Railways Bill

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Railways Bill

Railways Bill
Part 6 — General and supplemental
56

55
Powers exercisable by statutory instrument
(1)
Every power conferred by this Act on the Secretary of State or the Scottish
Ministers to make an order or regulations is a power exercisable by statutory
instrument.
(2)
Where—
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(a)
this Act provides for an order or regulations to be subject to the
negative resolution procedure, and
(b)
a draft of the order or regulations is not required, in accordance with
subsection (4) or any other enactment, to have been laid before
Parliament and approved by a resolution of each House, or by a
10
resolution of the House of Commons or of the Scottish Parliament,

the statutory instrument containing the order or regulations shall be subject to
annulment in pursuance of a relevant resolution.
(3)
In subsection (2) “a relevant resolution”—
(a)
in relation to an order or regulations made by the Secretary of State,
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means a resolution of either House of Parliament; and
(b)
in relation to an order or regulations made by the Scottish Ministers,
means a resolution of the Scottish Parliament.
(4)
Where this Act specifies that a power to make provision of a particular
description by order is subject to the affirmative resolution procedure, no order
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may be made containing provision of that description (with or without other
provision) unless a draft of the order has been—
(a)
laid before Parliament; and
(b)
approved by a resolution of each House.
(5)
Subject to subsection (6), every power under this Act of the Secretary of State
25
or Scottish Ministers to make an order or regulations includes power—
(a)
to make different provision for different cases (including different
provision in respect of different areas);
(b)
to make provision subject to such exemptions and exceptions as the
person exercising the power thinks fit; and
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(c)
to make such incidental, supplemental, consequential and transitional
provision as that person thinks fit.
(6)
Subsection (5) does not apply to the power of the Secretary of State to make an
order under section 59(2).
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Meaning of “Wales-only service” and “Welsh service”
35
(1)
In this Act—
“Wales-only service” means a railway passenger service which—
(a)
starts and ends in Wales and does not make any other
scheduled calls outside Wales; and
(b)
has not been excluded from this definition by an order made by
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the Secretary of State;
“Welsh service” means a railway passenger service which starts in Wales,
ends in Wales or otherwise makes at least one scheduled call in Wales.
(2)
Before making an order for the purposes of paragraph (b) of the definition of
“Wales-only service”, the Secretary of State must consult the National
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Assembly for Wales.

Railways Bill
Part 6 — General and supplemental
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(3)
An order for those purposes is subject to the negative resolution procedure.
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General interpretation
(1)
In this Act—
“the 1993 Act” means the Railways Act 1993 (c. 43);
“the 2000 Act” means the Transport Act 2000 (c. 38);
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“contravention” includes a failure to comply and cognate expressions are
to be construed accordingly;
“Wales-only service” and “Welsh service” have the meanings given by
section 56.
(2)
An expression which is given a meaning by any provision of the 1993 Act for
10
the purpose either of that Act or of Part 1 of it has the same meaning in this Act
as in that Act or (as the case may be) that Part.
(3)
In this Act a reference to a Passenger Transport Authority, to a Passenger
Transport Executive or to a passenger transport area is a reference to the
authority, executive or area which is such an Authority, Executive or area for
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the purposes of Part 2 of the Transport Act 1968 (c. 73).
(4)
For the purposes of this Act a company is wholly owned by a person at any
time when it has no members other than one or more persons falling within the
following paragraphs—
(a)
that person;
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(b)
a company which is wholly owned by that person;
(c)
a person acting on behalf of that person or of such a company.
(5)
For the purposes of this Act a company is jointly owned by two or more
persons (“the relevant persons”) at any time when (without being wholly
owned by a person) it has no members other than two or more persons falling
25
within the following paragraphs—
(a)
the relevant persons;
(b)
a company which is jointly owned by two or more of the relevant
persons or which is wholly owned by one of them;
(c)
a person acting on behalf of one or more of the relevant persons or of
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such a company.
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Consequential amendments and repeals
(1)
Schedule 12 (which contains consequential and minor amendments) has effect.
(2)
The provisions in Part 1 of Schedule 13 (which include some that are spent) are
repealed to the extent shown in the second column of that Part.
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(3)
Those repeals have effect subject to the savings in Part 2 of that Schedule.
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Short title, commencement and extent
(1)
This Act may be cited as the Railways Act 2005.
(2)
This Act (apart from this section and section 55(1)) shall come into force on
such day as the Secretary of State by order appoints; and different days may be
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appointed for different purposes.

Railways Bill
Part 6 — General and supplemental
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(3)
The Secretary of State may by order make such transitional provisions and
savings in connection with the bringing into force of—
(a)
Part 4 of this Act, or
(b)
the repeal of sections 37 to 49 of the 1993 Act or of Schedule 5 to that Act
(closures),
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as he thinks fit.
(4)
An order containing provision made by virtue of subsection (3) is subject to the
negative resolution procedure.
(5)
The following provisions of this Act extend to England and Wales only—
(a)
section 13;
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(b)
section 39; and
(c)
section 51.
(6)
This Act does not extend to Northern Ireland.

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
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Schedules
Schedule 1
Section 1

Transfer etc. of functions of the Strategic Rail Authority
Part 1
Transfer and abolition of functions
5
Transfer to ORR of consumer protection and other functions relating to licensing
1     (1)
In section 7 of the 1993 Act—
(a)
in subsections (1) and (3) (consultation with SRA about exemptions),
omit “and the Authority”; and
(b)
subsections (5A), (6A) and (8A) (consumer protection conditions)
10
shall cease to have effect.
      (2)
In subsection (9) of that section, for “subsections (6) and (6A)” substitute
“subsection (6)”.
2
Section 7A of the 1993 Act (consumer protection conditions) shall cease to
have effect.
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3     (1)
In section 8 of the 1993 Act (licences), in subsection (1)—
(a)
in paragraph (a), omit “and the Authority”;
(b)
in paragraph (b), omit “given after consultation with the Authority”.
      (2)
In subsection (2) of that section, paragraph (a) shall cease to have effect.
      (3)
In subsection (6) of that section (consent required for surrender of licence),
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for “and the Authority consent” substitute “consents”.
      (4)
In subsection (7) of that section—
(a)
in paragraph (a), omit “, to the Authority”; and
(b)
in paragraph (b), for “Authority” substitute “Secretary of State”.
      (5)
In subsection (8) of that section, omit “and the Authority”.
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4
In section 11 of the 1993 Act (assignment of licences)—
(a)
in subsection (2)(b), omit “and the Authority”;
(b)
in subsection (4), omit “or persons”.
5     (1)
In section 12 of the 1993 Act, subsections (1A) to (1C) (modification of
consumer protection conditions) shall cease to have effect.
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      (2)
In subsection (2) of that section, for “of any conditions of a licence that do not
relate to consumer protection” substitute “under this section”.

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
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In section 13 of the 1993 Act (modification references to Competition
Commission)—
(a)
for “the appropriate authority”, wherever occurring, substitute “the
Office of Rail Regulation”; and
(b)
subsections (1A) to (1C) shall cease to have effect.
5
7
In section 13A of the 1993 Act (time limits under section 13), for “the
appropriate authority”, wherever occurring, substitute “the Office of Rail
Regulation”.
8
In section 14 of the 1993 Act (reports on modification references)—
(a)
for “the appropriate authority”, wherever occurring, substitute “the
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Office of Rail Regulation”; and
(b)
subsection (5A) shall cease to have effect.
9
In section 15 of the 1993 Act (modification following report)—
(a)
subsections (1B) and (3A) (reports to the SRA) shall cease to have
effect;
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(b)
in subsections (2), (4A), (4B), (4C) and (4D), omit “or Authority”
wherever occurring; and
(c)
in subsection (4), omit “or (3A)” and “or the Authority”.
10    (1)
This paragraph applies to things done under or for the purposes of any
provision of sections 13 to 15C of the 1993 Act (modification of licences) so
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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, as if done by or in relation to the Office of Rail Regulation.
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Transfers relating to the provision, improvement or development of railway facilities
11    (1)
In sections 16A, 16C(3), 16D, 16E(2)(a), 16F(3)(a) and 16G of the 1993 Act
(directions by Office of Rail Regulation, on applications made by or with the
consent of the SRA, to provide, improve or develop railway facilities), for
“Authority”, wherever occurring, substitute “appropriate facilities
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authority”.
      (2)
In section 16A of that Act, in subsection (3), for “Authority’s consent”
substitute “consent of the appropriate facilities authority”.
      (3)
In that section, after that subsection insert—
“(3A)
In this section and sections 16B to 16G below ‘the appropriate
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facilities authority’—
(a)
in relation to facilities in Scotland, means the Scottish
Ministers; and
(b)
in relation to any other facilities, means the Secretary of
State.”
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      (4)
In section 16B(1) and (4) of that Act (exemptions of facilities from section
16A), for “Secretary of State”, in each place, substitute, “appropriate facilities
authority”.

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
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      (5)
In section 16B of that Act, after subsection (6) insert—
“(7)
A statutory instrument containing an order made under this section
by the Scottish Ministers shall be subject to annulment in pursuance
of a resolution of the Scottish Parliament.”
      (6)
An exemption granted under subsection (1) of section 16B of that Act before
5
the commencement of this paragraph—
(a)
which is in force at the time of the commencement of this paragraph
or is to come into force after that time, and
(b)
is contained in an order the power to make which is exercisable after
that time by the Scottish Ministers,
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is to have effect after that time as if contained in an order made by those
Ministers which is not subject to subsection (7) of that section.
Transfer of functions relating to access agreements
12    (1)
In sections 17 to 19 of the 1993 Act (access agreements) except in sections
17(4) and 19(7), for “the Authority”, wherever occurring, substitute “the
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Secretary of State”.
      (2)
In each of sections 17(4) and 19(7) (references to operating on behalf of
SRA)—
(a)
for “Authority”, where first occurring, substitute “Secretary of State”;
(b)
for “Authority”, in the second place, substitute “Secretary of State or
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the Scottish Ministers”; and
(c)
for “Authority”, in the third and fourth places, substitute “him or
them”.
      (3)
In section 18(6A)(b) of that Act, for “its” substitute “his”.
Transfer of functions relating to franchise agreements
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13    (1)
In section 23 of the 1993 Act (passenger services to be subject to franchise
agreements), in subsections (1) and (2), for “Authority”, wherever occurring,
substitute “appropriate designating authority”.
      (2)
After subsection (2) of that section insert—
“(2ZA)
Where the Scottish Ministers designate Scotland-only services, they
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may also designate cross-border services which—
(a)
they consider should be provided under the same franchise
agreement as particular Scotland-only services or a particular
class of them; and
(b)
are not exempt from designation under subsection (1) by
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virtue of section 24.
(2ZB)
Nothing in this section requires the Secretary of State to designate a
cross-border service already designated by the Scottish Ministers.
(2ZC)
Before the Secretary of State or the Scottish Ministers designate a
cross-border service he or they must consult the other.”
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      (3)
Subsection (2B) of that section (publication of designations etc.) shall cease
to have effect.
      (4)
In subsection (3) of that section—

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
62

(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
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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,
10
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,”.
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      (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
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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.
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      (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—
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“(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”.
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      (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.”
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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”.
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