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Railways Act 2005 (c. 14)

(The document as of February, 2008)

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(b) no such liability in respect of a contravention of any other requirement, and

(c) no such interference with any interest or right,

as there would be, in the case of a transaction apart from this Act, by reason of a provision falling within sub-paragraph (3).

(3) A provision falls within this sub-paragraph to the extent that it has effect (whether under an enactment or agreement or otherwise) in relation to the terms on which the transferor is entitled or subject to anything to which the transfer relates.

(4) Sub-paragraph (5) applies where (apart from that sub-paragraph) a person would be entitled, in consequence of anything done or likely to be done by or under this Act in connection with a scheme under section 1(2)--

(a) to terminate, modify, acquire or claim an interest or right to which the transferor is entitled or subject; or

(b) to treat such an interest or right as modified or terminated.

(5) That entitlement shall be enforceable in relation to the interest or right--

(a) in consequence of what is done or likely to be done by or under this Act, and

(b) in corresponding circumstances arising after the transfer,

to the extent only that the scheme provides for it to be so enforceable.

(6) Sub-paragraphs (2) to (5) have effect where shares in a subsidiary of the transferor are or are to be transferred--

(a) as if the reference in sub-paragraph (3) to the terms on which the transferor is entitled or subject to anything to which the transfer relates included a reference to the terms on which the subsidiary is entitled or subject to anything immediately before the transfer takes effect; and

(b) as if the reference in sub-paragraph (4) to the transferor included a reference to the subsidiary.

Dividing and modifying transferor's property, rights and liabilities

3 (1) A scheme may contain provision--

(a) for the creation, in favour of a transferor or transferee, of an interest or right in or in relation to property to be transferred in accordance with the scheme;

(b) for giving effect to a transfer to a person by the creation, in favour of that person, of an interest or right in or in relation to property to be retained by a transferor;

(c) for the creation of new rights and liabilities (including rights of indemnity and duties to indemnify) as between different transferees and as between a transferee and a transferor.

(2) A scheme may contain provision for the creation of rights and liabilities for the purpose of converting arrangements between different parts of a transferor's undertaking which exist immediately before the coming into force of the scheme into a contract between different transferees, or between a transferee and a transferor.

(3) A scheme may contain provision--

(a) for rights and liabilities to be transferred so as to be enforceable by or against more than one transferee, or by or against both the transferee and the transferor; and

(b) for rights and liabilities enforceable against more than one person in accordance with provision falling within paragraph (a) to be enforceable in different or modified respects by or against each or any of them.

(4) A scheme may contain provision for interests, rights or liabilities of third parties in relation to anything to which the scheme relates to be modified in the manner set out in the scheme.

(5) In sub-paragraph (4) "third party", in relation to a scheme, means a person other than the transferor and the transferee.

(6) Paragraph 2(2) and (3) applies to the creation of interests and rights in accordance with a scheme as it applies to the transfer of interests and rights.

Obligation to effect transfers etc. under a scheme

4 (1) A scheme may contain provision for imposing on a transferee or a transferor an obligation--

(a) to enter into such agreements with another person on whom a corresponding obligation is, or could be or has been, imposed by virtue of this paragraph (whether in the same or a different scheme), or

(b) to execute such instruments in favour of any such person,

as may be specified or described in the scheme.

(2) An obligation imposed on a person by virtue of sub-paragraph (1) shall be enforceable by the relevant person in civil proceedings--

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(c) for any other appropriate remedy or relief.

(3) The relevant person for the purposes of sub-paragraph (2) is the person with, or in favour of whom, the agreement or instrument is to be entered into or executed.

Effect of scheme

5 (1) Where a scheme provides for the transfer of property, rights or liabilities, or for the creation of interests, rights or liabilities--

(a) this Act shall have the effect that, at the time when the scheme comes into force, the property or interests, rights or liabilities shall vest, without further assurance, in the transferee; and

(b) the provisions of that scheme in relation to that property or those interests, rights or liabilities shall have effect from that time.

(2) Sub-paragraph (1) is subject to so much of a scheme as provides for--

(a) the transfer of property, rights or liabilities which are to be transferred in accordance with the scheme, or

(b) the creation of interests, rights and liabilities which are to be created in accordance with the scheme,

to be effected by or under an agreement or instrument entered into or executed in pursuance of an obligation imposed by virtue of paragraph 4(1).

(3) In its application to Scotland, sub-paragraph (1) has effect with the omission of the words "without further assurance".

Powers and duties under statutory provisions

6 (1) A scheme may make provision for some or all of the powers and duties to which this paragraph applies--

(a) to be transferred to a transferee;

(b) to become powers and duties that are exercisable, or must be performed, concurrently by two or more transferees; or

(c) to become powers and duties that are exercisable, or must be performed, concurrently by a transferor and a transferee.

(2) The powers and duties to which this paragraph applies are the powers and duties conferred or imposed upon the transferor by or under a relevant enactment so far as they relate to--

(a) property to be transferred in accordance with the scheme;

(b) the carrying out of works designed to be used in connection with such property; or

(c) the acquisition of land for the purpose of the carrying out of such works.

(3) In this paragraph "relevant enactment" means any enactment other than--

(a) the 1993 Act;

(b) Part 4 of the 2000 Act; or

(c) this Act.

(4) This paragraph does not require a restrictive construction to be given to what may be transferred by virtue of paragraph 2(1)(d).

Supplementary provisions of schemes

7 (1) A scheme may--

(a) make such incidental, supplemental, consequential and transitional provision in connection with the transfers to be made in accordance with the scheme as the person making the scheme thinks fit;

(b) make different provision for different cases.

(2) In particular, a scheme may make provision, in relation to transfers in accordance with the scheme--

(a) for the transferee to be treated as the same person in law as the transferor;

(b) for agreements made, transactions effected or other things done by or in relation to the transferor to be treated, so far as may be necessary for the purposes of or in connection with the transfers, as made, effected or done by or in relation to the transferee;

(c) for references in an agreement, instrument or other document to the transferor, or to an employee or office holder of the transferor, to have effect, so far as may be necessary for the purposes of or in connection with a transfer, with such modifications as are specified in the scheme; and

(d) for proceedings commenced by or against the transferor to be continued by or against the transferee.

(3) Sub-paragraph (2)(c) does not apply to references in an enactment or in subordinate legislation.

(4) In this paragraph references to a transfer in accordance with a scheme include references to the creation of an interest, right or liability in accordance with a scheme.

Modification of scheme by agreement

8 (1) Where the transferor and transferee under a scheme that has come into force so agree, the scheme shall be treated for all purposes as having come into force with such modifications as may be agreed.

(2) An agreement under this paragraph which relates to rights and liabilities under a contract of employment may be entered into only if the employee is a party to the agreement.

(3) An agreement under this paragraph that adversely affects the property or rights of a person other than the transferor, the transferee or such an employee may be entered into only if that person is a party to the agreement.

(4) The provision that may be included in an agreement under this paragraph includes--

(a) any provision that could have been contained in the scheme; and

(b) incidental, supplemental, consequential and transitional provision in connection with any such provision.

Continuity of employment etc.

9 (1) Where in accordance with a scheme a person employed by a transferor becomes an employee of a transferee--

(a) he is not to be regarded for the purposes of Part 11 of the Employment Rights Act 1996 (c. 18) as having been dismissed by virtue of the transfer;

(b) his period of employment with the transferor counts for the purposes of that Act as a period of employment with the transferee;

(c) the change of employment does not break the continuity of the period of employment either for the purposes of that Act or for the purposes of Schedule 11 to the 1993 Act (pensions); and

(d) in a case in which the transferee is not engaged in the railway industry, that person's period of employment with the transferee is to be disregarded for the purpose of determining whether the termination conditions under paragraph 8 of Schedule 11 to the 1993 Act are fulfilled in his case.

(2) References in this paragraph to becoming an employee of the transferee and to employment with the transferee include references, respectively, to becoming and to being employed in the civil service of the state.

Compensation for third parties

10 (1) Where--

(a) an entitlement of a third party to an interest or right would, apart from a provision of a scheme under section 1(2) and paragraph 2(4) and (5), become enforceable in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities,

(b) the provisions of that scheme or of paragraph 2(4) and (5) have the effect of preventing the third party's entitlement to that interest or right from being enforced in respect of anything for which the scheme provides, and

(c) provision is not made by the scheme for securing that an entitlement to that interest or right, or to an equivalent interest or right, is preserved or created so as to arise and be enforceable in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party shall be entitled to compensation in respect of the extinguishment of his entitlement.

(2) The amount of compensation to which a third party is entitled under this paragraph is the amount necessary for securing, to the extent that it is just to do so, that he does not suffer financial loss from the extinguishment of his entitlement.

(3) A liability to pay compensation under this paragraph shall fall on the Secretary of State.

(4) In the preceding provisions of this paragraph "third party", in relation to a scheme, means a person other than the transferor and the transferee.

(5) This paragraph shall have effect in relation to--

(a) the provisions of an agreement or instrument entered into or executed in pursuance of an obligation imposed by a scheme under section 1(2), and

(b) the provisions of an agreement under paragraph 8 relating to property, rights or liabilities transferred or created in accordance with such a scheme,

as it has effect in relation to the scheme but as if, in the case of an agreement under paragraph 8, only persons who are not parties to the agreement were third parties.

Provision of information to person making scheme

11 (1) A person who proposes to make a scheme ("the scheme authority") may direct--

(a) a proposed transferor, or

(b) a proposed transferee,

to provide him with such information as he considers necessary to enable him to make the scheme.

(2) Such a direction must specify the period within which the information is to be provided.

(3) The period specified in the direction must be not less than 28 days beginning with the day of the giving of the direction.

(4) If a person fails to comply with such a direction, the scheme authority may serve a notice on him requiring him--

(a) to produce to the scheme authority any documents which are specified or described in the notice and are in his custody or under his control; or

(b) to provide to the scheme authority such information as may be specified or described in the notice.

(5) Documents or information to be produced or provided in accordance with such a notice must be produced or provided at the time and place, and in the form and manner, specified in the notice.

(6) No person may be required under this paragraph--

(a) to produce a document which he could not be compelled to produce in civil proceedings in the court; or

(b) to provide information which he could not be compelled to give in evidence in such proceedings.

(7) A person who intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under sub-paragraph (4) is guilty of an offence and liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine.

(8) If a person fails to comply with a notice under sub-paragraph (4), the court may, on the application of the scheme authority, make such order as the court thinks fit for requiring the failure to be made good.

(9) Any order under sub-paragraph (8) may include provision requiring all the costs or expenses of and incidental to the application to be borne by one or more of the following--

(a) the person in default;

(b) any officers of a company or other association who are responsible for its default.

(10) In this paragraph--

(a) a reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and

(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.

(11) In this paragraph "the court" means--

(a) in England and Wales, the High Court; and

(b) in Scotland, the Court of Session.

Interpretation

12 (1) In this Schedule--

  • "enactment" includes an enactment comprised in an Act of the Scottish Parliament;

  • "transferee"--

    (a)

    in relation to a scheme, means a person to whom property, rights or liabilities are transferred in accordance with the scheme; and

    (b)

    in relation to particular property, rights or liabilities transferred or created in accordance with a scheme, means the person to whom that property or those rights or liabilities are transferred or in whose favour, or in relation to whom, they are created;

  • "transferor"--

    (a)

    in relation to a scheme, means the person from whom property, rights or liabilities are transferred in accordance with the scheme; and

    (b)

    in relation to particular property, rights or liabilities transferred or created in accordance with a scheme, means the person from whom that property or those rights or liabilities are transferred or the person who or whose property is subject to the interest or right created by the scheme or for whose benefit the liability is created;

  • "scheme" means a scheme made under section 1(2) or 12; and

  • "subsidiary" has the meaning given to it by section 736 of the Companies Act 1985 (c. 6).

(2) References in this Schedule to a right or to an entitlement to a right include references to an entitlement to exercise a right; and, accordingly, references to a right's arising include references to its becoming exercisable.



Section 2

SCHEDULE 3 Transfer of safety functions

Railway safety purposes

1 (1) Subject to sub-paragraph (4), in this Schedule "railway safety purposes" means so much of the general purposes of Part 1 of the 1974 Act (within the meaning of section 1 of that Act) as--

(a) relates to risks that are exclusively relevant to one or more of the purposes specified in sub-paragraph (2); or

(b) relates to so much of any risks that are primarily so relevant as arises in connection with anything mentioned in that sub-paragraph.

(2) The purposes mentioned in sub-paragraph (1) are--

(a) securing the proper construction and safe operation of transport systems falling within sub-paragraph (3);

(b) securing the proper construction and safe operation of locomotives, rolling stock or other vehicles used, or to be used, on such systems;

(c) protecting the public (whether or not they are passengers) from personal injury and other risks arising from the construction and operation of such systems;

(d) protecting persons at work from personal injury and other risks so arising.

(3) A transport system falls within this sub-paragraph if it is--

(a) a railway;

(b) a tramway;

(c) a trolley vehicle system; or

(d) a transport system using any other mode of guided transport.

(4) The Secretary of State may, by regulations, modify the definition of "railway safety purposes".

(5) Before making any regulations under sub-paragraph (4), the Secretary of State must consult--

(a) the Office of Rail Regulation;

(b) the Health and Safety Commission; and

(c) such other persons as he considers appropriate.

(6) Regulations under sub-paragraph (4) are subject to the negative resolution procedure.

(7) In this paragraph--

  • "guided transport", "railway", "tramway", "trolley vehicle system" and "vehicle" have the same meanings as in the Transport and Works Act 1992 (c. 42) except that, for this purpose, paragraph (b) of the definition of "railway" in section 67(1) of that Act (which includes a condition as to the minimum gauge of track) is to be disregarded; and

  • "person at work" has the same meaning as it for the time being has in Part 1 of the 1974 Act (see section 52 of that Act).

ORR's principal railway safety functions

2 (1) It shall be the general duty of the Office of Rail Regulation--

(a) to do such things and make such arrangements as it considers appropriate for the railway safety purposes; and

(b) to assist and encourage persons concerned with matters relevant to any of those purposes to further those purposes.

(2) It shall be the duty of the Office of Rail Regulation--

(a) to make such arrangements as it considers appropriate for the carrying out of research in connection with the railway safety purposes and for the publication of the results of such research; and

(b) to encourage research by others in that connection.

(3) It shall be the duty of the Office of Rail Regulation--

(a) to make such arrangements as it considers appropriate for the provision of training and information in connection with the railway safety purposes;

(b) to encourage the provision by others of training and information in that connection; and

(c) to make such arrangements as it considers appropriate for securing that the persons mentioned in sub-paragraph (4)--

(i) are provided with an information and advisory service with respect to matters relevant to the railway safety purposes;

(ii) are kept informed about such matters; and

(iii) are adequately advised about them.

(4) Those persons are--

(a) government departments;

(b) employers;

(c) employees;

(d) organisations representing employers and employees respectively; and

(e) other persons concerned with matters relevant to any of the railway safety purposes.

(5) It shall be the duty of the Office of Rail Regulation from time to time to submit such proposals as it considers appropriate for the making of regulations for the railway safety purposes to the authorities having power to make regulations for those purposes under any of the relevant statutory provisions.

(6) Before submitting proposals under sub-paragraph (5), the Office of Rail Regulation must consult--

(a) such government departments, and

(b) such other persons,

as it considers appropriate.

(7) Before--

(a) making regulations for the railway safety purposes independently of any proposals submitted under sub-paragraph (5), or

(b) making regulations which give effect to such proposals but with modifications,

the authority having the power to make the regulations must consult the Office of Rail Regulation.

(8) In this paragraph "employer", "employee" and "the relevant statutory provisions" have the same meanings as in Part 1 of the 1974 Act (see section 53(1) of that Act).

Removal of corresponding functions from HSC

3 (1) In section 11 of the 1974 Act (which confers functions on the HSC for general purposes that are equivalent to those conferred on the ORR for railway safety purposes by paragraph 2)--

(a) in subsection (1), for "subject to subsection (3)" substitute "subject to subsections (2A) and (3)"; and

(b) after subsection (2) insert the subsection set out in sub-paragraph (2).

(2) The subsection to be inserted is--

" (2A) In subsections (1) and (2) above--

(a) references to the general purposes of this Part do not include references to the railway safety purposes; and

(b) the reference to a power to make regulations under the relevant statutory provisions does not include a reference to any power so far as it is exercisable for the railway safety purposes. "

Reports and investigations

4 (1) The Office of Rail Regulation may authorise a person to investigate and make a special report on any accident, occurrence, situation or other matter of any sort which that Office thinks it necessary or expedient to investigate--

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) The Office of Rail Regulation may cause--

(a) the contents of a special report made under this paragraph, or

(b) so much of them as it considers appropriate,

to be made public at such time, and in such manner, as it thinks fit.

(3) Where a person who is not a member, officer or employee of the Office of Rail Regulation carries out an investigation and makes a special report under this paragraph, that Office may pay him such remuneration and expenses as the Secretary of State determines.

(4) The Office of Rail Regulation may, to such extent as the Secretary of State may determine, defray the other costs (if any) of--

(a) an investigation under this paragraph; or

(b) the making of a special report following such an investigation.

(5) In section 14(1) of the 1974 Act (matters about which investigations etc. may be required or authorised by the HSC), for "it is" substitute--

" (a) those general purposes shall be treated as not including the railway safety purposes; but

(b) it is otherwise " .

5 (1) This paragraph applies where, before the commencement of paragraph 4, the Health and Safety Commission directed or authorised a person to investigate and make a special report under section 14(2)(a) of the 1974 Act on any accident, occurrence, situation or other matter which the Commission thought it necessary or expedient to investigate--

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) For the purposes of the carrying out or continuation of an investigation and the making of a report after the commencement of paragraph 4, the direction or authorisation shall be treated as an authorisation by the Office of Rail Regulation under paragraph 4.

(3) If --

(a) the person to whom the Health and Safety Commission gave the direction or authorisation has made a special report to the Commission, but

(b) the Commission has not yet caused the report, or a part of it, to be made public under section 14(5) of the 1974 Act,

the report shall be treated as if it had been made to the Office of Rail Regulation under paragraph 4.

(4) If the person to whom the Health and Safety Commission gave the direction or authorisation has not yet made a special report to the Commission, the Office of Rail Regulation may direct that person--

(a) to abandon the investigation without making a special report; or

(b) to continue the investigation in such manner as that Office may direct.

(5) Where the Health and Safety Commission agreed before the commencement of paragraph 4 to exercise its power by virtue of section 14(6)(a) or (c) of the 1974 Act to pay remuneration or expenses to any person in respect of the investigation and special report or to defray costs of the investigation and report--

(a) the Commission must pay amounts accruing in respect of the agreed matters before the commencement of paragraph 4; and

(b) the Office of Rail Regulation must pay amounts so accruing after that time;

and paragraph (b) does not affect the power of that Office under that paragraph, in relation to times after the commencement of that paragraph, to make other payments of remuneration or expenses or to defray costs.

6 (1) This paragraph applies where, before the commencement of paragraph 4, the Health and Safety Commission directed an inquiry to be held under section 14(2)(b) of the 1974 Act into any accident, occurrence, situation or other matter which the Commission thought it necessary or expedient to investigate--

(a) for any of the railway safety purposes; or

(b) with a view to the making of regulations for any of those purposes.

(2) Subject to sub-paragraph (3), section 14 of the 1974 Act shall continue to apply in relation to that inquiry after the commencement of paragraph 4 but as if all things done or required to be done by or in relation to the Health and Safety Commission under that section were done or required to be done by or in relation to the Office of Rail Regulation.

(3) Where the Health and Safety Commission agreed before the commencement of paragraph 4 to exercise its power by virtue of section 14(6)(b) or (c) of the 1974 Act to pay remuneration or expenses to any person in respect of the inquiry or to defray costs of the inquiry--

(a) the Commission must pay amounts accruing in respect of the agreed matters before the commencement of paragraph 4; and

(b) the Office of Rail Regulation must pay amounts so accruing after that time;

and paragraph (b) does not affect the power of that Office, in relation to times after the commencement of paragraph 4, to make other payments of remuneration or expenses under section 14(6)(b), or to defray costs under section 14(6)(c).

ORR acting as agent of government departments and other public authorities

7 (1) Where the Secretary of State considers that any of his statutory or other functions can appropriately be carried out by the Office of Rail Regulation in connection with the carrying out of its safety functions, he and that Office may enter into an agreement for that Office to carry out those functions on his behalf.

(2) Where the Secretary of State considers that any of the statutory or other functions of--

(a) a government department, or

(b) any other public authority,

can appropriately be carried out by the Office of Rail Regulation in connection with the carrying out of its safety functions, he may authorise the Office and that department or authority to enter into an agreement for that Office to carry out those functions on behalf of that department or authority.

(3) An agreement under this paragraph--

(a) may include provision for payments to be made to the Office of Rail Regulation for the carrying out of the functions that it is authorised or required to carry out under the agreement; but

(b) may not authorise or require the Office of Rail Regulation to carry out any function consisting in a power to make regulations or other instruments of a legislative character.

Government departments and other public authorities acting as agent of ORR

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8 (1) Where the Office of Rail Regulation considers that any of its safety functions can appropriately be carried out--

(a) by a government department, or

(b) by any other public authority,

that Office and the department or authority may enter into an agreement for the department or authority to carry out those functions on that Office's behalf.

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