Transport Bill - continued        House of Lords

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SCHEDULE 17
 
  TRANSFERS TO SRA FROM RAIL REGULATOR
  PART I
  FUNCTIONS RELATING TO LICENCES
 
Introductory
     1. The Railways Act 1993 has effect subject to the following amendments.
 
 
Exemptions
     2. - (1) Section 7 (exemptions from requirement for operator of railway asset to be authorised by licence) is amended as follows.
 
      (2) In subsection (1) (power of Secretary of State to grant exemption after consultation with Regulator), after "Regulator" insert "and the Authority".
 
      (3) In subsection (3) (power of Regulator to grant exemption after consultation with Secretary of State), after "Secretary of State" insert "and the Authority".
 
      (4) After subsection (5) insert-
 
 
    "(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."
 
      (5) After subsection (6) insert-
 
 
    "(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."
 
      (6) In subsection (7), for "subsection (6) above" substitute "this section".
 
      (7) After subsection (8) insert-
 
 
    "(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."
 
      (8) In subsection (9), for "subsection (6)" substitute "subsections (6) and (6A)".
 
 
Consumer protection conditions
     3. After section 7 insert-
 
 
"Consumer protection conditions.     7A. - (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 206 of the Transport Act 2000 shall not apply; but
 
    (b) section 4 above shall apply (as if the Authority were the Regulator)."
 
Grant
     4. - (1) Section 8 (licences) is amended as follows.
 
      (2) In subsection (1)-
 
 
    (a) in paragraph (a) (grant by Secretary of State after consultation with Regulator), after "Regulator" insert "and the Authority", and
 
    (b) in paragraph (b) (grant by Regulator with consent of, or in accordance with general authority given by, Secretary of State), for the words after "consent" substitute ", or in accordance with a general authority, of the Secretary of State given after consultation with the Authority,".
      (3) In subsection (2) (general authority may require Regulator to consult, or obtain approval of, Secretary of State), for the words after "above" substitute-
 
 
    "(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."
 
      (4) In subsection (6) (certain licences not capable of being surrendered without consent of Regulator), for "without the consent of the Regulator" substitute "unless the Regulator and the Authority consent to the surrender".
 
      (5) In subsection (7) (grantor of licence to give copies)-
 
 
    (a) in paragraph (a), after "Regulator" insert ", to the Authority", and
 
    (b) in paragraph (b), after "Regulator," insert "to the Authority and".
 
Assignment
     5. - (1) Section 11 (assignment of licences) is amended as follows.
 
      (2) In subsection (2) (requirement of consent of whichever of the relevant authorities is specified), for the words after "consent of" substitute-
 
 
    "(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."
      (3) Omit subsection (3) (definition of "relevant authorities").
 
      (4) In subsection (4) (consent may be given subject to conditions imposed by person giving consent), for "the person giving the consent thinks fit to impose" substitute "are imposed by the person or persons giving the consent".
 
 
Modification
     6. - (1) Section 12 (modification by agreement) is amended as follows.
 
      (2) After subsection (1) insert-
 
 
    "(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."
 
      (3) In subsection (2) (notice by Regulator)-
 
 
    (a) for "under this section" substitute "of any conditions of a licence which do not relate to consumer protection", and
 
    (b) after "and shall" insert ", before making the modifications,".
      (4) In subsection (3) (giving of notice)-
 
 
    (a) after "subsection" insert "(1B) or", and
 
    (b) for "the Regulator" substitute "the Authority, or the Regulator,".
      (5) In subsection (4) (Regulator to send copy of modifications to Health and Safety Executive), after "to" insert "the Authority and".
 
     7. - (1) Section 13 (modification references to Competition Commission) is amended as follows.
 
      (2) In subsection (1) (making of reference), for "Regulator" substitute "appropriate authority".
 
      (3) After that subsection insert-
 
 
    "(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."
      (4) In subsection (2) (variation of reference), for "Regulator" substitute "appropriate authority".
 
      (5) In subsection (3) (matters which may be specified in reference or variation)-
 
 
    (a) for "Regulator" substitute "appropriate authority", and
 
    (b) for "his" (in both places) substitute "its".
      (6) In subsection (4) (notice of reference or variation)-
 
 
    (a) for "Regulator" substitute "appropriate authority", and
 
    (b) for "he" substitute "it".
      (7) In subsection (5) (copy to Secretary of State), for "Regulator" substitute "appropriate authority".
 
      (8) In subsection (6) (assistance to Commission)-
 
 
    (a) for "Regulator" substitute "appropriate authority",
 
    (b) for "his possession" substitute "the possession of the appropriate authority",
 
    (c) for "his opinion" substitute "the opinion of the appropriate authority", and
 
    (d) for "his power" substitute "the power of the appropriate authority".
     8. - (1) Section 14 (reports on modification references) is amended as follows.
 
      (2) In subsection (4) (report to Regulator), for "Regulator" substitute "appropriate authority".
 
      (3) In subsection (5) (publication by Regulator)-
 
 
    (a) for "Regulator" substitute "appropriate authority", and
 
    (b) for "he" substitute "it".
      (4) After that subsection insert-
 
 
    "(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."
 
      (5) In subsection (6) (direction to Regulator to exclude matters against public or commercial interests), for "Regulator" substitute "appropriate authority".
 
     9. - (1) Section 15 (modification following report) is amended as follows.
 
      (2) In subsection (1) (duty of Regulator to modify)-
 
 
    (a) for "Where" substitute "This section applies where", and
 
    (b) omit the words following paragraph (d).
      (3) After that subsection insert-
 
 
    "(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."
 
      (4) In subsection (2) (Regulator to have regard to modifications specified in report)-
 
 
    (a) after "making" insert ", or requiring the making of,", and
 
    (b) after "Regulator" insert ", or Authority,".
      (5) In subsection (3) (notice by Regulator), for "this section" substitute "subsection (1A) above".
 
      (6) After that subsection insert-
 
 
    "(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."
 
      (7) In subsection (4) (giving of notice)-
 
 
    (a) after "(3)" insert "or (3A)", and
 
    (b) after "the Regulator" insert ", or the Authority,".
      (8) In subsection (5) (Regulator to send copy of modifications to Health and Safety Executive), after "to" insert "the Authority and".
 
     10. In section 16(3) (Secretary of State to give copies of modifications under section 16), after "Regulator" insert ", to the Authority".
 
 
Enforcement
     11. - (1) Section 55 (orders for securing compliance) is amended as follows.
 
      (2) After subsection (5) insert-
 
 
    "(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 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)."
      (3) In subsection (10), in the definition of "the appropriate officer"-
 
 
    (a) in paragraph (a), after "holder" insert ", apart from a condition which relates to consumer protection,", and
 
    (b) in paragraph (b), after "to" insert "any condition relating to consumer protection in the case of a licence holder or to".
      (4) In subsection (11), for "(5A)" substitute "(5ZA)".
 
     12. In section 56 (procedural requirements), after subsection (2) insert-
 
 
    "(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."
 
 
Investigation
     13. In section 68(1)(a) (investigation by Regulator of contravention of licence condition), after "licence" insert "which does not relate to consumer protection".
 
     14. After section 71 insert-
 
 

"Other functions of the Authority
Investigatory functions.     71A. - (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."
 
 
Registers
     15. In section 72(2)(a) (matters about licences to be entered in register maintained by Regulator)-
 
 
    (a) in sub-paragraph (iii) (modifications and revocations of licences), insert at the end "and every requirement to modify conditions of a licence imposed on the Regulator by the Authority",
 
    (b) in sub-paragraph (iv) (revocation of licence exemptions), insert at the end "and every requirement to revoke a licence exemption imposed on the Regulator by the Authority",
 
    (c) in sub-paragraph (vii) (enforcement orders etc.), for "which relates" substitute "made by the Regulator in relation", and
 
    (d) after that sub-paragraph insert-
 
      "(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;".
     16. In section 73(2) (matters which Authority is to enter in register maintained by it)-
 
 
    (a) in paragraph (e) (provisions of enforcement orders etc.), for "which relates to" substitute "made by the Authority in relation to a licence or", and
 
    (b) at the end insert-
 
    "(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;".
 
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