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Clause 24: Proposals to discontinue franchised or secured services
116. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when a railway funding authority (RFA) proposes to close all franchised or secured services on a particular line or from a particular station. 'Secured services' are those which an NA has a duty to provide. These are duties that arise under Part 4 of the Bill or where the NA acts as 'operator of last resort' under section 30 of the 1993 Act.
117. The procedure is similar to that for clause 23, as described above.
Clause 25: Proposal to discontinue excluded services
118. This clause sets out the circumstances and procedures under which operators can initiate proposals to discontinue all services on a particular line or from a particular station that have been excluded under clause 38 from the main closure provisions under sections 22 to 24 and designated by order under this clause as being subject to the provisions of this clause. Clause 38 of the Bill gives the Secretary of State and the Scottish Ministers powers to exclude services, networks and stations from the main closure provisions in clauses 22 to 24 and 26 to 31. Orders under this clause and under clause 38 are subject to the negative resolution procedure.
119. Services to which this clause will apply because they were excluded and designated under the equivalent provisions in the 1993 Act are predominantly light rail or metro systems outside London, including Manchester Metrolink and Tyne & Wear Metro.
120. The procedures for closures under this clause are similar to those applicable to those where operators wishing to discontinue non-franchised services as set out in clause 22. The operator must not discontinue the services before the ORR has issued a "closure ratification notice" as set out in clause 32. However, there is no duty on the national authority to secure the subsequent provision of an excluded service where the ORR issues a closure non-ratification notice.
121. This clause also excludes from the main closure provisions in clauses 22 to 24 certain London services that have been designated by an order by the Secretary of State (subject to the negative resolution procedure under clause 38). These are services that are provided by Transport for London or are wholly within Greater London and designated by the Secretary of State by an order under this clause. The Secretary of State may also designate by order under this clause such services as subject to the closure procedures set out in Schedule 8. The orders under this clause are subject to the negative resolution procedure.
Discontinuance of operation of passenger network
Clause 26: Proposal by operator to close passenger networks
122. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when an operator proposes to discontinue all or part of their passenger network. The procedures are similar to those for operators wishing to discontinue non- franchised services set out in clause 22. This clause applies to Network Rail's network.
Clause 27: Proposal by funding authority to close passenger network
123. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when an RFA proposes to close all or part of a passenger network. The procedures are similar to those for RFAs wishing to discontinue non-franchised passenger services set out in clause 23.
Clause 28: Proposal to discontinue operation of secured network
124. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when an RFA proposes closure of all or part of a passenger network that it has a duty to provide, for example pending the outcome of a reference to the ORR. The procedures are similar to those for RFAs wishing to discontinue non-franchised passenger services set out in clause 23.
Discontinuance of use or operation of stations
Clause 29: Proposal by operator to close station
125. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when operators of stations propose to close all or part of those stations. The procedures are similar to those for operators wishing to discontinue non-franchised services set out in clause 22.
Clause 30: Proposal by funding authority to close station
126. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when a RFA can initiate proposals to close all or part of a station. The procedures are similar to those for RFAs wishing to discontinue non-franchised passenger services set out in clause 23.
Clause 31: Proposal to discontinue operation of secured station
127. Subject to specified exceptions, this clause sets out the circumstances and procedures that apply when a RFA can propose closure of all or part of a station it has a duty to provide, for example pending the outcome of a reference to the ORR. The procedures are similar to those for RFAs wishing to discontinue non-franchised passenger services set out in clause 23.
References to the ORR
Clause 32: References to the ORR
128. This clause sets out the information a NA or RFA must provide to the ORR as part of a reference on a closure proposal following a consultation. It also sets out the duties of the ORR in considering a reference.
129. A reference to the ORR can only be made if the body intending to make it is satisfied that the proposal meets the criteria in the guidance provided by the Secretary of State, the Scottish Ministers or NAW or any combination of them, as set out in clause 42.
130. If the ORR is satisfied that the consultation process was flawed or that the proposal does not meet the criteria, it must issue a "closure non-ratification notice" and the closure must not go ahead. If it is not satisfied of either of those things, it must issue a "closure ratification notice". The effect of this is that the ORR must issue a closure ratification notice on the reference made to it, but only where it has fulfilled the duties set out in this clause.
131. Should the NA or RFA decide to implement the closure that the outcome of the reference allowed, then it would need to negotiate separately changes to appropriate franchise or other agreements with the relevant other parties. The outcome of the ORR reference itself does not authorise anything that would contravene such agreements.
Clause 33: Closure requirements
132. This clause sets out the powers of the ORR to impose specific requirements in connection with a closure. If an operator fails to comply with requirements that have been imposed on it, the Secretary of State or the Scottish Ministers may take enforcement action under the 1993 Act. This can be in the form of an order setting out steps that the operator must take or financial penalties. Requirements can also be imposed on any of the railway funding authorities and the Passenger Transport Authority but these requirements are not subject to enforcement action.
Clause 34: Minor modifications
133. This clause sets out the powers of the Secretary of State and the Scottish Ministers to determine that closures of services, network and facilities are 'minor modifications' and so not subject to main closure procedures. Clause 35 describes the closures eligible to be treated as minor modifications. The concept of 'minor modifications' is very similar to that of 'minor closures' in the 1993 Act.
134. Under this section a closure is a minor modification if it has been determined as such or falls within a description that has been so determined. Such a determination can be made only in respect of eligible closures as described in clause 35.
Clause 35: Closures eligible to be treated as minor modifications
135. This clause describes the type of closure proposals that are eligible to be treated as minor modifications and therefore not subject to the closure procedures in clauses 22 to 31. Much of it is based on the descriptions of minor closures in the 1993 Act.
136. It also gives a power to the Secretary of State and the Scottish Ministers to make an order that any other description of closures which are temporary or have only a limited effect on the provision of passenger services should be treated as minor modifications, subject to the negative resolution procedure.
Clause 36: Designation of experimental passenger services
137. This clause sets out the powers of the Secretary of State, the Scottish Ministers as well as the NAW to designate passenger services as 'experimental'. The maximum period for which a service may be designated as "experimental" is five years. A service that is already so designated under the 1993 Act will continue to be so designated until the 5 years expires in their case (or the designation is revoked). Designated experimental services are not covered by the provisions in clauses 22 to 24 to but have a separate and simplified closure procedure as set out in clause 37.
Clause 37: Discontinuance of experimental passenger services
138. This clause sets out the procedures for discontinuing services designated as experimental for franchised and non-franchised services. These procedures involve notice being given that the service is to be discontinued at least six weeks before the service is discontinued.
Clause 38: Services, networks and stations excluded by order
139. This clause gives the Secretary of State and the Scottish Ministers powers to exclude services, networks and stations from the provisions of clauses 22 to 24 and 26 to 31. A similar power for the Secretary of State exists in the 1993 Act. It has been used to exempt light rail, metro and discrete parts of the heavy rail network from the closure provisions. Services that have been excluded by order under this clause may be subject to the closure procedures described in clause 25 if designated by order under clause 25 following the negative resolution procedure.
Clause 39: Quality contracts schemes in connection with service modifications
140. Clause 39 adapts the powers to make quality contracts schemes for local bus services in sections 124 to 134 of the Transport Act 2000. The changes apply in cases where a rail service, or part of a rail service, which is either wholly or primarily in the area of a Passenger Transport Executive (in England) is or is to be discontinued under Part 4, or otherwise reduced (e.g. with fewer stops or lower frequency).
141. Quality contracts schemes under the existing provisions of the 2000 Act are made by local transport authorities, including the Passenger Transport Authorities which control the Passenger Transport Executives, and must be approved by the Secretary of State. They may only be made if they satisfy the conditions in section 124(1) of that Act, one of which is that they must be the only practicable way of implementing policies in the authority's bus strategy.
142. Quality contracts schemes apply to an area. Within that area, they give the authority powers to determine the network, frequency and fares of bus services within the scheme. Any bus services within the area must be provided in accordance with a contract with the local authority, unless the service is excluded from the scheme. The local authority must let contracts by competitive tender to operators, who are granted the exclusive right to operate the service.
143. Subsection (1) provides an alternative set of tests to be met in the context of a scheme made by a Passenger Transport Authority (alone or with another local transport authority) in response to the discontinuance or reduction of a rail service in their area. The remainder of the clause adds definitions or makes consequential amendments to the Transport Act 2000.
Clause 40: Substitute road services
144. This clause gives the Secretary of State, the Scottish Ministers and the NAW the power to secure the provision of substitute bus services if a passenger rail service is temporarily interrupted or has been discontinued.
Supplemental provisions of Part
Clause 41: Proposals by funding authorities
145. This clause sets out the circumstances under which RFAs can initiate closure proposals under clauses 22 to 31. RFAs, except for PTEs , the Mayor and Transport for London, can initiate closure proposals if, and only if:
The effect of this is that RFAs can only initiate closures for which they provide the funding for, either directly or indirectly. PTEs, the Mayor and Transport for London can only propose closures for services, networks or stations wholly within their areas, or for services, networks or stations for which they are the only public funding body.
Clause 42: Closures guidance
146. This clause sets out the duties of the Secretary of State, the Scottish Ministers and the NAW in publishing guidance on assessing closure proposals referred to in clauses 22 to 31. Neither this nor any other clause of the Bill sets out what will be in the guidance, but it is likely to include criteria that are likely to cover economic, financial, environmental and social factors based on those used by the Department for Transport for appraisals in other transport modes.
147. The clause allows for the guidance to include different provisions for different purposes and for different types of closure proposal. This means that the guidance and criteria could be different for, say, operator initiated proposals and RFA initiated ones, as well as smaller and larger proposals.
Clause 43: Exclusion of liability for breach of statutory duty
148. This clause exempts specified persons from liability for breach of statutory duty in certain circumstances. Paragraphs (a), (b), (c) and (d) (to the extent they relate to closure requirements imposed on relevant operators), (e) and (f) of subsection (2) of this clause are based on section 50(2) of the 1993 Act and cover obligations whose breach could lead to a final or interim order under section 55 of the 1993 Act; a breach of such an order would carry liability for breach of statutory duty (see section 57 of that Act). Paragraph (d) (to the extent that it relates to closure requirements imposed on the Secretary of State or the Scottish Ministers) and (g) of subsection (2) of clause 43 are based on section 50(1) of the 1993 Act.
Clause 44: Interpretation of Part 4
149. This contains definitions of terms used in clauses 22 to 43 of the Bill. It also gives a power to the Secretary of State to designate additional bodies as RFAs subject to negative resolution procedure.
Part 5: Further Miscellaneous Provisions
Conduct and accessibility on railways
Clause 45: Bye-laws
150. Clause 45 enables railway operators to make bye-laws, subject to confirmation by the Secretary of State and, where appropriate, the Scottish Ministers, to enable them and the police to control the conduct and behaviour of people using the railways. It also provides a mechanism governing the making of such bye-laws.
151. Subsection (1) defines the specific circumstances which the bye-laws can be made to regulate.
152. Subsection (2) lists some of the specific activities which the bye-laws may regulate including the issue of tickets, fare evasion, obstructing or interfering with the working of the railway, smoking, causing a nuisance, receipt and delivery of goods, and control of bicycles and other vehicles on footways.
153. Subsection (3) gives effect to Schedule 9, which provides the procedure for the making of bye-laws.
154. Subsection (4) ensures that existing bye-laws made by the Strategic Rail Authority continue to have effect until they are revoked.
155. Subsections (5) and (6) provide the Secretary of State with an order making power to revoke or amend bye-laws made by the Strategic Rail Authority and other bye-laws currently in force.
156. Subsection (7) defines the meaning of "railway operator" in the context of the power to make bye-laws under subsection (1)
157. Subsection (8) enables bye-laws to be applied to railway assets operated by a railway operator or rolling stock which a railway operator manages.
Clause 46: Power of Scottish Ministers to make penalty fare regulations
158. Under the terms of Section 130 of the 1993 Act, as amended by the Transport Act 2000, provision is made for the making of regulations connected with the charging of penalty fares on the national rail network. The power to make regulations relating to the amount of a penalty fare is currently a power for the Secretary of State to exercise. Clause 46 makes provision for the Scottish Ministers to also be empowered to make penalty fare regulations in relation to trains and stations used in connection with railway passenger services provided under Scottish franchise agreements, other Scotland-only services or services which have been secured by the Scottish Ministers.
Clause 47: Code of practice for disabled rail users in Scotland
159. Clause 47 provides the Scottish Ministers with the power to prepare (and from time to time revise) a code of practice for protecting the interests of disabled persons in Scotland who are users of railway passenger services or station services. In preparing or revising the Code, the Scottish Ministers are to consult the Disabled Persons Transport Advisory Committee. Where the Scottish Ministers use this power to prepare a code of practice, they must publish the code (as revised from time to time) in such manner as they consider appropriate.
Railway administration orders for companies providing Scottish services
Clause 48: Functions of Scottish Ministers in relation to railway administration
Clause 49: Assistance by Scottish Ministers for companies in railway administration
160. The provision of Sections 59 to 65 of the 1993 Act deal with Railways Administration - a particular system of insolvency for the rail industry based upon the Insolvency Act 1986 but with different purposes, in that it is primarily focused on ensuring that railway services are maintained.
161. Clauses 48 and 49 provide for the Scottish Ministers to be able to exercise functions in relation to the railways administration of a franchise operator in relation to a Scottish franchise agreement. They provide the Ministers with power to apply for a railways administration order in respect of such an operator. The Scottish Ministers must also be notified in advance of any proposals to obtain a winding up order, a voluntary winding up resolution or an administration order in respect of a Scottish protected railway company. This advance notification allows time for the Scottish Ministers to apply, if they consider it appropriate to do so, for a railways administration order in respect of that company. If a railways administration order is made, this effectively blocks the proposal for the other procedure from progressing. In addition, the Scottish Ministers must be notified in advance of any proposals by any person to enforce their security over the property of a Scottish protected railway company. This advance notice again allows time for the Scottish Ministers to apply, if they consider it appropriate to do so, for a railways administration order in respect of the company.
162. They also give the Ministers power to provide funding or guarantees in order to achieve the purposes of the railways administration order, and to indemnify the railways administrator appointed under the railways administration order (and persons connected with him). They may set such conditions on the financial assistance they provide as they see fit.
Duties of co-operation etc.
Clause 50: ORR to advise national authorities
163. Clause 50 places a new duty on the ORR to provide information and advice to the Secretary of State, to the Scottish Ministers and to the NAW in connection with their respective railways functions. Subsection (1) requires the ORR to meet the Secretary of State's reasonable requirements for information and advice and other assistance, including in connection with his railway safety functions. Subsection (2) imposes a similar requirement in relation to the Scottish Ministers in connection with their railway functions (which do not include railway safety functions). Subsection (3) imposes a requirement for the ORR to meet the reasonable requirements of the NAW for information and advice on its railway functions (which do not include railway safety functions).
Clause 51: Duty of Passenger Transport Executives to advise Secretary of State
164. Subsection (1) specifies that the Passenger Transport Executives must provide advice to the Secretary of State when he requests it on matters connected to his functions in relation to railways or railway services. It is envisaged that advice could be sought as a useful factor to be considered as part of the Secretary of State's rail planning activities. This provision could be used to request advice on how changes in the local rail network can be made to best reflect local priorities within the resources available. This might include value for money assessments of how resources spent on rail in the PTE's area could be best allocated across all transport modes to support local transport priorities.
165. Subsection (2) provides that Passenger Transport Executives do not have to comply with a request outlined in subsection (1) if it would impose an unreasonable administrative burden.
166. Subsection (3) allows that in determining what is an unreasonable administrative burden other requests for advice made under the provisions of this section should be taken into account. This means that, although an individual request for advice might not constitute an unreasonable burden, if that request is made alongside a large number of other requests, they could in totality be seen to represent an unreasonable burden.
167. Subsection (4) defines the Secretary of State's functions in relation to railways or railway services and provides that in relation to this section these functions do not include those relating to rail safety.
Part 6: General and Supplemental
Clause 52: Taxation
168. Clause 52, together with Schedule 10, makes provision for the consequences for taxation of the various transfers under the transfer schemes for which the Bill provides.
Clause 53: Further amendments of the 1993 Act
169. Clause 53(1) extends the scope of the Secretary of State's powers under Sections 118 and 119 of the 1993 Act. It amends the 1993 Act so that for the purposes of those sections, the term railway is deemed to have its "wider meaning". This term is defined by section 81(2) of the 1993 Act and covers a railway, tramway or transport system which uses another mode of guided transport but which is not a trolley vehicle system. The terms "guided transport", "railway", "tramway" and "trolley vehicle system" are defined by section 67(1) of the Transport and Works Act 1992. Section 118 provides a power for the Secretary of State to give directions in relation to the control of railways in times of hostilities, severe international tension or great national emergency. Section 119 provides a power to the Secretary of State to give instructions to owners and operators of railway assets and providers of railway services for the purposes of ensuring that relevant assets, or persons or property on or in such assets, are protected against acts of violence.
Clause 54: Expenses etc.
170. Clause 54 makes provision for money to be provided by Parliament to meet costs attributable to the Bill. It also provides that sums received by the Secretary of State in relation to:
will be paid into the Consolidated Fund.
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