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Crossrail Bill


Crossrail Bill

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(3)   

As soon as the proposed contract has been submitted to the Office of Rail

Regulation under section 18(5) of that Act, the Office shall notify the Secretary

of State of the terms of the proposed contract.

(4)   

Subsections (5) and (6) apply where the Secretary of State has been notified

under subsection (3) in respect of a contract.

5

(5)   

The Secretary of State may give directions to the Office of Rail Regulation

requiring the Office, in acting under section 18 of the Railways Act 1993 (c. 43),

to give its approval to terms of the proposed contract—

(a)   

that relate to the duration of the permission concerned,

(b)   

that are terms, other than terms relating to charges or other financial

10

matters, that in the directions are identified as terms that must be

included in the contract on the ground that the Secretary of State

considers them to be needed to facilitate the provision of Crossrail

passenger services, or

(c)   

so far as those terms relate to the railway mentioned in section 1(1)(a).

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(6)   

A direction under subsection (5) that is given in respect of a term may (but need

not) be given in respect of the term only so far as it is to have effect for

particular purposes.

(7)   

Until the Secretary of State has either given directions under subsection (5) or

notified the Office of Rail Regulation that he will not be giving directions under

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that subsection in respect of the contract, the Office of Rail Regulation, in acting

under section 18 of the Railways Act 1993, may neither reject the contract nor

approve it subject to modifications (but may approve it without modification).

(8)   

In this section—

“access contract” and “facility owner” have the meanings given by section

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17(6) of the Railways Act 1993;

“Crossrail passenger service” has the meaning given by section 22(9);

“railway facility” has the meaning given by section 83(1) of the Railways

Act 1993.

31      

Power of Secretary of State to require entry into access contract

30

(1)   

The Secretary of State may give directions to a facility owner requiring him to

enter into an access contract with the Secretary of State, or with any other

person, for the purpose of enabling permission to be obtained from the facility

owner for the use of the facility owner’s railway facility for or in connection

with the operation of Crossrail passenger services.

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(2)   

Subsections (6) to (9) of section 17 of the Railways Act 1993 apply for the

interpretation of subsection (1) above as they apply for the interpretation of

that section, save that any reference in those subsections to the applicant shall

be taken to be a reference to the person with whom the facility owner is

required by directions under subsection (1) above to enter into a contract.

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(3)   

Subsection (4) applies if entry into a contract is required by directions under

subsection (1) above and (after taking account of any order under section 29(1))

the contract proposed to be entered into in pursuance of the directions is

required by section 18(5) of the Railways Act 1993 to be submitted to the Office

of Rail Regulation.

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(4)   

In acting under section 18 of that Act, the Office of Rail Regulation must give

its approval to the terms of the proposed contract so far as they give effect to

provisions in the directions under subsection (1) above that are—

(a)   

provisions relating to the duration of the permission concerned,

(b)   

provisions as to terms, other than terms relating to charges or other

5

financial matters, that in those directions are identified as terms that

must, or must so far as they are to have effect for particular purposes,

be included in the contract on the ground that the Secretary of State

considers that such inclusion is needed to facilitate the provision of

Crossrail passenger services, or

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(c)   

provisions requiring terms identified in those directions to be included

in the contract so far as those terms relate to the railway mentioned in

section 1(1)(a).

(5)   

For the purposes of determining whether and how section 18 of that Act

applies in relation to a contract which a facility owner is required to enter into

15

by directions under subsection (1) above, that section shall have effect—

(a)   

as though any reference in section 17 of that Act to the applicant were

a reference to the person with whom the facility owner is required to

enter into the contract, and

(b)   

as though article 3 (exemption from sections 17 and 18 of that Act) were

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omitted from the Railways (Heathrow Express) (Exemptions) Order

1994 (S.I. 1994/574).

(6)   

In this section “Crossrail passenger service” has the meaning given by section

22(9).

32      

Amending existing access contracts: effects of contracts under section 31

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(1)   

Subsection (2) applies if entry into a contract is required by directions under

section 31(1) and (after taking account of any order under section 29(1)) the

contract proposed to be entered into in pursuance of the directions is required

by section 18(5) of the Railways Act 1993 (c. 43) to be submitted to the Office of

Rail Regulation.

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(2)   

The Office of Rail Regulation may give directions requiring the parties to an

access contract to which this subsection applies to make such amendments to

the contract as are, in its opinion, necessary to facilitate the operation, on and

after the date specified under section 23(3), of the Crossrail passenger services

concerned so far as they are principal Crossrail passenger services.

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(3)   

Subsection (2) applies to an access contract where the permission concerned is

permission to use a railway facility that—

(a)   

is, or is part of, a railway but is not, and is not part of, the railway

mentioned in section 1(1)(a), or

(b)   

is associated with a railway but not by reason only of its being

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associated with the railway mentioned in section 1(1)(a).

(4)   

The Office of Rail Regulation may not under subsection (2) give directions

requiring the parties to an access contract to make amendments relating—

(a)   

to amounts payable under the contract by one of them to the other, or

(b)   

to the times at which, and manner in which, any such amounts are

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payable.

 
 

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(5)   

Where the Office of Rail Regulation gives directions under subsection (2)

requiring amendments to be made to an access contract, it shall consider

whether to carry out an access charges review in relation to that contract.

(6)   

The Secretary of State may by regulations make provision in relation to the

carrying out by the Office of Rail Regulation of its functions under subsection

5

(2).

(7)   

The provision that may be made by regulations under subsection (6) includes

(in particular) provision corresponding to any provision of paragraphs 3 to 6

of Schedule 4 to the Railways Act 1993 (c. 43).

(8)   

The power to make regulations under subsection (6) shall be exercisable by

10

statutory instrument which shall be subject to annulment in pursuance of a

resolution of either House of Parliament.

(9)   

In this section—

“access charges review” has the meaning given by paragraph 1A(2) of

Schedule 4A to the Railways Act 1993;

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“access contract” has the meaning given by section 17(6) of that Act;

“Crossrail passenger service” and “principal Crossrail passenger service”

have the meanings given by section 22(9);

“railway facility” has the meaning given by section 83(1) of the Railways

Act 1993.

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33      

Effect on franchise agreements of directions under section 27 or 32

(1)   

This section applies where—

(a)   

directions are given under section 27(2) or 32(2), and

(b)   

the amendments made in consequence of those directions affect the

carrying out of a franchise agreement that is not one to which the

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Scottish Ministers are a party.

(2)   

The parties to the franchise agreement shall use all reasonable endeavours to

agree how to vary the agreement in consequence of those directions.

(3)   

In default of the parties to the franchise agreement agreeing how to vary the

agreement in consequence of those directions, the Secretary of State may

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terminate the agreement.

(4)   

Subsection (5) applies where—

(a)   

the parties to the franchise agreement have agreed how to vary it in

consequence of those directions, or

(b)   

the Secretary of State has terminated the franchise agreement under

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subsection (3).

(5)   

The Office of Rail Regulation may give directions requiring the person who

applied for the directions mentioned in subsection (1)(a) to pay compensation

to the franchisee.

(6)   

The Office of Rail Regulation shall determine the amount of compensation

40

payable under subsection (5).

(7)   

Any compensation payable under subsection (5) shall be recoverable as a debt

due.

 
 

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(8)   

In this section “franchise agreement” and “franchisee” have the meanings

given by section 23(3) of the Railways Act 1993 (c. 43).

34      

Award of Crossrail franchises to public-sector operators

(1)   

Section 25 of the Railways Act 1993 (public-sector operators not to be

franchisees) does not apply in relation to the franchisee in respect of a franchise

5

agreement for one or more Crossrail passenger services.

(2)   

In subsection (1)—

“Crossrail passenger service” has the meaning given by section 22(9);

“franchisee” and “franchise agreement” have the meanings given by

section 23 of the Railways Act 1993 (designated passenger services to be

10

provided under franchise agreements).

35      

Disapplication of franchising and access exemptions

(1)   

The Secretary of State may by order amend, or revoke provisions of, the LRT

Order or the Heathrow Express Order—

(a)   

for the purpose of restricting or ending an exemption granted by a

15

relevant provision,

(b)   

for the purpose of adding to the conditions subject to which such an

exemption is granted, or

(c)   

for the purpose of making such a condition more onerous.

(2)   

For the purposes of subsection (1), each of the following is a “relevant

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provision”—

article 4(b) of the LRT Order,

article 4(d) of the LRT Order,

article 3(1) of the Heathrow Express Order, and

article 4(1) of the Heathrow Express Order.

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(3)   

Where exercise of the power under subsection (1) has effect to end an

exemption granted by article 3(1) of the Heathrow Express Order in relation to

any track, station or depot, the Secretary of State may by order—

(a)   

make provision for, or in connection with, treating as void—

(i)   

every access contract, including one entered into before the

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making of the order, where the permission concerned is

permission to use that facility, or

(ii)   

a contract such as is mentioned in sub-paragraph (i) if it is

specified in the order or is of a description so specified;

(b)   

provide for exceptions to any provision made under paragraph (a).

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(4)   

The power under subsection (1), so far as relating to an exemption granted by

the LRT Order, is exercisable only for the purpose of, or for purposes that

include, facilitating services for the carriage of passengers by railway so far as

they are services on the railway mentioned in section 1(1)(a).

(5)   

The powers—

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(a)   

under subsection (1), so far as relating to an exemption granted by

article 3(1) of the Heathrow Express Order, and

(b)   

under subsection (3)(a),

   

are exercisable only for the purpose of, or for purposes that include, facilitating

Crossrail passenger services.

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(6)   

The powers under subsection (1), so far as relating to an exemption granted by

article 4(1) of the Heathrow Express Order, are exercisable only for, or for

purposes that include, either or both of the following—

(a)   

facilitating Crossrail passenger services, and

(b)   

enabling Crossrail passenger services to be designated under section

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23(1) of the Railways Act 1993 (c. 43) (services which ought to be

provided under franchise agreements).

(7)   

The power to make an order under this section shall be exercisable by statutory

instrument which shall be subject to annulment in pursuance of a resolution of

either House of Parliament.

10

(8)   

In this section—

“the LRT Order” means the Railways (London Regional Transport)

(Exemptions) Order 1994 (S.I. 1994/573), as from time to time

amended;

“the Heathrow Express Order” means the Railways (Heathrow Express)

15

(Exemptions) Order 1994 (S.I. 1994/574), as from time to time

amended;

“access contract” has the meaning given by section 17(6) of the Railways

Act 1993;

“Crossrail passenger service” has the meaning given by section 22(9).

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36      

Closures

(1)   

If the Secretary of State considers that discontinuance falling within any of the

closure provisions of the Railways Act 2005 is necessary or expedient because

of the operation of Crossrail or the carrying out of any of the works authorised

by this Act, he may direct that those provisions shall be treated as not applying

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to it.

(2)   

The reference in subsection (1) to the closure provisions of the Railways Act

2005 is to—

sections 22 to 25 (discontinuance of railway passenger services),

sections 26 to 28 (discontinuance of operation of passenger networks),

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sections 29 to 31 (discontinuance of use or operation of stations), and

section 37 (discontinuance of experimental passenger services).

37      

Key system assets

(1)   

Section 216(1)(b) of the Greater London Authority Act 1999 (c. 29) (consent of

Transport for London required for creation etc. of interests in, or rights over,

35

assets designated as key system assets in connection with certain railway-

related public-private partnership agreements) shall not apply in relation to—

(a)   

the creation of an interest in, or right over, a key system asset, or

(b)   

an agreement to create an interest in, or right over, a key system asset,

   

if the interest or right is, or is to be, created in order to facilitate any of the

40

matters mentioned in subsection (2).

(2)   

Those matters are—

(a)   

the construction of the railway mentioned in section 1(1)(a);

(b)   

the maintenance of that railway;

 
 

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(c)   

the operation of services for the carriage of passengers or goods by

railway on a line the whole of which, or part of which, forms part of that

railway.

(3)   

In this section “key system asset” has the meaning given by section 213(1) of the

Greater London Authority Act 1999 (c. 29).

5

38      

Power to designate persons as “protected railway companies”

(1)   

The Secretary of State may, with the consent of a company to which this

subsection applies, by order make provision for the company to be treated as a

protected railway company for the purposes of Part 1 of the Railways Act 1993

(c. 43).

10

(2)   

Subsection (1) applies to a company if—

(a)   

it is a private sector operator and it has, for the time being, the

management of a railway facility that is or is part of, or is associated

with, the railway mentioned in section 1(1)(a), or

(b)   

it is a private sector operator and it owns, or has rights in relation to,

15

such a railway facility.

(3)   

The power to make an order under subsection (1) shall be exercisable by

statutory instrument which shall be subject to annulment in pursuance of a

resolution of either House of Parliament.

(4)   

In this section “private sector operator” and “railway facility” have the same

20

meanings as in Part 1 of the Railways Act 1993.

39      

Duty to co-operate

(1)   

Where the nominated undertaker considers that a matter affects—

(a)   

the construction, maintenance or operation of Crossrail, and

(b)   

the construction, maintenance or operation of a railway asset which is

25

not a Crossrail asset,

   

it may by notice in writing require a controller of the asset to enter into an

agreement with it about how the matter is to be dealt with.

(2)   

Where a controller of a railway asset which is not a Crossrail asset considers

that a matter affects—

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(a)   

the construction, maintenance or operation of the asset, and

(b)   

the construction, maintenance or operation of Crossrail,

   

it may by notice in writing require the nominated undertaker to enter into an

agreement with it about how the matter is to be dealt with.

(3)   

The terms of an agreement under subsection (1) or (2) shall be such as the

35

nominated undertaker and the controller of the asset may agree or, in default

of agreement, as may be determined by arbitration.

(4)   

For the purposes of subsections (1) and (2), a railway asset is a Crossrail asset

if—

(a)   

in the case of a railway asset consisting of any network, station or light

40

maintenance depot, it is comprised in Crossrail, and

(b)   

in the case of a railway asset consisting of any train being used on a

network, the network is comprised in Crossrail.

(5)   

In this section—

 
 

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“controller”, in relation to a railway asset, means—

(a)   

the person having the management of the asset for the time

being, or

(b)   

a person who owns, or has rights in relation to, the asset;

“light maintenance depot”, “network”, “railway asset” and “station” have

5

the same meanings as in Part 1 of the Railways Act 1993 (c. 43).

40      

Arbitration after referral under section 39(3)

(1)   

This section applies where a difference is referred under section 39(3) to

arbitration.

(2)   

The parties must notify the Secretary of State of the referral without delay after

10

the commencement of the arbitral proceedings.

(3)   

The Secretary of State may, on request or otherwise, direct the arbitrator as to

results that are to be achieved by the agreement for which terms are to be

determined by the arbitration.

(4)   

A direction under subsection (3) may be made even though the making of the

15

direction affects the outcome of proceedings to which the Secretary of State

himself, or a body in which he has an interest, is a party.

(5)   

A request for a direction under subsection (3) may be made by the arbitrator

(as well as by a party).

(6)   

For the purpose of determining whether or not the arbitrator has to comply

20

with a direction under subsection (3), the rule is that he must comply with the

direction in determining terms of the agreement if the direction—

(a)   

is relevant to the determination of those terms, and

(b)   

is given to him before he has made his award determining those terms.

(7)   

For the purpose of determining what the arbitrator has to do to comply with a

25

direction under subsection (3) with which he has to comply, the rule is that he

must carry out his function of determining terms of the agreement so as to

secure, so far as is reasonably practicable, that the results concerned are

achieved by the agreement.

41      

Arbitration under section 39(3): multiple proceedings

30

(1)   

The Secretary of State may, on request or otherwise, direct—

(a)   

that a group of proceedings is to be consolidated, or

(b)   

that concurrent hearings are to be held in a group of proceedings.

(2)   

In subsection (1) “group of proceedings” means a group consisting of—

(a)   

section 39(3) proceedings, and

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(b)   

any one or more of the following—

(i)   

other section 39(3) proceedings,

(ii)   

arbitral proceedings related to the proceedings mentioned in

paragraph (a), and

(iii)   

arbitral proceedings related to section 39(3) proceedings that

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are to be consolidated with the proceedings mentioned in

paragraph (a).

 
 

 
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