Railways Bill

House of Commons

Session 2004 - 05
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Railways Bill

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
70

(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
5
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
10
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,
15
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
20
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
25
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
30
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
35
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
40
32    (1)
In section 76 of the 1993 Act (general duties of Rail 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”.
45
      (3)
In subsection (5) of that section, in the words after paragraph (b)—

Railways Bill
Schedule 1 — Transfer etc. of functions of the Strategic Rail Authority
Part 1 — Transfer and abolition of functions
71

(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
5
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
10
(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
15
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
20
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.
25
      (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”.
30
      (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);
35
(b)
section 214 (substitute bus and taxi services); and
(c)
section 219 (power to make bye-laws).

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Schedule 2 — Transfer schemes
72

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—
5
“‘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—
10
“‘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
15
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
20
(b)
so far as they include other services, include only
cross-border services designated by the Scottish
Ministers;”.
Schedule 2
Sections 1 and 12

Transfer schemes
25
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
30
which they are to be transferred; or
(c)
by identifying them by reference to a specified part of such an
undertaking.
      (2)
A scheme comes into force on the date appointed by the scheme.
Property, rights and liabilities that may be transferred
35
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;

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Schedule 2 — Transfer schemes
73

(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;
5
(d)
rights and liabilities under an enactment, Community 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,
10
(b)
no such liability in respect of a contravention of any other
requirement, and
(c)
no such interference with any interest or right,

as there would be, in the case of a transaction apart from this Act, by reason
of a provision falling within sub-paragraph (3).
15
      (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
20
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.
25
      (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.
30
      (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
35
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
40
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
45
that person, of an interest or right in or in relation to property to be
retained by a transferor;

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Schedule 2 — Transfer schemes
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(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
5
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
10
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
15
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
20
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
25
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
30
(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;
35
(b)
for specific performance of a statutory duty under section 45 of the
Court of Session Act 1988 (c. 36); or
(c)
for any other appropriate remedy or relief.
      (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
40
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—

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Schedule 2 — Transfer schemes
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(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.
5
      (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,
10

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
15
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
20
(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—
25
(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
(c)
the acquisition of land for the purpose of the carrying out of such
works.
30
      (3)
In this paragraph “relevant enactment” means any enactment other than—
(a)
the 1993 Act;
(b)
Part 4 of the 2000 Act; or
(c)
this Act.
      (4)
This paragraph does not require a restrictive construction to be given to
35
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
40
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—

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Schedule 2 — Transfer schemes
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(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
5
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
10
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.
15
      (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
20
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.
25
      (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—
30
(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
35
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
40
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
45
industry, that person’s period of employment with the transferee is