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Railways Act 2005 (c. 14)

(The document as of February, 2008)

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(2) In subsection (1) of section 60 (petition for railway administration order), for the words from the beginning to the end of paragraph (b) substitute--

" (1) If, on an application relating to a protected railway company " .

(3) After that subsection insert--

" (1A) An application under subsection (1) for the making of a railway administration order may be made--

(a) in the case of an application on the ground specified in paragraph (a) of subsection (2), only by the appropriate national authority; and

(b) in the case of an application on the ground specified in paragraph (b) of that subsection, only by the Secretary of State. "

(4) In each of the following provisions of the 1993 Act, for "Secretary of State", wherever occurring, substitute "appropriate national authority", namely--

(a) section 61(1)(a)(i) and (2)(a) (notice and power to petition for railway administration order in the case of a winding-up petition);

(b) section 62(2)(a)(i), (3)(a), (5)(a)(i), (6)(a) and (7)(a) (notice and power to petition for railway administration order in the case of voluntary winding-up and other insolvency proceedings); and

(c) paragraphs 3, 7, 9 and 10 of Schedule 6 (modifications of the Insolvency Act 1986 (c. 45)).

(5) In paragraph 1 of Schedule 6 to the 1993 Act, before the "and" at the end of paragraph (a) insert--

" (aa) as if references in those sections to the appropriate national authority were to be construed in accordance with section 59(6)(za) of this Act; " .

(6) In paragraphs 7(4), 8, and 10(5) of Schedule 6 to the 1993 Act, for "the Strategic Rail Authority" substitute "the appropriate national authority".

(7) In paragraph 2 of Schedule 7 to the 1993 Act (making and modification of transfer schemes in connection with railway administration orders), for each of the following substitute "the appropriate national authority", namely--

(a) in sub-paragraph (2), the words from "the Secretary of State" onwards;

(b) in sub-paragraphs (4) and (5), "the Secretary of State", wherever occurring;

(c) in sub-paragraph (6), "the Secretary of State or Authority", in each place, and "the Secretary of State or the Authority"; and

(d) in sub-paragraph (7), the words from "the Secretary of State or, in" to "the Authority" and "the Secretary of State or Authority".

(8) In that paragraph--

(a) in sub-paragraph (3), for the words from "the Secretary of State", where first occurring, to "or Authority" substitute "the appropriate national authority, it"; and

(b) in sub-paragraph (6), for "his" substitute "the appropriate national authority's".

(9) After sub-paragraph (8) of that paragraph insert--

" (9) A statutory instrument containing an order under this paragraph by the Scottish Ministers is subject to annulment in pursuance of a resolution of the Scottish Parliament. "

(10) Where a railway administration order is in force immediately before the commencement of this section in relation to a Scottish protected railway company, things done by or in relation to the Secretary of State for the purposes of or in connection with that order and by virtue of --

(a) any provision of sections 59 to 62 of the 1993 Act, or

(b) any provision of Schedule 6 or 7 to that Act, or of the Insolvency Act 1986 (c. 45) as modified by Schedule 6 to the 1993 Act,

are to have effect, so far as necessary for giving them continuing validity and effect, as if done by the Scottish Ministers.

(11) The power to amend Schedule 6 to the 1993 Act under section 249 of the Enterprise Act 2002 (c. 40) applies to the modifications of that Schedule by this Act, as it applies to that Schedule.

50 Assistance by Scottish Ministers for companies in railway administration

(1) In section 63 of the 1993 Act (financial assistance by the Secretary of State where railway administration orders made)--

(a) in subsection (1), after "a company" insert "other than a Scottish protected railway company"; and

(b) in subsection (2), for the words from "in relation to which" onwards substitute " where that company--

(a) is a company in relation to which a railway administration order is in force at the time when the guarantee is given; and

(b) is not a Scottish protected railway company. "

(2) After section 64 of that Act insert--

" 64A Financial assistance by Scottish Ministers

(1) Where a railway administration order is for the time being in force in relation to a Scottish protected railway company, the Scottish Ministers may--

(a) make grants or loans to the company of such sums as appear to them to be appropriate for the purpose of facilitating the achievement of the purposes of the order; or

(b) agree to indemnify a relevant person in respect of--

(i) liabilities incurred by that person in connection with the carrying out by the railway administrator of his functions under the order; and

(ii) loss or damage incurred by that person in that connection.

(2) The Scottish Ministers may guarantee--

(a) the repayment of the principal of any sum borrowed by a Scottish protected railway company in relation to which a railway administration order is in force when the guarantee is given;

(b) the payment of interest on a sum so borrowed; and

(c) the discharge of any other financial obligation in relation to a sum so borrowed.

(3) A grant, loan, indemnity or guarantee under this section may be made or given in whatever manner, and on whatever terms and subject to whatever conditions, the Scottish Ministers consider appropriate.

(4) The terms on which a grant may be made under this section include, in particular, terms requiring the whole or a part of the grant to be repaid to the Scottish Ministers if there is a contravention of the other terms on which the grant is made.

(5) The terms on which a loan may be made under this section include, in particular, terms requiring--

(a) the loan to be repaid at such times and by such methods, and

(b) interest to be paid on the loan at such rates and at such times,

as the Scottish Ministers may from time to time direct.

(6) The power of the Scottish Ministers under this section to agree to indemnify a relevant person--

(a) is confined to a power to agree to indemnify that person in respect of liabilities, loss and damage incurred or sustained by him as a relevant person; but

(b) includes power to agree to indemnify persons (whether or not they are identified or identifiable at the time of the agreement) who subsequently become relevant persons.

(7) A person is a relevant person for the purposes of this section if he is--

(a) the railway administrator;

(b) an employee of the railway administrator;

(c) a member or employee of a firm of which the railway administrator is a member;

(d) a member or employee of a firm of which the railway administrator is an employee;

(e) a member of a firm of which the railway administrator was an employee or member at a time when the order was in force;

(f) a body corporate which is the employer of the railway administrator; or

(g) an officer, employee or member of such a body corporate.

(8) In this section--

(a) references to the railway administrator, in relation to a railway administration order, are references to the person appointed to achieve the purposes of the order and, where two or more persons are so appointed, are to be construed as references to any one or more of them; and

(b) the references to a firm of which a person was a member or employee at a particular time include references to a firm which holds itself out to be the successor of a firm of which he was a member or employee at that time.

(9) If sums are paid out by the Scottish Ministers in respect of an indemnity or guarantee under this section, the company in relation to which the indemnity or guarantee was given must pay them--

(a) such amounts in or towards the repayment to them of those sums as they may direct; and

(b) interest, at such rates as they may direct, on amounts outstanding under this subsection.

(10) Payments to the Scottish Ministers under subsection (9) must be made at such times and in such manner as they may determine.

(11) Subsection (9) does not apply in the case of a sum paid by the Scottish Ministers for indemnifying a person in respect of a liability to the company in relation to which the railway administration order in question was made. "



Duties of co-operation

51 ORR to assist and advise national authorities

(1) It shall be the duty of the Office of Rail Regulation to comply with every reasonable requirement of the Secretary of State--

(a) to provide him with information or advice about a matter connected with a function or other activity of his in relation to railways or railway services;

(b) to provide him with information or advice about a matter relevant to the railway safety purposes; or

(c) otherwise to provide him with assistance in relation to a matter that is connected with such a function or activity or is relevant to those purposes.

(2) It shall be the duty of the Office of Rail Regulation to comply with every reasonable requirement of the Scottish Ministers--

(a) to provide them with information or advice about a matter connected with a function or other activity of theirs in relation to railways or railway services; or

(b) otherwise to provide them with assistance in relation to a matter that is connected with such a function or activity.

(3) It shall be the duty of the Office of Rail Regulation to comply with every reasonable requirement of the National Assembly for Wales to provide the Assembly with information or advice about a matter connected with a function or other activity of the Assembly in relation to railways or railway services.

(4) References in this section to the functions of a person in relation to railways or railway services include references, in particular, to all that person's functions under Part 1 of the 1993 Act, Part 4 of the 2000 Act or this Act.

(5) In this section "railway safety purposes" has the same meaning as in Schedule 3.

52 Duty of Passenger Transport Executives to advise Secretary of State

(1) It shall be the duty of a Passenger Transport Executive to comply with every requirement of the Secretary of State to provide him with advice about a matter connected with a function or other activity of his in relation to railways or railway services.

(2) A Passenger Transport Executive are not required to do anything under this section to the extent that it would involve an unreasonable administrative burden for the Executive.

(3) In determining the extent to which anything would involve an unreasonable administrative burden regard must be had (where relevant) to so much of whatever else the Passenger Transport Executive are required to do under this section as they have accepted does not involve such a burden.

(4) References in this section to the functions of the Secretary of State in relation to railways or railway services--

(a) include references, in particular, to all his functions under Part 1 of the 1993 Act, Part 4 of the 2000 Act or this Act; but

(b) do not include references to any functions of his so far as they are exercisable, or fall to be performed, for or in connection with the railway safety purposes (within the meaning of Schedule 3).



Part 6 General and supplemental

General

53 Taxation

Schedule 10 (which makes taxation provision in relation to transfer schemes under sections 1(2) and 12) has effect.

54 Further amendments of the 1993 Act

(1) In sections 118 and 119 of the 1993 Act (powers in emergency and security powers etc.), at the end of subsection (11), in each case, insert "with "railway" having its wider meaning for the purposes of this section."

(2) After section 119(5) of that Act insert--

" (5A) The Secretary of State may give an instruction under this section for the protection of a relevant asset that is wholly in Scotland, or of persons or property on or in such an asset, only if--

(a) the asset would be a relevant asset even if railway did not have its wider meaning for the purposes of this section; or

(b) the instruction is given in the interests of national security.

(5B) In subsection (5A) the reference to an instruction given in the interests of national security includes a reference to any instruction given for the purpose of ensuring that protection against terrorism is provided to the asset, persons or property in question. "

(3) In section 119(11) of that Act, after the definition of "specified" insert--

" "terrorism" has the same meaning as in the Terrorism Act 2000 (c. 11) (see section 1 of that Act); " .

(4) Schedule 11 (which makes further miscellaneous minor and consequential amendments of the 1993 Act) has effect.



Supplemental

55 Expenses etc.

(1) There shall be paid out of money provided by Parliament--

(a) any expenditure incurred by the Secretary of State for or in connection with the carrying out of any of his functions under this Act; and

(b) any increase attributable to this Act in the sums which are payable out of money so provided under any other Act.

(2) Sums received by the Secretary of State by virtue of any of the following provisions of this Act must be paid into the Consolidated Fund--

(a) section 6;

(b) section 10(6);

(c) section 13(3);

(d) paragraph 7 of Schedule 5.

56 Powers exercisable by statutory instrument

(1) Every power conferred by this Act on the Secretary of State or the Scottish Ministers to make an order or regulations is a power exercisable by statutory instrument.

(2) Where--

(a) this Act provides for an order or regulations to be subject to the negative resolution procedure, and

(b) a draft of the order or regulations is not required, in accordance with subsection (4) or any other enactment, to have been laid before Parliament and approved by a resolution of each House, or by a resolution of the House of Commons or of the Scottish Parliament,

the statutory instrument containing the order or regulations shall be subject to annulment in pursuance of a relevant resolution.

(3) In subsection (2) "a relevant resolution"--

(a) in relation to an order or regulations made by the Secretary of State, means a resolution of either House of Parliament;

(b) in relation to an order or regulations made by the Scottish Ministers, means a resolution of the Scottish Parliament; and

(c) in relation to an order made by the Secretary of State and the Scottish Ministers jointly, means a resolution of either House of Parliament or of the Scottish Parliament.

(4) Where this Act specifies that a power to make provision of a particular description by order is subject to the affirmative resolution procedure, no order may be made containing provision of that description (with or without other provision) unless a draft of the order has been--

(a) laid before Parliament; and

(b) approved by a resolution of each House.

(5) Subject to subsection (6), every power under this Act of the Secretary of State or Scottish Ministers to make an order or regulations includes power--

(a) to make different provision for different cases (including different provision in respect of different areas);

(b) to make provision subject to such exemptions and exceptions as the person exercising the power thinks fit; and

(c) to make such incidental, supplemental, consequential and transitional provision as that person thinks fit.

(6) Subsection (5) does not apply to the power of the Secretary of State to make an order under section 60(2).

57 Meaning of "Wales-only service" and "Welsh service"

(1) In this Act--

  • "Wales-only service" means a railway passenger service which--

    (a)

    starts and ends in Wales and does not make any other scheduled calls outside Wales; and

    (b)

    has not been excluded from this definition by an order made by the Secretary of State;

  • "Welsh service" means a railway passenger service which starts in Wales, ends in Wales or otherwise makes at least one scheduled call in Wales.

(2) Before making an order for the purposes of paragraph (b) of the definition of "Wales-only service", the Secretary of State must consult the National Assembly for Wales.

(3) An order for those purposes is subject to the negative resolution procedure.

58 General interpretation

(1) In this Act--

  • "the 1993 Act" means the Railways Act 1993 (c. 43);

  • "the 2000 Act" means the Transport Act 2000 (c. 38);

  • "contravention" includes a failure to comply and cognate expressions are to be construed accordingly;

  • "Wales-only service" and "Welsh service" have the meanings given by section 57.

(2) An expression which is given a meaning by any provision of the 1993 Act for the purpose either of that Act or of Part 1 of it has the same meaning in this Act as in that Act or (as the case may be) that Part.

(3) In this Act a reference to a Passenger Transport Authority, to a Passenger Transport Executive or to a passenger transport area is a reference to the authority, executive or area which is such an Authority, Executive or area for the purposes of Part 2 of the Transport Act 1968 (c. 73).

(4) For the purposes of this Act a company is wholly owned by a person at any time when it has no members other than one or more persons falling within the following paragraphs--

(a) that person;

(b) a company which is wholly owned by that person;

(c) a person acting on behalf of that person or of such a company.

(5) For the purposes of this Act a company is jointly owned by two or more persons ("the relevant persons") at any time when (without being wholly owned by a person) it has no members other than two or more persons falling within the following paragraphs--

(a) the relevant persons;

(b) a company which is jointly owned by two or more of the relevant persons or which is wholly owned by one of them;

(c) a person acting on behalf of one or more of the relevant persons or of such a company.

59 Consequential amendments, transitional provisions and repeals

(1) Schedule 12 (which contains consequential and minor amendments) has effect.

(2) The Secretary of State may make a scheme making such modifications of the provisions of any licence or licence exemption granted under section 7(3) of the 1993 Act as appear to him to be necessary or expedient in consequence of any provision falling within subsection (3) by virtue of which--

(a) functions are transferred (with or without modifications) from one person to another; or

(b) functions corresponding (with or without modifications) to functions previously conferred on one person become functions of another.

(3) Those provisions are--

(a) section 1 and Schedule 1;

(b) section 2 and Schedule 3;

(c) section 21 and Schedule 6; and

(d) section 48.

(4) A scheme under subsection (2) may include provision for things done by or in relation to a person who previously had a function to be treated as done by or in relation to the person on whom that function, or the corresponding function, is conferred by virtue of this Act.

(5) Where a scheme under subsection (2) makes a modification of the provisions of a licence or licence exemption, the Secretary of State must--

(a) in the case of a modification of the provisions of a licence, notify the licence holder; and

(b) in the case of a modification of the provisions of a licence exemption granted under section 7(3) of the 1993 Act, give such notice as he considers appropriate for bringing the modification to the attention of persons likely to be affected by it.

(6) The provisions in Part 1 of Schedule 13 (which include some that are spent) are repealed to the extent shown in the second column of that Part.

(7) Those repeals have effect subject to the savings in Part 2 of that Schedule.

60 Short title, commencement and extent

(1) This Act may be cited as the Railways Act 2005.

(2) This Act (apart from this section and section 56(1)) shall come into force on such day as the Secretary of State by order appoints; and different days may be appointed for different purposes.

(3) The Secretary of State may by order make such transitional provisions and savings in connection with the bringing into force of--

(a) section 21,

(b) Part 4 of this Act, or

(c) the repeal of sections 37 to 49 of the 1993 Act or of Schedule 5 to that Act (closures),

as he thinks fit.

(4) An order containing provision made by virtue of subsection (3) is subject to the negative resolution procedure.

(5) The following provisions of this Act extend to England and Wales only--

(a) section 13;

(b) section 39; and

(c) section 52.

(6) This Act does not extend to Northern Ireland.

SCHEDULES

Section 1

SCHEDULE 1 Transfer etc. of functions of the Strategic Rail Authority



Part 1 Transfer and abolition of functions

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Transfer to ORR of consumer protection and other functions relating to licensing

1 (1) In section 7 of the 1993 Act--

(a) in subsections (1) and (3) (consultation with SRA about exemptions), omit "and the Authority"; and

(b) subsections (5A), (6A) and (8A) (consumer protection conditions) shall cease to have effect.

(2) In subsection (9) of that section, for "subsections (6) and (6A)" substitute "subsection (6)".

2 Section 7A of the 1993 Act (consumer protection conditions) shall cease to have effect.

3 (1) In section 8 of the 1993 Act (licences), in subsection (1)--

(a) in paragraph (a), omit "and the Authority";

(b) in paragraph (b), omit "given after consultation with the Authority".

(2) In subsection (2) of that section, paragraph (a) shall cease to have effect.

(3) In subsection (6) of that section (consent required for surrender of licence), for "and the Authority consent" substitute "consents".

(4) In subsection (7) of that section--

(a) in paragraph (a), omit ", to the Authority"; and

(b) in paragraph (b), for "Authority" substitute "Secretary of State".

(5) In subsection (8) of that section, omit "and the Authority".

4 In section 11 of the 1993 Act (assignment of licences)--

(a) in subsection (2)(b), omit "and the Authority";

(b) in subsection (4), omit "or persons".

5 (1) In section 12 of the 1993 Act, subsections (1A) to (1C) (modification of consumer protection conditions) shall cease to have effect.

(2) In subsection (2) of that section, for "of any conditions of a licence which do not relate to consumer protection" substitute "under this section".

6 In section 13 of the 1993 Act (modification references to Competition Commission)--

(a) for "the appropriate authority", wherever occurring, substitute "the Office of Rail Regulation"; and

(b) subsections (1A) to (1C) shall cease to have effect.

7 In section 13A of the 1993 Act (time limits under section 13), for "the appropriate authority", wherever occurring, substitute "the Office of Rail Regulation".

8 In section 14 of the 1993 Act (reports on modification references)--

(a) for "the appropriate authority", wherever occurring, substitute "the Office of Rail Regulation"; and

(b) subsection (5A) shall cease to have effect.

9 In section 15 of the 1993 Act (modification following report)--

(a) subsections (1B) and (3A) (reports to the SRA) shall cease to have effect;

(b) in subsections (2), (4A), (4B), (4C) and (4D), omit "or Authority", wherever occurring; and

(c) in subsection (4), omit "or (3A)" and "or the Authority".

10 (1) This paragraph applies to things done under or for the purposes of any provision of sections 13 to 15C of the 1993 Act (modification of licences) so far as they were done before the commencement of this paragraph by or in relation to the Strategic Rail Authority as the appropriate authority.

(2) In relation to times after the commencement of this paragraph, those things shall have effect, so far as necessary for giving them continuing validity or effect, as if done by or in relation to the Office of Rail Regulation.

Transfers relating to the provision, improvement or development of railway facilities

11 (1) In sections 16A, 16C(3), 16D, 16E(2)(a), 16F(3)(a) and 16G of the 1993 Act (directions by Office of Rail Regulation, on applications made by or with the consent of the SRA, to provide, improve or develop railway facilities), for "Authority", wherever occurring, substitute "appropriate facilities authority".

(2) In section 16A of that Act, in subsection (3), for "Authority's consent" substitute "consent of the appropriate facilities authority".

(3) In that section, after that subsection insert--

" (3A) In this section and sections 16B to 16G below `the appropriate facilities authority'--

(a) in relation to facilities in Scotland, means the Scottish Ministers; and

(b) in relation to any other facilities, means the Secretary of State. "

(4) In section 16B(1) and (4) of that Act (exemptions of facilities from section 16A), for "Secretary of State", in each place, substitute, "appropriate facilities authority".

(5) In section 16B of that Act, after subsection (6) insert--

" (7) A statutory instrument containing an order made under this section by the Scottish Ministers shall be subject to annulment in pursuance of a resolution of the Scottish Parliament. "

(6) An exemption granted under subsection (1) of section 16B of that Act before the commencement of this paragraph--

(a) which is in force at the time of the commencement of this paragraph or is to come into force after that time, and

(b) is contained in an order the power to make which is exercisable after that time by the Scottish Ministers,

is to have effect after that time as if contained in an order made by those Ministers which is not subject to subsection (7) of that section.

Transfer of functions relating to access agreements

12 (1) In sections 17 to 19 of the 1993 Act (access agreements) except in sections 17(4) and 19(7), for "the Authority", wherever occurring, substitute "the Secretary of State".

(2) In each of sections 17(4) and 19(7) (references to operating on behalf of SRA)--

(a) for "Authority", where first occurring, substitute "Secretary of State";

(b) for "Authority", in the second place, substitute "Secretary of State or the Scottish Ministers"; and

(c) for "the Authority", in the third and fourth places, substitute "him or them".

(3) In section 18(6A)(b) of that Act, for "its" substitute "his".

Transfer of functions relating to franchise agreements

13 (1) In section 23 of the 1993 Act (passenger services to be subject to franchise agreements), in subsections (1) and (2), for "Authority", wherever occurring, substitute "appropriate designating authority".

(2) After subsection (2) of that section insert--

" (2ZA) Where the Scottish Ministers designate Scotland-only services, they may also designate cross-border services which--

(a) they consider should be provided under the same franchise agreement as particular Scotland-only services or a particular class of them; and

(b) are not exempt from designation under subsection (1) by virtue of section 24.

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