Chapter I: the Strategic Rail Authority
Sections 201 to 204 and Schedule 14: The Strategic Rail Authority
182.Sections 201 to 204 and Schedule 14 provide for the establishment of the Strategic Rail Authority (“the Authority”). The Authority will be a body corporate and will have between eight and fourteen members. Members will be appointed by the Secretary of State who may, by order made by statutory instrument, substitute different figures for the minimum and maximum membership of the Authority. In making appointments the Secretary of State is to have regard to the desirability of appointing persons who have experience of, and shown capacity in, some matter relevant to the functions of the Authority. One member of the Board is to be appointed after consultation with the National Assembly for Wales, and one after consultation with the Scottish Ministers. In making these appointments the Secretary of State will need to have regard to the desirability of appointing a person who is familiar with the special requirements and circumstances of Scotland or of Wales.
183.The Authority will not be a Crown body but will be a Non-Departmental Public Body. The Authority’s staff will not be civil servants. The chairman of the Authority is to be appointed by the Secretary of State and the other members (including any deputy chairman) are to be appointed by the Secretary of State after consultation with the chairman. The Authority appoints it own chief executive, with the Secretary of State’s approval, who is to be appointed a member of the authority.
184.Schedule 14 covers provision for the appointment, tenure and remuneration of the members and staff of the Authority and for procedural matters. Paragraph 1(4) makes standard provision for the Secretary of State to remove any member from office on the grounds of incapacity or misbehaviour. The Authority will have the power to make pension provisions for its staff, including the administration of Principal Civil Service Pension Scheme arrangements. The Schedule sets out provisions as to members’ interests and conduct to prevent conflicts of interest arising.
185.Schedule 14 also provides for the financing of the Authority. The Authority will be funded by the Secretary of State, and will also be entitled to borrow money, both from the Secretary of State and temporarily from other sources (eg by overdraft or bridging facility) with the consent of the Secretary of State and the approval of the Treasury. Restrictions on borrowing and a borrowing limit are set out. Provision is made as to the terms of any loans from the Secretary of State. The requirements for accounts and audit are set out, the Authority’s accounts are to be audited by the National Audit Office. The Secretary of State is allowed to guarantee sums borrowed by the Authority, and the procedures which must be followed to facilitate this are laid down. The Schedule allows the Secretary of State to require the payment to him of sums which are received by the Authority, in particular where these are surplus. The Secretary of State is also able to make regulations for the purposes of eliminating or reducing the Authority’s liabilities to tax.
186.The Authority is permitted to set up committees and sub committees and is allowed to delegate functions to its members, staff, committees and sub-committees and wholly owned subsidiary companies.
187.The Secretary of State is required to prepare and to update a financial framework for the Authority which will determine the rules and principles by which the Authority must run its own finances and matters relating to its employees.
Sections 205 to 210: Purposes, Strategies and Exercise of Functions
188.Sections 205 to 210 set out the framework within which the Authority must work to bring strategic leadership to the railway industry, with a hierarchy of purposes, strategies and duties. They set out purposes for which the Authority is established and how it should seek to achieve those purposes.
189.Section 205 sets out the primary, high level, purposes of the Authority: what might be called its “objectives” or “mission”. These purposes are:
to promote the use of the railway network for passengers and freight;
to secure the development of the railway network; and
to contribute to the development of an integrated system of transport of passengers and freight.
190.The Authority has to explain how it will give effect to these purposes through strategies which it must formulate and keep under review (section 206). These will still be at a high level. One strategy must relate to services in various parts of Great Britain for facilitating the use of the Channel Tunnel.
191.The Authority must consult the Rail Regulator, the Scottish Ministers, the National Assembly for Wales, and other persons as it thinks fit, before formulating a strategy and as part of keeping its strategies under review. The Authority is to publish its strategies. The Secretary of State has the power to give directions and guidance to the Authority as to, for example, the matters to be covered by the strategies. Any directions and guidance issued to the Authority are to be published (seesection 209).
192.The Authority will need to exercise its functions (that is all the powers and duties which it has in sections 211 to 222, both those inherited from the Franchising Director, the British Railways Board, the Rail Regulator and the Secretary of State and those freshly conferred by the Act) with a view to furthering its purposes in accordance with any strategies which it has formulated (section 206). It will also need to exercise its functions in a manner best calculated to achieve the considerations set out in section 207(2)(a) to (f) and to have regard to the considerations in section 207(3).
193.The considerations in sections 207(2) and (3) are broadly aligned with the Regulator’s duties under section 4 of the Railways Act 1993 (“the 1993Act”) (as amended by the Act). If they pull in different directions the Authority will need to do what it considers to be most appropriate, balancing all relevant considerations.
194.The term “users” in section 207(2)(a) includes passengers, freight customers, train service operators and, where appropriate, railway facility providers. “Railway services” is defined in section 82 of the 1993 Act and covers passenger, freight, light maintenance, station and network services.
195.The Authority must ensure that any payment made, or other financial assistance given, by it are such as it reasonably considers will further its purposes economically and efficiently. This duty includes all payments made by the Authority, whether by way of grant, under a franchise agreement, or under any other agreements made to secure provision, improvements etc. of services. This provision is based on a similar duty laid on the Franchising Director in section 5 of the 1993 Act (which will be repealed) and is often referred to as the “value for money” duty.
196.The Secretary of State may give directions and guidance to the Authority as to what it should do to achieve its purposes in a way best calculated to balance the various section 207 considerations. The Secretary of State may also direct the Authority not to exercise a function in a particular manner or not to exercise it without first consulting him or obtaining his consent. For example, the Secretary of State may direct the Authority that they may only set up freight grant schemes which comply with European obligations. However, the Authority’s duty to obtain value for money in any payments which it makes or any other financial assistance which it gives cannot be overidden by the directions and guidance.
197.The Scottish Ministers may also give directions and guidance to the Authority for services which start and end in Scotland. The Authority must implement these provided that they do not conflict with the Secretary of State’s directions and guidance or the Authority’s financial framework. The Scottish Ministers may also give directions and guidance on Scottish sleeper services, which the Authority must implement provided that they do not conflict with the Secretary of State’s directions and guidance or the Authority’s financial framework, and provided they do not impact on other services or the non-Scottish budget. The Scottish Ministers may, in addition, give advice to the Authority on all other cross border services (ie the non sleeper services).
198.Section 210 protects transactions of the Authority from being invalidated on the grounds merely that it has failed to comply with a requirement to take proper account of all the considerations in sections 207 and 208.
Sections 211 to 222. Securing the provision of railway services and assets etc
199.Sections 211 to 222 describe the main functions and powers of the Authority, including ones transferred from the Franchising Director, the Rail Regulator, the Secretary of State and the British Railways Board (“BRB”).
200.Under section 211 the Authority has power to enter into agreements for the purpose of securing the provision, improvement or development by others of any railway services or assets or for any other railway related purpose. This includes a power to give grants, loans or guarantees for any purpose relating to any railway or railway services and to invest in a body corporate.
201.The section also provides certain restrictions on this power. Payments for franchised services may only be paid under the franchise agreement. In Scotland, the Authority will have no powers with regard to freight where something falls within a scheme which it has notified to the Scottish Ministers. These schemes (which are intended to replace the freight grants and track access guarantee schemes in sections 137 and 139 of the 1993 Act) will be administered in Scotland by Scottish Ministers only.
202.In this section “railway” means a railway, tramway or transport system, which uses another mode of guided transport but which is not a trolley vehicle system. This is what is meant by railway in “its wider meaning” (see subsection (6) of the section and section 81(2) of the 1993 Act.) The expression “railway”, “tramway” and “transport system” have, in turn, their meaning under section 67(1) of the Transport and Works Act 1992.
203.Section 211 would enable the Authority, for example, to:
provide grants to local authorities (Passenger Transport Authorities (“PTAs”)) in support of railway services provided or funded by them (including such services provided under franchise agreements to which the relevant Passenger Transport Executive (“PTE”) is a party);
fund the integration of light rapid transport systems with the heavy rail network and;
make grants or enter into contracts in respect of the enhancement of railway infrastructure which is not commercially viable but in the public interest.
204.Grants to PTAs would provide a substitute for the special grant which the Secretary of State makes to them each year, under the general grant power in section 88B of the Local Government Act 1988. The power in section 211 is in addition to the Secretary of State’s power in section 157 to make such payments.
205.The power in section 211 relates to anything connected with railways as a mode of transport. It relates, for example, to anything connected with the type of railway services which are provided (such as networks, carriages, stations), the types of railway assets involved (such as network and trains) and facilities connected with railway travel (such as parking outside stations).
206.Schedule 15 provides a power to make a transfer scheme for the administration of grants for freight from the Secretary of State to the Authority.
207.Sections 212 and 213 govern the Authority’s powers to secure or provide railway services. The sections meet the commitment in A New Deal for Transport (paragraph 4.19) to retain the capability for the public sector to take over franchises “as a last resort” (for example, if a franchise was terminated or there were no acceptable private sector bids).
208.Section 212(1) and (2) make technical amendments to the Railways Act 1993 to facilitate franchising. The Authority is required to designate passenger services which ought to be secured by franchise unless they are exempt services and not merely to designate services which may be eligible for franchising. Section 212(6) enables the Regulator to refuse to grant access rights if they might impede the provision of a service which has been designated.
209.The Secretary of State is required to publish his policy towards the use of the power in section 26 of the Railways Act to set aside the tendering process which otherwise precedes the award of a franchise and to have regard to that policy when exercising that power. The Act also sets out the use that may be made of that power.
210.The section specifies the procedures which the Authority will need to follow before it can act as the operator of last resort for services which have been designated for franchising.
211.Where the Authority has issued an invitation to tender for services which have been designated for franchising but receives no tender at all, the Secretary of State may either direct the Authority to issue new invitations to tender or direct that the service should be secured otherwise than by a franchise (by the Authority or a private contractor).
212.Where the Authority has issued an invitation to tender for services which have been designated for franchising and has received tenders for a franchised service, but considers that the services could be provided more economically and efficiently other than by a franchise agreement, the Secretary of State is required either to direct the Authority to select a franchisee or to conduct a further tendering exercise. He may not, at this stage, direct the Authority not to seek to secure provision of a franchise under a franchise agreement. If a further tendering exercise results in no tenders, or tenders are received but the Authority remains of the view that services could be provided more economically or efficiently other than under a franchise agreement, the Secretary of State may, at this stage, direct the Authority not to award a franchise. Where tenders were received, the Secretary of State still has the option to direct the Authority to re-consider these.
213.Section 212 makes it clear that the Authority must provide services if a direction not to seek a franchise has been made by the Secretary of State or a franchise comes to an end or is terminated without a new agreement being in place. This duty remains until there is a new franchise, although it does not apply if there are already adequate services, nor does it prevent closure procedures.
214.Section 213 gives the Authority limited additional powers to run goods or undesignated passenger services where it acquires an obligation to provide that service in consequence of a former obligation of the BRB or they are no longer being provided by another person. It gives the Authority the necessary associated powers (such as storing goods) to run that service.
215.Section 214 confers on the Authority certain powers associated with passenger services – so that passengers can be transported by road during temporary disruptions to the rail service.
Sections 215 to 218: Functions of Franchising Director, Regulator and Board
216.Section 215 and Schedule 16 transfer to the Authority all the functions, property, rights and liabilities of the Franchising Director (including any rights and liabilities relating to staff appointed by the Franchising Director). Once this transfer is effected the office of the Franchising Director will be abolished and the Schedule makes the necessary amendments to the 1993 Act and other enactments.
217.Section 216 and Schedule 17 address a criticism of the current regulatory system that there is no clear division between the respective roles of the Rail Regulator and the Franchising Director in relation to the consumer. The Act transfers responsibilities for consumer protection to the Authority as the successor to the Franchising Director. The types of matters which are considered consumer protection include telephone enquiries, through ticketing, security, the protection of the interests of disabled people and penalty fares.
218.Where the protection of consumers is secured through a licence the Authority will be responsible for the content of the licence as it relates to consumer protection (through being able to refuse the grant of a licence which does not make adequate provision for the protection of consumers), for the enforcement and modification of consumer protection provisions in a licence (as regards modification only if the Regulator also approves) and for the revocation of a licence where the licensee is in persistent contravention of these provisions. However, when it is exercising this responsibility the Authority will be under the same duties and will need to have regard to the same considerations as the Regulator.
219.For existing licences the Secretary of State may make a scheme which has the effect of separating out those parts of the licence which relates to consumer protection and enabling them to be enforced by the Authority. For new licences the split will be made in the licence when it is granted.
220.Schedule 17 also transfers the administrative responsibility for the Rail Users’ Consultative Committees and the Central Rail Users’ Consultative Committee to the Authority (which are renamed in section 227 – see below). The Authority will inherit the Regulator’s code of practice for protecting the interests of disabled railway users and the duty to revise it from time to time and encourage its adoption and implementation. The Authority will inherit the Rail Regulator’s power to make rules for penalty fares.
221.The final part of Schedule 17 allows the Secretary of State to make schemes to transfer property, rights a liabilities (including any rights and liabilities relating staff appointed by the Rail Regulator) from the Rail Regulator to the Authority. This will provide the administrative support for the Authority to take on these previous functions of the Regulator.
222.Section 217 and Schedule 18 transfer functions of the BRB in relation to the British Transport Police (“BTP”) to the Authority, with associated property, rights and liabilities. Provision for the transfer of staff in made. Section 207 is disapplied in relation to the Authority’s BTP functions because these provisions are not appropriate to police functions. Instead, the Authority has a general duty relating to efficiency and effectiveness.
223.Section 218 and Schedule 19 make provision for the transfer of all the other properties, rights and liabilities of the BRB to the Authority. Those which are not required by the Authority for railways purposes are to be disposed of and the Authority is permitted to maintain and manage property or to develop it for sale. Provision is made for the transfer of staff.
Section 219 to 222: Other Powers
224.Section 219 and Schedule 20 change the current system whereby byelaws are made by the individual train companies and Railtrack and are then confirmed by the Secretary of State. Instead, the Authority will have the power to make uniform byelaws for the whole rail network. The Authority will be able to designate which stations shall hold copies of the byelaws.
225.Section 220 and Schedule 21 give the Authority powers to transfer any of its property, rights, liabilities and staff to a wholly owned company, the Secretary of State or a franchise company. This includes the transfer of franchise assets after a franchise comes to an end.
226.Section 221 gives the Authority powers to promote Acts relating to railways and to oppose Acts. This provision also enables the Authority to promote or oppose orders under the Transport and Works Act 1992, by virtue of section 20 of that Act. This will give the Authority the power to promote new railway schemes where there is no other appropriate sponsor.
227.Section 222 gives the Authority incidental powers and restrictions on its powers. Powers include entering into agreements, acquiring and disposing of property, investing money and promoting publicity.
