Railways Bill

House of Commons

Session 2004 - 05
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Railways Bill

Railways Bill
Schedule 2 — Transfer schemes
77

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
5
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)
10
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
15
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
20
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
25
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
30
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
35
(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
40
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
45
(b)
a proposed transferee,

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Schedule 2 — Transfer schemes
78


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
5
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
10
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
15
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
20
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
25
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.
30
      (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
35
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
40
(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
45
(b)
in Scotland, the Court of Session.

Railways Bill
Schedule 3 — Transfer of safety functions
79

Interpretation
12    (1)
In this Schedule—
“enactment” includes an enactment comprised in an Act of the Scottish
Parliament;
“transferee”—
5
(a)
in relation to a scheme, means a person to whom property,
rights or liabilities are transferred in accordance with the
scheme; and
(b)
in relation to particular property, rights or liabilities transferred
or created in accordance with a scheme, means the person to
10
whom that property or those rights or liabilities are transferred
or in whose favour, or in relation to whom, they are created;
“transferor”—
(a)
in relation to a scheme, means the person from whom property,
rights or liabilities are transferred in accordance with the
15
scheme; and
(b)
in 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
20
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 736 of the
Companies Act 1985 (c. 6).
25
      (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
Section 2

Transfer of safety functions
30
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
35
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
40
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;

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Schedule 3 — Transfer of safety functions
80

(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.
5
      (3)
A transport system falls within this sub-paragraph if it is—
(a)
a railway;
(b)
a tramway;
(c)
a trolley vehicle system; or
(d)
a transport system using any other mode of guided transport.
10
      (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 Regulation;
15
(b)
the Health and Safety Commission; and
(c)
such other persons as he considers appropriate.
      (6)
Regulations under sub-paragraph (4) are subject to the negative resolution
procedure.
      (7)
In this paragraph—
20
“guided transport”, “railway”, “tramway”, “trolley vehicle system” 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;
25
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).
ORR’s principal railway safety functions
2     (1)
It shall be the general duty of the Office of Rail Regulation—
30
(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 Regulation—
35
(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 Regulation—
40
(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
45

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Schedule 3 — Transfer of safety functions
81

(c)
to make such arrangements as it considers appropriate for securing
that the persons mentioned in sub-paragraph (4)—
(i)
are provided with information and advisory service with
respect to matters relevant to the railway safety purposes;
(ii)
are kept informed about such matters; and
5
(iii)
are adequately advised about them.
      (4)
Those persons are—
(a)
government departments;
(b)
employers;
(c)
employees;
10
(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 Regulation from time to time to
15
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
20
Regulation must consult—
(a)
such government departments, and
(b)
such other persons,

as it considers appropriate.
      (7)
Before—
25
(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
30
Office of Rail 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
35
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
40
(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
45

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Schedule 3 — Transfer of safety functions
82

(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
5
4     (1)
The Office of Rail Regulation 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.
10
      (2)
The Office of Rail Regulation 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
15
Rail Regulation 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 Regulation may, to such extent as the Secretary of State
may determine, defray the other costs (if any) of—
20
(a)
an investigation under this paragraph; or
(b)
the making of a special report following such an investigation.
      (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
25
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
30
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
35
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
Regulation under paragraph 4.
      (3)
If —
(a)
the person to whom the Health and Safety Commission gave the
40
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
45
Regulation under paragraph 4.

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Schedule 3 — Transfer of safety functions
83

      (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 Regulation 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
5
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
10
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 Regulation must pay amounts so accruing after that
time;
15

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
20
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.
25
      (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 Regulation.
30
      (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
35
matters before the commencement of paragraph 4; and
(b)
the Office of Rail Regulation 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
40
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 Regulation in
45
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.