Railways Bill

House of Commons

Session 2004 - 05
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Railways Bill

Railways Bill
Schedule 3 — Transfer of safety functions
81

(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
82

(c)
to make such arrangements as it considers appropriate for securing
that the persons mentioned in sub-paragraph (4)—
(i)
are provided with an 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
83

(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
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      (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.

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Schedule 3 — Transfer of safety functions
85

      (2)
Where the Secretary of State considers that any of the statutory or other
functions of—
(a)
a government department, or
(b)
any other public authority,

can appropriately be carried out by the Office of Rail Regulation in
5
connection with the carrying out of its safety functions, he may authorise the
Office and that department or authority to enter into an agreement for that
Office to carry out those functions on behalf of that department or authority.
      (3)
An agreement under this paragraph—
(a)
may include provision for payments to be made to the Office of Rail
10
Regulation for the carrying out of the functions that it is authorised
or required to carry out under the agreement; but
(b)
may not authorise or require the Office of Rail Regulation to carry
out any function consisting in a power to make regulations or other
instruments of a legislative character.
15
Government departments and other public authorities acting as agent of ORR
8     (1)
Where the Office of Rail Regulation considers that any of its safety functions
can appropriately be carried out—
(a)
by a government department, or
(b)
by any other public authority,
20

that Office and the department or authority may enter into an agreement for
the department or authority to carry out those functions on that Office’s
behalf.
      (2)
An agreement under this paragraph may include provision for payments to
be made by the Office of Rail Regulation to a government department or
25
public authority for the carrying out of the functions that it is authorised or
required to carry out under the agreement.
Restrictions on codes of practice by HSC
9     (1)
In subsection (1) of section 16 of the 1974 Act (codes of practice with respect
to the requirements of certain provisions), for “sections 2 to 7 or of health and
30
safety regulations or of any of the existing statutory provisions” substitute
“any of the enactments or instruments mentioned in subsection (1A) below”.
      (2)
After that subsection insert—
“(1A)
Those enactments and instruments are—
(a)
sections 2 to 7 above;
35
(b)
health and safety regulations, except so far as they make
provision exclusively in relation to transport systems falling
within paragraph 1(3) of Schedule 3 to the Railways Act 2005;
and
(c)
the existing statutory provisions that are not such provisions
40
by virtue of section 117(4) of the Railways Act 1993.”
Co-operation with the HSC
10    (1)
It shall be the duty of the Office of Rail Regulation and the Health and Safety
Commission—

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Schedule 3 — Transfer of safety functions
86

(a)
as soon as practicable after the commencement of this paragraph, to
enter into arrangements with each other for securing co-operation
and the exchange of information in connection with the carrying out
of safety functions;
(b)
to maintain and from time to time to review those arrangements; and
5
(c)
to revise them whenever they consider it appropriate to do so.
      (2)
In sub-paragraph (1) “safety functions” means all the functions of the Health
and Safety Commission and of the Health and Safety Executive and the
safety functions of the Office of Rail Regulation.
      (3)
In section 18(5)(b) of the 1974 Act (duty of enforcing authority to act in
10
accordance with guidance of HSC), at the beginning insert “except where
that authority is the Office of Rail Regulation,”.
Information powers corresponding to section 27 of the 1974 Act
11    (1)
The Office of Rail Regulation may serve a notice under this paragraph on
any person for the purpose of obtaining information which that Office needs
15
for the carrying out of its safety functions.
      (2)
A notice under this paragraph is one requiring the person on whom it is
served—
(a)
to provide the Office of Rail Regulation with information about such
matters as may be specified in the notice; and
20
(b)
to do so in the form and manner so specified.
      (3)
The consent of the Secretary of State is required for the service of a notice
under this paragraph.
      (4)
The consents that may be given for the purposes of sub-paragraph (3)
include a general consent relating to notices of a specified description.
25
      (5)
Nothing in the Statistics of Trade Act 1947 (c. 39) is to be construed as
preventing or penalising the disclosure by a Minister of the Crown or
government department to—
(a)
the Office of Rail Regulation,
(b)
a member, officer or employee of that Office, or
30
(c)
a committee established by that Office,

of information falling within sub-paragraph (6) about an undertaking
(within the meaning of that Act).
      (6)
Information about an undertaking falls within this sub-paragraph if it
consists of—
35
(a)
the names and addresses of the persons carrying on the undertaking;
(b)
the nature of the undertaking’s activities;
(c)
the number of persons of different descriptions who work in the
undertaking;
(d)
the addresses or places where activities of the undertaking are or
40
were carried on;
(e)
the nature of the activities carried on there; or
(f)
the number of persons of different descriptions who work or worked
in the undertaking there.

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Schedule 3 — Transfer of safety functions
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      (7)
A person to whom a disclosure that is authorised by sub-paragraph (5) is
made must not use the information except for the purposes of the safety
functions of the Office of Rail Regulation.
      (8)
It is an offence for a person—
(a)
to contravene a requirement imposed by a notice under this
5
paragraph; or
(b)
to use information in contravention of sub-paragraph (7).
      (9)
A person guilty of an offence under sub-paragraph (8) shall be liable—
(a)
on summary conviction, to a fine not exceeding the statutory
maximum;
10
(b)
on conviction on indictment—
(i)
in the case of an offence of contravening a notice, to a fine;
and
(ii)
in the case of an offence of using information in
contravention of sub-paragraph (7), to imprisonment for a
15
term not exceeding two years or to a fine, or to both.
     (10)
Section 52 of the 1974 Act (meaning of “work” and related expressions)
applies for the purposes of this paragraph as it applies for the purposes of
Part 1 of that Act.
Railway safety levy
20
12    (1)
Section 43A of the 1974 Act (railway safety levy) is amended as follows.
      (2)
In subsection (2) (expenses in respect of which levy raised), for paragraphs
(a) and (b) substitute—
“(a)
in respect of activities undertaken by the Office of Rail
Regulation under or by virtue of this Act or Schedule 3 to the
25
Railways Act 2005; or
(b)
in respect of activities in relation to a transport system falling
within paragraph 1(3) of that Schedule that are undertaken
by that Office under or by virtue of any other enactment.”
      (3)
In subsections (5) and (6), for “Commission or the Executive” substitute
30
“Office of Rail Regulation”.
      (4)
In subsection (9), for “to which section 117 of the Railways Act 1993 applies”
substitute “falling within paragraph 1(3) of Schedule 3 to the Railways Act
2005.”
Removal of requirement of consultation with HSC for railway safety regulations
35
13
In section 50 of the 1974 Act (consultation with HSC), after subsection (1)
insert—
“(1A)
Subsection (1) does not apply to the exercise of a power to make
regulations so far as it is exercised—
(a)
for giving effect (with or without modifications) to proposals
40
submitted by the Office of Rail Regulation under paragraph
2(5) of Schedule 3 to the Railways Act 2005; or
(b)
otherwise for or in connection with the railway safety
purposes.”