I1C3C4 Part I The Provision of Railway Services

Annotations:
Commencement Information
I1

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)

Modifications etc. (not altering text)
C3

Pt. I (ss. 1-83) modified (18.12.1996) by 1996 c. 61, s. 21(6)

C4

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)

Enforcement by the Regulator and the F32Authority

Annotations:
Amendments (Textual)
F32

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))

C1C555 Orders for securing compliance.

1

Subject to subsections (2) to F1(5C) and section 56 below, where the appropriate F2authority is satisfied that a relevant operator is contravening, or is likely to contravene, any relevant condition or requirement, F2it shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

2

Subject to F3subsections (5) toF1(5C) below, where it appears to the appropriate F2authority—

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,

F2it shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to F2it requisite for the purpose of securing compliance with that condition or requirement.

3

In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the appropriate F2authority 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 F3subsections (5) toF1(5C) and section 56 below, the appropriate F2authority shall confirm a provisional order, with or without modifications, if—

a

F2it 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 F2authority shall not make a final order, or make or confirm a provisional order, in relation to a relevant operator if F2it is satisfied—

C2a

that the duties imposed on F2it by section 4 F4above F5. . . preclude the making or, as the case may be, the confirmation of the order;

F6b

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6c

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F75ZA

F8Neither 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

F9the Secretary of State has or (as the case may be) those Ministers havegiven notice to F10the Office of Rail Regulation specifying a period within which F11it may give notice to F12him or them if F11it considers that the most appropriate way of proceeding is under the M1Competition Act 1998;

b

that period has expired; and

c

F10the Office of Rail Regulation has not given notice to F13the Secretary of State or (as the case may be) the Scottish Ministerswithin that period that F11it so considers (or, if F11it has, F11it has withdrawn it).

F335A

Before making a final order or making or confirming a provisional order, the Office of Rail Regulation shall consider whether it would be more appropriate to proceed under the Competition Act 1998.

5AA

The Office of Rail Regulation shall not make a final order or make or confirm a provisional order if it considers that it would be more appropriate to proceed under the Competition Act 1998.

F145B

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.

F155C

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), F34(5AA) or (5B) above.

F166

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 F2it 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 F2authority.

F177A

The provision that may be made in a final or provisional order includes, in particular, provision requiring the relevant operator to pay F18 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 M2Judgments Act 1838.

9

Without prejudice to F19section 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 F20authority” means—

    1. a

      in relation to any relevant condition or requirement in the case of a licence holder, F21. . . , F22. . . F10the Office of Rail Regulation ;

    2. aa

      F23in relation to any relevant condition or requirement in the case of—

      1. i

        a franchisee under a Scottish franchise agreement,

      2. ii

        a franchise operator in relation to such an agreement, or

      3. iii

        a person under Scottish closure restrictions,

      the Scottish Ministers; and

    3. b

      in relation to any relevant condition or requirement in the case of—

      1. i

        a franchisee not falling within paragraph (aa)(i),

      2. ii

        a franchise operator not falling within paragraph (aa)(ii), or

      3. iii

        a person under closure restrictions that are not Scottish closure restrictions,

      the Secretary of State;

  • “final order” means an order under this section, other than a provisional order F24or 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—

    1. a

      in the case of a licence holder, any condition of his licence;

    2. 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;

    3. c

      F25in the case of a person under closure restrictions, any duty mentioned in subsection (11) to which he is subject;

  • F26“relevant operator” means—

    1. a

      a licence holder;

    2. b

      a franchisee;

    3. c

      a franchise operator who is a party to the franchise agreement;

    4. d

      a person under closure restrictions.

11

In F27subsections F28(5ZA)and (10)above, “person under closure restrictions” means a personF29 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).

F3011A

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.

F3112

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