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Railways Act 2005 (c. 14)

(The document as of February, 2008)

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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.

(2) An agreement under this paragraph may include provision for payments to be made by the Office of Rail Regulation to a government department or public authority for the carrying out of the functions that it is authorised or required to carry out under the agreement.

Restrictions on codes of practice by HSC

9 (1) In subsection (1) of section 16 of the 1974 Act (codes of practice with respect to the requirements of certain provisions), for "sections 2 to 7 or of health and safety regulations or of any of the existing statutory provisions" substitute "any of the enactments or instruments mentioned in subsection (1A) below".

(2) After that subsection insert--

" (1A) Those enactments and instruments are--

(a) sections 2 to 7 above;

(b) health and safety regulations, except so far as they make provision exclusively in relation to transport systems falling within paragraph 1(3) of Schedule 3 to the Railways Act 2005; and

(c) the existing statutory provisions that are not such provisions by virtue of section 117(4) of the Railways Act 1993. "

Co-operation with the HSC

10 (1) It shall be the duty of the Office of Rail Regulation and the Health and Safety Commission--

(a) as soon as practicable after the commencement of this paragraph, to enter into arrangements with each other for securing co-operation and the exchange of information in connection with the carrying out of safety functions;

(b) to maintain and from time to time to review those arrangements; and

(c) to revise them whenever they consider it appropriate to do so.

(2) In sub-paragraph (1) "safety functions" means all the functions of the Health and Safety Commission and of the Health and Safety Executive and the safety functions of the Office of Rail Regulation.

(3) In section 18(5)(b) of the 1974 Act (duty of enforcing authority to act in accordance with guidance of HSC), at the beginning insert "except where that authority is the Office of Rail Regulation,".

Information powers corresponding to section 27 of the 1974 Act

11 (1) The Office of Rail Regulation may serve a notice under this paragraph on any person for the purpose of obtaining information which that Office needs for the carrying out of its safety functions.

(2) A notice under this paragraph is one requiring the person on whom it is served--

(a) to provide the Office of Rail Regulation with information about such matters as may be specified in the notice; and

(b) to do so in the form and manner so specified.

(3) The consent of the Secretary of State is required for the service of a notice under this paragraph.

(4) The consents that may be given for the purposes of sub-paragraph (3) include a general consent relating to notices of a specified description.

(5) Nothing in the Statistics of Trade Act 1947 (c. 39) is to be construed as preventing or penalising the disclosure by a Minister of the Crown or government department to--

(a) the Office of Rail Regulation,

(b) a member, officer or employee of that Office, or

(c) a committee established by that Office,

of information falling within sub-paragraph (6) about an undertaking (within the meaning of that Act).

(6) Information about an undertaking falls within this sub-paragraph if it consists of--

(a) the names and addresses of the persons carrying on the undertaking;

(b) the nature of the undertaking's activities;

(c) the number of persons of different descriptions who work in the undertaking;

(d) the addresses or places where activities of the undertaking are or were carried on;

(e) the nature of the activities carried on there; or

(f) the number of persons of different descriptions who work or worked in the undertaking there.

(7) A person to whom a disclosure that is authorised by sub-paragraph (5) is made must not use the information except for the purposes of the safety functions of the Office of Rail Regulation.

(8) It is an offence for a person--

(a) to contravene a requirement imposed by a notice under this paragraph; or

(b) to use information in contravention of sub-paragraph (7).

(9) A person guilty of an offence under sub-paragraph (8) shall be liable--

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

(b) on conviction on indictment--

(i) in the case of an offence of contravening a notice, to a fine; and

(ii) in the case of an offence of using information in contravention of sub-paragraph (7), to imprisonment for a term not exceeding two years or to a fine, or to both.

(10) Section 52 of the 1974 Act (meaning of "work" and related expressions) applies for the purposes of this paragraph as it applies for the purposes of Part 1 of that Act.

Railway safety levy

12 (1) Section 43A of the 1974 Act (railway safety levy) is amended as follows.

(2) In subsection (2) (expenses in respect of which levy raised), for paragraphs (a) and (b) substitute--

" (a) in respect of activities undertaken by the Office of Rail Regulation under or by virtue of this Act or Schedule 3 to the Railways Act 2005; or

(b) in respect of activities in relation to a transport system falling within paragraph 1(3) of that Schedule that are undertaken by that Office under or by virtue of any other enactment. "

(3) In subsections (5) and (6), for "Commission or the Executive" substitute "Office of Rail Regulation".

(4) In subsection (9), for "to which section 117 of the Railways Act 1993 applies" substitute "falling within paragraph 1(3) of Schedule 3 to the Railways Act 2005".

Removal of requirement of consultation with HSC for railway safety regulations

13 In section 50 of the 1974 Act (consultation with HSC), after subsection (1) insert--

" (1A) Subsection (1) does not apply to the exercise of a power to make regulations so far as it is exercised--

(a) for giving effect (with or without modifications) to proposals submitted by the Office of Rail Regulation under paragraph 2(5) of Schedule 3 to the Railways Act 2005; or

(b) otherwise for or in connection with the railway safety purposes. "

Regulatory Reform Act 2001

14 The effect of the preceding provisions of this Schedule is to be disregarded in determining for the purposes of section 1 of the Regulatory Reform Act 2001 (power by order to make provision reforming law which imposes burdens) whether any provision of the 1974 Act falls within subsection (4)(a) of that section (provision amended by Act within previous two years).

Interpretation

15 (1) In this Schedule--

  • "the 1974 Act" means the Health and Safety at Work etc. Act 1974 (c. 37); and

  • "railway safety purposes" has the meaning given by paragraph 1.

(2) In this Schedule a reference to the safety functions of the Office of Rail Regulation is a reference to--

(a) its functions under this Schedule;

(b) its functions under the 1974 Act; and

(c) its other functions so far as carried out for the railway safety purposes.

(3) In section 53(1) of the 1974 Act (interpretation of Part 1), after the definition of "prohibition notice" insert--

" "railway safety purposes" has the same meaning as in Schedule 3 to the Railways Act 2005; " .



Section 4

SCHEDULE 4 Reviews by ORR of access charges and licence conditions

Introductory

1 Schedule 4A to the 1993 Act (review of access charges by ORR) is amended as follows.

Conduct of access charges reviews

2 For paragraph 1 (meaning of access charges review) substitute--

" Application of Schedule

1 This Schedule applies where an access agreement provides, or is treated as providing, for the Office of Rail Regulation to undertake reviews of the terms of that agreement as to--

(a) the amounts payable under the agreement by one of the parties to the other; and

(b) the times at which, and the manner in which, those amounts are payable.

Scope of review

1A (1) Where the Office of Rail Regulation undertakes such a review, it must, at the same time, review the conditions of every linked licence both--

(a) in relation to the matters mentioned in paragraph 1(a) and (b); and

(b) in relation to the matters about which that Office is provided with information under paragraph 1D.

(2) A review by that Office of both--

(a) the terms of an access agreement as to the matters mentioned in paragraph 1(a) and (b), and

(b) the conditions of a linked licence,

is referred to in this Schedule as an access charges review.

(3) An access charges review must include a consideration of--

(a) the time at which the next access charges review is to be undertaken in relation to both the access agreement in question and every linked licence; and

(b) the circumstances in which it would be appropriate to undertake such a review before that time.

(4) In this Schedule "linked licence", in relation to an access agreement, means a licence of which the holder is--

(a) the facility owner, or installation owner, who is a party to the agreement; or

(b) a person other than that owner who has an estate or interest in the railway facility or network installation to which the agreement relates or who has a right over it.

Response to request to carry out review

1B Where--

(a) the Secretary of State or the Scottish Ministers suggest to the Office of Rail Regulation that an access charges review should be carried out in any case, but

(b) that Office decides not to carry out the suggested review,

that Office must provide the Secretary of State or Scottish Ministers with its reasons for that decision.

Notice of access charges review

1C (1) Before beginning an access charges review, the Office of Rail Regulation must give notice of its proposal to undertake the review to each of the following--

(a) the Secretary of State;

(b) the Scottish Ministers;

(c) the Treasury;

(d) the parties to the access agreement in question; and

(e) such other persons as that Office considers appropriate.

(2) No notice is required to be given under sub-paragraph (1) to the Secretary of State or the Scottish Ministers--

(a) in the case of the Secretary of State, if the facility or installation to which the relevant agreement relates is situated wholly in Scotland; or

(b) in the case of the Scottish Ministers, if the facility or installation to which the relevant agreement relates is situated wholly in England and Wales.

(3) A notice under this paragraph must set out--

(a) the period to which the Office of Rail Regulation expects the review to relate ("the review period");

(b) the date by which the Secretary of State, the Scottish Ministers or (as the case may be) each of them needs to provide the information that has to be provided under paragraph 1D; and

(c) any conditions which that Office requires to be satisfied in the period ending with that date if it is to proceed with the review.

(4) The period set out under sub-paragraph (3)(a) must be the one which--

(a) begins with the time as from which the Office of Rail Regulation expects that any changes resulting from the review would fall to be implemented; and

(b) ends with the time as from which it thinks it likely (in the absence of special circumstances making an earlier review appropriate) that any changes resulting from the next access charges review in relation to the same agreement and licence would fall to be implemented.

(5) The date set out under sub-paragraph (3)(b) must be not less than the following period after the date of the notice--

(a) in a case which the Office of Rail Regulation is satisfied is a case of urgency, four weeks; and

(b) in any other case, three months.

(6) Before setting out a date under sub-paragraph (3)(b) that is less than three months after the date of the notice, the Office of Rail Regulation must consult each of the persons to whom the notice is to be given.

Duty to notify ORR about desired outputs and finances

1D (1) Where a notice under paragraph 1C is given to the Secretary of State, he must provide the Office of Rail Regulation with--

(a) information about what he wants to be achieved by railway activities in Great Britain as a whole during the review period; and

(b) such information as it is reasonable for him to provide about the public financial resources that are or are likely to become available to be applied during the review period for purposes that contribute (directly or indirectly) towards the achievement of what he wants.

(2) Where a notice under paragraph 1C is given to the Scottish Ministers (whether instead of or as well as to the Secretary of State), they must provide the Office of Rail Regulation with--

(a) information about what they want to be achieved by Scottish railway activities during the review period; and

(b) such information as it is reasonable for them to provide about the public financial resources that are or are likely to become available to be applied during that period for purposes that contribute (directly or indirectly) towards the achievement of what they want.

(3) The information that may be provided as falling within sub-paragraph (1)(a) or (2)(a) includes objectives and standards to be achieved in the course of carrying on railway activities.

(4) Those objectives and standards may include, in particular, objectives and standards with respect to any of the following matters--

(a) the capacity (in terms of types and numbers of trains) of networks;

(b) the frequency of railway passenger services;

(c) journey times;

(d) reliability of railway services (both in terms of punctuality and otherwise);

(e) the taking of measures to prevent or mitigate overcrowding;

(f) levels and types of fares;

(g) the quality of information provided to passengers;

(h) the accessibility of railway services to people with disabilities;

(i) the carrying out of major projects to improve railway services;

(j) the protection of persons from dangers arising from the operation of railways.

(5) In a case where information is also required to be provided by the Scottish Ministers, the information that is required to be provided by the Secretary of State does not include--

(a) any information about what he wants to be achieved by Scottish railway activities not relating to cross-border services; or

(b) information about any public financial resources so far as they appear to him to be available, or to be likely to become available, to be applied for purposes relating only to such activities.

(6) An obligation of the Secretary of State or the Scottish Ministers to provide information under this paragraph--

(a) must be discharged before the date set out in the notice given under paragraph 1C or, if a later date is fixed under sub-paragraph (7), by that later date; but

(b) may be discharged by a notification that refers that Office to information previously provided under this paragraph.

(7) The Office of Rail Regulation may at any time, by notice to each of the persons to whom the notice under paragraph 1C was given, fix a later date for the provision of information under this paragraph.

(8) Neither--

(a) the Secretary of State, nor

(b) the Scottish Ministers,

are required to provide information for the purposes of a review at any time after a decision has been made by the Office of Rail Regulation not to proceed with the review because of an actual or expected failure of the conditions set out under paragraph 1C(3)(c) to be satisfied.

(9) In this paragraph "railway activities" means activities consisting in, or involving, any of the following--

(a) providing railway services;

(b) making available railway facilities;

(c) making use of such facilities;

(d) using railway assets;

(e) allowing others to use such assets.

(10) In this paragraph "Scottish railway activities" means activities which are railway activities by reference only to--

(a) railway services which begin and end in Scotland;

(b) railway services in relation to which financial assistance is provided by the Scottish Ministers and which (without falling within paragraph (a)) begin or end in Scotland;

(c) railway facilities that are situated in Scotland; or

(d) railway assets so situated.

(11) In this paragraph "public financial resources" means any of the following--

(a) money charged on and payable out of the Consolidated Fund;

(b) money provided by Parliament;

(c) money payable out of the Scottish Consolidated Fund.

Suggestions about future reviews

1E Where the Secretary of State or the Scottish Ministers provide the Office of Rail Regulation with information under paragraph 1D, he or they may also, at the same time, make a suggestion to that Office setting out his or their opinion about--

(a) when the next access charges review should be undertaken in relation to both the access agreement in question and every linked licence; and

(b) the circumstances in which it would be appropriate to undertake such a review before that time.

Revision of outputs and financial information

1F (1) If, at any time in the course of an access charges review, it appears to the Office of Rail Regulation that--

(a) the information that has been provided to it by the Secretary of State or the Scottish Ministers under paragraph 1D, or

(b) the information, taking it all together, that has been so provided by the Secretary of State and the Scottish Ministers,

shows that the public financial resources that are or are likely to become available will be inadequate to secure the achievement of what he or they, or both of them, want to be achieved, that Office must so notify the Secretary of State or the Scottish Ministers or (as the case may be) each of them.

(2) The Office of Rail Regulation must send a copy of every notification under sub-paragraph (1) to the Treasury.

(3) On being notified under sub-paragraph (1), the Secretary of State or the Scottish Ministers or (as the case may be) each of them--

(a) may revise any information provided to the Office of Rail Regulation, together with any suggestion made under paragraph 1E; and

(b) if the information or such a suggestion is revised, must notify the revisions to that Office.

(4) Any notification under sub-paragraph (3) must be given within whatever period is specified by the Office of Rail Regulation when notifying the Secretary of State or Scottish Ministers in accordance with sub-paragraph (1).

(5) Where the Office of Rail Regulation has already given a notification under this paragraph with respect to any information, it is required to give a further notification under this paragraph with respect to that information, or any revision of it, only if--

(a) a revision has been made in response to its previous notification; and

(b) it has not previously given a notification in respect of an earlier revision of the information.

Notification of likely adverse effect on interests of certain providers of railway services

1G (1) If, at any time in the course of an access charges review, it appears to the Office of Rail Regulation that it is likely that the implementation of the review will adversely affect the interests of persons providing railway passenger services or of persons providing services for the carriage of goods by railway, that Office must so notify--

(a) the Secretary of State, in the case of a review notice of which was given to him under paragraph 1C; and

(b) the Scottish Ministers, in the case of a review notice of which was given to them under that paragraph.

(2) Where the Office of Rail Regulation gives a notification under sub-paragraph (1) in respect of a review relating to an access agreement to which a facility owner is a party, the notification must include--

(a) its assessment of the measures that the facility owner is likely to be required to take, as a consequence of the implementation of the review, in order to meet obligations of his arising under the access agreement in question or under any other access agreement to which he is a party; and

(b) its estimate of the cost to the facility owner of taking those measures.

(3) On being notified under sub-paragraph (1), the Secretary of State or the Scottish Ministers or (as the case may be) each of them--

(a) may revise any information provided under paragraph 1D to the Office of Rail Regulation, together with any suggestion made under paragraph 1E; and

(b) if the information or such a suggestion is revised, must notify the revisions to that Office.

(4) Any notification under sub-paragraph (3) must be given within whatever period is specified by the Office of Rail Regulation when notifying the Secretary of State or the Scottish Ministers in accordance with sub-paragraph (1).

(5) Where the Office of Rail Regulation has already given a notification under this paragraph, it is required to give a further notification under this paragraph only if--

(a) information provided to it has been revised in response to its notification; and

(b) it has not previously given a notification in respect of an earlier revision of that information.

Duty to have regard to information about desired outputs and finances etc.

1H (1) The Office of Rail Regulation must conduct an access charges review in the manner that it considers is most likely to secure that the implementation of the review will make the best and most practicable contribution to the achievement of--

(a) what the Secretary of State wants to be achieved by railway activities in Great Britain as a whole; and

(b) what the Scottish Ministers want to be achieved by Scottish railway activities.

(2) Where in the case of an access charges review the Office of Rail Regulation considers (notwithstanding any notification or revision under paragraph 1F or 1G) that the public financial resources that are or are likely to become available will be inadequate to secure the achievement of, as the case may be--

(a) everything that the Secretary of State wants to be achieved,

(b) everything that the Scottish Ministers want to be achieved, or

(c) everything that both the Secretary of State and the Scottish Ministers want to be achieved,

it is to be for that Office to determine, for the purposes of the review, how much of what is wanted should be achieved using (but only for the purposes for which they may be applied) all the public financial resources that it considers are or are likely to be available.

(3) In conducting an access charges review the Office of Rail Regulation must have regard to the consequences of compliance by a facility owner who is a party to the access agreement in question with any terms--

(a) of that agreement, or

(b) of any other access agreement to which that facility owner is a party,

that it considers are relevant to a matter notified under paragraph 1G (including, in particular, a term requiring the facility owner to pay compensation or to take mitigatory measures).

(4) In considering the matters mentioned in paragraph 1A(3), the Office of Rail Regulation must have regard to any suggestion made under paragraph 1E, and to any revision of that suggestion.

(5) For the purposes of this paragraph--

(a) expressions used in this paragraph and in paragraph 1D have the same meanings in this paragraph as in that;

(b) what the Secretary of State or the Scottish Ministers want must be determined in every case in accordance with the information provided in that case under paragraph 1D, and with any revisions notified under paragraph 1F(3)(b) or 1G(3)(b); and

(c) the Office of Rail Regulation must have regard to the financial information so provided and revised whenever considering what is likely to make the best and most practicable contribution to the achievement of what the Secretary of State or the Scottish Ministers want. "

Repeal of paragraph 3

3 Paragraph 3 (which provides for consideration of when the next review should be undertaken) shall cease to have effect.

Implementation notice

4 (1) In paragraph 4 (review notice), after sub-paragraph (2) insert--

" (2A) Before giving a review notice specifying modifications of a linked licence that are proposed for purposes connected with securing--

(a) what the Secretary of State has informed the Office of Rail Regulation he wants to be achieved by any railway activities, or

(b) what the Scottish Ministers have informed that Office they want to be achieved by any such activities,

that Office must consult the Secretary of State or (as the case may be) those Ministers. "

(2) In sub-paragraph (4) of that paragraph, before paragraph (a) insert--

" (za) if the Secretary of State was given notice of the review under paragraph 1C, the Secretary of State;

(zb) if the Scottish Ministers were given notice of the review under that paragraph, those Ministers;

(zc) the Treasury; " .

Termination notice

5 In paragraph 6(3) (service of termination notice), before paragraph (a) insert--

" (za) if the Secretary of State was given notice of the review under paragraph 1C, the Secretary of State;

(zb) if the Scottish Ministers were given notice of the review under that paragraph, those Ministers; " .

New review notice following objections

6 In paragraph 8 (new review notices and references to Competition Competition), after sub-paragraph (4) insert--

" (4A) Paragraph 1H applies to the making of any determination by the Office of Rail Regulation of what should be included in a new review notice to be given under this paragraph as it applies to the conduct of an access charges review. "

Information to be provided to Competition Commission in connection with reference

7 (1) In paragraph 9 (reference to Competition Commission), after sub-paragraph (6) insert--

" (6A) A reference to the Competition Commission under this paragraph must be accompanied by--

(a) any information which in the case in question was provided to the Office of Rail Regulation by the Secretary of State or the Scottish Ministers under paragraph 1D;

(b) any information to which he or they referred in discharging the obligation imposed by that paragraph;

(c) any suggestion which in that case was made under paragraph 1E; and

(d) any revision of anything falling within paragraph (a) to (c) which has been notified to that Office under paragraph 1F or 1G. "

(2) In sub-paragraph (7) of that paragraph, after the words "Competition Commission", in the second place where they occur, insert "(in addition to the information and revisions mentioned in sub-paragraph (6A))".

(3) In sub-paragraph (8) of that paragraph, for "sub-paragraph" substitute "sub-paragraphs (6A) and".

(4) In sub-paragraph (9) of that paragraph (matters to be taken into account in assessing public interest), at the end insert "and to the information, suggestions and revisions mentioned in sub-paragraph (6A)".

Noticed of proposed relevant changes following Competition Commission report

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8 (1) In paragraph 12 (changes following report), after sub-paragraph (4) insert--

" (4A) Where (after considering any representations and objections which are duly made and not withdrawn) the Office of Rail Regulation proposes to make relevant changes under this paragraph, it must give a notice to the relevant authorities which--

(a) sets out everything that would have to be included in a notice under sub-paragraph (5) with respect to the proposed changes;

(b) specifies a period within which the Secretary of State, the Scottish Ministers or each of them has the opportunity of revising, in the light of those proposals, any information provided under paragraph 1D.

(4B) If in consequence of any revision of that information that is notified to the Office of Rail Regulation within the period specified in that notice, that Office decides to modify its proposals, it must--

(a) give a new notice with respect to the modified proposals under sub-paragraph (3); and

(b) comply again with sub-paragraph (4A) and this sub-paragraph before giving notice of the modified proposals to the Competition Commission.

(4C) The relevant authorities for the purposes of sub-paragraph (4A) are each of the following--

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