of his employer’s undertaking to which he is, or is to be, assigned by that scheme;
- a
“scheme” means a scheme under this section;
and expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.
94 Accounting provisions.
1
This section applies where any property, rights or liabilities are transferred by virtue of a transfer scheme between—
a
the Board and any company which, at the time of the transfer, is either—
i
a wholly owned subsidiary of the Board; or
ii
wholly owned by the Crown; or
b
any two companies which, at the time of the transfer, fall within paragraph (a) above.
2
Where this section applies, the transfer scheme may state—
a
the value at which any asset transferred to the transferee by virtue of the scheme is to be entered in the opening accounts of the transferee; or
b
the amount at which any liability so transferred is to be entered in those accounts.
3
The value or amount (if any) stated by virtue of subsection (2) above shall be—
a
in a case where the whole of the asset or liability in question is transferred by the transfer scheme, the value or amount at which the asset or liability appeared in the last full accounts of the transferor, or
b
in a case where part only of the asset or liability is so transferred, such part of the value or amount at which the asset or liability appeared in the last full accounts of the transferor as may be determined by or in accordance with the transfer scheme,
unless the maker of the transfer scheme considers that some other amount or value is appropriate in all the circumstances of the case, in which case the amount or value stated by virtue of subsection (2) above shall be that other amount or value.
4
Where this section applies, the transfer scheme may provide that the amount to be included in the opening accounts of the transferee in respect of any item shall be determined as if so much of anything done (or treated as done) by the transferor (whether by way of acquiring, revaluing or disposing of any asset or incurring, revaluing or discharging any liability, or by carrying any amount to any provision or reserve, or otherwise) as may be determined by or in accordance with the transfer scheme had been done by the transferee.
5
Without prejudice to the generality of the preceding provisions of this section, where this section applies, the transfer scheme may provide—
a
that the amount to be included from time to time in any reserves of the transferee as representing its accumulated realised profits shall be determined as if such proportion of any profits realised and retained by the transferor as may be determined by or in accordance with the transfer scheme, had been realised and retained by the transferee;
b
that the amount to be included from time to time in the opening accounts and any subsequent statutory accounts of the transferee as representing its accumulated realised losses shall be determined as if such proportion of any accumulated realised losses of the transferor as may be determined by or in accordance with the transfer scheme had been losses realised by the transferee.
6
In this section—
“accounting year” means—
- a
in the case of the Board, the period of twelve months ending with 31st March in any year; and
- b
in the case of any company, its financial year, within the meaning of F696the Companies Act 2006;
- a
“the last full accounts”, in connection with any transfer scheme, means—
- a
where the Board is the transferor, the annual accounts prepared by the Board in accordance with section 24 of the M40Transport Act 1962 for the accounting year last ended before the making of the transfer scheme; and
- b
where any other person is the transferor, the statutory accounts of that person for the accounting year last ended before the making of the transfer scheme;
- a
“the opening accounts of the transferee” means any statutory accounts prepared by the transferee for the accounting year next ending after the transfer date;
“statutory accounts” means any accounts prepared by a company for the purpose of any provision of F697the Companies Act 2006 (including group accounts).
95 Power of the Secretary of State or the Franchising Director to require provision of information in connection with transfer schemes.
1
Where, in exercise of any functions conferred on him by section 86 above or transferred to him by an order under section 87 above, the Franchising Director or the Secretary of State (in this section referred to as “the relevant authority”) proposes to make a transfer scheme, he may direct any person to whom this section applies—
a
to furnish him with such information as the relevant authority considers necessary to enable him to make the scheme; and
b
to do so within such time (being not less than 28 days from the giving of the direction) as may be specified in the direction;
and the persons to whom this section applies are F591the Office of Rail Regulation , the Board, any wholly owned subsidiary of the Board, any publicly owned railway company, any franchise company and any company which is wholly owned by the Franchising Director.
2
If a person fails to comply with a direction under subsection (1) above, the relevant authority may serve a notice under subsection (3) below on that person.
3
A notice under this subsection is a notice signed by the relevant authority and—
a
requiring the person on whom it is served to produce, at a time and place specified in the notice, to the relevant authority or to any person appointed by the relevant authority for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or
b
requiring that person to furnish, at a time and place and in the form and manner specified in the notice, to the relevant authority such information as may be specified or described in the notice.
4
No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.
5
A person who without reasonable excuse fails to do anything required of him by notice under subsection (3) above is guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
6
A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (3) above to produce is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
7
If a person makes default in complying with a notice under subsection (3) above, the court may, on the application of the relevant authority, make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
8
Any reference in this section to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
9
In this section “the court” means the High Court, in relation to England and Wales, and the Court of Session, in relation to Scotland.
96 Functions of the Secretary of State in relation to transfer schemes.
1
A transfer scheme made by the Board or the Franchising Director, otherwise than under section 86 above, shall not come into force unless it has been approved by the Secretary of State or until such date as the Secretary of State may specify for the purpose in giving his approval.
2
The Secretary of State shall not make a transfer scheme except after consultation with the transferor.
3
Before approving a transfer scheme made by the Franchising Director or the Board, the Secretary of State, after consultation with the transferor and, in the case of a scheme made by the Franchising Director, with the Franchising Director, may modify the scheme.
4
It shall be the duty of the transferor to provide the Secretary of State with all such information and other assistance as he may require for the purposes of or in connection with the exercise, in relation to a transfer scheme, of any power conferred on him by this section.
97 Supplementary provisions as to transfers by transfer scheme.
The provisions of Schedule 8 to this Act shall apply to any transfer by virtue of a transfer scheme; and sections 85(6) and 86(4) above shall have effect subject to the provisions of that Schedule.
Ownership of successor companies
98 Initial share holding in successor companies.
1
This section applies where any property, rights or liabilities are vested in accordance with a transfer scheme in a successor company which at the time of the vesting is either—
a
a wholly owned subsidiary of the Board; or
b
Government owned.
2
Where this section applies, the successor company shall, as a consequence of the vesting referred to in subsection (1) above, issue to the appropriate person such securities of that company as may from time to time be directed—
a
by the Secretary of State, if the transfer scheme was made in pursuance of a direction given by him; or
b
in any other case, by the Board with the consent of the Secretary of State.
3
The “appropriate person” for the purposes of subsection (2) above is—
a
the Board, in a case where the direction under that subsection is given at a time when the successor company is a wholly owned subsidiary of the Board; or
b
the Secretary of State, in a case where the direction under that subsection is given at a time when the successor company is Government owned.
4
No direction shall be given under subsection (2) above to the successor company at any time after that company—
a
has ceased to be Government owned, or
b
has ceased to be a wholly owned subsidiary of the Board,
unless, in a case where paragraph (b) above would otherwise apply, the cessation mentioned in that paragraph occurs in consequence of the successor company’s becoming Government owned pursuant to a direction under section 88(6) above, in which case directions under subsection (2) above may continue to be given until the company ceases to be Government owned.
5
Securities required to be issued in pursuance of a direction under subsection (2) above shall be issued or allotted at such time or times, and on such terms, as may be specified in the direction.
6
Shares of the successor company which are issued in pursuance of a direction under subsection (2) above—
a
shall be of such nominal value as the Secretary of State may direct; and
b
shall be issued as fully paid and treated for the purposes of the M41Companies Act 1985 as if they had been paid up by virtue of the payment to that company of their nominal value in cash.
7
Any dividends or other sums received by the Treasury or the Secretary of State in right of, or on the disposal of, any securities acquired by virtue of this section shall be paid into the Consolidated Fund.
8
In this section, “Government owned”, in relation to any successor company, means wholly owned by the Crown, but not wholly owned by the Franchising Director.
99 Government investment in securities of successor companies.
1
The Treasury or, with the approval of the Treasury, the Secretary of State may at any time acquire securities of a successor company which at that time is—
a
a wholly owned subsidiary of the Board; or
b
wholly owned by the Crown.
2
The Secretary of State shall not dispose of any securities acquired under this section without the approval of the Treasury.
3
Any expenses incurred by the Treasury or the Secretary of State in consequence of the provisions of this section shall be paid out of money provided by Parliament.
4
Any dividends or other sums received by the Treasury or the Secretary of State in right of, or on the disposal of, any securities acquired under this section shall be paid into the Consolidated Fund.
100 Exercise of functions through nominees.
1
The Treasury or, with the approval of the Treasury, the Secretary of State may, for the purposes of section 98 or 99 above or section 106 below, appoint any person to act as the nominee, or one of the nominees, of the Treasury or the Secretary of State; and—
a
securities of a successor company may be issued under section 98 above or section 106 below to any nominee of the Treasury or the Secretary of State appointed for the purposes of that section, and
b
any such nominee appointed for the purposes of section 99 above may acquire securities under that section,
in accordance with directions given from time to time by the Treasury or, with the consent of the Treasury, by the Secretary of State.
2
Any person holding any securities as a nominee of the Treasury or the Secretary of State by virtue of subsection (1) above shall hold and deal with them (or any of them) on such terms and in such manner as the Treasury or, with the consent of the Treasury, the Secretary of State may direct.
101 Target investment limit for Government shareholding in certain successor companies.
1
As soon as he considers expedient and, in any case, not later than six months after any operating company ceases to be a public sector railway company, the Secretary of State shall by order fix a target investment limit in relation to the shares for the time being held in that company by virtue of any provision of this Part by the Treasury and their nominees and by the Secretary of State and his nominees (in this section referred to as “the Government shareholding”).
2
The target investment limit for the Government shareholding in an operating company shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of the company (in this section referred to as “the ordinary voting rights”).
3
The first target investment limit fixed under this section for the Government shareholding in a particular company shall not exceed, by more than 0.5 per cent. of the ordinary voting rights, the proportion of those rights which is in fact carried by the Government shareholding in that company at the time when the order fixing the limit is made.
4
The Secretary of State may from time to time by order fix a new target investment limit for the Government shareholding in an operating company in place of the one previously in force under this section; but—
a
any new limit must be lower than the one it replaces; and
b
an order under this section may only be revoked by an order fixing a new limit.
5
It shall be the duty of the Treasury and of the Secretary of State so to exercise—
a
their powers under section 99 above and any power to dispose of any shares held by virtue of any provision of this Part, and
b
their power to give directions to their respective nominees,
as to secure in relation to each operating company that the Government shareholding in that company does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this section in relation to that company.
6
Notwithstanding subsection (5) above but subject to subsection (7) below, the Treasury or the Secretary of State may take up, or direct any nominee of the Treasury or of the Secretary of State to take up, any rights which are for the time being available to them or him, or to the nominee, either—
a
as an existing holder of shares or other securities of an operating company; or
b
by reason of the rescission of any contracts for the sale of such shares or securities.
7
If, as a result of anything done under subsection (6) above, the proportion of the ordinary voting rights carried by the Government shareholding in an operating company at any time exceeds the target investment limit for the time being in force under this section in relation to that company, it shall be the duty of the Treasury or, as the case may be, the Secretary of State to comply with subsection (5) above as soon after that time as is reasonably practicable.
8
For the purposes of this section the temporary suspension of any of the ordinary voting rights shall be disregarded.
9
The Secretary of State shall not exercise any power conferred on him by this section except with the consent of the Treasury.
10
In this section—
“operating company” means a successor company—
- a
which is a company limited by shares and formed and registered under the M42Companies Act 1985 (or the former Companies Acts, as defined in section 735(1)(c) of that Act);
- b
which was a public sector railway company at the time when any property, rights or liabilities of another public sector railway company were vested in it by a transfer scheme;
- c
which has since ceased to be a public sector railway company; and
- d
which at the time of the vesting referred to in paragraph (b) above was not, and at no time since has been, a franchise company;
- a
“public sector railway company” means—
- a
the Board;
- b
any wholly owned subsidiary of the Board; or
- c
any publicly owned railway company.
- a
Finances of successor companies
102 Temporary restrictions on borrowings etc.
1
If articles of association of a successor company confer on the Secretary of State powers exercisable with the consent of the Treasury for, or in connection with, restricting the sums of money which may be borrowed or raised by the group during any period, those powers shall be exercisable in the national interest notwithstanding any rule of law and the provisions of any enactment.
2
For the purposes of this section an alteration of the articles of association of a successor company shall be disregarded if the alteration—
a
has the effect of conferring or extending any such power as is mentioned in subsection (1) above; and
b
is made at a time when that company is neither a wholly owned subsidiary of the Board nor wholly owned by the Crown.
3
In this section “group”, in relation to a company, means that company and all of its subsidiaries taken together.
103 Government lending to certain successor companies.
1
The Secretary of State may, with the approval of the Treasury, make loans of such amounts as he thinks fit to any successor company which is for the time being wholly owned by the Crown.
2
Any loans which the Secretary of State makes under this section shall be repaid to him at such times and by such methods, and interest on any such loans shall be paid to him at such rates and at such times, as he may, with the approval of the Treasury, from time to time direct.
3
The Treasury may issue out of the National Loans Fund to the Secretary of State such sums as are required by him for making loans under this section.
4
Any sums received under subsection (2) above by the Secretary of State shall be paid into the National Loans Fund.
5
It shall be the duty of the Secretary of State as respects each financial year—
a
to prepare, in such form as the Treasury may direct, an account of sums issued to him in pursuance of subsection (3) above and of sums received by him under subsection (2) above and of the disposal by him of the sums so issued or received; and
b
to send the account to the Comptroller and Auditor General not later than the end of the month of August in the following financial year;
and the Comptroller and Auditor General shall examine, certify and report on the account and shall lay copies of it and of his report before each House of Parliament.
104 Treasury guarantees for loans made to certain successor companies.
1
The Treasury may guarantee, in such manner and on such terms as they may think fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sums which are borrowed from a person other than the Secretary of State by any successor company which is for the time being wholly owned by the Crown.
2
Immediately after a guarantee is given under this section, the Treasury shall lay a statement of the guarantee before each House of Parliament; and immediately after any sum is issued for fulfilling a guarantee so given, the Treasury shall so lay a statement relating to that sum.
3
Any sums required by the Treasury for fulfilling a guarantee under this section shall be charged on and issued out of the Consolidated Fund.
4
If any sums are issued in fulfilment of a guarantee given under this section, the company whose obligations are so fulfilled shall make to the Treasury, at such times and in such manner as the Treasury may from time to time direct—
a
payments of such amounts as the Treasury may so direct in or towards repayment of the sums so issued; and
b
payments of interest on what is outstanding for the time being in respect of sums so issued at such rate as the Treasury may so direct.
5
Any sums received under subsection (4) above by the Treasury shall be paid into the Consolidated Fund.
105 Grants to certain successor companies.
1
The Secretary of State may, with the approval of the Treasury, make to any successor company which is for the time being wholly owned by the Crown grants of such amounts, at such times and in such manner, as he may with the approval of the Treasury determine, towards the expenditure of that company.
2
Grants under this section may be made subject to such conditions as the Secretary of State with the approval of the Treasury may determine.
3
Any sums required by the Secretary of State for making grants under this section shall be paid out of money provided by Parliament.
106 Extinguishment of certain liabilities of successor companies.
1
The Secretary of State may by order extinguish all or any of the liabilities of a successor company which is for the time being—
a
a wholly owned subsidiary of the Board, or
b
wholly owned by the Crown,
in respect of the principal of such relevant loans as may be specified in the order; and the assets of the National Loans Fund shall accordingly be reduced by amounts corresponding to any liabilities so extinguished.
2
Where the Secretary of State has made an order under subsection (1) above and he considers it appropriate to do so, he may from time to time give a direction under this subsection to the company whose liabilities are extinguished by the order, or to a company or companies wholly owning the company whose liabilities are so extinguished; and a company to which such a direction is given shall, as a consequence of the making of the order, issue such securities of the company as may be specified or described in the direction—
a
to the Treasury or the Secretary of State; or
b
if it is the company whose liabilities are extinguished by the order, to a company or companies wholly owning that company.
3
For the purposes of any statutory accounts of a company to whom securities are issued by virtue of subsection (2)(b) above, the value at the time of its issue of any such security shall be taken—
a
in the case of a share, to have been equal to its nominal value; and
b
in the case of a debenture, to have been equal to the principal sum payable under the debenture,
and such nominal value or principal sum shall be taken in those accounts to be accumulated realised profits.
4
In subsection (3) above “statutory accounts of a company” means any accounts prepared by the company for the purpose of any provision of F695the Companies Act 2006 (including group accounts).
5
The Secretary of State—
a
shall not give a direction under subsection (2) above for the issue of securities except at a time when the company whose liability is extinguished by the order or, as the case may be, the company which is directed to issue securities satisfies the condition in subsection (6) below; and
b
shall not give a direction under paragraph (b) of subsection (2) above except at a time when the company, or each of the companies, to whom the securities are to be issued satisfies that condition.
6
The condition referred to in subsection (5) above is that the company is for the time being—
a
a wholly owned subsidiary of the Board; or
b
wholly owned by the Crown.
7
Unless the Secretary of State otherwise determines in any particular case, where a company is directed to issue debentures in pursuance of this section—
a
the aggregate of the principal sums payable under the debentures to which the direction relates shall be equal to the aggregate of the sums the liability to repay which is extinguished by the order; and
b
the terms as to the payment of the principal sums payable on the debentures to which the direction relates, and as to the payment of interest on those principal sums, shall be the same as the corresponding terms of the loans specified in the order.
8
For the purposes of subsection (7) above, any express or implied terms of a loan shall be disregarded in so far as they relate to the early discharge of liabilities to make repayments of principal and payments of interest.
9
Subsections (5) to (7) of section 98 above shall apply for the purposes of this section as they apply for the purposes of that section.
10
The Secretary of State shall not exercise any power conferred on him by this section except with the consent of the Treasury.
11
In this section “relevant loan”, in relation to a successor company, means any loan made to the Board under section 20 of the M43Transport Act 1962, if and to the extent that the liability to repay that loan is transferred to and vested in that company by virtue of a transfer scheme.
12
For the purposes of this section the company or companies wholly owning another company are—
a
any company of which that other is a wholly owned subsidiary, or
b
any two or more companies which between them hold all the issued securities of that other.
Provisions with respect to flotation
107 Responsibility for composite listing particulars of certain licensed successor companies.
1
In any case where—
a
the same document contains listing particulars for securities of two or more licensed successor companies, and
b
any person’s responsibility for any information included in the document is stated in the document to be confined to its inclusion as part of the listing particulars for securities of any one of those companies,
that person shall not be treated as responsible for that information in so far as it is stated in the document to form part of the listing particulars for securities of any other of those companies.
2
Sections 150 and 154 of the 1986 Act (advertisements etc in connection with listing applications) shall have effect in relation to any information issued for purposes connected with any securities of a licensed successor company as if any reference to a person’s incurring civil liability included a reference to any other person being entitled, as against that person, to be granted a civil remedy or to rescind or repudiate any contract.
3
Subsections (1) and (2) above have effect only in relation to licensed successor companies—
a
which are wholly owned subsidiaries of the Board; or
b
which are wholly owned by the Crown.
4
In this section—
“the 1986 Act” means the M44Financial Services Act 1986;
“licensed successor company” means a successor company which is the holder of a licence under section 8 above;
“listing particulars” means any listing particulars or supplementary listing particulars within the meaning of the 1986 Act;
“responsible” means responsible for the purposes of Part IV of the 1986 Act and “responsibility” shall be construed accordingly.
108 Application of Trustee Investments Act 1961 in relation to investment in certain licensed successor companies.
1
Subsection (2) below shall have effect for the purpose of applying paragraph 3(b) of Part IV of Schedule 1 to the M45Trustee Investments Act 1961 (which provides that shares and debentures of a company shall not count as wider-range and narrower-range investments respectively within the meaning of that Act unless the company has paid dividends in each of the five years immediately preceding that in which the investment is made) in relation to investment, during the first investment year or any following year, in shares or debentures of a licensed successor company—
a
whose shares or debentures are included in the Official List, within the meaning of Part IV of the M46Financial Services Act 1986, in pursuance of that Part; and
b
which, immediately before its shares or debentures were admitted to that Official List, was—
i
a wholly owned subsidiary of the Board; or
ii
a company wholly owned by the Crown.
2
The licensed successor company shall be deemed to have paid a dividend as mentioned in the said paragraph 3(b)—
a
in every year preceding the first investment year which is included in the relevant five years; and
b
in the first investment year, if that year is included in the relevant five years and that company does not in fact pay such a dividend in that year.
3
In this section—
“the first investment year”, in relation to a licensed successor company means the calendar year in which shares in that company are first issued in pursuance of section 98(2) above;
“licensed successor company” has the same meaning as it has in section 107 above;
“the relevant five years” means the five years immediately preceding the year in which the investment in question is made or proposed to be made.
Other financial provisions
109 Grants to the Board.
After section 21 of the M47Transport Act 1962 (Treasury guarantees) there shall be inserted—
21A Grants to the Railways Board.
1
The Secretary of State may, with the approval of the Treasury, make to the Railways Board grants of such amounts, at such times and in such manner, as he may with the approval of the Treasury determine—
a
towards the expenditure of that Board; or
b
without prejudice to paragraph (a) of this subsection, for the purpose of enabling that Board to make any payment (whether by way of repayment of principal or payment of interest or of any other description) in respect of any loan made to them under section twenty of this Act.
2
Grants under this section may be made subject to such conditions as the Secretary of State may with the approval of the Treasury determine.
3
Any sums required by the Secretary of State for making grants under this section shall be paid out of money provided by Parliament.
4
This section is without prejudice to any other power to make grants to the Railways Board.
110 Application of sections 19 to 21A of the Transport Act 1962 to wholly owned subsidiaries of the Board.
1
If the Secretary of State by order so provides, sections 19 to 21A of the M48Transport Act 1962 (which, among other things, make provision for and in connection with—
a
the borrowing powers of the Board,
b
the making by the Secretary of State of loans to the Board,
c
the giving by the Treasury of guarantees in respect of sums borrowed by the Board from persons other than the Secretary of State, and
d
the making by the Secretary of State of grants to the Board),
shall apply in relation to any wholly owned subsidiary of the Board designated in the order as they apply in relation to the Board, but with such modifications as may be specified in the order.
2
Without prejudice to the generality of the modifications of those sections that may be specified in an order under this section, any such order may include provision imposing limits on the amounts that may be outstanding at any time in respect of the principal of any money borrowed by wholly owned subsidiaries of the Board under section 19 of the M49Transport Act 1962 in its application by virtue of this section.
111 Financial limits on loans.
In section 42 of the M50Transport Act 1968, in subsection (6) (limit on aggregate amount outstanding in respect of the principal of any money borrowed by the Board under section 19 of the M51Transport Act 1962 and the Board’s commencing capital debt), paragraph (b) (which relates to the Board’s commencing capital debt, and which is spent) shall be omitted and after that paragraph there shall be inserted—
(c) the principal of any money borrowed by wholly owned subsidiaries of the Board under that section in its application by virtue of section 110 of the Railways Act 1993,
Stamp duty and stamp duty reserve tax
112 Stamp duty and stamp duty reserve tax.
Schedule 9 to this Act (which makes provision about stamp duty and stamp duty reserve tax in relation to or in connection with the other provisions of this Part) shall have effect.
Supplemental
F592113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
114 The Secretary of State, the Franchising Director and the Board not to be regarded as shadow directors of certain railway companies etc.
1
None of the following persons, that is to say—
a
the Secretary of State,
b
the Franchising Director,
c
the Board,
2
Those bodies are—
a
any publicly owned railway company;
b
any company which is wholly owned by the Franchising Director;
c
any subsidiary of the Board;
d
any franchise company;
e
any company concerning which a direction (whether of a general or specific character) has been given under section 90 above to the Board with respect to the exercise by the Board of the rights conferred by their holding of interests in that company.
115 Parliamentary disqualification.
In Part III of Schedule 1 to the M52House of Commons Disqualification Act 1975, the following entry shall be inserted at the appropriate place—
Director of a company—
a
which, within the meaning of Part II of the Railways Act 1993, is a successor company wholly owned by the Crown, or
b
which, within the meaning of that Act, is wholly owned by the Director of Passenger Rail Franchising,
being a director nominated or appointed by a Minister of the Crown, the Director of Passenger Rail Franchising or any other person acting on behalf of the Crown
116 Interpretation of Part II.
1
In this Part, unless the context otherwise requires—
“dispose”, in relation to any land, includes the making of any disposition and “disposal” shall be construed accordingly;
“franchise company” has the meaning given by section 85(8) above;
“property”, “rights” and “liabilities” shall be construed in accordance with section 85(2) above and subsection (2) below;
“successor company” means a company in which any property, rights or liabilities are vested by virtue of and in accordance with a transfer scheme;
“transfer date” has the meaning given by section 85(6) or, as the case may be, 86(5)(b) above;
“transferee” and “transferor”, in relation to any transfer of property, rights or liabilities effected or proposed to be effected by virtue of a transfer scheme, mean respectively the person to whom and the person from whom they are, or are to be, so transferred.
2
Any reference in this Part to property, rights or liabilities is a reference to property or (as the case may be) rights or liabilities—
a
whether or not capable of being transferred or assigned otherwise than under or by virtue of this Act;
b
whether situate or subsisting in the United Kingdom or elsewhere; and
c
whether the person entitled to the property or rights or, as the case may be, subject to the liabilities is so entitled or subject—
i
under the law of the United Kingdom or of any part of the United Kingdom; or
ii
under the law of any country or territory outside the United Kingdom;
and references to an undertaking or part of an undertaking shall be construed accordingly.
C78Part III Miscellaneous, General and Supplemental Provisions
Pt. III (ss. 117-154) excluded (retrospective to 5.11.1993) by 1994 c. 9, s. 252, Sch. 24 para. 4(1)
Safety, emergencies, security etc.
117 Safety of railways and other guided transport systems.
1
Part I of the M53Health and Safety at Work etc. Act 1974 (“the 1974 Act") shall have effect as if the provisions mentioned in subsection (4) below (which relate to the proper construction and safe operation of certain transport systems, and of the vehicles used on those systems, and the protection of railway employees or the general public from personal injury and other risks arising therefrom)—
a
were existing statutory provisions, within the meaning of that Part; and
b
in the case of the enactments mentioned in paragraphs (a) to (m) of that subsection, were specified in the third column of Schedule 1 to that Act.
2
If to any extent they would not do so apart from this subsection, the general purposes of Part I of the 1974 Act shall include—
a
securing the proper construction and safe operation of transport systems to which this section applies, and of any locomotives, rolling stock or other vehicles used, or to be used, on those systems; and
b
protecting the public (whether passengers or not) from personal injury and other risks arising from the construction and operation of transport systems to which this section applies.
3
Without prejudice to the generality of subsection (1) of section 15 of the 1974 Act (health and safety regulations), regulations under that section may—
a
repeal or modify any of the provisions mentioned in subsection (4) below; and
b
make any provision which, but for any such repeal or modification, could be made by regulations or orders made under any enactment there mentioned.
4
The provisions referred to in subsections (1) and (3) above are—
a
the M54Highway (Railway Crossings) Act 1839;
b
sections 9 and 10 of the M55Railway Regulation Act 1842;
c
section 22 of the M56Regulation of Railways Act 1868;
d
the M57Regulation of Railways Act 1871;
e
sections 1 and 4 of the M58Regulation of Railways Act 1889;
f
the M59Railway Employment (Prevention of Accidents) Act 1900;
g
section 42 of the M60Road and Rail Traffic Act 1933;
h
section 40 of the M61British Transport Commission Act 1954;
j
section 66 of the M62British Transport Commission Act 1957;
k
sections 124 and 125 of the M63Transport Act 1968;
l
the M64Level Crossings Act 1983;
m
sections 41 to 45 of the M65Transport and Works Act 1992;
n
any regulations made under section 2 of the M66European Communities Act 1972 for the purpose of implementing the Council 91/440/EEC. Directive of 29th July 1991 on the development of the Community’s railways, so far as the regulations are made for safety purposes.
5
In consequence of subsection (1) above and the resulting application of sections 38 and 50 of the 1974 Act (consent to prosecutions, and procedural requirements for making regulations)—
a
in section 57 of the M67Transport and Works Act 1992 (duty to consult before making regulations under, among other provisions, section 38(2), 41 or 43 of that Act) for the words “38(2), 41 or 43" there shall be substituted the words “
or 38(2)
”
; and
b
in section 58 of that Act (which requires the consent of the Secretary of State or the Director of Public Prosecutions to a prosecution for an offence under Part II of that Act) after the words “offence under this Part" there shall be inserted the words “
, other than an offence under section 41 or 43 above,
”
.
6
This section applies to the following transport systems, that is to say—
a
any railway, tramway or trolley vehicle system; or
b
any transport system using any other mode of guided transport.
7
The definitions of “guided transport”, “railway”, “tramway”, “trolley vehicle system” and “vehicle” in section 67(1) of the M68Transport and Works Act 1992 shall have effect for the purposes of this section as they have effect for the purposes of that Act, but disregarding for the purposes of this section paragraph (b) of the definition of “railway" (which includes a condition as to the minimum gauge of the track).
118 Control of railways in time of hostilities, severe international tension or great national emergency.
1
In time of hostilities, whether actual or imminent, severe international tension or great national emergency, the Secretary of State may give directions under this subsection to such of the following persons as he may consider appropriate, that is to say—
a
F593the Office of Rail Regulation;
b
F594. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
any person who is the owner or operator of a relevant asset;
d
any person who provides railway services.
2
The Secretary of State may at any time give directions under this subsection to any person falling within paragraphs (a) to (d) of subsection (1) above whom he may consider appropriate, requiring that person to participate in the planning of steps that might be taken in time of actual or imminent hostilities, severe international tension or great national emergency.
3
4
The power to give directions under subsection (1) above to a person who is the owner or operator of a relevant asset or who provides railway services includes power—
a
in the case of a person who is the owner of a relevant asset, to direct that person to permit the use of, or to exercise his rights over, the relevant asset in such manner or for such purposes as may be specified in the direction;
b
in the case of a person who is the operator of a relevant asset, to direct that person to exercise his powers of management over the relevant asset in such manner or for such purposes as may be so specified; and
c
in the case of a person who provides railway services, to direct that person to do so in such manner or for such purposes as may be so specified.
5
6
A person who is the owner or operator of a relevant asset or who provides railway services shall be under a duty to comply with a direction given to him under this section, notwithstanding the requirements of any other enactment or instrument relating to him or to—
a
the use of, or the exercise of rights over, the relevant asset,
b
the management of the relevant asset, or
c
the railway services,
as the case may be, and notwithstanding any other duty or obligation to which he may be subject.
7
Any person who, without reasonable excuse, contravenes or fails to comply with a direction given to him under this section is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine or imprisonment for a term not exceeding two years or both.
8
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
9
Any person (other than F593the Office of Rail RegulationF599. . . ) who suffers direct injury or loss arising from compliance with a direction under subsection (1) above shall be entitled to receive compensation from the Secretary of State of such amount as may be agreed by that person and the Secretary of State or, in default of agreement, of such amount as may be determined—
a
where the proceedings are to be held in England and Wales, by an arbitrator appointed by the President for the time being of the Royal Institution of Chartered Surveyors, or
b
where the proceedings are to be held in Scotland, by an arbiter appointed by the Lord President of the Court of Session.
10
Any sums required by the Secretary of State for paying compensation under this section shall be paid out of money provided by Parliament.
11
In this section—
“great national emergency” means any natural disaster or other emergency which, in the opinion of the Secretary of State, is or may be likely to give rise to such disruption of the means of transport that the population, or a substantial part of the population, of Great Britain is or may be likely to be deprived of essential goods or services ;
“operator”, in relation to a relevant asset, means the person having the management of the relevant asset for the time being;
“owner”, in relation to a relevant asset, means any person—
- a
who is the owner of, or who has any right over or interest in, the relevant asset; and
- b
whose consent is needed to the use of the relevant asset by any other person;
- a
“relevant asset” means a network, a station, a light maintenance depot or any track or rolling stock;
and, subject to that, expressions used in this section and in Part I F600. . . above have the same meaning in this section as they have in that Part F601with “railway”having its wider meaning for the purposes of this section..
F60212
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
119 Security: power of Secretary of State to give instructions.
1
The Secretary of State may from time to time give—
a
to any person who is the owner or operator of a relevant asset, or
b
to any person who provides railway services,
such instructions as the Secretary of State considers appropriate for the purpose of ensuring that relevant assets within Great Britain, or persons or property on or in any such relevant asset, are protected against acts of violence.
2
An instruction may be given to any person who appears to the Secretary of State to be about to become such a person as is mentioned in paragraph (a) or (b) of subsection (1) above, but an instruction given to a person by virtue of this subsection shall not take effect until he becomes such a person and, in relation to an instruction so given, the provisions of this section shall apply with the necessary modifications.
3
Without prejudice to the generality of subsection (1) above, an instruction may, in particular, require the person to whom it is given (“the recipient")—
a
not to cause or permit any persons, or any designated persons, or more than a specified number of persons or designated persons, to enter any relevant asset or any designated relevant asset, or not to cause or permit them to do so unless they submit to a search or unless or until some other specified condition is complied with;
b
not to cause or permit any goods, or any designated goods, or more than a specified quantity of goods or designated goods, to be brought or loaded on to or into any relevant asset or any designated relevant asset, or not to do so unless the goods in question are subjected to a search or unless or until some other specified condition is complied with;
c
to run no trains, or to restrict the running of trains, or to run no train unless it is subjected to a search, or unless or until some other specified condition is complied with;
d
to secure the carrying out of a search of—
i
any designated relevant assets, or
ii
any persons or designated persons who, or any goods or designated goods which, are on or in any such assets;
e
to furnish to the Secretary of State such information as he may require for the purpose mentioned in subsection (1) above;
f
to prepare plans specifying action to be taken by the recipient and his servants or agents—
i
in the event that an act of violence of a specified description occurs, or
ii
in times when there is an increased likelihood of such acts occurring,
and to conduct, at specified intervals, exercises in connection with the implementation of such plans;
g
to employ specified numbers of suitably trained staff for the purpose of preventing the occurrence of acts of violence;
h
to meet specified requirements with respect to the construction of, or to make specified modifications to—
i
any relevant assets, or any designated relevant assets, of which the recipient is the owner or operator, or
ii
any apparatus or equipment, or any designated apparatus or equipment, on or in any such assets.
4
Where an instruction requires the carrying out of a search, it may also specify—
a
the kind of search which is to be carried out;
b
the manner in which the search is to be carried out; and
c
the persons, or the class or description of persons, who are to carry out the search.
5
Where any person refuses to submit himself or any goods in his possession to a search required by an instruction, any person authorised to carry out that search may take any steps that are necessary, including the use of reasonable force—
a
to prevent the person concerned from entering the relevant asset in relation to which the search is being carried out; or
b
to eject him, and any goods in his possession, from that asset;
but this subsection is without prejudice to any other powers of the person carrying out the search.
F6035A
The Secretary of State may give an instruction under this section for the protection of a relevant asset that is wholly in Scotland, or of persons or property on or in such an asset, only if—
a
the asset would be a relevant asset even if railway did not have its wider meaning for the purposes of this section; or
b
the instruction is given in the interests of national security.
5B
In subsection (5A) the reference to an instruction given in the interests of national security includes a reference to any instruction given for the purpose of ensuring that protection against terrorism is provided to the asset, persons or property in question.
6
An instruction—
a
shall be in writing;
b
shall specify the time at which, or the period within which, it is to be complied with, and the period during which it is to have effect;
c
may be varied or revoked by the Secretary of State.
7
No instruction shall have effect in relation to any rolling stock which is for the time being in use in police service or in the service of the armed forces of the Crown.
8
A person who is the owner or operator of a relevant asset or who provides railway services shall be under a duty to comply with an instruction given to him under this section, notwithstanding the requirements of any other enactment or instrument relating to him or to—
a
the use of, or the exercise of rights over, the relevant asset,
b
the management of the relevant asset, or
c
the railway services,
as the case may be, and notwithstanding any other duty or obligation to which he may be subject.
9
A person who without reasonable excuse fails to do anything required of him by an instruction is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine or to a term of imprisonment not exceeding two years, or to both.
10
No proceedings shall be instituted in England and Wales in respect of an offence under subsection (9) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
11
In this section—
“act of violence” means—
- a
any act which constitutes, or
- b
any potential act which, if carried out, would constitute,
the offence of murder, attempted murder, manslaughter, culpable homicide, assault, real injury or malicious mischief, or an offence under section 18, 20, 21, 22, 23, 24, 28 or 29 of the Offences against the M69Person Act 1861, under section 2 of the M70Explosive Substances Act 1883 or under section 1 of the M71Criminal Damage Act 1971;
- a
“designated” means specified in an instruction, or of a class or description so specified;
“instruction” means an instruction given under this section, and any reference to an instruction includes a reference to an instruction as varied under subsection (6)(c) above;
“operator” and “owner” have the same meaning as in section 118 above;
“relevant asset” has the same meaning as in section 118 above, and any reference to such an asset includes a reference to any part of any such asset;
“specified” means specified in an instruction;
F604“terrorism” has the same meaning as in the Terrorism Act 2000 (c. 11)(see section 1 of that Act);
and, subject to that, expressions used in this section and in Part I above have the same meaning in this section as they have in that PartF605 with “railway” having its wider meaning for the purposes of this section.
120 Security: enforcement notices.
1
Where it appears to the Secretary of State that a person upon whom an instruction has been served has failed, is failing or is likely to fail to comply with that instruction, he may serve on that person a notice (in this section referred to as an “enforcement notice") containing such provision as the Secretary of State may consider requisite for the purpose of ensuring that the person complies with the instruction and specifying, in particular—
a
the things, or the description of things, which the person is required to do, or refrain from doing, in order to comply with the instruction;
b
the time within which, or after which, the person must do, or refrain from doing, those things; and
c
the period during which the person is to do, or refrain from doing, those things.
2
The Secretary of State may vary or revoke an enforcement notice, and any reference in this section to an enforcement notice includes a reference to such a notice as varied under this subsection.
3
Where the Secretary of State varies or revokes an enforcement notice under subsection (2) above he shall serve notice of the variation or revocation on the person on whom the enforcement notice in question was served.
4
A person who without reasonable excuse fails to do anything required of him by an enforcement notice is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum; or
b
on conviction on indictment, to a fine or to a term of imprisonment not exceeding two years, or to both.
5
No proceedings shall be instituted in England and Wales in respect of an offence under subsection (4) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
6
Section 119(8) above shall have effect in relation to an enforcement notice as it has effect in relation to an instruction.
7
Expressions used in this section and in section 119 above have the same meaning in this section as they have in that section.
121 Security: inspections.
1
For the purpose of enabling the Secretary of State to determine whether to give an instruction to any person, or of ascertaining whether any instruction or enforcement notice is being or has been complied with, a person authorised for the purpose by the Secretary of State in writing (in this section referred to as “an authorised person”) shall have power, on production (if required) of his credentials, to inspect any relevant asset.
2
An authorised person inspecting a relevant asset under subsection (1) above shall have power—
a
to subject any property found by him on or in the relevant asset, or any apparatus or equipment installed in the relevant asset, to such tests as he considers necessary for the purpose for which the inspection is carried out;
b
to take such steps as he considers necessary for that purpose—
i
to ascertain what practices or procedures are being followed in relation to security; or
ii
to test the effectiveness of any practice or procedure relating to security; or
c
to require the owner or operator of the relevant asset to furnish to him such information as the authorised person considers necessary for that purpose;
but nothing in paragraph (a) above shall entitle an authorised person to subject any rolling stock, or any part of any rolling stock, to any test.
3
An authorised person, for the purpose of exercising any power conferred on him by subsection (1) or (2) above in relation to any relevant asset, shall have power—
a
to board any rolling stock and to take all such steps as are necessary to ensure that it is not moved; or
b
to enter any land or other property comprised either in any track or in a network, station or light maintenance depot;
but nothing in this subsection authorises any use of force.
4
A person is guilty of an offence if he—
a
intentionally obstructs an authorised person acting in the exercise of any power conferred on him by this section;
b
fails, without reasonable excuse, to comply with a requirement imposed on him under paragraph (c) of subsection (2) above to furnish information to an authorised person; or
c
in furnishing any information required under that paragraph, makes a statement which he knows to be false in a material particular, or recklessly makes a statement which is false in a material particular.
5
A person guilty of an offence under subsection (4) above shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.
6
No proceedings shall be instituted in England and Wales in respect of an offence under subsection (4) above except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
7
Expressions used in this section and in section 119 or 120 above have the same meaning in this section as they have in that section.
121AF606Railway security services: approved providers
1
In this section “railway security service” means a process or activity carried out for the purpose of—
a
complying with a requirement of an instruction under section 119, or
b
facilitating a person’s compliance with a requirement of an instruction under section 119.
2
Regulations may provide for the Secretary of State to maintain a list of persons who are approved by him for the provision of a particular railway security service.
3
The regulations may—
a
prohibit the provision of a railway security service by a person who is not listed in respect of that service;
b
prohibit the use or engagement for the provision of a railway security service of a person who is not listed in respect of that service;
c
create a criminal offence;
d
make provision about application for inclusion in the list (including provision about fees);
e
make provision about the duration and renewal of entries on the list (including provision about fees);
f
make provision about training or qualifications which persons who apply to be listed or who are listed are required to undergo or possess;
g
make provision about removal from the list which shall include provision for appeal;
h
make provision about the inspection of activities carried out by listed persons;
i
confer functions on the Secretary of State or on a specified person;
j
confer jurisdiction on a court.
4
Regulations under subsection (3)(c)—
a
may not provide for a penalty on summary conviction greater than a fine not exceeding the statutory maximum,
b
may not provide for a penalty of imprisonment on conviction on indictment greater than imprisonment for a term not exceeding two years (whether or not accompanied by a fine), and
c
may create a criminal offence of purporting, with intent to deceive, to do something as a listed person or of doing something, with intent to deceive, which purports to be done by a listed person.
5
An instruction under section 119 may—
a
include a requirement to use a listed person for the provision of a railway security service;
b
provide for all or part of the instruction not to apply or to apply with modified effect where a listed person provides a railway security service.
6
Regulations under this section—
a
may make different provision for different cases,
b
may include incidental, supplemental or transitional provision,
c
shall be made by the Secretary of State by statutory instrument,
d
shall not be made unless the Secretary of State has consulted organisations appearing to him to represent persons affected by the regulations, and
e
shall be subject to annulment in pursuance of resolution of either House of Parliament.
Statutory authority
C82122 Statutory authority as a defence to actions in nuisance etc.
1
Subject to the following provisions of this section—
a
any person shall have authority—
i
to use, or to cause or permit any agent or independent contractor of his to use, rolling stock on any track, or
ii
to use, or to cause or permit any agent or independent contractor of his to use, any land comprised in a network, station or light maintenance depot for or in connection with the provision of network services, station services or light maintenance services, and
b
any person who is the owner or occupier of any land shall have authority to authorise, consent to or acquiesce in—
i
the use by another of rolling stock on any track comprised in that land, or
ii
the use by another of that land for or in connection with the provision of network services, station services or light maintenance services,
if and so long as the qualifying conditions are satisfied in the particular case.
2
For the purposes of this section, the “qualifying conditions” are—
a
in relation to any use of rolling stock on track—
i
that the track is comprised in a network, station or light maintenance depot, and
ii
that the operator of that network, station or light maintenance depot is the holder of an appropriate licence or has the benefit of an appropriate licence exemption; and
b
in relation to any use of land for or in connection with the provision of network services, station services or light maintenance services, that the operator of the network, station or light maintenance depot in question is the holder of an appropriate licence or has the benefit of an appropriate licence exemption.
3
The authority conferred by this section is conferred only for the purpose of providing a defence of statutory authority—
a
in England and Wales—
i
in any proceedings, whether civil or criminal, in nuisance; or
ii
in any civil proceedings, other than proceedings for breach of statutory duty, in respect of the escape of things from land;
b
in Scotland, in any civil proceedings on the ground of nuisance where the rule of strict liability applies, other than proceedings for breach of statutory duty.
4
Nothing in this section shall be construed as excluding a defence of statutory authority otherwise available under or by virtue of any enactment.
5
The owner or occupier of any land shall be regarded for the purposes of this section as “acquiescing” in—
a
any use by another of rolling stock on track comprised in that land, or
b
any use of that land by another for or in connection with the provision of network services, station services or light maintenance services,
notwithstanding that it is not within his power to put an end to that use by that other.
6
For the purposes of this section—
a
any reference to the use of rolling stock on track includes a reference to the carriage of any passengers or other persons, or any goods, of any class or description for any purpose on or by means of that rolling stock on that track; and
b
rolling stock shall be regarded as “used” on any track at any time when it is present on that track, irrespective of whether the rolling stock is comprised in a train or not, whether the rolling stock is moving or stationary and, if moving, irrespective of the means by which the motion is caused.
7
In this section—
“appropriate licence”, in relation to the operator of a network, station or light maintenance depot, means a licence which authorises him to be the operator of that network, station or light maintenance depot;
“appropriate licence exemption”, in relation to the operator of a network, station or light maintenance depot, means any such licence exemption as exempts him from the requirement to hold the licence that would otherwise be the appropriate licence in his case;
and expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.
Miscellaneous and general
123 No person to be common carrier by railway.
No person shall be regarded as a common carrier by railway.
124 Carriage of mail by railway.
Sections 33 to 42 of the M72Post Office Act 1953 (which make provision for and in connection with the power of the Post Office to compel railway undertakers to convey mail-bags on their trains) shall cease to have effect.
F607125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F608126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F609127. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F610128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
129 Bye-laws.
F611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
130 Penalty fares.
1
F612The Secretary of State and the Scottish Ministers shall each have power by regulations to make provision for and in connection with—
a
the imposition of requirements on persons travelling by, present on, or leaving trains or stations to produce, if required to do so in accordance with the regulations, a ticket or other authority authorising them to travel by, be present on, or leave the train or station in question; and
b
the charging of persons in breach of such requirements to financial penalties (in this section referred to as “penalty fares”) in such circumstances, and subject to compliance with such conditions (if any), as may be prescribed;
and in this section any reference to a ticket or other authority of any description includes a reference to any other document which, under the regulations, is required to be produced in conjunction with any such ticket or other authority, for the purpose of demonstrating that the ticket or other authority produced by a person is valid in his case.
F6131A
The power of the Scottish Ministers under this section shall be exercisable only in relation to trains and stations used for the purposes of—
a
railway passenger services provided under Scottish franchise agreements; or
b
a railway passenger service not falling within paragraph (a) which is a Scotland-only service or (without being such a service) is a service the provision of which is secured by the Scottish Ministers.
2
Regulations may make provision for or with respect to—
a
the persons who may be charged penalty fares;
b
the persons by or on behalf of whom penalty fares may be charged;
c
the trains and stations by reference to which penalty fares may be charged;
d
the amount, or the greatest amount, which a person may be charged by way of penalty fare, whether a specified amount or one determined in a prescribed manner;
e
the authorising of persons to be collectors;
f
the manner in which charges to penalty fares may be imposed by collectors, including any requirements to be complied with by or in relation to collectors;
g
the authorising of collectors in prescribed circumstances to require persons on trains or stations to furnish prescribed information;
h
the display of prescribed notices in places of a prescribed description;
j
the manner in which, and the period within which, any penalty fare charged to a person is to be paid;
k
the issue of prescribed documents to persons who are charged, or who have paid, penalty fares;
l
the recovery of any unpaid penalty fare as a civil debt, including provision—
i
for or with respect to defences that are to be available in proceedings for the recovery of an unpaid penalty fare; or
ii
for presumptions of fact to operate, in such proceedings, in favour of the person charged with the penalty fare, but subject to compliance with prescribed procedural requirements;
m
the retention, by persons by or on behalf of whom charges to penalty fares are imposed, of sums paid by way of penalty fare;
n
the remission of liability to pay penalty fares and the repayment of sums paid by way of penalty fare;
o
the prevention of a person’s being liable both to payment of a penalty fare and to prosecution for a prescribed offence;
F614p
the imposition by the Secretary of State or the Scottish Ministers of prohibitions on the charging of penalty fares by prescribed persons and in prescribed circumstances.
3
The documents mentioned in subsection (2)(k) above include any document which consists of or includes—
a
notice of the imposition of a charge to a penalty fare;
b
a receipt for the payment of a penalty fare; or
c
a ticket or other authority to travel by, be present on, or leave a train or station.
4
Regulations may impose, or make provision for and in connection with the imposition or enforcement of, prescribed requirements in prescribed circumstances on or against a holder of a passenger licence or station licence or a passenger service operator (whether or not one by or on behalf of whom penalty fares are or are to be charged); and, without prejudice to the generality of the foregoing, any such regulations may make provision with respect to—
a
the display of notices relating to penalty fares;
b
the provision of facilities for the issue of tickets or other authorities to travel by, be present on, or leave trains or stations;
c
the provision of information to prescribed persons or persons of a prescribed class or description.
5
F615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
F615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Regulations may provide that where information is required to be furnished pursuant to the regulations—
a
a refusal to furnish any such information, or
b
the furnishing of information which is false in a material particular,
shall, in prescribed circumstances, be an offence punishable on summary conviction by a fine not exceeding level 2 on the standard scale.
8
Apart from subsection (7) above, nothing in this section creates, or authorises the creation of, any offence.
9
Regulations may make provision for any area within Great Britain and may make different provision for or in relation to different areas.
F6169A
Before making any regulations which have the effect of varying the amount, or the greatest amount, which a person within, or travelling to or from, Greater London may be charged by way of penalty fare, the Secretary of State must consult the Mayor of London.
10
F615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Subsections (2) to (5) above are without prejudice to the generality of subsection (1) above.
F61711A
A statutory instrument containing regulations made by the Scottish Ministers under this section is subject to annulment in pursuance of a resolution of the Scottish Parliament.
12
In this section—
“collectors” means the individuals who perform the function (whether as servants or agents or otherwise) of imposing the charge of a penalty fare on the person liable to pay it under the regulations in each particular case;
“document”, without prejudice to the generality of the expression, includes any badge, token, or photograph or any other form of identification, certification or authentication;
“prescribed” means specified in, or determined in accordance with, regulations;
“regulations” means regulations under subsection (1) above;
“station” includes a reference to a part of a station;
“ticket or other authority” shall be construed in accordance with subsection (1) above;
“train” includes a reference to a part of a train;
and, subject to that, expressions used in Part I above and in this section have the same meaning in this section as they have in that Part.
F618131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Transport police
132 Schemes for the organisation etc. of transport police.
F619. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
133 Terms and conditions of employment of transport police.
F620. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pensions and other benefits
I11134 Pensions.
1
Schedule 11 to this Act shall have effect.
2
Section 74 of the M73Transport Act 1962 (power of Secretary of State to make orders about pensions) shall cease to have effect, so far as relating to the Board and (within the meaning of that section) its subsidiaries, on the coming into force of subsection (1) above.
3
Subsection (2) above is without prejudice to the continuing validity of any orders made under that section.
135 Concessionary travel for railway staff etc.
1
The conditions that may be included in a passenger licence include conditions in respect of arrangements for the provision of staff concessionary travel.
2
The F621Secretary of State and the Scottish Ministers may each promote the provision of staff concessionary travel.
3
The F621Secretary of State and the Scottish Ministers may each enter into agreements or other arrangements concerning the provision of staff concessionary travel.
4
Franchise agreements may include conditions with respect to the provision of staff concessionary travel.
F6225
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
The F623The Secretary of State and the Scottish Ministers may exercise powers and perform duties conferred or imposed on him or them—
a
under or by virtue of subsections (2) to F624(4) above, or
b
under any agreements or arrangements entered into, or conditions or provisions included, by virtue of those subsections,
by entering into agreements or arrangements under which other persons (in this subsection referred to as “sub-contractors”) are to perform the function in question; F625. . ..
7
Without prejudice to the generality of subsection (3) above, the agreements or arrangements that may be made under that subsection include agreements or arrangements under which the F626Secretary of State undertakes, or the Scottish Ministers undertake, to secure the provision of staff concessionary travel (as well as agreements or arrangements under which some other person undertakes to provide, or to secure the provision of, staff concessionary travel).
8
Subsection (7) above applies, with the necessary modifications, in relation to—
a
the conditions mentioned in subsection (4) above, F627. . .
F627b
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
as it applies in relation to the agreements and arrangements mentioned in subsection (3) above.
9
This section is without prejudice to the generality of—
a
the conditions which may be included in licences, or
b
the provision which may be made in franchise agreements F628. . .,
whether or not with respect to free or concessionary travel; and F629subsection (4) above is without prejudice to the generality of subsection (3) above.
F62210
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F62211
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12
Any reference in this section to the provision of “staff concessionary travel” is a reference to the provision of free travel, or travel at concessionary rates, for, or for some class or description of, persons, or dependants of persons, who are or have at any time been employed by—
a
a person carrying on a business of providing railway services; or
b
a person providing welfare or health care services to persons employed by a person falling within paragraph (a) above.
13
In the application of subsection (12) above in relation to any such agreement, arrangements, conditions or provisions as are mentioned in this section, it is immaterial whether or not the provision of free travel, or travel at concessionary rates, mentioned in that subsection extends, in the case of the agreement, arrangements, conditions or provisions in question, only to persons falling within that subsection or to such persons and others; and the reference in subsection (2) above to promoting the provision of staff concessionary travel shall be construed accordingly.
14
Expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.
Financial provisions
136 Grants and subsidies.
1
The Secretary of State F630and the Scottish Ministers shall each be the competent authority of Great Britain in relation to the railways financial status regulations.
2
The Secretary of StateF631, the Scottish Ministers and, to the extent specified in subsection (2A) below, the National Assembly for Wales shall each be the competent authority of Great Britain, in relation to persons who operate services for the carriage of goods by railway, for the purposes of the public service obligations regulations.
F6322A
For the purposes of subsection (2) above the National Assembly for Wales shall only be the competent authority in relation to services for the carriage of goods by railway which are operated within Wales.
F7212B
Subsections (2) and (2A) cease to have effect on 3rd December 2012.
3
The following persons, that is to say—
a
the Secretary of State,
F633aa
the Scottish Ministers,
ab
to the extent specified in subsection (3A) below, the National Assembly for Wales,
b
F634. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c
to the extent specified in subsection (4) below, every Passenger Transport Executive, and
d
to the extent specified in subsection (5) below—
i
every non-metropolitan county or district council in England or in Wales and every F635council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 in Scotland, and
ii
every London borough council and the Common Council of the City of London,
shall each be the competent authority of Great Britain in relation to passenger service operators for the purposes of the public service obligations regulations.
F6363A
For the purposes of subsection (3) above the National Assembly for Wales shall only be the competent authority in relation to services for the carriage of passengers by railway which—
a
are Welsh services (within the meaning of the Railways Act 2005); or
b
are provided under a franchise agreement to which the Assembly is a party.
4
For the purposes of subsection (3) above, a Passenger Transport Executive shall only be the competent authority in relation to those railway passenger services F637which the Executive provide, or secure are provided, in exercise of their powers under section 10(1) of the Transport Act 1968 or section 13 of the Railways Act 2005.
5
For the purposes of subsection (3) above—
a
a council falling within paragraph (d)(i) of that subsection shall only be the competent authority in relation to those railway passenger services whose provision the council secures under section 63 of the M74Transport Act 1985 (passenger transport in areas other than F700integrated transport areas and passenger transport areas); and
b
a council falling within paragraph (d)(ii) of that subsection shall only be the competent authority in relation to those railway passenger services in respect of which the council enters into and carries out agreements under F638section 177 of the Greater London Authority Act 1999 (provision of extra transport services in London).
6
7
It shall fall to the Secretary of State F641. . . to make any payments of compensation which are required to be made to a passenger service operator by any provision of the public service obligations regulations in respect of any obligations imposed on that operator by directions under subsection (6) above, and the Secretary of State F641. . . may, subject to and in accordance with the provisions of those regulations, determine the manner of calculating, and the conditions applicable to, those payments.
8
The power of giving directions under subsection (6) above shall be so exercised that the aggregate amount of any compensation payable under the public service obligations regulations, for periods ending after 1st April 1992, in respect of all obligations imposed by directions under that subsection shall not exceed £3,000 million or such greater sum not exceeding £5,000 million as the Secretary of State may by order specify.
9
A statutory instrument containing an order under subsection (8) above shall not be made unless a draft of the instrument has been laid before and approved by a resolution of the House of Commons.
10
Without prejudice to any right which the Secretary of State F641. . . may have under this Act to bring civil proceedings in respect of any contravention or apprehended contravention of any directions under subsection (6) above, the obligations imposed by any such directions shall not give rise to any form of duty or liability enforceable against a passenger service operator by proceedings before any court to which the passenger service operator would not otherwise be subject.
11
In this section—
F722“the public service obligations regulations” means Regulation (EC) No. 1370/2007 save that before 3rd December 2012 it means—
- a
in respect of the carriage of goods by railway, Council Regulation (EEC) No. 1191/69 as amended by Council Regulation (EEC) No. 1893/91; and
- b
in respect of the carriage of passengers by railway, Regulation (EC) No. 1370/2007;
- a
“the railways financial status regulations” means Council Regulation (EEC) No. 1192/69 on common rules with respect to the financial status of railway undertakings.
12
Expressions used in this section and in Part I above have the same meaning in this section as they have in that Part.
13
Section 3 of the M75Railways Act 1974 (which is superseded by this section) shall cease to have effect.
F642137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
138 Grants and other payments towards facilities for public passenger transport to and from airports, harbours etc.
1
Section 56 of the M76Transport Act 1968 (Ministerial grants and local authority payments towards capital expenditure incurred in the provision, improvement or development of facilities for public passenger transport) shall be amended in accordance with the following provisions of this section.
2
After subsection (2) there shall be inserted—
2A
Where a relevant local authority proposes to make payments under subsection (2) of this section in respect of any facilities, that authority may enter into an agreement with the Franchising Director under which the Franchising Director undertakes to exercise franchising functions of his, to refrain from exercising such functions, or to exercise such functions in a particular manner, in relation to the use of the facilities in question.
2B
In subsection (2A) of this section, the following expressions have the following meanings respectively, that is to say—
“the Franchising Director” means the Director of Passenger Rail Franchising;
“franchising functions”, in relation to the Franchising Director, has the same meaning as it has in relation to him in section 54 of the Railways Act 1993;
“relevant local authority” means—
- a
a non-metropolitan county or district council in England or in Wales;
- b
a London borough council or the Common Council of the City of London; or
- c
a regional or islands council in Scotland;
and any reference to a relevant local authority shall be taken to include a reference to any two or more such authorities acting jointly.
3
That section shall have effect, and be taken always to have had effect, with the insertion after subsection (3) (which prevents the making of any such grants or payments for the purposes of the provision, improvement or development of an airfield, harbour, dock, pier or jetty) of the following subsection—
3A
Nothing in subsection (3) of this section precludes the making of grants under subsection (1) or payments under subsection (2) thereof for the purposes of the provision, improvement or development of facilities for or in connection with public passenger transport by land to or from an airfield, harbour, dock, pier or jetty.
F643139. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F644140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F645141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
142 General financial provisions.
There shall be paid out of money provided by Parliament—
a
any administrative expenses incurred by the Secretary of State or the Treasury in consequence of the provisions of this Act; and
b
any increase attributable to this Act in the sums payable out of money so provided under any other Act.
Supplemental
143 Regulations and orders.
1
Any power under this Act to make regulations, and any power of the Secretary of State F646or the Scottish Ministers under this Act to make orders (except the power to make provisional or final orders under section 55) , shall be exercisable by statutory instrument.
2
Any statutory instrument—
a
which contains (whether alone or with other provisions) regulations or an order under this Act made by the Secretary of State, other than an order under section 136(8) above or section 154(2) below, and
b
which is not subject to any requirement that a draft of the instrument be laid before and approved by a resolution of each House of Parliament,
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
3
Any power conferred by this Act to make regulations, and any power conferred by this Act on the Secretary of State F647or the Scottish Ministers to make an order (other than a provisional or final order under section 55) , includes power, exercisable in the same manner, to make such incidental, supplemental, consequential or transitional provision as may appear necessary or expedient to the authority by whom the power to make the regulations or order is exercisable.
4
Any power under this Act to make regulations, and any power of the Secretary of State F648or the Scottish Ministers under this Act to make an order (other than a provisional or final order under section 55) , may be exercised—
a
in relation to all cases to which the power extends, or in relation to those cases subject to specified exceptions, or in relation to any specified cases or classes or descriptions of case;
b
so as to make, as respects the cases in relation to which it is exercised, different provision for different cases or for different classes or descriptions of case.
144 Directions.
1
2
Without prejudice to any right which any person may have to bring civil proceedings in respect of any contravention or apprehended contravention of any direction given under this Act, compliance with any such direction shall be enforceable by civil proceedings, by the person by whom the direction was given, for an injunction or interdict or for any other appropriate relief.
3
Any power conferred by this Act to give a direction shall, unless the context otherwise requires, include power to vary or revoke the direction.
4
Any direction given under this Act shall be in writing.
C72I12C73C86145 General restrictions on disclosure of information.
C741
Subject to the following provisions of this section, no information with respect to any particular business which—
a
has been obtained under or by virtue of any of the provisions of this Act; and
b
relates to the affairs of any individual or to any particular business,
shall, during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business.
C752
Subsection (1) above does not apply to any disclosure of information which is made—
a
for the purpose of facilitating the carrying out by the Secretary of State, F651the Scottish Ministers,F652the Office of Rail Regulation , F653. . . or the F654Competition Commissionof any of his or, as the case may be, their functions under this Act F655, the Transport Act 2000 or the Railways Act 2005 ;
F656aa
for the purpose of facilitating the carrying out or carrying on by the Secretary of State or the Scottish Ministers of any other functions or activities of his or theirs in relation to railways or railway services;
b
for the purpose of facilitating the carrying out by—
i
any Minister of the Crown,
F657ii
the Office of Fair Trading;,
iii
the F654 Competition Commission,
F658iv
the Office of Communications,
v
the Director General of Gas Supply,
vi
the Director General of Water Supply,
vii
the Director General of Electricity Supply,
viii
the Civil Aviation Authority,
ix
the Insolvency Practitioners Tribunal, or
x
a local weights and measures authority in Great Britain,
of any of his or, as the case may be, their functions under any of the enactments or instruments specified in subsection (3) below;
F659c
for the purpose of enabling or assisting the Secretary of State, the Treasury F727 , the Financial Conduct Authority or the Prudential Regulation Authority to exercise any powers conferred by or under the Financial Services and Markets Act 2000 F730, by or under the Consumer Credit Act 1974 or by the enactments relating to companies or insolvency;
ca
for the purpose of enabling or assisting any inspector appointed under enactments relating to companies to carry out his functions;
d
for the purpose of enabling or assisting an official receiver to carry out his functions under the enactments relating to insolvency or for the purpose of enabling or assisting a recognised professional body for the purposes of section 391 of the M77Insolvency Act 1986 to carry out its functions as such;
e
for the purpose of facilitating the carrying out by F694... the Health and Safety Executive of any of its functions under any enactment or of facilitating the carrying out by any enforcing authority, within the meaning of Part I of the M78Health and Safety at Work etc. Act 1974, of any functions under a relevant statutory provision, within the meaning of that Act;
f
for the purpose of facilitating the carrying out by the Comptroller and Auditor General of any of his functions under any enactment;
g
F660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F661ga
for the purpose of facilitating the carrying out by the Office of Rail Regulation of any of its functions under any instrument made for the purpose of implementing Council Directive 95/18/EC dated 19th June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC dated 26th February 2001 and Directive 2004/49/EC dated 29th April 2004, both of the European Parliament and of the Council;
F662gb
for the purpose of facilitating the carrying out by the Office of Rail Regulation of any of its functions under any instrument made for the purpose of implementing Council Directive 91/440/EEC dated 29 July 1991 on the development of the Community's railways, as amended by Directive 2001/12/EC dated 26 February 2001 F703, Directive 2004/51/EC dated 29 April 2004 and Directive 2007/58/EC dated 23 October 2007, all of the European Parliament and of the Council, and Directive 2001/14/EC dated 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure, as amended by Directive 2004/49/EC dated 29 April 2004 F704and Directive 2007/58/EC dated 23 October 2007, all of the European Parliament and of the Council;
h
in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings;
j
for the purposes of any civil proceedings brought under or by virtue of this Act or any of the enactments or instruments specified in subsection (3) below; or
C763
The enactments and instruments referred to in subsection (2) above are—
a
the M79Trade Descriptions Act 1968;
b
the M80Fair Trading Act 1973;
c
the M81Consumer Credit Act 1974;
F663d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F663e
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
f
the M82Estate Agents Act 1979;
g
the M83Competition Act 1980;
h
the M84Telecommunications Act 1984;
j
the M85Airports Act 1986;
k
the M86Gas Act 1986;
l
the M87Insolvency Act 1986;
m
the M88Consumer Protection Act 1987;
n
the M89Electricity Act 1989;
F731o
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
p
the M90Water Industry Act 1991;
q
the M91Water Resources Act 1991;
F664qq
the Competition Act 1998.
F665qr
Part I of the Transport Act 2000;
F666qs
the Enterprise Act 2002;
F667qt
the Communications Act 2003;
F698qu
any subordinate legislation made for the purpose of securing compliance with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market
F699r
any subordinate legislation made for the purpose of securing compliance with Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising.
F729s
Part 1 of the Civil Aviation Act 2012
4
The Secretary of State may by order provide that subsections (2) and (3) above shall have effect subject to such modifications as are specified in the order.
5
Nothing in subsection (1) above shall be construed—
a
b
as applying to any information—
i
which has been so published or has been made public as part of such a report; or
ii
which has otherwise been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not precluded by this section.
F6695A
Subsection (1) above does not prevent the transfer of records in accordance with section 3(4) of the M92Public Records Act 1958.
6
Any person who discloses any information in contravention of this section is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
F6706A
Information obtained by the Regulator in the exercise of functions which are exercisable concurrently with F671the Office of Fair Trading under Part I of the Competition Act 1998 is subject to F672Part 9 of the Enterprise Act 2002 (Information) (disclosure) and not to subsections (1) to (6) of this section.
7
F673. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
146 Making of false statements etc.
1
If any person, in giving any information or making any application under or for the purposes of any provision of this Act, or of any regulations made under this Act, makes any statement which he knows to be false in a material particular, or recklessly makes any statement which is false in a material particular, he is guilty of an offence and shall be liable—
a
on summary conviction, to a fine not exceeding the statutory maximum;
b
on conviction on indictment, to a fine.
2
No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or with the consent of the Secretary of State or the Director of Public Prosecutions.
E1147 Offences by bodies corporate or Scottish partnerships.
1
Where a body corporate is guilty of an offence under this Act and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
2
Where the affairs of a body corporate are managed by its members, subsection (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
3
Where a Scottish partnership is guilty of an offence under this Act in Scotland and that offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he as well as the partnership shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
148 Proceedings in Scotland.
1
Subject to subsection (2) below, summary proceedings for an offence under this Act which is triable either on indictment or summarily may be commenced within a period of six months from the date on which evidence sufficient in the opinion of the procurator fiscal to warrant proceedings came to his knowledge.
2
No such proceedings shall be commenced by virtue of this section more than three years after the commission of the offence.
3
For the purposes of this section, a certificate signed by or on behalf of the procurator fiscal and stating the date on which evidence sufficient in his opinion to warrant proceedings came to his knowledge shall be conclusive evidence of that fact.
4
A certificate stating that matter and purporting to be so signed shall be deemed to be so signed unless the contrary is proved.
5
Subsection (3) of F674section 136 of the Criminal Procedure (Scotland) Act 1995 (which relates to the date of commencement of proceedings) shall apply for the purposes of this section as it applies for the purposes of that section.
6
This section extends to Scotland only.
C77149 Service of documents.
1
Any document required or authorised by virtue of this Act to be served (whether the expression “serve" or the expression “give" or “send" or any other expression is used) on any person may be served—
a
by delivering it to him or by leaving it at his proper address or by sending it by post to him at that address; or
b
if the person is a body corporate, by serving it in accordance with paragraph (a) above on the secretary of that body; or
c
if the person is a partnership, by serving it in accordance with paragraph (a) above on a partner or a person having the control or management of the partnership business.
2
For the purposes of this section and section 7 of the M93Interpretation Act 1978 (which relates to the service of documents by post) in its application to this section, the proper address of any person on whom a document is to be served shall be his last known address, except that—
a
in the case of service on a body corporate or its secretary, it shall be the address of the registered or principal office of the body;
b
in the case of service on a partnership or a partner or a person having the control or management of a partnership business, it shall be the address of the principal office of the partnership;
and for the purposes of this subsection the principal office of a company constituted under the law of a country or territory outside the United Kingdom or of a partnership carrying on business outside the United Kingdom is its principal office within the United Kingdom.
3
If a person to be served by virtue of this Act with any document by another has specified to that other an address within the United Kingdom other than his proper address (as determined in pursuance of subsection (2) above) as the one at which he or someone on his behalf will accept documents of the same description as that document, then, in relation to that document, that address shall be treated as his proper address for the purposes of this section and for the purposes of the said section 7 in its application to this section, instead of that determined in accordance with subsection (2) above.
4
This section shall not apply to any document in relation to the service of which provision is made by rules of court.
5
In this section—
“local authority” includes
F701a metropolitan county passenger transport authorityF701an Integrated Transport Authority for an integrated transport area in England F712and a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;“secretary”, in relation to a local authority, means the proper officer within the meaning of the M94Local Government Act 1972 or (in relation to a local authority in Scotland) the M95Local Government (Scotland) Act 1973;
“serve” shall be construed in accordance with subsection (1) above.
149AF692Service of documents under sections 118 to 120: additional provisions
1
Any document required or authorised by virtue of sections 118 to 120 or this section of this Act to be given or served by the Secretary of State to or on any person may also be given or served, where—
a
an address for service using electronic communications has been given by that person and not withdrawn in accordance with subsection (6), and
b
that person has agreed to accept service by electronic communications of documents in a certain form and has not withdrawn that agreement in accordance with that subsection,
by using electronic communications to send the document in that form to that person at that address.
2
A document given to or served on a person in accordance with subsection (1) must be in a form sufficiently permanent to be used for subsequent reference.
3
Where a document is given to or served on a person in accordance with subsection (1), the document is, unless the contrary is proved, to be deemed to have been given to or served on that person at the time at which the electronic communication is transmitted except where transmission is made outside that person's normal business hours, in which case it is to be taken to have been given or served on the next working day, and in this subsection, “working day” means any day other than—
a
a Saturday or a Sunday;
b
Christmas Day or Good Friday; or
c
a day which is a bank holiday under the Banking and Financial Dealings Act 1971 (c. 80) in any part of the United Kingdom.
4
A document required or authorised by virtue of sections 118 to 120 of this Act to be given or served by the Secretary of State is also to be treated as given or served where—
a
that person and the Secretary of State have agreed to his having access to documents of a particular description and in a certain form on a web site (instead of their being given to or served on him in any other way specified in this section or section 149);
b
that person has not withdrawn his agreement in accordance with subsection (7);
c
the document in question is a document to which the agreement applies;
d
the Secretary of State has given that person a notice, in a manner agreed between them for the purpose—
i
stating that the document has been published on a web site maintained by or on behalf of the Secretary of State;
ii
setting out the address of that web site; and
iii
setting out the place on that web site where the document may be accessed and how it may be accessed by that person; and
e
the published document is in a form sufficiently permanent to be used for subsequent reference.
5
Where a document is given to or served on a person in accordance with subsection (4), the document is, unless the contrary is proved, to be deemed to have been given to or served on that person at the same time as the notice required to be given under subsection (4)(d) is given.
6
A person who has supplied the Secretary of State with an address for service using electronic communications and has agreed to accept service of documents in a certain form in accordance with subsection (1) may give notice to the Secretary of State withdrawing that address or that agreement or both.
7
A person who has an agreement with the Secretary of State under subsection (4)(a) may give notice to the Secretary of State withdrawing that agreement.
8
A withdrawal under subsection (6) or (7) shall take effect on the later of—
a
the date specified by the person in the notice; and
b
the date which is fourteen days after the date on which the notice is given.
9
Oral notice is not sufficient for the purposes of subsection (6) or (7).
10
This section shall not apply to any document in relation to the service of which provision is made by the rules of the court.
11
In this section—
“address”, in relation to electronic communications, means any number or address used for the purposes of such communications;
“electronic communication” has the same meaning as in the Electronic Communications Act 2000 (c. 7).
I13150 Crown application.
1
The following provisions of this Act bind the Crown—
a
sections 17 to F67522C;
b
sections F67655(1) to (7) and (9) to (11), sections 56 and 57 and section 58(1) to (3), (6) and (7);;
c
sections 59 to 62;
F677d
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
e
subject to, and in accordance with, section 48 of the M96Health and Safety at Work etc. Act 1974, section 117 (other than subsection (5)) so far as affecting or relating to provisions of, or regulations under, Part I of that Act which bind the Crown;
f
section 118, except subsections (7) and (8);
g
sections 119 to 121, except sections 120(4) and (5) and 121(4) to (6);
h
section 122;
j
section 144, so far as relating to other provisions of this Act which bind the Crown;
k
Schedule 4;
l
Schedule 6, to the extent that it applies, amends or modifies the operation of provisions of the M97Insolvency Act 1986 which bind the Crown so far as affecting or relating to the matters specified in paragraphs (a) to (e) of section 434 of that Act;
m
Schedule 7;
F677n
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
o
the amendments and repeals made by Schedules 12 and 14, to the extent that the enactments to which they relate bind the Crown.
2
Nothing in subsection (1) above so far as relating—
a
to sections 55 to 58 above, or
b
to section 144 above, so far as relating to those sections,
shall authorise proceedings to be brought against Her Majesty in her private capacity.
3
Subsection (2) above shall be construed as if section 38(3) of the M98Crown Proceedings Act 1947 (interpretation of references in that Act to Her Majesty in her private capacity) were contained in this Act.
F6774
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I14151 General interpretation.
1
In this Act, unless the context otherwise requires—
F678“the Authority” means the Strategic Rail Authority;“the Board” means the British Railways Board;
“body corporate” has the meaning given by F710section 1173(1) of the Companies Act 2006;
“company” means any body corporate;
“contravention”, in relation to any direction, condition, requirement, regulation or order, includes any failure to comply with it and cognate expressions shall be construed accordingly;
“debentures” includes debenture stock;
F679“the Franchising Director” means the Director of Passenger Rail Franchising;
“functions” includes powers, duties and obligations;
“local authority” means any county council, F680county borough council, district council, F681... or London borough council, the Common Council of the City of F682London, the Council of the Isles of Scilly F683or any council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;
“modifications” includes additions, alterations and omissions and cognate expressions shall be construed accordingly;
F684. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“notice” means notice in writing;
“publicly owned railway company” means a company which is wholly owned by the Crown and which carries on, or is to carry on,—
- a
an undertaking derived, or to be derived, (whether wholly or partly and whether directly or indirectly) from, or from some part of, an undertaking carried on by the Board or a wholly owned subsidiary of the Board; or
- b
an undertaking in the course of which the company uses, or will use, any property, rights or liabilities acquired, or to be acquired, (whether directly or indirectly) from the Board or a wholly owned subsidiary of the Board;
- a
F685. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“securities” has the meaning given by F686F728section 102A(2) of the Financial Services and Markets Act 2000;
“shares” includes stock;
“subsidiary” has the meaning given by F711section 1159 of the Companies Act 2006;
F679. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“wholly owned subsidiary” has the meaning given by F711section 1159 of the Companies Act 2006.
2
For the purposes of this Act, a company shall be regarded as “wholly owned by the Crown” at any time when it has no members other than—
a
the Secretary of State, the F687Authority or a Government department,
b
a company which is itself wholly owned by the Crown, or
c
a person acting on behalf of the Secretary of State, the F687Authority, a Government department or such a company.
3
F688For the purposes of this Act, a company shall be regarded as “wholly owned by the F687Authority” at any time when it has no members other than—
a
the F687Authority,
b
a company which is itself wholly owned by the F687Authority, or
c
a person acting on behalf of the F687Authority or such a company.
4
Any consent or approval under or by virtue of this Act shall be given in writing.
5
For the purposes of this Act any class or description may be framed by reference to any matters or circumstances whatever.
6
Nothing in this Act affects the operation of the M99Transfer of Undertakings (Protection of Employment) Regulations 1981, in their application in relation to the transfer of an undertaking, or part of an undertaking, within the meaning of those Regulations.
7
Nothing in this Act, and nothing done under it, shall prejudice or affect the operation of any of the relevant statutory provisions (whenever made) as defined in Part I of the M100Health and Safety at Work etc. Act 1974.
8
Subsection (7) above is without prejudice to section 117 above.
9
The provisions of section 3 of the M101Administration of Justice (Scotland) Act 1972 (power of arbiter to state case to Court of Session) shall not apply in relation to any determination under this Act made by an arbiter.
I15152 Minor and consequential amendments, transitional provisions and repeals.
1
The enactments mentioned in Schedule 12 to this Act shall have effect with the amendments there specified (being minor amendments and amendments consequential on provisions of this Act).
F6892
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The enactments mentioned in Schedule 14 to this Act (which include some that are spent or no longer of practical utility) are hereby repealed to the extent specified in the third column of that Schedule.
153 Power to make consequential modifications in other Acts etc.
1
The Secretary of State may by order make such modifications of existing provisions as appear to him to be necessary or expedient in consequence of the provisions of this Act, or of any instrument made under or by virtue of this Act, being modifications in respect of—
a
any reference in an existing provision to the Board or any subsidiary of the Board;
b
any reference (in whatever terms) in an existing provision to any railway, railway service or railway undertaking;
c
any reference (in whatever terms) in an existing provision to any person who—
i
provides a railway service, or
ii
carries on a railway undertaking,
or who is authorised to do so under or by virtue of any enactment;
d
any reference in an existing provision to any enactment amended or repealed by or under this Act;
e
any existing provision, so far as appearing to the Secretary of State to be of no further practical utility, having regard to the provisions of this Act;
f
any other inconsistency between an existing provision and this Act.
2
In this section—
“existing provision” means a provision contained in any Act (whether public general or local) passed, or in subordinate legislation made, before the relevant date;
“railway” has its wider meaning, within the meaning of Part I above;
“railway service” has the same meaning as in Part I above;
“the relevant date”, in relation to any modification, means the date of the coming into force of the provision of this Act on which the modification is consequential;
“subordinate legislation” has the same meaning as in the M102Interpretation Act 1978.
154 Short title, commencement and extent.
1
This Act may be cited as the Railways Act 1993.
2
Except for section 1 and Schedule 1 (which come into force on the passing of this Act), this Act shall come into force on such day as may be specified in an order made by the Secretary of State; and different days may be so specified—
a
for different provisions;
b
for different purposes of the same provision; and
c
for different areas within the United Kingdom.
3
The following provisions of this Act extend to Northern Ireland—
F690a
section 36(1), (4) and (5);
b
subsections (1), (2), (4) and (5) of section 66;
F691c
sections 124 and 129(3);
d
section 131;
e
section 134;
f
sections 143, 144, 146, 147(1) and (2) and 149 to 152, so far as relating to provisions of this Act which so extend;
g
section 153;
h
this section;
j
paragraphs 6, 7 and 8 of Schedule 1, paragraph 10 of Schedule 2 and paragraph 9 of Schedule 3;
k
Schedules 8 and 9;
l
Schedule 11;
4
Except as provided in subsection (3) above, this Act does not extend to Northern Ireland.
Pt. I (ss. 1-83) applied (1.4.1994) by 1993 c. 43, ss. 36(2) (inserting s. 10(1)(viiia) in 1968 c. 73); S.I. 1994/571, art. 5
Pt. I (ss. 1-83) applied (18.12.1996) by 1996 c. 61, s. 16(5)