RAILWAYS AND TRANSPORT SAFETY BILL
Memorandum by the Department for Transport
47. This Memorandum is concerned with the Railways
and Transport Safety Bill. It
identifies provisions of the Bill which confer powers
for delegated legislation,
describes their purpose,
explains in each case the reason why the matter has
been left to delegated legislation, and
explains the degree of Parliamentary control provided
for the exercise of the powers and why it is thought appropriate.
For completeness, it also mentions important powers
such as powers to make directions which are not exercisable by
statutory instrument. At the end of the Memorandum, for the Committee's
reference, is a table listing each of the powers contained in
the Bill, the nature of the power and the manner of Parliamentary
1 - INVESTIGATION
48. The Rail Accident Investigation Branch ("RAIB")
is being established to investigate the causes of railway accidents
and incidents with a view to learning lessons and fostering a
safer railway. The Bill sets out the framework for the RAIB but
the Department considers it appropriate that the detail should
be provided for in regulations, to ensure that there is sufficient
flexibility to adapt to changing circumstances and to avoid unnecessary
detail clouding the framework which is properly set out in primary
legislation. The Air and Marine Accident Investigation Branches
are already governed by regulations for the same reasons.
Clause 1 - Meaning of "railway" and
49. Clause 1(2) provides the Secretary of State
with a power to amend clause 1 by regulations. This power is to
allow the Secretary of State to amend the definition of "railway"
and "railway property" - which phrases are used in Part
1 of the Bill. This power is to ensure that the remit of the RAIB
can be extended to cover future rail transport innovations.
50. Where a new form of rail-based transport
is in future developed, it might not otherwise be a railway or
tramway for the purposes of section 67 of the Transport and Works
Act 1992. With the development of new rail innovations, such as
Cardiff's proposed "ULTRA" rail based transportation
system, it may be appropriate to widen the meaning of "railway"
to include such modes within the investigative remit of RAIB,
if such systems were not otherwise caught. Clause 1(2) would allow
regulations to be made to include new rail-based transport modes
within the meaning of "railway" in clause 1(1), ensuring
that the RAIB's remit extended to that new mode.
51. Being able to amend the definition of railway
property would allow new types of property connected with the
railways to be included within the definition of "railway
property", if this was considered appropriate. Such an addition
would ensure, once the property in question was deemed a constituent
of "railway property", that an RAIB inspector has, for
example, a power to enter that property under clause 7(1)(a) for
the purposes of conducting an investigation in to a railway accident.
52. Anything which would not naturally lend itself
to being described as railway property or a railway would not
be included at a later date. If the Secretary of State exercises
the power to make regulations under clause 1(2), clause 12(2)
requires that they be made by statutory instrument and clause
13(3) requires that they be made by affirmative resolution procedure.
This is appropriate as the regulations would be amending a definition
in primary legislation.
53. The effect of clause 1(3) with clause 14(2)
is that the RAIB's remit cannot be extended by means of the power
in clause 1(2) to include tramways in Scotland. Such matters would
ordinarily be for the Scottish Parliament to legislate on.
Clause 2 - Meaning of "railway accident"
and "railway incident"
54. Part 1 of the Bill makes provision in respect
of "railway accidents" and "railway incidents"
on railway property so far as it is or may be relevant to the
operation of the railway. It is therefore important that it is
clear what is meant by the use of these phrases. The Secretary
of State is able, under clause 2(2), to make regulations to provide
for what is and is not a railway accident or incident, the circumstances
when an accident or incident is or is not relevant to the railways
and what types of accident are to be treated as "serious".
This is important because clause 7(1) makes provision on the face
of the Bill that RAIB must investigate serious accidents, and
that it can choose or be required by regulations to investigate
non-serious accidents and incidents.
55. This is to be dealt with by regulations so
as to avoid unnecessary detail on the face of the Bill about circumstances
which are and are not to be treated as accidents and incidents.
The air and marine accident investigation regimes also define
accidents and incidents in secondary legislation. For example,
it is expected that any kind of train impact or crash in which
a person dies would be defined as a serious accident with the
consequence that RAIB would have to investigate it. Conversely,
it is expected that the regulations would be framed so as exclude
from RAIB's remit an accident at a train station where a person
dies, but that person's death was caused by them falling down
an escalator. As the person's death in the latter instance would
not actually be relevant to the operation of the railway as a
whole, it would not be appropriate for RAIB to investigate that
death. The Health and Safety Executive would remain responsible
for investigating these types of accidents.
56. Clause 2(3) would allow the Secretary of
State to make provision in regulations for the Chief Inspector
of Rail Accidents to be given a discretion, for example as to
whether he should investigate less serious rail accidents and
incidents, or whether to agree to provide assistance to other
bodies, as permitted under clause 5.
57. Clause 2(4) particularises that where regulations
are made under clause 2(2), they may make provision that a railway
incident may also be defined so as to include matters which do
not in themselves lead to an damage or loss, but which could have
done so - e.g. near-misses or precursors to accidents and incidents.
The intention is that the RAIB should not only investigate after
an accident or incident has resulted in damage or loss. It may
be appropriate for RAIB to investigate occurrences that did not
result in damage or loss, but which could have done so if the
circumstances had been slightly different and the facts suggest
that important safety lessons may be learnt.
58. Clause 13(2) provides that the regulations
made under clause 2 will be made by statutory instrument and clause
13(4) provides that they are subject to the negative resolution
procedure, which is appropriate given the level of detail that
may be required in the regulations and that the framework of the
RAIB has already been established by primary legislation.
Clause 6 - Annual Report
59. Clause 6 allows the Secretary of State to
make regulations requiring an annual report for the RAIB. The
regulations will in particular make provision about when the report
should be published, its content (and it is intended that it should
include details of safety recommendations made in that year) and
the way in which the reports should be published. Under clause
13(2) the regulations will be made by statutory instrument and
under clause 13(4) they will be subject to the negative resolution
procedure, as is appropriate for procedural provisions of this
Clause 9 - Regulations
60. Clause 9 allows the Secretary of State to
make regulations about the way in which the RAIB conducts its
investigations, reports its findings, and deals with information
that it acquires during its investigations. Regulations made under
this clause will be concerned with the detail of the day-to-day
role of the RAIB, and the practicalities it has to deal with.
Changes may need to be made reasonably regularly to adapt to changing
circumstances and it is therefore appropriate that the detailed
provision is in secondary legislation. Under clause 13(2) the
regulations will be made by statutory instrument and under clause
13(4) they will be subject to the negative resolution procedure.
This is consistent with similar regulations made for the air and
marine accident regimes.
61. Clause 9(1) allows the Secretary of State
to make regulations on the way in which the RAIB is to conduct
its investigations. This could include providing that a particular
function in respect of investigations, such as a decision making
function, is conferred upon the Chief Inspector. As an accident
inspector may not have the necessary expertise to deal with a
particular aspect of an accident or incident, it would allow the
appropriate expert to join the RAIB investigating team. For example,
a train crash might occur under a railway bridge, and even have
been caused in part by the presence of that bridge. In such cases
it could be appropriate for a structural engineer to assist in
the investigation, so that an assessment as to how best to proceed
with the investigation in safety or an assessment made as to how
the bridge's design may have exacerbated the effect of the accident.
The words "in particular" are included in clause 9(1)
to allow the regulations to make provision in addition to that
contained in sub-section (1)(a)-(f).
62. Clause 9(2) would allow the regulations to
make detailed provision on what is required of RAIB reports on
accidents and incidents. The purpose behind establishing the RAIB
is for safety lessons to be learnt quickly, so the production
of its report will be a key function of the RAIB. With this in
mind, it is important that there are clear parameters set for
such reports. To avoid the need for detailed provision on the
face of the Bill, regulations made under clause 9(2) would contain
63. It is intended that a report will always
have to address the cause of an accident, and clause 9(2)(a) makes
express provision for this. Other provisions of clause 9(2) are
to enable the Secretary of State to make provision which is, where
appropriate, consistent with that already made in respect of reports
of the Air Accidents Investigation Branch ("AAIB") under
the Civil Aviation (Investigation of Air Accidents and Incidents)
Regulations 1996 (SI 1996/2567) ("the Air Regulations"),
and the Marine Accident Investigation Branch ("MAIB")
under the Merchant Shipping (Accident Reporting and Investigation)
Regulations 1999 (SI 1999/2798) ("the Marine Regulations").
The Committee is therefore referred to these regulations for the
type of provision the Department broadly intends the power will
be used to make. The following table details certain provisions
of the Air and Marine Regulations; clause 9(2) will allow similar
provision to be made in respect of the RAIB reports.
|Clause in Bill
||Summary||Corresponding regulation in:
||Report to address cause of accident/incident
||Report to make/not make safety recommendations
||11(3)||8(5) & 11
||Interim Reports ||-
||Giving affected persons opportunity to comment
||Giving affected persons notice before report publication
||Giving a copy of report
||11(6) & 12(4)||10(8)
||Timing of publication of report
64. Much of the information obtained by the RAIB
will be highly sensitive and may be sought by third parties such
as prosecutors or the media. It is important therefore to ensure
that all persons are clear about the way in which that information
may and may not be used and disclosed. Clause 9(4) will allow
the Secretary of State to make regulations which make detailed
provision for this.
65. So that people feel that they can talk freely
to an RAIB inspector, without fear that what they say might be
used in another context, the Department intends that no statement
given to an RAIB inspector will be allowed to be disclosed to
any third person unless:
the person who gave the statement decides themselves
that it can be disclosed; or
the court orders it to be disclosed.
66. It is intended that regulations made under
clause 9(4) will establish the framework for this, including provision
which will allow a party to seek an order from the court for disclosure.
Clause 9(5)(c) makes further provision for this. As part of that
disclosure framework, it is intended that a public interest test
will be built in - that is, the court should only order the disclosure
of the information if, having heard the competing interests of
the parties, it considers that it is in the public interest to
67. There may be occasions when the Chief Inspector
considers that information that the RAIB has acquired has been
given to it in order to frustrate the RAIB in its tasks. For example,
a person might have given information which is clearly misleading.
That person might be committing an offence under clause 8(3),
and so in such circumstances the RAIB would need to be able to
disclose that information to an appropriate investigator for the
purpose of investigating a clause 8(3) offence. Regulations made
under clause 9(4) would therefore make provision for the disclosure
of that information in such circumstances.
68. The power in clause 9(5)(a) to create offences,
punishable by fines only, would allow, for example, penalties
to be created for the unauthorised disclosure of draft RAIB reports
sent to persons in accordance with provision made under clause
Clause 10 - Requirement to investigate
69. Clause 10 does not confer a power to make
secondary legislation by statutory instrument, but it does permit
the Chief Inspector of Rail Accidents to make directions that
accidents and incidents are to be investigated by those persons
who manage or control, or participate in the management or control
of railway property. Such a direction will be used to ensure that
undertakings in the rail industry investigate accidents and incidents
themselves. Industry investigations already occur at present.
This will also be particularly important in respect of the more
minor incidents, or precursors to incidents, where the RAIB may
not actually investigate itself (although the RAIB will wish to
know about such incidents).
70. Clause 10(7) is phrased so as to permit the
direction to make provision which applies differently depending
on the circumstances. This would allow the Chief Inspector to
make provision, for example, that train operating companies must
investigate in a different way to network operators.
Clause 11 - Accident Regulations
71. Clause 11 is to allow the Secretary of State
to make provision so that RAIB can find out about accidents in
the first place. RAIB will not be able to undertake its investigation
function if it does not know that an accident or incident has
occurred. This clause will therefore allow regulations to be made
which require people to inform RAIB of such occurrences within
a given time. Similar provision is contained in regulation 5 of
the Marine Regulations and regulation 5 of the Air Regulations.
72. To ensure that the scene of an accident or
incident is preserved, and evidence left unharmed, clause 11(3)
will allow the regulations to make provision that the scene of
the accident or incident must be left untouched by any person
unless RAIB (or such other person as the regulations specify)
says otherwise. This requirements will be backed up in regulations
by means of the creation of an offence as provided for in clause
73. Again, changes may need to be made reasonably
regularly to adapt to changing circumstances and it is therefore
appropriate that the detailed provision is in secondary legislation.
Under clause 13(2) the regulations will be made by statutory instrument
and under clause 13(4) they will be subject to the negative resolution
procedure. This is consistent with the Marine and Air Regulations.
2 - OFFICE
74. There are no delegated powers in this Part
of the Bill.
3 - BRITISH
75. The new arrangements for the organisation
of the British Transport Police ("BTP") are designed
to make, so far as possible, similar provision to that made for
Home Department Police Forces under the Police Act 1996.
76. Clauses 35-39 of the Bill provide for regulations
to be made by the new British Transport Police Authority ("the
Authority"), with a duty that they should as far as possible
make similar provision to regulations made by or under the Police
Act 1996 in respect of Home Department police forces. Regulations
made by the Authority will not be statutory instruments and will
not be subject to Parliamentary control, as they concern matters
such as governance, administration, and terms and conditions of
employment which are essentially internal matters.
77. Part 3 also enables the Secretary of State
to make regulations by statutory instrument. In most cases those
powers also carry a duty to make similar provision to regulations
made in respect of Home Department police forces by or under the
Police Act 1996. It is considered appropriate to use delegated
powers to avoid unnecessary replication in primary legislation
of matters already addressed in Home Department police primary
78. Regulations made by the Authority or the
Secretary of State will not be able to make the same provision
as that made by or under the Police Act 1996 in every instance.
As a national, as opposed to a regional police force, it is not
appropriate that the new BTP arrangements mirror the Home Department
police forces and their corresponding police authority in every
regard. Another reason why the arrangements cannot be exactly
the same is because the BTP is funded from the private sector
rather than the public purse.
Clause 21 - Chief Constable
79. The Chief Constable is to be appointed by
the Authority under clause 21(1). The appointment must be approved
by the Secretary of State and be made in accordance with any non-statutory
regulations made by the Authority under clause 35, and any statutory
regulations made by the Secretary of State under clause 41. As
the Authority (rather than the Secretary of State), appoints the
Chief Constable it is important that the Authority does not also
set the rules on the Chief Constable's suspension and removal
from office. Clause 21(4) therefore allows the Secretary of State
to make regulations about the suspension and removal of the Chief
Constable. Clause 21(5) sets the parameters as to what may be
included in such regulations. So for example, clause 21(5)(a)
would allow the regulations to apply provisions of the Police
Act 1996 (modified where necessary to suit the needs of the BTP)
or make similar provision to the Police Act 1996 (or provision
made under that Act). The Department intends that the Secretary
of State's regulations would, for example, make similar provision
(with modifications if necessary) to the "removal" elements
of section 11 Police Act 1996. Clause 21(6) requires the Secretary
of State to ensure that his regulations differ from the provisions
of the Police Act 1996 only so far as is necessary to reflect
the structure and circumstances of the BTP.
80. Clause 21(7) sets out who the Secretary of
State is to consult before he makes such regulations. It requires
that the Authority and Chief Constable must be consulted, but
would also allow the Secretary of State to consult other interested
Clauses 22 (Deputy Chief Constable) & 23 (Assistant
81. The Authority is to appoint a Deputy Chief
Constable and Assistant Chief Constables. By clauses 22(1) and
23(1) their respective appointments are to be subject to the Secretary
of State's approval and in accordance with any non-statutory regulations
made by the Authority under clause 35. As for the Chief Constable,
the Secretary of State is given the power in clauses 22(5) and
23(5) to make regulations about the suspension and removal of
the Deputy and Assistant Chief Constables. The power is equivalent
to that in respect of the Chief Constable described above.
Clause 28 - Terms of Employment
82. Clause 28(1) enables the Secretary of State
to issue a document to the Authority setting out rules and principles
concerning the terms and conditions of employment of the constables
and civilian staff employed by the Authority. The Authority is
required to comply with the rules and principles set out in that
document. This is primarily to ensure that the pay and conditions
of the Authority's employees remain consistent with Home Office
police force equivalents. Clause 28(2) gives particular examples
of matters on which the Secretary of State may issue rules and
principles. It would allow, for example, the Secretary of State
to set rules and principles on pay scales for constables, so that
the Authority's pay scales for constables remain consistent with
those for Home Office constables. The document is not a statutory
instrument nor subject to any Parliamentary control.
Clause 33 - Compulsory Police Services Agreement
83. The Authority is to be funded by means of
police services agreements (clause 32). This is much the same
system as currently exists for Strategic Rail Authority's ("SRA")
funding of the BTP. At present, most train companies are required,
as a condition of their licence granted under provisions of the
Railways Act 1993, to enter in to such an agreement with the SRA.
That agreement forms the basis by which the BTP is funded by the
84. For the future, clause 33(1) makes provision
for compulsory funding, by enabling the Secretary of State to
require by order individuals and classes of individuals who provide
railways services to enter in to police services agreements with
the Authority. Before making such an order, the Secretary of State
is required under clause 33(5) to consult such persons individually
first. This would give such persons the opportunity to explain
why they considered that they should not be required to enter
in to such an agreement. Each order will be made by statutory
instrument and will be subject to the negative resolution procedure
(clause 73(2) and (5)), as is appropriate for an order specific
to an individual company.
Clause 35 - Police Regulations: General
85. This clause allows the Authority to make
non-statutory regulations about the government, administration
and conditions of service of constables and other persons employed
by the Authority. Such regulations must be approved by the Secretary
of State and others under clause 39. In accordance with the Bill's
intention of replicating the Police Act 1996 where appropriate,
clause 35(1) provides that such regulations may with or without
modifications, apply regulations made under section 50 of the
Police Act 1996. Alternatively, where there is no provision to
apply or modify yet, the regulations can make provision which
deals with matters which could be dealt with by regulations made
under 50 of the Police Act 1996. Where regulations have already
been made under section 50 Police Act 1996, clause 35(3) requires
the Authority to ensure that its non-statutory regulations make
the same provision, differing only where necessary to meet the
specific needs of the BTP. Where regulations have not been made
on a specific topic under section 50, but which could be made,
the Authority is not required to mirror anything. The clause 35(3)
duty will apply to the Authority's regulations as and when statutory
regulations are made on that topic under section 50, at which
point the Authority will have to consider whether it must amend
its non-statutory regulations.
86. Examples of regulations which have already
been made under section 50 include:
- Police (Conduct) (Senior Officers) Regulations
1999, SI 1999/731
- Police (Efficiency) Regulations 1999, SI 1999/732
- Police (Amendment) Regulations 2001, SI 2001/3293
- Police (Promotion)(Amendment) Regulations 2002,
87. The Police Regulations 1995, SI 1995/215,
although originally made under the Police Act 1964, are now deemed
to have been made under section 50 Police Act 1996.
88. The regulations mentioned in the previous
two paragraphs are examples of regulations which the Authority
would have to seek to replicate in its own regulations.
89. Where the Authority makes regulations under
clause 35(1), it is required by clause 35(2) to ensure that it
also makes similar provision to that made by or under sections
84 and 85 Police Act 1996. Those sections and the regulations
made under them make provision on the representation of constables
at disciplinary hearings, for appeals against their dismissal,
a requirement for them to resign or their demotion.
90. Examples of regulations which have already
been made under sections 84 and 85 include:
- Police (Conduct) Regulations 1999, SI 1999/730
- Police Appeals Tribunals Rules 1999, SI 1999/818.
Clause 36 - Police Regulations: special constables
91. Clause 36(1) permits the Authority to make
non-statutory regulations about the government, administration
and conditions of service of special constables appointed by the
Authority. Its scope and operation is similar to that of clause
35, save that clause 36 binds the Authority to section 51 Police
Act 1996. It can only make different provision if necessary to
suit the needs of the BTP.
92. The Special Constables Regulations 1965,
SI 1965/536, although originally made under the Police Act 1964,
are now deemed to have been made under section 51 Police Act 1996.
Clause 37 - Police regulations: cadets
93. Clause 37 operates in exactly the same way
as clause 36, albeit in respect of cadets. The corresponding provision
of the Police Act 1996 is section 52.
Clause 38 - British Transport Police Federation
94. This clause allows the Authority to make
non-statutory regulations about the BTP Federation which represents
constables on matters affecting their welfare and efficiency.
Such regulations must be approved under clause 39. The BTP Federation
is already in existence, so this clause makes provision for its
statutory recognition. Clause 38(2) binds the Authority to section
60 Police Act 1996. Under section 60 the Secretary of State may,
amongst other things, make regulations prescribing the constitution
and proceedings of Police Federations, their membership and how
they may raise funds. To the extent that section 60 regulations
have not yet been made, the Authority is free to make its own.
If and when section 60 regulations are made however the Authority
will have to ensure that its regulations under clause 38 are compatible
95. Clause 38(3) provides that where regulations
are made by the Authority under Part 3 (under clause 35(2) for
example), that they make also provision for a BTP Federation member
to represent a constable. An example might be where a BTP constable
attends a disciplinary hearing, where by virtue of clause 29,
he could not generally be represented by a trade union, but could
be represented by the BTP Federation.
96. As discussed above, regulations made under
clauses 35-38 are not statutory instruments and are not appropriate
for Parliamentary control because of their nature as private employment-type
Clause 39 - Regulations: approval in draft
97. Before the Authority makes regulations under
clause 35-38, this clause requires that they must be approved
by the BTP Chief Constable, the "staff associations"
and the Secretary of State. The Secretary of State may prescribe
by order made under clause 39(5) who the staff associations are
to be. It is likely to be the BTP Federation and the BTP's Superintendents'
Association. The Secretary of State is able, under clause 39(3),
to dispense with the need to obtain the Chief Constable's and
staff associations' consent provided he consults them first (clause
Clause 41 - Police Regulations by Secretary of
98. Although the Authority has power to make
the non-statutory regulations under clauses 35-38, the Secretary
of State is also given the power to make statutory regulations
for the BTP under clause 41 (in addition to a power to direct
the Authority that regulations be made under clause 40). This
is to act as a fail safe to ensure that regulations are made for
the force if the Authority is unable or unwilling to make regulations
itself. Where the Secretary of State makes such regulations, clause
41(2) makes clear that they will take precedence over any conflicting
elements of non-statutory regulations made by the Authority. Like
the Authority, the Secretary of State may only make regulations
on matters which regulations may be made under sections 50-52
and 60 Police Act 1996. This is to ensure parity in the way Home
Office constables and BTP constables are treated.
99. Where the Secretary of State's regulations
make provision on a matter detailed in section 50(3) Police Act
1996 (i.e. on disciplinary proceedings), clause 41(3) requires
that they must also make provision for representation at disciplinary
hearing and appeals, similar to that contained in sections 84
and 85 Police Act 1996.
100. The Secretary of State's power to make regulations
is exercisable by statutory instrument subject to the negative
resolution procedure (clause 73(2) and (5)) which is appropriate
given that the some of subject matter has already been the subject
of Parliamentary scrutiny in the Police Act 1996, and that the
equivalent regulation-making power for the Home Department forces
in that Act is exercisable by negative resolution statutory instrument.
Clause 42 - Regulations: further appeal
101. Where the Authority has made regulations
concerning disciplinary proceedings and appeals under clauses
35 or 36, the Secretary of State may make statutory regulations
under clause 42 which provide a further means of appeal for the
constables, which may be to a court or tribunal as described in
the regulations. The Secretary of State's power to make regulations
is exercisable by statutory instrument subject to the negative
resolution procedure (clause 73(2) and (5)). This is appropriate
as the regulations will simply be procedural.
Clause 43 - Equipment Regulations
102. This clause extends the power in section
53 Police Act 1996 to allow the Secretary of State, when he makes
regulations under that section, to include provision on standards
of equipment used by the BTP. Section 53 of the Police Act 1996
only extends to England & Wales, so this clause enables regulations
made by the Secretary of State to have effect in relation to the
BTP throughout Great Britain. The Secretary of State's power under
section 53 to make regulations is exercisable by statutory instrument
(section 102 of the Police Act 1996) but the Police Act does not
provide for the regulations to be subject to Parliamentary control.
Clause 44 - Regulation of Procedure and Practice
103. This clause extends the power in section
53A Police Act 1996 to allow the Secretary of State, when he makes
regulations under that section on the regulation of practice and
procedure for facilitating inter-force co-operation, to include
provision on BTP co-operation with other police forces. Section
53A of the Police Act 1996 only extends to England & Wales,
and so this clause enables regulations made by the Secretary of
State to have effect in relation to the BTP throughout Great Britain.
The Secretary of State's power under section 53A to make regulations
is exercisable by statutory instrument (section 102 of the Police
Act 1996). The power under section 53A has not yet been exercised
and subsections (9) and (10) provide for the first set of regulations
under the power to be subject to the affirmative resolution procedure
and for subsequent regulations to be subject to the negative resolution
Clauses 46 and 47 - Codes of Practice
104. Clause 46 enables the Secretary of State
to issue a code of practice to the Authority on the way it is
to carry out its functions. Clause 47 allows the Secretary of
State to issue a code of practice relating to the Chief Constable
on the performance of any of his functions. Subsection (4) of
both clauses requires the Secretary of State to lay before Parliament
any code or revision to the code which he issues, save that clause
47(5) does not oblige the Secretary of State to lay the code before
Parliament in specified circumstances, for example where he thinks
that its publication would be against the interests of national
Clause 48 - Service outside the Police Force
105. Clause 48 allows the Secretary of State
to make regulations making similar provision to that made by section
97 Police Act 1997, for the BTP. Section 97 makes certain employment-related
assumptions where a constable is engaged in one of a number of
types of "relevant service". For example, where a constable
of a given rank is seconded to another police force, section 97(3)
ensures that he can return to his home force to at least the same
rank he enjoyed before he started his secondment. The Secretary
of State's power to make regulations is exercisable by statutory
instrument subject to the negative resolution procedure (clause
73(2) and (5)). This is appropriate as the regulations will be
replicating for the BTP matters which have already been subject
to Parliamentary scrutiny through consideration of the Police
Clause 50 - Policing Objectives: Secretary of
106. Although under clause 49 the Authority will
be required, within defined parameters, to set its own objectives,
clause 50 enables the Secretary of State by direction to the Authority
to set objectives for the policing of the railways for a financial
year. Before issuing a direction, the Secretary of State must
consult the Authority and the Chief Constable and consider representations
made by Scottish Ministers. Clause 50(2) requires that the direction
must be published, but it is not subject to Parliamentary control.
The Department expects that the power of the Secretary of State
to make such directions will be used sparingly, as most objectives
will be set by the Authority under clause 49.
Clause 52 - Performance Targets
107. Where the Secretary of State has set an
objective for the Authority on the policing of the railways under
clause 50, clause 52 enables him also to require the Authority,
by direction, to set a target for the achievement of that objective.
Before doing so, the Secretary of State must consider any representations
from Scottish Ministers. The direction must be published but is
not subject to Parliamentary control.
Clause 53 - Performance Directions
108. This clause allows the Secretary of State
to give a direction to the Authority making provision of a similar
kind to that which the Secretary of State could also make in respect
of a Best Value Authority. The Authority is not to be a best value
authority within the meaning of section 1 of the Local Government
Act 1999 Act, but a direction under this clause is designed to
ensure that in practice the Authority and the BTP adopt many of
the same procedures and practices as Home Department police authorities
and forces. Before a making a direction the Secretary of State
must have consulted the Authority and such other persons he thinks
appropriate, and his final direction must be published. The direction
is not subject to Parliamentary control.
Clause 55 - Reports by the Chief Constable
109. Clause 55(5)(b) enables to Secretary of
State to direct that a report by the Chief Constable (or relevant
part) be published where the Chief Constable is of the view that
the report (or any part of it) he is required to publish under
this clause contains information which it is unnecessary or not
in the public interest to publish. The direction is not subject
to Parliamentary control.
Clause 57 - Other Reports to the Secretary of
110. Clause 57(1) allows the Secretary of State
to direct the Authority to submit a report to him on specified
matters connected with the performance of its functions as a police
authority. The direction can make provision on what matters the
report should cover. An identical power of direction is available
in respect of the Chief Constable's functions in clause 57(2).
The direction is not subject to Parliamentary control.
Clause 60 - Inquiry Supplemental
111. Clause 60(6) enables the Secretary of State
to direct the Authority that it must pay the costs incurred by
a person who has been appointed to inquire in to a matter connected
with the BTP force under clause 59. The direction is not subject
to Parliamentary control.