Railways Act 1993

Part I U.K. The Provision of Railway Services

Modifications etc. (not altering text)

C1 Pt. I (ss. 1-83) modified (18.12.1996) by 1996 c. 61, s. 21(6)

C2 Pt. 1 (ss. 1-83) applied (S.) (27.4.2006) by Edinburgh Tram (Line Two) Act 2006 (asp. 6), s.78 (with s.75)

Pt. 1 (ss. 1-83) applied (S.) (8.5.2006) by Edinburgh Tram (Line One) Act 2006 (asp. 7), s.79 (with ss.76, 84)

Commencement Information

I1 Pt. I (ss. 1-83) applied (1.4.1994) by 1993 c. 43, ss. 36(2) (inserting s. 10(1)(viiia) in 1968 c. 73); S.I. 1994/571, art. 5

Pt. I (ss. 1-83) applied (18.12.1996) by 1996 c. 61, s. 16(5)

Introductory E+W+S

1 The Rail Regulator F1 . . .. E+W+S

(1) The Secretary of State shall appoint—

(a) an officer to be known as “the Rail Regulator” (in this Act referred to as “the Regulator”), F2 . . .

F2 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

for the purpose of carrying out the functions assigned or transferred to the Regulator, F3 . . . by or under this Act.

(2) An appointment of a person to hold office as the Regulator F3 . . . shall be for a term not exceeding five years; but previous appointment F3 . . . shall not affect eligibility for re-appointment F3 . . ..

(3) The Secretary of State may remove any person from office as the Regulator F4 . . . on the ground of incapacity or misbehaviour.

(4) Subject to subsections (2) and (3) above, a person appointed as the Regulator F4 . . . shall hold and vacate office as such in accordance with the terms of his appointment.

F5 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The provisions of Schedule 1 to this Act shall have effect with respect to the Regulator F6 . . ..

Textual Amendments

F1 Words in s. 1 sidenote repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F2 S. 1(1)(b) and word “and" immediately before it repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F3 Words in s. 1(2) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F4 Words in s. 1(3)(4) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F5 S. 1(5) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F6 Words in s. 1(6) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

2 [F7 Passengers’ Committees]. E+W+S

F8 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The [F9 Strategic Rail Authority (in this Act referred to as “the Authority")] shall establish a number of committees, not exceeding nine at any one time, to be known as Rail [F7 Passengers’ Committees].

(3) There shall be one [F7 Rail Passengers’ Committee] for Scotland, and one for Wales.

(4) In addition to the [F7 Rail Passengers’ Committees] established under subsection (2) above, the [F10 London Transport Users Committee] shall be treated as the [F7 Rail Passengers’ Committee] for the Greater London area for all purposes of this Part other than—

(a) subsections (2) and (3) above and subsections (6) to (8) below;

(b) section 79 below; and

(c) Schedule 2 to this Act;

and references in this Part to a [F7 Rail Passengers’ Committee] shall be construed accordingly.

(5) Subject to subsections (3) and (4) above—

(a) each [F7 Rail Passengers’ Committee] shall be appointed for such area as the [F11 Authority] may from time to time assign to it; and

(b) the [F11 Authority] shall so assign areas to [Rail Passengers’ Committees]as to secure that every place in Great Britain forms part of the area of a [F7 Rail Passengers’ Committee], and that no place forms part of the area of two or more [F7 Rail Passengers’ Committees].

(6) Each [F7 Rail Passengers’ Committee] established under subsection (2) above [F12 , except [F7 the Rail Passengers’ Committee] established for Scotland in accordance with subsection (3) above;] shall consist of—

(a) a chairman appointed by the Secretary of State after consultation with the [F11 Authority]; and

(b) such other members, being not less than ten nor more than twenty in number, as the [F11 Authority] may from time to time appoint, after consultation with the Secretary of State and the chairman.

[F13 (6A) The [F7 Rail Passengers’ Committee]] for Scotland shall consist of–

(a) a Chairman appointed by the Scottish Ministers after consultation with the [F11 Authority]; and

(b) such other members, being not less than ten nor more than twenty in number, as the [F11 Authority] may from time to time appoint, after consultation with the Scottish Ministers and the chairman.

(7) The chairman and other members of a [F7 Rail Passengers’ Committee] established under subsection (2) above shall hold and vacate office in accordance with the terms of the instruments appointing them and shall, on ceasing to hold office, be eligible for re-appointment.

(8) The provisions of Schedule 2 to this Act shall have effect with respect to each of the [F7 Rail Passengers’ Committees] established under subsection (2) above.

(9) Unless the Secretary of State, after consultation with the [F11 Authority], otherwise directs, “the Greater London area” means, for the purposes of this section, the area for which, [F14 immediately before the coming into force of section 252(1) of the Greater London Authority Act 1999 (which substitutes the London Transport Users’ Committee for the London Regional Passengers’ Committee in subsection (4) above) the London Regional Passengers’ Committee was the consultative committee under subsection (4) above.]

Textual Amendments

F7 Words in s. 2(2)-(6)(6A)(7)(8) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 2; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F8 S. 2(1) repealed (3.7.2000) by 1999 c. 29, ss. 254(2), 423, Sch. 19 para. 5(2), Sch. 34 Pt. II (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch. Pt. 3

F9 Words in s. 2(2) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 18(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F10 Words in s. 2(4) substituted (3.7.2000) by 1999 c. 29, s. 252(1) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch. Pt. 3

F11 Words in s. 2(5)(6)(6A)(9) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 18(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F12 Words in s. 2(6) inserted (1.7.1999) by S.I. 1999/1747, arts. 1, 3 Sch. 22 Pt. II para. 2(2)(a); S.I. 1998/3178, art. 3

F13 S. 2(6A) inserted (1.7.1999) by S.I. 1999/1747, arts. 1, 3, Sch. 22 Pt. II para. 2(2)(b); S.I. 1998/3178, art. 3

F14 Words in s. 2(9) substituted (3.7.2000) by 1999 c. 29, s. 252(2), Sch. 19, para. 5(3) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch. Pt. 3

3 [F15 Rail Passengers’ Council]. E+W+S

(1) The Central Transport Consultative Committee for Great Britain, established under section 56 of the Transport Act 1962, is hereby abolished.

[F16 (2) There shall be a council to be known as the Rail Passengers’ Council.]

(3) The [F15 Rail Passengers’ Council] shall consist of—

(a) a chairman, appointed by the Secretary of State after consultation with the [F17 Authority];

(b) every person who for the time being holds office as chairman of a [F15 Rail Passengers’ Committee] established under section 2(2) above or as chairman of the [F18 London Transport Users’ Committee]

(c) not more than six other members, appointed by the [F17 Authority] after consultation with the Secretary of State and the chairman.

(4) The chairman of the [F15 Rail Passengers’ Council] and any members appointed under subsection (3)(c) above shall hold and vacate office in accordance with the terms of the instruments appointing them and shall, on ceasing to hold office, be eligible for re-appointment.

(5) The provisions of Schedule 3 to this Act shall have effect with respect to the [F15 Rail Passengers’ Council].

Textual Amendments

F15 Words in s. 3(3)(4)(5) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 3(3)(4)(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F16 S. 3(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 3(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F17 Words in s. 3(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 19; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F18 Words in s. 3(3)(b) substituted (3.7.2000) by 1999 c. 29, s. 252(2), Sch. 19 para. 5(4) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch. Pt. 3

4 General duties of the Secretary of State and the Regulator. E+W+S

(1) The [F19 Regulator shall] have a duty to exercise the functions assigned or transferred to him under or by virtue of this Part in the manner which he considers best calculated—

[F20 (za) to facilitate the furtherance by the Authority of any strategies which it has formulated with respect to its purposes2;]

(a) to protect the interests of users of railway services;

(b) to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that he considers economically practicable;

[F21 (ba) to contribute to the development of an integrated system of transport of passengers and goods;

(bb) to contribute to the achievement of sustainable development;]

(c) to promote efficiency and economy on the part of persons providing railway services;

(d) to promote competition in the provision of railway services [F22 for the benefit of users of railway services];

(e) to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;

(f) to impose on the operators of railway services the minimum restrictions which are consistent with the performance of his functions under this Part;

(g) to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance.

(2) Without prejudice to the generality of subsection (1)(a) above, the [F23 Regulator shall] have a duty, in particular, to exercise the functions assigned or transferred to him under or by virtue of this Part in the manner which he considers is best calculated to protect—

(a) the interests of users and potential users of services for the carriage of passengers by railway provided by a private sector operator otherwise than under a franchise agreement, in respect of—

(i) the prices charged for travel by means of those services, and

(ii) the quality of the service provided,

in cases where the circumstances appear to F24 . . . the Regulator to be such as to give rise, or be likely to give rise, to a monopoly situation in the passenger transport market; and

(b) the interests of persons providing services for the carriage of passengers or goods by railway in their use of any railway facilities which are for the time being vested in a private sector operator, in respect of—

(i) the prices charged for such use; and

(ii) the quality of the service provided.

(3) The [F25 Regulator shall] be under a duty in exercising the functions assigned or transferred to him under or by virtue of this Part—

(a) to take into account the need to protect all persons from dangers arising from the operation of railways, taking into account, in particular, any advice given to him in that behalf by the Health and Safety Executive; and

(b) to have regard to the effect on the environment of activities connected with the provision of railway services.

[F26 (3A) Subsections (1) to (3) above shall have effect in relation to the Secretary of State as in relation to the Regulator, except that in their application to the Secretary of State—

(a) paragraph (za) of subsection (1) above shall be disregarded; and

(b) the references in each of the subsections to the functions transferred or assigned to the Secretary of State under or by virtue of this Part include only the functions transferred or assigned to him under or by virtue of sections 6 to 22 and 37 to 50 below.]

(4) The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part, to promote the award of franchise agreements to companies in which qualifying railway employees have a substantial interest, “qualifying railway employees” meaning for this purpose persons who are or have been employed in an undertaking which provides or provided the services to which the franchise agreement in question relates at a time before those services begin to be provided under that franchise agreement.

(5) The Regulator shall also be under a duty in exercising the functions assigned or transferred to him under this Part—

[F27 (a) to have regard to any general guidance given to him by the Secretary of State about railway services or other matters relating to railways;]

(b) to act in a manner which he considers will not render it unduly difficult for persons who are holders of network licences to finance any activities or proposed activities of theirs in relation to which the Regulator has functions under or by virtue of this Part (whether or not the activities in question are, or are to be, carried on by those persons in their capacity as holders of such licences); F28 . . .

(c) to have regard to the financial position of the [F29 Authority in discharging its] functions under this Part [F30 ; and]

[F31 (d) to have regard to the ability of the Mayor of London, London Regional Transport and Transport for London to carry out the functions conferred or imposed on them by or under any enactment]

(6) In performing his duty under subsection (1)(a) above so far as relating to services for the carriage of passengers by railway or to station services, the Regulator shall have regard, in particular, to the interests of persons who are disabled.

(7) Without prejudice to the generality of paragraph (e) of subsection (1) above, any arrangements for the issue and use of through tickets shall be regarded as a measure falling within that paragraph.

[F32 (7ZA) Any general guidance given by the Secretary of State to the Regulator about railway services or other matters relating to railways—

(a) shall be published by the Secretary of State in such manner as he considers appropriate; and

(b) may be varied or revoked.]

[F33 (7A) Subsections (1) to (6) above do not apply in relation to anything done by the Regulator in the exercise of functions assigned to him by section 67(3) below (“Competition Act functions”).

(7B) The Regulator may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which [F34 the Office of Fair Trading] could have regard when exercising that function.]

(8) For the purposes of this section, “monopoly situation” has the same meaning as it has in the M1 Fair Trading Act 1973 (in this Part referred to as “the 1973 Act”), except that in relation to the passenger transport market—

(a) the expression includes a monopoly situation which is limited to the passenger transport market in some part of the United Kingdom; and

(b) in the application of section 7 of the 1973 Act (monopoly situation in relation to the supply of services) for the purposes of paragraph (a) above, references in that section to the United Kingdom shall accordingly be taken to include references to a part of the United Kingdom.

(9) In this section—

• [F35 “ the environment” means all , or any, of the following media, namely , the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground);]

• “the passenger transport market” means the market for the supply of services for the carriage of passengers, whether by railway or any other means of transport;

• F36 . . .

  (a)

  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  (b)

  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F19 Words in s. 4(1) substituted (1.2.2001) by 2000 c. 38, s. 224(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F20 S. 4(1)(za) inserted (1.2.2001) by 2000 c. 38, s. 224(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F21 S. 4(1)(ba)(bb) inserted (1.2.2001) by 2000 c. 38, s. 224(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F22 Words in s. 4(1)(d) inserted (1.2.2001) by 2000 c. 38, s. 224(2)(d); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F23 Words in s. 4(2) substituted (1.2.2001) by 2000 c. 38, s. 224(3)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F24 Words in s. 4(2) repealed (1.2.2001) by 2000 c. 38, ss. 224(3)(b), 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F25 Words in s. 4(3) substituted (1.2.2001) by 2000 c. 38, s. 224(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F26 S. 4(3A) inserted (1.2.2001) by 2000 c. 38, s. 224(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F27 S. 4(5)(a) substituted (1.2.2001) by 2000 c. 38, s. 224(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F28 Word in s. 4(5) omitted (3.7.2000) by virtue of 1999 c. 29, s. 200(4) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c), Sch.

F29 Words in s. 4(5)(c) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 9; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F30 S. 4(5)(d) and preceding word inserted (3.7.2000) by Greater London Authority Act 1999 (c. 29), ss. 200, 425(2)(3) (with Sch. 12 para. 9(1); S.I. 2000/801, art. 2(c), Sch.

F31 S. 4(5)(d) and preceding word inserted (3.7.2000) by Greater London Authority Act 1999 (c. 29), ss. 200, 425(2)(3) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c), Sch.

F32 S. 4(7ZA) inserted (1.2.2001) by 2000 c. 38, s. 224(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F33 S. 4(7A)(7B) inserted (1.3.2000) by 1998 c. 41, ss. 9(3), 66(5), Sch. 10 Pt. II para. 6(3) (with s. 73); S.I. 2000/344, art. 2, Sch.

F34 Words in s. 4(7B) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(2)(b); S.I. 2003/766, art. 2, Sch. (with art. 3)

F35 S. 4(9): definition of “the environment" substituted (14.12.1999) by 1999 c. 24, s. 6, Sch. 2 para. 12; S.I. 1999/3376, art. 2

F36 S. 4(9): definition of "through ticket" repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Commencement Information

I2 S. 4 wholly in force at 21.3.1994; s. 4 not in force at Royal Assent see s. 154(2); s. 4(1)(3)(7)(9) in force for specified purposes at 24.12.1993 by S.I. 1993/3237, art. 2(1); s. 4(1)-(3)(5)(6) in force for specified purposes at 22.2.1994 by S.I. 1994/447, art. 2 and in force at 21.3.1994 insofar as not already in force by S.I. 1994/571, art. 3

Marginal Citations

M1 1973 c. 41.

F37 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F37 S. 5 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31, Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Licensing of operators of railway assets E+W+S

6 Prohibition on unauthorised operators of railway assets. E+W+S

(1) Any person who acts as the operator of a railway asset is guilty of an offence unless—

(a) he is authorised to be the operator of that railway asset by a licence; or

(b) he is exempt, by virtue of section 7 below, from the requirement to be so authorised.

[F38 (1A) This section does not apply to a person who acts as the operator of a railway asset to the extent that the asset is operated for the purpose of providing international services]

(2) In this Part—

• [F39 'international licence’ means a licence granted pursuant to a provision contained in subordinate legislation made for the purpose of implementing the Directive of the Council of the European Union dated 19th June 1995 on the licensing of railway undertakings or pursuant to any action taken by an EEA State for that purpose;

• 'international services’ means services the provision of which requires an international licence;]

• “operator”, in relation to any railway asset, means the person having the management of that railway asset for the time being;

• “railway asset” means—

  (a)

  any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;

  (b)

  any network;

  (c)

  any station; or

  (d)

  any light maintenance depot.

[F40 (2A) In subsection (2) above “EEA State" means a State which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;]

(3) Any person who is guilty of an offence under this section shall be liable—

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

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

(4) No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or the Regulator.

Textual Amendments

F38 S. 6(1A) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(2)

F39 Definitions of 'international license' and "international services" in s. 6(2) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(3)

F40 S. 6(2A) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(4)

Modifications etc. (not altering text)

C3 S. 6(1) excluded (18.12.1996) by 1996 c. 61, s. 16(1)

Commencement Information

I3 S. 6 wholly in force at 1.4.1994; s. 6 not in force at Royal Assent see s. 154(2); s. 6(2) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2), s. 6 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

7 Exemptions from section 6. E+W+S

(1) The Secretary of State may, after consultation with the Regulator [F41 and the Authority], by order grant exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2) A licence exemption under subsection (1) above may be granted either—

(a) to persons of a particular class or description; or

(b) to a particular person;

and a licence exemption granted to persons of a particular class or description shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class or description.

(3) If any person makes an application under this subsection to the Regulator for the grant of an exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as he may specify in the application, the Regulator, after consultation with the Secretary of State [F41 and the Authority]—

(a) may either grant or refuse the exemption, whether wholly or to such extent as he may specify in the exemption; and

(b) if and to the extent that he grants it, may do so subject to compliance with such conditions (if any) as he may so specify.

(4) Before granting a licence exemption under subsection (3) above, the Regulator shall give notice—

(a) stating that he proposes to grant the licence exemption,

(b) stating the reasons why he proposes to grant the licence exemption; and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) A notice under subsection (4) above shall be given by publishing the notice in such manner as the Regulator considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence exemption.

[F42 (5A) The Regulator shall obtain the approval of the Authority to any condition of a licence exemption which relates to consumer protection; but a failure to comply with this subsection shall not affect the validity of the licence exemption.]

(6) If any condition (the “broken condition") of a licence exemption is not complied with—

(a) the Secretary of State, in the case of a licence exemption under subsection (1) above, or

(b) the Regulator, in the case of a licence exemption under subsection (3) above,

may give to any relevant person a direction declaring that the licence exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

[F43 (6A) If the broken condition relates to consumer protection, the Authority may require the Regulator to give to any relevant person specified by the Authority a direction declaring that the licence exemption is revoked, so far as relating to that person, to such extent and from such date as is specified by the Authority.]

(7) For the purposes of [F44 this section]—

• “condition”, in relation to a licence exemption, means any condition subject to compliance with which the licence exemption was granted;

• “relevant person”, in the case of any licence exemption, means a person who has the benefit of the licence exemption and who—

  (a)

  is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

  (b)

  is the operator of any of the railway assets in relation to which the broken condition is not complied with.

(8) Where the Secretary of State or the Regulator gives a direction under subsection (6) above to any person, he may also direct that person to refrain from being the operator of any railway assets or of such railway assets, or railway assets of such a class or description, as may be specified in the direction by virtue of this subsection.

[F45 (8A) The Authority may require the Regulator, when he gives a direction to any person in compliance with a requirement under subsection (6A) above, also to direct that person to refrain from being the operator of any railway assets, any railway assets specified by the Authority or any railway assets of a class or description so specified.]

(9) Subject to [F46 subsections (6) and (6A)] above, a licence exemption, unless previously revoked in accordance with any term contained in the licence exemption, shall continue in force for such period as may be specified in, or determined by or under, the licence exemption.

F47 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Any application for a licence exemption under subsection (3) above must be made in writing; and where any such application is made, the Regulator may require the applicant to furnish him with such information as the Regulator may consider necessary to enable him to decide whether to grant or refuse the licence exemption.

(12) Licence exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

(13) In this Part “licence exemption” means an exemption, granted under any provision of this section in respect of a railway asset or in respect of railway assets of any class or description, from the requirement to be authorised by licence to be the operator of that railway asset or, as the case may be, railway assets of that class or description.

Textual Amendments

F41 Words in s. 7(1)(3) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(2)(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F42 S. 7(5A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F43 S. 7(6A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F44 Words in s. 7(7) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(6) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F45 S. 7(8A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(7) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F46 Words in s. 7(9) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 2(8) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F47 S. 7(10) repealed (15.1.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV and omitted (1.2.2001) by virtue of 2000 c. 38, s. 252, Sch. 27 para. 18; S.I. 2000/3376, art. 2; S.I. 2001/57, art. 3, Sch. 2 (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C4 S. 7(1) restricted (prosp.) by 1999 c. 29, ss. 199(1)(a)(2)(3), 425(2) (with Sch. 12 para. 9(1))

[F48 7A Consumer protection conditions. E+W+S

(1) For the purposes of this Part conditions of a licence or licence exemption relate to consumer protection if they are—

(a) conditions about fares, other than conditions about predatory fare pricing;

(b) conditions about complaints against the operator by members of the public or liabilities of the operator to members of the public;

(c) conditions about insurance;

(d) conditions about policing or security;

(e) conditions for facilitating the use of railway services by members of the public (for instance, conditions about timetable information, enquiries, sale of tickets, through ticketing and conditions of carriage);

(f) conditions about liaison with the Rail Passengers’ Council or Rail Passengers’ Committees; or

(g) conditions for protecting the interests of persons who are disabled.

(2) The Secretary of State may make regulations providing that for the purposes of this Part—

(a) further prescribed descriptions of conditions of licences or licence exemptions are conditions which relate to consumer protection; or

(b) conditions of any description within subsection (1) above are not conditions which so relate.

(3) Only conditions for protecting the interests of the public may be prescribed under subsection (2)(a) above and conditions of the following descriptions may not be so prescribed—

(a) conditions about technical standards or procedures (including safety standards or procedures);

(b) conditions about the protection of the environment;

(c) conditions about responsibility for, or access to, the railway assets to which the licence or licence exemption relates;

(d) conditions relating to the development, improvement or maintenance of the network; and

(e) conditions about anti-competitive practices (including predatory fare pricing and cross-subsidy), investment, financial standards or auditing (including efficiency audits).

(4) The Secretary of State may make in relation to any licence or licence exemption granted before the coming into force of regulations under subsection (2) above a scheme making such provision as appears to him to be appropriate in consequence of the provision made by the regulations.

(5) A scheme under subsection (4) above may include modifications of—

(a) the licence or licence exemption, and

(b) any agreements or other arrangements or other documents relating to the person (or any of the persons) to whom it was granted,

(in particular so that references to the Regulator have effect as references to the Authority or that references to the Authority have effect as references to the Regulator).

(6) The scheme may include provision—

(a) for things done by the Regulator before the time when the scheme comes into force to be treated after that time as if done by the Authority; or

(b) for things done by the Authority before the time when the scheme comes into force to be treated after that time as if done by the Regulator.

(7) Before making a scheme under subsection (4) above the Secretary of State must consult—

(a) the Authority;

(b) the Regulator;

(c) the person or persons to whom the licence or licence exemption was granted; and

(d) any such other persons as the Secretary of State considers appropriate.

(8) The provision made by regulations under subsection (2) above applies in relation to any licence or licence exemption granted before the coming into force of the regulations only from the coming into force of a scheme made under subsection (4) above in relation to the licence or licence exemption.

(9) In the case of the exercise by the Authority of any function in relation to conditions of a licence or licence exemption which relate to consumer protection—

(a) section 207 of the Transport Act 2000 shall not apply; but

(b) section 4 above shall apply (as if the Authority were the Regulator).]

Textual Amendments

F48 S. 7A inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 3 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

8 Licences. E+W+S

(1) Subject to the following provisions of this section—

(a) the Secretary of State after consultation with the Regulator [F49 and the Authority], or

(b) the Regulator with the consent [F50 , or in accordance with a general authority, of the Secretary of State given after consultation with the Authority,]

may grant to any person a licence authorising the person to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the licence.

(2) Any general authority given to the Regulator under subsection (1)(b) above

[F51 (a) shall include a requirement for the Regulator before granting a licence to consult the Authority about, or a requirement for him before doing so to obtain the approval of the Authority to, any conditions to be included in the licence which relate to consumer protection; and

(b) may include a requirement for the Regulator either to consult the Secretary of State, or a requirement to obtain his approval before granting a licence;

but a failure to comply with such a requirement shall not affect the validity of the licence.]

(3) Any application for a licence—

(a) shall be made in the prescribed manner;

(b) shall be accompanied by such fee (if any) as may be prescribed in the case of a licence of the description in question; and

(c) shall, if the Secretary of State so requires, be published by the applicant in the prescribed manner and within such period as may be notified to the applicant by the Secretary of State;

and, on any such application, the Secretary of State or, as the case may be, the Regulator may either grant or refuse the licence.

(4) Before granting a licence, the Secretary of State or the Regulator shall give notice—

(a) stating that he proposes to grant the licence,

(b) stating the reasons why he proposes to grant the licence, and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) A notice under subsection (4) above shall be given by publishing the notice in such manner as the Secretary of State or the Regulator considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.

(6) A licence shall be in writing and, unless previously revoked or surrendered in accordance with any terms contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence; and a licence shall not be capable of being surrendered [F52 unless the Regulator and the Authority consent to the surrender] if it is—

(a) a passenger licence;

(b) a network licence;

(c) a station licence; or

(d) a light maintenance depot licence.

(7) As soon as practicable after the granting of a licence, the grantor shall send a copy—

(a) in the case of a licence granted by the Secretary of State, to the Regulator [F53 , to the Authority] and to the Health and Safety Executive; or

(b) in the case of a licence granted by the Regulator, [F53 to the Authority and] to the Health and Safety Executive.

(8) Any power to make regulations by virtue of subsection (3) above shall only be exercisable by the Secretary of State after consultation with the Regulator and the [F54 Authority].

(9) Different fees may be prescribed under subsection (3) above in respect of licences authorising a person to be the operator of railway assets of different classes or descriptions.

F55 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Any sums received by the Secretary of State or the Regulator under this section shall be paid into the Consolidated Fund.

Textual Amendments

F49 Words in s. 8(1)(a) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(2)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F50 Words in s. 8(1)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(2)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F51 S. 8(2)(a)(b) and words substituted for words (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F52 Words in s. 8(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F53 Words in s. 8(7) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 4(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F54 Words in s. 8(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16, para. 10; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F55 S. 8(10) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C5 S. 8 restricted (18.12.1996) by 1996 c. 61, s. 16(3)

9 Conditions of licences: general. E+W+S

(1) A licence may include—

(a) such conditions (whether or not relating to the licence holder’s being the operator of railway assets under the authorisation of the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by section 4 above; and

(b) conditions requiring the rendering to—

(i) the Secretary of State,

(ii) the Regulator, or

(iii) any other person, or any other person of a class or description, specified in the licence, except a Minister of the Crown or Government department,

of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2) Conditions included in a licence by virtue of subsection (1)(a) above—

(a) may require the licence holder to enter into any agreement with any person for such purposes as may be specified in the conditions; and

(b) may include provision for determining the terms on which such agreements are to be entered into.

(3) Conditions included in a licence by virtue of subsection (1)(a) above may require the licence holder—

(a) to comply with any requirements from time to time imposed by a qualified person with respect to such matters as are specified in the licence or are of a description so specified;

(b) except in so far as a qualified person consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c) to refer for determination by a qualified person such questions arising under the licence as are specified in the licence or are of a description so specified;

(d) to refer for approval by a qualified person such things falling to be done under the licence as are specified in the licence or are of a description so specified;

(e) to furnish to a qualified person such documents or other information as he may require for the purpose of exercising any functions conferred or imposed on him under or by virtue of the licence;

(f) to furnish to the Secretary of State or the Regulator such documents or other information as he may require for the purpose of exercising the functions assigned or transferred to him under or by virtue of this Part.

[F56 (3A) Conditions included in a licence by virtue of subsection (1)(a) above may include provision about any matter which is dealt with (whether in the same or a different manner) by an access agreement.]

(4) Conditions included in a licence may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions; and any provision included by virtue of this subsection in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

(5) Subsections (2) to (4) above are without prejudice to the generality of subsection (1)(a) above.

(6) Any reference in subsection (3) above to a “qualified person” is a reference to—

(a) a person specified in the licence in question for the purpose in question, or

(b) a person of a description so specified,

and includes a reference to a person nominated for that purpose by such a person pursuant to the licence.

(7) Any sums received by the Secretary of State or the Regulator in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

Textual Amendments

F56 S. 9(3A) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 19; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

10 Conditions of licences: activities carried on by virtue of a licence exemption. E+W+S

(1) If and so long as a person is a licence exempt operator—

(a) there shall not be included in any licence granted to him any condition which relates to his licence exempt activities, except to the extent permitted by virtue of subsection (2) below; and

(b) any such condition which is included in a licence which has been granted to him shall, except to that extent, be of no effect so far as so relating.

(2) A condition which relates to both—

(a) a licensed activity carried on by a person (“the licensee"), and

(b) a licence exempt activity carried on by him,

may be included in a licence, but only if and to the extent that, in the opinion of the person granting the licence, the condition must, in consequence of the licensee’s carrying on of a mixed activity, necessarily have effect in relation to the whole, or some part, of so much of the mixed activity as consists of the licence exempt activity if the condition is to have full effect in relation to so much of the mixed activity as consists of the licensed activity.

(3) There shall not be included in a licence any condition relating to the fares that may be charged in respect of train journeys involving licence exempt travel, other than train journeys which also involve—

(a) licensed travel; and

(b) at least two consecutive scheduled calls at stations during any one continuous spell of licensed operation.

(4) For the purposes of subsection (3) above and this subsection—

• “call” means any stop at a station for the purpose of allowing passengers to board or leave the train (including the stops at the stations at the beginning and end of the train journey in question);

• “licence exempt travel” means travel by means of a train whose operator is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of that train for the whole, or for some part, of the train journey in question;

• “licensed travel” means travel by means of a train whose operator is authorised by licence to be the operator of that train for some part of the train journey in question;

• “spell of licensed operation”, in the case of any train journey, means any part of the journey throughout which the operator of the train in question lawfully acts as such by virtue only of holding one or more licences;

• “train journey” means a journey between any two stations which is scheduled to be made by means of one train (irrespective of where the train in question begins or ends its journey).

(5) Subsection (3) above has effect notwithstanding anything in subsection (1) or (2) above; and section 9 above is subject to the provisions of this section.

(6) In this section—

• “licence exempt activity” means any activity which a person carries on in his capacity as a licence exempt operator;

• “licence exempt operator” means an operator of railway assets, or railway assets of a class or description, who is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of those railway assets or of railway assets of that class or description;

• “licensed activity” means any activity which a person carries on in his capacity as a licence holder;

• “mixed activity” means any activity which is carried on by a person who is both a licence holder and a licence exempt operator and which is carried on by him in part as a licensed activity and in part as a licence exempt activity.

11 Assignment of licences. E+W+S

(1) A licence shall be capable of being assigned, but only if it includes a condition authorising assignment.

(2) A licence shall not be capable of being assigned except with the consent of—

[F57 (a) the Secretary of State, if he is specified for the purpose in the licence; or

(b) the Regulator and the Authority, in any other case.]

F58 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Any consent under subsection (2) above may be given subject to compliance with such conditions as [F59 are imposed by the person or persons giving the consent], which may include conditions modifying, or requiring or otherwise providing for the making of modifications to, the conditions of the licence.

(5) A licence may include conditions which must be complied with before the licence can be assigned.

(6) An assignment, or purported assignment, of a licence shall be void—

(a) if the licence is not capable of assignment;

(b) if the assignment, or purported assignment, is in breach of a condition of the licence; or

(c) if there has, before the assignment or purported assignment, been a contravention of a condition subject to compliance with which the consent required by subsection (2) above is given.

(7) A licence shall not be capable of being assigned under or by virtue of any other provision of this Act, other than paragraph 4 of Schedule 7 to this Act.

(8) In this section “assignment” includes any form of transfer and cognate expressions shall be construed accordingly.

(9) Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.

Textual Amendments

F57 S. 11(2)(a)(b) substituted for words (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 5(2) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F58 S. 11(3) repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 5(3), Sch. 31 Pt. IV (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F59 Words in s. 11(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 5(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modification of licences E+W+S

12 Modification by agreement. E+W+S

(1) Subject to the following provisions of this section, the Regulator may modify the conditions of a licence if the holder of the licence consents to the modifications.

[F60 (1A) The Regulator may not modify the conditions of a licence which relate to consumer protection unless the Authority also consents to the modifications.

(1B) Where the Authority proposes to consent to modifications of such conditions, it shall give notice—

(a) stating that it proposes to consent to the modifications and setting out their effect,

(b) stating the reasons why it proposes to consent to the modifications, and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall, before giving consent, consider any representations or objections which are duly made and not withdrawn.

(1C) If the Authority consents to the modifications, it shall give a copy of any such representations or objections to the Regulator; and the Regulator shall consider them before making the modifications.]

(2) Before making modifications [F61 of any conditions of a licence which do not relate to consumer protection], the Regulator shall give notice—

(a) stating that he proposes to make the modifications and setting out their effect,

(b) stating the reasons why he proposes to make the modifications, and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall [F62 , before making the modifications,] consider any representations or objections which are duly made and not withdrawn.

(3) A notice under subsection [F63 (1B) or] (2) above shall be given—

(a) by publishing the notice in such manner as [F64 the Authority, or the Regulator,] considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the holder of the licence.

(4) As soon as practicable after making any modifications under this section, the Regulator shall send a copy of those modifications to [F65 the Authority and] the Health and Safety Executive.

Textual Amendments

F60 S. 12(1A)-(1C) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(2) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F61 Words in s. 12(2) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(3)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F62 Words in s. 12(12) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(3)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F63 Words in s. 12(3) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(4)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F64 Words in s. 12(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(4)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F65 Words in s. 12(4) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 6(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

13 Modification references to the Monopolies Commission. E+W+S

(1) The [F66 appropriate authority] may make to the Monopolies and Mergers Commission (in this Act referred to as the [F67 Competition Commission]) a reference which is so framed as to require the Commission to investigate and report on the questions—

(a) whether any matters which—

(i) relate to the provision of any railway services by means of a railway asset, or railway assets of a class or description, whose operator acts as such by virtue of a licence, and

(ii) are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b) if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.

[F68 (1A) In this section and section 14 below “the appropriate authority” means—

(a) where conditions of the licence addressing the matters specified in the reference would all inevitably be conditions relating to consumer protection, the Authority; and

(b) in any other case, the Regulator.

(1B) Before the Authority makes a reference under this section—

(a) where the licence authorises the operation of trains for the purpose of carrying passengers or goods by railway for hire or reward, it shall obtain the consent of the Regulator; and

(b) in any other case, it shall consult the Regulator.

(1C) Before the Regulator makes a reference under this section—

(a) where any condition of the licence addressing the matters specified in the reference would or may be conditions relating to consumer protection, he shall obtain the consent of the Authority; and

(b) in any other case, he shall consult the Authority.]

(2) The [F69 appropriate authority] may, at any time, by notice given to the [F67 Competition Commission]vary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice the Commission shall give effect to the variation.

(3) The [F70 appropriate authority] may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the [F67 CompetitionCommission]in carrying out the investigation on the reference—

(a) any effects adverse to the public interest which, in [F70 its] opinion, the matters specified in the reference or variation have or may be expected to have; and

(b) any modifications of the conditions of the licence by which, in [F70 its] opinion, those effects could be remedied or prevented.

(4) As soon as practicable after making a reference under this section or a variation of such a reference, the [F71 appropriate authority]—

(a) shall serve a copy of the reference or variation on the holder of the licence; and

(b) shall publish particulars of the reference or variation in such manner as [F71 it] considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5) The [F72 appropriate authority] shall also send a copy of a reference under this section, or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the [F67 Competition Commission] not to proceed with the reference or, as the case may require, not to give effect to the variation, the Commission shall comply with the direction.

(6) It shall be the duty of the [F73 appropriate authority], for the purpose of assisting the [F67 Competition Commission] in carrying out an investigation on a reference under this section, to give to the Commission—

(a) any information in [F73 the possession of the appropriate authority] which relates to matters falling within the scope of the investigation and—

(i) is requested by the Commission for that purpose; or

(ii) is information which, in [F73 the opinion of the appropriate authority], it would be appropriate for that purpose to give to the Commission without any such request; and

(b) any other assistance which the Commission may require, and which it is within [F73 the power of the appropriate authority] to give, in relation to any such matters;

and the Commission, for the purpose of carrying out any such investigation, shall take account of any information given to them for that purpose under this subsection.

(7) In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the [F67 Competition Commission] shall have regard to the matters as respects which duties are imposed on F74 . . . the Regulator by section 4 above.

[F75 (8) The provisions mentioned in subsection (8A) are to apply in relation to references under this section as if—

(a) the functions of the Competition Commission in relation to those references were functions under the 1973 Act;

(b) the expression “merger reference” included a reference under this section;

(c) in section 70 of the 1973 Act—

(i) references to the Secretary of State were references to the [F76 Regulator], and

(ii) the reference to three months were a reference to six months.

(8A) The provisions are—

(a) sections 70 (time limit for report on merger) [F77 , 85,] (attendance of witnesses and production of documents) [F78 and 93B (false or misleading information)]of the 1973 Act;

(b) Part II of Schedule 7 to the Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c) section 24 of the M2 Competition Act 1980 (in this Part referred to as “the 1980 Act”) (modification of provisions about performance of such functions).]

(9) Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

Textual Amendments

F66 Words in s. 13(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(2) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F67 Words in s. 13(1)-(3)(5)-(7) substituted (1.4.1999) by S.I. 1999/506, art. 33(a)(b)

F68 S. 13(1A)-(1C) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F69 Words in s. 13(2) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F70 Words in s. 13(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F71 Words in s. 13(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(6) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F72 Words in s. 13(5) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(7) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F73 Words in s. 13(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 7(8) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F74 Words in s. 13(7) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F75 S. 13(8) and (8A) substituted (1.4.1999) for s. 13(8) by 1998 c. 41, s. 66(5), Sch. 10 Pt. IV para. 15(2) (with s. 73); S.I. 1999/505, art. 2, Sch.

F76 Words in s. 13(8)(c)(i) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 20(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F77 Words in s. 13(8A)(a) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 20(3)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F78 Words in s. 13(8A)(a) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 27 para. 20(3)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M2 1980 c. 21.

Valid from 20/06/2003

[F79 13A References under section 13: time limits E+W+S

(1) Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2) A report of the Competition Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the appropriate authority under subsection (3) below.

(3) The appropriate authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4) No more than one extension is possible under subsection (3) above in relation to the same reference.

(5) The appropriate authority shall, in the case of an extension made by it under subsection (3) above—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b) send a copy of what has been published by it under paragraph (a) above to the holder of the licence.]

Textual Amendments

F79 Ss. 13A, 13B inserted (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch.

Valid from 20/06/2003

F80 13B References under section 13: application of Enterprise Act 2002 E+W+S

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—

(a) section 109 (attendance of witnesses and production of documents etc.);

(b) section 110 (enforcement of powers under section 109: general);

(c) section 111 (penalties);

(d) section 112 (penalties: main procedural requirements);

(e) section 113 (payments and interest by instalments);

(f) section 114 (appeals in relation to penalties);

(g) section 115 (recovery of penalties); and

(h) section 116 (statement of policy).

(2) Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and

(b) in subsection (9) the words from “or section" to “section 65(3))" were omitted.

(3) Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words “published (or, in the case of a report under section 50 or 65, given)" there were substituted “made";

(b) for the words “published (or given)", in both places where they appear, there were substituted “made"; and

(c) the words “by this Part" were omitted.

(4) Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 13 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words “the OFT," and “or the Secretary of State" were omitted.

(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders), shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by those subsections.

(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.

Textual Amendments

F80 Ss. 13A, 13B inserted (20.6.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(4); S.I. 2003/1397, art. 2(1), Sch.

Modifications etc. (not altering text)

C6 S. 13B applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(b)

14 Reports on modification references. E+W+S

(1) In making a report on a reference under section 13 above, the [F81 Competition Commission]—

(a) shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b) where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c) where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.

F82 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Section 82 of the 1973 Act (general provisions as to reports) shall apply in relation to reports of the [F81 Competition Commission]on references under section 13 above as it applies to reports of the Commission under that Act.

(4) A report of the [F81 Competition Commission] on a reference under section 13 above shall be made to the [F83 appropriate authority].

(5) Subject to subsection (6) below, the [F84 appropriate authority]—

(a) shall, on receiving such a report, send a copy of it to the holder of the licence to which the report relates and to the Secretary of State; and

(b) shall, not less than 14 days after that copy is received by the Secretary of State, publish the report in such manner as [F84 it] considers appropriate for bringing the report to the attention of persons likely to be affected by it.

[F85 (5A) When the Authority receives such a report it shall send a copy of it to the Regulator; and when the Regulator receives such a report he shall send a copy of it to the Authority.]

(6) If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in paragraph (b) of subsection (5) above, direct the [F86 appropriate authority] to exclude that matter from every copy of the report to be published by virtue of that paragraph.

(7) Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

Textual Amendments

F81 Words in s. 14(1)-(2) substituted (1.4.1999) by S.I. 1999/506, art. 33(b)

F82 S. 14(2) repealed (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(3), Sch. 14 Pt. I (with s. 73); S.I. 2000/344, art. 2, Sch.

F83 Words in s. 14(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 8(2) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F84 Words in s. 14(5) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 8(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F85 S. 14(5A) inserted (1.2.2001) by 2000 c. 38, s. 216, 275(1), Sch. 17 para. 8(4) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F86 Words in s. 14(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 8(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

15 Modification following report. E+W+S

(1) [F87 This section applies where] a report of the [F88 Competition Commission] on a reference under section 13 above—

(a) includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest,

(b) specifies effects adverse to the public interest which those matters have or may be expected to have,

(c) includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence, and

(d) specifies modifications by which those effects could be remedied or prevented,

F89 . . .

[F90 (1A) Where the report is made to the Regulator he shall, subject to the following provisions of this section and to section 15A below, make such modifications of the conditions of the licence as appear to him requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(1B) Where the report is made to the Authority it shall, subject to the following provisions of this section and to section 15A below, require the Regulator to make such modifications of the conditions of the licence as appear to it requisite for the purpose of remedying or preventing the adverse effects specified in the report.]

(2) Before making [F91 , or requiring the making of,] modifications under this section, the Regulator [F92 , or Authority,] shall have regard to the modifications specified in the report.

(3) Before making modifications under [F93 subsection (1A) above], the Regulator shall give notice—

(a) stating that he proposes to make the modifications and setting out their effect,

(b) stating the reasons why he proposes to make the modifications, and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

[F94 (3A) Before requiring the Regulator to make modifications under subsection (1B) above, the Authority shall give notice—

(a) stating that it proposes to require the making of the modifications and setting out their effect,

(b) stating the reasons why it proposes to require the making of the modifications, and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.]

(4) A notice under subsection (3) [F95 or (3A)] above shall be given—

(a) by publishing the notice in such manner as the Regulator [F96 , or the Authority,] considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the holder of the licence.

[F97 (4A) Where (after considering any representations or objections which are duly made and not withdrawn) the Regulator or Authority proposes to make or require the making of modifications under this section, he or it shall give notice to the Competition Commission—

(a) setting out the modifications he proposes to make or it proposes to require to be made; and

(b) stating the reasons why he proposes to make the modifications or it proposes to require the making of them.

(4B) The Regulator or Authority shall include with the notice under subsection (4A) above a copy of any representations and objections which have been considered.

(4C) If the period within which a direction may be given by the Competition Commission under section 15A below expires without such a direction being given, the Regulator or Authority shall make, or require the making of, the modifications set out in the notice given under subsection (4A) above.

(4D) If a direction is given by the Competition Commission under section 15A(1)(b) below, the Regulator or Authority shall make, or require the making of, such of those modifications as are not specified in the direction.]

(5) As soon as practicable after making any modifications under this section, the Regulator shall send a copy of those modifications to [F98 the Authority and] the Health and Safety Executive.

(6) Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

Textual Amendments

F87 Words in s. 15(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(2)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F88 Words in s. 15(1) substituted (1.4.1999) by S.I. 1999/506, art. 33(b)

F89 Words in s. 15(1) repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 9(2)(b), Sch. 31 Pt. IV (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F90 S. 15(1A)(1B) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(3) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F91 Words in s. 15(2) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(4)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F92 Words in s. 15(2) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(6)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F93 Words in s. 15(3) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(5) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F94 S. 15(3A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(6) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F95 Words in s. 15(4) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(7)(a) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F96 Words in s. 15(4)(a) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(7)(b) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F97 S. 15(4A)-(4D) inserted (1.2.2001) by 2000 c. 38, s. 242(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F98 Words in s. 15(5) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 9(8) (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F99 15A Competition Commission’s power to veto modifications following report. E+W+S

(1) The Competition Commission may, within the period of four weeks beginning with the day on which they are given notice under section 15(4A) above, give a direction to the Regulator or Authority—

(a) not to make, or require the making of, the modifications set out in the notice; or

(b) not to make such of those modifications as are specified in the direction.

(2) The Secretary of State may, if an application is made to him by the Competition Commission within that period of four weeks, extend the period within which a direction may be given under this section to one of six weeks beginning with the day on which the Competition Commission are given notice under section 15(4A) above.

(3) The Competition Commission may give a direction under this section only if the modifications to which it relates do not appear to them requisite for the purpose of remedying or preventing the adverse effects specified in their report on the reference under section 13 above.

(4) If the Competition Commission give a direction under this section, they shall give notice—

(a) setting out the modifications contained in the notice given under section 15(4A) above;

(b) setting out the direction; and

(c) stating the reasons why they are giving the direction.

(5) A notice under subsection (4) above shall be given—

(a) by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the direction; and

(b) by serving a copy of the notice on the holder of the licence.]

Textual Amendments

F99 S. 15A inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F100 15B Making of modifications by Competition Commission. E+W+S

(1) If the Competition Commission give a direction under section 15A above, they shall themselves make such modifications of the conditions of the licence as appear to them requisite for the purpose of remedying or preventing—

(a) the adverse effects specified in their report on the reference under section 13 above; or

(b) such of those adverse effects as would not be remedied or prevented by the modifications made by the Regulator, or required to be made by the Authority, under section 15(4D) above.

(2) In exercising the function conferred by subsection (1) above, the Competition Commission shall have regard to the matters as respects which duties are imposed on the Regulator by section 4 above.

(3) Before making modifications under this section, the Competition Commission shall give notice—

(a) stating that they propose to make the modifications and setting out their effect,

(b) stating the reasons why they propose to make the modifications, and

(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4) A notice under subsection (3) above shall be given—

(a) by publishing the notice in such manner as the Competition Commission consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b) by serving a copy of the notice on the holder of the licence.

(5) As soon as practicable after making any modifications under this section, the Competition Commission shall send a copy of those modifications to the Regulator, the Authority and the Health and Safety Executive.

Textual Amendments

F100 S. 15B inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F101 15C Sections 15A and 15B: supplementary. E+W+S

(1) The provisions mentioned in subsection (2) below are to apply in relation to the exercise by the Competition Commission of their functions under sections 15A and 15B above as if—

(a) in section 82(1) and (2) of the 1973 Act references to a report of the Competition Commission under that Act were references to a notice under section 15A(4) or 15B(3) above;

(b) in section 85 of that Act references to an investigation on a reference made to the Competition Commission were references to an investigation by the Competition Commission for the purposes of the exercise of their functions under those sections; and

(c) in section 93B of that Act references to the functions of the Competition Commission under that Act were references to their functions under those sections.

(2) The provisions are—

(a) sections 82(1) and (2) (general provisions as to reports), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;

(b) Part II of Schedule 7 to the M3 Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c) section 24 of the 1980 Act (modification of provisions about performance of such functions).

(3) For the purpose of assisting the Competition Commission in exercising their functions under sections 15A and 15B above, the Regulator and the Authority shall give to the Competition Commission any information in his or its possession which relates to matters relevant to the exercise of those functions and—

(a) is requested by the Competition Commission for that purpose; or

(b) is information which, in his or its opinion, it would be appropriate for that purpose to give to the Competition Commission without any such request;

and any other assistance which the Competition Commission may require, and which it is within his or its power to give, in relation to any such matters.

(4) For the purpose of exercising those functions, the Competition Commission shall take account of any information given to them for that purpose under subsection (3) above.

Textual Amendments

F101 S. 15C inserted (1.2.2001) by 2000 c. 38, s. 242(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M3 1998 c. 41.

16 Modification by order under other enactments. E+W+S

(1) Where, in the circumstances mentioned in subsection (2) below, the Secretary of State by order exercises any of the powers specified in—

(a) Parts I and II of Schedule 8 to the 1973 Act, F102 . . .

F102 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the order may also provide for the modification of the conditions of a licence to such extent as may appear to him to be requisite or expedient for the purpose of giving effect to or of taking account of any provision made by the order.

(2) Subsection (1) above shall have effect where—

(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference) and either—

(i) the monopoly situation exists in relation to the supply of any railway service; or

(ii) the monopoly situation exists in relation to the supply of transport services and at least one of the persons in whose favour the monopoly situation exists has been engaged in the supply of railway services; [F103 or]

(b) the circumstances are as mentioned in section 73(1) of that Act (order on report on merger reference) and at least one of the two or more enterprises which ceased, or (in the application of that provision as it has effect by virtue of section 75(4)(e) of that Act) which would cease, to be distinct enterprises was or, as the case may be, is engaged in the supply of railway services; F104 . . .

F104 (c) the circumstances are as mentioned in section 10(1) of the 1980 Act (order on report on competition reference) and the anti-competitive practice relates to the supply of any railway service.

(3) As soon as practicable after making any modifications under this section, the Secretary of State shall send a copy of those modifications to the Regulator [F105 , to the Authority]and to the Health and Safety Executive.

(4) Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

(5) In this section expressions which are also used in the 1973 Act [F106 . . .] have the same meaning as in that Act.

Textual Amendments

F102 S. 16(1)(b) and the word preceding it repealed (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(a), Sch. 14 Pt. 1 (with s. 73); S.I. 2000/344, art. 2, Sch.

F103 Word in s. 16(2)(a)(ii) inserted (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(b)(i) (with s. 73); S.I. 2000/344, art. 2, Sch.

F104 S. 16(2)(c) and the word preceding it repealed (1.3.2000) by 1998 c. 41, s. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(b)(ii), Sch. 14 Pt. I (with s. 73); S.I. 2000/344, art. 2, Sch.

F105 Words in s. 16(3) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 10 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F106 Words in s. 16(5) repealed (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(c), Sch. 14 Pt. I (with s. 73); S.I. 2000/344, art. 2, Sch.

16 Modification by order under other enactments. E+W+S

(1) Where, in the circumstances mentioned in subsection (2) below, the Secretary of State by order exercises any of the powers specified in—

(a) Parts I and II of Schedule 8 to the 1973 Act, F541 . . .

F541 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the order may also provide for the modification of the conditions of a licence to such extent as may appear to him to be requisite or expedient for the purpose of giving effect to or of taking account of any provision made by the order.

(2) Subsection (1) above shall have effect where—

(a) the circumstances are as mentioned in section 56(1) of the 1973 Act (order on report on monopoly reference) and either—

(i) the monopoly situation exists in relation to the supply of any railway service; or

(ii) the monopoly situation exists in relation to the supply of transport services and at least one of the persons in whose favour the monopoly situation exists has been engaged in the supply of railway services; [F542 or]

(b) the circumstances are as mentioned in section 73(1) of that Act (order on report on merger reference) and at least one of the two or more enterprises which ceased, or (in the application of that provision as it has effect by virtue of section 75(4)(e) of that Act) which would cease, to be distinct enterprises was or, as the case may be, is engaged in the supply of railway services; F543 . . .

F543 (c) the circumstances are as mentioned in section 10(1) of the 1980 Act (order on report on competition reference) and the anti-competitive practice relates to the supply of any railway service.

(3) As soon as practicable after making any modifications under this section, the Secretary of State shall send a copy of those modifications to the Regulator [F544 , to the Authority]and to the Health and Safety Executive.

(4) Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

(5) In this section expressions which are also used in the 1973 Act [F545 . . .] have the same meaning as in that Act.

Textual Amendments

F541 S. 16(1)(b) and the word preceding it repealed (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(a), Sch. 14 Pt. 1 (with s. 73); S.I. 2000/344, art. 2, Sch.

F542 Word in s. 16(2)(a)(ii) inserted (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(b)(i) (with s. 73); S.I. 2000/344, art. 2, Sch.

F543 S. 16(2)(c) and the word preceding it repealed (1.3.2000) by 1998 c. 41, s. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(b)(ii), Sch. 14 Pt. I (with s. 73); S.I. 2000/344, art. 2, Sch.

F544 Words in s. 16(3) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 10 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F545 Words in s. 16(5) repealed (1.3.2000) by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. IV para. 15(4)(c), Sch. 14 Pt. I (with s. 73); S.I. 2000/344, art. 2, Sch.

Valid from 15/10/2005

F107 Directions to provide, improve or develop railway facilities E+W+S

Textual Amendments

F107 S. 16A cross-heading inserted (15.10.2005) by 2000 c. 38, ss. 223, 275; S.I. 2005/2862, art. 3

F108 16A Provision, improvement and development of railway facilities. E+W+S

(1) [F109 the Office of Rail Regulation] may, on an application—

(a) made by the Authority, or

(b) made by any other person with the consent of the Authority,

give to the operator of a network, station or light maintenance depot a direction to provide a new railway facility if [F109 the Office of Rail Regulation] considers him to be an appropriate person to provide the new railway facility.

(2) [F109 the Office of Rail Regulation] may, on an application—

(a) made by the Authority, or

(b) made by any other person with the consent of the Authority,

give to a person who has an estate or interest in, or right over, an existing railway facility a direction to improve or develop the railway facility if [F109 the Office of Rail Regulation] considers him to be an appropriate person to improve or develop the railway facility.

(3) The Authority’s consent to the making by any other person of an application under subsection (1) or (2) above may be given subject to compliance with conditions (and may be withdrawn if any condition is not complied with before [F109 the Office of Rail Regulation] decides whether to give the direction).

Textual Amendments

F108 S. 16A inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F109 S. 16A: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F110 16B Exemption of railway facilities from section 16A. E+W+S

(1) The Secretary of State may, after consultation with [F111 the Office of Rail Regulation] , by order grant exemption from subsection (1) or (2) of section 16A above (or from both of those subsections) in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2) An exemption under subsection (1) above may be granted in respect of—

(a) railway facilities of a particular class or description, or

(b) a particular railway facility,

or in respect of part only of railway facilities of a particular class or description or a particular railway facility.

(3) An exemption under subsection (1) above may be granted generally, to persons of a particular class or description or to a particular person.

(4) If a person fails to comply with any condition subject to compliance with which an exemption was granted, the Secretary of State may give a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(5) Subject to subsection (4) above, an exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in force for such period as may be specified in, or determined by or under, the exemption.

(6) Exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

Textual Amendments

F110 S. 16B inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862,{art. 3}

F111 S. 16B: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F112 16C Making of applications for directions. E+W+S

(1) An application for a direction under section 16A above must be made to [F113 the Office of Rail Regulation] in writing.

(2) The application must—

(a) specify the person to whom the direction would be given;

(b) state what it would require him to do; and

(c) give the applicant’s reasons for considering that person to be an appropriate person to do what the direction would require him to do.

(3) The applicant may at any time vary what the direction would require that person to do by giving to [F113 the Office of Rail Regulation] notice in writing of the variation; but if the applicant is a person other than the Authority such a notice may only be given with the consent of the Authority.

(4) The application or notice of a variation may be accompanied by any written representations which the applicant wishes to make in relation to the direction.

Textual Amendments

F112 S. 16C inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F113 S. 16C: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F114 16D Procedure for considering applications. E+W+S

(1) When [F115 the Office of Rail Regulation] has received the application or notice of a variation, [F116 it] must—

(a) send a copy to the person specified in the application, the Authority (if it is not the applicant) and any other persons who [F115 the Office of Rail Regulation] considers ought to be sent one; and

(b) invite them to make written representations within a period specified in the invitation.

(2) If the person specified in the application makes representations that he is not an appropriate person to do what the direction would require him to do, [F115 the Office of Rail Regulation] must decide that issue in advance of considering any other matters which may be relevant in deciding whether to give the direction.

(3) If that person makes such representations but [F115 the Office of Rail Regulation] decides that he is an appropriate person to do what the direction would require him to do, [F115 the Office of Rail Regulation] must—

(a) notify him of that decision; and

(b) invite him to make written representations within a period specified in the invitation about any other matters which may be relevant in deciding whether to give the direction.

(4) [F115 the Office of Rail Regulation] must—

(a) send the applicant a copy of any representations received by [F116 it] in response to any invitation under subsection (1) or (3) above; and

(b) invite him to make further written representations within a period specified in the invitation.

(5) Subject to subsection (6) below, [F115 the Office of Rail Regulation] may substitute as the applicant any other person if—

(a) the applicant,

(b) the other person, and

(c) the Authority (if it is neither the applicant nor the other person),

consent to the substitution.

(6) The applicant may, by giving notice in writing to [F115 the Office of Rail Regulation] , withdraw or suspend the application at any time before [F115 the Office of Rail Regulation] decides whether to give the direction.

(7) [F115 the Office of Rail Regulation] may direct—

(a) the person specified in the application,

(b) the applicant, or

(c) any other person (apart from the Authority),

to provide him with any information required by him in order to decide whether to give the direction.

(8) If a person fails to comply with a direction under subsection (7) above, the High Court or the Court of Session may, on the application of [F115 the Office of Rail Regulation] make such order as it thinks fit for requiring the failure to be made good.

(9) Such an order may provide that all the costs or expenses of and incidental to the application shall be borne by—

(a) the person who failed to comply; or

(b) in the case of a company or other association, any officers who are responsible for the failure to comply.

Textual Amendments

F114 S. 16D inserted (15.10.2005) by 2000 c. 38, ss. 223, 275; S.I. 2005/2862, art. 3

F115 S. 16D: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F116 S. 16D: word in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F117 16E Decisions on applications: adequate reward. E+W+S

(1) [F118 the Office of Rail Regulation]may only give a direction to a person under section 16A above to provide, improve or develop a railway facility if he is satisfied that the person will be adequately rewarded for providing, improving or developing the railway facility in accordance with the direction.

(2) In considering whether he is so satisfied [F118 the Office of Rail Regulation] shall take into account (in particular)—

(a) any receipts obtained or likely to be obtained by the person (from the Authority, passengers, operators of railway services or any other persons) in connection with, or as a result of, the provision, improvement or development of the railway facility; and

(b) any other benefit obtained or likely to be obtained by him in consequence of its provision, improvement or development.

(3) Representations made by the applicant for a direction—

(a) under section 16C(4) above, or

(b) in response to an invitation under section 16D(4) above,

may, in particular, include representations as to matters which he considers [F118 the Office of Rail Regulation] should take into account in deciding whether the person to whom the direction would be given would be adequately rewarded for doing what it would require him to do.

Textual Amendments

F117 S. 16E inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I 2005/2862, {art. 3}

F118 S. 16E: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F119 16F Other provisions about decisions. E+W+S

(1) If [F120 the Office of Rail Regulation] does not consider it right to give a direction under section 16A above in the terms applied for (or to reject the application), [F121 it] may give a direction under that section in modified terms.

(2) [F120 the Office of Rail Regulation] may include supplementary provisions in any direction under section 16A above, including (in particular)—

(a) provision adding detail (for instance, as to the time by which, or standard to which, the person to whom it is given is to do anything which it requires him to do); and

(b) provision imposing requirements on the applicant (for instance, to make arrangements for rewarding the person to whom the direction is given or to make payments to him).

(3) Before giving a direction under section 16A above which is in modified terms or includes supplementary provisions, [F120 the Office of Rail Regulation] shall—

(a) notify [F122 its] intention to give a direction to the applicant, the Authority (if it is not the applicant) and any other persons who the Regulator considers ought to be notified; and

(b) invite them to make written representations within a period specified in the invitation;

and if the applicant makes representations that the direction should not be given, [F120 the Office of Rail Regulation] shall not give it.

(4) Whatever [F120 the Office of Rail Regulation]’s decision on an application [F121 it] shall notify the decision to—

(a) the person specified in the application;

(b) the applicant; and

(c) any other persons who [F121 it] considers ought to be notified.

(5) [F120 the Office of Rail Regulation] may direct the person specified in the application or the applicant to pay to—

(a) the other of those persons, or

(b) any other person directed to provide information under section 16D(7) above,

any such amount as [F121 it] considers appropriate in respect of costs incurred in connection with the application.

Textual Amendments

F119 S. 16F inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F120 S. 16F: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F121 S. 16F: word in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F122 S. 16F: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F123 16G Directions: compliance, variation and revocation. E+W+S

(1) A person shall not be regarded as failing to comply with a direction under section 16A above if he has done everything which it is reasonably practicable to do in order to comply with the direction.

(2) If a person is unable to comply with such a direction because he does not have the necessary powers or rights (including rights over land), he shall not be taken to have done everything which it is reasonably practicable to do in order to comply with the direction unless he has done everything which it is reasonably practicable to do in order to obtain those powers or rights.

(3) A direction under section 16A above may only be revoked or varied by [F124 the Office of Rail Regulation]—

(a) on the application of the person to whom the direction was given, the applicant for the direction or the Authority (if it was not the applicant); and

(b) after consultation with the other persons with power to apply for a revocation or variation.

(4) Such a direction may only be varied on an application by the applicant for the direction or the Authority if [F124 the Office of Rail Regulation] is satisfied that the person to whom the direction was given will be adequately rewarded for providing, improving or developing the railway facility in accordance with the varied direction, taking into account (in particular) the matters specified in section 16E(2) above.

(5) [F124 the Office of Rail Regulation] may grant an application for the variation or revocation of a direction under section 16A above by the applicant for the direction or the Authority on condition that he or it secures that any such compensation as [F124 the Office of Rail Regulation] may specify is paid to the person to whom the direction was given in respect of any liabilities incurred, or other things done, by him in complying with the direction.

Textual Amendments

F123 S. 16G inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F124 S. 16G: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F125 16H Code of practice. E+W+S

(1) [F126 the Office of Rail Regulation] shall prepare, and from time to time revise, a code of practice supplementing sections 16A to 16G above and shall publish it in such manner as [F127 it] considers appropriate.

(2) [F126 the Office of Rail Regulation] shall have regard to the code of practice in the exercise of [F128 its] functions under those sections.

(3) The code of practice may (in particular)—

(a) set out minimum periods to be specified in invitations to make representations;

(b) include provision about requesting the provision of information prior to giving a direction under section 16D(7) above;

(c) specify principles according to which directions to pay costs are to be given under section 16F(5) above; and

(d) make provision about the consultation required by section 16G(3)(b) above.

Textual Amendments

F125 S. 16H inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F126 S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

F127 S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(b) Table}; S.I. 2004/827, art. 4(g)

F128 S. 16H: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(c) Table}; S.I. 2004/827, art. 4(g)

F129 16I Supplementary. E+W+S

(1) References in sections 16A to 16H above and this section to a railway facility include part of a railway facility.

(2) Nothing in any of those sections or a direction under section 16A above—

(a) limits any power of [F130 the Office of Rail Regulation] under any other provision of this Act; or

(b) affects any obligation to provide a new railway facility, or to improve or develop an existing railway facility, arising otherwise than from such a direction.

Textual Amendments

F129 S. 16I inserted (15.10.2005) by 2000 c. 38, ss. 223, 275(1); S.I. 2005/2862, art. 3

F130 S. 16I: words in prospectively inserted section substituted (5.7.2004) by virtue of Railways and Transport Safety Act 2003 (c. 20), ss. 16, 120, {Sch. 2 para. 3(a) Table}; S.I. 2004/827, art. 4(g)

Access agreements E+W+S

17 Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities. E+W+S

(1) The Regulator may, on the application of any person, give directions to a facility owner requiring him to enter into an access contract with the applicant for the purpose specified in subsection (2) below; but no such directions shall be given if and to the extent that—

(a) the facility owner’s railway facility is, by virtue of section 20 below, an exempt facility;

(b) performance of the access contract, if entered into, would necessarily involve the facility owner in being in breach of an access agreement or an international railway access contract; F131 . . .

(c) as a result of an obligation or duty owed by the facility owner which arose before the coming into force of this section, the consent of some other person is required by the facility owner before he may enter into the access contract; [F132 or]

[F133 (d) the permission to use a railway facility to which the application relates could be applied for under subordinate legislation made for the purpose of implementing Council Directive 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees.]

(2) The purpose for which directions may be given is that of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his)—

(a) from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;

(b) from a facility owner whose railway facility is a station, permission to use that station for or in connection with the operation of trains by the beneficiary;

(c) from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;

(d) from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or

(e) from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;

but this subsection is subject to the limitations imposed by subsection (3) below.

(3) In subsection (2) above—

(a) paragraph (a) does not extend to obtaining permission to use track for the purpose of providing network services on that track;

(b) paragraph (b) does not extend to obtaining permission to use a station for the purpose of operating that station;

(c) paragraph (c) does not extend to obtaining permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;

(d) if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—

(i) of providing network services on that track, or

(ii) of operating any network in which that track is comprised,

except where the purpose for which directions are sought is to enable the beneficiary to operate on behalf of the [F134 Authority] a network in which the track in question is comprised;

(e) if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—

(i) of providing station services at that station, or

(ii) of operating that station,

except where the purpose for which directions are sought is to enable the beneficiary to operate the station on behalf of the [F134 Authority];

(f) if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—

(i) of carrying out light maintenance at that light maintenance depot, or

(ii) of operating that light maintenance depot,

except where the purpose for which directions are sought is to enable the beneficiary to operate the light maintenance depot on behalf of the [F134 Authority].

(4) Any reference in this section to a person operating a network, station or light maintenance depot “on behalf of the [F134 Authority]” is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the [F134 Authority] for the purpose of performing a duty imposed upon [F134 the Authority], or exercising a power conferred upon [F134 the Authority], under or by virtue of this Part to secure the operation of that network, station or light maintenance depot.

(5) Nothing in this section authorises the Regulator to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility.

(6) In this Part—

• “access contract” means—

  (a)

  a contract under which—

  (i)

  a person (whether or not the applicant), and

  (ii)

  so far as may be appropriate, any associate of that person,

obtains permission from a facility owner to use the facility owner’s railway facility; or

(b) a contract conferring an option, whether exercisable by the applicant or some other person, to require a facility owner to secure that—

(i) a person (whether or not the applicant or that other), and

(ii) so far as may be appropriate, any associate of that person,

obtains permission from the facility owner to use his railway facility;

• and any reference to an “access option” is a reference to an option falling within paragraph (b) above;

• “facility owner” means any person—

  (a)

  who has an estate or interest in, or right over, a railway facility; and

  (b)

  whose permission to use that railway facility is needed by another before that other may use it;

• [F135 but also includes a person before he becomes a facility owner;]

• and any reference to a facility owner’s railway facility is a reference to the railway facility by reference to which he is a facility owner.

(7) In this section—

• “the applicant” means the person making the application for directions;

• “associate”, in relation to any person, includes—

  (a)

  any servant, agent or independent contractor of his;

  (b)

  any passenger of his;

  (c)

  any person engaged in the provision of goods or services to or for him; and

  (d)

  any other person who deals or has business with him;

• “the beneficiary” means the person mentioned in paragraph (a)(i) or, as the case may be, paragraph (b)(i) of the definition of “access contract” in subsection (6) above, according to the description of access contract in question;

• “directions” means directions under this section;

[F136 'the Directives’ mean Council Directive No. 91/440/EEC on the development of the Community’s railways and Council Directive No. 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees;]

• “implementing regulation” means a provision contained in subordinate legislation made for the purpose of implementing [F137 the Directives];

• “international railway access contract” means an access contract entered into as a result of—

  (a)

  an application made under an implementing regulation by an international grouping to an [F138 allocation body] for access and transit rights, or for transit rights, for the provision of international services between the member States where the undertakings constituting the international grouping are established; or

  (b)

  an application made under an implementing regulation by a railway undertaking established, or to be established, in a member State F139 . . . to an [F138 allocation body] for the grant of access for the purpose of the operation of international combined transport goods services;

  and expressions used in paragraph (a) or (b) above and in [F140 the Directives] have the same meaning in that paragraph as they have in [F140 the Directives];

• “lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease.

[F141 (7A) Any reference in this section to obtaining permission to use a railway facility includes, where the facility is track, permission to connect other track to it.]

(8) Any reference in this section to obtaining permission to use a railway facility includes—

(a) a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that railway facility, whether the facility owner in question is to provide those services himself or to secure their provision by another; and

(b) a reference to obtaining permission—

(i) to enter upon the facility land, with or without vehicles,

(ii) to bring things on to that land and keep them there,

(iii) to carry out works on that land, and

(iv) to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land,

• “facility land” meaning in this paragraph the land which constitutes the railway facility in question;

and, in subsection (2)(c) above, the reference to obtaining permission to use a light maintenance depot includes a reference to obtaining power to obtain light maintenance services at that light maintenance depot, whether the facility owner is to provide those services himself or to secure their provision by another.

(9) Any reference in this section to a railway facility includes a reference to a part of a railway facility.

(10) Schedule 4 to this Act shall have effect with respect to applications for directions.

F142 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F131 Word in s. 17(1)(b) deleted (27.6.1998) by virtue of S.I. 1998/1340, reg. 21(5)

F132 Word in s. 17(1)(c) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(5)

F133 S. 17(1)(d) inserted (27.6.1998) by S.I. 1998/1340, reg. 21(5)

F134 Words in s. 17(3)(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 11(2)(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F135 S. 17(6): words in definition of

“facility owner”

inserted (1.2.2001) by 2000 c. 38, s. 233(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F136 Definition of “the Directives" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(6)

F137 Words in definition of “implementing regulation" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(7)

F138 Words in definition of “international railway access contract" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(8)(b)

F139 Words in definition of “international railway access contract" deleted (27.6.1998) by virtue of S.I. 1998/1340, reg. 21(8)(c)

F140 Words in definition of “international railway access contract" in s. 17(7) substituted (27.6.1998) by S.I. 1998/1340, reg. 21(8)(a)

F141 S. 17(7A) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 21; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F142 S. 17(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C7 S. 17 excluded (2.4.1994) by S.I. 1994/606, art. 5(1)(2)(3)(a)(b)(4)(5)(6)(a)(b)

C8 S. 17(1) restricted (18.12.1996) by 1996 c. 61, s. 17(1)

18 Access agreements: contracts requiring the approval of the Regulator. E+W+S

(1) A facility owner shall not enter into an access contract to which this section applies unless—

(a) he does so pursuant to directions under section 17 above; F143 . . .

(b) the Regulator has approved the terms of the access contract and the facility owner enters into the contract pursuant to directions under this section; [F144 or

(c) the access contract is of a class or description specified in a general approval given by the Regulator;]

and any access contract to which this section applies [F145 shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.]

(2) The access contracts to which this section applies are those under which the beneficiary obtains, or, in the case of an access contract conferring an access option, may obtain, (whether for himself alone or for himself and associates of his)—

(a) from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;

(b) from a facility owner whose railway facility is a station, permission to use that station, for or in connection with the operation of trains by the beneficiary;

(c) from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;

(d) from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or

(e) from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;

but this subsection is subject to subsections (3) and (4) below.

(3) This section does not apply to an access contract—

(a) if and to the extent that the railway facility to which the access contract relates is, by virtue of section 20 below, an exempt facility; or

(b) if and to the extent that the access contract is an international railway access contract.

(4) In subsection (2) above—

(a) paragraph (a) does not extend to permission to use track for the purpose of providing network services on that track;

(b) paragraph (b) does not extend to permission to use a station for the purpose of operating that station;

(c) paragraph (c) does not extend to permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;

(d) if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—

(i) of providing network services on that track, or

(ii) of operating any network in which that track is comprised,

unless the purpose of entering into the access contract is to enable the beneficiary to operate on behalf of the [F146 Authority] a network in which the track in question is comprised;

(e) if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—

(i) of providing station services at that station, or

(ii) of operating that station,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the station on behalf of the [F146 Authority];

(f) if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—

(i) of carrying out light maintenance at that light maintenance depot, or

(ii) of operating that light maintenance depot,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the light maintenance depot on behalf of the [F146 Authority].

(5) In any case where—

(a) a facility owner and another person (the “other party") have agreed the terms on which they propose to enter into an access contract to which this section applies, but

(b) the circumstances are such that, by virtue of subsection (1)(b) above, those terms must be approved, and directions must be given, by the Regulator before the facility owner may enter into the proposed access contract,

it shall be for the facility owner to submit the proposed access contract to the Regulator for approval of its terms.

(6) If, on the submission of a proposed access contract pursuant to subsection (5) above, the Regulator approves its terms, he shall issue directions to the facility owner—

(a) requiring him to enter into the proposed access contract within such period as may be specified for the purpose in the directions; but

(b) releasing him from his duty to do so if the other party fails to enter into the proposed access contract within such period as may be specified for the purpose in the directions;

and the Regulator shall send a copy of the directions to the other party.

[F147 (6A) The grounds on which the Regulator may reject, or approve subject to modifications, a proposed access contract submitted to him pursuant to subsection (5) above include that he considers that the use of the facility for which it provides might impede the provision of services—

(a) under a franchise agreement; or

(b) under an agreement entered into by the Authority pursuant to its duty under section 30 below.]

(7) If, on the submission of a proposed access contract pursuant to subsection (5) above, the Regulator does not consider it appropriate to approve its terms without modification (or to reject it), he may, after consultation with the facility owner and the other party, issue directions to the facility owner—

(a) approving the terms of the proposed access contract, but subject to such modifications as may be specified in the directions; and

(b) requiring the facility owner to enter into the proposed access contract on those terms, as so modified; but

(c) releasing him from his duty to do so if either—

(i) the facility owner gives the Regulator notice of objection before the expiration of the period of fourteen days beginning with the day after that on which the directions are issued; or

(ii) the other party fails to enter into the proposed access contract, on the terms as modified under this subsection, before the date specified for the purpose in the directions;

and the Regulator shall send a copy of the directions to the other party.

[F148 (7A) Where the Regulator gives or revokes a general approval under subsection (1)(c) above, he shall publish the approval or revocation in such manner as he considers appropriate.

(7B) The revocation of a general approval given under subsection (1)(c) above shall not affect the continuing validity of any access contract to which it applied.]

(8) In this section, “associate”, “the beneficiary”, “international railway access contract” and “lease” have the same meaning as they have in section 17 above.

(9) The following provisions of section 17 above, that is to say—

(a) subsection (4),

[F149 (aa) subsection (7A),]

(b) subsection (8)(a) and (b), and

(c) subsection (9),

apply for the purposes of this section as they apply for the purposes of that section; and the words following paragraph (b) of subsection (8) of that section apply in relation to subsection (2)(c) of this section as they apply in relation to subsection (2)(c) of that section.

(10) This section shall not prevent a facility owner from granting a lease of any land which consists of or includes the whole or any part of his railway facility.

F150 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F143 Word in s. 18(1)(a) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F144 S. 18(1)(c) and word “or" immediately preceding it inserted (1.2.2001) by 2000 c. 38, s. 230(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F145 Words in s. 18(1) substituted (1.2.2001) by 2000 c. 38, s. 230(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F146 Words in s. 18(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 12; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F147 S. 18(6A) inserted (1.2.2001) by 2000 c. 38, s. 212(6)(with Sch. 28 paras. 3, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F148 S. 18(7A)(7B) inserted (1.2.2001) by 2000 c. 38, s. 230(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F149 S. 18(9)(aa) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 22; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F150 S. 18(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C9 S. 18 excluded (2.4.1994) by S.I. 1994/606, art. 5(1)(2)(3)(a)(b)(4)(5)(6)(a)(b)

C10 S. 18(1) excluded (18.12.1996) by 1996 c. 61, s. 17(2)(3)

19 Access agreements: contracts for the use, on behalf of the [F151 Authority], of installations comprised in a network. E+W+S

(1) The Regulator may, on the application of any person, give directions to an installation owner requiring him to enter into an installation access contract with the applicant for the purpose of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his) permission to use the installation owner’s network installation for the purpose of operating, on behalf of the [F151 Authority], the network in which the network installation is comprised.

(2) Directions shall not be given under subsection (1) above in the case of any network installation if and to the extent that, as a result of an obligation or duty owed by the installation owner which arose before the coming into force of this section, the consent of some other person is required by the installation owner before he may enter into the installation access contract.

(3) An installation owner shall not enter into an installation access contract to which this subsection applies unless—

(a) he does so pursuant to directions under subsection (1) above; F152 . . .

(b) the Regulator has approved the terms of the installation access contract and the installation owner enters into the contract pursuant to directions given by virtue of subsection (5) below; [F153 or

(c) the installation access contract is of a class or description specified in a general approval given by the Regulator;]

and any installation access contract to which this subsection applies [F154 shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.]

(4) The installation access contracts to which subsection (3) above applies are those under which the beneficiary obtains (whether for himself alone or for himself and associates of his) from an installation owner permission to use the installation owner’s network installation for the purpose of operating, on behalf of the [F151 Authority], the network in which the network installation is comprised.

(5) Subsections (5) to (7) of section 18 above shall apply in relation to installation access contracts to which subsection (3) of this section applies as they apply in relation to access contracts to which that section applies, but with the following modifications, that is to say—

(a) for any reference to a facility owner there shall be substituted a reference to an installation owner;

(b) for any reference to an access contract to which that section applies there shall be substituted a reference to an installation access contract to which subsection (3) above applies;

(c) for the reference to subsection (1)(b) of that section there shall be substituted a reference to subsection (3)(b) of this section.

[F155 (5A) Where the Regulator gives or revokes a general approval under subsection (3)(c) above, he shall publish the approval or revocation in such manner as he considers appropriate.

(5B) The revocation of a general approval given under subsection (3)(c) above shall not affect the continuing validity of any installation access contract to which it applied.]

(6) Nothing in this section—

(a) authorises the Regulator to give directions to an installation owner requiring him to grant a lease of the whole or any part of his network installation; or

(b) prevents an installation owner from granting a lease of any land which consists of or includes the whole or any part of his network installation.

(7) Any reference in this section to a person operating a network “on behalf of the [F151 Authority]” is a reference to his operating the network in pursuance of any agreement or other arrangements made by the [F151 Authority] for the purpose of performing a duty imposed upon him, or exercising a power conferred upon him, under or by virtue of this Part to secure the operation of that network.

(8) Any reference in this section to obtaining permission to use a network installation includes—

(a) a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that network installation, whether the installation owner in question is to provide those services himself or to secure their provision by another; and

(b) a reference to obtaining permission—

(i) to enter upon the installation land, with or without vehicles,

(ii) to bring things on to that land and keep them there,

(iii) to carry out works on that land, and

(iv) to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land;

and in paragraph (b) above “installation land” means the land which constitutes the network installation in question.

(9) In this Part—

• “installation access contract” means a contract under which—

  (a)

  a person (whether or not the applicant), and

  (b)

  so far as may be appropriate, any associate of that person,

  obtains permission from an installation owner to use the installation owner’s network installation;

• “installation owner” means any person—

  (a)

  who has an estate or interest in, or right over, a network installation; and

  (b)

  whose permission to use that network installation is needed by another before that other may use it;

• [F156 but also includes a person before he becomes an installation owner;]

• and any reference to an installation owner’s network installation is a reference to the network installation by reference to which he is an installation owner.

(10) In this section—

• “ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use a network installation;

• “the applicant” means the person making the application for directions under subsection (1) above;

• “associate” has the meaning given by section 17(7) above;

• “the beneficiary” means the person mentioned in paragraph (a) of the definition of “installation access contract” in subsection (9) above;

• “lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease;

• “network installation” means any installation (other than track) which is comprised in a network.

(11) Any reference in this section to a network installation includes a reference to a part of a network installation [F157 and to one which is proposed to be constructed or is in the course of construction.].

(12) Schedule 4 to this Act shall have effect with respect to applications for directions under subsection (1) above as it has effect with respect to applications for directions under section 17 above, but with the following modifications, that is to say—

(a) for any reference to an access contract, there shall be substituted a reference to an installation access contract;

(b) any reference to an application for directions under section 17 above shall be taken as a reference to an application for directions under subsection (1) above;

(c) for any reference to the facility owner, there shall be substituted a reference to the installation owner mentioned in subsection (1) above;

(d) for any reference to section 17 above (but not to any specific provision of that section) there shall be substituted a reference to this section.

F158 (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F151 Words in s. 19(1)(4)(7) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 13(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F152 Words in s. 19(3) repealed (1.2.2001) by 2000 c. 38, s. 274, 275(1), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F153 S. 19(1)(c) and word “or" immediately preceding it inserted (1.2.2001) by 2000 c. 38, s. 230(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F154 Words in s. 19(3) substituted (1.2.2001) by 2000 c. 38, s. 230(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F155 S. 19(5A)(5B) inserted (1.2.2001) by 2000 c. 38, s. 230(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F156 S. 19(9): Words in definition of “installation owner” inserted (1.2.2001) by 2000 c. 38, s. 233(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F157 Words in s. 19(11) inserted (1.2.2001) by 2000 c. 38, s. 233(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F158 S. 19(13) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C11 S. 19(1) restricted (18.12.1996) by 1996 c. 61, s. 17(4)

[F159 19A Review of access charges by Regulator. E+W+S

Schedule 4A to this Act (which contains provision about the review of access charges by the Regulator) shall have effect.]

Textual Amendments

F159 S. 19A inserted (30.11.2000) by 2000 c. 38, s. 231(1), 275(1) (with Sch. 28 paras. 11, 17)

20 Exemption of railway facilities from sections 17 [F160 , 18 and 22A]. E+W+S

(1) The Secretary of State may, after consultation with the Regulator, by order grant exemption from sections 17 and 18 above [F161 and section 22A below]in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2) A facility exemption under subsection (1) above may be granted—

(a) to persons of a particular class or description or to a particular person; and

(b) in respect of railway facilities of a particular class or description or a particular railway facility, or in respect of part only of any such railway facilities or facility;

F162 . . .

(3) If a facility owner makes an application under this subsection to the Regulator for the grant of an exemption from sections 17 and 18 above [F161 and section 22A below] in respect of the whole or any part of his railway facility, the Regulator, after consultation with the Secretary of State—

(a) may either grant or refuse the exemption, whether wholly or to such extent as he may specify in the exemption; and

(b) if and to the extent that he grants it, may do so subject to compliance with such conditions (if any) as he may so specify.

(4) Before granting a facility exemption under subsection (3) above, the Regulator shall give notice—

(a) stating that he proposes to grant the facility exemption,

(b) stating the reasons why he proposes to grant the facility exemption, and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed facility exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) A notice under subsection (4) above shall be given by publishing the notice in such manner as the Regulator considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the facility exemption.

(6) If any condition (the “broken condition") of a facility exemption is not complied with—

(a) the Secretary of State, in the case of a facility exemption under subsection (1) above, or

(b) the Regulator, in the case of a facility exemption under subsection (3) above,

may give to any relevant person a direction declaring that the facility exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(7) For the purposes of subsection (6) above—

• “condition”, in relation to a facility exemption, means any condition subject to compliance with which the facility exemption was granted;

• “relevant person”, in the case of any facility exemption, means a person who has the benefit of the facility exemption and who—

  (a)

  is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

  (b)

  is the facility owner in the case of the railway facility in relation to which the broken condition is not complied with.

(8) Subject to subsection (6) above, a facility exemption, unless previously revoked in accordance with any term contained in the facility exemption, shall continue in force for such period as may be specified in, or determined by or under, the facility exemption.

F163 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) Any application for a facility exemption under subsection (3) above must be made in writing; and where any such application is made, the Regulator may require the applicant to furnish him with such information as the Regulator may consider necessary to enable him to decide whether to grant or refuse the facility exemption.

(11) Facility exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

F164 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(13) In this Part “facility exemption” means an exemption from sections 17 and 18 above [F161 and section 22A below] granted under any provision of this section in respect of the whole or any part of a railway facility; and a railway facility is an “exempt facility” if and to the extent that it is the subject of such an exemption.

Textual Amendments

F160 Words in s. 20 sidenote substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 23(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F161 Words in s. 20(1)(3)(13) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 23(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F162 Words in s. 20(3) repealed (1.2.2001) by 2000 c. 38, ss. 252, 274, Sch. 27 para. 23(3), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F163 S. 20(9) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F164 S. 20(12) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C12 S. 20 restricted (3.7.2000) by 1999 c. 29, ss. 199(1)(b)(2)(3), 425(2) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 2(c)

21 Model clauses for access contracts. E+W+S

(1) The Regulator may prepare and publish model clauses for inclusion in access contracts.

(2) Different model clauses may be prepared and published in relation to different classes or descriptions of railway facility.

(3) The Regulator may from time to time revise any model clauses published under this section and may publish those clauses as so revised.

(4) In preparing or revising any model clauses under this section, the Regulator may consult such persons as he thinks fit.

(5) The Regulator shall encourage, and may require, the use of any model clauses of his in access contracts wherever he considers it appropriate.

22 Amendment of access agreements. E+W+S

(1) Any amendment, or purported amendment, of an access agreement shall be void unless the amendment has been approved by the Regulator [F165 or is made pursuant to directions under section 22A or 22C below or Schedule 4A to this Act.].

(2) The Regulator may, for the purposes of subsection (1) above, give the parties to any particular access agreement his general approval to the making to that access agreement of amendments of a description specified in the approval; and any approval so given shall not be revoked.

(3) The Regulator may, for the purposes of subsection (1) above, give his general approval to the making to access agreements, or to access agreements of a particular class or description, of amendments of a description specified in the approval.

(4) Where the Regulator gives or revokes a general approval under subsection (3) above, he shall publish the approval or revocation (as the case may be) in such manner as he considers appropriate.

(5) The revocation of a general approval given under subsection (3) above shall not affect the continuing validity of any amendment made in accordance with, and before the revocation of, that approval.

F166 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F167 (6A) Neither [F168 the Office of Fair Trading] nor the Regulator may exercise, in respect of an access agreement, the powers given by section 32 (enforcement directions) or section 35(2) (interim directions) of the Competition Act 1998.

F167 (6B) Subsection (6A) does not apply to the exercise of the powers given by section 35(2) in respect of conduct—

(a) which is connected with an access agreement; and

(b) in respect of which section 35(1)(b) of that Act applies.]

Textual Amendments

F165 Words in s. 22(1) inserted (1.2.2001) by 2000 c. 38, s. 232(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F166 S. 22(6) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F167 S. 22 (6A)(6B) inserted (1.3.2000) by 1998 c. 41, ss. 66(5), Sch. 10 Pt. IV para. 15(5); S.I. 2000/344, art. 2, Sch.

F168 Words in s. 22(6A) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(7); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

[F169 22A Directions to require amendment permitting more extensive use. E+W+S

(1) The Regulator may, on the application of the person permitted by an access agreement to use the whole or part of a railway facility or network installation, give directions requiring the parties to the access agreement to make to the agreement—

(a) amendments permitting more extensive use of the railway facility or network installation by the applicant; and

(b) any amendments which the Regulator considers necessary or desirable in consequence of those amendments.

(2) In subsection (1)(a) above “more extensive use” means—

(a) increased use for the purpose for which the applicant is permitted by the access agreement to use the railway facility or network installation, or

(b) (in the case of a railway facility) use for any other permitted purpose,

and if the applicant is permitted to use only part of the railway facility or network installation, includes use for the purpose for which he is permitted to use it, or (in the case of a railway facility) for any other permitted purpose, of any other part of the railway facility or network installation.

(3) In subsection (2) above “permitted purpose”, in relation to a railway facility, means a purpose for which directions may be given in relation to the railway facility under section 17 above.

(4) No directions shall be given under this section in relation to a railway facility if and to the extent that—

(a) the railway facility is, by virtue of section 20 above, an exempt facility; or

(b) performance of the access agreement as amended would necessarily involve the facility owner in being in breach of another access agreement or an international railway access contract.

(5) No directions shall be given under this section in relation to a railway facility or network installation if and to the extent that, as a result of an obligation or duty owed by the facility owner or installation owner which arose before the coming into force of section 17 or 19 above, the consent of some other person is required by him before he may make the amendments.

(6) Nothing in this section authorises the Regulator to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility or network installation.

(7) In this section and section 22B below—

(a) “international railway access contract” and “lease” have the same meaning as in section 17 above; and

(b) “network installation” has the same meaning as in section 19 above.]

Textual Amendments

F169 S. 22A inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F170 22B Applications for directions under section 22A: procedure. E+W+S

(1) Schedule 4 to this Act shall have effect with respect to applications for directions under section 22A above as it has effect with respect to applications for directions under section 17 above (but subject as follows).

(2) In its application by virtue of this section Schedule 4 to this Act has effect with the following modifications—

(a) in paragraph 1, in the definition of “the facility owner", for “17(1)" there shall be substituted “22A" and, in the definition of “interested person", for “enter into the required access contract" there shall be substituted “make the amendments";

(b) in paragraph 2(1), for “which the applicant proposes should be contained in the required access contract" and “to be contained in the required access contract" there shall be substituted “of the proposed amendments";

(c) in paragraph 5(2), for “to the facility owner requiring him to enter into an access contract" there shall be substituted “under section 22A of this Act";

(d) for paragraph 5(2)(a)(i) and (ii) there shall be substituted “the amendments to be made and the date by which they are to be made; and";

(e) in paragraph 6(2), for the words from “facility owner’s" to the end of paragraph (c) there shall be substituted “making of the amendments, the performance of the access agreement as amended or failing to take any step to protect the interests of the interested person in connection with the application for directions or the making of the amendments,"; and

(f) in paragraph 6(3), for “any access contract which is entered into" there shall be substituted “the amendments made";

and the definition of “the required access contract", and the words following that definition, in paragraph 1 and paragraph 5(4) shall be omitted.

(3) In its application by virtue of this section in relation to an application relating to an installation access contract Schedule 4 to this Act has effect with the following further modifications—

(a) references to the railway facility shall have effect as references to the network installation;

(b) references to the facility owner shall have effect as references to the installation owner; and

(c) in the definition of “interested person" in paragraph 1, for “17" there shall be substituted “19".

(4) The Regulator may determine that, in their application by virtue of this section in relation to any particular application, paragraphs 3 and 4 of Schedule 4 to this Act shall have effect as if for any of the numbers of days specified in them there were substituted the lower number specified by the Regulator.

Textual Amendments

F170 S. 22B inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F171 22C Amendment: supplementary. E+W+S

(1) The Regulator may give directions requiring the parties to an access agreement to make to the access agreement amendments which are, in his opinion, necessary to give effect to the conditions of a licence or otherwise required in consequence of the conditions of a licence.

(2) The Regulator shall not have power to direct or otherwise require amendments to be made to an access agreement except in accordance with section 22A above, subsection (1) above or Schedule 4A to this Act.

(3) If an access agreement includes provision for any of its terms to be varied—

(a) by agreement of the parties, or

(b) by direction or other requirement of the Regulator,

a variation made pursuant to that provision shall not be regarded for the purposes of section 22 above or subsection (2) above as an amendment of the agreement.

Textual Amendments

F171 S. 22C inserted (1.2.2001) by 2000 c. 38, s. 232(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Franchising of passenger services E+W+S

23 Passenger services to be subject to franchise agreements. E+W+S

(1) It shall be the duty of the [F172 Authority] from time to time to designate [F173 such services for the carriage of passengers by railway (other than services which are, by virtue of section 24 below, exempt from designation under this subsection) as it considers ought to be provided under franchise agreements.].

(2) The [F174 Authority] may perform [F174 its] duty under subsection (1) above by designating particular services or services of a class or description.

[F175 (2A) A designation may be varied or revoked; but a variation or revocation of the designation of particular services, or services of a class or description, shall not affect any franchise agreement previously entered into with respect to those services or services of that class or description.

(2B) The Authority shall publish designations, and any variations or revocations of designations, in such manner as it considers appropriate.]

(3) In this Part—

• “franchise agreement” means an agreement with the [F176 Authority] under which another party undertakes either—

  (a)

  to provide, or

  (b)

  to secure that a wholly owned subsidiary of his provides,

  throughout the franchise term those services for the carriage of passengers by railway to which the agreement relates;

• “franchise operator”, in relation to any franchise agreement, means the person (whether the franchisee or, as the case may be, the wholly owned subsidiary of the franchisee) who is to provide the franchised services;

• “franchise period”, in relation to any franchise agreement, means the franchise term, except where the franchise agreement is terminated before the end of that term, in which case it means so much of that term as ends with that termination;

• “franchise term”, in relation to any franchise agreement, means the period specified in the franchise agreement as the period throughout which the franchisee is to provide, or secure that a wholly owned subsidiary of his provides, the franchised services, and includes any such extension of that period as is mentioned in section 29(3) below;

• “franchised services”, in relation to any franchise agreement, means the services for the carriage of passengers by railway which are to be provided under that franchise agreement;

• “franchisee” means—

  (a)

  in relation to a franchise agreement under which a party undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the party so undertaking; or

  (b)

  in relation to any other franchise agreement, the person who is to provide the franchised services.

(4) Any reference in this Part to the provision of services under a franchise agreement is a reference to the provision of those services by the franchise operator; and where the franchise operator is, or is to be, a wholly owned subsidiary of the franchisee, any reference to the provision of services by the franchisee under a franchise agreement shall accordingly be construed as a reference to his securing their provision by the franchise operator.

Textual Amendments

F172 Words in s. 23(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 14(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F173 Words in s. 23(1) substituted (1.2.2001) by 2000 c. 38, s. 212(1) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F174 Words in s. 23(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 14(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F175 S. 23(2A)(2B) inserted (1.2.2001) by 2000 c. 38, s. 212(2) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F176 S. 23(3): words in definition of

“franchise agreement”

substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 14(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C13 S. 23(1) excluded (1.4.1994) by S.I. 1994/606, art. 6

S. 23(1) excluded (13.12.1999) by S.I. 1999/3112, art. 3

Commencement Information

I4 S. 23 wholly in force at 1.4.1994; s. 23 not in force at Royal Assent see s. 154(2); s. 23(3)(4) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2); s. 23 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

24 Exemption of passenger services from section 23(1). E+W+S

(1) The Secretary of State may by order grant exemption from designation under section 23(1) above in respect of such services for the carriage of passengers by railway as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2) A franchise exemption under subsection (1) above may be granted—

(a) to persons of a particular class or description or to a particular person; and

(b) in respect of services generally, services of a particular class or description or a particular service, or in respect of part only of any such services or service;

and a franchise exemption granted to persons of a particular class or description shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class or description.

(3) If a person who provides, or who proposes to introduce, services for the carriage of passengers by railway makes an application to the Secretary of State under this subsection for the grant of an exemption from designation under section 23(1) above in respect of any such service which he provides or proposes to introduce, the Secretary of State, after consultation with the Regulator and the [F177 Authority]—

(a) may either grant or refuse the exemption, whether wholly or to such extent as he may specify in the exemption; and

(b) if and to the extent that he grants it, may do so subject to compliance with such conditions (if any) as he may so specify.

(4) Before granting a franchise exemption under subsection (3) above, the Secretary of State shall give notice—

(a) stating that he proposes to grant the franchise exemption,

(b) stating the reasons why he proposes to grant the franchise exemption, and

(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed franchise exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5) A notice under subsection (4) above shall be given by publishing the notice in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the franchise exemption.

(6) If any condition (the “broken condition") of a franchise exemption is not complied with, the Secretary of State may give to any relevant person a direction declaring that the franchise exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(7) For the purposes of subsection (6) above—

• “condition”, in relation to a franchise exemption, means any condition subject to compliance with which the franchise exemption was granted;

• “relevant person”, in the case of any franchise exemption, means a person who has the benefit of the franchise exemption and who—

  (a)

  is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

  (b)

  provides any of the services in relation to which the broken condition is not complied with.

(8) Subject to subsection (6) above, a franchise exemption, unless previously revoked in accordance with any term contained in the franchise exemption, shall continue in force for such period as may be specified in, or determined by or under, the franchise exemption.

(9) Any application for a franchise exemption under subsection (3) above must be made in writing; and where any such application is made, the Secretary of State may require the applicant to furnish him with such information as the Secretary of State may consider necessary to enable him to decide whether to grant or refuse the franchise exemption.

(10) Any franchise exemption granted under subsection (3) above shall be in writing.

(11) Subsections (1) and (3) above apply in relation to the grant of a franchise exemption whether it is to become effective on, or after, the day on which section 23(1) above comes into force.

(12) Franchise exemptions may make different provision for different cases.

(13) In this Part, “franchise exemption” means an exemption from designation under section 23(1) above granted under any provision of this section in respect of any service for the carriage of passengers by railway.

Textual Amendments

F177 Words in s. 24(3) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 15; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

25 Public sector operators not to be franchisees. E+W+S

(1) The following bodies and persons (in this Part referred to as “public sector operators”) shall not be franchisees—

(a) any Minister of the Crown, Government department or other emanation of the Crown;

(b) any local authority;

[F178 (bb) the Greater London Authority;

F179 (bc) Transport for London;]

(c) any metropolitan county passenger transport authority;

(d) any body corporate whose members are appointed by a Minister of the Crown, a Government department, a local authority [F180 , the Greater London Authority, Transport for London] or a metropolitan county passenger transport authority or by a body corporate whose members are so appointed;

(e) a company—

(i) a majority of whose issued shares are held by or on behalf of any of the bodies or persons falling within paragraphs (a) to (d) above;

(ii) in which the majority of the voting rights are held by or on behalf of any of those bodies or persons;

(iii) a majority of whose board of directors can be appointed or removed by any of those bodies or persons; or

(iv) in which the majority of the voting rights are controlled by any of those bodies or persons, pursuant to an agreement with other persons;

(f) a subsidiary of a company falling within paragraph (e) above.

(2) Expressions used in sub-paragraphs (i) to (iv) of subsection (1)(e) above and in section 736 of the M4 Companies Act 1985 have the same meaning in those sub-paragraphs as they have in that section.

F181 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F181 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F178 S. 25(1)(bb) inserted (3.7.2000) by 1999 c. 29, s. 202(2) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch Pt. 3

F179 S. 25(1)(bc) inserted (3.7.2000) by 1999 c. 29, s. 202(2) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch Pt. 3

F180 Words in s. 25(1)(d) inserted (3.7.2000) by 1999 c. 29, s. 202(3) (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch Pt. 3

F181 S. 25(3)-(9) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Commencement Information

I5 S. 25 wholly in force at 1.4.1994; s. 25 not in force at Royal Assent see s. 154(2); s. 25(1)(2) in force at 6.1.1994 for specified purposes by S.I. 1993/3237, art. 2(2); s. 25 in force at 1.4.1994 insofar as not alreday in force by S.I. 1994/571, art. 5

Marginal Citations

M4 1985 c. 6.

26 Invitations to tender for franchises. E+W+S

(1) Unless the Secretary of State otherwise directs, the person who is to be the franchisee under any franchise agreement shall be selected by the [F182 Authority] from among those who submit tenders in response to an invitation to tender under this section for the right to provide, or to secure that a wholly owned subsidiary provides, services for the carriage of passengers by railway under that franchise agreement.

(2) The [F183 Authority] shall prepare any such invitation to tender and shall issue that invitation to such persons as [F183 it] may, after consultation with the Regulator, think fit.

(3) The [F183 Authority] shall not issue an invitation to tender under this section to (or entertain such a tender from) any person unless [F183 it] is of the opinion that the person has, or is likely by the commencement of the franchise term to have, an appropriate financial position and managerial competence, and is otherwise a suitable person, to be the franchisee.

[F184 (4) The directions which may be given under subsection (1) above (at any time when the Secretary of State considers it inappropriate that the person who is to be the franchisee under a franchise agreement should be selected after an invitation to tender) include—

(a) a direction that that person is to be the person specified in the direction, and

(b) a direction requiring the Authority to select that person in such manner as is so specified,

(as well as a direction authorising the Authority to select that person in such other manner as it may consider appropriate).

(5) The Secretary of State shall prepare and publish a statement of policy with respect to directions under subsection (1) above.

(6) The statement shall (in particular) contain the Secretary of State’s policy about—

(a) when he will consider giving a direction (including, in particular, when he will consider doing so in relation to a franchise agreement which is to replace an earlier franchise agreement before the end of its franchise term); and

(b) the sorts of direction which he will consider giving in particular circumstances.

(7) In deciding whether to give a direction, and (if so) what direction to give, the Secretary of State shall have regard to the statement of policy.

(8) The Secretary of State—

(a) may at any time alter or replace a statement of policy; and

(b) shall publish the altered or replacement statement.

(9) The Secretary of State shall undertake appropriate consultation when preparing, altering or replacing a statement of policy.

(10) When a statement of policy is prepared, altered or replaced, a copy of the statement shall be laid before each House of Parliament.]

Textual Amendments

F182 Words in s. 26(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 16(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F183 Words in s. 26(2)(3) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 16(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F184 S. 26(4)-(10) inserted (1.2.2001) by 2000 c. 38, s. 212(3) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F185 26A No tenders for franchise. E+W+S

(1) The Authority shall give notice to the Secretary of State if it has—

(a) issued an invitation to tender for the provision of any services under section 26 above (otherwise than in compliance with a direction under section 26B(3)(b) below); but

(b) received no tenders in response to the invitation.

(2) On receipt of the notice under subsection (1) above the Secretary of State shall (after considering the matter) give to the Authority—

(a) a direction to issue new invitations to tender for the provision of the services under section 26 above, or

(b) a direction not to seek to secure the provision of the services under a franchise agreement,

as he considers appropriate.

(3) The Secretary of State may at any time—

(a) revoke a direction under subsection (2)(b) above; and

(b) instead direct the Authority to issue new invitations to tender for the provision of the services under section 26 above.]

Textual Amendments

F185 S. 26A inserted (1.2.2001) by 2000 c. 38, s. 212(4) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F186 26B No adequate tenders for franchise. E+W+S

(1) The Authority shall give notice under subsection (2) below if—

(a) it has issued an invitation to tender for the provision of any services under section 26 above (otherwise than in compliance with a direction under subsection (3)(b) below); but

(b) although it has received a tender or tenders in response to the invitation, it considers that the services would be provided more economically and efficiently than under a franchise agreement entered into pursuant to the tender or any of the tenders if the Authority provided them or secured their provision otherwise than under a franchise agreement.

(2) The notice shall be given to—

(a) the Secretary of State; and

(b) the person, or each of the persons, who submitted a tender.

(3) On receipt of the notice under paragraph (a) of subsection (2) above the Secretary of State shall (after considering the matter and any representations duly made in response to a notice under paragraph (b) of that subsection and not withdrawn) give to the Authority—

(a) a direction to reconsider the tender or tenders with a view to selecting a franchisee, or

(b) a direction to issue new invitations to tender for the provision of the services under section 26 above,

as he considers appropriate.

(4) The Authority shall give notice under subsection (5) below if it has issued an invitation to tender for the provision of any services under section 26 above in compliance with a direction under subsection (3)(b) above but either—

(a) it has received no tenders in response to the invitation; or

(b) although it has received a tender or tenders in response to the invitation, it considers that the services would be provided more economically and efficiently than under a franchise agreement entered into pursuant to the tender or any of the tenders if the Authority provided them or secured their provision otherwise than under a franchise agreement.

(5) The notice shall be given to—

(a) the Secretary of State; and

(b) if the Authority received a tender or tenders, the person, or each of the persons, who submitted a tender.

(6) In a case where the Authority has received no tenders, on receipt of the notice under subsection (5)(a) above the Secretary of State shall give to the Authority a direction not to seek to secure the provision of the services under a franchise agreement.

(7) In a case where the Authority has received a tender or tenders, on receipt of the notice under paragraph (a) of subsection (5) above the Secretary of State shall (after considering the matter and any representations duly made in response to a notice under paragraph (b) of that subsection and not withdrawn) give to the Authority—

(a) a direction to reconsider the tender or tenders with a view to selecting a franchisee, or

(b) a direction not to seek to secure the provision of the services under a franchise agreement,

as he considers appropriate.

(8) Any notice under subsection (2)(b) or (5)(b) above shall specify a period (not being less than 28 days from the date of the service of the notice) within which representations may be made to the Secretary of State.

(9) The Secretary of State may at any time—

(a) revoke a direction under subsection (6) or (7)(b) above; and

(b) instead direct the Authority to issue new invitations to tender for the provision of the services under section 26 above.

Textual Amendments

F186 S. 26ZA substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) for ss. 26A, 26B, 26C by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 16; S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

F187 26C Review of directions. E+W+S

(1) If the Secretary of State gives a direction under section 26B(3) or (7) above, he shall give notice to the person or persons who submitted the tender or tenders that he has done so.

(2) An application for the review of a decision of the Secretary of State to give a direction under section 26B(3) or (7) above may be made to the court by any person who submitted a tender within 42 days from the date of service on him of the notice under subsection (1) above.

(3) Except as provided by subsection (2) above, a direction under section 26A or 26B above shall not be questioned by any legal proceedings whatever.

(4) In subsection (2) above “the court” means—

(a) the High Court in relation to England and Wales; and

(b) the Court of Session in relation to Scotland.

Textual Amendments

F187 S. 26ZA substituted (24.7.2005 for certain purposes and 16.10.2005 in so far as not already in force) for ss. 26A, 26B, 26C by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 16; S.I. 2005/1909, art. 2, Sch.; S.I. 2005/2812, art. 2(1), Sch. 1

27 Transfer of franchise assets and shares. E+W+S

(1) It shall be the duty of the [F188 Authority] before entering into a franchise agreement to satisfy [F188 itself] that if the franchise agreement is entered into—

(a) the initial franchise assets (if any) for that franchise agreement will be vested in the person who is to be the franchise operator; and

(b) if the franchise agreement is to be one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, that the franchise operator will be a wholly owned subsidiary of the franchisee.

(2) After a franchise agreement has been entered into, it shall be the duty of the [F188 Authority], before any property, rights or liabilities are subsequently designated as franchise assets in accordance with the terms of, or by amendment to, the franchise agreement, to satisfy [F188 itself] that, if the property, rights or liabilities in question are so designated, they will be vested in the franchise operator.

(3) Without the consent of the [F189 Authority], the franchise operator shall not—

(a) if and to the extent that the franchise assets are property or rights—

(i) transfer or agree to transfer, or create or agree to create any security over, any franchise assets or any interest in, or right over, any franchise assets; or

(ii) create or extinguish, or agree to create or extinguish, any interest in, or right over, any franchise assets; and

(b) if and to the extent that the franchise assets are liabilities, shall not enter into any agreement under which any such liability is released or discharged, or transferred to some other person.

(4) Where the franchise agreement is one under which the franchisee undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the franchisee shall not, without the consent of the [F189 Authority], take any action which would result in the franchise operator ceasing to be a wholly owned subsidiary of his.

(5) Any transaction which is entered into in contravention of subsection (3) or (4) above shall be void.

(6) In England and Wales, no execution or other legal process may be commenced or continued, and no distress may be levied, against any property which is, or rights which are, franchise assets in the case of any franchise agreement.

(7) In Scotland, no diligence or other legal process may be carried out or continued against any property which is, or rights which are, franchise assets in the case of any franchise agreement.

(8) In any case where—

(a) there are to be initial franchise assets in relation to a franchise agreement,

(b) a franchise agreement is to be one which provides for subsequent designation of property, rights or liabilities as franchise assets, or

(c) property, rights or liabilities are to be designated as franchise assets by an amendment made to a franchise agreement,

the [F189 Authority] shall ensure that the franchise agreement includes provision specifying, or providing for the determination of, amounts to be paid in respect of the property, rights and liabilities which, immediately before the end of the franchise period, constitute the franchise assets in relation to that franchise agreement if and to the extent that they are transferred by [F190 a scheme under Schedule 21 to the Transport Act 2000]at or after the end of that period.

(9) Without prejudice to the generality of the provisions that may be included in a franchise agreement with respect to the acquisition, provision, disposal or other transfer of property, rights or liabilities (whether franchise assets or not), the [F191 Authority] may undertake in a franchise agreement to exercise [F191 its] powers under [F192 Schedule 21 to the Transport Act 2000] to transfer franchise assets to [F191 itself] or another in such circumstances as may be specified in the franchise agreement.

(10) The [F193 Authority] shall ensure that every franchise agreement includes such provision (if any) as [F193 it] may consider appropriate in the particular case for the purpose of securing—

(a) that the franchise assets are adequately maintained, protected and preserved; and

(b) that, at the end of the franchise period, possession of such of the franchise assets as may be specified for the purpose in the agreement, or by the Franchising Director in accordance with the agreement, is delivered up to the Franchising Director or such other person as may be so specified.

(11) In this Part, “franchise assets”, in relation to any franchise agreement, means—

(a) any property, rights or liabilities which are designated as franchise assets in the franchise agreement as originally made (in this section referred to as the “initial franchise assets”), and

(b) any property, rights or liabilities which, after the making of the franchise agreement, are designated as franchise assets in accordance with the terms of, or by an amendment made to, the franchise agreement,

but does not include any property, rights or liabilities which, in accordance with the terms of, or by an amendment made to, the franchise agreement, have for the time being ceased to be designated as franchise assets.

(12) No rights or liabilities under contracts of employment shall be designated as franchise assets.

(13) In this section “security” has the meaning given by section 248(b) of the M5 Insolvency Act 1986.

F194 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F194 (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F188 Words in s. 27(1)(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F189 Words in s. 27(3)(4)(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F190 Words in s. 27(8) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 24(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F191 Words in s. 27(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F192 Words in s. 27(9) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 24(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F193 Words in s. 27(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 17(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F194 S. 27(14)(15) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M5 1986 c. 45.

28 Fares and approved discount fare schemes. E+W+S

(1) A franchise agreement may include provision with respect to the fares to be charged for travel by means of the franchised services.

(2) Subject to the other provisions of this Act, if it appears to the [F195 Authority] that the interests of persons who use, or who are likely to use, franchised services so require, [F195 it] shall ensure that the franchise agreement in question contains any such provision as [F195 it] may consider necessary for the purpose of securing that any fares, or any fares of a class or description, which are to be charged are, in [F195 its] opinion, reasonable in all the circumstances of the case.

(3) Every franchise agreement shall include provision requiring the franchise operator—

(a) to participate in every approved discount fare scheme,

(b) to charge fares, in cases to which such a scheme applies, at rates which are not in excess of the levels or, as the case may be, the maximum levels set by the scheme, and

(c) otherwise to comply with the requirements of every such scheme,

if and to the extent that the franchised services are services, or services of a class or description, in relation to which the approved discount fare scheme in question applies.

(4) The discount fare schemes which are to be regarded for the purposes of this section as “approved” are those which are from time to time approved for the purposes of this section by the [F196 Authority].

(5) In this section—

• “discount fare scheme” means any scheme for enabling persons who are young, elderly or disabled to travel by railway at discounted fares, subject to compliance with such conditions (if any) as may be imposed by or under the scheme;

• “discounted fare” means a lower fare than the standard fare for the journey in question;

• “scheme” includes any agreement or arrangements.

Textual Amendments

F195 Words in s. 28(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 18(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

F196 Words in s. 28(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 18(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. was amended by S.I. 2001/115, art. 2(2))

29 Other terms and conditions of franchise agreements. E+W+S

(1) The [F197 Authority] may enter into a franchise agreement on conditions requiring—

(a) the rendering to the Franchising Director by the franchisee or the franchise operator of payments of such amounts and at such intervals as may be specified in, or determined by or under, the franchise agreement; F198 . . .

F198 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A franchise agreement may include provision requiring the franchisee—

(a) to operate any additional railway asset; or

(b) to secure the operation of any additional railway asset by the franchise operator or any other wholly owned subsidiary of the franchisee.

(3) A franchise agreement shall include provision specifying the franchise term and may include provision enabling that term to be extended by such further term as may be specified in the franchise agreement.

(4) Without prejudice to the generality of the provisions relating to property, rights and liabilities that may be included in a franchise agreement, a franchise agreement may include provision requiring the franchise operator—

(a) to acquire from such person as may be specified in the franchise agreement, and to use, such property or rights as may be so specified; or

(b) to undertake such liabilities as may be so specified.

(5) Subject to any requirements imposed by or under this Act, a franchise agreement may contain any such provisions as the [F197 Authority] may think fit.

F199 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F199 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this Part, “additional railway asset” means any network, station or light maintenance depot, and any reference to an additional railway asset includes a reference to any part of an additional railway asset.

Textual Amendments

F197 Words in s. 29(1)(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 19; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)(which S.I. ws amended by S.I. 2001/115, art. 2(2))

F198 S. 29(1)(b) and word “or" immediately preceding it repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F199 S. 29(6)(7) repealed (1.2.2001) by 2000 c. 38, s. 274 Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Commencement Information

I6 S. 29 wholly in force at 1.4.1994; s. 29 not in force at Royal Assent see s. 154(2); s. 29(8) in force at 6.1.1994 by S.I. 1993/3237, art. 2(2); s. 29 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

[F200 30 Duty of Authority in absence of franchise. E+W+S

(1) The Authority shall provide, or secure the provision of, services for the carriage of passengers by railway where—

(a) a direction not to seek to secure the provision of the services under a franchise agreement has been given to the Authority under section 26A or 26B above (and not revoked); or

(b) a franchise agreement in respect of the services is terminated or otherwise comes to an end but no further franchise agreement has been entered into in respect of the services (otherwise than because of such a direction).

(2) The duty in subsection (1) above in relation to any services ceases if the services begin (or again begin) to be provided under a franchise agreement.

(3) Subsection (1) above does not—

(a) require the Authority to provide or secure the provision of services if and to the extent that, in its opinion, adequate alternative railway passenger services are available;

(b) preclude it from giving notice under subsection (5) of section 38 below in relation to any of the services, in which case its duty under this section to secure the provision of the services to which the notice relates will (subject to subsections (5) and (6) of that section) terminate on the day specified in the notice in pursuance of paragraph (b) of that subsection; or

(c) preclude it from ceasing to provide or secure the provision of any of the services in any case falling within any of paragraphs (a) to (d) of subsection (2) of that section.]

Textual Amendments

F200 S. 30 substituted (1.2.2001) by 2000 c. 38, s. 212(5) (with Sch. 28 para. 3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

31 Leases granted in pursuance of franchise agreements: no security of tenure. E+W+S

(1) In any case where—

(a) a franchise agreement makes provision for the franchisee, the franchise operator or a wholly owned subsidiary of the franchisee to enter into an agreement (“the contemplated agreement") with a person who has an interest in a network or a railway facility,

(b) the network or railway facility is to be used for or in connection with the provision of any of the franchised services, and

(c) the contemplated agreement creates a tenancy of any property which (whether in whole or in part) constitutes, or is comprised in, the network or railway facility,

neither Part II of the M6 Landlord and Tenant Act 1954 (security of tenure of business premises) nor the M7 Tenancy of Shops (Scotland) Act 1949 (security of tenure of shop premises in Scotland) shall apply to that tenancy.

(2) For the purposes of this section, a person shall be regarded as having an interest in a network or railway facility if he has an estate or interest in, or right over, any of the property which constitutes, or is comprised in, the network or railway facility.

(3) Any reference in this section to a network or a railway facility includes a reference to any part of a network or railway facility.

(4) In this section—

• “agreement” includes a lease, underlease or sublease (as well as a tenancy agreement or an agreement for a lease, underlease or sublease);

• “tenancy” has the same meaning as it has in Part II of the M8 Landlord and Tenant Act 1954 or, in Scotland, as it has in the M9 Tenancy of Shops (Scotland) Act 1949.

Marginal Citations

M6 1954 c. 56.

M7 1949 c. 25.

M8 1954 c. 56.

M9 1949 c. 25.

Passenger Transport Authorities and Executives U.K.

F201 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . U.K.

Textual Amendments

F201 S. 32 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F202 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F202 S. 33 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

34 Passenger Transport Authorities and Executives: franchising. E+W+S

(1) The fact that any services for the carriage of passengers by railway are, or are to be, provided by the [F203 Authority] or a wholly owned subsidiary of the Board under a section 20(2) agreement does not preclude the designation of those services under section 23(1) above F204 . . ..

(2) Subsection (1) above does not affect the continuing validity of any section 20(2) agreement and, accordingly, no services provided, or to be provided, under such an agreement shall begin to be provided under a franchise agreement until such time as the section 20(2) agreement in question has terminated.

(3) Subject to section 35(7) below, a Passenger Transport Executive shall continue to have power to enter into section 20(2) agreements with the [F203 Authority] or any wholly owned subsidiary of the Board for the provision of services for the carriage of passengers by railway until such time as the services in question first begin to be provided under a franchise agreement; and, accordingly, once the services first begin to be so provided, the Executive in question shall cease to have power to enter into a section 20(2) agreement for the provision of those services.

(4) The [F205 Authority]—

(a) before issuing an invitation to tender under section 26 above in respect of any services for the carriage of passengers by railway within the passenger transport area of a Passenger Transport Executive, or

(b) in a case where the Secretary of State has given a direction under section 26(1) above which has effect in relation to any such services, before entering into a franchise agreement in respect of any of those services,

shall comply with the requirements imposed upon [F205 the Authority] by subsection (5) below.

(5) The requirements mentioned in subsection (4) above are that the [F206 Authority] must give notice to the Passenger Transport Executive for the area in question—

(a) of [F206 the Authority’s,]intentions with respect to the inclusion, in any franchise agreement contemplated by that subsection, of provisions relating to the operation of any additional railway assets wholly or partly within the area in question, and

(b) of [F206 the Authority’s,] intention—

(i) in a case falling within paragraph (a) of that subsection, to issue the invitation to tender, or

(ii) in a case falling within paragraph (b) of that subsection, to enter into the franchise agreement,

and must, in either of the cases mentioned in paragraph (b) above, consult that Executive, which may, before the expiration of the period of 60 days immediately following the date specified in that notice as its date of issue, submit to [F206 the Authority] a statement under this subsection.

(6) A statement under subsection (5) above—

(a) shall specify the services for the carriage of passengers by railway which the Passenger Transport Authority for the area in question considers it appropriate to secure to meet any public transport requirements within that area, so far as relating to the provision of services of the same description as those in respect of which the [F207 Authority] proposes—

(i) to issue the invitation to tender mentioned in paragraph (b)(i) of that subsection, or

(ii) to enter into the franchise agreement mentioned in paragraph (b)(ii) of that subsection,

as the case may be;

(b) may specify the minimum level of quality to which any services so specified are to be provided;

(c) may (subject to section 28(3) above) specify requirements with respect to the fares to be charged to persons using any services so specified; and

(d) may specify the minimum level of quality with respect to the operation of any station (but not any other additional railway asset) which may be required by any such franchise agreement as is mentioned in subsection (5)(a) above.

(7) A Passenger Transport Executive which has submitted a statement under subsection (5) above to the Franchising Director may from time to time amend that statement by giving notice of the amendments to the [F207 Authority]; and where any such statement is so amended, any reference in this section to the statement submitted under subsection (5) above shall be taken as a reference to that statement as for the time being amended.

(8) Where a Passenger Transport Executive has submitted a statement under subsection (5) above to the [F208 Authority], the [F208 Authority] shall ensure that the services, and any minimum levels of quality or requirements with respect to fares, specified in that statement—

(a) in a case falling within paragraph (a) of subsection (4) above, are included in the specification of the services in respect of which the invitation to tender is issued; or

(b) in a case falling within paragraph (b) of that subsection, are provided for in any franchise agreement into which [F208 the Authority] may enter in respect of the services mentioned in that paragraph.

[F209 (8A) The Authority shall not do anything under subsection (8) above if or to the extent that to do it would prevent or seriously hinder the Authority—

(a) from complying with any directions given to it by the Secretary of State under section 207(5) of the Transport Act 2000 or from having regard to any guidance so given;

(b) from complying with any directions given to it by the Scottish Ministers under section 208 of that Act with which it must comply or from having regard to any guidance so given to which it must have regard; or

(c) from exercising any of its functions in a manner which is consistent with its financial framework.

(8B) The Authority need not do anything under subsection (8) above if or to the extent that to do it would have an adverse effect on the provision of services for the carriage of passengers or goods by railway (whether inside or outside the Passenger Transport Executive’s passenger transport area).

(8C) The Authority need not do anything under subsection (8) above if or to the extent that to do it would increase the amount of any expenditure of the Authority under agreements or other arrangements entered into (in accordance with a franchise agreement) with—

(a) the franchise operator;

(b) the franchisee; or

(c) any servant, agent or independent contractor of the franchise operator or franchisee.]

(9) A Passenger Transport Executive shall be a party to any franchise agreement which relates, whether in whole or in part, to the provision, within the Executive’s passenger transport area, of services specified in a statement under subsection (5) above.

(10) The [F210 Authority] and any Passenger Transport Executive may enter into agreements with each other as to the terms on which franchise agreements to which the Executive is a party are to be entered into.

(11) Before entering into a franchise agreement, a Passenger Transport Executive for a passenger transport area shall submit to the Passenger Transport Authority for that area, and obtain that Passenger Transport Authority’s approval of, the proposed franchise agreement.

(12) It shall be the duty of every Passenger Transport Authority and every Passenger Transport Executive to facilitate the attainment by the [F210 Authority] of the objective of securing expeditiously that franchise agreements are entered into in respect of any services for the carriage of passengers by railway within their passenger transport area—

(a) which are for the time being the subject of section 20(2) agreements; but

(b) which are designated under section 23(1) above F204 . . ..

(13) In any case where —

(a) any services (“the PTA services") are included, in consequence of a statement under subsection (5) above, among those which are to be provided under a franchise agreement or a franchise agreement requires the operation of any additional railway assets as mentioned in paragraph (a) of that subsection,

(b) the franchise agreement does not make provision for the Passenger Transport Executive for the area in question to make payments to the franchisee or the franchise operator in respect of the provision of the PTA services or the operation of the additional railway assets, and

(c) payments by way of grant in respect of the provision of the PTA services or the operation of the additional railway assets fall to be made by the [F210 Authority] pursuant to conditions contained in the franchise agreement by virtue of section 29(1)(b) above,

the Passenger Transport Executive shall pay to the [F210 Authority], at or before the time at which any such payment as is mentioned in paragraph (c) above is made, a sum equal to the amount of that payment.

(14) Where, pursuant to section 30 above, the [F211 Authority] is under a duty to secure the provision of any services for the carriage of passengers by railway, F204 . . . within the passenger transport area of a Passenger Transport Executive, the Executive—

(a) shall have power to enter into agreements with the [F211 the Authority] with respect to the securing by [F211 the Authority] of—

(i) the provision of any of the services in question, or

(ii) the operation of any F204 . . . additional railway assets F204 . . .,

until such time as they are again provided under a franchise agreement;

(b) shall make to the [F211 the Authority] in respect of—

(i) the provision of any of the services in question whose provision [F211 the Authority] secures pursuant to section 30 above, and

(ii) the operation of any F204 . . . additional railway assets F204 . . . whose operation [F211 the Authority]secures pursuant to section 30 above,

payments of such amounts, and at such times, as may be agreed between the Executive and the [F211 the Authority] or, in default of agreement, of such amounts and at such times as the Secretary of State may direct; F212 . . .

F212 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(15) Without prejudice to the generality of the provisions which may be included in any agreement made between the [F213 Authority] and a Passenger Transport Executive under paragraph (a) of subsection (14) above, such an agreement may, in particular, contain provisions concerning—

(a) the services for the carriage of passengers by railway which the Passenger Transport Authority for the passenger transport area in question considers it appropriate to secure to meet any public transport requirements within that area,

(b) the minimum level of quality to which any such services are to be provided,

(c) the fares to be charged to persons using any such services, or

(d) the minimum level of quality to which the operation of any station (but not of any other additional railway asset) is to be secured under sub-paragraph (ii) of that paragraph.

(16) The Secretary of State shall not direct a Passenger Transport Executive to make any payment under subsection (14)(b) above, except in respect of—

(a) any service—

(i) which is provided under an agreement entered into by the [F214 Authority] pursuant to his duty under section 30 above, and

(ii) which under the terms of that agreement is required to involve calls at more than one station within the passenger transport area of the Executive, or

(b) any additional railway asset which is operated under an agreement entered into by the [F214 Authority]. . .,

“call” meaning for this purpose any stop at a station for the purpose of allowing passengers to board or leave the train (including the stops at the stations at the beginning and end of any journey to which the service relates).

(17) If any dispute arises between the [F215 Authority] and a Passenger Transport Executive in connection with—

(a) a proposal by the [F215 Authority] to issue an invitation to tender, or to enter into a franchise agreement, in respect of services for the carriage of passengers by railway within the passenger transport area of that Executive, or

(b) any franchise agreement which has been entered into in respect of any such services, or in respect of any such services and any additional railway asset,

either of them may refer the dispute to the Secretary of State for determination and on any such reference the Secretary of State may give to the [F215 Authority] or the Passenger Transport Executive such directions [F216 with respect to the proposal or franchise agreement] as he may think fit.

(18) Without prejudice to subsection (17) above—

(a) if the [F217 Authority] considers it desirable to do so for the purpose of securing expeditiously that a franchise agreement is entered into in respect of services for the carriage of passengers by railway within the passenger transport area of a Passenger Transport Executive, [F217 the Authority may apply] to the Secretary of State for directions under this subsection; or

(b) if a Passenger Transport Executive for any passenger transport area considers it desirable to do so for the purpose of securing expeditiously that a franchise agreement is entered into in respect of services for the carriage of passengers by railway within that passenger transport area, the Executive may apply to the Secretary of State for directions under this subsection;

and on any such application, the Secretary of State may give for that purpose such directions as he may think fit to the [F217 Authority] or the Executive.

(19) Without prejudice to the generality of the directions that may be given under subsection (17) or (18) above, but subject to subsection (20) below, the Secretary of State may, in particular, give a direction under either of those subsections—

(a) requiring the [F218 Authority] or the Executive to enter into a franchise agreement on such terms as may be specified in the direction;

(b) providing that any one or more of subsections (4) to (11) and (13) above, or any part of any of those subsections, shall not have effect with respect to a franchise agreement; or

(c) requiring the Executive to make payments in respect of—

(i) the provision under a franchise agreement of services for the carriage of passengers by railway within their passenger transport area, whether or not the inclusion of those services among the services which are to be provided under the franchise agreement is in consequence of a statement submitted under subsection (5) above by the Executive and whether or not the Executive is a party to the franchise agreement; or

(ii) the operation under or by virtue of a franchise agreement of additional railway assets wholly or partly within their passenger transport area, whether or not the Executive is a party to the franchise agreement;

and, without prejudice to any other provision of this Act, any reference in paragraph (b) or (c) above to a franchise agreement includes a reference to a proposed franchise agreement.

(20) The Secretary of State shall not give a direction under subsection (19)(c) above requiring a Passenger Transport Executive to make payments in respect of the provision under a franchise agreement of services for the carriage of passengers by railway, or the operation under or by virtue of a franchise agreement of additional railway assets, except in respect of—

(a) such of those services as are required by the terms of the franchise agreement—

(i) to be provided during the relevant period in the case of that direction, and

(ii) to involve calls at more than one station within the passenger transport area of the Executive, or

(b) such of those additional railway assets as are required by or under the terms of the franchise agreement to be operated during the relevant period in the case of that direction,

“call" having the same meaning in this subsection as it has in subsection (16) above.

(21) For the purposes of subsection (20) above, the “relevant period", in the case of any direction, is the period which is made up of—

(a) the financial year in which the direction is given,

(b) the financial year immediately preceding that in which the direction is given, and

(c) the financial year immediately following that in which the direction is given,

“financial year” meaning for this purpose the period of twelve months ending with 31st March.

(22) In this section—

• “public transport requirements” has the same meaning as it has in the M10 Transport Act 1968;

• “section 20(2) agreement” [F219 means an agreement made between the Authority and a Passenger Transport Executive pursuant to section 20(2)(b) of the M11 Transport Act 1968.].

F220 (23) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F203 Words in s. 34(1)(3) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 25(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F204 Words in s. 34(1)(12)(14) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F205 Words in s. 34(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F206 Words in s. 34(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F207 Words in s. 34(6)(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F208 Words in s. 34(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F209 S. 34(8A)-(8C) inserted (1.2.2001) by 2000 c. 38, s. 246(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F210 Words in s. 34(10)(11)(13) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F211 Words in s. 34(14) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F212 Words in s. 34(14)(c) and word “but" preceding it repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F213 Words in s. 34(15) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(8); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F214 Words in s. 34(16) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(9)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F215 Words in s. 34(17) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(10); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F216 Words in s. 34(17) substituted (1.2.2001) by 2000 c. 38, s. 246(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F217 Words in s. 34(18) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(11); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F218 Words in s. 34(19) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 20(12); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F219 S. 34(22): words in definition of

“section 20(2) agreement”

substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 25(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F220 S. 34(23) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C14 S. 34: certain functions transferred (S.) (28.11.2005) by The Transfer of Rail Functions To The Scottish Ministers Order 2005 (S.S.I. 2005/598), art. 3, Sch. 1 (with savings in art. 5 and consequential modifications in Sch. 2)

Marginal Citations

M10 1968 c. 73.

M11 1968 c. 73.

35 Termination and variation of section 20(2) agreements by the [F221 Authority]. E+W+S

(1) This section applies in any case where services for the time being provided under a section 20(2) agreement by the [F222 Authority]or a wholly owned subsidiary of the [F222 Authority] have been designated under section 23(1) above F223 . . ..

(2) If, in a case where this section applies, a franchise agreement is entered into in respect of all the services for the time being provided under the section 20(2) agreement, the [F221 Authority] shall serve a notice on the parties to the section 20(2) agreement terminating that agreement on such date (“the termination date") as may be specified in the notice.

(3) Where notice is served under subsection (2) above, the parties to the section 20(2) agreement—

(a) shall be taken to have agreed to terminate that agreement on the termination date, and

(b) shall accordingly be released from the performance of their obligations under that agreement after that date,

and the section 20(2) agreement shall not have effect after the termination date, except so far as relating to anything done, or required to be done, pursuant to the agreement on or before that date.

(4) If, in a case where this section applies, a franchise agreement is entered into in respect of some, but not all, of the services for the time being provided under the section 20(2) agreement, the [F221 Authority] may serve a notice on the parties to the section 20(2) agreement varying the terms of that agreement.

(5) Where notice is served under subsection (4) above—

(a) the parties to the section 20(2) agreement shall be taken to have agreed to a variation of the section 20(2) agreement such that the services to be provided under the franchise agreement shall, after such date as may be specified in the notice, no longer be provided under the section 20(2) agreement; and

(b) the section 20(2) agreement shall have effect with such further modifications which are necessary to give effect to, or are consequential on, the variation referred to in paragraph (a) above as the parties may agree or, in default of agreement, as may be determined on a reference to arbitration.

(6) For the purposes of subsection (5)(b) above—

(a) either party to the section 20(2) agreement may refer the matter in dispute to arbitration after giving the other not less than fourteen days’ notice of his intention to do so; and

(b) if the parties are unable to agree on the appointment of a person as the arbitrator, either of them, after giving the other not less than fourteen days’ notice of his intention to do so, may by notice request the [F221 Authority] to appoint a person as the arbitrator.

(7) Where a section 20(2) agreement is terminated or varied by virtue of this section, the Passenger Transport Executive in question shall not have power to enter into another such agreement for the provision of the services which are to be provided under the franchise agreement referred to in subsection (2) or (4) above (as the case may be) without the consent of the [F221 Authority].

(8) Where a section 20(2) agreement has been entered into, but services have not begun to be provided under it, this section shall have effect in relation to the services which are to be provided as it has effect in relation to services for the time being provided under a section 20(2) agreement.

(9) Any reference in this section to an arbitrator shall, in Scotland, be taken as a reference to an arbiter.

(10) In this section, “section 20(2) agreement” has the same meaning as it has in [F224 section 34] above.

Textual Amendments

F221 Words in s. 35 and sidenote substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 21; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F222 Words in s. 35(1) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 26(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F223 Words in s. 35(1) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F224 Words in s. 35(10) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 26(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C15 S. 35: certain functions transferred (S.) (28.11.2005) by The Transfer of Rail Functions To The Scottish Ministers Order 2005 (S.S.I. 2005/598), art. 3, Sch. 1 (with savings in art. 5 and consequential modifications in Sch. 2)

36 Miscellaneous amendments of the Transport Act 1968. U.K.

(1) In section 10 of the M12 Transport Act 1968, in subsection (1) (which specifies the powers of Passenger Transport Executives) after paragraph (vi) there shall be inserted—

“(via) with the approval of the Authority, to enter into and carry out agreements with any person who is the operator of, or who has an estate or interest in, or right over, a network, station or light maintenance depot or some part of a network, station or light maintenance depot, in connection with the building, replacement, redevelopment, refurbishment, repair, maintenance, operation or staffing of the network, station or light maintenance depot or any part thereof;”.

(2) After paragraph (viii) of that subsection there shall be inserted—

“(viiia) to let locomotives and other rolling stock on hire to any person who is (within the meaning of Part I of the Railways Act 1993) the franchisee or the franchise operator under a franchise agreement to which the Executive is a party;

(viiib) to let locomotives and other rolling stock on hire to a person not falling within paragraph (viiia) above—

(a) for or in connection with the provision of railway passenger services within that area or within the permitted distance; or

(b) with the written consent of the Secretary of State, for or in connection with the provision of railway passenger services outside that area and beyond the permitted distance;

(viiic) with the approval of the Authority, to enter into and carry out agreements with the owner of any locomotive or other rolling stock concerning the persons to whom, or the terms on which, the locomotive or other rolling stock may be let on hire;”.

(3) In section 20(2) of that Act, in paragraph (a) (duty of Passenger Transport Executive to keep under review the railway passenger services provided by the Railways Board for meeting the needs of persons travelling between places in the Executive’s passenger transport area etc) for the words “by the Railways Board" there shall be substituted the words “ by passenger service operators (within the meaning of Part I of the Railways Act 1993) ”.

(4) After section 23 of that Act there shall be inserted—

“23A Interpretation of certain provisions of this Part relating to railways.

(1) For the purposes of sections 10, 15 and 20 of this Act—

(a) “light maintenance depot”, “locomotive”, “network”, “railway passenger services”, “rolling stock” and “station” have the meaning given in section 83(1) of the Railways Act 1993; and

(b) “operator” has the meaning given in section 6(2) of that Act.

(2) For the purposes of sections 10(1)(vi), 15(1)(d) and 20(2)(b), (4) and (6) of this Act “wholly-owned subsidiary” has the meaning given by section 736 of the M13 Companies Act 1985.”.

(5) In section 159(1) of that Act (general interpretation), in the definition of “subsidiary" and “wholly-owned subsidiary", for the words “subject to section 51(5)" there shall be substituted the words “ subject to sections 23A(2) and 51(5) ”.

Marginal Citations

M12 1968 c. 73.

M13 1985 c. 6.

Closures U.K.

37 Proposals to discontinue non-franchised etc. passenger services. E+W+S

(1) In any case where—

(a) all the railway passenger services on any line or from any station are provided otherwise than in satisfaction of requirements imposed by a franchise agreement and otherwise than on behalf of the [F225 Authority], and

(b) the person providing those services (in this section referred to as “the service operator”) proposes to discontinue all such services on that line or from that station (in this section referred to as a closure),

then, unless the closure is [F226 determined by the Authority to be] a minor closure [F227 and the service operator has agreed to comply with any conditions imposed by the Authority], the service operator shall give notice of the proposal to the [F225 Authority] not less than three months before the date specified pursuant to subsection (3)(b) below as that on which the service operator will cease providing the services (the “service operator’s withdrawal date") and shall not discontinue those services before that date.

(2) In determining for the purposes of paragraph (a) of subsection (1) above whether all the railway passenger services on a line or from a station are provided as mentioned in that paragraph, there shall be left out of account any services—

(a) which involve travel through the Channel Tunnel;

(b) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M14 Transport Act 1962;

(c) which are provided otherwise than as regular scheduled services for that line or for that station, as the case may be; or

(d) which are designated, or which are of a class or description designated, by order under section 49(2) below as services in relation to which this section is not to have effect;

and this section shall not have effect in relation to any services falling within paragraphs (a) to (d) above.

(3) A notice under subsection (1) above shall be accompanied by a statement of—

(a) the service operator’s reasons for the proposal;

(b) the date on which he will cease providing the services in question; and

(c) any alternative transport services which appear to the service operator to be available.

(4) Where notice is given to the [F228 Authority] under subsection (1) above, [F228 it] must consider, and form an opinion on, the question whether the proposed closure should or should not be permitted to take effect.

(5) If the [F228 Authority] is of the opinion that the proposed closure should not be permitted to take effect, [F228 it] shall be under a duty to secure the provision of the services in question after the service operator’s withdrawal date.

(6) If the [F229 Authority] is of the opinion that the proposed closure should be permitted to take effect, [F229 it] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F229 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) particulars of the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative transport services which appear to [F229 it] to be available,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F230 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the provision of the services to which the proposed closure relates.

(7) The reasons contained in the statement referred to in subsection (6)(d) above may consist of or include the reasons included in the statement under subsection (3) above, with or without other reasons of the [F231 Authority’s].

(8) Without prejudice to the provisions of section 38 below in relation to the services in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F232 Authority] shall be under a duty to secure the provision of those services after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F232 Authority] shall be under a duty to comply with those conditions or to secure [F233 (in accordance with sections 55 to 58 below)] that they are complied with.

(9) In this section—

• “the area affected” means the area in which is situated the station or, as the case may be, the line mentioned in subsection (1) above;

• “the final decision on the closure question” means— [F234 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means the period beginning immediately after the service operator’s withdrawal date and ending four weeks after the date of the final decision on the closure question;

• “minor closure” means the discontinuance of services on any stretch of line along which there is no station (or no station in use) where the circumstances are [F235 , in the opinion of the Regulator,] such that—

  (a)

  any trains that would otherwise use that stretch of line in travelling between any two stations will instead pass along an alternative route; and

  (b)

  any passengers travelling on any such trains will not be required to make any additional change of train and will not incur any significant increase in the time which their journey takes.

(10) The railway passenger services which are to be regarded for the purposes of this section as provided on behalf of the [F236 Authority]are those whose provision [F236 it] is for the time being under a duty to secure in consequence of—

(a) section 30 above,

(b) subsection (5) or (8)(a) above,

(c) section 38(6)(a) below, or

(d) any closure condition imposed under section 43(9) F237 . . . below.

F238 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F225 Words in s. 37(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F226 Words in s. 37(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F227 Words in s. 37(1) inserted (1.2.2001) by 2000 c. 38, s. 236(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F228 Words in s. 37(4)(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F229 Words in s. 37(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F230 Words in s. 37(6) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F231 Words in s. 37(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F232 Words in s. 37(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F233 Words in s. 37(8)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F234 S. 37(9): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) for paragraphs (a) and (b) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F235 S. 37(9): words in definition of

“minor closure”

repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 25(2), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F236 Words in s. 37(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 22(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F237 Words in s. 37(10) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F238 S. 37(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C16 S. 37 excluded (1.4.1994) by S.I. 1994/606, art. 7(1)

S. 37 excluded (21.7.1994) by 1994 c. xi, s. 17

S. 37 excluded (21.7.1994) by 1994. c. xv, s. 17(4)

S. 37 excluded (24.5.1996) by S.I. 1996/1356, art. 3(1)

S. 37 excluded (23.7.1997) by S.I. 1997/1531, art. 3(1)

S. 37 excluded (13.12.1999) by S.I. 1999/3112, art. 4(1)

Marginal Citations

M14 1962 c. 46.

38 Proposals to discontinue franchised etc. passenger services. E+W+S

(1) This section applies in any case where—

(a) any railway passenger services on any line or from any station are provided on behalf of the [F239 Authority] and [F239 it] proposes to discontinue those services, or

(b) any railway passenger services on any line or from any station are provided in satisfaction of requirements imposed by a franchise agreement, but—

(i) the person so providing those services intends not to continue to provide them when the requirement so to provide them comes to an end, and

(ii) the [F239 Authority] proposes that they should then be discontinued;

and any reference in this section to a closure is a reference to a discontinuance falling within paragraph (a) or (b) above.

(2) If in a case to which this section applies—

(a) the closure is [F240 determined by the Authority to be] a minor closure,

(b) the closure in question is one in respect of which, in consequence of the application of section 49(6) below, neither section 37 above nor Schedule 5 to this Act is to apply,

(c) the closure is one in respect of which neither of the conditions in subsection (3) below is satisfied, and any requirement imposed by a franchise agreement to provide the services in question has come to an end, or

(d) the services in question fall within any of paragraphs (a) to (c) of subsection (4) below,

the [F241 Authority] may discontinue the services in question, notwithstanding any duty imposed on [F241 it] by or under this Part to secure their provision, and subsections (5) and (6) below shall not apply in relation to the closure.

(3) The conditions mentioned in subsection (2)(c) above are—

(a) that all the railway passenger services on the line or from the station in question are provided on behalf of the [F242 Authority] and [F242 it] proposes to discontinue all such services on that line or from that station; or

(b) that all the railway passenger services on the line or from the station in question are provided in satisfaction of requirements imposed by a franchise agreement, and—

(i) the person so providing those services intends not to continue providing them when the requirement so to provide them comes to an end, and

(ii) the [F242 Authority] proposes that all such services on that line or from that station should then be discontinued.

(4) In determining, for the purposes of paragraph (a) or (b) of subsection (3) above, whether all the railway passenger services on a line or from a station are provided as mentioned in that paragraph there shall be left out of account any services—

(a) which involve travel through the Channel Tunnel;

(b) which are provided otherwise than as regular scheduled services for that line or for that station, as the case may be;

(c) which are designated, or which are of a class or description designated, by order under section 49(2) below as services in relation to which section 37 above is not to have effect; or

(d) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M15 Transport Act 1962;

and this section shall not have effect in relation to any services falling within paragraph (d) above.

(5) Subject to subsection (2) above, where this section applies, the [F243 Authority] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F243 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative transport services which appear to [F243 it] to be available,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F244 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the provision of the services to which the proposed closure relates.

(6) Without prejudice to any subsequent application of this section in relation to the services in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F245 Authority] shall be under a duty to secure the provision of those services after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F245 Authority] shall be under a duty to comply with those conditions or to secure [F246 (in accordance with sections 55 to 58 below)]that they are complied with.

(7) In this section—

• “the area affected” means the area in which is situated the station or, as the case may be, the line mentioned in subsection (1) above;

• “the final decision on the closure question” means— [F247 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means—

  (a)

  in a case falling within paragraph (a) of subsection (1) above, the period beginning with the date mentioned in subsection (5)(b) above and ending four weeks after the date of the final decision on the closure question; or

  (b)

  in a case falling within paragraph (b) of that subsection, the period beginning immediately after the requirement mentioned in sub-paragraph (i) of that paragraph comes to an end and ending four weeks after the date of the final decision on the closure question;

• “minor closure” has the same meaning as it has in section 37 above.

(8) The services which are to be regarded for the purposes of this section as provided on behalf of the [F248 Authority] are the same services as are to be so regarded for the purposes of section 37 above.

F249 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F239 Words in s. 38(1) substituted (1.2.2001) by 2000 c. 38, s. 215), Sch. 16 para. 23(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F240 Words in s. 38(2) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F241 Words in s. 38(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 23(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F242 Words in s. 38(3) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 23(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F243 Words in s. 38(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 23(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F244 Words in s. 38(5) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F245 Words in s. 38(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 23(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F246 Words in s. 38(6)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F247 S. 38(7): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) for paragraphs (a) and (b) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F248 Words in s. 38(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 23(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F249 S. 38(9) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C17 S. 38 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

S. 38 restricted (18.12.1996) by 1996 c. 61, s. 18

Marginal Citations

M15 1962 c. 46.

39 Notification of proposals to close operational passenger networks. E+W+S

(1) Subject to subsection (2) below, in any case where—

(a) the operator of a network proposes to discontinue the operation of the network or some part of it (in this section referred to as a “closure"),

(b) the network or, as the case may be, the part of the network in question has, at any time within the preceding five years, been used for or in connection with the provision of any services for the carriage of passengers by railway, and

(c) the network or, as the case may be, the part of the network in question is not one which is operated on behalf of the [F250 Authority],

then, unless the closure is [F251 determined by the Authority to be] a minor closure [F252 and the operator has agreed to comply with any conditions imposed by the Authority], the operator shall give notice of the proposal to the [F250 Authority] not less than three months before the date specified pursuant to subsection (4)(b) below as the date on which it is proposed that the closure should take effect and shall not discontinue the operation of the network or, as the case may be, the part of the network in question before that date.

(2) This section does not apply if and to the extent that the proposal mentioned in subsection (1) above is a proposal to discontinue the operation of part of a multiple track railway between any two places, where the circumstances are such that the railway line in question will continue to be at least a single track railway between those two places.

(3) In determining for the purposes of subsection (1)(b) above whether the network or, as the case may be, the part of the network in question has at any time within the period there mentioned been used for or in connection with the provision of services for the carriage of passengers by railway, there shall be left out of account any use for or in connection with the provision of services—

(a) which involve travel through the Channel Tunnel;

(b) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M16 Transport Act 1962; or

(c) which are provided otherwise than as regular scheduled services on that network or, as the case may be, the part of the network in question;

and this section shall not have effect in relation to any networks which are designated, or which are of a class or description designated, by order under section 49(4) below as networks in relation to which this section is not to have effect.

(4) A notice under subsection (1) above shall be accompanied by a statement of—

(a) the operator’s reasons for the proposal;

(b) the date on which it is proposed that the closure will take effect; and

(c) any alternative transport services which appear to him to be available.

(5) Where notice is given to the [F253 Authority] under subsection (1) above, [F253 it] must consider, and form an opinion on, the question whether the proposed closure should or should not be permitted to take effect.

(6) If the [F253 Authority] is of the opinion that the proposed closure should not be permitted to take effect, [F253 it] shall be under a duty to secure the continued operation of the network or, as the case may be, the part of the network in question after the date on which the operator proposes that the closure should take effect.

(7) If the [F254 Authority] is of the opinion that the proposed closure should be permitted to take effect, [F254 it] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F254 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative transport services which appear to [F254 it] to be available,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F255 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the operation of the network or, as the case may be, the part of the network to which the proposed closure relates.

(8) The reasons contained in the statement referred to in subsection (7)(d) above may consist of or include the reasons included in the statement under subsection (4) above, with or without other reasons of the [F256 Authority’s].

(9) Without prejudice to the provisions of section 40 below in relation to the network or the part of the network in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F257 Authority] shall be under a duty to secure the operation of the network or, as the case may be, the part of the network after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F257 Authority] shall be under a duty to comply with those conditions or to secure [F258 (in accordance with sections 55 to 58 below)] that they are complied with.

(10) In this section—

• “the area affected” means the area in which is situated the network or, as the case may be, the part of the network in question;

• “the final decision on the closure question” means— [F259 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means the period beginning with the date mentioned in subsection (7)(b) above and ending four weeks after the date of the final decision on the closure question;

• “minor closure” means discontinuance of the operation of—

  (a)

  any part of a network which consists of a stretch of track, or installations associated with a stretch of track, along which there is no station (or no station in use) where the circumstances are F260 . . . such that—

  (i)

  any trains that would otherwise use that part of the network in travelling between any two stations will instead pass along an alternative route; and

  (ii)

  any passengers travelling on any such trains will not be required to make any additional change of train and will not incur any significant increase in the time which their journey takes; F260 . . .

[F261 (aa) any part of a network which consists of a stretch of track, or installations associated with a stretch of track, doing no more than serve a station or light maintenance depot, or some part of it, where the circumstances are such that—

(i) that part of the network is not necessary for the use of the station or light maintenance depot, or that part of it, for the purpose of or in connection with the provision of services for the carriage of passengers by railway; or

(ii) the use of the station or light maintenance depot, or that part of it, has been or is proposed to be subject to termination constituting a minor closure within the meaning of section 41 below; or]

(b) any part of a network (other than track) which F260 . . . is not necessary for the use of the network for or in connection with the provision of services for the carriage of passengers by railway;

• “multiple track railway” means a railway line between any two places which consists of two or more continuous sets of track taking the same route between those two places;

• “single track railway” means a railway line between any two places which consists of one continuous set of track between the two places.

(11) The networks, and the parts of networks, which are to be regarded for the purposes of this section as operated on behalf of the [F262 Authority] are those whose operation [F262 it] is for the time being under a duty to secure, in consequence of—

(a) subsection (6) or (9)(a) above,

(b) section 40(6)(a) below, or

(c) any closure condition imposed under section 43(9) F263 . . . below,

and those whose operation [F262 it] is for the time being securing F263 . . ..

F264 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F250 Words in s. 39(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F251 Words in s. 39(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F252 Words in s. 39(1) inserted (1.2.2001) by 2000 c. 38, s. 236(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F253 Words in s. 39(5)(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F254 Words in s. 39(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F255 Words in s. 39(7) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F256 Words in s. 39(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F257 Words in s. 39(9) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F258 Words in s. 39(9)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F259 S. 39(10): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) for paragraphs (a) and (b) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F260 S. 39(10): words in definition of

“minor closure”

and word “or" at the end of para (a) in that definition repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 25(2), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F261 S. 39(10): para (aa) in definition of

“minor closure”

inserted (1.2.2001) by 2000 c. 38, s. 237; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F262 Words in s. 39(11) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 24(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F263 Words in s. 39(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F264 Words in s. 39(12) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C18 S. 39 excluded (1.4.1994) by S.I. 1994/606, art. 7(2)

S. 39 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

S. 39 excluded (24.5.1996) by S.I. 1996/1356, art. 3(2)

S. 39 excluded (23.7.1997) by S.I. 1997/1531, art. 3(2)

S. 39 excluded (13.12.1999) by S.I. 1999/3112, art. 4(2)

S. 39 excluded (13.12.1999) by S.I. 1999/3111, art. 3(1)

S. 39 excluded (26.5.2000) by S.I. 2000/1178, art. 2

S. 39 excluded (1.6.2001 for specified purposes and otherwise 1.7.2001) by S.I. 2001/1768, arts. 1, 3

Marginal Citations

M16 1962 c. 46.

40 Proposals to close passenger networks operated on behalf of the [F265 Authority]. E+W+S

(1) This section applies in any case where—

(a) a network or a part of a network is operated on behalf of the [F266 Authority]; and

(b) the [F266 Authority] proposes to discontinue the operation of the network or, as the case may be, the part of the network in question (in this section referred to as a “closure").

(2) If in a case where this section applies—

(a) the closure is [F267 determined by the Authority to be] a minor closure,

(b) the closure is one to which subsection (3) below applies,

(c) the network or, as the case may be, the part of the network in question has at no time within the preceding five years been used for or in connection with the provision of any services for the carriage of passengers by railway, or

(d) the network in question is one of those which are designated, or which are of a class or description designated, by order under section 49(4) below as networks in relation to which section 39 above is not to have effect,

the [F268 Authority] may discontinue the operation of the network or, as the case may be, the part of the network in question, notwithstanding any duty imposed upon [F268 the Authority] by or under this Part to secure its operation, and subsections (5) and (6) below shall not apply in relation to the closure.

(3) This subsection applies to a closure if and to the extent that it is the closure of part of a multiple track railway running between any two places, where the circumstances are such that the railway line in question will continue to be at least a single track railway between those two places.

(4) In determining for the purposes of subsection (2)(c) above whether the network or, as the case may be, the part of the network in question has at any time within the period there mentioned been used for or in connection with the provision of services for the carriage of passengers by railway, there shall be left out of account any use for or in connection with the provision of services—

(a) which involve travel through the Channel Tunnel;

(b) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M17 Transport Act 1962; or

(c) which are provided otherwise than as regular scheduled services on that network or, as the case may be, the part of the network in question.

(5) Subject to subsection (2) above, where this section applies, the [F269 Authority] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F269 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative transport services which appear to [F269 it] to be available,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F270 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the operation of the network or, as the case may be, the part of the network to which the proposed closure relates.

(6) Subject to subsection (2) above and without prejudice to any subsequent application of this section in relation to the network or the part of the network in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F271 Authority] shall be under a duty to secure the operation of the network or, as the case may be, the part of the network after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F271 Authority] shall be under a duty to comply with those conditions or to secure [F272 (in accordance with sections 55 to 58 below)] that they are complied with.

(7) In this section—

• “the area affected” means the area in which is situated the network or, as the case may be, the part of the network in question;

• “the final decision on the closure question” means— [F273 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means the period beginning with the date mentioned in subsection (5)(b) above and ending four weeks after the date of the final decision on the closure question;

• “minor closure”, “multiple track railway” and “single track railway” have the same meaning as they have in section 39 above.

(8) The networks and parts of networks that are to be regarded for the purposes of this section as operated on behalf of the [F265 Authority] are the same networks and parts of networks as are to be so regarded for the purposes of section 39 above.

F274 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F265 Words in s. 40(8) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 215, 275(1), Sch. 16 para. 25(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F266 Words in s. 40(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 25(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F267 Words in s. 40(2) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F268 Words in s. 40(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 25(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F269 Words in s. 40(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 25(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F270 Words in s. 40(5) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F271 Words in s. 40(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 25(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F272 Words in s. 40(6)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F273 S. 40(7): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F274 s. 40(9) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C19 S. 40 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

Marginal Citations

M17 1962 c. 46.

41 Notification of proposals to close railway facilities used in connection with passenger services. E+W+S

(1) In any case where—

(a) the operator of a station or light maintenance depot (“the relevant facility") proposes to terminate the use of that station or light maintenance depot, or some part of it, as such (in this section referred to as a “closure"),

(b) the relevant facility or, as the case may be, the part of the relevant facility in question has, at any time within the preceding five years, been used in connection with the provision of any services for the carriage of passengers by railway, and

(c) the relevant facility or, as the case may be, the part of the relevant facility in question is not one which is operated on behalf of the [F275 Authority],

then, unless the closure is [F276 determined by the Authority to be] a minor closure [F277 and the operator has agreed to comply with any conditions imposed by the Authority], the operator shall give notice of the proposal to the [F275 Authority] not less than three months before the date specified pursuant to subsection (3)(b) below as the date on which it is proposed that the closure should take effect and shall not terminate the use of the relevant facility or, as the case may be, the part of the relevant facility in question before that date.

(2) In determining for the purposes of subsection (1)(b) above whether the relevant facility or, as the case may be, the part of the relevant facility in question has at any time within the period there mentioned been used in connection with the provision of services for the carriage of passengers by railway, there shall be left out of account any use in connection with the provision of services—

(a) which involve travel through the Channel Tunnel;

(b) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M18 Transport Act 1962; or

(c) which are provided otherwise than as regular scheduled services;

and this section shall not have effect in relation to any stations or light maintenance depots which are designated, or which are of a class or description designated, by order under section 49(5) below as stations or light maintenance depots in relation to which this section is not to have effect.

(3) A notice under subsection (1) above shall be accompanied by a statement of—

(a) the operator’s reasons for the proposal;

(b) the date on which it is proposed that the closure will take effect; and

(c) any alternative facilities which appear to the operator to be available for the provision of services corresponding to those provided by means of the relevant facility or, as the case may be, the part of the relevant facility in question.

(4) Where notice is given to the [F278 Authority] under subsection (1) above, [F278 it] must consider, and form an opinion on, the question whether the proposed closure should or should not be permitted to take effect.

(5) If the [F278 Authority] is of the opinion that the proposed closure should not be permitted to take effect, [F278 it] shall be under a duty to secure the continued operation of the relevant facility or, as the case may be, the part of the relevant facility in question after the date on which the operator proposes that the closure should take effect.

(6) If the [F279 Authority] is of the opinion that the proposed closure should be permitted to take effect, [F279 it] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F279 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative facilities which appear to [F279 it] to be available for the provision of services corresponding to those provided by means of the relevant facility or, as the case may be, the part of the relevant facility in question,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F280 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the operation of the relevant facility or, as the case may be, the part of the relevant facility to which the proposed closure relates.

(7) The reasons contained in the statement referred to in subsection (6)(d) above may consist of or include the reasons included in the statement under subsection (3) above, with or without other reasons of the [F281 Authority’s].

(8) Without prejudice to the provisions of section 42 below in relation to the relevant facility or the part of the relevant facility in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F282 Authority] shall be under a duty to secure the operation of the relevant facility or, as the case may be, the part of the relevant facility after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F282 Authority] shall be under a duty to comply with those conditions or to secure [F283 (in accordance with sections 55 to 58 below)]that they are complied with.

(9) In this section—

• “the area affected”—

  (a)

  in a case where the relevant facility is a station, means the area served by the station; and

  (b)

  in a case where the relevant facility is a light maintenance depot, means the area in which the light maintenance depot is situated;

• “the final decision on the closure question” means— [F284 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means the period beginning with the date mentioned in subsection (6)(b) above and ending four weeks after the date of the final decision on the closure question;

• “minor closure”—

  (a)

  in relation to a station, means discontinuance of the operation of a part of the station which F285 . . .is not necessary for the use of the station for the purpose of, or in connection with, the provision of services for the carriage of passengers by railway; and

  (b)

  in relation to a light maintenance depot, means any such discontinuance as would not F285 . . . jeopardise the provision of any services for the carriage of passengers by railway.

(10) The stations and light maintenance depots, and the parts of stations or light maintenance depots, which are to be regarded for the purposes of this section as operated on behalf of the [F286 Authority] are those whose operation [F286 it] is for the time being under a duty to secure, in consequence of—

(a) subsection (5) or (8)(a) above,

(b) section 42(5)(a) below, or

(c) any closure condition imposed under section 43(9) F287 . . . below,

and those whose operation [F286 it] is for the time being securing F287 . . ..

F288 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F275 Words in s. 41(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F276 Words in s. 41(1) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F277 Words in s. 41(1) inserted (1.2.2001) by 2000 c. 38, s. 236(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F278 Words in s. 41(4)(5) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F279 Words in s. 41(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F280 Words in s. 41(6) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F281 Words in s. 41(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F282 Words in s. 41(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F283 Words in s. 41(8)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F284 S. 41(9): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) for paragraphs (a) and (b) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F285 S. 41(9): words in definition of

“minor closure”

repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 25(2), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F286 Words in s. 41(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 26(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F287 Words in s. 41(10) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F288 S. 41(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C20 S. 41 excluded (1.4.1994) by S.I. 1994/606, art. 7(3)(4)

S. 41 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

S. 41 excluded (24.5.1996) by S.I. 1996/1356, art. 3(3)

S. 41 excluded (23.7.1997) by S.I. 1997/1531, art. 3(3)

s. 41 excluded (13.12.1999) by S.I. 1999/3112, art. 4(3)

S. 41 excluded (13.12.1999) by S.I. 1999/3111, art. 3(2)

S. 41 excluded (1.6.2001 for specified purposes and otherwise 1.7.2001) by S.I. 2001/1768, arts. 1, 4

Marginal Citations

M18 1962 c. 46.

42 Proposals to close passenger railway facilities operated on behalf of the [F289 Authority]. E+W+S

(1) This section applies in any case where—

(a) the whole or some part of a station or light maintenance depot (“the relevant facility”) is operated on behalf of the [F290 Authority]; and

(b) the [F290 Authority] proposes to discontinue the operation of the relevant facility or of some part of the relevant facility (in this section referred to as a “closure").

(2) If in a case where this section applies—

(a) the closure is [F291 determined by the Authority to be] a minor closure,

(b) the relevant facility or, as the case may be, the part of the relevant facility in question has at no time within the preceding five years been used in connection with the provision of any services for the carriage of passengers by railway, or

(c) the relevant facility is, or is part of, one of those stations or light maintenance depots which are designated, or which are of a class or description designated, by order under section 49(5) below as stations or light maintenance depots in relation to which section 41 above is not to have effect,

the [F292 Authority] may discontinue the operation of the relevant facility or, as the case may be, the part of the relevant facility in question, notwithstanding any duty imposed upon [F292 the Authority] by or under this Part to secure its operation, and subsections (4) and (5) below shall not apply in relation to the closure.

(3) In determining for the purposes of subsection (2)(b) above whether the relevant facility or, as the case may be, the part of the relevant facility in question has at any time within the period there mentioned been used in connection with the provision of services for the carriage of passengers by railway, there shall be left out of account any use in connection with the provision of services—

(a) which involve travel through the Channel Tunnel;

(b) which are experimental passenger services, within the meaning of section 48 below, or which are provided on an experimental basis, for the purposes of section 56A of the M19 Transport Act 1962; or

(c) which are provided otherwise than as regular scheduled services.

(4) Subject to subsection (2) above, where this section applies, the [F293 Authority] shall publish in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as appears to [F293 it] to be appropriate, a notice containing—

(a) particulars of the proposal to effect the closure,

(b) the date on which it is proposed that the closure will take effect,

(c) particulars of any alternative facilities which appear to [F293 it] to be available for the provision of services corresponding to those provided by means of the relevant facility or, as the case may be, the part of the relevant facility in question,

(d) the addresses of the premises at which a statement of the reasons for the proposed closure can be inspected, or from which a copy of that statement can be obtained, and any fees payable for copies of the statement,

(e) a statement that objections to the proposed closure may be lodged with the [F294 Secretary of State] within such period as may be specified for the purpose in the notice (being not less than six weeks from the date of the last publication of the notice in a local newspaper),

and shall be under a duty during the interim period to secure the operation of the relevant facility or, as the case may be, the part of the relevant facility to which the proposed closure relates.

(5) Subject to subsection (2) above and without prejudice to any subsequent application of this section in relation to the relevant facility or the part of the relevant facility in question—

(a) if the final decision on the closure question is that the proposed closure will not be allowed to take effect, the [F295 Authority] shall be under a duty to secure the operation of the relevant facility or, as the case may be, the part of the relevant facility after the interim period; and

(b) if the final decision on the closure question is that the proposed closure will be allowed to take effect subject to compliance with conditions, the [F295 Authority] shall be under a duty to comply with those conditions or to secure [F296 (in accordance with sections 55 to 58 below)] that they are complied with.

(6) In this section—

• “the area affected” means the area in which is situated the relevant facility or, as the case may be, the part of the relevant facility in question;

• “the final decision on the closure question” means— [F297 the Secretary of State’s decision under section 43(9) below with respect to the proposed closure;]

• “the interim period” means the period beginning with the date mentioned in subsection (4)(b) above and ending four weeks after the date of the final decision on the closure question;

• “minor closure” has the same meaning as it has in section 41 above.

(7) The stations and light maintenance depots and the parts of stations and light maintenance depots that are to be regarded for the purposes of this section as operated on behalf of the [F289 Authority] are the same stations and light maintenance depots and parts of stations and light maintenance depots as are to be so regarded for the purposes of section 41 above.

F298 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F289 Words in s. 42(7) and sidenote substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 27(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F290 Words in s. 42(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 27(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F291 Words in s. 42(2)(a) substituted (1.2.2001) by 2000 c. 38, s. 216), Sch. 17 para. 25(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F292 Words in s. 42(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 27(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F293 Words in s. 42(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 27(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F294 Words in s. 42(4)(e) substituted (1.2.2001) by 2000 c. 38, s. 234(1) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F295 Words in s. 42(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 27(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F296 Words in s. 42(5)(b) inserted (1.2.2001) by 2000 c. 38, s. 236(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F297 S. 42(6): words in definition of

“the final decision on the closure question”

substituted (1.2.2001) by 2000 c. 38, s. 234(2) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F298 S. 42(8) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C21 S. 42 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

Marginal Citations

M19 1962 c. 46.

43 Notification to, and functions of, the [F299 Secretary of State] and the relevant [F300 Rail Passengers Committees]. E+W+S

(1) Where the [F301 Authority] is required by any provision of sections 37 to 42 above to publish any notice, [F301 it] shall also send the following documents, that is to say—

(a) a copy of the notice,

(b) a copy of the statement of reasons to which the notice refers, and

(c) a statement of [F301 its] recommendations with respect to the conditions (if any) to be attached to any consent to the closure,

to the [F302 Secretary of State][F303 , to the Mayor of London if the whole or any part of the area affected by the closure is in Greater London,] and to every [F304 Rail Passengers’ Committee] whose area consists of or includes the whole or any part of the area affected by the proposed closure.

[F305 (1A) The Authority shall also—

(a) send a copy of the notice to every person who is the operator of a station within the area affected; and

(b) require him to publish it at the station.]

(2) The [F302 Secretary of State] shall send to every [F304 Rail Passengers’ Committee] whose area consists of or includes the whole or any part of the area affected a copy of every objection to the proposed closure which is lodged with him in accordance with the terms of the statement published pursuant to paragraph (e) of whichever of sections 37(6), 38(5), 39(7), 40(5), 41(6) or 42(4) above is applicable in the case of that proposed closure.

(3) On receipt of the copy of the notice referred to in subsection (1)(a) above, a [F306 Rail Passengers’ Committee] shall—

(a) consider whether or not the proposed closure will cause any hardship;

(b) identify any reasonable means of alleviating any such hardship; and

(c) prepare, and send to the [F302 Secretary of State], a report of the conclusions which it has reached in the discharge of its functions under paragraphs (a) and (b) above;

and, for the purposes of paragraph (b) above, a [F306 Rail Passengers’ Committee] shall not conclude that any particular means of alleviating hardship is reasonable unless, balancing the cost to the [F307 Authority] (or any other public authority) of employing those means against the benefit of any alleviation thereby secured, the [F306 Rail Passengers’ Committee] is of the opinion, on the basis of the information available to it, that the expenditure involved represents good value for money.

(4) Any [F308 Rail Passengers’ Committee] which has prepared a report under subsection (3)(c) above shall send a copy of the report to the [F308 Rail Passengers’ Council] and may publish the report in any manner which it considers appropriate.

(5) For the purpose of facilitating the discharge of its functions under subsection (3) above, a [F309 Rail Passengers’ Committee] may, after consultation with the [F302 Secretary of State], hold public hearings.

(6) In deciding whether to hold a public hearing for the purposes of this section, and in conducting any such hearing, a [F309 Rail Passengers’ Committee] shall take into account such matters as may be notified to it by the [F302 Secretary of State].

(7) The report required by subsection (3)(c) above shall be sent to the [F302 Secretary of State] before the expiration of the period of 12 weeks, or such longer period as the [F302 Secretary of State] may allow in any particular case, immediately following the end of the period within which objections to the proposed closure may be lodged with the [F302 Secretary of State].

(8) The [F302 Secretary of State] shall only allow a longer period for the purposes of subsection (7) above if, on an application made to him by the [F309 Rail Passengers’ Committee] in question, he considers it appropriate to do so in the circumstances of the particular case.

(9) It shall be for the [F302 Secretary of State] to decide whether the proposed closure should, or should not, be allowed to take effect; and a decision may be given allowing the proposed closure to take effect subject to compliance with such conditions (if any) as the [F302 Secretary of State] may see fit to impose.

(10) Before deciding whether or not to allow the proposed closure to take effect, or whether to impose any and, if so, what conditions, the [F302 Secretary of State] shall consider—

(a) the reasons for the proposed closure set out in the copy of the statement sent to him pursuant to subsection (1)(b) above;

(b) any objections to the proposed closure which have been lodged with him; and

(c) every report relating to the proposed closure which is sent to him by a [F309 Rail Passengers’ Committee] pursuant to subsection (3)(c) above.

F310 (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12) When the [F302 Secretary of State] has made a decision with respect to the proposed closure, he shall send a copy of the decision to—

(a) the [F311 Regulator],

(b) the [F307 Authority],

(c) every such [F309 Rail Passengers’ Committee] as is mentioned in subsection (1) above, and

(d) either—

(i) in a case falling within section 37 above, the service operator, within the meaning of that section, or

(ii) in a case falling within section 39 or 41 above, the operator of the network, station or light maintenance depot in question who gave the notice required by subsection (1) of the section in question,

F312 . . .

[F313 (12A) The Secretary of State shall also—

(a) send a copy of the decision to every person who is the operator of a station within the area affected; and

(b) require him to publish it at the station.]

(13) In this section, “the area affected”, in relation to a proposed closure, shall be construed in accordance with the section under or by virtue of which the [F307 Authority] is required to publish the notice referred to in subsection (1) above.

Textual Amendments

F299 S. 43: words in sidenote substituted (1.2.2001) by 2000 c. 38, s. 234(3)(a) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F300 Words in s. 43 sidenote substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 4(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F301 Words in s. 43(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 28(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F302 Word in s. 43 substituted (1.2.2001) by 2000 c. 38, s. 234(3)(a) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F303 Words in s. 43(1) inserted (3.7.2000) by 1999 c. 29, s. 203 (with Sch. 12 para. 9(1)); S.I. 2000/801, art. 3, Sch Pt. 3

F304 Words in s. 43(1)(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 4(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F305 S. 43(1A) inserted (1.2.2001) by 2000 c. 38, s. 235(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F306 Words in s. 43(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 4(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F307 Words in s. 43(3)(12)(13) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 28(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F308 Words in s. 43(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 4(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F309 Words in s. 43(5)(6)(8)(10(12) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 4(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F310 S. 43(11) repealed (1.2.2001) by 2000 c. 38, ss. 234(3)(b), 274, Sch. 31 Pt. IV (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F311 Word in s. 43(12)(a) substituted (1.2.2001) by 2000 c. 38, s. 234(3)(c)(with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F312 Words in s. 43(12) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F313 S. 43(12A) inserted (1.2.2001) by 2000 c. 38, s. 235(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C22 S. 43 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

F314 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F314 S. 44 repealed (1.2.2001) by 2000 c. 38, ss. 234(4), 274, Sch. 31 Pt. IV (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

45 Closure conditions: general. E+W+S

(1) In this Part, “closure conditions” means the conditions subject to compliance with which consent to a closure is given.

(2) Closure conditions—

(a) may impose requirements on the [F315 Authority] with respect to the times at which, or stages by which, a closure is to take effect;

(b) may require the [F315 Authority] to secure the provision of [F316 an alternative service for the carriage of passengers by road (in this Part referred to as a “bus substitution service")]

(3) The provisions of this section are without prejudice to the generality of the closure conditions that may be imposed in any case.

Textual Amendments

F315 Words in s. 45(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 29; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F316 Words in s. 45(2)(b) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 27; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C23 S. 45 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

46 Variation of closure conditions. E+W+S

(1) The [F317 Secretary of State] may [F318 , subject to subsection (1A),] from time to time vary or revoke any conditions for the time being required to be complied with in connection with a closure F319 F320 . . .

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . .

[F321 (1A) The Secretary of State may not vary or revoke a condition imposed under Schedule 5 to this Act.

(1B) The Secretary of State may only—

(a) revoke a condition requiring the Authority to secure the provision of a bus substitution service, or

(b) vary such a condition so as to permit the Authority to withdraw the service from any locality or point,

in accordance with section 47B below.]

(2) Where, in exercise of his power under subsection (1) above, the [F322 Secretary of State] decides to vary or revoke any closure condition, he shall send a copy of his decision to—

(a) the [F322 Regulator],

(b) the [F323 Authority],

(c) every [F324 Rail Passengers’ Committee] whose area consists of or includes the whole or any part of the area affected by the closure to which the condition relates, and

(d) either—

(i) if the closure in question is one falling within section 37 above, the service operator, within the meaning of that section, or

(ii) if the closure in question is one falling within section 39 or 41 above, the operator of the network, station or light maintenance depot in question who gave the notice required by subsection (1) of the section in question,

and shall publish notice of the decision at every station within the area affected by the closure to which the condition relates.

F325 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In this section—

• “the area affected”, in relation to any closure, shall be construed in accordance with the section under or by virtue of which the [F323 Authority] was required to publish in connection with that closure the notice referred to in section 43(1) above;

• “closure” includes any closure within the meaning of subsection (7) of section 56 of the M20 Transport Act 1962, whether that subsection applied in relation to the closure or not.

Textual Amendments

F317 Words in s. 46(1) substituted (1.2.2001) by 2000 c. 38, s. 234(5)(a) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F318 Words in s. 46(1) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 28(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F319 Words in s. 46(1) repealed (1.2.2001) by 2000 c. 38, ss. 234(5)(a), 274, Sch. 31 Pt. IV (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F320 Words in s. 46(1) omitted (1.2.2001) by virtue of 2000 c. 38, s. 252, Sch. 27 para. 28(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F321 S. 46(1A)(1B) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 28(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F322 Words in s. 46(2) substituted (1.2.2001) by 2000 c. 38, s. 234(5)(b) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F323 Words in s. 46(2)(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 30; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F324 Words in s. 46(2)(c) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 5; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F325 S. 46(3) repealed (1.2.2001) by 2000 c. 38, ss. 234(5)(c), 275(1), Sch. 31 Pt. IV (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C24 S. 46 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

Marginal Citations

M20 1962 c. 46.

[F326 46A General determinations of minor closures. E+W+S

(1) The Authority may make a general determination for the purposes of any or all of sections 37(1), 38(2), 39(1), 40(2), 41(1) and 42(2) above that closures of a particular class or description are minor closures.

(2) Where the Authority makes or revokes a general determination under subsection (1) above, it shall—

(a) give a copy of the determination or revocation to the Regulator; and

(b) publish it in such manner as it considers appropriate.

(3) The revocation of a general determination made under subsection (1) above shall not affect any closure if its status as a minor closure by virtue of the general determination has been relied on before the revocation as the ground for not giving a notice or for discontinuing any services or the operation of the whole or part of any network or facility.]

Textual Amendments

F326 S. 46A inserted (1.2.2001) by 2000 c. 38, s. 238; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F327 46B Notification of minor closures to Regulator. E+W+S

The Authority shall notify the Regulator of every determination under section 37(1), 38(2), 39(1), 40(2), 41(1) or 42(2) above that a closure is a minor closure.]

Textual Amendments

F327 S. 46B inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 25(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F328 47 Withdrawal of bus substitution service. E+W+S

(1) Where the Authority proposes to seek—

(a) revocation of a condition requiring it to secure the provision of a bus substitution service, or

(b) variation of such a condition so as to permit the Authority to withdraw such a service from any locality or point,

it shall, not less than six weeks before the date proposed for the withdrawal of the service, publish in two successive weeks in two local newspapers circulating in the area affected, and in such other manner as appears to it appropriate, a notice complying with subsection (2) below.

(2) The notice shall—

(a) give particulars of the proposed withdrawal of service, of any alternative services which it appears to the Authority will be available and of any proposals of the Authority for securing or augmenting the provision of alternative services; and

(b) state that objections to the revocation or variation may be lodged with the appropriate Rail Passengers’ Committee within six weeks of a date specified in the notice.

(3) The date so specified shall be the date on which the notice is last published in a local newspaper as required by subsection (1) above.

(4) Copies of the notice published under subsection (1) above shall be sent to—

(a) the Rail Passengers’ Committee for the area in which any locality or point affected by the proposed withdrawal of service is situated; and

(b) the Passenger Transport Executive for any passenger transport area in which any such locality or point is situated.

(5) Where the proposed withdrawal of service relates to a service which is subsidised by the Passenger Transport Executive for any passenger transport area under any agreement made with the Authority, the Authority shall not publish a notice with respect to the proposed withdrawal under subsection (1) above without the consent of—

(a) the Executive; or

(b) the Secretary of State, who shall not give his consent before affording a reasonable opportunity to the Executive to make representations.

(6) References in this section and section 47A below to a Rail Passengers’ Committee shall be construed, in relation to the Greater London area within the meaning of section 2 above, as references to the London Transport Users’ Committee.]

Textual Amendments

F328 Ss. 47-47B substituted (1.2.2001) for s. 47 by 2000 c. 38, s. 215, Sch. 16 para. 31; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C25 S. 47 modiffied (temp.) (27.7.2005) by (The Railways Act 2005 (Transitional Provisions and Savings) Order 2005 (S.I. 2005/1738, art. 3 (with art. 4)

F329 47A Objections to withdrawal of bus substitution service. E+W+S

(1) Where a notice has been published by the Authority under section 47 above, any user of any service affected (and any body representing users of any such service) may within the period specified in the notice lodge an objection in writing with the Rail Passengers’ Committee for the area in a locality or point affected by the proposed withdrawal of service is situated.

(2) Where a Rail Passengers’ Committee receives objections pursuant to a notice under section 47 above, it shall—

(a) immediately inform the Secretary of State and the Authority;

(b) consider the objection and any representations made by the Authority; and

(c) report to the Secretary of State as soon as possible on the hardship, if any, which they consider will be caused by the proposed withdrawal of service (and the report may contain proposals for alleviating that hardship).

(3) Where objections with respect to any proposed withdrawal of service have been lodged with two or more Rail Passengers’ Committees, they may—

(a) report to the Secretary of State jointly under this section; or

(b) agree that their functions under this sections shall be delegated to one any of them.

(4) The Secretary of State may require a further report from any committee making a report to him under subsection (1) above.

(5) Copies of every report under subsection (1) or (2) above shall be sent to the Rail Passengers’ Council and to the Authority.

(6) Where the proposed withdrawal of service—

(a) relates to a service which is subsidised by the Passenger Transport Executive for a passenger transport area, or

(b) would affect a locality or point in the passenger transport area of a Passenger Transport Executive,

the Executive may, within the period specified in the notice for objecting to the withdrawal, send the Secretary of State a statement in writing that they oppose the withdrawal and of their reasons for opposing it (even if they consented to the publication of the notice).

(7) Where the Passenger Transport Executive for any passenger transport area send such a statement to the Secretary of State they shall send a copy of it to the Authority.

Textual Amendments

F329 Ss. 47-47B substituted (1.2.2001) for s. 47 by 2000 c. 38, s. 215, Sch. 16 para. 31; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C26 S. 47A modiffied (temp.) (27.7.2005) by (The Railways Act 2005 (Transitional Provisions and Savings) Order 2005 (S.I. 2005/1738, art. 3 (with art. 4)

F330 47B Revocation or variation of bus substitution conditions. E+W+S

(1) Where an objection to a proposed withdrawal of service is lodged in accordance with subsection (1) of section 47A above, the Secretary of State may revoke or vary the condition in question—

(a) when he has received the report required by subsection (3) of that section and any further report required by him under subsection (4) of that section (unless he considers that any such report has been unreasonably delayed); and

(b) after considering any statement under subsection (4) of that section.

(2) Where the Secretary of State revokes or varies a condition under subsection (1), he may—

(a) impose such conditions as he thinks fit, including a condition requiring the Authority to secure the provision of another bus substitution service; and

(b) from time to time give such directions to the Authority as he thinks fit in connection with the withdrawal of the bus substitution service required by that condition;

and such a condition may be varied or revoked as if it had been made under section 43 above.

(3) Where no objections are lodged in accordance with section 47A above, the Secretary of State shall revoke or vary the condition in question in accordance with the Authority’s proposals.

Textual Amendments

F330 Ss. 47-47B substituted (1.2.2001) for s. 47 by 2000 c. 38, s. 215, Sch. 16 para. 31; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

48 Experimental railway passenger services. E+W+S

(1) Sections 37, 38 [F331 and 43] above shall not apply in relation to any proposal to discontinue an experimental passenger service on any line or from any station.

(2) In any case where—

(a) an experimental passenger service on any line or from any station is provided in satisfaction of requirements imposed by a franchise agreement,

(b) the requirement so to provide that service comes to an end, and

(c) the operator intends to discontinue that service,

the [F332 Authority] shall give due notice if [F332 it] proposes not to secure its continued provision.

(3) In any case where—

(a) an experimental passenger service on any line or from any station is provided otherwise than as mentioned in subsection (2)(a) above, and

(b) the operator proposes to discontinue that service,

he shall give due notice of that proposal and shall not discontinue that service before the expiry of the notice period.

(4) For the purposes of subsection (2) above, the [F333 Authority] shall be taken to have given due notice of a proposal if, and only if, after consultation with every [F334 Rail Passengers’ Committee] whose area consists of or includes the whole or any part of the area affected, [F333 the Authority] has, not less than six weeks before giving effect to the proposal,—

(a) published a notice giving details of the proposal in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers and in such other manner as may appear to [F333 the Authority] appropriate; and

(b) sent a copy of that notice to every such [F334 Rail Passengers’ Committee].

(5) For the purposes of subsection (3) above, the operator shall be taken to have given due notice of a proposal if, and only if, not less than six weeks before giving effect to the proposal, he has published in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers, and in such other manner as may appear to him appropriate, a notice giving details of the proposal.

(6) In this Part “experimental passenger service”, in relation to any line or station, means a railway passenger service on that line or from that station which is designated by the [F335 Authority] as experimental and which either—

(a) was so designated before its introduction; or

(b) before being designated under this section as experimental, was at some time provided on an experimental basis, within the meaning of section 56A of the M21 Transport Act 1962.

(7) Where the [F336 Authority] decides to designate a service as experimental, [F336 it] shall—

(a) if the service is to be provided otherwise than in satisfaction of requirements imposed by a franchise agreement, give notice of the designation to the person who is to be the operator of the service;

(b) send a copy of that notice to the [F331 Secretary of State] and to every [F334 Rail Passengers’ Committee] whose area consists of or includes the whole or any part of the area affected; and

(c) publish notice of the designation in two successive weeks in a local newspaper circulating in the area affected and in two national newspapers.

(8) No service may be designated as experimental for a period exceeding 5 years.

(9) Where a service is designated as experimental for a period of less than 5 years, the designation may subsequently be extended, but the aggregate of the periods for which a service is designated as experimental shall not exceed 5 years.

(10) In determining for the purposes of subsection (8) or (9) above the period or periods for which a service is designated as experimental—

(a) there shall be left out of account so much of any period when the service was designated as experimental as falls before the day on which the service was introduced; but

(b) if the service is one which has been provided on an experimental basis, within the meaning of section 56A of the M22 Transport Act 1962, every period during which it was so provided, or during which the provisions of that section had effect in relation to it by virtue of subsection (11)(b) below, shall be counted as a period during which the service was designated as experimental.

(11) Where, immediately before the coming into force of section 49(1) below so far as relating to section 56A of the M23 Transport Act 1962 (proposals to discontinue services provided on an experimental basis), a railway passenger service is being provided on an experimental basis within the meaning of the said section 56A—

(a) none of the following provisions, that is to say, sections 37 and 38 above, section 49(2) and (3) below and Schedule 5 to this Act, shall have effect in relation to that service until such time as a franchise agreement is entered into in respect of that service or in respect of some or all of the other railway passenger services provided in the area in which, or on the line on which, that service is provided; and

(b) the provisions of the said section 56A shall continue to have effect with respect to that service—

(i) until the time mentioned in paragraph (a) above, or

(ii) until the service becomes an experimental passenger service under this section,

whichever first occurs.

(12) In this section—

• “the area affected”, in relation to an experimental service on any line or from any station, means the area in which is situated the line or, as the case may be, the station in question;

• “operator”, in relation to any service, means—

  (a)

  in the case of a service provided in satisfaction of requirements imposed by a franchise agreement, the franchisee; or

  (b)

  in the case of a service provided otherwise than in satisfaction of requirements imposed by a franchise agreement, the person who provides the service.

(13) In this Part, “notice period”, in relation to the duty of an operator to give due notice of a proposed discontinuance of an experimental passenger service, means the period of six weeks immediately following the fulfilment by the operator of that duty.

Textual Amendments

F331 Words in s. 48(1)(7) substituted (1.2.2001) by 2000 c. 38, s. 234(6) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F332 Words in s. 48(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 32(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F333 Words in s. 48(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 32(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F334 Words in s. 48(4)(7) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 Pt. I para. 6; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F335 Words in s. 48(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 32(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F336 Words in s. 48(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 32(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C27 S. 48 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

C28 S. 48 modified (temp.) (27.7.2005) by The Railways Act 2005 (Transitional Provisions and Savings) Order 2005 (S.I. 2005/1738, art. 3 (with art. 4)

C29 S. 48(3) restricted (18.12.1996) by 1996 c. 61, s. 18

Marginal Citations

M21 1962 c. 46.

M22 1962 c. 46.

M23 1962 c. 46.

49 Abolition of former closure procedures, exemptions from new procedures and imposition of alternative procedure. E+W+S

(1) The former closure provisions, that is to say—

(a) section 56(7) to (10) and (13) of the M24 Transport Act 1962,

(b) section 56A of that Act,

(c) section 54 of the M25 Transport Act 1968, and

(d) any other enactment (including an enactment comprised in local legislation) to the extent that it applies the enactments specified in paragraphs (a) to (c) above, with or without modification,

shall, subject to the provisions of this Act, cease to have effect.

(2) Section 37 above shall not have effect in relation to any railway passenger services, or any railway passenger services of a class or description, which the Secretary of State may by order designate as services in relation to which that section is not to have effect.

(3) Schedule 5 to this Act (which makes similar provision to that made by section 56(7) to (10) and (13) of the M26 Transport Act 1962) shall have effect in relation to such of the railway passenger services, or railway passenger services of a class or description, in relation to which section 37 above does not have effect as the Secretary of State may by order designate as railway passenger services in relation to which that Schedule is to have effect.

(4) Section 39 above shall not have effect with respect to any networks, or any networks of a class or description, which the Secretary of State may by order designate as networks in relation to which that section is not to have effect.

(5) Section 41 above shall not have effect in relation to any stations or light maintenance depots, or stations or light maintenance depots of a class or description, which the Secretary of State may by order designate as stations, or (as the case may be) light maintenance depots, in relation to which that section is not to have effect.

(6) Where any enactment or instrument passed or made before the relevant date contains provision to the effect that section 56 of the M27 Transport Act 1962 is not to apply in respect of the discontinuance of specified railway passenger services or railway passenger services of a specified class or description, that provision shall (notwithstanding anything in subsection (1) above) have effect in relation to any such discontinuance after the relevant date as if references in that provision to that section were references—

(a) to section 37 above; and

(b) to Schedule 5 to this Act;

and in this subsection “the relevant date” means the date on which the provisions mentioned in paragraphs (a) and (b) above come into force.

(7) Any reference in this section to railway passenger services, networks, stations or light maintenance depots includes a reference to part of a railway passenger service, network, station or light maintenance depot, as the case may be.

(8) For the purposes of this section, “railway” has its wider meaning.

Modifications etc. (not altering text)

C30 S. 49 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

C31 S. 49(3) applied (21.7.1994) by 1994 c. xi, s. 48

Marginal Citations

M24 1962 c. 46.

M25 1968 c. 73.

M26 1962 c. 46.

M27 1962 c. 46.

50 Exclusion of liability for breach of statutory duty. E+W+S

(1) The obligations of the [F337 Authority], imposed by or under any provision of this Part—

(a) to comply with any closure conditions,

F338 (b) . . .

(c) to secure the provision of any services, or

(d) to secure the operation of any additional railway asset,

shall not give rise to any form of duty or liability enforceable by civil proceedings for breach of statutory duty.

(2) Subject to section 57 below, the obligations of—

(a) any service operator (within the meaning of section 37 above), imposed by or under section 37(1) above, not to discontinue any railway passenger services,

(b) any operator (within the meaning of section 48 above), imposed by or under section 48(3) above, not to discontinue any experimental passenger services, or

(c) any operator of an additional railway asset, imposed by or under section 39(1) or 41(1) above, not to discontinue the operation of any additional railway asset,

shall not give rise to any form of duty or liability enforceable by civil proceedings for breach of statutory duty.

Textual Amendments

F337 Words in s. 50(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 33; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F338 S. 50(1)(b) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C32 S. 50 excluded (21.7.1994) by 1994 c. xv, s. 17(4)

Supplementary powers of the Franchising Director etc. E+W+S

F339 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F339 S. 51 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F340 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F340 S. 52 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F341 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F341 S. 53 repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

54 Exercise of functions for purpose of encouraging investment in the railways. E+W+S

(1) The [F342 Authority] or a Passenger Transport Authority or Passenger Transport Executive—

(a) in exercising or deciding whether or not to exercise any of [F342 their] franchising functions, may take into account the desirability of encouraging railway investment; and

(b) may exercise any such functions for the purpose of encouraging railway investment or for purposes which include that purpose.

(2) The [F343 Authority] may, for the purpose of encouraging railway investment, enter into agreements with any person under which the [F343 Authority] undertakes to exercise [F343 any of its franchising functions], to refrain from exercising such functions, or to exercise such functions in a particular manner.

(3) In this section—

• “franchising functions”, in relation to the [F344 Authority], means—

  (a)

  any [F344 of the Authority’s functions under] sections 17 to 19, 23, 24, 26 to 35 F345 . . . above;

  (b)

  any power conferred on [F344 the Authority] under or by virtue of [F346 Schedule 21 to the Transport Act 2000]; and

  (c)

  any other functions of [F344 the Authority which] relate to the provision of railway passenger services, or the operation of additional railway assets, under or by virtue of franchise agreements;

• “franchising functions”, in relation to a Passenger Transport Authority or Passenger Transport Executive, means any functions conferred or imposed on the Authority or, as the case may be, the Executive under or by virtue of section 34 above;

• “railway investment” means investment in assets for use in the provision of railway services.

Textual Amendments

F342 Words in s. 54(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 34(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F343 Words in s. 54(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 34(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F344 Words in s. 54(3) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 34(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F345 S. 54(3): words in definition of

“franchising functions”

repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F346 S. 54(3): words in definition of

“franchising functions”

substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 29; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Commencement Information

I7 S. 54 wholly in force at 1.4.1994; s. 54 not in force at Royal Assent see s. 154(2); s. 54(2)(3) in force for specified purposes at 21.3.1994 by S.I. 1994/571, art. 3; s. 54 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

Enforcement by the Regulator and the [F347 Authority] E+W+S

Textual Amendments

F347 Words in the heading before section 55 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 35(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

55 Orders for securing compliance. E+W+S

(1) Subject to subsections (2) to [F348 (5B)] and section 56 below, where the appropriate [F349 authority] is satisfied that a relevant operator is contravening, or is likely to contravene, any relevant condition or requirement, [F349 it] shall by a final order make such provision as is requisite for the purpose of securing compliance with that condition or requirement.

(2) Subject to [F350 subsections (5) to (5B)] below, where it appears to the appropriate [F349 authority]—

(a) that a relevant operator is contravening, or is likely to contravene, any relevant condition or requirement, and

(b) that it is requisite that a provisional order be made,

[F349 it] shall (instead of taking steps towards the making of a final order) by a provisional order make such provision as appears to [F349 it] requisite for the purpose of securing compliance with that condition or requirement.

(3) In determining for the purposes of subsection (2)(b) above whether it is requisite that a provisional order be made, the appropriate [F349 authority] shall have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything which, in contravention of the relevant condition or requirement, is likely to be done, or omitted to be done, before a final order may be made.

(4) Subject to [F350 subsections (5) to (5B)] and section 56 below, the appropriate [F349 authority] shall confirm a provisional order, with or without modifications, if—

(a) [F349 it] is satisfied that the relevant operator to whom the order relates is contravening, or is likely to contravene, any relevant condition or requirement; and

(b) the provision made by the order (with any modifications) is requisite for the purpose of securing compliance with that condition or requirement.

(5) The appropriate [F349 authority] shall not make a final order, or make or confirm a provisional order, in relation to a relevant operator if [F349 it] is satisfied—

(a) that the duties imposed on [F349 it] by section 4 [F351 above or, as the case may be, section 207 of the Transport Act 2000] preclude the making or, as the case may be, the confirmation of the order;

F352 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F352 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F353 (5ZA) The Authority shall not make a final order, or make or confirm a provisional order, in relation to a licence holder or person under closure restrictions unless—

(a) it has given notice to the Regulator specifying a period within which he may give notice to it if he considers that the most appropriate way of proceeding is under the M28 Competition Act 1998;

(b) that period has expired; and

(c) the Regulator has not given notice to the Authority within that period that he so considers (or, if he has, he has withdrawn it).]

[F354 (5A) The Regulator shall not make a final order, or make or confirm a provisional order, F355 . . . if [F349 it] is satisfied that the most appropriate way of proceeding is under the Competition Act 1998.]

[F356 (5B) If the appropriate authority is satisfied—

(a) that the relevant operator has agreed to take, and is taking, all such steps as it appears to the appropriate authority for the time being to be appropriate for the relevant operator to take for the purpose of securing or facilitating compliance with the condition or requirement in question, or

(b) that the contravention or apprehended contravention will not adversely affect the interests of users of railway services or lead to any increase in public expenditure,

it shall only make a final order, or make or confirm a provisional order, if it considers it appropriate to do so.]

(6) Where the appropriate [F349 authority][F357 does not make a final order, or make or confirm a provisional order, because of any provision contained in any of subsections (5) to (5B) above, it shall—

(a) serve notice of that fact] on the relevant operator; and

(b) publish the notice in such manner as [F349 it] considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

(7) A final or provisional order—

(a) shall require the relevant operator to whom it relates (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified;

(b) shall take effect at such time, being the earliest practicable time, as is determined by or under the order; and

(c) may be revoked at any time by the appropriate [F349 authority].

[F358 (7A) The provision that may be made in a final or provisional order includes, in particular, provision requiring the relevant operator to pay to the Authority in the event of any specified contravention of the order such reasonable sum in respect of the contravention as is specified in, or determined in accordance with, the order in such manner, at such place and by such date as is so specified or determined.

(7B) The amount of the sum may not exceed 10 per cent. of the turnover of the relevant operator determined in accordance with an order made by the Secretary of State; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(7C) If the whole or any part of the sum is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the M29 Judgments Act 1838.]

(9) Without prejudice to section 50 above, nothing in this section or in sections 56 to 58 below shall exclude the availability of any remedy in respect of any contravention or apprehended contravention of a relevant condition or requirement.

(10) In this Part—

• “the appropriate [F359 authority]” means—

  (a)

  in relation to any relevant condition or requirement in the case of a licence holder [F360 , apart from a condition which relates to consumer protection,]. . . the Regulator;

  (b)

  in relation to [F360 any condition relating to consumer protection in the case of a licence holder or to]any relevant condition or requirement in the case of a franchisee [F361 , a franchise operator, a person under closure restrictions or a person (other than the Authority) who is required to comply with closure conditions or has agreed to comply with conditions under section 37(1), 39(1) or 41(1) above] the [F359 Authority];

• “final order” means an order under this section, other than a provisional order;

• “provisional order” means an order under this section which, if not previously confirmed in accordance with subsection (4) above, will cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order;

• “relevant condition or requirement” means—

  (a)

  in the case of a licence holder, any condition of his licence;

  (b)

  in the case of a franchisee, or any franchise operator who is a party to the franchise agreement, any term of the franchise agreement;

  (c)

  in the case of a person under closure restrictions—

  (i)

  the duty under section 37(1), 39(1) or 41(1) above not to discontinue a railway passenger service, or the operation of the whole or any part of a network, station or light maintenance depot, before the date stated by him in accordance with section 37(3), 39(4) or 41(3) above; and

  (ii)

  the duty under section 48(3) above not to discontinue an experimental passenger service before the expiry of the notice period;

[F362 (d) in the case of a person (other than the Authority) who is required to comply with closure conditions or has agreed to comply with conditions under section 37(1), 39(1) or 41(1) above, any of those conditions;]

“relevant operator” means any licence holder, franchisee, franchise operator who is a party to the franchise agreement [F363 , person under closure restrictions or person who is required to comply with closure conditions or has agreed to comply with conditions under section 37(1), 39(1) or 41(1) above].

(11) In [F364 subsections [F365 (5ZA)]and (10)]above, “person under closure restrictions” means a person—

(a) who proposes a closure in circumstances such that he is required by any provision of this Part to give notice of the proposal to the [F366 Authority]; or

(b) who proposes to discontinue an experimental passenger service in circumstances such that he is required by section 48 above to give due notice of the proposal.

F367 (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F348 Words in s. 55(1) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 30(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F349 Words in s. 55(1)-(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 35(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F350 Words in s. 55(2)(4) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 30(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F351 Words in s. 55(5)(a) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 30(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F352 S. 55(5)(b)(c) repealed (1.2.2001) by 2000 c. 38, ss. 226(1)(a), 274, Sch. 31 Pt. IV (with Sch. 28 paras. 9, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F353 S. 55(5ZA) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 11(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F354 S. 55(5A) inserted (1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. IV para. 15(6) (with s. 73); S.I. 2000/344, art. 2, Sch.

F355 Words in s. 55(5A) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F356 S. 55(5B) inserted (1.2.2001) by 2000 c. 38, s. 226(1)(b) (with Sch. 28 paras. 9, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F357 Words in s. 55(6) substituted (1.2.2001) by 2000 c. 38, s. 226(1)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F358 S. 55(7A)(7B)(7C) substituted (1.2.2001) for s. 55(8) by 2000 c. 38, s. 225(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F359 Words in s. 55(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 35(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F360 Words in s. 55(10) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 11(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F361 Words in s. 55(10) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 26(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F362 S. 55(10): definition of

“relevant condition or requirement”

para. (d) inserted (1.2.2001) by 2000 c. 38, s. 236(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F363 S. 55(10): words in definition of

“relevant operator”

substituted (1.2.2001) by 2000 c. 38, s. 236(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F364 Words in s. 55(11) substituted (1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. IV para. 15(7)(b) (with s. 73); S.I. 2000/344, art. 2, Sch.

F365 Word in s. 55(11) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 11(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F366 Words in s. 55(11) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 35(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F367 S. 55(12) repealed (1.2.2001) by 2000 c. 38, ss. 252, 274, Sch. 27 para. 30(5), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M28 1998 c. 41.

M29 1838 c. 110.

56 Procedural requirements [F368 for section 55 orders]. E+W+S

(1) Before [F369 it] makes a final order or confirms a provisional order, the appropriate [F370 authority] shall give notice—

(a) stating that [F369 it] proposes to make or confirm the order and setting out its effect,

(b) setting out—

(i) the relevant condition or requirement for the purpose of securing compliance with which the order is to be made or confirmed,

(ii) the acts or omissions which, in [F371 its] opinion, constitute or would constitute contraventions of that condition or requirement, and

(iii) the other facts which, in [F371 its] opinion, justify the making or confirmation of the order, and

(c) specifying the period (not being less than [F372 21] days from the date of publication of the notice) within which representations or objections with respect to the proposed order or proposed confirmation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under subsection (1) above shall be given—

(a) by publishing the notice in such manner as the appropriate [F370 authority] considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, on the relevant operator to whom the order relates.

[F373 (2A) Where the Regulator serves a copy of a notice under subsection (1) above on a licence holder, he shall also serve a copy on the Authority; and where the Authority so serves a copy of such a notice, it shall also serve a copy on the Regulator.]

(3) The appropriate [F370 authority] shall not make a final order with modifications, or confirm a provisional order with modifications, except—

(a) with the consent to the modifications of the relevant operator to whom the order relates; or

(b) after complying with the requirements of subsection (4) below.

(4) The requirements mentioned in subsection (3) above are that the appropriate [F370 authority] shall—

(a) serve on the relevant operator to whom the order relates such notice as appears to him requisite of [F371 its] proposal to make or confirm the order with modifications;

(b) [F374 unless the proposed modifications are trivial, in that notice specify a period (not being less than seven] from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c) consider any representations or objections which are duly made and not withdrawn.

(5) As soon as practicable after making a final order or making or confirming a provisional order, the appropriate [F370 authority] shall—

(a) serve a copy of the order on the relevant operator to whom the order relates; and

(b) publish the order in such manner as [F369 it] considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

(6) Before revoking a final order or a provisional order which has been confirmed, the appropriate [F370 authority] shall give notice—

(a) stating that [F369 it] proposes to revoke the order and setting out the effect of its revocation, and

(b) specifying the period (not being less than [F375 21] days from the date of publication of the notice) within which representations or objections with respect to the proposed revocation may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(7) If, after giving notice under subsection (6) above, the appropriate [F370 authority] decides not to revoke the order to which the notice relates, [F369 it] shall give notice of [F371 its] decision.

(8) A notice under subsection (6) or (7) above shall be given—

(a) by publishing the notice in such manner as the appropriate [F370 authority] considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them; and

(b) by serving a copy of the notice on the relevant operator to whom the order relates.

Textual Amendments

F368 Words in s. 56 sidenote inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 31; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F369 Word in s. 56 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 36(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F370 Word in s. 56 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 36(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F371 Word in s. 56 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 36(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F372 Word in s. 56(1)(c) substituted (1.2.2001) by 2000 c. 38, s. 226(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F373 S. 56(2A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 12 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F374 Words in s. 56(4)(b) substituted (1.2.2001) by 2000 c. 38, s. 226(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F375 Words in s. 56(6)(b) substituted (1.2.2001) by 2000 c. 38, s. 226(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

57 Validity and effect of [F376 section 55] orders. E+W+S

(1) If the relevant operator to whom a final or provisional order relates is aggrieved by the order and desires to question its validity on the ground—

(a) that its making or confirmation was not within the powers of section 55 above, or

(b) that any of the requirements of section 56 above have not been complied with in relation to it,

he may, within 42 days from the date of service on him of a copy of the order, make an application to the court under this section.

(2) On any such application the court, if satisfied that the making or confirmation of the order was not within those powers or that the interests of the relevant operator have been substantially prejudiced by a failure to comply with those requirements—

(a) may quash the order or any provision of the order; F377 . . .

F378 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F379 (2A) If such an application is made in relation to a provision of an order requiring the payment of a sum in the event of a contravention and the sum would be payable before the time when the application is determined, it need not be paid until that time.

(2B) Where such an application is so made the court, if satisfied as mentioned in subsection (2) above, may (instead of quashing the order or the provision of the order) make provision under either or both of paragraphs (a) and (b) of subsection (2C) below.

(2C) The provision referred to in subsection (2B) above is—

(a) provision substituting for the sum, or provision for determining a sum, specified in the order such lesser sum, or such other provision for determining a sum, as the court considers appropriate in all the circumstances of the case; and

(b) provision substituting for the date by which the sum is to be paid specified in or determined in accordance with the order such later date as the court considers appropriate in all the circumstances of the case.

(2D) Where the court substitutes a lesser sum, or different provision for determining a sum, it may require the payment of interest on the new sum at such rate, and from such date, as it determines; and where it specifies as the date by which the sum is to be paid a date before the determination of the application it may require the payment of interest on the sum from that date at such rate as it determines.]

(3) Except as provided by this section, the validity of a final or provisional order shall not be questioned by any legal proceedings whatever.

(4) The obligation to comply with a final or provisional order shall be a duty owed to any person who may be affected by a contravention of the order.

(5) Where a duty is owed by virtue of subsection (4) above to any person, any breach of the duty which causes that person to sustain loss or damage shall be actionable at the suit or instance of that person.

(6) In any proceedings brought against a relevant operator in pursuance of subsection (5) above, it shall be a defence for him to prove that he took all reasonable steps and exercised all due diligence to avoid contravening the order.

(7) Without prejudice to any right which any person may have by virtue of subsection (5) above to bring civil proceedings in respect of any contravention or apprehended contravention of a final or provisional order, compliance with any such order shall be enforceable by civil proceedings by the appropriate [F380 authority] for an injunction or for interdict or for any other appropriate relief or remedy.

(8) Where a relevant operator to whom a final or provisional order relates has made an application pursuant to subsection (1) above questioning the validity of that order, the making of that application shall not affect—

(a) his obligation to comply with the order, or

(b) the right which any person may have to bring civil proceedings against him in pursuance of subsection (5) or (7) above.

(9) In this section and [F381 sections 57F and 58] below “the court” means the High Court in relation to England and Wales and the Court of Session in relation to Scotland.

Textual Amendments

F376 Words in s. 57 sidenote inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 32(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F377 S. 57(2)(b) and word “or" immediately preceding it repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F378 S. 57(2)(b) omitted (1.2.2001) by virtue of 2000 c. 38, s. 252, Sch. 27 para. 32(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F379 S. 57(2A)-(2D) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 32(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F380 Word in s. 57(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 37; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F381 Words in s. 57(9) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 32(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C33 S. 57 applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(c)

[F382 57A Penalties. E+W+S

(1) If the appropriate authority is satisfied that a relevant operator has contravened or is contravening—

(a) a relevant condition or requirement, or

(b) a final or provisional order made by the appropriate authority,

the appropriate authority may impose on the relevant operator a penalty of such amount as is reasonable.

(2) A penalty is payable to the Authority.

(3) The amount of a penalty imposed on a relevant operator may not exceed 10 per cent. of his turnover determined in accordance with an order made by the Secretary of State; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.

(4) No penalty may be imposed in respect of any contravention of a final or provisional order if provision was made in the order by virtue of section 55(7A) above in relation to the contravention.

(5) The Authority shall not impose a penalty on a licence holder or person under closure restrictions unless—

(a) it has given notice to the Regulator specifying a period within which he may give notice to it if he considers that the most appropriate way of proceeding is under the M30 Competition Act 1998;

(b) that period has expired; and

(c) the Regulator has not given notice to the Authority within that period that he so considers (or, if he has, he has withdrawn it).

(6) The Regulator shall not impose a penalty if he is satisfied that the most appropriate way of proceeding is under the M31 Competition Act 1998.]

Textual Amendments

F382 Ss. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M30 1998 c. 41.

M31 1998 c. 41.

F383 57B Statement of policy. E+W+S

(1) The Authority and the Regulator shall each prepare and publish a statement of policy with respect to the imposition of penalties and the determination of their amount.

(2) A statement of policy may include provision for a decision whether to impose a penalty, or the determination of the amount of any penalty, in respect of the contravention of any relevant condition or requirement or order to be influenced by—

(a) the desirability of securing compliance with that relevant condition or requirement or order;

(b) the consequences or likely consequences of anything which has been or is being done or omitted to be done in contravention of that relevant condition or requirement or order; and

(c) the desirability of deterring contraventions of relevant conditions and requirements and final and provisional orders.

(3) In deciding whether to impose a penalty, and in determining the amount of any penalty, in respect of a contravention the Authority and Regulator shall have regard to any statement of its or his policy published at the time when the contravention occurred.

(4) The Authority and Regulator—

(a) may at any time alter or replace a statement of his or its policy; and

(b) shall publish the altered or replacement statement.

(5) The Authority and Regulator shall undertake appropriate consultation when preparing, altering or replacing a statement of policy.

(6) The Authority and Regulator shall publish a statement of policy in the manner that appears most suitable for bringing it to the attention of those likely to be affected by it.

(7) This section applies in relation to sums required to be paid by virtue of section 55(7A) above as to penalties, but as if—

(a) references to the imposition of penalties were to the inclusion in an order of a requirement to pay a sum;

(b) references to relevant conditions or requirements were omitted; and

(c) the reference in subsection (2)(b) above to anything which has been or is being done or omitted to be done included a reference to anything which is likely to be done or omitted to be done.

Textual Amendments

F383 Ss. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F384 57C Procedural requirements for penalties. E+W+S

(1) Before it imposes a penalty on a relevant operator, the appropriate authority shall give notice—

(a) stating that it proposes to impose a penalty on the relevant operator and the amount of the penalty proposed,

(b) setting out the relevant condition or requirement or order in question,

(c) specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or order and the other facts which, in its opinion, justify the imposition of a penalty and the amount of the penalty proposed,

(d) specifying the manner in which, and place at which, it is proposed to require the penalty to be paid, and

(e) specifying the period (not being less than 21 days from the date of publication of the notice) within which representations or objections with respect to the proposed penalty may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(2) A notice under subsection (1) above shall be given—

(a) by publishing the notice in such manner as the appropriate authority considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(3) Where the Regulator serves a copy of a notice under subsection (1) above on a licence holder, he shall also serve a copy on the Authority; and where the Authority so serves a copy of such a notice, it shall also serve a copy on the Regulator.

(4) The appropriate authority shall not modify a proposal to impose a penalty except—

(a) with the consent of the relevant operator;

(b) where the modifications consist of a reduction of the amount of the penalty or a deferral of the date by which it is to be paid; or

(c) after complying with the requirements of subsection (5) below.

(5) The requirements mentioned in subsection (4)(c) above are that the appropriate authority shall—

(a) give to the relevant operator such notice as appears to it requisite of its modified proposal;

(b) unless the proposed modifications are trivial, in that notice specify a period (not being less than seven days from the date of service of the notice) within which representations or objections with respect to the proposed modifications may be made; and

(c) consider any representations or objections which are duly made and not withdrawn.

(6) As soon as practicable after imposing a penalty, the appropriate authority shall give notice—

(a) stating that it has imposed a penalty on the relevant operator and its amount;

(b) setting out the relevant condition or requirement or order in question;

(c) specifying the acts or omissions which, in its opinion, constitute contraventions of that condition or requirement or order and the other facts which, in its opinion, justify the imposition of the penalty and its amount;

(d) specifying the manner in which, and place at which, the penalty is to be paid; and

(e) specifying the date (not being less than fourteen days from the date of publication of the notice) by which the penalty is to be paid.

(7) A notice under subsection (6) above shall be given—

(a) by publishing the notice in such manner as the appropriate authority considers appropriate; and

(b) by serving a copy of the notice on the relevant operator.

(8) The relevant operator may, within 21 days of the date of service on him of the notice under subsection (6) above, make an application to the appropriate authority for it to specify different dates by which different portions of the penalty are to be paid.

Textual Amendments

F384 Ss. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F385 57D Time limits. E+W+S

(1) No penalty may be imposed in respect of a contravention by a relevant operator—

(a) by virtue of paragraph (a) of subsection (1) of section 57A above in a case where no final or provisional order has been made in relation to the contravention, or

(b) by virtue of paragraph (b) of that subsection,

unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator within two years of the time of the contravention.

(2) No penalty may be imposed in respect of a contravention by a relevant operator by virtue of section 57A(1)(a) above in a case where a final or provisional order has been made in relation to the contravention unless a copy of the notice relating to the penalty under section 57C(1) above is served on the relevant operator—

(a) within three months of the confirmation of the provisional order or the making of the final order; or

(b) where the provisional order is not confirmed, within six months of the making of the provisional order.

Textual Amendments

F385 S. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C34 S. 57D applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(c)

F386 57E Interest and payment of instalments. E+W+S

(1) If the whole or any part of a penalty is not paid by the date by which it is to be paid, the unpaid balance from time to time shall carry interest at the rate for the time being specified in section 17 of the M32 Judgments Act 1838.

(2) If an application is made under subsection (8) of section 57C above in relation to a penalty, the penalty need not be paid until the application has been determined.

(3) If the appropriate authority grants an application under that subsection in relation to a penalty but any portion of the penalty is not paid by the date specified in relation to it by the appropriate authority under that subsection, so much of the penalty as has not already been paid is to be paid immediately.

Textual Amendments

F386 S. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C35 S. 57E applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(c)

Marginal Citations

M32 1838 c. 110.

F387 57F Validity and effect of penalties. E+W+S

(1) If the relevant operator to whom a penalty order relates is aggrieved by a penalty and desires to question its validity on the ground—

(a) that it was not within the powers of section 57A above,

(b) that any of the requirements of section 57C above have not been complied with in relation to it and his interests have been substantially prejudiced by the non-compliance, or

(c) that it was unreasonable of the appropriate authority not to grant an application under section 57C(8) above;

he may make an application to the court under this section.

(2) An application under this section by a person shall be made—

(a) where it is on the ground mentioned in subsection (1)(c) above, within 42 days from the date on which he is notified of the decision not to grant the application under section 57C(8) above, and

(b) in any other case, within 42 days from the date of service on him of the notice under section 57C(6) above.

(3) If an application is made under this section in relation to a penalty, the penalty need not be paid until the application has been determined.

(4) On an application under this section on the ground mentioned in subsection (1)(a) or (b) above the court, if satisfied that the ground is established, may quash the penalty or (instead of quashing it) make provision under either or both of paragraphs (a) and (b) of subsection (5) below.

(5) The provision referred to in subsection (4) above is—

(a) provision substituting a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case; and

(b) provision substituting as the date by which the penalty, or any portion of the penalty, is to be paid a date later than that specified in the notice under section 57C(6) above.

(6) On an application under this section on the ground mentioned in subsection (1)(c) above the court, if satisfied that the ground is established, may specify different dates by which different portions of the penalty are to be paid.

(7) Where the court substitutes a penalty of a lesser amount it may require the payment of interest on the substituted penalty at such rate, and from such date, as it determines; and where it specifies as the date by which the penalty, or a portion of the penalty, is to be paid a date before the determination of the application it may require the payment of interest on the penalty, or portion, from that date at such rate as it determines.

(8) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever.

Textual Amendments

F387 Ss. 57A-57F inserted (1.2.2001) by 2000 c. 38, s. 225(1) (with Sch. 28 paras. 6-8, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

58 Power to require information etc [F388 for purposes of sections 55 and 57A]. E+W+S

(1) Where it appears to the appropriate [F389 authority] that a relevant operator [F390 may have contravened or be contravening—

(a) a relevant condition or requirement, or

(b) a final or provisional order made by the appropriate authority,

the] appropriate [F389 authority] may, for any purpose connected with such of [F389 its] functions under section 55 [F391 or 57A] above as are exercisable in relation to that matter, serve a notice under subsection (2) below on any person.

(2) A notice under this subsection is a notice signed by the appropriate [F392 authority] and—

(a) requiring the person on whom it is served to produce, at a time and place specified in the notice, to the appropriate [F392 authority] or to any person appointed by the appropriate [F392 authority] for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or

(b) requiring that person, if he is carrying on a business, to furnish, at a time and place and in the form and manner specified in the notice, to the appropriate [F392 authority] such information as may be specified or described in the notice.

(3) No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.

(4) A person who without reasonable excuse fails to do anything required of him by notice under subsection (2) above is guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (2) above to produce is guilty of an offence and shall be liable—

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

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

(6) If a person makes default in complying with a notice under subsection (2) above, the court may, on the application of the appropriate [F392 authority], make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

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

Textual Amendments

F388 Words in s. 58 sidenote inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 33(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F389 Word in s. 58(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 38(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F390 Words in s. 58(1) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 33(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F391 Words in s. 58(1) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 33(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F392 Word in s. 58(2)(6) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 38(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C36 S. 58 applied (with modifications) (28.11.2005) by The Railway (Licensing of Railway Undertakings) Regulations 2005 (S.I. 2005/3050), reg. 14, Sch. 3 para. 1(c)

Railway administration orders, winding up and insolvency E+W+S

59 Meaning and effect of railway administration order. E+W+S

(1) A “railway administration order” is an order of the court made in accordance with section 60, 61 or 62 below in relation to a protected railway company and directing that, during the period for which the order is in force, the affairs, business and property of the company shall be managed, by a person appointed by the court,—

(a) for the achievement of the purposes of such an order; and

(b) in a manner which protects the respective interests of the members and creditors of the company.

(2) The purposes of a railway administration order made in relation to any company shall be—

(a) the transfer to another company, or (as respects different parts of its undertaking) to two or more different companies, as a going concern, of so much of the company’s undertaking as it is necessary to transfer in order to ensure that the relevant activities may be properly carried on; and

(b) the carrying on of those relevant activities pending the making of the transfer.

(3) Schedule 6 to this Act shall have effect for applying provisions of the M33 Insolvency Act 1986 where a railway administration order is made.

(4) Schedule 7 to this Act shall have effect for enabling provision to be made with respect to cases in which, in pursuance of a railway administration order, another company is to carry on all or any of the relevant activities of a protected railway company in place of that company.

(5) Without prejudice to paragraph 20 of Schedule 6 to this Act, the power conferred by section 411 of the M34 Insolvency Act 1986 to make rules shall apply for the purpose of giving effect to the railway administration order provisions of this Act as it applies for the purpose of giving effect to Parts I to VII of that Act, but taking any reference in that section to those Parts as a reference to those provisions.

(6) For the purposes of this Part—

(a) “protected railway company” means a company which is both a private sector operator and the holder of—

(i) a passenger licence; or

(ii) a network licence, a station licence or a light maintenance depot licence; and

(b) the “relevant activities”, in relation to a protected railway company, are—

(i) in the case of a company which is the holder of a passenger licence, the carriage of passengers by railway; or

(ii) in the case of a company which is the holder of a network licence, a station licence or a light maintenance depot licence, the management of a network, a station or a light maintenance depot, according to the description of licence in question.

(7) In this section—

• “business” and “property” have the same meaning as they have in the M35 Insolvency Act 1986;

• “the court”, in the case of any protected railway company, means the court having jurisdiction to wind up the company;

• “the railway administration order provisions of this Act” means this section, sections 60 to 65 below and Schedules 6 and 7 to this Act.

Modifications etc. (not altering text)

C37 S. 59(6) modified (18.12.1996) by 1996 c. 61, s. 19(1)

Marginal Citations

M33 1986 c. 45.

M34 1986 c. 45.

M35 1986 c. 45.

60 Railway administration orders made on special petitions. E+W+S

(1) If, on an application made to the court by petition presented—

(a) by the Secretary of State, or

(b) if the petition relates to a protected railway company which is the holder of a passenger licence, by the [F393 Authority] with the consent of the Secretary of State,

the court is satisfied that either or both of the grounds specified in subsection (2) below is satisfied in relation to that protected railway company, the court may make a railway administration order in relation to that company.

(2) The grounds mentioned in subsection (1) above are, in relation to any company,—

(a) that the company is or is likely to be unable to pay its debts;

(b) that, in a case in which the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the company under section 124A of the 1986 Act (petition by the Secretary of State following inspectors’ report etc), it would be just and equitable, as mentioned in that section, for the company to be wound up.

(3) Notice of any petition under this section for a railway administration order shall be given forthwith to such persons and in such manner as may be prescribed by rules made under section 411 of the 1986 Act; and no such petition shall be withdrawn except with the leave of the court.

(4) Subsections (4) and (5) of section 9 of the 1986 Act (powers on application for administration order) shall apply on the hearing of the petition for a railway administration order in relation to any company as they apply on the hearing of a petition for an administration order.

(5) Subsections (1), (2), (4) and (5) of section 10 of the 1986 Act (effect of petition) shall apply in the case of a petition for a railway administration order in relation to any company as if—

(a) the reference in subsection (1) to an administration order were a reference to a railway administration order;

(b) paragraph (b) of that subsection did require the leave of the court for the taking of any of the steps mentioned in paragraphs (b) and (c) of subsection (2) (appointment of, and exercise of functions by, administrative receiver); and

(c) the reference in paragraph (c) of subsection (1) to proceedings included a reference to any proceedings under or for the purposes of section 55 [F394 or 57A] above.

(6) For the purposes of this section a company is unable to pay its debts if—

(a) it is a company which is deemed to be so unable under section 123 of the 1986 Act (definition of inability to pay debts); or

(b) it is an unregistered company, within the meaning of Part V of the 1986 Act, which is deemed, by virtue of any of sections 222 to 224 of that Act, to be so unable for the purposes of section 221 of that Act (winding up of unregistered companies).

(7) In this section—

• “the 1986 Act” means the M36 Insolvency Act 1986;

• “the court” has the same meaning as in section 59 above.

Textual Amendments

F393 Word in s. 60(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 39; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F394 Words in s. 60(5)(c) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 34; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C38 S. 60 modified (18.12.1996) by 1996 c. 61, s. 19(3)

S. 60 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

C39 S. 60(1)(b) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

Marginal Citations

M36 1986 c. 45.

61 Restriction on making winding-up order in respect of protected railway company. E+W+S

(1) Where a petition for the winding up of a protected railway company is presented by a person other than the Secretary of State, the court shall not make a winding-up order in relation to that company on that petition unless—

(a) notice of the petition has been served on—

(i) the Secretary of State; and

(ii) the [F395 Authority], if the protected railway company is the holder of a passenger licence; and

(b) a period of at least fourteen days has elapsed since the service of that notice.

(2) Where a petition for the winding up of a protected railway company has been presented—

(a) the Secretary of State, or

(b) if the company is the holder of a passenger licence, the [F395 Authority] with the consent of the Secretary of State,

may, at any time before a winding-up order is made on the petition, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of a winding-up order.

(3) Where, on a petition for the winding up of a protected railway company, the court makes, or proposes to make, a railway administration order by virtue of subsection (2) above, subsections (4) and (5) of section 9 of the M37 Insolvency Act 1986 (powers on application for administration order) shall apply on the hearing of that petition as they apply on the hearing of a petition for an administration order.

(4) In this section “the court” has the same meaning as in section 59 above.

Textual Amendments

F395 Words in s. 61 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 40; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C40 S. 61 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

C41 S. 61(1)(a)(ii) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

C42 S. 61(2)(b) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

Marginal Citations

M37 1986 c. 45.

62 Restrictions on voluntary winding up and insolvency proceedings in the case of protected railway companies. E+W+S

(1) No resolution for voluntary winding up shall be passed by a protected railway company without leave of the court granted on an application made for the purpose by the company.

(2) No such leave shall be granted unless—

(a) notice of the application has been served on—

(i) the Secretary of State; and

(ii) the [F396 Authority], if the protected railway company is the holder of a passenger licence; and

(b) a period of at least fourteen days has elapsed since the service of that notice.

(3) Where an application for leave under subsection (1) above has been made by a protected railway company—

(a) the Secretary of State, or

(b) if the company is the holder of a passenger licence, the [F396 Authority] with the consent of the Secretary of State,

may, at any time before leave has been granted under subsection (1) above, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of granting leave under subsection (1) above.

(4) Where, on an application for leave under subsection (1) above, the court makes, or proposes to make, a railway administration order by virtue of subsection (3) above, subsections (4) and (5) of section 9 of the M38 Insolvency Act 1986 (powers on application for administration order) shall apply on the hearing of that application as they apply on the hearing of a petition for an administration order.

(5) No administration order under Part II of the M39 Insolvency Act 1986 shall be made in relation to a protected railway company unless—

(a) notice of the application for the order has been served on—

(i) the Secretary of State; and

(ii) the [F396 Authority], if the protected railway company is the holder of a passenger licence; and

(b) a period of at least fourteen days has elapsed since the service of that notice.

(6) Where an application for an administration order under Part II of the M40 Insolvency Act 1986 has been made in the case of a protected railway company—

(a) the Secretary of State, or

(b) if the company is the holder of a passenger licence, the [F396 Authority] with the consent of the Secretary of State,

may, at any time before such an order has been made on that application, make an application to the court for a railway administration order in relation to that company; and where such an application is made the court may, if it is satisfied as mentioned in section 60(1) above, make a railway administration order instead of an administration order under Part II of the M41 Insolvency Act 1986.

(7) No step shall be taken by any person to enforce any security over a protected railway company’s property, except where that person has served fourteen days’ notice of his intention to take that step on—

(a) the Secretary of State; and

(b) the [F396 Authority], if the company is the holder of a passenger licence.

(8) In this section—

• “the court” has the same meaning as in section 59 above;

• “resolution for voluntary winding up” has the same meaning as in the M42 Insolvency Act 1986;

• “security” and “property” have the same meaning as in the M43 Insolvency Act 1986.

Textual Amendments

F396 Words in s. 62 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 41; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C43 S. 62 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

C44 S. 62(2)(a)(ii) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

C45 S. 62(3)(b) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

C46 S. 62(5)(a)(ii) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

C47 S. 62(6)(b) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

C48 S. 62(7)(b) modified (18.12.1996) by 1996 c. 61, s. 19(2)(a)

Marginal Citations

M38 1986 c. 45.

M39 1986 c. 45.

M40 1986 c. 45.

M41 1986 c. 45.

M42 1986 c. 45.

M43 1986 c. 45.

63 Government financial assistance where railway administration orders made. E+W+S

(1) Where a railway administration order is for the time being in force in relation to a company, the Secretary of State may, with the consent of the Treasury—

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

(b) agree to indemnify the person appointed to achieve the purposes of the order in respect of liabilities incurred and loss or damage sustained by that person in connection with the carrying out of his functions under the order.

(2) The Secretary of State may, with the consent of the Treasury, guarantee, in such manner and on such conditions as he may think fit, the repayment of the principal of, the payment of interest on and the discharge of any other financial obligation in connection with any sum which is borrowed from any person by a company in relation to which a railway administration order is in force at the time when the guarantee is given.

(3) Without prejudice to any provision applied in relation to the company by Schedule 6 to this Act—

(a) the terms and conditions on which a grant is made to any company under this section may require the whole or a part of the grant to be repaid to the Secretary of State if there is a contravention of the other terms and conditions on which the grant is made; and

(b) any loans which the Secretary of State makes to a company under this section shall be repaid to him at such times and by such methods, and interest on the loans shall be paid to him at such rates and at such times, as he may, with the consent of the Treasury, from time to time direct.

(4) Any grant or loan made under this section and any sums required to be paid by the Secretary of State in respect of an indemnity given under this section shall be paid out of money provided by Parliament.

(5) Any sums received under subsection (3) above by the Secretary of State shall be paid into the Consolidated Fund.

Modifications etc. (not altering text)

C49 S. 63 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

64 Guarantees under section 63. E+W+S

(1) This section applies in relation to any guarantee given by the Secretary of State under section 63 above.

(2) Immediately after a guarantee to which this section applies is given, the Secretary of State shall lay a statement of the guarantee before each House of Parliament.

(3) Where any sum is paid out for fulfilling a guarantee to which this section applies, the Secretary of State shall, as soon as possible after the end of each financial year (beginning with that in which the sum is paid out and ending with that in which all liability in respect of the principal of the sum and in respect of the interest thereon is finally discharged), lay before each House of Parliament a statement relating to that sum.

(4) Any sums required by the Secretary of State for fulfilling a guarantee to which this section applies shall be paid out of money provided by Parliament.

(5) Without prejudice to any provision applied in relation to the relevant company by Schedule 6 to this Act, if any sums are paid out in fulfilment of a guarantee to which this section applies, the relevant company shall make to the Secretary of State, at such times and in such manner as the Secretary of State may from time to time direct—

(a) payments of such amounts as the Secretary of State may so direct in or towards repayment of the sums so paid out; and

(b) payments of interest, at such rate as the Secretary of State may so direct, on what is outstanding for the time being in respect of sums so paid out;

and the consent of the Treasury shall be required for the giving of a direction under this subsection.

(6) Any sums received by the Secretary of State under subsection (5) above shall be paid into the Consolidated Fund.

(7) In subsection (5) above “the relevant company” in relation to a guarantee, means the company which borrowed the sums in respect of which the guarantee was given.

Modifications etc. (not altering text)

C50 S. 64 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

Valid from 16/10/2005

[F397 64A Financial assistance by Scottish Ministers E+W+S

(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.]

Textual Amendments

F397 S. 64A inserted (16.10.2005) by Railways Act 2005 (c. 14), ss. 50(2), 60; S.I. 2005/2812, art. 2(1), Sch. 1

65 Meaning of “company" and application of provisions to unregistered, foreign and other companies. E+W+S

(1) In the railway administration order provisions of this Act—

• “company” means—

  (a)

  any company formed and registered under the M44 Companies Act 1985 or any existing company within the meaning given in section 735(1) of that Act; and

  (b)

  any unregistered company; and

• “unregistered company” has the meaning given in Part V of the 1986 Act.

(2) In the application of section 59(1) above in a case where the protected railway company there mentioned is a foreign company, the reference to the affairs, business and property of the company shall be taken as a reference to the affairs and business of the company, so far as carried on in Great Britain, and the property of the company within Great Britain.

(3) In the application of section 9(5) of the 1986 Act by virtue of subsection (4) of section 60 above or subsection (3) of section 61 above where the petition mentioned in the subsection in question relates to a company which is a foreign company, the reference to restricting the exercise of any powers of the directors or of the company shall be taken as a reference to restricting—

(a) the exercise within Great Britain of the powers of the directors or of the company; or

(b) any exercise of those powers so far as relating to the affairs, business or property of the company in Great Britain.

(4) In the application of provisions in section 10 of the 1986 Act by virtue of subsection (5) of section 60 above where the company mentioned in that subsection is a foreign company—

(a) paragraph (a) of subsection (1) shall be omitted;

(b) any reference in paragraph (b) or (c) of that subsection to property or goods shall be taken as a reference to property or (as the case may be) goods for the time being situated within Great Britain;

(c) in paragraph (c) of that subsection—

(i) the reference to the commencement or continuation of proceedings shall be taken as a reference to the commencement or continuation of proceedings in Great Britain; and

(ii) the reference to the levying of distress against the company shall be taken as a reference to the levying of distress against the foreign company to the extent of its property in England and Wales; and

(d) any reference in subsection (2) to an administrative receiver shall be taken to include a reference to any person performing, in relation to the foreign company, functions equivalent to those of an administrative receiver, within the meaning of section 251 of the 1986 Act.

(5) Subsections (1) to (4) of section 62 above shall not have effect in relation to a protected railway company which is a foreign company.

(6) In the application of subsection (7) of that section where the protected railway company there mentioned is a foreign company, the reference to the company’s property shall be taken as a reference to such of its property as is for the time being situated in Great Britain.

(7) In this section—

• “the 1986 Act” means the M45 Insolvency Act 1986;

• “foreign company” means a company incorporated outside Great Britain;

• “the railway administration order provisions of this Act” means sections 59 to 64 above, this section and Schedules 6 and 7 to this Act.

Modifications etc. (not altering text)

C51 S. 65 restricted (18.12.1996) by 1996 c. 61, s. 19(7)

Marginal Citations

M44 1985 c. 6.

M45 1986 c. 45.

Consumer protection U.K.

66 Amendments of the Fair Trading Act 1973. U.K.

(1) In section 50 of the 1973 Act, at the beginning of subsection (2) (which prohibits the making of a monopoly reference by the Director General of Fair Trading in connection with monopoly situations arising in relation to the supply of certain goods and services, including the supply of railway services) there shall be inserted the words “Subject to subsection (2A) of this section" and after that subsection there shall be inserted—

“(2A) Subsection (2) of this section shall not preclude the making of a monopoly reference by the Director with respect to the existence or possible existence of a monopoly situation in relation to the supply of such services as are specified in paragraph 5 of Schedule 5 to this Act in Great Britain, except in relation to the supply of any such services by—

(a) a body corporate to which section 16 of this Act applies;

(b) a subsidiary, within the meaning of section 736 of the M46 Companies Act 1985, of any such body corporate; or

(c) a publicly owned railway company, within the meaning of the Railways Act 1993.”

(2) In section 51 of that Act, in subsection (3) (which specifies those Ministers the consent of one or more of whom is required before the Secretary of State for Trade and Industry may make a monopoly reference under that section in connection with monopoly situations arising in relation to the supply of certain goods and services, including the supply of railway services) after the words “the Secretary of State for the Environment," there shall be inserted the words “ the Secretary of State for Transport, ”.

(3) For the purposes of sections 64 to 77 of that Act (merger references), where a person enters into a franchise agreement as a franchisee, there shall be taken to be brought under his control an enterprise, within the meaning of section 63(2) of that Act, engaged in the supply of the railway services to which the agreement relates.

(4) In section 137 of the 1973 Act, in subsection (3) (meaning of the expression “the supply of services"), after paragraph (f) there shall be inserted the words “and

(g) includes the supply of network services and station services, within the meaning of Part I of the Railways Act 1993;”.

(5) In Schedule 5 to the 1973 Act (goods and services in respect of which the making of a monopoly reference is prohibited or made subject to special restrictions) for paragraph 5 (which relates to the carriage of goods or passengers by railway) there shall be substituted—

“5 Services for the carriage of passengers, or of goods, by railway, network services and station services, within the meaning of Part I of the Railways Act 1993, but excluding the carriage of passengers or goods on shuttle services (within the meaning of the M47 Channel Tunnel Act 1987).”

(6) Expressions used in this section and in the 1973 or 1980 Act have the same meaning in this section as they have in that Act.

Marginal Citations

M46 1985 c. 6.

M47 1987 c. 53.

67 Respective functions of the Regulator and the [F398 OFT], and functions of the Monopolies Commission. E+W+S

(1) F399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) There are hereby transferred to the Regulator (so as to be exercisable concurrently with the Director)—

(a) the functions of the Director under sections 44 and 45 of the 1973 Act, and

(b) the functions of the Director under sections 50, 52, 53, 86 and 88 of that Act,

so far as relating to monopoly situations which exist or may exist in relation to the supply of railway services; and references in Part IV and sections 86, 88 and 133 of that Act to the Director shall be construed accordingly.

[F400 (3) The Regulator shall be entitled to exercise, concurrently with [F401 the OFT], the functions of [F401 the OFT] under the provisions of Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act, or

(b) conduct of the kind mentioned in section 18(1) of that Act,

which relate to the supply of [F402 services relating to railways].

[F403 (3ZA) In subsection (3) above “services relating to railways” means—

(a) railway services;

(b) the provision or maintenance of rolling stock;

(c) the development, maintenance or renewal of a network, station or light maintenance depot; and

(d) the development, provision or maintenance of information systems designed wholly or mainly for facilitating the provision of railway services.

(3ZB) The Secretary of State may by order amend subsection (3ZA) above; and an order under this subsection shall not be made unless a draft of the statutory instrument containing it has been laid before and approved by a resolution of each House of Parliament.]

(3A) So far as necessary for the purposes of, or in connection with, the provisions of subsection (3) above, references in Part I of the Competition Act 1998 to [F401 the OFT] are to be read as including a reference to the Regulator (except in sections 38(1) to (6), 51, 52(6) and (8) and 54 of that Act and in any other provision of that Act where the context otherwise requires).]

(4) Before the OFT or the Regulator first exercises in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above, that person shall consult the other.

(4A) Neither the OFT nor the Regulator shall exercise in relation to any matter functions which are exercisable concurrently by virtue of subsection (2) above if functions which are so exercisable have been exercised in relation to that matter by the other.

(5) It shall be the duty of the Regulator, for the purpose of assisting the [F404 Competition Commission] in carrying out an investigation on a reference falling within subsection (6) below, to give to the Commission—

(a) any information which is in his possession and which relates to matters falling within the scope of the investigation and—

(i) is requested by the Commission for that purpose; or

(ii) is information which in his opinion it would be appropriate for that purpose to give to the Commission without any such request; and

(b) any other assistance which the Commission may require and which it is within his power to give, in relation to any such matters;

and the Commission shall, for the purposes of carrying out any such investigation, take into account any information given to them for that purpose under this subsection.

(6) The references which fall within this subsection are—

(a) any reference made to the [F404 Competition Commission]by the Regulator by virtue of subsection (2) [F405 or (3)] above; and

(b) any reference made to the Commission by the Secretary of State under section 11 of the 1980 Act, if the person who is the subject of the reference is—

(i) the [F406 authority] or a wholly owned subsidiary of the [F406 authority], or

(ii) a publicly owned railway company which supplies network services or station services.

(7) A copy of any report of the [F404 Competition Commission]or a monopoly reference which relates to the supply of railway services may be transmitted by the Commission to the Regulator, notwithstanding that the reference was made by a person other than the Regulator or that it could not have been made by him.

(8) If any question arises [F407 in any particular case as to the jurisdiction of the Regulator under any of the provisions mentioned in] subsection (2) or (3) aboveor paragraph 11 of Schedule 2 to the Deregulation and Contracting Out Act 1994 F408 . . ., that question shall be referred to and determined by the Secretary of State; and no objection shall be taken to anything done under—

(a) Part IV or section 86 or 88 of the 1973 Act, or

[F409 (b) Part I of the Competition Act 1998 (other than sections 38(1) to (6) and 51),]

by or in relation to the Regulator on the ground that it should have been done by or in relation to [F401 the OFT].

(9) Section 93B of the 1973 Act (offences of supplying false or misleading information to the Secretary of State, the Director General of Fair Trading or the [F410 Competition Commission] in connection with their functions under Parts IV, V, VI or VIII of the 1973 Act [F411 or under the 1980 Act]) shall have effect, so far as relating to functions exercisable by the Regulator by virtue of subsection (2) [F412 above and paragraph 1 of Schedule 10 to the Competition Act 1998], as if the reference in subsection (1)(a) of that section to the Director included a reference to the Regulator.

(10) Expressions used in this section and in the 1973 or 1980 Act have the same meaning in this section as they have in that Act.

Textual Amendments

F398 S. 67: word in sidenote substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(9)(c); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

F399 S. 67(1) repealed (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(9)(a), Sch. 26; S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

F400 S. 67(3)(3A) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) for s. 67(3) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 6(5) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2, Sch.

F401 Words in s. 67(3)(3A)(8) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(9)(b); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

F402 Words in s. 67(3) substituted (1.2.2001) by 2000 c. 38, s. 243(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F403 S. 67(3ZA)(3ZB) inserted (1.2.2001) by 2000 c. 38, s. 243(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F404 Words in s. 67(5)(6)(a)(7)(9) substituted (1.4.1999) by S.I. 1999/506, s. 33(b)

F405 Words in s. 67(6)(a) repealed by 1998 c. 41, ss. 66(5), 74(3), Sch. 10 Pt. II para. 6(7), Sch. 14 Pt. I (with s. 73) (which repeal was brought into force at 26.11.1998 in so far as words in s. 67(6)(a) omitted for specified purposes by virtue of Sch. 10 Pt. II para. 6(7) of the repealing Act by S.I. 1998/2750, art. 2 and was brought wholly into force at 1.3.2000 by S.I. 2000/344, art. 2, Sch)

F406 Word in s. 67(6)(b) substituted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 35; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F407 Words in s. 67(8) substituted (3.1.1995) by 1994 c. 40, ss. 12(7), 82(2), Sch. 4 para. 4

F408 Words in s. 67(8) repealed (3.1.1995) by 1994 c. 40, s. 12(7), 81(1), Sch. 4 para. 4, Sch. 17

F409 S. 67(8)(b) substituted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, ss. 66(5), 76(3), Sch. 10 Pt. II para. 6(8) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2, Sch.

F410 Words in s. 67(5)(6)(a)(7)(9) substituted (1.4.1999) by S.I. 1999/506, s. 33(b)

F411 Words in s. 67(9) repealed by 1998 c. 41, ss. 66(5), 76(3), Sch. 10 Pt. II para. 6(9)(a), Sch. 14 Pt. I (with s. 73) (which repeal was brought into force at 26.11.1998 in so far as words in s. 67(9) omitted for specified purposes by virtue of Sch. 10 Pt. II para. 6(9)(a) of the repealing Act by S.I. 1998/2750, art. 2 and was brought wholly into force at 1.3.2000 by S.I. 2000/344, art. 2, Sch.)

F412 Words in s. 67(9) substituted (26.11.1998 for specified purposes and otherwise 1.3 2000) by 1998 c. 41, ss. 66(5), 76(3), Sch. 10 Pt. II para. 6(9)(b) (with s. 73); S.I. 1998/2750, art. 2; S.I. 2000/344, art. 2, Sch.

Modifications etc. (not altering text)

C52 S. 67(1) restricted (18.12.1996) by 1996 c. 61, s. 22(1)

C53 S. 67(2) applied (3.1.1995) by 1994 c. 40, s. 7(2), Sch. 2 para. 11(2)

C54 S. 67(3) restricted (26.11.1998 for specified purposes and otherwise 1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. II para. 6(1) (with s. 73); S.I. 2000/344, art. 2, Sch.

S. 67(3) restricted (1.3.2000) by 1996 c. 61, s. 22(3) (as substituted (1.3.2000) by 1998 c. 41, s. 66(5), Sch. 10 Pt. IV para. 16(3) (with s. 73); S.I. 2000/344, art. 2, Sch.

Other functions of the Regulator E+W+S

68 Investigatory functions. E+W+S

(1) Subject to subsection (2) below, it shall be the duty of the Regulator to investigate any alleged or apprehended contravention of—

(a) a condition of a licence [F413 which does not relate to consumer protection], F414 . . .

F415 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

if the alleged or apprehended contravention is the subject of a representation (other than one appearing to him to be frivolous or vexatious) made to him by or on behalf of a person who appears to the Regulator to have an interest in the matter.

(2) The Regulator may, if he thinks fit, require a [F416 Rail Passengers Committee] to investigate and report to him on any matter falling within subsection (1) above which relates to—

(a) the provision of services for the carriage of passengers by railway, or

(b) the provision of station services,

and which it would otherwise have been his duty to investigate.

Textual Amendments

F413 Words in s. 68(1)(a) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 13; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. is amended by S.I. 2001/115, art. 2(2))

F414 S. 68(1)(b) and word immediately preceding it repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F415 S. 68(1)(b) omitted (1.2.2001) by virtue of 2000 c. 38, s. 234(7) (with Sch. 28 paras. 12, 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F416 Words in s. 68(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 7; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

69 General functions. E+W+S

(1) It shall be the duty of the Regulator, so far as it appears to him practicable from time to time to do so—

(a) to keep under review the provision, both in Great Britain and elsewhere, of railway services; and

(b) to collect information with respect to the provision of those services, with a view to facilitating the exercise of his functions under this Part.

(2) The Secretary of State may give general directions indicating—

(a) considerations to which the Regulator should have particular regard in determining the order of priority in which matters are to be brought under review in performing his duty under subsection (1)(a) or (b) above; and

(b) considerations to which, in cases where it appears to the Regulator that any of his functions under this Part are exercisable, he should have particular regard in determining whether to exercise those functions.

(3) It shall be the duty of the Regulator, where either he considers it expedient or he is requested by the Secretary of State or [F417 the OFT] to do so, to give information, advice and assistance to the Secretary of State or [F417 the OFT] with respect to any matter in respect of which any function of the Regulator under this Part is exercisable.

(4) If the Regulator—

(a) is requested to do so by the [F418 Authority], or

(b) considers it appropriate to do so,

he may provide the [F418 Authority] with any information which he has which relates to the functions of the [F418 Authority].

Textual Amendments

F417 Words in s. 69(3) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(10); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

F418 Words in s. 69(4) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 42; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F419 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W+S

Textual Amendments

F419 S. 70 repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 28(2), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

71 Publication of information and advice. E+W+S

(1) The Regulator may arrange for the publication, in such form and in such manner as he considers appropriate, of such information and advice as it may appear to him expedient to give to users or potential users of railway services in Great Britain.

(2) In arranging for the publication of any such information or advice the Regulator shall have regard to the need for excluding, so far as that is practicable—

(a) any matter which relates to the affairs of an individual, where publication of that matter would or might, in the opinion of the Regulator, seriously and prejudicially affect the interests of that individual; and

(b) any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of the Regulator, seriously and prejudicially affect the interests of that body.

(3) [F420 The OFT] shall consult the Regulator before publishing under section 124 of the 1973 Act any information or advice which may be published by the Regulator under this section.

Textual Amendments

F420 Words in s. 71(3) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(11)(a); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

[F421 Other functions of the Authority] E+W+S

Textual Amendments

F421 S. 71A and cross-heading inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 14 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F422 71A Investigatory functions. E+W+S

(1) Subject to subsection (2) below, it shall be the duty of the Authority to investigate any alleged or apprehended contravention of a condition of a licence which relates to consumer protection if the alleged or apprehended contravention is the subject of a representation made to the Authority by or on behalf of a person who appears to the Authority to have an interest in the matter (other than one appearing to the Authority to be frivolous or vexatious).

(2) The Authority may, if it thinks fit, require a Rail Passengers’ Committee to investigate and report to it on any matter falling within subsection (1) above which relates to—

(a) the provision of services for the carriage of passengers by railway, or

(b) the provision of station services,

and which it would otherwise have been the Authority’s duty to investigate.]

Textual Amendments

F422 S. 71A and cross-heading inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 14 (with Sch. 28 paras. 2(5), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

[F423 71B Code of practice for protection of interests of rail users who are disabled. E+W+S

(1) The Authority shall—

(a) prepare and from time to time revise, and

(b) publish and otherwise promote the adoption and implementation of,

a code of practice for protecting the interests of users of railway passenger services or station services who are disabled

(2) In preparing or revising the code of practice, the Authority shall consult the Disabled Persons Transport Advisory Committee established under section 125 of the M48 Transport Act 1985.]

Textual Amendments

F423 S. 71B inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 28(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Marginal Citations

M48 1985 c. 67.

Registers and reports of the Regulator and the [F424 Authority] E+W+S

Textual Amendments

F424 Word in cross-heading substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 43; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

72 Keeping of register by the Regulator. E+W+S

(1) The Regulator shall, at such premises and in such form as he may determine, maintain a register for the purposes of this Part.

(2) Subject to subsection (3) and to any direction given under subsection (4) below, the Regulator shall cause to be entered in the register—

(a) in relation to licences, the provisions of—

(i) every licence and every licence exemption;

(ii) every assignment of a licence of which notice is received by the Regulator;

(iii) every modification or revocation of a licence [F425 and every requirement to modify conditions of a licence imposed on the Regulator by the Authority];

(iv) every revocation of a licence exemption [F426 and every requirement to revoke a licence exemption imposed on the Regulator by the Authority];

(v) every requirement imposed, or consent or approval given, by the Regulator under a licence;

(vi) every requirement imposed, or consent or approval given, under a licence by any person (other than the Regulator) who is a qualified person, within the meaning of section 9(3) above, for the purpose in question, being a requirement, consent or approval whose provisions have been notified to the Regulator pursuant to a condition of the licence;

(vii) every final or provisional order [F427 made by the Regulator in relation] to a licence, every revocation of such an order and every notice given by the Regulator under section 55(6) above that he is satisfied that he does not need to make such an order;

[F428 (viii) every scheme made by the Secretary of State under section 7A(4) above or paragraph 2 of Schedule 28 to the Transport Act 2000;]

[F429 (ix) every penalty imposed by the Regulator under section 57A above;

(x) every statement of policy published by the Regulator under that section;]

and notice of every surrender of a licence;

(b) in relation to access agreements, access contracts and installation access contracts, the provisions of—

(i) every facility exemption granted under section 20(3) above;

(ii) every direction to enter into an access contract or an installation access contract;

(iii) every access agreement;

(iv) every amendment (however described) of an access agreement;

(v) every general approval given under section [F430 18(1)(c), 19(3)(c) or] 22(3) above which is for the time being in force;

[F431 (va) every direction under section 22A above;

(vb) every notice given by or to the Regulator or the Competition Commission under Schedule 4A to this Act;]

(vi) every document issued or made by the Regulator under an access agreement;

F432 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) in relation to experimental passenger services, within the meaning of section 48 above, the provisions of—

(i) every notice under section 48(7) above designating a service as experimental;

(ii) every notice under section 48(2) or (3) above of a proposal to discontinue a service designated as experimental;

(iii) every final or provisional order made by the Regulator which relates to the provision or discontinuance of any such service, every revocation of such an order and every notice given by the Regulator under section 55(6) above that he is satisfied that he does not need to make such an order; and

(e) the provisions of every railway administration order and of every discharge of such an order.

(3) In entering any provision in the register, the Regulator shall have regard to the need for excluding, so far as that is practicable, the matters specified in section 71(2)(a) and (b) above.

(4) If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or the commercial interests of any person, he may direct the Regulator not to enter that provision in the register.

(5) Where an access agreement is entered into or amended, the facility owner or installation owner concerned shall send a copy of the access agreement or amendment to the Regulator not later than 14 days after the date on which the access agreement is entered into or the amendment is made, as the case may be.

(6) A person who fails to comply with subsection (5) above is guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) The contents of the register shall be available for inspection by the public during such hours and subject to the payment of such fee as may be specified in an order made by the Secretary of State.

(8) Any person may, on the payment of such fee as may be specified in an order so made, require the Regulator to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the Regulator to be a true copy or extract.

(9) The contents of the register shall be available for inspection at any time by the [F433 Authority], without payment of any fee; and the [F433 Authority] may require the Regulator, without payment of any fee, to supply [F434 it]with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the Regulator to be a true copy or extract.

(10) Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.

(11) Any sums received by the Regulator under this section shall be paid into the Consolidated Fund.

Textual Amendments

F425 Words in s. 72(2)(a)(iii) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 15(a) (with Sch. 28 paras. 5(2), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F426 Words in s. 72(2)(a)(iv) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 15(b) (with Sch. 28 paras. 5(2), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F427 Words in s. 72(2)(a)(vii) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 15(c) (with Sch. 28 paras. 5(2), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F428 S. 72(2)(a)(viii) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 15(d) (with Sch. 28 paras. 5(2), 17); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F429 S. 72(2)(a)(ix)(x) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 36(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F430 Words in s. 72(2)(b)(v) inserted (1.2.2001) by 2000 c. 38, s. 230(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F431 S. 72(2)(b)(va)(vb) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 36(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F432 S. 72(2)(c) repealed (1.2.2001) by 2000 c. 38, ss. 216, 274, Sch. 17 para. 27(2), Sch. 31 Pt. IV (with Sch. 28 para. 14); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F433 Words in s. 72(9) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 43(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F434 Word in s. 72(9) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 43(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

73 Keeping of register by the [F435 Authority]. E+W+S

(1) The [F436 Authority] shall, at such premises and in such form as [F437 it] may determine, maintain a register for the purposes of this Part.

(2) Subject to subsection (3) and to any direction given under subsection (4) below, the [F438 Authority] shall cause to be entered in the register the provisions of—

(a) every franchise exemption;

(b) every franchise agreement;

F439 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) every amendment (however described) of a franchise agreement [F440 other than any which are not likely to have a material effect on the provision of services under the agreement or on any sums payable under the agreement.];

[F441 (da) every closure consent and closure condition, every determination under section 37(1), 38(2), 39(1), 40(2), 41(1) or 42(2) above that a closure is a minor closure, every condition imposed under section 37(1), 39(1) or 41(1) above, every general determination under section 46A above and every revocation of a general determination under that section;]

(e) every final or provisional order [F442 made by the Authority in relation to a licence or] a franchise agreement [F443 or to any closure or proposed closure or to any closure consent or closure condition], every revocation of such an order and every notice given by the [F438 Authority] under section 55(6) above that [F444 it] is satisfied that [F444 it] does not need to make such an order;

[F445 (f) every penalty imposed by the Authority under section 57A above;

(g) every statement of policy published by the Authority under that section;]

[F446 (h) every licence with conditions relating to consumer protection, every licence exemption with such conditions and every approval given by the Authority to such conditions of a licence or licence exemption;

(i) every assignment of a licence to which the Authority has consented;

(j) every requirement to modify conditions of a licence imposed by the Authority on the Regulator;

(k) every requirement to revoke a licence exemption imposed by the Authority on the Regulator;

(l) every requirement imposed, or consent or approval given, by the Authority under a licence;

(m) every scheme made by the Secretary of State under section 7A(4) above or paragraph 2 of Schedule 28 to the Transport Act 2000;]

and, without prejudice to the generality of paragraph (d) above, “amendment" in that paragraph includes any variation of the property, rights and liabilities which from time to time constitute the franchise assets in relation to the franchise agreement in question, whether the variation is effected in accordance with the terms of, or by an amendment made to, the franchise agreement.

(3) In entering any provision in the register, the [F447 Authority] shall have regard to the need for excluding, so far as that is practicable, the matters specified in paragraphs (a) and (b) of section 71(2) above, for this purpose taking references in those paragraphs to the Regulator as references to the [F447 Authority].

(4) If it appears to the Secretary of State that the entry of any provision in the register would be against the public interest or the commercial interests of any person, he may direct the [F447 Authority] not to enter that provision in the register.

(5) The contents of the register shall be available for inspection by the public during such hours and subject to the payment of such fee as may be specified in an order made by the Secretary of State.

(6) Any person may, on the payment of such fee as may be specified in an order so made, require the [F447 Authority] to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the [F447 Authority] to be a true copy or extract.

(7) The contents of the register shall be available for inspection at any time by the Regulator, without payment of any fee; and the Regulator may require the [F447 Authority], without payment of any fee, to supply him with a copy of, or extract from, any part of the register, being a copy or extract which is certified by the [F447 Authority] to be a true copy or extract.

F439 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F435 Word in the sidenote to s. 73 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F436 Words in s. 73(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F437 Word in s. 73(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F438 Words in s. 73(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(3)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F439 S. 73(2)(c)(8) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F440 Words in s. 73(2)(d) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 37(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F441 S. 73(2)(da) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 27(1)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F442 Words in s. 73(2)(e) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 16(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F443 Words in s. 73(2)(e) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 27(1)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F444 Words in s. 73(2) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(3)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F445 S. 73(2)(f)(g) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 37(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F446 S. 73(2)(h)-(m) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 16(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F447 Words in s. 73(3)(4)(6)(7) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 44(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Valid from 16/10/2005

[F448 73A Keeping of register by the Scottish Ministers E+W+S

(1) The Scottish Ministers must maintain a register.

(2) The register must be kept in such form and at such premises as the Scottish Ministers determine.

(3) Subject to subsections (4) and (5) below, the Scottish Ministers must cause the provisions of each of the following to be entered in the register—

(a) every designation made by them under section 23 of this Act, and every variation or revocation of such a designation;

(b) every franchise exemption granted by them;

(c) every franchise agreement to which they are a party;

(d) every amendment of such a franchise agreement, other than those that are unlikely to have a material effect on the provision of services under the agreement or on the sums payable under it;

(e) every determination made by them under section 34 of the Railways Act 2005 that a closure is a minor modification or that closures of a particular description are minor modifications;

(f) every revocation of a determination made by them under that section in relation to a description of closures;

(g) every condition agreed to under subsection (5) of that section in connection with a determination made by them;

(h) every final or provisional order made by them;

(i) every revocation by them of such an order;

(j) every notice given by them under section 55(6) of this Act of a decision not to make such an order;

(k) every penalty imposed by them under section 57A of this Act;

(l) every statement of policy published by them under section 57B of this Act.

(4) The Scottish Ministers may enter the provisions of anything in the register in a manner that excludes, so far as practicable, so much of the details of those provisions as they consider it appropriate to exclude for the purpose of maintaining the confidentiality of—

(a) matters relating to the affairs of an individual the publication of which would or might, in the Scottish Ministers' opinion, seriously and prejudicially affect the interests of that individual; and

(b) matters relating specifically to the affairs of a particular body of persons the publication of which would or might, in the Scottish Ministers' opinion, seriously and prejudicially affect the interests of that body.

(5) If it appears to the Scottish Ministers that the entry of any provision in the register would be against the public interest, they may decide not to enter it in the register.

(6) The contents of the register must be available for inspection, at any time and free of charge, by the Secretary of State or the Office of Rail Regulation.

(7) The Secretary of State and the Office of Rail Regulation may each require the Scottish Ministers to supply him or (as the case may be) it free of charge with a certified copy of a part of the register or with a certified extract from it.

(8) The references in subsection (7) to a certified copy or a certified extract are references to a copy or extract that has been certified by the Scottish Ministers to be a true copy or extract.

(9) In subsection (3)(d) “amendment”, in relation to a franchise agreement, means any amendment however described, including variations (whether or not effected in accordance with the terms of the agreement or by a modification of it) of the property, rights and liabilities which from time to time constitute the franchise assets.]

Textual Amendments

F448 S. 73A inserted (16.10.2005) by Railways Act 2005 (c. 14), ss. 1, 60, Sch. 1 para. 31; S.I. 2005/2812, art. 2(1), Sch. 1

74 Annual and other reports of the Regulator. E+W+S

(1) The Regulator shall, as soon as practicable after the end of the first relevant financial year and of each subsequent financial year, make to the Secretary of State a report on—

(a) his activities during that year; and

(b) the [F449 Competition Commission’s] activities during that year, so far as relating to references made by the Regulator.

(2) Every such report shall include—

(a) a general survey of developments, during the year to which it relates, in respect of matters falling within the scope of the Regulator’s functions;

F450 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) a statement setting out any general directions given to the Regulator during that year under section 69(2) above; F450 . . .

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The Secretary of State shall lay a copy of every report made by the Regulator under subsection (1) above before each House of Parliament and shall arrange for copies of every such report to be published in such manner as he may consider appropriate.

[F451 (3A) Where a report is made by the Regulator under subsection (1) above to the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), the Scottish Ministers shall lay a copy of the report before the Scottish Parliament and shall arrange for copies to be published in such manner as they consider appropriate.]

(4) The Regulator may also prepare such other reports as he thinks fit with respect to any matter falling within the scope of his functions.

(5) The Regulator may arrange for copies of any report prepared under subsection (4) above to be published in such manner as he may consider appropriate.

(6) In making or preparing any report under this section, the Regulator shall have regard to the need for excluding, so far as that is practicable, the matters specified in section 71(2)(a) and (b) above.

(7) [F452 Paragraph 12A(1) of Schedule 7 to the Competition Act 1998 (annual reports of the Competition Commission)]shall not apply to activities of the [F449 Competition Commission] on which the Regulator is required to report by this section.

(8) In this section—

• “financial year” means a period of twelve months ending with 31st March; and

• “first relevant financial year” means the financial year in which is made the first appointment of a person as the Regulator.

Textual Amendments

F449 Words in s. 74(1)(b)(7) substituted (1.4.1999) by S.I. 1999/506, art. 33(b)

F450 S. 74(2)(b)(d) and the word “and" before s. 74(2)(d) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F451 S. 74(3A) inserted (1.7.1999) by S.I. 1999/1750, arts. 1(1), 6(1), Sch. 5 para. 13 (2); S.I. 1998/3178, art. 3

F452 Words in s. 74(7) substituted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(12); S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

Modifications etc. (not altering text)

C55 S. 74(1)(3): certain functions made exercisable by the Scottish Ministers concurrently with the Ministers concerned (1.7.1999) by S.I. 1999/1750, arts. 1(1), 3, Sch. 2; S.I. 1998/3178, art. 3

75 Annual reports of the Franchising Director. E+W+S

(1) The [F453 Authority] shall, as soon as practicable after the end of [F454 each financial year,] make to the Secretary of State a report on—

(a) [F455 its] activities during that year; and

(b) the general performance of franchisees during that year in carrying out their functions under their franchise agreements.

[F456 (1A) Every such report shall include—

(a) general surveys of any developments during that year which relate to—

(i) the provision of railway passenger services or station services for, or the use of such services by, persons who are disabled; or

(ii) the employment by licence holders of persons who are disabled; and

(b) a general survey of the activities during that year of the Rail Passengers’ Council and the Rail Passengers’ Committees and a summary of any reports made to the Authority by the Rail Passengers’ Council or any Rail Passengers’ Committee.]

(2) The Secretary of State shall lay a copy of every report made by the [F457 Authority] under subsection (1) above before each House of Parliament and shall arrange for copies of every such report to be published in such manner as he may consider appropriate.

[F458 (2A) Where a report is made by the [F457 Authority] under subsection (1) above to the Scottish Ministers (by virtue of provision made under section 63 of the Scotland Act 1998), the Scottish Ministers shall lay a copy of the report before the Scottish Parliament and shall arrange for copies to be published in such manner as they consider appropriate.]

(3) In making or preparing any report under this section, the [F457 Authority] shall have regard to the need for excluding, so far as that is practicable, the matters specified in paragraphs (a) and (b) of section 71(2) above, for this purpose taking references in those paragraphs to the Regulator as references to the [F457 Authority].

(4) In this section—

• “financial year” means a period of twelve months ending with 31st March; F459 . . .

• F460 . . .

Textual Amendments

F453 Word in s. 75(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 45(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F454 Words in s. 75(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 45(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F455 Word in s. 75(1)(a) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 45(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F456 S. 75(1A) inserted (1.2.2001) by 2000 c. 38, s. 216, 275(1), Sch. 17 para. 29(1); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F457 Words in s. 75(2)(2A)(3) substituted (1.2.2001) by 2000 c. 38, s. 215, 275(1), Sch. 16 para. 45(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F458 S. 75(2A) inserted (1.7.1999) by S.I. 1999/1750, arts. 1(1), 6(1), Sch. 5 para. 13(3); S.I. 1998/3178, art. 3

F459 S. 75(4): definition of

“first relevant financial year”

and the preceding word “and" repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F460 S. 75(4): definition of “first relevant financial year" repealed (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 45(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

Modifications etc. (not altering text)

C56 S. 75(1)(2): certain functions made by the Scottish Ministers concurrently with Ministers concerned (1.7.1999) by 1999/1750, arts. 1(1), 3, Sch. 2; S.I. 1998/3178, art. 3

The [F461 Rail Passengers’ Council and Rail Passengers’ Committees] E+W+S

Textual Amendments

F461 Words in cross-heading substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(10); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

76 General duties of the [F462 Rail Passengers’ Council]. E+W+S

(1) It shall be the duty of the [F463 Rail Passengers’ Council] to investigate any matter which relates—

(a) to the provision of railway passenger services-

(i) by the Board or any subsidiary of the Board

(ii) under a franchise agreement, or

(iii) on behalf of the Franchising Director, or

(b) to the provision of station services by any person in a case where the operator of the station in question is authorised by a licence to be the operator of that station,

if the condition specified in subsection (2) below is satisfied in relation to the matter in question.

(2) The condition mentioned in subsection (1) above is satisfied if—

(a) the matter is the subject of a representation made to the [F464 Rail Passengers’ Council] by a user or potential user of railway passenger services and does not appear to the [F464 Rail Passengers’ Council] to be frivolous or vexatious;

(b) the matter is referred to the [F464 Rail Passengers’ Council] by the [F465 Authority]; or

(c) the matter appears to the [F464 Rail Passengers’ Council] to be one which it ought to investigate.

(3) If any matter falling within paragraph (a) of subsection (2) above appears to the [F466 Rail Passengers’ Council] to relate only to the provision of railway passenger services, or of station services, within the area of one [F467 Rail Passengers’ Committee], [F468 the Rail Passengers’ Council] shall refer that matter to the [F467 Rail Passengers’ Committee] for that area.

(4) If, on investigating any matter, the [F469 Rail Passengers’ Council] considers it appropriate to do so, [F470 the Rail Passengers’ Council] shall make representations to the person providing the service in question and—

(a) in the case of a service provided under a franchise agreement, to the franchisee, or

(b) in the case of a service provided on behalf of the [F471 Authority], to the [F471 Authority],

about the matter, or any matter to which it relates or which appears to [F470 the Rail Passengers’ Council] to be relevant to the subject of the matter investigated.

(5) Where [F472 the Rail Passengers’ Council]—

(a) having made representations under subsection (4) above, is of the opinion that it is unable to achieve a satisfactory resolution of the matter by that means, or

(b) on investigating any matter, has reason to believe that the holder of a passenger licence or a station licence is contravening, or is likely to contravene, any condition of the licence,

[F472 the Rail Passengers’ Council] shall [F473 , unless representations about the matter have been made to the Authority by the Rail Passengers’ Council, refer it to the Authority with a view to the Authority exercising such of its powers as it considers appropriate in the circumstances of the case.].

[F474 (5A) But if the Authority considers that it would be more appropriate for a matter referred to it by the Rail Passengers’ Council to be considered by the Regulator, the Authority shall refer it to him, with a view to his exercising such of his powers as he considers appropriate in the circumstances of the case.]

(6) Where the [F475 Rail Passengers’ Council] investigates any matter—

(a) it may prepare, and send to the Secretary of State and the [F476 Authority], a report of its findings; and

(b) it may publish any such report, unless the matter in question is one which was referred to the [F475 Rail Passengers’ Council] by the [F476 Authority] as mentioned in subsection (2)(b) above.

(7) Where the [F477 Rail Passengers’ Council] has investigated any matter under this section, it shall neither—

(a) include in any report or representations a proposal for any steps to be taken by any person in relation to that matter, nor

(b) refer the matter to the [F476 Authority] under subsection (5)(a) above by reason only of the failure of any person to take any steps in relation to that matter,

unless, balancing the cost of taking those steps against the benefits which [F478 the Rail Passengers’ Council] considers will be enjoyed by any person in consequence of the taking of those steps, [F478 the Rail Passengers’ Council] is of the opinion, on the basis of the information available to it, that the expenditure involved represents good value for money.

(8) The services which are to be regarded for the purposes of this section as provided on behalf of the [F471 Authority] are the same services as are to be so regarded for the purposes of section 37 above.

(9) In this section, any reference to railway passenger services includes a reference to bus substitution services required to be provided in place of any such services; F479 . . ..

Textual Amendments

F462 Words in the sidenote to s. 76 substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(9); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F463 Words in s. 76(1) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F464 Words in s. 76(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F465 Word in s. 76(2)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 20(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F466 Words in s. 76(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(4)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F467 Words in s. 76(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(4)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F468 Words in s. 76(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(4)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F469 Words in s. 76(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(5)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F470 Words in s. 76(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(5)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F471 Words in s. 76(4)(b)(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 46; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F472 Words in s. 76(5) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(6); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F473 Words in s. 76(5) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 20(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F474 S. 76(5A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 20(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F475 Words in s. 76(6) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F476 Words in s. 76(6)(a)(b)(7)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 20(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F477 Words in s. 76(7) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(8)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F478 Words in s. 76(7) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 8(8)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F479 Words in s. 76(9) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C57 S. 76 excluded (30.11.2000) by 2000 c. 38, s. 253, Sch. 28 para. 10

C58 Ss. 76, 77 applied (1.4.1994) by 1993 c. 43, ss. 47(2)(d)(4)(d), 152(2), 154(2), Sch. 13 para. 3(2) (modifying 1985 c. 67, s. 123); S.I. 1994/571, art. 5

C59 S. 7(6)(a): certain functions made exercisable by the Scottish Ministers concurrently with the Minister concerned (1.7.1999) by S.I. 1999/1750, arts. 1(1), 3, Sch. 2; S.I. 1998/3178, art. 3

Valid from 24/07/2005

[F480 76A Delegation of duties under section 76(7A) E+W+S

(1) The Rail Passengers' Council and any other public body may enter into an agreement for that other body to be responsible, in accordance with the agreement, for —

(a) determining what is expedient for the purposes of subsection (7A) of section 76 above in relation to an area specified in the agreement; and

(b) otherwise performing that Council's duties under that subsection in relation to that area.

(2) So long as an agreement under this section is in force—

(a) the duties of the Rail Passengers' Council under subsection (7A) of section 76 above shall be deemed, in relation to the area specified in the agreement, to fall on the other party to it, instead of on that Council; but

(b) that Council is not to be prevented from doing anything mentioned in that subsection in relation to that area.

(3) An agreement under this section—

(a) may be entered into on such terms and conditions as the parties to it may agree; and

(b) may contain provision for determining for the purposes of this section in what circumstances things done under or for the purposes of section 76(7A) are to be treated as done in relation to the area specified in the agreement.

(4) The consent of the Secretary of State is required before the Rail Passengers' Council and another public body may enter into an agreement under this section.

(5) In this section “public body” means any authority or other body on which functions are conferred by or under an enactment.

(6) In subsection (5) “enactment” includes an enactment comprised in an Act of the Scottish Parliament.]

Textual Amendments

F480 S. 76A inserted (24.7.2005) by Railways Act 2005 (c. 14), ss. 20, 60; S.I. 2005/1909, art. 2, Sch.

77 General duties of [F481 Rail Passengers’ Committees]. E+W+S

(1) It shall be the duty of each [F482 Rail Passengers’ Committee] to investigate any matter which relates—

(a) to the provision of railway passenger services-

(i) by the Board or any subsidiary of the Board

(ii) under a franchise agreement, or

(iii) on behalf of the Franchising Director, or

(b) to the provision of station services by any person in a case where the operator of the station in question is authorised by a licence to be the operator of that station,

if the condition specified in subsection (2) below is satisfied in relation to the matter in question.

(2) The condition mentioned in subsection (1) above is satisfied if the matter—

(a) is the subject of a representation made to [F483 the Rail Passengers’ Committee] by a user or potential user of railway passenger services and does not appear to [F483 the Rail Passengers’ Committee] to be frivolous or vexatious;

(b) is referred to [F483 the Rail Passengers’ Committee]—

(i) by the [F484 Authority]; or

(ii) by the [F485 Rail Passengers’ Council] under section 76(3) above; or

(c) appears to [F483 the Rail Passengers’ Committee] to be one which it ought to investigate.

(3) If, on investigating any matter, a [F486 Rail Passengers’ Committee] considers it appropriate to do so, [F487 the Rail Passengers’ Committee] shall make representations to the person providing the service in question and—

(a) in the case of a service provided under a franchise agreement, to the franchisee, or

(b) in the case of a service provided on behalf of the [F488 Authority], to the [F488 Authority],

about the matter, or any matter to which it relates or which appears to [F487 the Rail Passengers’ Committee] to be relevant to the subject of the matter investigated.

(4) Where a [F489 Rail Passengers’ Committee]—

(a) having made representations under subsection (3) above, is of the opinion that it is unable to achieve a satisfactory resolution of the matter by that means, or

(b) on investigating any matter, has reason to believe that the holder of a passenger licence or a station licence is contravening, or is likely to contravene, any condition of the licence,

[F490 the Rail Passengers’ Committee] shall [F491 , unless representations about the matter have been made to the Authority by the Rail Passengers’ Committee, refer it (or, if it was referred to the Rail Passengers’ Committee by the Authority, refer it back) to the Authority with a view to the Authority exercising such of its powers as it considers appropriate in the circumstances of the case.].

[F492 (4A) But if the Authority considers that it would be more appropriate for a matter referred to it by a Rail Passengers’ Committee to be considered by the Regulator, the Authority shall refer it (or, if it was referred to the Rail Passengers Committee by the Regulator, refer it back) to him, with a view to his exercising such of his powers as he considers appropriate in the circumstances of the case.]

(5) Where a [F493 Rail Passengers’ Committee] investigates any matter pursuant to subsections (1) to (3) above—

(a) it may prepare, and send to the [F494 Rail Passengers’ Council], a report of its findings; and

(b) it may publish any such report, unless the matter in question is one which was referred to the [F493 Rail Passengers’ Committee] by the [F495 Authority] as mentioned in subsection (2)(b)(i) above.

(6) At the request of the [F496 Authority], a [F497 Rail Passengers’ Committee] shall make a report to [F498 it] on such matters relating to the quality of the railway passenger services, and the station services, provided in the [F499 Rail Passengers’ Committee’s] area as may be specified in the request.

(7) The [F500 Authority] may arrange for the publication of any report under subsection (6) above in such manner as [F501 it] may consider appropriate.

(8) If the [F488 Authority]. . . so requests, a [F502 Rail Passengers’ Committee] shall assist the [F488 Authority], to such extent and in such respects as may be specified in the request, in ascertaining whether, in the case of any franchise agreement, the franchise operator is attaining the standards set for the provision of the franchised services.

(9) Where a [F503 Rail Passengers’ Committee] has investigated any matter pursuant to subsections (1) to (3) or subsection (6) above, it shall neither—

(a) include in any report or representations a proposal for any steps to be taken by any person in relation to that matter, nor

(b) refer the matter [F504 under subsection (4) or (4A)] above by reason only of the failure of any person to take any steps in relation to that matter,

unless, balancing the cost of taking those steps against the benefits which [F505 the Rail Passengers’ Committee] considers will be enjoyed by any person in consequence of the taking of those steps, [F505 the Rail Passengers’ Committee] is of the opinion, on the basis of the information available to it, that the expenditure involved represents good value for money.

(10) The services which are to be regarded for the purposes of this section as provided on behalf of the [F488 Authority] are the same services as are to be so regarded for the purposes of section 37 above.

(11) In this section, any reference to railway passenger services includes a reference to bus substitution services required to be provided in place of any such services; F506 . . .

Textual Amendments

F481 Words in the sidenote to s. 77 substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(10); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F482 Words in s. 77(1) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F483 Words in s. 77(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(3)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F484 Words in s. 77(2)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F485 Words in s. 77(2)(b)(ii) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(3)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F486 Words in s. 77(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(4)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F487 Words in s. 77(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(4)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F488 Words in s. 77(3)(b)(8)(10) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 47; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F489 Words in s. 77(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(5)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F490 Words in s. 77(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(5)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F491 Words in s. 77(4) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F492 S. 77(4A) inserted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F493 Words in s. 77(5) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(6)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F494 Words in s. 77(5)(a) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(6)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F495 Word in s. 77(5)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F496 Word in s. 77(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(6)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F497 Words in s. 77(6) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(7)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F498 Word in s. 77(6) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(6)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F499 Words in s. 77(6) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(7)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F500 Word in s. 77(7) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(7)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F501 Words in s. 77(7) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(7)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F502 Words in s. 77(8) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(8); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F503 Words in s. 77(9) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(9)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F504 Words in s. 77(9)(b) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 21(9); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F505 Words in s. 77(9) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 9(9)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F506 Words in s. 77(11) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C60 S. 77 excluded (30.11.2000) by 2000 c. 38, s. 253, Sch. 28 para. 10

C61 Ss. 76, 77 applied (1.4.1994) by 1993 c. 43, ss. 47(2)(d)(4)(d), 152(2), Sch. 13 para. 3(2) (modifying 1985 c. 67, s. 123); S.I. 1994/571, art. 5

78 Functions under section 56 of the Transport Act 1962. E+W+S

F507 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F507 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F507 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F507 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) After subsection (6) of that section there shall be inserted—

“(6ZA) If the Secretary of State so directs in the case of any consultative committee, subsections (4) to (6) of this section shall have effect in relation to that committee and the Central Committee as if the reference in subsection (4) of this section to services and facilities provided by any of the Boards included a reference to any such ferry service as may be specified in the direction, whether provided by a Board or by some other person; and, in the application of subsections (4) to (6) of this section in relation to any such ferry service, any reference in those subsections to a Board shall be taken to include a reference to the person providing the ferry service.”

F507 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F507 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F507 S. 78(1)-(4)(6)(7) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

79 Annual reports by the [F508 Rail Passengers’ Council and the Rail Passengers’ Committees]. E+W+S

(1) [F509 The Rail Passengers’ Council and each of the Rail Passengers’ Committees] shall, as soon as practicable after the end of the first relevant financial year and of each subsequent financial year—

(a) make a report to the [F510 Authority] on [F511 its] activities during that year; and

(b) in the case of the [F512 Rail Passengers’ Council and the Rail Passengers’ Committees] for Scotland and for Wales, send a copy of that report to the Secretary of State;

and the Secretary of State shall lay before each House of Parliament a copy of the reports sent to him pursuant to paragraph (b) above.

[F513 (1A) The [F514 Rail Passengers’ Committee]] for Scotland shall, as soon as practicable after the end of each financial year, also send a copy of the report referred to in subsection (1) above to the Scottish Ministers and the Scottish Ministers shall lay a copy of each such report before the Scottish Parliament.

(1B) Subsection (1A) above shall not apply in relation to a financial year which ends before 1st April 1999.

(2) [F515 The Rail Passengers’ Council and each of the Rail Passengers’ Committees] may arrange for any report which it makes under subsection (1) above to be published in such manner as [F516 it] considers appropriate.

(3) In arranging for the publication of any report [F517 made by it under this section, the Rail Passengers’ Council or a Rail Passengers’ Committee] shall have regard to the need for excluding, so far as that is practicable, the matters specified in paragraphs (a) and (b) of section 71(2) above, for this purpose taking references in those paragraphs to the Regulator as references to [F518 the Rail Passengers’ Council or the Rail Passengers’ Committee].

(4) In this section—

• F519 . . .

• “financial year” means a period of twelve months ending with 31st March; and

• “first relevant financial year”, in relation to [F520 the Rail Passengers’ Council or any Rail Passengers’ Committee, means the financial year in which it is established.].

Textual Amendments

F508 Words in the sidenote to s. 79 substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(7); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F509 Words in s. 79(1) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F510 Word in s. 79(1)(a) substituted (1.2.2001) by 2000 c. 38, s. 216, Sch. 17 para. 22; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F511 Word in s. 79(1)(a) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F512 Words in s. 79(1)(b) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F513 S. 79(1A)(1B) inserted (1.7.1999) by S.I. 1999/1747, arts. 1, 3, Sch. 22 Pt. II para. 3; S.I. 1998/3178, art. 3

F514 Words in s. 79(1A) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F515 Words in s. 79(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(4)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F516 Word in s. 79(2) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(4)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F517 Words in s. 79(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(5)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F518 Words in s. 79(3) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(5)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F519 Definition of “committee" in s. 79(4) repealed (1.2.2001) by 2000 c. 38, ss. 227, 274, Sch. 22 para. 10(6)(a), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F520 Words in the definition of “first relevant financial year" in s. 79(4) substituted (1.2.2001) by 2000 c. 38, s. 227, Sch. 22 para. 10(6)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Modifications etc. (not altering text)

C62 S. 79(1): certain functions made exercisable by Scottish Miniters concurrently with the Minister (1.7.1999) by S.I. 1999/1750, arts. 1(1), 3, Sch. 2; S.I. 1998/3178, art. 3

Information E+W+S

80 Duty of certain persons to furnish information to the [F521 Authority] on request. E+W+S

(1) [F522 Licence holders] shall be under a duty to furnish to the [F523 Authority] in such form and manner as [F524 it] may by notice request such information as [F524 it] may so request, being information which the [F523 Authority] considers necessary for the purpose of facilitating the performance of any [F525 of its functions] under this Part [F526 or the Transport Act 2000].

(2) A request under subsection (1) above must be complied with within such time (being not less than 28 days from the making of the request) as may be specified in the request.

(3) If any such request is not complied with, the [F527 Authority] may serve a notice under subsection (4) below on the person from whom the information was requested under subsection (1) above.

(4) A notice under this subsection is a notice signed by the [F527 Authority] and—

(a) requiring the person on whom it is served to produce, at a time and place specified in the notice, to the [F527 Authority] or to any person appointed by the Franchising Director for the purpose, any documents which are specified or described in the notice and are in that person’s custody or under his control; or

(b) requiring that person to furnish, at a time and place and in the form and manner specified in the notice, to the Franchising Director such information as may be specified or described in the notice.

(5) No person shall be required under this section to produce any documents which he could not be compelled to produce in civil proceedings in the court or, in complying with any requirement for the furnishing of information, to give any information which he could not be compelled to give in evidence in any such proceedings.

F528 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) A person who intentionally alters, suppresses or destroys any document which he has been required by any notice under subsection (4) above to produce is guilty of an offence and shall be liable—

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

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

(8) If a person makes default in complying with a notice under subsection (4) above, the court may, on the application of the [F527 Authority], make such order as the court thinks fit for requiring the default to be made good; and any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.

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

(10) In this section “the court” means the High Court, in relation to England and Wales, and the Court of Session, in relation to Scotland.

Textual Amendments

F521 Word in the sidenote to s. 80 substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 48(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F522 Words in s. 80(1) substituted (1.2.2001) for s. 80(1)(a)-(c) by 2000 c. 38, s. 252, Sch. 27 para. 38(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F523 Words in s. 80(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 48(2)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F524 Words in s. 80(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 48(2)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F525 Words in s. 80(1) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 48(2)(c); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F526 Words in s. 80(1) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 38(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F527 Words in s. 80(3)(4)(8) substituted (1.2.2001) by 2000 c. 38, s. 215, Sch. 16 para. 48(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II) (which S.I. was amended by S.I. 2001/115, art. 2(2))

F528 S. 80(6) repealed (1.2.2001) by 2000 c. 38, ss. 252, 274, Sch. 27 para. 38(b), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Interpretation E+W+S

81 Meaning of “railway". E+W+S

(1) Subject to subsection (2) below, the definition of “railway” in section 67(1) of the M49 Transport and Works Act 1992 shall have effect for the purposes of this Part as it has effect for the purposes of that Act, and cognate expressions shall be construed accordingly.

(2) Where it is stated for the purposes of any provision of this Part that railway has its wider meaning, “railway” shall be taken, for the purposes of that provision, to mean—

(a) a railway,

(b) a tramway, or

(c) a transport system which uses another mode of guided transport but which is not a trolley vehicle system,

and cognate expressions shall be construed accordingly.

(3) In paragraphs (a) to (c) of subsection (2) above “guided transport”, “railway”, “tramway” and “trolley vehicle system” have the meaning given by section 67(1) of the M50 Transport and Works Act 1992.

Marginal Citations

M49 1992 c. 42.

M50 1992 c. 42.

82 Meaning of “railway services" etc. E+W+S

(1) In this Part, “railway services” means services of any of the following descriptions, that is to say—

(a) services for the carriage of passengers by railway;

(b) services for the carriage of goods by railway;

(c) light maintenance services;

(d) station services;

(e) network services.

(2) In this Part—

• “light maintenance services” means services of any of the following descriptions, that is to say—

  (a)

  the refuelling, or the cleaning of the exterior, of locomotives or other rolling stock;

  (b)

  the carrying out to locomotives or other rolling stock of maintenance work of a kind which is normally carried out at regular intervals of twelve months or less to prepare the locomotives or other rolling stock for service;

• “network services” means any service which consists of, or is comprised in, the provision or operation of a network (or of any of the track or other installations comprised in a network), but does not include any service which falls within paragraphs (a) to (d) of subsection (1) above;

• “services for the carriage of passengers by railway” includes services for and in connection with the carriage of luggage, parcels or mail on trains which at the time are available, and primarily intended, for use by passengers; and references to carrying, or to the carriage of, passengers by railway shall be construed accordingly;

• “station services” means any service which consists of, or is comprised in, the provision or operation of a station;

and, for the purposes of the above definitions of “network services" and “station services", where a person permits another to use any land or other property comprised in a network or station he shall be regarded as providing a service which falls within the meaning of “network services" or “station services", as the case may be.

(3) Without prejudice to the generality of the definition in subsection (2) above, “network services” includes services of any of the following descriptions, that is to say—

(a) the construction, maintenance, re-alignment, re-configuration or renewal of track,

(b) the installation, operation, maintenance or renewal of a railway signalling system or of any other railway communication equipment,

(c) the construction, control, maintenance or renewal of electrical conductor rails or overhead lines, of any supports for such rails or lines, and of any electrical substations or power connections used or to be used in connection therewith, and the provision of electrical power by means thereof,

(d) the provision and operation of services for the recovery or repair of locomotives or other rolling stock in connection with any accident, malfunction or mechanical or electrical failure,

(e) the provision and operation of services for keeping track free from, or serviceable notwithstanding, obstruction (whether by snow, ice, water, fallen leaves or any other natural or artificial obstacle or hindrance) or for removing any such obstruction,

(f) the provision, operation, maintenance and renewal of any plant, equipment or machinery used in carrying on any of the activities specified in paragraphs (a) to (e) above,

(g) the exercise of day to day control over train movements over or along any track comprised in the network,

(h) the preparation of a timetable for the purposes of such control as is referred to in paragraph (g) above,

and it is immaterial for the purposes of this subsection and that subsection whether or not the person who provides the service in question also provides or operates a network, or any of the track or other installations comprised in a network, or provides the service on behalf of a person who does so.

(4) In determining whether any service is a station service, it is immaterial whether or not the person who provides the service also provides or operates a station, or any part of a station, or provides the service on behalf of a person who does so.

(5) In this section, “maintenance” includes the detection and rectification of any faults.

(6) “Railway” has its wider meaning in the application of this section in relation to any provision of this Part for the purposes of which “railway” has that meaning.

83 Interpretation of Part I. E+W+S

(1) In this Part, unless the context otherwise requires—

• “the 1973 Act” means the M51 Fair Trading Act 1973;

• “the 1980 Act” means the M52 Competition Act 1980;

• “access agreement” means—

  (a)

  an access contract [F529 which satisfies one of the conditions in paragraphs (a) to (c) of section 18(1)] above; or

  (b)

  an installation access contract [F530 which satisfies one of the conditions in paragraphs (a) to (c) of section 19(3)] above;

• “access contract” has the meaning given by section 17(6) above;

• “access option” shall be construed in accordance with section 17(6) above;

• “additional railway asset” has the meaning given by section 29(8) above;

• “ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use any track, station or light maintenance depot;

• [F531 “appropriate authority” has the meaning given by section 55(10) above;]

• [F532 “bus substitution service” has the meaning given by section 45(2)(b) above;]

• F533 . . .

• “closure” shall be construed in accordance with section 37(1), 38(1), 39(1), 40(1), 41(1) or 42(1) above, as the case may be, and “proposed closure” shall be construed accordingly;

• “closure conditions” has the meaning given by section 45 above;

• “closure consent” means any decision required by section 43 F534 . . . above before a proposed closure may take effect;

• F533 . . .

• F535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “exempt facility” shall be construed in accordance with section 20(13) above;

• “experimental passenger service” has the meaning given by section 48(6) above;

• “facility exemption” has the meaning given by section 20(13) above;

• “facility owner” has the meaning given by section 17(6) above;

• “final order” and “provisional order” have the meaning given by section 55(10) above;

• “franchise agreement” has the meaning given by section 23(3) above;

• “franchise assets” has the meaning given by section 27(11) above;

• “franchise exemption” has the meaning given by section 24(13) above;

• “franchise operator” has the meaning given by section 23(3) above;

• “franchise period” has the meaning given by section 23(3) above;

• “franchise term” has the meaning given by section 23(3) above;

• “franchised services” has the meaning given by section 23(3) above;

• “franchisee” has the meaning given by section 23(3) above;

• “goods” includes mail, parcels, animals, plants and any other creature, substance or thing capable of being transported, but does not include passengers;

• “information” includes accounts, estimates, records and returns;

• “installation access contract” has the meaning given by section 19(9) above;

• “installation owner” has the meaning given by section 19(9) above;

• [F536 'international licence’ has the meaning given by section 6(2) above;]

• “licence” means a licence under section 8 above and “licence holder” shall be construed accordingly;

• “licence exemption” has the meaning given by section 7(13) above;

• “light maintenance” (without more) means—

  (a)

  the refuelling, or the cleaning of the exterior, of locomotives or other rolling stock; or

  (b)

  the carrying out to locomotives or other rolling stock of maintenance work of a kind which is normally carried out at regular intervals of twelve months or less to prepare the locomotives or other rolling stock for service;

  and, for the purposes of paragraph (b) above, “maintenance work” includes the detection and rectification of any faults;

• “light maintenance depot” means any land or other property which is normally used for or in connection with the provision of light maintenance services, whether or not it is also used for other purposes;

• “light maintenance depot licence” means a licence authorising a person—

  (a)

  to be the operator of a light maintenance depot; and

  (b)

  to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, the provision of light maintenance services;

• “light maintenance services” has the meaning given by section 82 above;

• “locomotive” means any railway vehicle which has the capacity for self-propulsion (whether or not the power by which it operates is derived from a source external to the vehicle);

• “network” means—

  (a)

  any railway line, or combination of two or more railway lines, and

  (b)

  any installations associated with any of the track comprised in that line or those lines,

  together constituting a system of track and other installations which is used for and in connection with the support, guidance and operation of trains;

• “network licence” means a licence authorising a person—

  (a)

  to be the operator of a network;

  (b)

  to be the operator of a train being used on a network for any purpose comprised in the operation of that network; and

  (c)

  to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, using a train as mentioned in paragraph (b) above;

• “network services” has the meaning given by section 82 above;

• “notice period” has the meaning given by section 48(13) above;

• [F537 “the OFT” means the Office of Fair Trading;]

• “operator”, in relation to a railway asset, has the meaning given by section 6(2) above;

• “passenger licence” means a licence authorising a person—

  (a)

  to be the operator of a train being used on a network for the purpose of carrying passengers by railway; and

  (b)

  to be the operator of a train being used on a network for a purpose preparatory or incidental to, or consequential on, using a train as mentioned in paragraph (a) above;

• “passenger service operator” means a person who provides services for the carriage of passengers by railway;

• “premises” includes any land, building or structure;

• “prescribed” means prescribed by regulations made by the Secretary of State;

• “private sector operator” means any body or person other than a public sector operator;

• “protected railway company” has the meaning given by section 59(6)(a) above;

• “public sector operator” has the meaning given by section 25 above;

• “railway” shall be construed in accordance with section 81 above;

• “railway asset” has the meaning given by section 6(2) above;

• “railway facility” means any track, station or light maintenance depot;

• “railway passenger service” means any service for the carriage of passengers by railway;

• “railway services” has the meaning given by section 82 above;

• “railway vehicle” includes anything which, whether or not it is constructed or adapted to carry any person or load, is constructed or adapted to run on flanged wheels over or along track;

• “records” includes computer records and any other records kept otherwise than in a document;

• “relevant activities”, in relation to a protected railway company, has the meaning given by section 59(6)(b) above;

• “relevant condition or requirement” has the meaning given by section 55(10) above;

• “relevant operator” has the meaning given by section 55(10) above;

• “rolling stock” means any carriage, wagon or other vehicle used on track and includes a locomotive;

• “station” means any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes;

• “station licence” means a licence authorising a person to be the operator of a station;

• “station services” has the meaning given by section 82 above;

• [F538 “through ticket” means—

  (a)

  a ticket which is valid for a journey which involves use of the services of more than one passenger service operator; or

  (b)

  a combination of two or more tickets issued at the same time which are between them valid for such a journey;

  and “through ticketing” shall be construed accordingly;]

• “track” means any land or other property comprising the permanent way of any railway, taken together with the ballast, sleepers and metals laid thereon, whether or not the land or other property is also used for other purposes; and any reference to track includes a reference to—

  (a)

  any level crossings, bridges, viaducts, tunnels, culverts, retaining walls, or other structures used or to be used for the support of, or otherwise in connection with, track; and

  (b)

  any walls, fences or other structures bounding the railway or bounding any adjacent or adjoining property;

• “train” means—

  (a)

  two or more items of rolling stock coupled together, at least one of which is a locomotive; or

  (b)

  a locomotive not coupled to any other rolling stock;

• “vehicle” includes railway vehicle.

[F539 (1A) In sections 17 to 22C above (and Schedule 4 to this Act) references to a railway facility (including references to any track, station or light maintenance depot) or a network include references to a railway facility (or any track, station or light maintenance depot) or a network which is proposed to be constructed or is in the course of construction.]

(2) For the purposes of this Part, a person shall be regarded as providing or operating services for the carriage of goods by railway notwithstanding that he provides or operates the services solely for the carriage of his own goods or otherwise for his own benefit.

[F540 (3) For the purposes of this Part, references to a condition of a licence or licence exemption which relates, or does not relate, to consumer protection shall be construed in accordance with section 7A above.]

Textual Amendments

F529 S. 83(1): words in para. (a) of the definition of “access agreement" substituted (1.2.2001) by 2000 c. 38, s. 230(6)(a); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F530 S. 83(1): words in para. (b) of the definition of “access agreement" substituted (1.2.2001) by 2000 c. 38, s. 230(6)(b); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F531 Definition of “appropriate authority" in s. 83(1) substituted for definition of “appropriate officer" (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 39(2); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F532 Definition of “bus substitution service" in s. 83(1) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 39(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F533 Definitions of “the Central Committee" and “consultative committee" in s. 83(1) repealed (1.2.2001) by 2000 c. 38, s. 274, Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F534 Words in the definition of “closure consent" in s. 83(1) repealed (1.2.2001) by 2000 c. 38, ss. 274, 275(1), Sch. 31 Pt. IV; S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F535 Definition of "the Director" in s. 83(1) repealed (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(13)(a), Sch. 26; S.I 2003/766, {art. 2}, Sch. (with transitional and transitory provision in art. 3)

F536 Definition of “international licence" inserted (27.6.1998) by S.I. 1998/1340, reg. 21(9)

F537 Definition of "the OFT" in s. 83(1) inserted (1.4.2003) by 2002 c. 40, ss. 278, 279, Sch. 25 para. 30(13)(b); S.I 2003/766, {art. 2}, Sch.

F538 Definition of “through ticket" in s. 83(1) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 39(4); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F539 S. 83(1A) inserted (1.2.2001) by 2000 c. 38, s. 233(3); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

F540 S. 83(3) inserted (1.2.2001) by 2000 c. 38, s. 252, Sch. 27 para. 39(5); S.I. 2001/57, art. 3(1), Sch. 2 Pt. I (subject to savings and transitional provisions in Sch. 2 Pt. II)

Commencement Information

I8 S. 83 wholly in force at 1.4.1994; s. 83 not in force at Royal Assent see s. 154(2); s. 83(1) in force for specified purposes and s. 83(2) wholly in force at 24.12.1993 by S.I. 1993/3237, art. 2(1); s. 83(1) in force for further specified purposes at 6.1.1994 by S.I. 1993/3237, art. 2(2); S. 83(1) in force for specified purposes at 22.2.1994 by S.I. 1994/447, art. 2; S. 83 in force at 1.4.1994 insofar as not already in force by S.I. 1994/571, art. 5

Marginal Citations

M51 1973 c. 41.

M52 1980 c. 21.