Transport Bill - continued        House of Lords
PART IV, RAILWAYS - continued
Purposes, strategies and exercise of functions - continued

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Directions, guidance and advice by Scottish Ministers.     207. - (1) The Scottish Ministers may give the Authority-
 
 
    (a) directions and guidance in relation to services for the carriage of passengers by rail which start and end in Scotland and are provided under a franchise agreement,
 
    (b) directions and guidance in relation to services for the carriage of passengers by rail which either start or end in Scotland, include sleeping facilities and are provided under a franchise agreement by a person who also provides services within paragraph (a), and
 
    (c) advice in relation to services for the carriage of passengers by rail which either start or end in Scotland and are provided under a franchise agreement (other than services within paragraph (b)).
      (2) The Authority shall not comply with any direction or have regard to any guidance given under subsection (1) to the extent that to do so would be inconsistent with any direction or guidance given under section 205(3) or 206(5) or with the Authority's financial framework.
 
      (3) The Authority need not comply with any direction or have regard to any guidance given under paragraph (b) of subsection (1) to the extent that to do so-
 
 
    (a) would require the expenditure by the Authority of any money not provided to it out of the Scottish Consolidated Fund, or
 
    (b) would adversely affect any railway services other than those mentioned in that subsection.
Directions, guidance and advice: supplementary.     208. - (1) Any direction or guidance to the Authority under this Act, or any advice given under section 207(1)(c), shall be published by the person by whom it is given in such manner as he considers appropriate.
 
      (2) The Authority shall comply with any direction given to it under this Act (but subject to section 207(2) and (3)).
 
      (3) In exercising its functions the Authority shall have regard to any guidance given to it under this Act (but subject to section 207(2) and (3)).
 
      (4) The Authority-
 
 
    (a) shall take note of any advice given under section 207(1)(c), and
 
    (b) in exercising its functions, may have regard to that advice (but subject to subsections (2) and (3)).
      (5) Any power to give a direction or guidance to the Authority under this Act includes power to vary or revoke the direction or guidance.
 
Validity of transactions.     209. - (1) A transaction entered into by the Authority is not invalidated merely by reason of a contravention by the Authority of a requirement imposed by section 206(1), (2), (3) or (4) or 208(2), (3) or (4)(a).
 
      (2) Subsection (1) applies whether or not any person who entered into the transaction with the Authority enquired whether the Authority was acting in contravention of such a requirement.
 
 
Securing provision of railway services and assets etc.
Financial assistance etc.     210. - (1) The Authority may enter into agreements or other arrangements-
 
 
    (a) for the purpose of securing the provision, improvement or development by others of any railway services or railway assets, or
 
    (b) for any other purpose relating to any railway or railway services.
      (2) Agreements or other arrangements entered into under this section may provide for the Authority-
 
 
    (a) to make grants or other payments or loans,
 
    (b) to give guarantees, or
 
    (c) to invest in bodies corporate,
       on such terms and subject to any such conditions as the Authority considers appropriate.
 
      (3) The Authority shall not enter into agreements or other arrangements under this section with-
 
 
    (a) the franchise operator,
 
    (b) the franchisee, or
 
    (c) any servant, agent or independent contractor of the franchise operator or franchisee,
       in respect of any services provided under a franchise agreement otherwise than in accordance with the provisions of the franchise agreement.
 
      (4) The Authority shall not enter into agreements or other arrangements under this section for the purpose of securing the provision, improvement or development in Scotland of-
 
 
    (a) services for the carriage of goods by railway, or
 
    (b) facilities for or in connection with the carriage of goods by railway or the loading or unloading of goods carried or intended to be carried by railway,
       if the Scottish Ministers have power to do so under section 247.
 
      (5) Schedule 15 contains provision for the transfer to the Authority of certain property, rights and liabilities of the Secretary of State in consequence of sections 137 and 139 of the Railways Act 1993 being superseded by this section.
 
      (6) In this section-
 
 
    "facilities" includes track, rolling stock, depots, access roads and equipment for use in connection with the carriage, loading or unloading of goods, and
 
    "railway" has its wider meaning.
Securing of services by franchising.     211. - (1) In section 23 of the Railways Act 1993, in subsection (1) (duty of Authority to designate passenger services as eligible for provision under franchise agreements), for the words after "designate" substitute "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) In that section, after subsection (2) insert-
 
 
    "(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 section 26 of that Act (invitations to tender for franchise), after subsection (3) insert-
 
 
    "(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."
 
      (4) After that section insert-
 
 
"No tenders for franchise.     26A. - (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.
No adequate tenders for franchise.     26B. - (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.
Review of directions.     26C. - (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."
      (5) For section 30 of that Act substitute-
 
 
"Duty of Authority in absence of franchise.     30. - (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."
      (6) In section 18 of that Act (access agreements: contracts requiring approval of Regulator), after subsection (6) insert-
 
 
    "(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."
Limited additional powers to provide railway services.     212. - (1) The Authority may provide services for the carriage of passengers or goods by railway if the Secretary of State consents to the provision of the services by the Authority and either-
 
 
    (a) the services are the same as, or broadly correspond to, services which were provided by a person other than the Authority before the Authority begins to provide them, or
 
    (b) a scheme under Schedule 19 provides for the transfer to the Authority of a liability to provide them.
      (2) The Authority may for the purposes of, or in connection with, any services which it provides under this section-
 
 
    (a) provide or operate network services, station services or light maintenance services, or
 
    (b) store goods or consign them from any place to which they have been carried by rail.
      (3) The Authority may not provide services for the carriage of passengers or goods by railway except in pursuance of the power conferred by this section or in compliance with a duty imposed by the Railways Act 1993.
 
Securing provision of substitute bus and taxi services.     213. - (1) The Authority may secure the provision by other persons of services for the carriage of passengers by road, by means of public service vehicles or licensed taxis or private hire vehicles, where railway services have been temporarily interrupted or discontinued.
 
      (2) Where it is not practicable for a service by road to correspond precisely to the railway service which has been interrupted or discontinued, it may deviate from the route of that railway service.
 
      (3) Even where it is practicable for it to do so, the route and stopping places of a service by road provided where a railway service has been discontinued need not correspond precisely with the discontinued service so long as it broadly corresponds with the discontinued service in terms of the localities it serves.
 
      (4) Before entering into any agreement with any person in pursuance of this section for the provision of a service by road in a case where a railway service has been discontinued, the Authority shall invite other persons to submit tenders to provide the service by road service for such period, and on such basis, as may be specified in the invitation to tender.
 
      (5) Subsection (4)-
 
 
    (a) does not apply in relation to an agreement for the provision of a service in a case where such a service provided under an agreement entered into by the Authority in pursuance of this section has been temporarily interrupted, and
 
    (b) does not require the Authority to accept any tender submitted in response to an invitation to tender.
      (6) In this section "licensed taxis or private hire vehicles" means-
 
 
    (a) in England and Wales, vehicles licensed under section 37 of the Town Police Clauses Act 1847, section 6 of the Metropolitan Public Carriage Act 1869, section 48 of the Local Government (Miscellaneous Provisions) Act 1976 or section 7 of the Private Hire Vehicles (London) Act 1998 or under any similar enactment, and
 
    (b) in Scotland, taxis or private hire cars licensed under section 10 of the Civic Government (Scotland) Act 1982.
      (7) In this section-
 
 
    "public service vehicles" has the meaning given by section 1 of the Public Passenger Vehicles Act 1981, and
 
    "stopping places", in relation to a service, means points at which passengers are taken up or set down in the course of the service.
 
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