Railways Bill

House of Commons

Session 2004 - 05
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Other Bills before Parliament

Railways Bill

Railways Bill
Schedule 4 — Reviews by ORR of access charges and licence conditions
88

Interpretation
14    (1)
In this Schedule—
“the 1974 Act” means the Health and Safety at Work etc. Act 1974
(c. 37); and
“railway safety purposes” has the meaning given by paragraph 1.
5
      (2)
In this Schedule a reference to the safety functions of the Office of Rail
Regulation is a reference to—
(a)
its functions under this Schedule;
(b)
its functions under the 1974 Act; and
(c)
its other functions so far as carried out for the railway safety
10
purposes.
      (3)
In section 53(1) of the 1974 Act (interpretation of Part 1), after the definition
of “prohibition notice” insert—
“‘railway safety purposes’ has the same meaning as in Schedule
3 to the Railways Act 2005;”.
15
Schedule 4
Section 4

Reviews by ORR of access charges and licence conditions
Introductory
1
Schedule 4A to the 1993 Act (review of access charges by ORR) is amended
as follows.
20
Conduct of access charges reviews
2
For paragraph 1 (meaning of access charges review) substitute—
“Application of Schedule
1
This Schedule applies where an access agreement provides, or is
treated as providing, for the Office of Rail Regulation to undertake
25
reviews of the terms of that agreement as to—
(a)
the amounts payable under the agreement by one of the
parties to the other; and
(b)
the times at which, and the manner in which, those
amounts are payable.
30
Scope of review
1A    (1)
Where the Office of Rail Regulation undertakes such a review, it
must, at the same time, review the conditions of every linked
licence both—
(a)
in relation to the matters mentioned in paragraph 1(a) and
35
(b); and
(b)
in relation to the matters about which that Office is
provided with information under paragraph 1D.

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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      (2)
A review by that Office of both—
(a)
the terms of an access agreement as to the matters
mentioned in paragraph 1(a) and (b), and
(b)
the conditions of a linked licence,

is referred to in this Schedule as an access charges review.
5
      (3)
An access charges review must include a consideration of—
(a)
the time at which the next access charges review is to be
undertaken in relation to both the access agreement in
question and every linked licence; and
(b)
the circumstances in which it would be appropriate to
10
undertake such a review before that time.
      (4)
In this Schedule ‘linked licence’, in relation to an access
agreement, means a licence of which the holder is—
(a)
the facility owner, or installation owner, who is a party to
the agreement; or
15
(b)
a person other than that owner who has an estate or
interest in the railway facility or network installation to
which the agreement relates or who has a right over it.
Response to request to carry out review
1B
Where—
20
(a)
the Secretary of State or the Scottish Ministers suggest to
the Office of Rail Regulation that an access charges review
should be carried out in any case, but
(b)
that Office decides not to carry out the suggested review,

that Office must provide the Secretary of State or Scottish
25
Ministers with its reasons for that decision.
Notice of access charges review
1C    (1)
Before beginning an access charges review, the Office of Rail
Regulation must give notice of its proposal to undertake the
review to each of the following—
30
(a)
the Secretary of State;
(b)
the Scottish Ministers;
(c)
the Treasury;
(d)
the parties to the access agreement in question; and
(e)
such other persons as that Office considers appropriate.
35
      (2)
No notice is required to be given under sub-paragraph (1) to the
Secretary of State or the Scottish Ministers—
(a)
in the case of the Secretary of State, if the facility or
installation to which the relevant agreement relates is
situated wholly in Scotland; or
40
(b)
in the case of the Scottish Ministers, if the facility or
installation to which the relevant agreement relates is
situated wholly in England and Wales.
      (3)
A notice under this paragraph must set out—

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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(a)
the period to which the Office of Rail Regulation expects
the review to relate (‘the review period’);
(b)
the date by which the Secretary of State, the Scottish
Ministers or (as the case may be) each of them needs to
provide the information that has to be provided under
5
paragraph 1D; and
(c)
any conditions which that Office requires to be satisfied in
the period ending with that date if it is to proceed with the
review.
      (4)
The period set out under sub-paragraph (3)(a) must be the one
10
which—
(a)
begins with the time as from which the Office of Rail
Regulation expects that any changes resulting from the
review would fall to be implemented; and
(b)
ends with the time as from which it thinks it likely (in the
15
absence of special circumstances making an earlier review
appropriate) that any changes resulting from the next
access review in relation to the same agreement and licence
would fall to be implemented.
      (5)
The date set out under sub-paragraph (3)(b) must be not less than
20
the following period after the date of the notice—
(a)
in a case which the Office of Rail Regulation is satisfied is
a case of urgency, four weeks; and
(b)
in any other case, three months.
      (6)
Before setting out a date under sub-paragraph (3)(b) that is less
25
than three months after the date of the notice, the Office of Rail
Regulation must consult each of the persons to whom the notice is
to be given.
Duty to notify ORR about desired outputs and finances
1D    (1)
Where a notice under paragraph 1C is given to the Secretary of
30
State, he must provide the Office of Rail Regulation with—
(a)
information about what he wants to be achieved by
railway activities in Great Britain as a whole during the
review period; and
(b)
such information as it is reasonable for him to provide
35
about the public financial resources that are or are likely to
become available to be applied during the review period
for purposes that contribute (directly or indirectly)
towards the achievement of what he wants.
      (2)
Where a notice under paragraph 1C is given to the Scottish
40
Ministers (whether instead of or as well as to the Secretary of
State), they must provide the Office of Rail Regulation with—
(a)
information about what they want to be achieved by
Scottish railway activities during the review period; and
(b)
such information as it is reasonable for them to provide
45
about the public financial resources that are or are likely to
become available to be applied during that period for
purposes that contribute (directly or indirectly) towards
the achievement of what they want.

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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      (3)
The information that may be provided as falling within sub-
paragraph (1)(a) or (2)(a) includes objectives and standards to be
achieved in the course of carrying on railway activities.
      (4)
Those objectives and standards may include, in particular,
objectives and standards with respect to any of the following
5
matters—
(a)
the capacity (in terms of types and numbers of trains) of
networks;
(b)
the frequency of railway passenger services;
(c)
journey times;
10
(d)
reliability of railway services (both in terms of punctuality
and otherwise);
(e)
the taking of measures to prevent or mitigate
overcrowding;
(f)
levels and types of fares;
15
(g)
the quality of information provided to passengers;
(h)
the accessibility of railway services to people with
disabilities;
(i)
the carrying out of major projects to improve railway
services;
20
(j)
the protection of persons from dangers arising from the
operation of railways.
      (5)
In a case where information is also required to be provided by the
Scottish Ministers, the information that is required to be provided
by the Secretary of State does not include—
25
(a)
any information about what he wants to be achieved by
Scottish railway activities not relating to cross-border
services; or
(b)
information about any public financial resources so far as
they appear to him to be available, or to be likely to become
30
available, to be applied for purposes relating only to such
activities.
      (6)
An obligation of the Secretary of State or the Scottish Ministers to
provide information under this paragraph—
(a)
must be discharged before the date set out in the notice
35
given under paragraph 1C or, if a later date is fixed under
sub-paragraph (7), by that later date; but
(b)
may be discharged by a notification that refers that Office
to information previously provided under this paragraph.
      (7)
The Office of Rail Regulation may at any time, by notice to each of
40
the persons to whom the notice under paragraph 1C was given, fix
a later date for the provision of information under this paragraph.
      (8)
Neither—
(a)
the Secretary of State, nor
(b)
the Scottish Ministers,
45

are required to provide information for the purposes of a review
at any time after a decision has been made by the Office of Rail
Regulation not to proceed with the review because of an actual or

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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expected failure of the conditions set out under paragraph 1C(3)(c)
to be satisfied.
      (9)
In this paragraph ‘railway activities’ means activities consisting
in, or involving, any of the following—
(a)
providing railway services;
5
(b)
making available railway facilities;
(c)
making use of such facilities;
(d)
using railway assets;
(e)
allowing others to use such assets.
     (10)
In this paragraph ‘Scottish railway activities’ means activities
10
which are railway activities by reference only to—
(a)
railway services which begin and end in Scotland;
(b)
railway services in relation to which financial assistance is
provided by the Scottish Ministers and which (without
falling within paragraph (a)) begin or end in Scotland;
15
(c)
railway facilities that are situated in Scotland; or
(d)
railway assets so situated.
     (11)
In this paragraph ‘public financial resources’ means any of the
following—
(a)
money charged on and payable out of the Consolidated
20
Fund;
(b)
money provided by Parliament;
(c)
money payable out of the Scottish Consolidated Fund.
Suggestions about future reviews
1E
Where the Secretary of State or the Scottish Ministers provide the
25
Office of Rail Regulation with information under paragraph 1D,
he or they may also, at the same time, make a suggestion to that
Office setting out his or their opinion about—
(a)
when the next access charges review should be undertaken
in relation to both the access agreement in question and
30
every linked licence; and
(b)
the circumstances in which it would be appropriate to
undertake such a review before that time.
Revision of outputs and financial information
1F    (1)
If, at any time in the course of an access charges review, it appears
35
to the Office of Rail Regulation that—
(a)
the information that has been provided to it by the
Secretary of State or the Scottish Ministers under
paragraph 1D, or
(b)
the information, taking it all together, that has been so
40
provided by the Secretary of State and the Scottish
Ministers,

shows that the public financial resources that are or are likely to
become available will be inadequate to secure the achievement of
what he or they, or both of them, want to be achieved, that Office
45

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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must so notify the Secretary of State or the Scottish Ministers or (as
the case may be) each of them.
      (2)
The Office of Rail Regulation must send a copy of every
notification under sub-paragraph (1) to the Treasury.
      (3)
On being notified under sub-paragraph (1), the Secretary of State
5
or the Scottish Ministers or (as the case may be) each of them—
(a)
may revise any information provided to the Office of Rail
Regulation, together with any suggestion made under
paragraph 1E; and
(b)
if the information or such a suggestion is revised, must
10
notify the revisions to that Office.
      (4)
Any notification under sub-paragraph (3) must be given within
whatever period is specified by the Office of Rail Regulation when
notifying the Secretary of State or Scottish Ministers in accordance
with sub-paragraph (1).
15
      (5)
Where the Office of Rail Regulation has already given a
notification under this paragraph with respect to any information,
it is required to give a further notification under this paragraph
with respect to that information, or any revision of it, only if—
(a)
a revision has been made in response to its previous
20
notification; and
(b)
it has not previously given a notification in respect of an
earlier revision of the information.
Duty to have regard to information about desired outputs and finances etc
1G    (1)
The Office of Rail Regulation must conduct an access charges
25
review in the manner that it considers is most likely to secure that
the implementation of the review will make the best and most
practicable contribution to the achievement of—
(a)
what the Secretary of State wants to be achieved by railway
activities in Great Britain as a whole; and
30
(b)
what the Scottish Ministers want to be achieved by Scottish
railway activities.
      (2)
Where in the case of an access charges review the Office of Rail
Regulation considers (notwithstanding any notification or
revision under paragraph 1F) that the public financial resources
35
that are or are likely to become available will be inadequate to
secure the achievement of, as the case may be—
(a)
everything that the Secretary of State wants to be achieved,
(b)
everything that the Scottish Ministers want to be achieved,
or
40
(c)
everything that both the Secretary of State and the Scottish
Ministers want to be achieved,

it is to be for that Office to determine, for the purposes of the
review, how much of what is wanted should be achieved using
(but only for the purposes for which they may be applied) all the
45
public financial resources that it considers are or are likely to be
available.

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Schedule 4 — Reviews by ORR of access charges and licence conditions
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      (3)
In considering the matters mentioned in paragraph 1A(3), the
Office of Rail Regulation must have regard to any suggestion
made under paragraph 1E, and to any revision of that suggestion.
      (4)
For the purposes of this paragraph—
(a)
expressions used in this paragraph and in paragraph 1D
5
have the same meanings in this paragraph as in that;
(b)
what the Secretary of State or the Scottish Ministers want
must be determined in every case in accordance with the
information provided in that case under paragraph 1D,
and with any revisions notified under paragraph 1F(3)(b);
10
and
(c)
the Office of Rail Regulation must have regard to the
financial information so provided and revised whenever
considering what is likely to make the best and most
practicable contribution to the achievement of what the
15
Secretary of State or the Scottish Ministers want.”
Repeal of paragraph 3
3
Paragraph 3 (which provides for consideration of when the next review
should be undertaken) shall cease to have effect.
Implementation notice
20
4     (1)
In paragraph 4 (review notice), after sub-paragraph (2) insert—
   “(2A)
Before giving a review notice specifying modifications of a linked
licence that are proposed for purposes connected with securing—
(a)
what the Secretary of State has informed the Office of Rail
Regulation he wants to be achieved by any railway
25
activities, or
(b)
what the Scottish Ministers have informed that Office they
want to be achieved by any such activities,

that Office must consult the Secretary of State or (as the case may
be) those Ministers.”
30
      (2)
In sub-paragraph (4) of that paragraph, before paragraph (a) insert—
“(za)
if the Secretary of State was given notice of the review
under paragraph 1C, the Secretary of State;
(zb)
if the Scottish Ministers were given notice of the review
under that paragraph, those Ministers;
35
(zc)
the Treasury;”.
Termination notice
5
In paragraph 6(3) (service of termination notice), before paragraph (a)
insert—
“(za)
if the Secretary of State was given notice of the review
40
under paragraph 1C, the Secretary of State;
(zb)
if the Scottish Ministers were given notice of the review
under that paragraph, those Ministers;”.