Clause 61 - Public Consultation
112. Clause 61(4) allows the Secretary of State
to issue guidance as to how the public consultation arrangements
under clause 61 are to operate. The guidance is not subject to
Clause 62 - Inspection
113. Clause 62(4) enables the Secretary of State
to direct the form of report which HM Inspectorate of Constabulary
("HMIC") are required to submit in respect of the BTP.
The direction is not subject to Parliamentary control.
Clause 64 - Remedial Direction
114. Clause 64 allows the Secretary of State
to issue a remedial direction to the Authority after an adverse
HMIC report under clause 62. Such a direction, requiring the Authority
to remedy a deficiency is clearly a serious matter, and so the
Secretary of State is required to notify the Authority and the
Chief Constable in advance and allow them to make representations.
The Authority is also entitled to propose measures that would
seek to avoid the need for remedial direction. Any direction which
is made must be laid before Parliament accompanied by a report
Clause 65 - Action Plan
115. If an HMIC report under clause 62 identifies
that the force is inefficient or ineffective is some way, clause
65(1) enables the Secretary of State to issue a direction to the
Authority that it must submit a plan of action to him on how it
proposes to remedy the deficiency that has been identified. That
direction may make specific requirements of the action plan, such
as details of a timetable and it must detail the means by which
the aim to be achieved is to be assessed. Where the Secretary
of State issues such a direction it must be laid before Parliament
accompanied by a report on it.
Clause 72 - Consequential, transitional and incidental
116. Clause 72(2) gives the Secretary of State
a power, exercisable by order, to make consequential transitional
and incidental provision and savings as regards the new BTP provisions
in this Bill. To the extent therefore that there is legislation
(both primary and secondary), which is not compatible with the
new arrangements for the BTP and the new Authority, the Secretary
of State may deal with such matters by means of such an order.
An example of where such an order will be used is to deal with
section 23(7A)(d) Police Act 1996, which refers to the role of
the Strategic Rail Authority ("SRA") in the context
of financial arrangements for collaboration agreements with other
police forces. The SRA currently employs BTP constables and funds
the BTP, but these roles will become those of the Authority. The
power in clause 72(2) will therefore allow the Secretary of State
to make the necessary changes to section 23(7A)(d) Police Act
1996, which are required as a consequence of the provisions in
117. Clause 72(3) details matters on which the
Secretary of State may make transitional provision to deal with
the change of BTP regime. For example, there are numerous assets
such as BTP cars that are currently the property of the SRA which
will need to be transferred to the Authority, along with BTP constables
and civilian staff too. Where staff transfer in this way, their
employment status and benefits can be protected in accordance
with the powers in clause 72(3)(d) and (h). All rights and liabilities
of the SRA connected with the BTP may also be transferred by order
to the new Authority, under clause 72(3)(c).
118. Clause 72(3)(e) enables the Secretary of
State to make provisions which will ensure that the relevant pension
schemes continue given the changes brought about by the Bill.
Clause 72(3)(f) enables any provision made under paragraph (c)
or (e) to be treated as having a specified effect for the purposes
of an enactment. For example, this could include an order which
would have the effect of applying the provisions of the Pensions
Act 1995 relating to members' right to elect trustees.
119. Clause 72(3)(g) enables provision to be
made to enhance or ensure consistency between employees of the
Authority, or between the pension schemes to which employees belong.
For example, this would enable structural modifications to be
made to the pension schemes.
120. Clause 70(3)(i) allows the Secretary of
State's transitional order to make provision dealing with the
change from the existing police services agreements ("PSAs")
between the SRA and various train companies, to the new agreements
made under clause 32. So that the new agreements may be entered
in to, it is intended that existing PSAs, which make provision
for both funding of the BTP and are also integral to the BTP constable's
jurisdiction on the railways, will be terminated by order. That
order will also make provision on how rights and liabilities under
those agreements are to be treated.
121. To the extent that there are any legal disputes
in progress in connection with the BTP (between the SRA and train
companies for example), the order may make provision for the role
of the SRA to be replaced by the new Authority, under clause 72(2)(k).
122. Clause 72(3)(l) allows the Secretary of
State's transitional order to make provision preventing bankrupt
persons from being members of the Authority. Provision will be
along the lines of that already contained in paragraph 11 of Schedule
2 to the Police Act 1996. The intention is that in due course,
provision made by order under clause 72(2)(l) will be superseded
by the new provisions for bankruptcy restrictions orders under
the Enterprise Act 2002, once the relevant provisions of that
Act are in force.
123. By virtue of paragraph 32 of Schedule 5,
the Authority's financial years will end on 31st March. Clause
72(3)(m) will allow the transitional order to make provision dealing
with matters related to the Authority's finances, where the Authority
comes in to being before the 1st April in any year.
124. An order under clause 72 shall be made by
statutory instrument (clause 73(2)) and if it amends an enactment
or instrument, or if it contains the transitional provisions envisaged
by clause 72(3), it will be subject to the affirmative resolution
procedure. Otherwise an order may be made under the negative resolution
Clause 73 - Regulations and Orders
125. Clause 73 sets out the procedures for regulations
and orders made under Part 3. Its effect has been addressed in
relation to each clause discussed in the Memorandum.
Schedule 4 - British Transport Police Authority
126. Clause 18(2) gives effect to Schedule 4.
127. Paragraph 1(2) of Schedule 4 enables the
Secretary of State to vary the minimum and maximum numbers of
members of the Authority. Before he makes such an order, paragraph
1(3) requires him to consult the Authority. This is to make similar
provision to that contained in section 4 Police Act 1996 in respect
of Home Department police authorities. The power to make such
an order is exercisable by statutory instrument (clause 73(2))
which under clause 73(4) must be laid before Parliament.
128. Paragraph 24 of Schedule 4 applies to any
pension scheme for the benefit of BTP constables which had effect
before the coming into force of the Schedule and which continues
to have effect after the coming into force of the Schedule.
129. Paragraph 24(2) enables the provisions of
the scheme and the arrangements relating to the operation of the
scheme to be amended by order. Such provisions are intended to
amend the pension scheme trust documentation to take account of
the changed principal employer under the scheme and the establishment
of the new Authority.
130. Paragraph 24(3) illustrates how the power
may be exercised. For example, an order may make provision about
how the scheme can be amended or may confer a function, which
may be discretionary, on the Secretary of State. Such a function
conferred on the Secretary of State would be intended, for example,
to ensure that changes to the scheme rules would require the Secretary
of State's approval as well as the consent of the new Authority.
131. Paragraph 24(4) restricts the scope of any
order. For example, the order could not make provision about member
contribution rates, employer contribution rates or the scheme's
132. Paragraph 24(7) requires the Secretary of
State to consult the Trustees of the scheme before making an order.
The power to make an order is exercisable by statutory instrument
(clause 73(2)) which under clause 73(3)(c) will be subject to
the affirmative resolution procedure. This is appropriate because
of the important nature of public service pension schemes.
4 - SHIPPING:
133. None of the four delegated powers provided
for in this Part of the Bill has to be exercised to bring the
Part into force. They are powers to change particular aspects
of the legislation if there is a change in policy or a need to
react to developments or new circumstances and to retain flexibility.
All orders and regulations under this Part are to be made by statutory
instrument (clause 87(3)). Insofar as three of the powers relate
directly to criminal offences, they are to be subject to the affirmative
resolution procedure (clause 87(4)).
Clause 79 - Non-professionals
134. Clause 79 applies the alcohol and drugs
provisions of this Part to non-professionals (recreational mariners).
Clause 79(4) provides the Secretary of State with a power to make
regulations excepting non-professionals from the prescribed alcohol
limit in certain specified circumstances. The purpose of the power
enabling the Secretary to create such exceptions is to provide
for a flexible and proportionate approach to recreational mariners
in recognition of the fact that many aspects of recreational activities
on the water do not pose a significant danger.
135. Clause 79(5) provides that any regulations
made under clause 79(4) may make provision by reference, in particular,
to (a) the power of a motor; (b) the size of a ship (i.e. vessel);
or (c) location. Any regulations made under clause 79(4) would
have the effect of modifying the criminal offence set out in clause
79(3). For this reason, they are subject to the affirmative resolution
procedure, as provided by clause 87(4).
Clause 80 - Prescribed limit
136. Clause 80(2) provides the Secretary of State
with a power to amend clause 80(1). That clause sets the prescribed
limit of alcohol in a person's body for the purposes of an offence
whereby a person who is either professional staff on duty (clause
77); or professional staff off duty in the circumstances set out
in clause 78; or a non-professional (clause 79), exceeds the prescribed
limit in respect of the proportion of alcohol in his breath, blood
137. The power would allow Secretary of State
to change the limit to react to scientific developments, or to
make the limit more or less strict if that is felt for some reason
to be more appropriate. It is anticipated that any change to the
limit currently prescribed in clause 80(1) would be by way of
reaction to any corresponding change with regard to road traffic
138. Any regulations made under clause 80(2)
would be subject to the affirmative resolution procedure and would
require prior consultation by the Secretary of State with such
organisations as he sees fit.
Clause 82 - Specimens, &c
139. Under clause 82(2) the Secretary of State
may make regulations to amend the table in clause 82(1). Clause
82(1) provides that the provisions of road traffic legislation
set out in that clause have effect subject to the modifications
set out. Those modifications apply the provisions to the context
of shipping and modify them in certain other ways to adapt them
to the shipping or marine context.
140. Road traffic legislation on alcohol and
drugs may itself change in the future. This power allows regulations
to be made so that any such changes can be reflected in shipping
law with any appropriate modifications. It also allows existing
modifications to be added, amended or removed whether or not in
connection with an amendment of a provision in the table. Any
regulations made under clause 82(2) would be subject to an affirmative
Clause 83 - Detention pending arrival of police
141. Clause 83 deals with the detention of ships
by a marine official pending the arrival of the police if such
an official suspects that an offence is being, or has been committed
on board. Clause 83(3) provides a definition of the term "marine
official" for this purpose. Under clause 83(3)(c) this is
includes "a person falling within a class designated by order
of the Secretary of State".
142. Under clause 87(2), the Secretary of State's
power to designate a class of person as a marine official pursuant
to section 83(3)(c) expressly includes a power to designate either
himself or one or more persons employed in the Department for
Transport. This would include, for example, personnel from the
Maritime and Coastguard Agency (MCA), an Executive Agency of the
143. An order made under section 83(3)(c) is
subject to the negative resolution procedure. The negative resolution
procedure is appropriate in this instance because the function
of the marine official in this context is an administrative one.
No criminal sanctions are involved.
5 - AVIATION:
144. None of the three delegated powers provided
for in this Part of the Bill has to be exercised to bring the
Part into force. They are powers to change particular provisions
of the legislation if there is a change in policy or a need to
react to developments or new circumstances. The regulations concerned
are to be made by statutory instrument (clause 98(2)(a)) and under
the affirmative procedure (clause 98(2)(b)).
Clause 92 - Prescribed limit
145. Clause 92(4) provides the Secretary of State
with a power to amend clause 92(2) or 92(3). Those clauses set
the prescribed limit of alcohol in a person's body for the purposes
of the offences of performing certain aviation functions or carrying
out an activity ancillary to an aviation function while the proportion
of alcohol in the person's breath, blood or urine exceeds the
146. The power to make regulations would enable
the prescribed limit to be changed to react to scientific developments
or to make the limits more or less strict if that is felt for
some reason to be fairer.
Clause 93 - Aviation functions
147. Clause 93(8) gives the Secretary of State
the power to make regulations amending clause 93. Clause 93 sets
out the activities (aviation functions and activities ancillary
to aviation functions) concerned in the offences of being unfit
or over the prescribed limit. This regulation-making power will
allow, for example, other occupations to be added to the list
of aviation functions in a fast developing industry. For instance,
the House of Commons Committee discussed sky marshals in this
Clause 95 - Specimens &c
148. Under clause 95(2) the Secretary of State
may make regulations to amend the table in clause 95(1). Clause
95(1) provides that the provisions of road traffic legislation
set out in that clause have effect subject to the modifications
there. Those modifications apply the provisions to the context
of aviation and modify them in certain other ways to adapt them
to the aviation context. Road traffic legislation on alcohol and
drugs may itself change in the future. This regulation-making
power allows those changes to be reflected in aviation law with
any appropriate modifications. It also allows existing modifications
to be added, amended or removed whether or not in connection with
an amendment of a provision in the table. Thus the affirmative
resolution regulations can be used to "fine tune" the
extent to which these provisions mirror those in road traffic.
6 - MISCELLANEOUS
Clause 102 - Convention on International Carriage
149. Clause 102 is designed to allow the UK to
give effect to the modifications to the Convention concerning
International Carriage by Rail ("COTIF") made by the
Protocol of Vilnius 1999. The new Convention text agreed at Vilnius
in 1999 is quite different to the previous text, not least because
the new text ("COTIF 1999") makes provision on areas
not covered by the previous text. Of particular note are new appendices,
which will provide detailed technical prescriptions and technical
specifications for railway vehicles and material. The Department
expects there to be a steady and regular number of modifications
to the new text, so the powers in the Bill are designed to provide
a flexible mechanism to give effect to the new text and future
150. The previous text was implemented in the
UK by means of the International Transport Conventions Act 1983.
Clause 102(1) allows the Secretary of State to make regulations
to give effect to the new text of COTIF 1999. The regulations
will be made by statutory instrument (clause 102(4)), and in view
of future potential modifications the regulations are subject
to the affirmative resolution procedure (clause 102(5)). The affirmative
resolution procedure is also appropriate because the regulations
will need to repeal provisions of the 1983 Act.
151. Clause 102(2) gives effect to Schedule 6
which sets out what provision may be made by regulations under
clause 102(1) and also extends the power (for this purpose) in
section 2 European Communities Act 1972. This is to reflect the
fact that elements of COTIF 1999 are in the UK's sphere of external
competence on railways matters (i.e. the UK's area of responsibility
as regards international relations on railways) and other elements
fall in the EC's sphere of external competence on railways matters.
Over time, as the EC makes more railways legislation itself, it
is likely that the EC's competence in matters covered by the COTIF
Convention will grow. Where the elements of the COTIF Convention
fall within the EC's sphere of external competence, the Secretary
of State's regulations will be made under section 2 European Communities
152. The new Convention text establishes:
- rules that will apply to contracts for international
carriage of passengers and goods (the "CIV" & "CIM"
- regulations on the international carriage of
dangerous goods (the "RID" regulation),
- rules for contracts of use of vehicles in international
rail traffic (the "CUV" rules),
- rules for contracts of use of infrastructure
in international rail traffic (the "CUI" rules),
- rules on the validation of technical standards
and prescriptions applicable to railway material intended to be
used in international traffic (the "APTU" rules), and
- rules on the technical admission of railway material
used in international traffic (the "ATMF" rules).
Schedule 6, paragraph 2 - General
153. The powers in paragraph 2 of Schedule 6
will allow regulations to be made so that the UK law gives effect
to the new Convention. Examples of how those powers will be used
- giving effect to the CIV and CIM appendices without
the need for further detail on the face of the legislation. This
will ensure that the CIM and CIV rules apply to contracts for
international rail carriage entered in to under UK law. Article
7 of the uniform rules for contracts of international carriage
of passengers by rail (the "CIV" rules) for example,
requires that the certain information, such as the name of the
carrier must appear on a passenger's international train ticket.
The power in paragraph 2(b) would allow the regulations to ensure
that such provision is required by UK law.
- Paragraph 2(d) would allow the regulations to
amend any enactment which is incompatible with the UK's obligations
under the Convention.
- Article 18 of the ATMF rules on the admission
of railway material in to international traffic requires the UK
to make provision for the legal consequences for failing to comply
with the APTU and ATMF uniform rules. The power in paragraph 2(f)
would allow the regulations to make such provision.
- Paragraph 2(g) permits the regulations to confer
a function (which may include a discretionary function) on the
Secretary of State or a person appointed in accordance with the
regulations. This power is intended, in particular, to deal with
(i) It will enable the regulations to specify
the authority competent to grant technical admission to rolling
stock in the UK as required by Article 5 of Appendix G to the
new Convention (Uniform Rules concerning the Technical Admission
of Railway Material). This is likely to be the Health and Safety
Executive in Great Britain.
(ii) It will enable the Health and Safety Executive
to be designated, if appropriate, as the enforcement authority
for certain aspects of the new Convention - in particular for
its provisions relating to technical standards and technical acceptance
for rolling stock and infrastructure. The Health and Safety Executive
already carries out a number of similar enforcement functions
in the rail sector.
(iii) It will enable the regulations to continue
the current policy, in the UK implementation of the 1980 Convention,
that examination of luggage, vehicles etc, where there is good
reason to suspect that the conditions of carriage have not been
observed, can only take place in the presence of a constable.
- The ATMF rules (articles 3-6) require provision
to be made on the technical admission of railway vehicles and
other railway material in each contracting state and the mutual
recognition of admission granted in other contracting states.
Paragraph 2(l) would allow the regulation to make such provision.
Paragraph 2(i) and (j) would allow regulations to address the
fee and information requirement necessary to support an application
for technical admission in the UK.
- Paragraph 2(o) permits the regulations to include
consequential provision repealing an enactment. It is anticipated
that this power will be used to repeal the provisions of the International
Transport Conventions Act 1983 which will become redundant on
the making of the new regulations.
Schedule 6, paragraphs 3 and 4 - Changes to the
154. The COTIF 1999, including its various appendices,
can be modified by committees established under the Convention
(for minor technical modifications) or by the General Assembly
(for more major modifications). For example, the Committee of
Technical Experts (established under Article 13(1)(f) of the Convention)
is able under article 20 of the Convention to take decisions on
the adoption and modification of uniform technical prescriptions
as set out in the annexes to APTU. It would for example take a
decision about whether each new European Community technical specifications
for interoperability (TSI) - of which a large number are under
development, should be adopted to form part of the APTU annexes.
By taking decisions such as this, or indeed a Committee of the
Convention taking any decision within it powers as provided for
by the Convention, the Convention text itself is modified. The
powers in paragraph 3 of Schedule 6 enable the Secretary of State's
regulations to ensure that where such changes are made to the
Convention, that the Convention as modified has the force of law
in the UK. This will avoid the need to amend the UK implementing
regulations when such minor modifications are made.
155. Most of the changes to the Convention will
be minor technical changes. The General Assembly could however
make more wide reaching changes to the Convention, and so paragraph
3(b) allows the Secretary of State to make provision so that such
changes (unless such changes were also of a minor technical nature)
should not automatically flow through in to UK law, but require
some further step, such as the making of amending regulations.
Such regulations will still however be subject to the affirmative
156. Paragraph 3(2)(c) would allow the regulations
to make provision so that where an appendix to the Convention
is suspended under Article 35(4), that the suspension shall have
effect in the UK.
157. Paragraph 4 of Schedule 6 is to allow the
regulations made by the Secretary of State to make provision on
information. It will allow for example up to date lists of the
parties to the Convention and the technical standards and prescriptions
in force to be published. This will assist persons and companies
who are considering an international journey, but wish to know
whether they will get the benefit of the Convention for that journey.
Schedule 6, paragraph 5 - Imposition of Conditions
158. The Convention makes various requirements
which will apply to persons who take part in international traffic.
For example a railway undertaking in the future may wish to use
a new type of wagon in international traffic. The provision in
paragraph 5 of Schedule 6 will allow the regulations made by the
Secretary of State to set preconditions for technical admission
of that vehicle. This may include the need for an application
for technical admission to the competent authority in a specified
format and might include provision for the charging of a fee in
connection with such assessments. Paragraph 5(2)(f) is to allow
similar provision to be made to that currently contained in section
7 of the International Transport Conventions Act 1983.
Schedule 6, paragraph 6 - Sanctions
159. Paragraph 6 allows the regulations made
by the Secretary of State to make provision for sanctions for
failing to comply with the Convention. Sanctions may be either
criminal or civil. Article 18(1) of the ATMF Appendix requires
the UK to make provision for the "juridical consequences
from failure to comply [with ATMF]". Article 18(2) ATMF provides
that the "consequences in civil and penal law, resulting
from failure to comply [with the APTU Annexes and the ATMF] shall
be regulated by the Contracting State
6 will therefore allow the UK to make such provision in regulations.
160. Paragraph 6 anticipates 3 different types
of provision in respect of criminal sanctions that may be created.
Paragraph 6(2) restricts the sanction which would generally apply
in respect of offences committed for not complying with the Convention
or regulations giving effect to the Convention. In effect this
only permits creation of an offence punishable by a fine of up
to £5000 in the Magistrate's Court.
161. Where a provision of the Convention falls
within the EC's sphere of external competence however (such as
APTU), it is appropriate that sanctions in line with that which
could be created under the European Communities Act 1972 could
be created. The effect of paragraph 6(3) therefore is that where
an offence is created which is effectively made on the basis of
section 2(2) of the European Communities Act 1972, the sanction
that is created is limited by paragraph 2(1)(d) of Schedule 2
to the 1972 Act. That is, a sentence of either up to two years
imprisonment for Crown Court cases or three months imprisonment
for Magistrates' Court cases. Fines could also be provided for
in this context, albeit subject to a maximum £5000, or up
to a £100 per day fine (for continuing breaches for example).
162. Paragraph 6(4) is designed to allow sanctions
for certain offences which might be created in the regulations
to match sanctions in the Health and Safety at Work Act 1974.
This is because it is likely to be necessary to align penalties
for non-compliance with the technical standards and prescriptions
set out in the APTU appendix with those applicable for non-compliance
with Technical Specifications for Interoperability under EC rail
interoperability regime, and which has been implemented in the
UK by the Railways (Interoperability) (High-Speed) Regulations
2002 (SI 2002/1166). Regulation 31 of the 2002 Regulations provides
that certain provisions of the Health and Safety at Work Act etc.
1974 will apply to the enforcement of the 2002 Regulations. Because
the standards under COTIF and under the EC interoperability regime
are likely to be of identical, it is appropriate that the criminal
sanctions for the enforcement of similar matters can be the same.
Schedule 6, paragraph 7 - Related Legal Proceedings
163. Paragraph 7 will allow the regulations made
by the Secretary of State to make provision so that where certain
persons are able to bring a claim for damages for another person's
death under COTIF 1999, they may not bring an action under the
Fatal Accidents Act 1976. Similar provision currently exists in
the 1983 Act.
Schedule 6, paragraph 8 - Enforcement of Judgments
164. Paragraph 8 enables the regulations made
by the Secretary of State to make provision to allow the provisions
of the Foreign Judgements (Reciprocal Enforcement) Act 1933 to
apply, so that judgements made under COTIF in a non-UK court could
be registered in the UK and enforced through the UK courts.
Schedule 6, paragraph 9 - Special Drawing Rights
165. Paragraph 9 will allow the regulations to
make provision for the currency unit used in connection with the
Convention, "the Special Drawing Right", to be converted
in to sterling. It is likely that provision similar to that presently
contained in section 5 of 1983 Act would be made.
Schedule 6, paragraph 10 - Saving
166. Although Schedule 6 scopes the power of
the Secretary of State to make regulations giving effect to COTIF
1999, it does not limit the generality of the power in clause
102(1), ie that the "Secretary of State may make regulations
for the purpose of giving effect to the Convention". To the
extent therefore that a particular power does not appear in clause
Schedule 6, paragraph 10(a) enables regulations to be made under
clause 102(1) to give effect to the Convention. Where part of
the Convention falls within the EC's sphere of external competence,
paragraph 10(b) operates so that even though a power or provision
does not appear in Schedule 6, the Convention may still be given
effect to as necessary under the extended power in section 2 European
Communities Act 1972 (through section 102(2)).
Clause 104 - Railways safety levy
167. Clause 104 inserts a new section 43A into
the Health and Safety at Work Act (HSWA) 1974 enabling the Secretary
of State to make Regulations requiring the payment of a railway
safety levy to meet the expenses incurred by the Health and Safety
Executive (HSE) in undertaking its railway regulatory activities.
The Secretary of State would make such Regulations after receiving
proposals from the Health and Safety Commission (HSC).
168. The powers contained in new section 43A
are required because levies cannot be imposed under regulations
made under section 43(2) of the HSWA. Regulations made under section
43(2) already enable fees, including fees based on an hourly charging
regime, to be charged for some of HSE's railway regulatory activities.
169. Since October 1999 HSE has charged on an
hourly basis for a range of regulatory work, including inspection
activities, relating to the railway industry. Ministers agreed
that the impact of charging would be reviewed after two years.
That review (informed by a report from Deloitte & Touche)
- the existing charging regime was seen as bureaucratic
both for stakeholders and HSE; and
- stakeholders could not easily budget for charges.
Replacement of the existing charging regime by a
- reduce bureaucracy; and
- provide a greater certainty in financial planning
for industry stakeholders.
170. Under section 11(2)(d) of HSWA, HSC will
be able to propose to the Secretary of State regulations which
provide for the amount of the levy to be imposed and determine
who will pay the levy. Regulations may also contain provisions
about the supply of information to enable the matters referred
to in new section 43A(5) to be determined. Such regulations will
be proposed after full public consultation (as required under
section 50(3) of HSWA) on proposals developed by HSE and accepted
171. Regulations will be made by negative resolution
procedure pursuant to section 82(3)(b) of HSWA. Fee regulations
made under section 43(2) are already made pursuant to section
82(3)(b) of HSWA, hence it is thought appropriate that the levy
regulations, requiring as they will a considerable amount of practical
detail, should be the subject of delegated powers too.
172. HSC/E is currently developing policy options
to form the basis of the proposals it will put to the Secretary
of State for regulations to introduce the levy. Current policy
intentions for the main provisions are summarised below. However,
consultation on the detail of the Regulations will not take place
before the Bill receives Royal Assent. HSC/E intends to engage
in discussions with industry stakeholders, and to have a full
public consultation exercise before any regulations are introduced.
The policy proposals outlined in this Memorandum are purely for
the purpose of showing how the enabling powers in clause 102 might
be used and do not commit the HSC or Ministers to the detail of
any of these particular proposals, which may be subject to change
in the light of consultation.
173. HSC/E's current policy intention is to seek
to recover the same proportion of money through a levy as it does
from the existing charging regime (currently about 55% of the
costs of HSE's HM Railway Inspectorate's regulatory activities).
The income from charging for 2001/02 was £5.25 million. This
approach would mean that HSE's railway safety activity would continue
to be funded via a combination of grant-in-aid provision from
the Government and a charge on the industry. The mechanism of
raising money from the industry would change from an hourly charging
regime to a levy system.
174. At present HSC/E is minded to propose that
payment of the bulk of the levy will fall on those who hold a
safety case which has been accepted by HSE. The precise mechanism
of collection remains under consideration and will form part of
the consultation process. All sectors of the industry who presently
hold a railway safety case are subject to the current charging
regime. The current charging arrangements exclude low speed systems,
including heritage railways and tramways, and it is anticipated
that an exclusion for these systems will continue to apply in
relation to the levy. Consultation, before proposals are finalised,
will cover the possibility of extending the scope of exemptions.
175. HSC/E currently believes that rail related
turnover in the previous financial year would provide the best
proxy for determining the proportion of the levy to be paid by
each organisation affected, but again this will be subject to
176. It is anticipated that recovery of any debts
associated with the levy will be by means of civil proceedings.
The same restrictions will be placed on the disclosure of information
collected by HSE in the course of calculating and raising the
levy as on other information gathered by HSE in the course of
its enforcement activities. Information, including commercially
sensitive information such as unaudited accounts, VAT returns
etc., obtained by HSE in this way can only be disclosed with the
consent of the person who supplied it.
177. HSC/E intends to establish a consultative
forum of industry stakeholders, along the lines of the existing
consultative forum for charging, to provide views on the operation
of the levy.
Clause 105 - Railway security services
178. Cause 105 will amend the Railways Act 1993,
by inserting a new section 121A. Section 121A will empower the
Secretary of State to make regulations about the listing of people
who are approved by him for the provision of a particular railway
179. The clause follows a similar regulation
making power in section 20A of the Aviation Security Act 1982
for the listing of aviation security service providers. Thus Parliament
has already considered it acceptable for the matter to be the
subject of delegated powers.
180. Section 121A(1) will define what is meant
by "railway security service", and section 121A(2) states
that regulations may provide for the maintenance of a list. Under
subsection (3), the regulations may prohibit the use of a person
to provide a service if the person is not approved, and may create
criminal offences. Amongst other matters, the regulations may
also provide for removal from the list and appeals.
181. Subsection (4) sets limits on the penalties
which may be imposed. Subsection (5) provides for an instruction
under section 119 Railways Act 1993 to be able to include a requirement
about using a listed person, or to provide for the instruction
to apply with modified effect where a listed person provides a
182. Subsection (6) makes supplementary provision
about regulations, including for the Secretary of State to have
to consult organisations appearing to him to represent persons
affected by the regulations. The proposed section 121A(6)(e) will
require that regulations to be subject to the negative resolution
procedure. This is consistent with section 20A of the Aviation
Security Act (inserted by the Anti-Terrorism, Crime and Security
Act 2001) on which the clause is modelled.
Clause 107 - Seat belts: delivery drivers
183. Clause 107 amends section 14 of the Road
Traffic Act 1988 by substituting a new subsection (2)(b)(i). Section
14 is an enabling power under which the Secretary of State may
already make regulations requiring persons to wear seat belts
when driving or riding in motor vehicles. Subsection (2)(b) already
provides that any regulations made under the power imposing such
requirements must include specified exceptions.
184. Subsection (2)(b)(i) as currently enacted
is not well understood in practice, and the purpose of the amendment
is to make its application clearer. As amended it will provide
that regulations must exempt the driver or passenger of a goods
vehicle undertaking deliveries or collections from the obligation
to wear a seat belt while on a journey shorter than the prescribed
distance. Regulations will not be made prescribing a distance
until after interested parties have been consulted about what
185. The new regulations under section 14 will
be made under the affirmative resolution procedure by virtue of
section 195(4) Road Traffic Act 1988.
Clause 109 - Shipping legislation: application
to structures, craft etc
186. Clause 109 will enable the Secretary of
State to make an order which is subject to negative resolution
procedure, to provide for a shipping provision to apply or not
apply to specified things which are used, navigated or situated
wholly or partly in or on water. The order may also modify a shipping
provision in its application to specified things. Its purpose
is to provide flexibility in the application of existing primary
legislation to meet changing circumstances.
187. This power replaces the existing power in
section 311 of the Merchant Shipping Act 1995, which gave similar
but more restricted powers to the Secretary of State. That section
enabled the Secretary of State to make an order providing for
things designed or adapted for use at sea to be treated as a ship
for the purposes of any specified provision of that Act or an
instrument made under it. The new power in clause 109 is not restricted
to things used at sea, and can relate to any Act (not just the
Railways and Transport Safety Bill) which applies to ships, vessels
188. In the context of the Railways and Transport
Safety Bill, an order may be made to provide for clause 79 (non-professionals
on board ships under way) to apply in relation to personal watercraft,
which may not fall within the definition of "ship" in
clause 88. In the case of a professional instructor operating
a personal watercraft, an order may be made to provide for clause
77 to apply.
189. An order may also be made to provide for
regulations, which are made under the Merchant Shipping Act 1995
and relate to the prevention of collisions, to apply in relation
to personal watercraft. Another possibility is that an order will
be made to provide for regulations which are made under the Merchant
Shipping Act 1995 and relate to the survey and certification of
ships to apply in relation to chain ferries.
190. It may also be necessary to make an order
to provide for the knock-on effects on other legislation, such
as section 76 of the Public Health Act 1961 and section 231 of
the Public Health Act 1936, which contain references to pleasure
boats and vessels used for pleasure purposes. This is because
it might be inferred that as it has been considered necessary
to use the power to treat personal watercraft as ships for the
purposes of the Merchant Shipping Act 1995, doubt is then cast
on whether "pleasure boat" or "vessel used for
pleasure purposes" could cover personal watercraft.
191. Clause 109(3) is necessary because of the
potential need to use the order in the context of a regulation
making power in the Merchant Shipping Act 1995, and because the
regulations made may need to provide for the creation of offences.
192. Clause 109(4) is necessary to ensure that
any order made will override any definition or limitation of the
scope of legislation specified in the order. It will be noted
that clause 109(4) includes provision for amendment of legislation.
This is a very restricted power - it is just dealing with technical
inconsistencies where the order expands or contracts the class
to which shipping provisions can apply. For example, if an Act
were to provide that a particular provision did not apply to chain
ferries, and the Secretary of State provided by order under clause
106 that the provision is to apply to chain ferries, it would
not be very helpful to the reader to leave the provision in the
Act totally unchanged.
193. It may be argued that in view of this provision
for amendment of legislation, any order made should be subject
to affirmative resolution procedure. However, being able to amend
textually as in clause 109(4) is no more powerful, so far as the
world generally is concerned, than being able to provide for a
shipping provision not to apply or to apply as in clause 109(1).
194. Therefore, if negative resolution procedure
is thought acceptable for clause 109(1), the Department considers
it would not be logical to require affirmative resolution just
because of the words in parentheses in clause 109(4). It may also
be noted that section 311 of the Merchant Shipping Act 1995 provided
only for negative resolution procedure for orders made under that
195. Clause 109(5) sets out the types of provision
which may be included in the order, and this is based on the existing
powers in section 311(2)(a) of the Merchant Shipping Act 1995.
196. The purpose of clause 109(6) is to enable
provision to be made for other legislation to take precedence.
This would be relevant where regional or local legislation exists
for the thing specified in the order. For example, in Scotland
the local authorities have powers under section 121 of the Civic
Government (Scotland) Act 1972 to regulate traffic on inland waters
in Scotland, and it may be appropriate for their legislation to
take precedence. In the UK generally, and in relation to the prevention
of collisions, it may be appropriate for local rules relating
to harbours and rivers to take precedence.
197. Under clause 109(7), an order will be subject
to the negative resolution procedure. However, the Secretary of
State will have to consult organisations in the UK which appear
to him to be representative of persons who will be affected by
the order. This is the same consultation procedure as is required
for the making of safety regulations under the Merchant Shipping
Clause 110 - Maritime security services
198. Clause 110 inserts a new section 36A in
to the Aviation and Maritime Security Act 1990. Section 36A will
empower the Secretary of State to make regulations about the listing
of people who are approved by him for the provision of a particular
maritime security service. It is identical in form and rationale
to the new section introduced by clause 105 (discussed above).
7 - GENERAL
Clause 117 - Commencement
199. Clause 117(1) - (4) makes provision for
commencement orders which, in line with normal practice, are not
subject to Parliamentary scrutiny. A commencement order made under
this provision may make transitional, consequential or incidental
provision. In particular, under clause 113(3) transitional provisions
may be made in place of paragraph 2(c) of Schedule 1 (dismissal
of a member of the Office of Rail Regulation who is the subject
of a bankruptcy restrictions order), until the provisions of the
Enterprise Act 2002 relating to bankruptcy restrictions orders
come into force.