|Crossrail Bill - continued||House of Commons|
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Clause 23: Directions specifying matters for purposes of section 22
75. Clause 23(1) enables the Secretary of State, to specify minimum operating levels of which the principal Crossrail passenger services form all or part. This has the effect of determining the nature of the ORR's duty in clause 22(1).
76. Clause 23(2) enables the Secretary of State to specify the extent to which any Crossrail passenger service does not contribute to the specified minimum operating level. It allows the Secretary of State to distinguish between what he sees as the important services which the ORR must facilitate, and those services to which the ORR need not attach special importance.
77. Clause 23(3) and (4) require the Secretary of State to consult. The statutory consultees may have views on the effects of, or necessity for, obliging the ORR to facilitate certain specified services.
78. Clause 23(5) provides how minimum operating levels may be framed. Minimum operating levels may relate to any characteristic of a service, for example its punctuality or the waiting time in between train departures.
79. Clause 23(6) and (7) provide that directions can make different provision for different purposes and they may be varied or revoked. The Secretary of State must publish them.
Clause 24: Other duties of Office of Rail Regulation as to exercise of functions
80. Clause 24 provides that ORR's general duties contained in section 4 of the 1993 Act apply to functions arising under the Bill but with an overriding duty to exercise its functions in a way in a way that does not impede the performance of any development agreement for Crossrail. This duty is, however, subservient to the ORR's general duty as regards railway safety under the Railways Act 2005 and also the duty in Clause 22 to facilitate the operation of the specified principal Crossrail passenger service. In relation to Competition Act functions the ORR has regard to this duty if the OFT could do so.
81. The ORR's Competition Act functions relate to agreements, business practices, or conduct which may have a damaging effect on competition in the United Kingdom. In respect of agreements or conduct relating to the supply of services relating to railways, the ORR exercises powers concurrently with the Office of Fair Trading ("OFT").
82. Clause 24(3) and (4) prevent the overriding duty under subsection (1) from affecting the ORR's Competition Act functions but does not prevent (when it is exercising those functions) the ORR from considering matters relating to development agreements to the same extent as the OFT might.
83. Clause 24(5) provides that in exercising functions under the Bill the ORR shall have regard to the general duties it has in respect of its standard functions (such duties including protecting the interests of rail users and promoting the use of the rail network).
84. Clause 24(6) defines what a development agreement is for the purposes of this clause.
Clause 25: Amending pre-commencement access contracts: construction of Crossrail
85. Clause 25 operates in respect of access contracts entered into prior to the passing of the Act that may be affected by the construction of Crossrail.
86. Clause 25(1) and (2) allow the ORR to direct an amendment to such a contract if it considers the railway facility to which the access contract relates will or may be affected by the construction of Crossrail.
87. Clause 25(3) provides that the ORR must act, and may only act, under the clause so as to secure appropriate provision for the disruption caused by the construction of Crossrail.
88. Clause 25(4) enables the ORR to require the parties to an affected contract to submit their proposals as to what the directions under subsection 1 should require.
89. Clause 25(5) requires the ORR to consult the Secretary of State before issuing directions under subsection (1).
Clause 26: Amending pre-commencement access contracts: principal Crossrail services
90. Clause 26 operates in respect of access contracts entered into prior to the commencement of the Act that may affect the operation of principal Crossrail passenger services.
91. Clause 26(2) provides that once the Secretary of State has specified minimum operating levels under clause 23(1), the ORR must consider contracts that would conflict with the principal Crossrail passenger services from their specified start of operation.
92. Clause 26(3) requires the ORR to report any such perceived conflicts to the Secretary of State.
93. Clause 26(4) provides that the Secretary of State may then object, or make no objection to the perceived conflict.
94. Clause 26(5) requires the ORR to direct the parties to amend the contract or to declare all or part of it void if the Secretary of State has made an objection.
95. Clause 26(6) provides that where the ORR has interfered with a contract under the previous subsection, then it may direct the payment of consequential compensation.
96. Clause 26(7), (8) and (9) enable the Secretary of State to make regulations, by means of a statutory instrument subject to annulment, in relation to the carrying out of ORR actions under subsection (5) and (6).
Clause 27: Terms of, and amending other access contracts because of, Crossrail access contracts
97. Clause 27(1) engages two procedures where a would-be Crossrail passenger service provider applies to the ORR for a direction under section 17 of the 1993 Act in respect of a railway facility relating to the Crossrail network outside the principal Crossrail tunnel. The procedures engaged are in subsections (2) and (6). Under section 17 of the 1993 Act the ORR can direct a facility owner to enter into an access contract (for example, a contract to allow trains to operate on the facility owner's track) with an applicant.
98. Clause 27(2) allows the ORR, in respect of such an application, to direct the amendment of an existing access contract if that would facilitate the operation of principal Crossrail services (identified by reference to operating levels specified by the Secretary of State). Those agreements which the ORR may direct to be amended are, by virtue of clause 27(3), any agreements relating to any railway other than that being constructed as part of the principal Crossrail tunnel.
99. Clause 27(4) provides that the ORR, when making directions under subsection (2), may not require the parties to an affected contract to change the amounts payable under that contract, or the timing of those payments. Such forced changes would not be required in order to facilitate principal Crossrail passenger services.
100. Clause 27(5) provides that where the ORR issues a direction in respect of a contract under subsection (2), it shall consider whether it should review the amount payable and timing of those payments, in accordance with provisions of the 1993 Act.
101. Clause 27(6) is analogous to clause 30(5). It provides that the Secretary of State may give directions to the ORR to include in the proposed contract one or more terms as to the duration of the contract, terms (except in respect of charges or financial matters) which the Secretary of State considers are needed for Crossrail passenger services, or any term in so far as it relates to use of the principal Crossrail tunnel
102. Clause 27(7) allows (but does not require) the Secretary of State, when securing the inclusion of contractual terms under subsection (6), to require the inclusion of terms which have effect for specified, limited, purposes.
103. Clause 27(8), (9), and (10) allow the Secretary of State to make regulations modifying how Schedule 4 to the 1993 Act applies in respect of the application for a direction under section 17. These provisions may apply where the procedures of either subsection (2) or (6) are engaged. Schedule 4 of the 1993 Act provides for how an application for an access contract is treated by the ORR and allows for a facility owner, and persons who would be affected by the entry into of an access contract, to make representations to the ORR. The regulations would be made by means of a statutory instrument subject to annulment.
Clause 28: Post-commencement access contracts: effects of construction of Crossrail
104. Clause 28(1) and (2) affect the ORR's exercise of its powers under section 17 and 18 of the 1993 Act (its powers to control the terms of access contracts), where new access contracts are entered into in respect of railway facilities which may be affected by disruption or alteration caused by the construction of Crossrail. The ORR must exercise its functions to secure appropriate provision in the relevant access contracts for dealing with the disruption and alteration. The ORR secures provisions in access contracts by either directing that they be included in an agreement, or refusing to approve an agreement which omits them.
105. Clause 28(3) provides that where the ORR decides to secure that an access contract contains such provision in respect of Crossrail disruption, the ORR must first invite and consider representations from the Secretary of State before approving or requiring the introduction of a provision which might lead to compensation for disruption being met by the nominated undertaker.
Clause 29: Crossrail access contracts: disapplying requirements for approval
106. Clause 29 provides that section 18 of the 1993 Act (which requires access contracts to have the approval of the ORR) and section 22(1) of the 1993 Act (which deals with the amendment of such contracts) shall not apply to specified Crossrail contracts. These contracts are those specified by order by the Secretary of State, and may only be access contracts under which permission is given to use a railway facility forming or associated with the principal Crossrail tunnel. The Secretary of State must consult the ORR about the terms of any specific contract in respect of which he proposes to make an order. Such an order must be laid before Parliament but is not subject to annulment.
Clause 30: Crossrail-related access contracts: modified requirements for approval
107. Clause 30(1), (2) and (3) require the ORR to notify the Secretary of State of any proposed contract sent to it for approval that permits a passenger service to use part of the Crossrail network outside the principal tunnel. Access contracts for the rail network are generally subject to the approval of the ORR before they are concluded.
108. Clause 30(4) and (5) provide that the Secretary of State may then give directions to the ORR to approve the duration of the contract, or other terms (except in respect of charges or financial matters), or any term in so far as it relates to use of the principal tunnel.
109. Clause 30(7) provides that the ORR may approve the contract without modification but otherwise must wait until the Secretary of State has issued directions or given notice that he is not doing so.
Clause 31: Power of Secretary of State to require entry into access contract
110. Clause 31(1) allows the Secretary of State to direct the owner of a railway facility to enter into an access contract with him, or with any other person of the Secretary of State's choosing, to permit the use of that facility for or in connection with Crossrail passenger services (passenger services that for at least part of their journey make use of all or part of the main Crossrail tunnel).
111. Clause 31(2) applies the interpretative provisions of subsections (6) to (9) of section 17 of the 1993 Act, with modifications, to the interpretation of subsection (1). The modifications cater for the fact that the beneficiary of an access contract granted under subsection (1) may not be akin to an applicant for such a contract.
112. Where the relevant provisions of the 1993 Act would require the ORR's pre-approval of an access contract obtained under subsection (1), clause 31(3) provides that the modified pre-approval mechanisms contained in subsection (4) shall apply.
113. Clause 31(4) provides that, in acting under section 18 of the 1993 Act in respect of such a contract, the Office of Rail Regulation must approve the terms of the proposed contract which relate to the duration of the permission granted, or which (other than in respect of charges or financial matters), are required by the Secretary of State to facilitate the provision of Crossrail passenger services.
114. Clause 31(5) provides that in applying the provisions in section 18 of the 1993 Act which deal with the need for prior approval of access contracts by the ORR, the person with whom the facility owner is required to enter into an access contract is considered as an applicant for certain purposes. It also provides that in respect of the stretch of railway leading from Heathrow to Network Rail's network, section 18 of the 1993 Act (under which access contracts may require approval by the ORR) applies notwithstanding what would otherwise be an exemption under secondary legislation which exists in respect of that track.
Clause 32: Amending existing access contracts: effects of contracts under section 31
115. Clause 32(1), (2) and (3) provides that, following a contract being entered into under clause 31, the ORR may direct parties to access contracts relating to the Crossrail network outside the principal tunnel to make amendments necessary to facilitate the principal Crossrail passenger service.
116. Clause 32 (4) and (5) provide that the ORR cannot amend access charges other than by undertaking an access charges review. An access charges review is an established process under Schedule 4 of the Railways Act 1993 by which the ORR reviews the amounts payable under an access contract and the time and manner in which such payments are made.
117. Clause 32(6), (7) and (8) enable the Secretary of State to make regulations in relation to the carrying out by the ORR of its functions under subsection 2. Such regulations would be subject to annulment by a resolution of either House of Parliament.
Clause 33: Effect on franchise agreements of directions given under section 27 or 32
118. Clause 33(1) applies where a direction is given under clause 27(2) or 32(2) and the amendments made as a result affect the carrying out of a franchise agreement other than one to which Scottish Ministers are party.
119. Clause 33(2) and (3) provide that if the parties to the franchise agreement cannot (despite being obliged to use all reasonable endeavours) agree on how to vary the franchise agreement, then the Secretary of State may terminate it.
120. Clause 33(4), (5) and (6) allow the ORR to direct the person whose application for an access contract ultimately caused the variation to a franchise agreement to pay compensation to the franchisee whose franchise has been terminated. The amount of that compensation is to be determined by the ORR.
Clause 34: Award of Crossrail franchises to public-sector operators
121. Clause 34 disapplies the prohibition in section 25 of the 1993 Act on public sector operators being a franchisee in respect of passenger railway services. It therefore allows a public sector operator to be a franchisee under a franchise agreement for Crossrail services.
Clause 35: Disapplication of franchising and access exemptions
122. Clause 35(1) and (2) allow the Secretary of State, by means of an order, to restrict or amend certain exemptions granted under the Railways (London Regional Transport) (Exemptions) Order 1994 ("the LRT Order") or the Railways (Heathrow Express) (Exemptions) Order 1994 ("the Heathrow Express Order"). The Secretary of State also has the power to impose, or make more onerous, conditions attaching to the relevant exemptions. The relevant exemptions which may be removed are those which disapply the ORR's role of approving or directing the entry into access contracts for railway facilities ("access exemptions"), and - in respect of the railway leading to Heathrow Airport - the exemption preventing services on that track from being franchised.
123. Clause 35(3) applies to track, stations and facilities where the relevant access exemption contained in the Heathrow Express Order is ended under subsection (1). In such circumstances the Secretary of State may, by means of an order, make provision for, or treat as void, any access contract permitting use of that facility. Exceptions to this provision can also be made in the order, thus enabling a particular contract to continue in existence when others are terminated.
124. Clause 35(4) provides that the power granted under subsection (1), in respect of the LRT Order, shall only be exercisable for the purpose of facilitating Crossrail services through the principal Crossrail tunnel.
125. Clause 35(5) provides that the power granted under subsection (1) and (3)(a), in respect of the Heathrow Express Order, shall only be exercisable for the purpose of facilitating Crossrail passenger services (or enabling the franchising of services to Heathrow).
126. Clause 35(6) provides that an order under this clause shall be exercisable by statutory instrument subject to annulment by resolution of either House of Parliament.
Clause 36: Closures
127. Clause 36 disapplies the closure provisions of the Railways Act 2005 where any such closure is required in connection with construction or maintenance of the Crossrail works, or as a consequence of Crossrail passenger services. The disapplication does not apply to Crossrail services or facilities themselves. The facilities most likely to be affected by closures as a result of the construction of the Crossrail works are mostly on the North London Line between Stratford and North Woolwich, where the existing services would be replaced by a combination of Crossrail and Docklands Light Railway services.
Clause 37: Key system assets
128. Section 216(1)(b) of the Greater London Authority Act 1999 ("the 1999 Act") requires the consent of Transport for London before the creation of any interest in, or rights over, any assets designated as "key system assets". Such key system assets are designated as such either in, or in respect of, London Underground Limited's Public Private Partnership agreements. Clause 37(1) and (2) disapply section 216(1)(b) of the 1999 Act - and hence disapply the requirement for Transport for London's consent - where the creation of such interests or rights are necessary for the construction or operation of Crossrail. The construction and operation of Crossrail may interact with, or have an affect on, the London Underground.
Clause 38: Power to designate persons as "protected railway companies"
129. Clause 38(1) and (2) allow the Secretary of State, with the consent of the private sector company concerned, by order to provide that such company be treated as a protected railway company for the purposes of the 1993 Act. Such a company must be the manager of a railway facility that is contained in or associated with the principal Crossrail tunnel.
130. The effect of a company being treated as a protected railway company is to engage sections 59 to 65 of the 1993 Act in respect of that company. These provisions enable the Secretary of State to apply to a Court for a "railway administration order" in respect of an insolvent protected railway company, or to intervene (and apply for such an order) during the voluntary winding up or insolvency proceedings of such a company. The purposes of railway administration orders are to secure the transfer to another company of an undertaking so that relevant railway operations may be continued, and to secure the continuation of such railway operations pending a transfer.
131. Clause 38(3) provides that an order under the above subsection shall be subject to annulment by a resolution of either House of Parliament.
Clause 39: Duty to co-operate
132. Clause 39(1) provides a mechanism for the nominated undertaker to require others to co-operate with him during the construction, maintenance and operation of Crossrail, by entering into an agreement to deal with a problem relating to a railway asset. This provision reflects the fact that Crossrail will interact with the existing railways, both overland and underground.
133. Clause 39(2) provides a reciprocal mechanism for the benefit of any controller of a railway asset (most likely an owner or operator of track) affected by the construction, maintenance and operation of Crossrail.
134. Clause 39(3) provides for the terms of any such agreements to be agreed between the parties, or else referred to arbitration (for which arbitration clause 40 makes provision).
Clause 40: Arbitration after referral under section 39(3)
135. Clause 40 sets out a mechanism for the arbitration of any disputes under clause 39(3).
136. Clause 40(3) allows the Secretary of State, who is required to be notified that a dispute has been referred to arbitration, to direct the arbitrator as to the results that are to be achieved, so far as reasonably practicable, by the agreement to be determined under the arbitration. In doing so the Secretary of State is confining the arbitrator's jurisdiction.
137. Clause 40(6) clarifies what the arbitrator must do: clause 40(7) clarifies how he must carry out his functions.
Clause 41: Arbitration under section 39(3): multiple proceedings
138. Clause 41 sets out the arrangements to apply in the case of multiple arbitrations under clause 40, allowing those proceedings to be consolidated or held concurrently.
139. Clause 41(2) means that any group of hearings to be consolidated must consist of section 39(3) proceedings and arbitral proceedings relating to one or more such set of proceedings.
Clause 42: Transfer of functions relating to works
140. Clause 42(1) provides for the Secretary of State, if he acquires any land from a railway operator for the purposes of Crossrail and on that land there are works authorised by statute, to, by means of an order, transfer to him or to the nominated undertaker, any statutory power or duty relating to the works previously exercisable by the railway operator. This clause simply allows any statutory powers or duties to be transferred with the land acquired.
141. Clause 42(2) allows the Secretary of State, by means of an order, to provide for the further transfer to himself or to a nominated undertaker of any power or duty transferred under this clause.
142. Clause 42(3) allows the Secretary of State, if a railway operator acquires any land from the Secretary of State on which there are Crossrail works, to, with the consent of the railway operator concerned, by order transfer any duty under the Bill relating to the works.
Clause 43: Application of section 122 of the Railways Act 1993
143. Clause 43 is designed to make the defence of statutory authority that is available under section 122 of the 1993 Act, and is relevant to actions for nuisance etc, available in circumstances where the licensing requirement under the 1993 Act does not apply because of clause 21. This is necessary because section 122 only applies where the operator of the relevant railway asset has a licence, or the benefit of a licence exemption, under the 1993 Act.
Clause 44: Application of other railway legislation
144. Clause 44 brings into effect Schedule 10, which contains provisions dealing with the application of railway legislation to Crossrail.
Miscellaneous and general
Clause 45: Transfer schemes
145. Clause 45 brings into effect Schedule 11, which sets out the power of the Secretary of State to make schemes to transfer property, rights and liabilities.
Clause 46: Holder of functions of nominated undertaker
146. Clause 46(1) provides for the Secretary of State to nominate, by means of an order, one or more nominated undertakers for the purposes of the Bill.
147. Clause 46(2) provides that, in the absence of a named nominated undertaker for any provision of the Bill, the Secretary of State is deemed to be the nominated undertaker for the purposes of that provision. This is to cover the situations that would arise should no nominated undertaker be appointed or where there is a delay between a nomination ceasing to have effect (for example because an agreement is terminated) and the Secretary of State's making another nomination in favour of some other person.
148. Clause 46(3) allows the Secretary of State, by agreement with the Mayor of London or whoever is proposed to be named in a nomination order, to fetter his discretion as to the exercise of the power granted by subsection (1). This power is necessary to enable the Secretary of State to make contractual arrangements prior to the nomination of a person or body as the nominated undertaker.
149. Clause 46(4) and (5) require the Secretary of State to consult the Mayor of London before making certain nomination orders or entering into an agreement with anyone, other than the Mayor, under which the Secretary of State fetters his nomination power.
150. Clause 46(6) allows the Secretary of State, by means of an order, to make any modifications to the provisions of the Act resulting from the Bill that relate to the Secretary of State, where he has himself the functions of nominated undertaker.
151. Clause 46(7), (8) and (9) provide that orders made under this clause are to be made by statutory instrument and enable the Secretary of State to include in such orders supplementary, incidental, consequential and transitional provisions. Orders made under subsection (6) are subject to the negative procedure.
|© Parliamentary copyright 2005||Prepared: 22 February 2005|