Railways Bill

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Railways Bill

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
63

      (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—
5
“(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—
10
(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
15
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
20
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
25
(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
30
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—
35
(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
40
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

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
64

State where no tenders or tenders appear unsatisfactory) substitute—
“26ZA
No adequate tender for franchise received
(1)
This section applies in the case of an invitation to tender under
section 26 for the provision of services if—
(a)
the appropriate franchising authority receives no tender in
5
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.
10
(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
15
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
20
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
25
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
30
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
35
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
40
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”.
45

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
65

      (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
5
Ministers shall 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;
10

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.”
15
      (5)
Where immediately before the commencement of this paragraph any service
is being provided or secured by the Secretary of State 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
20
(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
25
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.
30
      (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
35
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
40
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
45

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
66

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
5
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
10
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)
15
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—
20
(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
25
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
30
“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
35
agreement,
(ii)
a franchise operator in relation to such an
agreement, or
(iii)
a person under Scottish closure restrictions,

the Scottish Ministers; and
40
(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
45
paragraph (aa)(ii), or
(iii)
a person under closure restrictions that are
not Scottish closure restrictions,

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
67


the Secretary of State;”.
22
In section 56(2A) of the 1993 Act (procedural requirements for section 55
orders), for the words “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.
5
      (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)—
10
(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
15
(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
20
(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 Regulation under
section 57B of the 1993 Act does not affect—
(a)
the validity of any decision to impose a penalty under section 57A;
25
(b)
any determination of the amount of any such penalty;
(c)
the inclusion in a final or provisional order of any requirement to pay
a sum; or
(d)
any determination of the amount of the sum payable in accordance
with such an order.
30
25
In section 57C(3) of the 1993 Act (service of penalty notices), for the words
“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
35
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—
40
(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;
45
(b)
in any other case, as if they were done by or in relation to the Office
of Rail Regulation.

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
68

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—
5
(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
10
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
15
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.
20
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
25
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
30
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
35
“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)”;
40
(b)
after “in the register” insert “(except so far as they are required to be
entered in the register maintained under section 73A below)”;
(c)
in paragraph (e) for “it”, in each place, substitute “he”; and

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
69

(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
5
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,
10
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
15
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—
20
(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—
25
“73A
Keeping of register by the Scottish Ministers
(1)
The Scottish Ministers must maintain a register.
(2)
The register must be kept in such form and at such premises as the
Scottish Ministers determine.
(3)
Subject to subsections (4) and (5) below, the Scottish Ministers must
30
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;
35
(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;
40
(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
45
that section in relation to a description of closures;