Railways Act 2005

Railways Act 2005

2005 CHAPTER 14

Commentary on Schedules

Schedule 11: Miscellaneous amendments of 1993 Act

247. Paragraph 2. Section 9(3) of the 1993 Act currently permits the Secretary of State and the ORR to include a condition when granting a operating licence which requires the licence holder to provide information or documents which the Secretary of State or the ORR need to carry out their functions under Part 1 of the 1993 Act. This amendment provides that such a condition may in future also cover information or documents which are required in relation to the exercise of functions under Part 4 of this Act (network modifications). This reflects the fact that the closure provisions in Part 1 of the 1993 Act are repealed by the Act, and replaced with the network modification provisions in Part 4 of the Act.

248. Paragraph 3. References in section 17 and 19 to a person operating a railway facility "on behalf of the Secretary of State" are, following the amendments to these sections in Schedule 1 Paragraph 12, to be construed as references to a person operating a railway facility under an agreement or arrangement with either the Secretary of State or the Scottish Ministers where the Secretary of State or the Scottish Ministers have a duty or power to secure the operation of that facility. This amendment provides that the relevant duty or power may exist in either Part 1 of the 1993 Act or in Part 4 of the Act. This reflects the fact that the closure provisions in Part 1 of the 1993 Act are repealed by the Act, and replaced with the network modification provisions in Part 4 of the Act.

249. Paragraph 4. This paragraph revises section 30 of the 1993 Act to take account of the Network Modification sections in Part 4 of the Act that replace the closure provisions in section 37 to 49 of the 1993 Act.

250. Paragraph 5. This paragraph amends section 50 of the 1993 Act so that the Secretary of State and the Scottish Ministers are excluded from liability for breach of statutory duty arising from Part 1 of the 1993 Act in place of the SRA. This reflects the revised procedures for Network Modifications in the Act.

251. Paragraph 6. This provision enables the Secretary of State and the Scottish Ministers to enter into agreements and arrangements under which they give undertakings as to the exercise of their functions relating to rail franchising, where they do so for the purpose of encouraging investment in railways.

252. Paragraph 7. This paragraph revises section 55 of the 1993 Act to take account of the Network Modification sections in Part 4 of the Act that replace the closure provisions in sections 37 to 49 of the 1993 Act. It also contains minor corrections to the definition of “final order” in section 55(10) and a reference to a penalty notice in section 57F(1).

253. Paragraph 9. This paragraph amends the provisions in the 1993 Act governing the ability of the Secretary of State to provide financial assistance in relation to companies in railways administration. In particular, it provides that the Secretary of State may give an indemnity to a railways administrator (and certain persons connected with him) in respect of liabilities, loss and damage incurred in the exercise of his functions. It also provides that the Secretary of State may direct the relevant company in railways administration to repay sums which are paid under the terms of such an indemnity, except where the payment was made under the indemnity to cover a liability of the railways administrator to that company. Section 49, which inserts a new section 64A into the 1993 Act to give the Scottish Ministers similar financial assistance powers, also permits such indemnities to be given.

254. Paragraph 10. This paragraph amends the duty of the ORR to maintain a public register under section 72 of the 1993 Act. The purpose of these amendments is to ensure that the ORR duties are appropriate in view of the repeal of the closure provisions in the 1993 Act and their replacement with the network modification provisions in Part 4 of the Act.

255. Paragraph 11. This paragraph amends the duty to maintain a public register which, by virtue of Schedule 1 Paragraph 30 of the Act, shall transfer from the SRA to the Secretary of State. The purpose of these amendments is to ensure that the duties are appropriate in view of the repeal of the closure provisions in the 1993 Act and their replacement with the network modification provisions in Part 4 of the Act.

256. Paragraph 12(a) refers to definitions in the 1993 Act inserted by section 48(1) and schedule 13(4) of this Act.

257. Paragraph 12(b) replaces the existing definition of bus substitution service in section 45(2) of the 1993 Act.

258. Paragraph 13. These amendments to section 136 of the 1993 Act provide that the Secretary of State and the Scottish Ministers are the competent authority for the purposes of the railways financial status regulations (Council Regulation (EEC) No 1192/69 on common rules with respect to the financial status of railway undertakings). They also provide that the Secretary of State, the Scottish Ministers, the NAW and Passenger Transport Executives are, where appropriate, the competent authority for the purposes of the public service obligations regulations (Council Regulation (EEC) No 1191/69 on public service obligations in transport, as amended by Council Regulation (EEC) No 1893/91).

259. Paragraph 14 ensures that whenever the Scottish Ministers exercise the powers that the Act gives them to make secondary legislation by means of regulations or an order under the 1993 Act the secondary legislation is made by means of a Statutory Instrument. It also gives the Scottish Ministers the ability to make incidental, supplemental, consequential or transitional provisions in the relevant Statutory Instrument in relation to the subject matter of the order or regulations. This is so as to ensure that the Scottish Ministers have sufficient flexibility to implement their regulations or orders in the most practicable way. This amendment to section 143 of the 1993 Act also gives the Scottish Ministers the discretion to use their powers to apply orders and regulations only in certain cases or to apply them differently depending on the case in question. These provisions are intended to give the Scottish Ministers a reasonable degree of flexibility to exercise their relevant powers in a way that reflects the reality of the situation rather than being unduly constrained by the narrow interpretation of the power they are exercising. These provisions already apply to the Secretary of State under section 143 of the 1993 Act. The paragraph also provides that enforcement orders made under section 55 by the Secretary of State and the Scottish Ministers are not subject to the requirements of section 143, and do not have to be made by statutory instrument.

260. Paragraph 15 amends section 145 of the 1993 Act, which provides for a general prohibition on the disclosure of information which relates to the affairs of any individual or business and which has been obtained under that Act. The amendments relate to the exceptions to the general prohibition.

261. The amendments in sub-paragraph (1) are intended to ensure that the exceptions are extended so as to cover the disclosure of information which is made for the purpose of assisting the Secretary of State or the Scottish Ministers in the exercise of their railways functions (including, but not limited to, their statutory functions under the 1993 Act, the Transport Act 2000, and this Act). The intention behind extending the exception in this way is to ensure that the Secretary of State and the Scottish Ministers can receive information which will help them to exercise their railway functions, notwithstanding the general prohibition on disclosing sensitive information obtained under the 1993 Act.

262. The amendment in sub-paragraph (2) is a consequential amendment resulting from the abolition of Rail Passengers' Committees in section 19.