Legalize / United Kingdom / Public General Act

Railways Act 2005

Type Public General Act

Publication 2005-04-07

Last updated 2025-05-18

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) before the definition of “franchise agreement” insert—

“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; “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;

(b) in the definition of “franchise agreement”, for “with the Authority” substitute “ with the Secretary of State, with the Scottish Ministers or with the Secretary of State and the National Assembly for Wales jointly, ”.

(5) Every designation made by the Strategic Rail Authority under section 23 of the 1993 Act which is in force immediately before the commencement of sub-paragraph (1) shall have effect after the commencement of that sub-paragraph as a designation in accordance with that section—

(a) in the case of services that at that time were being provided under a franchise agreement the franchised services under which consist of or include Scotland-only services, by the Scottish Ministers; and

(b) in any other case, by the Secretary of State.

14

(1) Section 24 of the 1993 Act (franchise exemptions granted by the Secretary of State) is amended as follows.

(2) In subsections (1) to (5) and (9), for “Secretary of State”, wherever occurring, substitute “ appropriate designating authority ”.

(3) In subsection (3)(a) and (b), for “he” in each place substitute “ the appropriate designating authority ”.

(4) After subsection (3) insert—

(3A) Before granting a franchise exemption in respect of a cross-border service, the Secretary of State must consult the Scottish Ministers.

(5) In subsection (4), for “he”, in both places, substitute “ it ”.

(6) In subsection (6), for “is not complied with, the Secretary of State” substitute “ granted by the appropriate designating authority is not complied with, it ”.

(7) In subsection (9), for “him”, in each place, substitute “ it ”.

(8) After subsection (12) insert—

(12A) 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.

15

(1) Section 26 of the 1993 Act (invitation to tender for franchises) is amended as follows.

(2) In subsection (1), for the words from the beginning to “Authority” substitute “ The appropriate franchising authority may select the person who is to be the franchisee in relation to a franchise agreement ”.

(3) In subsections (2) and (3), for “Authority”, wherever occurring, substitute “ appropriate franchising authority ”.

(4) Subsection (4) shall cease to have effect.

(5) For subsections (5) to (10) (statement by the Secretary of State about his power to give directions) substitute—

(4A) 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.

(6) The fact that a statement of policy has not been published by any person under section 26(4A) of the 1993 Act does not affect the validity of any selection made as mentioned in section 26(1) of that Act.

16

For sections 26A, 26B and 26C of the 1993 Act (directions of the Secretary of State where no tenders or tenders appear unsatisfactory) substitute—

(26ZA) (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.

17

(1) In section 27 of the 1993 Act (transfer of franchise assets or shares), for “Authority”, wherever occurring, substitute “ appropriate franchising authority ”.

(2) In subsection (8) and (9) of that section, for “Schedule 21 to the Transport Act 2000” substitute “ section 12 of the Railways Act 2005 ”.

18

(1) In section 28 of the 1993 Act (fares and approved discount fare schemes), in subsection (2), for “Authority”, substitute “ appropriate franchising authority ”.

(2) In subsection (4)—

(a) after “regarded” insert “ , in relation to a franchise agreement, ”; and

(b) for “Authority” substitute “ appropriate franchising authority ”.

(3) Discount fare schemes which immediately before the commencement of this paragraph are approved for the purposes of section 28 of the 1993 Act are to be treated after the commencement of this paragraph as approved for the purposes of that section by the appropriate franchising authority.

19

In section 29 of the 1993 Act (other terms and conditions of franchise agreements), for “Authority”, wherever occurring, substitute “ appropriate franchising authority ”.

Transfer of functions as operator of last resort

20

(1) In section 30 of the 1993 Act (operator of last resort to provide or secure provision of service where no franchise agreement), for “Authority”, wherever occurring, substitute “ relevant franchising authority ”.

(2) Subsection (1)(a) shall cease to have effect.

(3) In subsection (2), for “begin (or again begin) to be provided” substitute “ begin to be provided again ”.

(4) After subsection (3) of that section, insert—

(3A) For the purposes of this section the Secretary of State and the Scottish Ministersshall each have power— (a) to provide or operate network services, station services or light maintenance services; or (b) to store goods or consign them from a place to which they have been carried by rail; and the Scottish Ministers shall have power to provide Scotland-only services and cross-border services. (3B) In this section “relevant franchising authority” means the person who was the appropriate franchising authority in relation to the franchise agreement that has been terminated or otherwise come to an end.

(5) Where immediately before the commencement of this paragraph any service is being provided or secured by the Strategic Rail Authority by virtue of section 30 of the 1993 Act, that section is to have effect after the commencement of this paragraph as if—

(a) the condition in subsection (1)(b) of that section were satisfied; and

(b) the relevant franchising authority were—

(i) except where sub-paragraph (ii) applies, the Secretary of State; and

(ii) where the franchised services under the franchise agreement in accordance with which the services in question were last provided included Scotland-only services, the Scottish Ministers.

Transfer etc. of functions relating to enforcement

21

(1) Section 55 of the 1993 Act (orders for securing compliance) is amended as follows.

(2) In subsections (1), (2) and (4), for “(5B)”, in each place, substitute “ (5C) ”.

(3) In subsection (5), omit “or, as the case may be, section 207 of the Transport Act 2000”.

(4) In subsection (5ZA)—

(a) for “The Authority shall not” substitute “ Neither the Secretary of State nor the Scottish Ministers shall ”;

(b) in paragraph (a), for “it has” and “the Authority” substitute, respectively “ the Secretary of State has or (as the case may be) those Ministers have ” and “him or them”; and

(c) in paragraph (c), for “the Authority” substitute “ the Secretary of State or (as the case may be) the Scottish Ministers ”.

(5) After subsection (5B) insert—

(5C) 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.

(6) In subsection (6) (notice of decisions), for the words from the beginning to the end of paragraph (a) substitute—

(6) Where the appropriate authority must comply with this subsection, it must— (a) serve notice of its decision on the relevant operator; and

(7) In subsection (7A), for “to the Authority in the event of any specified contravention of the order such” substitute

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

(8) In subsection (10)—

(a) in paragraph (a) of the definition of “the appropriate authority”, omit “apart from a condition which relates to consumer protection,”;

(b) for paragraph (b) substitute—

(aa) in 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 (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;

22

In section 56(2A) of the 1993 Act (procedural requirements for section 55 orders), for the words from “Authority”, where first occurring, to the end of the subsection substitute “ Secretary of State and on the Scottish Ministers. ”

23

(1) Section 57A of the 1993 Act (penalties) is amended as follows.

(2) In subsection (2), for “to the Authority” substitute—

(a) 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) In subsection (5)—

(a) for “The Authority shall not” substitute “ Neither the Secretary of State nor the Scottish Ministers shall ”;

(b) in paragraph (a), for “it has” and “the Authority” substitute, respectively, “ the Secretary of State has or (as the case may be) those Ministers have ” and “ him or them ”; and

(c) in paragraph (c), for “the Authority” substitute “ the Secretary of State or (as the case may be) the Scottish Ministers ”.

24

(1) In section 57B of the 1993 Act—

(a) for “Authority”, wherever occurring, substitute “ Secretary of State, the Scottish Ministers ”; and

(b) in subsections (3) and (4), after “statement of” insert “ his, their or ”.

(2) The fact that a statement of policy has not been published by the Secretary of State, by the Scottish Ministers or by the Office of Rail and Road under section 57B of the 1993 Act does not affect—

(a) the validity of any decision to impose a penalty under section 57A;

(b) any determination of the amount of any such penalty;

(d) any determination of the amount of the sum payable in accordance with such an order.

25

In section 57C(3) of the 1993 Act (service of penalty notices), for the words from “Authority”, where first occurring, to the end of the subsection substitute “ Secretary of State and on the Scottish Ministers. ”

26

(1) This paragraph applies to things done under or for the purposes of any provision of sections 55 to 58 of the 1993 Act (enforcement) so far as they were done before the commencement of this paragraph by or in relation to the Strategic Rail Authority as the appropriate authority.

(2) In relation to times after the commencement of this paragraph, those things shall have effect, so far as necessary for giving them continuing validity or effect—

(a) so far as they are things done by or in relation to the Strategic Rail Authority as the appropriate authority in relation to a condition relating to consumer protection, as if they were done by or in relation to the Secretary of State or the Scottish Ministers, as the case may require; and

(b) in any other case, as if they were done by or in relation to the Office of Rail and Road.

Abolition of functions relating to railway administration orders

27

(1) The following provisions of the 1993 Act (which relate to applications by the SRA for railway administration orders and to notices to the SRA about insolvency proceedings against protected railway companies) shall cease to have effect—

(a) section 61(1)(a)(ii) and (2)(b); and

(b) section 62(2)(a)(ii), (3)(b), (5)(a)(ii), (6)(b) and (7)(b).

(2) Where a railway administration order is in force immediately before the commencement of this paragraph in relation to a company, things done by or in relation to the Strategic Rail Authority for the purposes of or in connection with that order and by virtue of —

(a) any provision of sections 59 to 62 of the 1993 Act, or

(b) any provision of Schedule 6 or 7 to that Act, or of the Insolvency Act 1986 (c. 45) as modified by Schedule 6 to the 1993 Act,

are to have effect, so far as necessary for giving them continuing validity and effect, as if done by the appropriate national authority (within the meaning of Part 1 of the 1993 Act).

Abolition of duty to investigate contravention of consumer protection conditions

28

Section 71A of the 1993 Act (duty to investigate contraventions of consumer protection conditions) shall cease to have effect.

Transfer of function of maintaining code of practice for protection of disabled rail users

29

(1) In section 71B of the 1993 Act (code of practice for protection of disabled rail users), for “Authority”, in each place, substitute “ Secretary of State ”.

(2) The code of practice under section 71B of the 1993 Act that is in force immediately before the commencement of this paragraph is to have effect after the commencement of this paragraph as if prepared and published by the Secretary of State.

(3) The Strategic Rail Authority must provide the Secretary of State with particulars of any consultation under section 71B(2) of the 1993 Act which was undertaken before the commencement of this paragraph by that Authority in relation to future revisions of the code; and that consultation is to be treated for the purposes of any revision after the commencement of this paragraph as having been undertaken by the Secretary of State.

Transfer of functions relating to maintenance of register

30

(1) In section 73 of the 1993 Act (register maintained by the SRA), for “Authority”, wherever occurring, substitute “ Secretary of State ”.

(2) In subsection (1) of that section, for “it” substitute “ he ”.

(3) In subsection (2) of that section—

(a) for the words from “subsection (3)” to “subsection (4)” substitute “ subsections (3) and (4) ”;

(b) after “in the register” insert “ (except so far as they are required to be entered in the register maintained under section 73A below) ”;

(d) after paragraph (g) insert—

(ga) every designation under section 23 and every variation or revocation of such a designation;

(4) For subsection (3) of that section substitute—

(3) 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.

(5) In subsection (4) of that section, for the words from “or” to “Authority” substitute “ he may decide ”.

(6) Subsections (5) and (6) of that section shall cease to have effect.

(7) In subsection (7) of that section—

(a) after “by”, where first occurring, insert “ the Scottish Ministers or ”; and

(b) for “the Office of Rail Regulation may” substitute “ the Scottish Ministers and the Office of Rail Regulation may each ”.

31

After that section insert—

(73A) (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.

Transfer of functions relating to the Rail Passengers' Council

32

(1) In section 76 of the 1993 Act (general duties of Passengers’ Council), for “Authority”, wherever occurring (except in subsection (6)(a)), substitute “ Secretary of State ”.

(2) In subsection (4) of that section, for “service” substitute “ secured service (within the meaning of Part 4 of the Railways Act 2005) which is ”.

(3) In subsection (5) of that section, in the words after paragraph (b)—

(a) for “its” substitute “ his ”; and

(b) for the word “it”, in the last place where it occurs, substitute “ he ”.

(4) In subsection (6)(a) of that section, omit “and the Authority”.

(5) Subsection (8) of that section shall cease to have effect.

Transfer of power to require information from licence holders

33

(1) In section 80 of the 1993 Act (duty to provide information to the SRA on request), for “Authority”, wherever occurring, substitute “ Secretary of State, the Scottish Ministers or the Office of Rail Regulation ”.

(2) In subsection (1) of that section—

(a) for “it”, in each place, substitute “ he, they or it ”; and

(b) for “of its functions” substitute “ functions of the Secretary of State, the Scottish Ministers or (as the case may be) that Office ”.

Abolition of functions relating to penalty fares

34

In section 130 of the 1993 Act—

(a) for paragraph (p) of subsection (2) (power to allow Secretary of State or SRA to prohibit the charging of penalty fares by person suspected of contraventions) substitute—

(p) 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.

;

(b) subsections (5), (6) and (10) (functions conferred on the SRA by penalty fare regulations) shall cease to have effect.

Transfer of functions relating to concessionary travel

35

(1) Section 135 of the 1993 Act (concessionary travel) is amended as follows.

(2) In subsections (2) and (3), for “Authority may” substitute “ Secretary of State and the Scottish Ministers may each ”.

(3) In subsection (6), for “The Authority may perform any of its functions” substitute “ The Secretary of State and the Scottish Ministers may exercise powers and perform duties conferred or imposed on him or them ”.

(4) In subsection (7), for “Authority undertakes” substitute “ Secretary of State undertakes, or the Scottish Ministers undertake, ”.

Abolition of certain functions under the 2000 Act

36

The following provisions of the 2000 Act shall cease to have effect—

(a) section 213 (powers to provide railway services);

(b) section 214 (substitute bus and taxi services); and

Part 2 — Definitions for purposes of transfers to Scottish Ministers

37

(1) Section 83(1) of the 1993 Act (expressions defined for the purposes of that Act, Part 4 of the 2000 Act and this Act) is amended as follows.

(2) After the definition of “closure consent” insert—

“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;

(3) After the definition of “rolling stock” insert—

“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;

SCHEDULE 2

Application and commencement of scheme

1

(1) A scheme may set out the property, rights and liabilities to be transferred in one or more of the following ways—

(a) by specifying or describing them in particular;

(b) by identifying them generally by reference to an undertaking from which they are to be transferred; or

(2) A scheme comes into force on the date appointed by the scheme.

Property, rights and liabilities that may be transferred

2

(1) The property, rights and liabilities that may be transferred by a scheme include—

(a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the transferor;

(b) property acquired in the period after the making of the scheme and before it comes into force and rights and liabilities arising in that period;

(c) rights and liabilities arising after the scheme comes into force in respect of matters occurring before it comes into force;

(d) rights and liabilities under an enactment, EU instrument or subordinate legislation.

(2) The transfers to which effect may be given by a scheme include transfers that are to take effect in accordance with the scheme as if there were—

(a) no such requirement to obtain a person's consent or concurrence,

(b) no such liability in respect of a contravention of any other requirement, and

as there would be, in the case of a transaction apart from this Act, by reason of a provision falling within sub-paragraph (3).

(3) A provision falls within this sub-paragraph to the extent that it has effect (whether under an enactment or agreement or otherwise) in relation to the terms on which the transferor is entitled or subject to anything to which the transfer relates.

(4) Sub-paragraph (5) applies where (apart from that sub-paragraph) a person would be entitled, in consequence of anything done or likely to be done by or under this Act in connection with a scheme under section 1(2)—

(a) to terminate, modify, acquire or claim an interest or right to which the transferor is entitled or subject; or

(b) to treat such an interest or right as modified or terminated.

(5) That entitlement shall be enforceable in relation to the interest or right—

(a) in consequence of what is done or likely to be done by or under this Act, and

(b) in corresponding circumstances arising after the transfer,

to the extent only that the scheme provides for it to be so enforceable.

(6) Sub-paragraphs (2) to (5) have effect where shares in a subsidiary of the transferor are or are to be transferred—

(a) as if the reference in sub-paragraph (3) to the terms on which the transferor is entitled or subject to anything to which the transfer relates included a reference to the terms on which the subsidiary is entitled or subject to anything immediately before the transfer takes effect; and

(b) as if the reference in sub-paragraph (4) to the transferor included a reference to the subsidiary.

Dividing and modifying transferor’s property, rights and liabilities

3

(1) A scheme may contain provision—

(a) for the creation, in favour of a transferor or transferee, of an interest or right in or in relation to property to be transferred in accordance with the scheme;

(b) for giving effect to a transfer to a person by the creation, in favour of that person, of an interest or right in or in relation to property to be retained by a transferor;

(c) for the creation of new rights and liabilities (including rights of indemnity and duties to indemnify) as between different transferees and as between a transferee and a transferor.

(2) A scheme may contain provision for the creation of rights and liabilities for the purpose of converting arrangements between different parts of a transferor's undertaking which exist immediately before the coming into force of the scheme into a contract between different transferees, or between a transferee and a transferor.

(3) A scheme may contain provision—

(a) for rights and liabilities to be transferred so as to be enforceable by or against more than one transferee, or by or against both the transferee and the transferor; and

(b) for rights and liabilities enforceable against more than one person in accordance with provision falling within paragraph (a) to be enforceable in different or modified respects by or against each or any of them.

(4) A scheme may contain provision for interests, rights or liabilities of third parties in relation to anything to which the scheme relates to be modified in the manner set out in the scheme.

(5) In sub-paragraph (4) “third party”, in relation to a scheme, means a person other than the transferor and the transferee.

(6) Paragraph 2(2) and (3) applies to the creation of interests and rights in accordance with a scheme as it applies to the transfer of interests and rights.

Obligation to effect transfers etc. under a scheme

4

(1) A scheme may contain provision for imposing on a transferee or a transferor an obligation—

(a) to enter into such agreements with another person on whom a corresponding obligation is, or could be or has been, imposed by virtue of this paragraph (whether in the same or a different scheme), or

(b) to execute such instruments in favour of any such person,

as may be specified or described in the scheme.

(2) An obligation imposed on a person by virtue of sub-paragraph (1) shall be enforceable by the relevant person in civil proceedings—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(3) The relevant person for the purposes of sub-paragraph (2) is the person with, or in favour of whom, the agreement or instrument is to be entered into or executed.

Effect of scheme

5

(1) Where a scheme provides for the transfer of property, rights or liabilities, or for the creation of interests, rights or liabilities—

(a) this Act shall have the effect that, at the time when the scheme comes into force, the property or interests, rights or liabilities shall vest, without further assurance, in the transferee; and

(b) the provisions of that scheme in relation to that property or those interests, rights or liabilities shall have effect from that time.

(2) Sub-paragraph (1) is subject to so much of a scheme as provides for—

(a) the transfer of property, rights or liabilities which are to be transferred in accordance with the scheme, or

(b) the creation of interests, rights and liabilities which are to be created in accordance with the scheme,

to be effected by or under an agreement or instrument entered into or executed in pursuance of an obligation imposed by virtue of paragraph 4(1).

(3) In its application to Scotland, sub-paragraph (1) has effect with the omission of the words “without further assurance”.

Powers and duties under statutory provisions

6

(1) A scheme may make provision for some or all of the powers and duties to which this paragraph applies—

(a) to be transferred to a transferee;

(b) to become powers and duties that are exercisable, or must be performed, concurrently by two or more transferees; or

(c) to become powers and duties that are exercisable, or must be performed, concurrently by a transferor and a transferee.

(2) The powers and duties to which this paragraph applies are the powers and duties conferred or imposed upon the transferor by or under a relevant enactment so far as they relate to—

(a) property to be transferred in accordance with the scheme;

(b) the carrying out of works designed to be used in connection with such property; or

(3) In this paragraph “relevant enactment” means any enactment other than—

(a) the 1993 Act;

(b) Part 4 of the 2000 Act; or

(4) This paragraph does not require a restrictive construction to be given to what may be transferred by virtue of paragraph 2(1)(d).

Supplementary provisions of schemes

7

(1) A scheme may—

(a) make such incidental, supplemental, consequential and transitional provision in connection with the transfers to be made in accordance with the scheme as the person making the scheme thinks fit;

(b) make different provision for different cases.

(2) In particular, a scheme may make provision, in relation to transfers in accordance with the scheme—

(a) for the transferee to be treated as the same person in law as the transferor;

(b) for agreements made, transactions effected or other things done by or in relation to the transferor to be treated, so far as may be necessary for the purposes of or in connection with the transfers, as made, effected or done by or in relation to the transferee;

(c) for references in an agreement, instrument or other document to the transferor, or to an employee or office holder of the transferor, to have effect, so far as may be necessary for the purposes of or in connection with a transfer, with such modifications as are specified in the scheme; and

(d) for proceedings commenced by or against the transferor to be continued by or against the transferee.

(3) Sub-paragraph (2)(c) does not apply to references in an enactment or in subordinate legislation.

(4) In this paragraph references to a transfer in accordance with a scheme include references to the creation of an interest, right or liability in accordance with a scheme.

Modification of scheme by agreement

8

(1) Where the transferor and transferee under a scheme that has come into force so agree, the scheme shall be treated for all purposes as having come into force with such modifications as may be agreed.

(2) An agreement under this paragraph which relates to rights and liabilities under a contract of employment may be entered into only if the employee is a party to the agreement.

(3) An agreement under this paragraph that adversely affects the property or rights of a person other than the transferor, the transferee or such an employee may be entered into only if that person is a party to the agreement.

(4) The provision that may be included in an agreement under this paragraph includes—

(a) any provision that could have been contained in the scheme; and

(b) incidental, supplemental, consequential and transitional provision in connection with any such provision.

Continuity of employment etc.

9

(1) Where in accordance with a scheme a person employed by a transferor becomes an employee of a transferee—

(a) he is not to be regarded for the purposes of Part 11 of the Employment Rights Act 1996 (c. 18) as having been dismissed by virtue of the transfer;

(b) his period of employment with the transferor counts for the purposes of that Act as a period of employment with the transferee;

(c) the change of employment does not break the continuity of the period of employment either for the purposes of that Act or for the purposes of Schedule 11 to the 1993 Act (pensions); and

(d) in a case in which the transferee is not engaged in the railway industry, that person's period of employment with the transferee is to be disregarded for the purpose of determining whether the termination conditions under paragraph 8 of Schedule 11 to the 1993 Act are fulfilled in his case.

(2) References in this paragraph to becoming an employee of the transferee and to employment with the transferee include references, respectively, to becoming and to being employed in the civil service of the state.

Compensation for third parties

10

(1) Where—

(a) an entitlement of a third party to an interest or right would, apart from a provision of a scheme under section 1(2) and paragraph 2(4) and (5), become enforceable in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities,

(b) the provisions of that scheme or of paragraph 2(4) and (5) have the effect of preventing the third party's entitlement to that interest or right from being enforced in respect of anything for which the scheme provides, and

(c) provision is not made by the scheme for securing that an entitlement to that interest or right, or to an equivalent interest or right, is preserved or created so as to arise and be enforceable in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party shall be entitled to compensation in respect of the extinguishment of his entitlement.

(2) The amount of compensation to which a third party is entitled under this paragraph is the amount necessary for securing, to the extent that it is just to do so, that he does not suffer financial loss from the extinguishment of his entitlement.

(3) A liability to pay compensation under this paragraph shall fall on the Secretary of State.

(4) In the preceding provisions of this paragraph “third party”, in relation to a scheme, means a person other than the transferor and the transferee.

(5) This paragraph shall have effect in relation to—

(a) the provisions of an agreement or instrument entered into or executed in pursuance of an obligation imposed by a scheme under section 1(2), and

(b) the provisions of an agreement under paragraph 8 relating to property, rights or liabilities transferred or created in accordance with such a scheme,

as it has effect in relation to the scheme but as if, in the case of an agreement under paragraph 8, only persons who are not parties to the agreement were third parties.

Provision of information to person making scheme

11

(1) A person who proposes to make a scheme (“the scheme authority”) may direct—

(a) a proposed transferor, or

(b) a proposed transferee,

to provide him with such information as he considers necessary to enable him to make the scheme.

(2) Such a direction must specify the period within which the information is to be provided.

(3) The period specified in the direction must be not less than 28 days beginning with the day of the giving of the direction.

(4) If a person fails to comply with such a direction, the scheme authority may serve a notice on him requiring him—

(a) to produce to the scheme authority any documents which are specified or described in the notice and are in his custody or under his control; or

(b) to provide to the scheme authority such information as may be specified or described in the notice.

(5) Documents or information to be produced or provided in accordance with such a notice must be produced or provided at the time and place, and in the form and manner, specified in the notice.

(6) No person may be required under this paragraph—

(a) to produce a document which he could not be compelled to produce in civil proceedings in the court; or

(b) to provide information which he could not be compelled to give in evidence in such proceedings.

(7) A person who intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under sub-paragraph (4) is guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine.

(8) If a person fails to comply with a notice under sub-paragraph (4), the court may, on the application of the scheme authority, make such order as the court thinks fit for requiring the failure to be made good.

(9) Any order under sub-paragraph (8) may include provision requiring all the costs or expenses of and incidental to the application to be borne by one or more of the following—

(a) the person in default;

(b) any officers of a company or other association who are responsible for its default.

(10) In this paragraph—

(a) a reference 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

(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(11) In this paragraph “the court” means—

(a) in England and Wales, the High Court; and

(b) in Scotland, the Court of Session.

Interpretation

12

(1) In this Schedule—

“enactment” includes an enactment comprised in an Act of the Scottish Parliament;

“transferee”—in relation to a scheme, means a person to whom property, rights or liabilities are transferred in accordance with the scheme; andin relation to particular property, rights or liabilities transferred or created in accordance with a scheme, means the person to whom that property or those rights or liabilities are transferred or in whose favour, or in relation to whom, they are created;

“transferor”—in relation to a scheme, means the person from whom property, rights or liabilities are transferred in accordance with the scheme; andin relation to particular property, rights or liabilities transferred or created in accordance with a scheme, means the person from whom that property or those rights or liabilities are transferred or the person who or whose property is subject to the interest or right created by the scheme or for whose benefit the liability is created;

“scheme” means a scheme made under section 1(2) or 12; and

“subsidiary” has the meaning given to it by section 1159 of the Companies Act 2006.

(2) References in this Schedule to a right or to an entitlement to a right include references to an entitlement to exercise a right; and, accordingly, references to a right's arising include references to its becoming exercisable.

SCHEDULE 3

Railway safety purposes

1

(1) Subject to sub-paragraph (4), in this Schedule “railway safety purposes” means so much of the general purposes of Part 1 of the 1974 Act (within the meaning of section 1 of that Act) as—

(a) relates to risks that are exclusively relevant to one or more of the purposes specified in sub-paragraph (2); or

(b) relates to so much of any risks that are primarily so relevant as arises in connection with anything mentioned in that sub-paragraph.

(2) The purposes mentioned in sub-paragraph (1) are—

(a) securing the proper construction and safe operation of transport systems falling within sub-paragraph (3);

(b) securing the proper construction and safe operation of locomotives, rolling stock or other vehicles used, or to be used, on such systems;

(c) protecting the public (whether or not they are passengers) from personal injury and other risks arising from the construction and operation of such systems;

(d) protecting persons at work from personal injury and other risks so arising.

(3) A transport system falls within this sub-paragraph if it is—

(a) a railway;

(b) a tramway; or

(d) a transport system using any other mode of guided transport other than a guided bus system.

but not to the extent that the transport system consists of or is operated for the purposes of fairground equipment.

(4) The Secretary of State may, by regulations, modify the definition of “railway safety purposes”.

(5) Before making any regulations under sub-paragraph (4), the Secretary of State must consult—

(a) the Office of Rail and Road;

(b) the Health and Safety Executive;

(ba) the Office for Nuclear Regulation; and

(6) Regulations under sub-paragraph (4) are subject to the negative resolution procedure.

(7) In this paragraph—

“bus” means a motor vehicle which is designed or adapted to travel along roads and to carry more than eight passengers but which is not a tramcar;

“fairground equipment” has the same meaning as in section 53 of the 1974 Act;

“guided bus system” means a system of transport, used wholly or mainly for the carriage of passengers, that employs buses which for some or all of the time when they are in operation—travel along roads; andare guided (whether while on the road or at other times) by means of—apparatus, a structure or other device which is fixed and not part of the bus; ora guidance system which is automatic;

“guided transport”, “railway”, “tramway”, ... and “vehicle” have the same meanings as in the Transport and Works Act 1992 (c. 42) except that, for this purpose, paragraph (b) of the definition of “railway” in section 67(1) of that Act (which includes a condition as to the minimum gauge of track) is to be disregarded; and

“person at work” has the same meaning as it for the time being has in Part 1 of the 1974 Act (see section 52 of that Act).

“road”—in England and Wales, means any length of highway or of any other road to which the public has access, and includes bridges over which a road passes; andin Scotland, has the same meaning as in the Roads (Scotland) Act 1984.

ORR’s principal railway safety functions

2

(1) It shall be the general duty of the Office of Rail and Road—

(a) to do such things and make such arrangements as it considers appropriate for the railway safety purposes; and

(b) to assist and encourage persons concerned with matters relevant to any of those purposes to further those purposes.

(2) It shall be the duty of the Office of Rail and Road—

(a) to make such arrangements as it considers appropriate for the carrying out of research in connection with the railway safety purposes and for the publication of the results of such research; and

(b) to encourage research by others in that connection.

(3) It shall be the duty of the Office of Rail and Road—

(a) to make such arrangements as it considers appropriate for the provision of training and information in connection with the railway safety purposes;

(b) to encourage the provision by others of training and information in that connection; and

(i) are provided with an information and advisory service with respect to matters relevant to the railway safety purposes;

(ii) are kept informed about such matters; and

(iii) are adequately advised about them.

(4) Those persons are—

(a) government departments;

(b) employers;

(d) organisations representing employers and employees respectively; and

(e) other persons concerned with matters relevant to any of the railway safety purposes.

(5) It shall be the duty of the Office of Rail and Road from time to time to submit such proposals as it considers appropriate for the making of regulations for the railway safety purposes to the authorities having power to make regulations for those purposes under any of the relevant statutory provisions.

(6) Before submitting proposals under sub-paragraph (5), the Office of Rail and Road must—

(a) if the proposals relate to regulations that are relevant to the ONR's purposes (within the meaning of Part 3 of the Energy Act 2013), consult the Office for Nuclear Regulation;

(b) in any case, consult—

(i) such government departments, and

(ii) such other persons,

as it considers appropriate.

(7) Before—

(a) making regulations for the railway safety purposes independently of any proposals submitted under sub-paragraph (5), or

(b) making regulations which give effect to such proposals but with modifications,

the authority having the power to make the regulations must consult the Office of Rail and Road and, if the regulations are relevant to the ONR's purposes (within the meaning of Part 3 of the Energy Act 2013), the Office for Nuclear Regulation.

(8) In this paragraph “employer”, “employee” and “the relevant statutory provisions” have the same meanings as in Part 1 of the 1974 Act (see section 53(1) of that Act).

Removal of corresponding functions from HSC

3

(1) In section 11 of the 1974 Act (which confers functions on the HSC for general purposes that are equivalent to those conferred on the ORR for railway safety purposes by paragraph 2)—

(a) in subsection (1), for “subject to subsection (3)” substitute “ subject to subsections (2A) and (3) ”; and

(b) after subsection (2) insert the subsection set out in sub-paragraph (2).

(2) The subsection to be inserted is—

(2A) In subsections (1) and (2) above— (a) references to the general purposes of this Part do not include references to the railway safety purposes; and (b) the reference to a power to make regulations under the relevant statutory provisions does not include a reference to any power so far as it is exercisable for the railway safety purposes.

Reports and investigations

4

(1) The Office of Rail and Road may authorise a person to investigate and make a special report on any accident, occurrence, situation or other matter of any sort which that Office thinks it necessary or expedient to investigate—

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) The Office of Rail and Road may cause—

(a) the contents of a special report made under this paragraph, or

(b) so much of them as it considers appropriate,

to be made public at such time, and in such manner, as it thinks fit.

(3) Where a person who is not a member, officer or employee of the Office of Rail and Road carries out an investigation and makes a special report under this paragraph, that Office may pay him such remuneration and expenses as the Secretary of State determines.

(4) The Office of Rail and Road may, to such extent as the Secretary of State may determine, defray the other costs (if any) of—

(a) an investigation under this paragraph; or

(b) the making of a special report following such an investigation.

(4A) The Office of Rail and Road must consult the Office for Nuclear Regulation before taking any step under sub-paragraph (1) in relation to a matter which appears to the Office of Rail and Road to be, or likely to be, relevant to the ONR's purposes (within the meaning of Part 3 of the Energy Act 2013).

(5) In section 14(1) of the 1974 Act (matters about which investigations etc. may be required or authorised by the HSC), for “it is” substitute—

(a) those general purposes shall be treated as not including the railway safety purposes; but (b) it is otherwise

5

(1) This paragraph applies where, before the commencement of paragraph 4, the Health and Safety Commission directed or authorised a person to investigate and make a special report under section 14(2)(a) of the 1974 Act on any accident, occurrence, situation or other matter which the Commission thought it necessary or expedient to investigate—

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) For the purposes of the carrying out or continuation of an investigation and the making of a report after the commencement of paragraph 4, the direction or authorisation shall be treated as an authorisation by the Office of Rail and Road under paragraph 4.

(3) If —

(a) the person to whom the Health and Safety Commission gave the direction or authorisation has made a special report to the Commission, but

(b) the Commission has not yet caused the report, or a part of it, to be made public under section 14(5) of the 1974 Act,

the report shall be treated as if it had been made to the Office of Rail and Road under paragraph 4.

(4) If the person to whom the Health and Safety Commission gave the direction or authorisation has not yet made a special report to the Commission, the Office of Rail and Road may direct that person—

(a) to abandon the investigation without making a special report; or

(b) to continue the investigation in such manner as that Office may direct.

(5) Where the Health and Safety Commission agreed before the commencement of paragraph 4 to exercise its power by virtue of section 14(6)(a) or (c) of the 1974 Act to pay remuneration or expenses to any person in respect of the investigation and special report or to defray costs of the investigation and report—

(a) the Commission must pay amounts accruing in respect of the agreed matters before the commencement of paragraph 4; and

(b) the Office of Rail and Road must pay amounts so accruing after that time;

and paragraph (b) does not affect the power of that Office under that paragraph, in relation to times after the commencement of that paragraph, to make other payments of remuneration or expenses or to defray costs.

6

(1) This paragraph applies where, before the commencement of paragraph 4, the Health and Safety Commission directed an inquiry to be held under section 14(2)(b) of the 1974 Act into any accident, occurrence, situation or other matter which the Commission thought it necessary or expedient to investigate—

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) Subject to sub-paragraph (3), section 14 of the 1974 Act shall continue to apply in relation to that inquiry after the commencement of paragraph 4 but as if all things done or required to be done by or in relation to the Health and Safety Commission under that section were done or required to be done by or in relation to the Office of Rail and Road.

(3) Where the Health and Safety Commission agreed before the commencement of paragraph 4 to exercise its power by virtue of section 14(6)(b) or (c) of the 1974 Act to pay remuneration or expenses to any person in respect of the inquiry or to defray costs of the inquiry—

(a) the Commission must pay amounts accruing in respect of the agreed matters before the commencement of paragraph 4; and

(b) the Office of Rail and Road must pay amounts so accruing after that time;

and paragraph (b) does not affect the power of that Office, in relation to times after the commencement of paragraph 4, to make other payments of remuneration or expenses under section 14(6)(b), or to defray costs under section 14(6)(c).

ORR acting as agent of government departments and other public authorities

7

(1) Where the Secretary of State considers that any of his statutory or other functions can appropriately be carried out by the Office of Rail and Road in connection with the carrying out of its safety functions, he and that Office may enter into an agreement for that Office to carry out those functions on his behalf.

(2) Where the Secretary of State considers that any of the statutory or other functions of—

(a) a government department, or

(b) any other public authority,

can appropriately be carried out by the Office of Rail and Road in connection with the carrying out of its safety functions, he may authorise the Office and that department or authority to enter into an agreement for that Office to carry out those functions on behalf of that department or authority.

(3) An agreement under this paragraph—

(a) may include provision for payments to be made to the Office of Rail and Road for the carrying out of the functions that it is authorised or required to carry out under the agreement; but

(b) may not authorise or require the Office of Rail and Road to carry out any function consisting in a power to make regulations or other instruments of a legislative character.

(4) Sub-paragraph (3)(b) does not prevent the Secretary of State and the Office of Rail and Road from entering into an agreement for that Office to carry out on his behalf the function of making orders under section 1 of the Level Crossings Act 1983.

Government departments and other public authorities acting as agent of ORR

8

(1) Where the Office of Rail and Road considers that any of its safety functions can appropriately be carried out—

(a) by a government department, or

(b) by any other public authority,

that Office and the department or authority may enter into an agreement for the department or authority to carry out those functions on that Office's behalf.

(2) An agreement under this paragraph may include provision for payments to be made by the Office of Rail and Road to a government department or public authority for the carrying out of the functions that it is authorised or required to carry out under the agreement.

Restrictions on codes of practice by HSC

9

(1) In subsection (1) of section 16 of the 1974 Act (codes of practice with respect to the requirements of certain provisions), for “sections 2 to 7 or of health and safety regulations or of any of the existing statutory provisions” substitute “ any of the enactments or instruments mentioned in subsection (1A) below ”.

(2) After that subsection insert—

(1A) Those enactments and instruments are— (a) sections 2 to 7 above; (b) health and safety regulations, except so far as they make provision exclusively in relation to transport systems falling within paragraph 1(3) of Schedule 3 to the Railways Act 2005; and (c) the existing statutory provisions that are not such provisions by virtue of section 117(4) of the Railways Act 1993.

Co-operation with the HSC

10

(1) It shall be the duty of the Office of Rail and Road and the Health and Safety Commission—

(a) as soon as practicable after the commencement of this paragraph, to enter into arrangements with each other for securing co-operation and the exchange of information in connection with the carrying out of safety functions;

(b) to maintain and from time to time to review those arrangements; and

(2) In sub-paragraph (1) “safety functions” means all the functions of ... the Health and Safety Executive and the safety functions of the Office of Rail and Road.

(3) In section 18(5)(b) of the 1974 Act (duty of enforcing authority to act in accordance with guidance of HSC), at the beginning insert “ except where that authority is the Office of Rail Regulation, ”.

Information powers corresponding to section 27 of the 1974 Act

11

(1) The Office of Rail and Road may serve a notice under this paragraph on any person for the purpose of obtaining information which that Office needs for the carrying out of its safety functions.

(2) A notice under this paragraph is one requiring the person on whom it is served—

(a) to provide the Office of Rail and Road with information about such matters as may be specified in the notice; and

(b) to do so in the form and manner so specified.

(3) The consent of the Secretary of State is required for the service of a notice under this paragraph.

(4) The consents that may be given for the purposes of sub-paragraph (3) include a general consent relating to notices of a specified description.

(5) Nothing in the Statistics of Trade Act 1947 (c. 39) is to be construed as preventing or penalising the disclosure by a Minister of the Crown or government department to—

(a) the Office of Rail and Road,

(b) a member, officer or employee of that Office, or

of information falling within sub-paragraph (6) about an undertaking (within the meaning of that Act).

(6) Information about an undertaking falls within this sub-paragraph if it consists of—

(a) the names and addresses of the persons carrying on the undertaking;

(b) the nature of the undertaking's activities;

(d) the addresses or places where activities of the undertaking are or were carried on;

(e) the nature of the activities carried on there; or

(f) the number of persons of different descriptions who work or worked in the undertaking there.

(7) A person to whom a disclosure that is authorised by sub-paragraph (5) is made must not use the information except for the purposes of the safety functions of the Office of Rail and Road.

(8) It is an offence for a person—

(a) to contravene a requirement imposed by a notice under this paragraph; or

(b) to use information in contravention of sub-paragraph (7).

(9) A person guilty of an offence under sub-paragraph (8) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment—

(i) in the case of an offence of contravening a notice, to a fine; and

(ii) in the case of an offence of using information in contravention of sub-paragraph (7), to imprisonment for a term not exceeding two years or to a fine, or to both.

(10) Section 52 of the 1974 Act (meaning of “work” and related expressions) applies for the purposes of this paragraph as it applies for the purposes of Part 1 of that Act.

Railway safety levy

12

(1) Section 43A of the 1974 Act (railway safety levy) is amended as follows.

(2) In subsection (2) (expenses in respect of which levy raised), for paragraphs (a) and (b) substitute—

(a) in respect of activities undertaken by the Office of Rail Regulation under or by virtue of this Act or Schedule 3 to the Railways Act 2005; or (b) in respect of activities in relation to a transport system falling within paragraph 1(3) of that Schedule that are undertaken by that Office under or by virtue of any other enactment.

(3) In subsections (5) and (6), for “Commission or the Executive” substitute “ Office of Rail Regulation ”.

(4) In subsection (9), for “to which section 117 of the Railways Act 1993 applies” substitute “ falling within paragraph 1(3) of Schedule 3 to the Railways Act 2005 ”.

Removal of requirement of consultation with HSC for railway safety regulations

13

In section 50 of the 1974 Act (consultation with HSC), after subsection (1) insert—

(1A) Subsection (1) does not apply to the exercise of a power to make regulations so far as it is exercised— (a) for giving effect (with or without modifications) to proposals submitted by the Office of Rail Regulation under paragraph 2(5) of Schedule 3 to the Railways Act 2005; or (b) otherwise for or in connection with the railway safety purposes.

Regulatory Reform Act 2001

14

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

Interpretation

15

(1) In this Schedule—

“the 1974 Act” means the Health and Safety at Work etc. Act 1974 (c. 37); and

“railway safety purposes” has the meaning given by paragraph 1.

(2) In this Schedule a reference to the safety functions of the Office of Rail and Road is a reference to—

(a) its functions under this Schedule;

(b) its functions under the 1974 Act; and

(3) In section 53(1) of the 1974 Act (interpretation of Part 1), after the definition of “prohibition notice” insert—

“railway safety purposes” has the same meaning as in Schedule 3 to the Railways Act 2005;

SCHEDULE 4

Introductory

1

Schedule 4A to the 1993 Act (review of access charges by ORR) is amended as follows.

Conduct of access charges reviews

2

For paragraph 1 (meaning of access charges review) substitute—

(1) This Schedule applies where an access agreement provides, or is treated as providing, for the Office of Rail Regulation to undertake reviews of the terms of that agreement as to— (a) the amounts payable under the agreement by one of the parties to the other; and (b) the times at which, and the manner in which, those amounts are payable. (1A) (1) Where the Office of Rail Regulation undertakes such a review, it must, at the same time, review the conditions of every linked licence both— (a) in relation to the matters mentioned in paragraph 1(a) and (b); and (b) in relation to the matters about which that Office is provided with information under paragraph 1D. (2) A review by that Office of both— (a) the terms of an access agreement as to the matters mentioned in paragraph 1(a) and (b), and (b) the conditions of a linked licence, is referred to in this Schedule as an access charges review. (3) An access charges review must include a consideration of— (a) the time at which the next access charges review is to be undertaken in relation to both the access agreement in question and every linked licence; and (b) the circumstances in which it would be appropriate to undertake such a review before that time. (4) In this Schedule “linked licence”, in relation to an access agreement, means a licence of which the holder is— (a) the facility owner, or installation owner, who is a party to the agreement; or (b) a person other than that owner who has an estate or interest in the railway facility or network installation to which the agreement relates or who has a right over it. (1B) Where— (a) the Secretary of State or the Scottish Ministers suggest to the Office of Rail Regulation that an access charges review should be carried out in any case, but (b) that Office decides not to carry out the suggested review, that Office must provide the Secretary of State or Scottish Ministers with its reasons for that decision. (1C) (1) Before beginning an access charges review, the Office of Rail Regulation must give notice of its proposal to undertake the review to each of the following— (a) the Secretary of State; (b) the Scottish Ministers; (c) the Treasury; (d) the parties to the access agreement in question; and (e) such other persons as that Office considers appropriate. (2) No notice is required to be given under sub-paragraph (1) to the Secretary of State or the Scottish Ministers— (a) in the case of the Secretary of State, if the facility or installation to which the relevant agreement relates is situated wholly in Scotland; or (b) in the case of the Scottish Ministers, if the facility or installation to which the relevant agreement relates is situated wholly in England and Wales. (3) A notice under this paragraph must set out— (a) the period to which the Office of Rail Regulation expects the review to relate (“the review period”); (b) the date by which the Secretary of State, the Scottish Ministers or (as the case may be) each of them needs to provide the information that has to be provided under paragraph 1D; and (c) any conditions which that Office requires to be satisfied in the period ending with that date if it is to proceed with the review. (4) The period set out under sub-paragraph (3)(a) must be the one which— (a) begins with the time as from which the Office of Rail Regulation expects that any changes resulting from the review would fall to be implemented; and (b) ends with the time as from which it thinks it likely (in the absence of special circumstances making an earlier review appropriate) that any changes resulting from the next access charges review in relation to the same agreement and licence would fall to be implemented. (5) The date set out under sub-paragraph (3)(b) must be not less than the following period after the date of the notice— (a) in a case which the Office of Rail Regulation is satisfied is a case of urgency, four weeks; and (b) in any other case, three months. (6) Before setting out a date under sub-paragraph (3)(b) that is less than three months after the date of the notice, the Office of Rail Regulation must consult each of the persons to whom the notice is to be given. (1D) (1) Where a notice under paragraph 1C is given to the Secretary of State, he must provide the Office of Rail Regulation with— (a) information about what he wants to be achieved by railway activities in Great Britain as a whole during the review period; and (b) such information as it is reasonable for him to provide about the public financial resources that are or are likely to become available to be applied during the review period for purposes that contribute (directly or indirectly) towards the achievement of what he wants. (2) Where a notice under paragraph 1C is given to the Scottish Ministers (whether instead of or as well as to the Secretary of State), they must provide the Office of Rail Regulation with— (a) information about what they want to be achieved by Scottish railway activities during the review period; and (b) such information as it is reasonable for them to provide about the public financial resources that are or are likely to become available to be applied during that period for purposes that contribute (directly or indirectly) towards the achievement of what they want. (3) The information that may be provided as falling within sub-paragraph (1)(a) or (2)(a) includes objectives and standards to be achieved in the course of carrying on railway activities. (4) Those objectives and standards may include, in particular, objectives and standards with respect to any of the following matters— (a) the capacity (in terms of types and numbers of trains) of networks; (b) the frequency of railway passenger services; (c) journey times; (d) reliability of railway services (both in terms of punctuality and otherwise); (e) the taking of measures to prevent or mitigate overcrowding; (f) levels and types of fares; (g) the quality of information provided to passengers; (h) the accessibility of railway services to people with disabilities; (i) the carrying out of major projects to improve railway services; (j) the protection of persons from dangers arising from the operation of railways. (5) In a case where information is also required to be provided by the Scottish Ministers, the information that is required to be provided by the Secretary of State does not include— (a) any information about what he wants to be achieved by Scottish railway activities not relating to cross-border services; or (b) information about any public financial resources so far as they appear to him to be available, or to be likely to become available, to be applied for purposes relating only to such activities. (6) An obligation of the Secretary of State or the Scottish Ministers to provide information under this paragraph— (a) must be discharged before the date set out in the notice given under paragraph 1C or, if a later date is fixed under sub-paragraph (7), by that later date; but (b) may be discharged by a notification that refers that Office to information previously provided under this paragraph. (7) The Office of Rail Regulation may at any time, by notice to each of the persons to whom the notice under paragraph 1C was given, fix a later date for the provision of information under this paragraph. (8) Neither— (a) the Secretary of State, nor (b) the Scottish Ministers, are required to provide information for the purposes of a review at any time after a decision has been made by the Office of Rail Regulation not to proceed with the review because of an actual or expected failure of the conditions set out under paragraph 1C(3)(c) to be satisfied. (9) In this paragraph “railway activities” means activities consisting in, or involving, any of the following— (a) providing railway services; (b) making available railway facilities; (c) making use of such facilities; (d) using railway assets; (e) allowing others to use such assets. (10) In this paragraph “Scottish railway activities” means activities which are railway activities by reference only to— (a) railway services which begin and end in Scotland; (b) railway services in relation to which financial assistance is provided by the Scottish Ministers and which (without falling within paragraph (a)) begin or end in Scotland; (c) railway facilities that are situated in Scotland; or (d) railway assets so situated. (11) In this paragraph “public financial resources” means any of the following— (a) money charged on and payable out of the Consolidated Fund; (b) money provided by Parliament; (c) money payable out of the Scottish Consolidated Fund. (1E) Where the Secretary of State or the Scottish Ministers provide the Office of Rail Regulation with information under paragraph 1D, he or they may also, at the same time, make a suggestion to that Office setting out his or their opinion about— (a) when the next access charges review should be undertaken in relation to both the access agreement in question and every linked licence; and (b) the circumstances in which it would be appropriate to undertake such a review before that time. (1F) (1) If, at any time in the course of an access charges review, it appears to the Office of Rail Regulation that— (a) the information that has been provided to it by the Secretary of State or the Scottish Ministers under paragraph 1D, or (b) the information, taking it all together, that has been so provided by the Secretary of State and the Scottish Ministers, shows that the public financial resources that are or are likely to become available will be inadequate to secure the achievement of what he or they, or both of them, want to be achieved, that Office must so notify the Secretary of State or the Scottish Ministers or (as the case may be) each of them. (2) The Office of Rail Regulation must send a copy of every notification under sub-paragraph (1) to the Treasury. (3) On being notified under sub-paragraph (1), the Secretary of State or the Scottish Ministers or (as the case may be) each of them— (a) may revise any information provided to the Office of Rail Regulation, together with any suggestion made under paragraph 1E; and (b) if the information or such a suggestion is revised, must notify the revisions to that Office. (4) Any notification under sub-paragraph (3) must be given within whatever period is specified by the Office of Rail Regulation when notifying the Secretary of State or Scottish Ministers in accordance with sub-paragraph (1). (5) Where the Office of Rail Regulation has already given a notification under this paragraph with respect to any information, it is required to give a further notification under this paragraph with respect to that information, or any revision of it, only if— (a) a revision has been made in response to its previous notification; and (b) it has not previously given a notification in respect of an earlier revision of the information. (1G) (1) If, at any time in the course of an access charges review, it appears to the Office of Rail Regulation that it is likely that the implementation of the review will adversely affect the interests of persons providing railway passenger services or of persons providing services for the carriage of goods by railway, that Office must so notify— (a) the Secretary of State, in the case of a review notice of which was given to him under paragraph 1C; and (b) the Scottish Ministers, in the case of a review notice of which was given to them under that paragraph. (2) Where the Office of Rail Regulation gives a notification under sub-paragraph (1) in respect of a review relating to an access agreement to which a facility owner is a party, the notification must include— (a) its assessment of the measures that the facility owner is likely to be required to take, as a consequence of the implementation of the review, in order to meet obligations of his arising under the access agreement in question or under any other access agreement to which he is a party; and (b) its estimate of the cost to the facility owner of taking those measures. (3) On being notified under sub-paragraph (1), the Secretary of State or the Scottish Ministers or (as the case may be) each of them— (a) may revise any information provided under paragraph 1D to the Office of Rail Regulation, together with any suggestion made under paragraph 1E; and (b) if the information or such a suggestion is revised, must notify the revisions to that Office. (4) Any notification under sub-paragraph (3) must be given within whatever period is specified by the Office of Rail Regulation when notifying the Secretary of State or the Scottish Ministers in accordance with sub-paragraph (1). (5) Where the Office of Rail Regulation has already given a notification under this paragraph, it is required to give a further notification under this paragraph only if— (a) information provided to it has been revised in response to its notification; and (b) it has not previously given a notification in respect of an earlier revision of that information. (1H) (1) The Office of Rail Regulation must conduct an access charges review in the manner that it considers is most likely to secure that the implementation of the review will make the best and most practicable contribution to the achievement of— (a) what the Secretary of State wants to be achieved by railway activities in Great Britain as a whole; and (b) what the Scottish Ministers want to be achieved by Scottish railway activities. (2) Where in the case of an access charges review the Office of Rail Regulation considers (notwithstanding any notification or revision under paragraph 1F or 1G) that the public financial resources that are or are likely to become available will be inadequate to secure the achievement of, as the case may be— (a) everything that the Secretary of State wants to be achieved, (b) everything that the Scottish Ministers want to be achieved, or (c) everything that both the Secretary of State and the Scottish Ministers want to be achieved, it is to be for that Office to determine, for the purposes of the review, how much of what is wanted should be achieved using (but only for the purposes for which they may be applied) all the public financial resources that it considers are or are likely to be available. (3) In conducting an access charges review the Office of Rail Regulation must have regard to the consequences of compliance by a facility owner who is a party to the access agreement in question with any terms— (a) of that agreement, or (b) of any other access agreement to which that facility owner is a party, that it considers are relevant to a matter notified under paragraph 1G (including, in particular, a term requiring the facility owner to pay compensation or to take mitigatory measures). (4) In considering the matters mentioned in paragraph 1A(3), the Office of Rail Regulation must have regard to any suggestion made under paragraph 1E, and to any revision of that suggestion. (5) For the purposes of this paragraph— (a) expressions used in this paragraph and in paragraph 1D have the same meanings in this paragraph as in that; (b) what the Secretary of State or the Scottish Ministers want must be determined in every case in accordance with the information provided in that case under paragraph 1D, and with any revisions notified under paragraph 1F(3)(b) or 1G(3)(b); and (c) the Office of Rail Regulation must have regard to the financial information so provided and revised whenever considering what is likely to make the best and most practicable contribution to the achievement of what the Secretary of State or the Scottish Ministers want.

Repeal of paragraph 3

3

Paragraph 3 (which provides for consideration of when the next review should be undertaken) shall cease to have effect.

Implementation notice

4

(1) In paragraph 4 (review notice), after sub-paragraph (2) insert—

(2A) Before giving a review notice specifying modifications of a linked licence that are proposed for purposes connected with securing— (a) what the Secretary of State has informed the Office of Rail Regulation he wants to be achieved by any railway activities, or (b) what the Scottish Ministers have informed that Office they want to be achieved by any such activities, that Office must consult the Secretary of State or (as the case may be) those Ministers.

(2) In sub-paragraph (4) of that paragraph, before paragraph (a) insert—

(za) if the Secretary of State was given notice of the review under paragraph 1C, the Secretary of State; (zb) if the Scottish Ministers were given notice of the review under that paragraph, those Ministers; (zc) the Treasury;

Termination notice

5

In paragraph 6(3) (service of termination notice), before paragraph (a) insert—

(za) if the Secretary of State was given notice of the review under paragraph 1C, the Secretary of State; (zb) if the Scottish Ministers were given notice of the review under that paragraph, those Ministers;

New review notice following objections

6

In paragraph 8 (new review notices and references to Competition Competition), after sub-paragraph (4) insert—

(4A) Paragraph 1H applies to the making of any determination by the Office of Rail Regulation of what should be included in a new review notice to be given under this paragraph as it applies to the conduct of an access charges review.

Information to be provided to Competition Commission in connection with reference

7

(1) In paragraph 9 (reference to Competition Commission), after sub-paragraph (6) insert—

(6A) A reference to the Competition Commission under this paragraph must be accompanied by— (a) any information which in the case in question was provided to the Office of Rail Regulation by the Secretary of State or the Scottish Ministers under paragraph 1D; (b) any information to which he or they referred in discharging the obligation imposed by that paragraph; (c) any suggestion which in that case was made under paragraph 1E; and (d) any revision of anything falling within paragraph (a) to (c) which has been notified to that Office under paragraph 1F or 1G.

(2) In sub-paragraph (7) of that paragraph, after the words “Competition Commission”, in the second place where they occur, insert “ (in addition to the information and revisions mentioned in sub-paragraph (6A)) ”.

(3) In sub-paragraph (8) of that paragraph, for “sub-paragraph” substitute “ sub-paragraphs (6A) and ”.

(4) In sub-paragraph (9) of that paragraph (matters to be taken into account in assessing public interest), at the end insert “ and to the information, suggestions and revisions mentioned in sub-paragraph (6A) ”.

Noticed of proposed relevant changes following Competition Commission report

8

(1) In paragraph 12 (changes following report), after sub-paragraph (4) insert—

(4A) Where (after considering any representations and objections which are duly made and not withdrawn) the Office of Rail Regulation proposes to make relevant changes under this paragraph, it must give a notice to the relevant authorities which— (a) sets out everything that would have to be included in a notice under sub-paragraph (5) with respect to the proposed changes; (b) specifies a period within which the Secretary of State, the Scottish Ministers or each of them has the opportunity of revising, in the light of those proposals, any information provided under paragraph 1D. (4B) If in consequence of any revision of that information that is notified to the Office of Rail Regulation within the period specified in that notice, that Office decides to modify its proposals, it must— (a) give a new notice with respect to the modified proposals under sub-paragraph (3); and (b) comply again with sub-paragraph (4A) and this sub-paragraph before giving notice of the modified proposals to the Competition Commission. (4C) The relevant authorities for the purposes of sub-paragraph (4A) are each of the following— (a) where the Secretary of State was given notice of the review under paragraph 1C, the Secretary of State; (b) where the Scottish Ministers were given notice of the review under that paragraph, those Ministers; and (c) in each of those cases, the Treasury.

(2) In sub-paragraph (5) of that paragraph, after “withdrawn” insert “ and any revisions of information provided under paragraph 1D that were notified within the period specified under sub-paragraph (4A) ”.

(3) After that sub-paragraph insert—

(5A) A notice must not be given under sub-paragraph (5) before the end of the period specified in the most recent notice given in the case in question under sub-paragraph (4A) as the period during which the Secretary of State, the Scottish Ministers or each of them has the opportunity of revising information provided under paragraph 1D.

(4) In sub-paragraph (6) of that paragraph (information to accompany notice sent to Competition Commission), at the end insert “ and a copy of any revisions of information provided under paragraph 1D that have been notified within the period specified in the notice under sub-paragraph (4A) ”.

(5) In sub-paragraph (10) of that paragraph, for the words from “to the Authority” onwards substitute—

(a) where the Secretary of State was given notice of the review under paragraph 1C, to the Secretary of State; and (b) where the Scottish Ministers were given notice of the review under that paragraph, to those Ministers.

Notice of decisions by Competition Commission

9

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