|House of Commons|
|back to previous text|
Clause 19: Disapplication of controls
69. Clause 19(1) and (2) disapply tree preservation orders made under section 198(1) of the Town and Country Planning Act 1990 and the provisions of section 211 of the Act, dealing with trees in conservation areas, from any tree works that are carried out under clause 17, or as a consequence of the construction or maintenance of Crossrail works, or to enable the safe operation of Crossrail.
Clause 20: Control of construction sites: appeals
70. Clause 20(1), (2) and (3) modify the operation of sections 60 and 61 of the Control of Pollution Act 1974, so that appeals under those provisions are determined by the Secretary of State or if the parties' agree by arbitration, rather than by a magistrates' court.
71. Clause 20(4) enables the Secretary of State for Transport and the Secretary of State for the Environment, Food and Rural Affairs, acting jointly, to make regulations about procedure in relation to such arbitrations. Such regulations would be made by statutory instrument.
Clause 21: Proceedings in respect of statutory nuisance: defence
72. Clause 21 provides that an order under section 82(2) of the Environmental Protection Act 1990 may not be made by a magistrates' court in connection with noise emitted from premises, or from a vehicle, machinery and equipment in a street, where the nominated undertaker can show that they are used for Crossrail purposes and the Crossrail works concerned are being carried out in accordance with a notice or consent issued by the local authority under section 60, 61 or 65 of the Control of Pollution Act 1974. These provisions of the 1974 Act address control of noise on construction sites (section 60), consent for work on construction sites (section 61) and consent to exceed noise limits (section 65).
Clause 22: Licensing
73. Clause 22 temporarily disapplies the requirement for either a licence, or a licence exemption, under the Railways Act 1993 which would otherwise exist in respect of any network constructed using Bill powers, and in respect of any train being used on such a network. This disapplication lasts until the Secretary of State gives notice of his determination that the network is ready for commercial use. Before newly constructed track is open for commercial use, it is possible that use will be made of it for construction purposes or for testing, and this clause removes the need for a licence in respect of such operations.
Clause 23: Overriding duty of Office of Rail Regulation before Crossrail operational
74. Clause 23(1) provides that in the period between Royal Assent and the start of Crossrail passenger services, the Office of Rail Regulation ("ORR") shall exercise its functions, so far as they relate to access contracts, in a manner so as to facilitate the operation of the principal Crossrail passenger service on and after a date specified by the Secretary of State. This clause ensures that, in regulating access contracts entered into after Royal Assent, the ORR will take into account prospective principal Crossrail passenger services.
75. Clause 23(2) identifies those functions exercised by the ORR which will be subject to the overriding duty. They are functions relating to the control of terms in access contracts. Access contracts are agreements in which permission is given by the owner of a railway facility for a person to make use of that facility.
76. Clause 23(3) ensures that the overriding duty does not affect, and hence bias, certain economic aspects of the ORR's functions.
77. Clause 23(4) makes the overriding duty in the above subsection subject to the ORR's general duty as regards railway safety under the Railways Act 2005.
78. Clause 23(5) allows the ORR, with the consent of the Secretary of State, to contravene the duty set out in subsection (1).
79. Clause 23(6) provides that the interim period in subsection (1) is between Royal Assent and the first use of the principal Crossrail tunnel by any passenger service.
80. Clause 23(7) and (8) provide that the Secretary of State may extend the interim period. If he does so he must specify the new end date, inform the ORR and publish the direction. He can make different provision for different purposes and the direction may be varied or revoked.
Clause 24: Directions specifying matters for purposes of section 23
81. Clause 24(1) enables the Secretary of State to specify the minimum operating levels which the principal Crossrail passenger services will deliver. This has the effect of determining the extent of the ORR's duty under clause 23(1).
82. Clause 24(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 give special consideration.
83. Clause 24(3) enables the Secretary of State to specify a date. The ORR's overriding duty under clause 23 will be to facilitate the operation of principal Crossrail passenger services on and after such a specified date.
84. Clause 24(4) requires the Secretary of State to consult before giving directions. The statutory consultees may have views on the effects of, or necessity for, obliging the ORR to facilitate certain specified services.
85. Clause 24(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.
86. Clause 24(6) provides that directions can make different provision for different purposes and they may be varied or revoked. Clause 24(7) provides that the Secretary of State must publish such directions.
Clause 25: Other duties of Office of Rail Regulation as to exercise of functions
87. Clause 25 provides that the ORR's general duties contained in section 4 of the Railways Act 1993 apply to functions arising under the Bill but with an overriding duty to exercise its functions 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 23 to facilitate the operation of the specified principal Crossrail passenger service. In relation to Competition Act functions, the ORR may have regard to matters relevant to that duty if the OFT could do so.
88. 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").
89. Clause 25(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.
90. Clause 25(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).
91. Clause 25(6) defines what a development agreement is for the purposes of this clause.
Clause 26: Amending pre-commencement access contracts: construction of Crossrail
92. Clause 26 operates in respect of access contracts entered into prior to the enactment of the Bill that may be affected by the construction of Crossrail.
93. Clause 26(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.
94. Clause 26(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.
95. Clause 26(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.
96. Clause 26(5) requires the ORR to consult the Secretary of State before issuing directions under subsection (1).
Clause 27: Amending pre-commencement access contracts: principal Crossrail services
97. Clause 27 operates in respect of access contracts entered into prior to the enactment of the Bill that may affect the operation of principal Crossrail passenger services.
98. Clause 27(2) provides that once the Secretary of State has specified minimum operating levels under clause 24(1), the ORR must identify contracts that would conflict with the principal Crossrail passenger services from their specified start of operation.
99. Clause 27(3) requires the ORR to report any such perceived conflicts to the Secretary of State.
100. Clause 27(4) provides that the Secretary of State may then object, or make no objection, to the perceived conflict.
101. Clause 27(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.
102. Clause 27(6) provides that where the ORR has interfered with a contract under the previous subsection, then it may direct the payment of consequential compensation.
103. Clause 27(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 the ORR's functions under subsections (5) and (6).
Clause 28: Terms of, and amending other access contracts because of, Crossrail access contracts
104. Clause 28(1) engages two procedures where a would-be Crossrail passenger service provider applies to the ORR for a direction under section 17 of the Railways Act 1993 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.
105. Clause 28(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 28(3), any agreements relating to any railway other than that being constructed as part of the principal Crossrail tunnel.
106. Clause 28(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.
107. Clause 28(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 Railways Act 1993.
108. Clause 28(6) is analogous to clause 31(5). It provides that the Secretary of State may give directions to the ORR to include in the proposed contract 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 terms in so far as they relate to the principal Crossrail tunnel.
109. Clause 28(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.
110. Clause 28(8), (9), and (10) allow the Secretary of State to make regulations modifying how Schedule 4 to the Railways Act 1993 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 to be treated by the ORR and allows for the relevant 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 29: Post-commencement access contracts: effects of construction of Crossrail
111. Clause 29(1) and (2) affect the ORR's exercise of its powers under section 17 and 18 of the Railways Act 1993 (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.
112. Clause 29(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 30: Crossrail access contracts: disapplying requirements for approval
113. Clause 30 provides that section 18 of the Railways Act 1993 (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 31: Crossrail-related access contracts: modified requirements for approval
114. Clause 31(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.
115. Clause 31(4) and (5) provide that the Secretary of State may then give directions to the ORR to approve 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 terms in so far as they relate to the principal Crossrail tunnel.
116. Clause 31(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 32: Power of Secretary of State to require entry into access contract
117. Clause 32(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 principal Crossrail tunnel).
118. Clause 32(2) applies the interpretative provisions of subsections (6) to (9) of section 17 of the Railways Act 1993, 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.
119. Where the relevant provisions of the Railways Act 1993 would require the ORR's pre-approval of an access contract obtained under subsection (1), clause 32(3) provides that the modified pre-approval mechanisms contained in subsection (4) shall apply.
120. Clause 32(4) provides that, in acting under section 18 of the Railways Act 1993 in respect of such a contract, the ORR must approve those terms of the proposed contract which give effect to: directions that relate to the duration of the permission granted; directions about terms (other than in respect of charges or financial matters) that the Secretary of State considers are needed for Crossrail passenger services; or directions that relate to the principal Crossrail tunnel.
121. Clause 32(5) provides that in applying the provisions in section 18 of the Railways Act 1993 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 Railways Act 1993 (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 33: Amending existing access contracts: effects of contracts under section 32
122. Clause 33(1), (2) and (3) provides that, following a contract being entered into under clause 32, 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 services.
123. Clause 33(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.
124. Clause 33(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 34: Effect on franchise agreements of directions given under section 28 or 33
125. Clause 34(1) applies where a direction is given under clause 28(2) or 33(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.
126. Clause 34(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.
127. Clause 34(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 35: Award of Crossrail franchises to public-sector operators
128. Clause 35 disapplies the prohibition in section 25 of the Railways Act 1993 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 36: Disapplication of franchising and access exemptions
129. Clause 36(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.
130. Clause 36(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 treating 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.
131. Clause 36(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.
132. Clause 36(5) provides that the powers granted under subsections (1) and (3)(a) in respect of the Heathrow Express Order and relating to access exemptions and access contracts shall only be exercisable for the purposes of facilitating Crossrail passenger services.
133. Clause 36(6) provides that the power granted under subsections (1) and (3)(a) in respect of the Heathrow Express Order and relating to the exemption from the franchising regime shall only be exercisable for the purpose of facilitating Crossrail passenger services or enabling the franchising of services to Heathrow.
134. Clause 36(7) provides that an order under this clause shall be made by statutory instrument subject to annulment by resolution of either House of Parliament.
Clause 37: Closures
135. Clause 37 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 38: Key system assets
136. 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 38(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 would facilitate the construction or operation of Crossrail. The construction and operation of Crossrail may interact with, or have an effect on, the London Underground.
Clause 39: Power to designate persons as "protected railway companies"
137. Clause 39(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 Railways Act 1993. Such a company must be the manager of a railway facility that is contained in or associated with the principal Crossrail tunnel.
138. The effect of a company being treated as a protected railway company is to engage sections 59 to 65 of the Railways Act 1993 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.
139. Clause 39(3) provides that an order under the above subsection shall be subject to annulment by a resolution of either House of Parliament.
|© Parliamentary copyright 2007||Prepared: 9 November 2007|