Transport Bill - continued        House of Lords
PART IV, RAILWAYS - continued

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  CHAPTER II
  OTHER PROVISIONS ABOUT RAILWAYS
 
Directions to provide etc. railway facilities
Regulator's power to require provision etc. of railway facilities.     211. In the Railways Act 1993, after section 16 insert-
 
 

"Directions to provide, improve or develop railway facilities
Provision, improvement and development of railway facilities.     16A. - (1) The Regulator 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 the Regulator considers him to be an appropriate person to provide the new railway facility.
 
      (2) The Regulator 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 the Regulator 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of an application under subsection (1) or (2) above may be given subject to compliance with conditions (and may be withdrawn if any condition is not complied with before the Regulator decides whether to give the direction).
 
Exemption of railway facilities from section 16A.     16B. - (1) The Secretary of State may, after consultation with the Regulator, 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.
 
Making of applications for directions.     16C. - (1) An application for a direction under section 16A above must be made to the Regulator 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 the Regulator 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.
 
Procedure for considering applications.     16D. - (1) When the Regulator has received the application or notice of a variation, he 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 the Regulator 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, the Regulator 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 the Regulator decides that he is an appropriate person to do what the direction would require him to do, the Regulator 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) The Regulator must-
 
 
    (a) send the applicant a copy of any representations received by him 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, the Regulator 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 the Regulator, withdraw or suspend the application at any time before the Regulator decides whether to give the direction.
 
      (7) The Regulator 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 the Regulator, 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.
Decisions on applications: adequate reward.     16E. - (1) The Regulator 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 the Regulator 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 the Regulator 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.
 
Other provisions about decisions.     16F. - (1) If the Regulator does not consider it right to give a direction under section 16A above in the terms applied for (or to reject the application), he may give a direction under that section in modified terms.
 
      (2) The Regulator 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, the Regulator shall-
 
 
    (a) notify his 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, the Regulator shall not give it.
 
      (4) Whatever the Regulator's decision on an application he shall notify the decision to-
 
 
    (a) the person specified in the application;
 
    (b) the applicant; and
 
    (c) any other persons who he considers ought to be notified.
      (5) The Regulator 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 he considers appropriate in respect of costs incurred in connection with the application.
 
Directions: compliance, variation and revocation.     16G. - (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 the Regulator-
 
 
    (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 the Regulator 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) The Regulator 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 the Regulator 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.
 
Code of practice.     16H. - (1) The Regulator 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 he considers appropriate.
 
      (2) The Regulator shall have regard to the code of practice in the exercise of his 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.
Supplementary.     16I. - (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 the Regulator 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."
 
Objectives of Regulator and Secretary of State
Amendment of objectives.     212. - (1) Section 4 of the Railways Act 1993 (general duties of Regulator and Secretary of State) is amended as follows.
 
      (2) In subsection (1) (objectives)-
 
 
    (a) for "Secretary of State and the Regulator shall each" substitute "Regulator shall",
 
    (b) before paragraph (a) insert-
 
    "(za) to facilitate the furtherance by the Authority of any strategies which it has formulated with respect to its purposes;",
 
    (c) after paragraph (b) insert-
 
    "(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;", and
 
    (d) in paragraph (d) (promotion of competition in provision of railway services), insert at the end "for the benefit of users of railway services".
      (3) In subsection (2) (objectives)-
 
 
    (a) for "Secretary of State and the Regulator shall each" substitute "Regulator shall", and
 
    (b) omit "the Secretary of State or, as the case may be,".
      (4) In subsection (3) (safety and the environment), for "Secretary of State and the Regulator shall each" substitute "Regulator shall".
 
      (5) After that subsection insert-
 
 
    "(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."
      (6) In subsection (5) (additional duties of Regulator), for paragraph (a) (duty until 31st December 1996 to take account of guidance of Secretary of State) substitute-
 
 
    "(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;".
      (7) After subsection (7) insert-
 
 
    "(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."
 
Enforcement regime
Penalties.     213. - (1) In the Railways Act 1993, after section 57 insert-
 
 
"Penalties.     57A. - (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) 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.
 
Statement of policy.     57B. - (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 included a reference to anything which is likely to be done.
Procedural requirements for penalties.     57C. - (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.
 
Time limits.     57D. - (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.
Interest and payment of instalments.     57E. - (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 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.
 
Validity and effect of penalties.     57F. - (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 such an application the court, if satisfied that any of the grounds mentioned in subsection (1) above is established-
 
 
    (a) may quash the penalty,
 
    (b) may substitute a penalty of such lesser amount as the court considers appropriate in all the circumstances of the case, or
 
    (c) may specify 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,
       or, in the case of an application on the ground in subsection (1)(c) above, may specify different dates by which different portions of the penalty are to be paid.
 
      (5) 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 a 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.
 
      (6) Except as provided by this section, the validity of a penalty shall not be questioned by any legal proceedings whatever."
 
      (2) In section 55 of that Act (orders for securing compliance), for subsection (8) substitute-
 
 
    "(7A) The provision that may be made in a final or provisional order includes, in particular, provision requiring the 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, and at such time and place, as is so specified or determined."
 
 
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