House of Lords - Explanatory Note
Railways And Transport Safety Bill - continued          House of Lords

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Commentary on clause

149.     Clause 102 provides the Secretary of State with the power to make regulations to give effect to the new COTIF in the UK. Such regulations must be approved by both Houses of Parliament.

150.     Schedule 6 details the provision that may be made by regulations made under clause 100. There is already some railways legislation made at an EC level on matters addressed in the new COTIF. In those areas, the European Community has the right to act in place of the EC Member States in international railways matters. In order to recognise that some aspects of the new COTIF remain the responsibility of the UK, and others are the responsibility of the EC, the regulations made under clause 100 will be partly made under powers in this Bill and partly made under section 2 of the European Communities Act 1972.

Public sector financial and manpower cost

151.     It is not expected that implementation of COTIF into UK law will require any significant additional public expenditure, nor that there will be an additional public manpower burden.

Human Rights assessment

152.     The COTIF provisions of this Bill are considered to be compatible with the ECHR. One particular effect of the COTIF provisions of this Bill, and the regulations which may be made under those provisions, will be to ensure that certain dangerous goods may not be carried by rail. It is considered that where this interferes with a person's economic interests in running a business (protected by Article 1 of the First Protocol), this prohibition may be justified on general public interest grounds. The prohibition also goes towards ensuring that the UK upholds the Article 8 right to respect for a person's home which right could otherwise be affected by environmental blight or pollution from the carriage of those goods.

Clause 103: Office of Rail Regulation: general duties

153.     Clause 103 makes a minor amendment to Section 4(5) of the Railways Act 1993 by repealing the words shown in bold:

"The Office of Rail Regulation shall also be under a duty in exercising the functions assigned or transferred to it under this Part;

    (a) to have regard to the financial position of the [Strategic Rail] Authority in discharging its functions under this Part."

This ensures that the Office has regard to the Strategic Rail Authority's financial position in respect of all of its functions. It is a consequential amendment not picked up in the Transport Act 2000 arising from the creation of the Strategic Rail Authority in place of the Franchising Director. The Authority's financial position, unlike that of the Franchising Director, is not limited to discharging its functions under the Part of the 1993 Act referred to in the deleted words.

Clause 104: Railway safety levy

154.     Clause 104 extends to England, Scotland and Wales.

Background

155.     Under the Health and Safety at Work etc Act 1974, the Health and Safety Executive (HSE) is responsible for a range of regulatory work including inspection activities applied to the rail industry. Since October 1999, there has been a charge for this work, on an hourly basis. Such charges only cover part of the cost of HSE's work on railway safety; for example they do not cover work relating to policy-making or all operational activities.

156.     Ministers agreed that the impact of charging would be reviewed after two years. The review revealed that the existing charging regime was seen as bureaucratic, and stakeholders could not easily budget for charges. HSE held a consultation exercise with industry stakeholders on the principle of a railway safety levy between the end of November and 20th December 2002.

157.     Regulations to require the payment of a levy require primary legislation, because levies cannot be imposed under Regulations made under section 43(2) of the Health and Safety at Work etc Act 1974 (which provides vires for the existing charging regime).

Commentary on clause

158.     Clause 104(1) inserts a new section 43A in the Health and Safety at Work etc Act 1974, giving the Secretary of State power to make regulations introducing a compulsory railway safety levy on the railway industry. The Health and Safety Commission will be able to propose such regulations to the Secretary of State after consultation.

159.     Clause 104(2) amends section 28(1)(a) of the Health and Safety at Work etc Act 1974 so that information provided under the proposed regulations will be subject to the provisions of that section.

Public sector financial and manpower cost

160.     As the purpose of a rail safety levy would be to fund the existing and planned railway safety activities of HSE in a different way, it is not considered that there will be any additional public sector financial or manpower costs.

Human Rights assessment

161.     This clause potentially engages Article 1 (right to the peaceful enjoyment of possessions) of the European Convention on Human Rights. The right under Article 1 is qualified by Article 1(2), which says that:

"this shall not in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest, or to secure the payment of taxes or other contributions or penalties."

162.     The Government considers that the provisions of new section 43A are compatible with the Convention.

Clause 105: Railway security services

163.     This clause extends to England, Wales and Scotland. It amends the Railways Act 1993 by adding a new section 121A.

Background

164.     The Secretary of State for Transport has the power to serve instructions (under the Railways Act 1993) on owners and operators of relevant railway assets (networks, stations, light maintenance depots, track or rolling stock) and anyone who provides a railway service. These would detail the security provisions they must implement to protect the travelling public, staff and infrastructure.

165.     Revised instructions covering the security of stations are currently being drafted, and are expected to be served on the industry in the summer of 2003. Further instructions covering other aspects of the rail network will be issued through 2003 and 2004. These instructions will give legal force to current security requirements contained in the National Railways Security Programme.

166.     It is expected that the instructions will include requirements for the searching of stations, trains and other facilities and screening of baggage at left-luggage facilities.

167.     Where the person who is required to comply with the instruction chooses to contract out such security work, the new clause will allow the Secretary of State to ensure that only persons approved by him can carry out the work (or train others to carry it out).

168.     A similar clause in the Anti-Terrorism, Crime and Security Act 2001, gave the Secretary of State the same listing powers with regard to security providers to the aviation industry. Under the Channel Tunnel Act 1987, similar powers are already available covering the Channel Tunnel industries. The new clause will ensure that the Railway industry is consistent with these.

Commentary on clause

169.     This clause only creates an enabling power. Regulations will have to be drafted, made and laid before the Parliament before listing can have statutory effect.

Public sector financial and manpower cost

170.     The railway security measures will probably require slight additional public expenditure over and above that already required to administer the listing of aviation security providers, but this is unlikely to amount to more than a few days of staff time in processing applications.

Human Rights assessment

171.     The amendment to the Railways Act 1993 does not appear to involve any conflicts with the Human Rights Act 1998. Article 6 (right to fair trial) of the European Convention on Human Rights is potentially engaged, but there must be provision in the regulations for an appeal if a person ceases to be approved and is withdrawn from the list. Similarly Article 7 (no punishment without law) is potentially relevant, but any criminal offences created by the new regulations will not operate retrospectively, so it is considered that this clause is compatible with the Convention.

Clause 106: Road traffic: fixed penalty

172.     Clause 106 is a drafting amendment to correct an error to ensure that Section 76(2) of the Road Traffic Offenders Act 1988 makes sense. It now reads:

"No proceedings shall be brought against any person for the offence to which the conditional offer relates until—

    a) in England and Wales, the person by or on whose behalf the conditional offer was sent

receives notice in accordance with subsection (4) or (5) below"

Clause 107: Seat belts: delivery drivers

173.     Clause 107 replaces the current provisions of section 14(2)(b)(i) of the Road Traffic Act 1988. Section 14 is an enabling power under which the Secretary of State may make regulations requiring persons to wear seat belts when driving or riding in motor vehicles. Subsection (2)(b) provides that any such regulations must include the specified exceptions.

174.     The revised exception would apply to goods vehicle drivers and passengers when undertaking deliveries or collections. It would be based on the prescribed distance that may be travelled without a seat belt. At present the exception is available to those vehicle users "engaged in making local rounds of deliveries or collections" without prescribing clear criteria for establishing when a person is so engaged.

Clause 108: Snow and ice

175.     This clause extends to England and Wales. Clause 108 provides a duty on a highway authority to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow and ice.

Background

176.     On 15th June 2000, in the case of Goodes v East Sussex County Council, the House of Lords decided that the duty of a highway authority, under section 41 of the Highways Act 1980, to maintain a highway did not include a duty to keep the highway safe by preventing ice from forming. They considered that if such a duty were desirable, that would be a matter for Parliament.

177.     The duty provided by this clause is similar to one already existing in Scotland, contained in section 34 of the Roads (Scotland) Act 1984.

Clause 109: Shipping legislation: application to structures, craft &c.

178.     This clause extends throughout the United Kingdom.

179.     Clause 109 provides a new, extended power for the Secretary of State to make an order so that any shipping provision may be applied, disapplied or modified in relation to things used on water.

180.     A "shipping provision" is defined so that it could include a provision made in this Bill (when enacted) or in the Merchant Shipping Act 1995, or in subordinate legislation made under either Act, or a provision made in or under another Act. To be a shipping provision it must also expressly apply in relation to ships, vessels or boats.

181.     The order may provide for other legislation to take precedence, for example where there are relevant harbour byelaws in place.

182.     The Secretary of State may use the power in order to apply the provisions of the Bill relating to alcohol testing of mariners to users of personal watercraft (such as jetskisTM ), or to those in charge of chain ferries. Current case law casts doubt on whether these things would otherwise be "ships" for the purposes of Part 4 of the Bill.

183.     An order could also be made in order to apply the UK's merchant shipping regulations relating to the prevention of collisions to personal watercraft, even if they are not being used "at sea". Regulations relating to the survey of ships could be made to apply to chain ferries by means of such an order. And an order could be used in order to clarify the application of other legislation, where the enactment of new legislation might cast doubt - for example under various Acts relating to public health and regulation of activities near the seashore.

Clause 110: Maritime security services

184.     This clause extends to the whole of the United Kingdom. It amends the Aviation and Maritime Security Act 1990 by adding a new section 36A.

Background

185.     The Secretary of State for Transport has the power to serve directions (under the Aviation & Maritime Security Act 1990) on various classes of people operating in the maritime industry, detailing the counter-terrorist security provisions which they must implement to protect the travelling public, staff and infrastructure.

186.     Directions served on operators include such requirements as the screening of passengers, staff, visitors, luggage and ships' stores.

187.     Where the directed person chooses to contract out such security work, clause 107 will allow the Secretary of State to ensure that only companies listed by him can carry out the work (or train others to carry it out).

188.     A similar clause in the Anti-Terrorism, Crime and Security Act 2001, gave the Secretary of State the same listing powers with regard to security providers to the aviation industry. Under the Channel Tunnel Act 1987, similar powers are already available covering the Channel Tunnel industries. The new clause will ensure that the maritime industry is consistent with these.

Commentary on clause

189.     This clause only creates an enabling power. Regulations will have to be drafted, made and laid before Parliament before listing can have statutory effect.

Public sector financial and manpower cost

190.     The maritime security measures will probably require slight additional public expenditure over and above that already required to administer the aviation security providers listing, but this is unlikely to amount to more than a few days of staff time in processing applications.

Human Rights assessment

191.     This amendment to the Aviation and Maritime Security Act 1990 does not appear to involve any conflicts with the Human Rights Act 1998. Article 6 (right to fair trial) of the European Convention on Human Rights is potentially engaged, but there must be provision in the regulations for an appeal if a person ceases to be approved and is withdrawn from the list. Similarly Article 7 (no punishment without law) is potentially relevant, but any criminal offences created by the new regulations will not operate retrospectively, so it is considered that this clause is compatible with the Convention.

Clauses 111 and 112: Railways in London: transfers & information

192.     This Part extends to England, Wales and Scotland.

Background

193.     The Greater London Authority Act 1999 (GLA Act) envisaged the transfer of London Underground (LUL) from London Regional Transport (LRT) to Transport for London (TfL) after the Public Private Partnership agreements for the London Underground had come into effect. This Bill provides a mechanism to allow contracts to operate as intended on transfer from London Regional Transport to Transport for London, and on any subsequent transfer between Transport for London's subsidiaries.

194.     The Greater London Authority Act 1999 did not contemplate the possibility of a significant delay between completion of a Public Private Partnership agreement and transfer of the London Underground to Transport for London. This Bill therefore also allows for certain provisions in the GLA Act relating to public private partnership agreements for the London Underground and the special insolvency provisions to come into effect before the transfer of the London Underground to Transport for London.

Commentary on clauses

195.     Clause 111(1) will enable a transfer scheme made under section 409 of the GLA Act to exempt LRT's/LUL's contracts from section 412(3) of that Act, and subsection (4) ensures that the exemption will continue to apply where a subsequent transfer scheme is made under paragraph 2(3) of Schedule 12 to that Act. Subsection (2) will enable Transport for London to exempt contracts from paragraph 2(3) of Schedule 12 to that Act. These parts of the GLA Act may otherwise frustrate parts of contracts made by LRT/LUL or Transport for London, such as change of control provisions, which are designed to operate when transfer schemes are made.

196.     Subsection (3) ensures that London Transport and Transport for London, when exempting contracts from section 412(3) of the GLA Act or paragraph 2(3) of Schedule 12 to that Act, may exempt either all the contracts being transferred, or a specific contract, or particular provisions within those contracts.

197.     Clause 111(5) enables provisions of the GLA Act which relate to the insolvency and winding up of a London Underground public private partnership company, and the return of its assets to the public sector, to come into effect before the transfer of London Underground to Transport for London. The GLA Act did not contemplate the possibility of a significant delay between completion of a PPP agreement and transfer of the London Underground to Transport for London. Clause 111(6) will allow the insolvency provisions in sections 220 to 224 of the GLA Act to come into force before the transfer of LUL to Transport for London.

198.     Clause 112 enables the London Underground PPP Arbiter to receive information from those statutory bodies to whom he is permitted by the GLA Act to release information. The GLA Act allows the PPP Arbiter to release information about specific individuals and their businesses to regulators of other industries to help them fulfil their statutory functions, but without clause 112 it does not allow him to receive such information from them.

Public sector financial and manpower cost

199.     The railways in London measures will not require any additional public expenditure over and above that envisaged in LRT's/LUL's contracts, or entail any additional public sector manpower burden.

Human Rights assessment

200.     The amendments to the Greater London Authority Act 1999 do not appear to involve any human rights implications, so the provisions of the Bill concerning the Greater London Authority Act 1999 are compatible with the Convention.

Part 7 - General

Clause 113: Schedules 1 & 4: sequestration, &c. in Scotland

201.     Clause 113 sets out the circumstances in which liability to removal from membership of the Office of Rail Regulation and ineligibility for membership of the British Transport Police Authority on grounds of bankruptcy in Scotland shall cease.

Clause 114: Interpretation: enactment

Clause 114 clarifies the meaning of 'enactment' in this Bill

Clause 116: Money

202.     Clause 116 confirms that the money for new expenditures caused by this Bill will come from money provided by Parliament. The Secretary of State will therefore be asking Parliament to pass the appropriate financial resolutions.

Clause 117: Commencement

203.     Subsection 3 provides for transitional arrangements to be made if commencement of the Office of Rail Regulation takes place before legislation establishing bankruptcy restrictions orders has come into place. This is relevant because paragraph 2(c) of Schedule 1 allows an Office member to be dismissed if he is the subject of a bankruptcy restrictions order (or an interim order). These new orders are provided for in the Enterprise Act 2002, but the relevant provisions of that Act are not yet in force.

Schedule 1 - Office of Rail Regulation

204.     This Schedule sets out how the Office of Rail Regulation will be constituted, staffed and financed.

205.      Paragraphs 6 and 7 allow the Office to establish committees and to delegate its functions to such committees. Membership of those committees is not limited to Office members and employees. This enables the Office to bring outside expertise to committees, which may be advisory or decision making and deal with specific tasks or have continuing functions.

206.     Paragraph 12 enables someone who has been an employee of the Office and who then becomes a member to have his service as a member treated as civil service employment for pension purposes.

207.     Paragraph 18 requires the Office to make arrangements to manage potential or perceived conflicts of interests which could affect the performance of a particular function and, as well as members, covers employees and others appointed to committees.

  • Paragraph 18(1) requires declaration and withdrawal from involvement where a financial or other personal interest is likely to influence a person's performance of a particular function.

  • Paragraph 18(2) applies where an interest is not in fact likely to influence a person's performance of the function, but which is nonetheless relevant to that function. In such a case, the interest must be declared and the person must not perform that function, unless the Office decides that he may do so.

Schedule 2 - Abolition of Rail Regulator: consequential amendments

208.     This Schedule amends legislation so that existing references to the Regulator will be substituted with references to the Office of Rail Regulation and includes related minor drafting changes.

Schedule 3 - Abolition of Rail Regulator: savings, etc.

209.     The effect of this Schedule is that anything done by the Regulator prior to the transfer of his functions to the Office of Rail Regulation will continue to be valid as if it had been done by the Office. Similarly, anything in the process of being done by, or in relation to, the Regulator will be continued by, or in relation to, the Office.

210.     Paragraph 6 makes it clear that the Bill does not affect the International Rail Regulator in any way. That is a separate office, which will continue to exist.

Schedule 4 -British Transport Police Authority

Membership of the Police Authority

211.     The Secretary of State will be responsible for appointing the members of the Authority, including the chairman and vice-chairman. It is envisaged that the Authority will normally consist of 13 members. Paragraph 1 restricts the number of members between 11 and 17, although the Secretary of State may by order change these numbers after consulting with the Authority. Paragraph 2 provides that the Authority's membership should include persons who can provide knowledge and experience of the issues that concern passengers, the railways industry and the regions. As with the Service Authorities for the National Criminal Intelligence Service and the National Crime Squad the Secretary of State will be responsible for appointing the members who will undertake the roles of chairman and vice-chairman.

Pensions

212.     Paragraphs 24 to 26 make provision in relation to pensions. Paragraph 24 enables the Secretary of State to make amendments to the occupational pension scheme for constables of the Authority. The scope of amendments would be limited. The provision intends to enable amendment of the trust documentation for the scheme, to recognise the new status of the Authority and its relationship with the Secretary of State, but not to provide for changing the pension benefit structure or winding up the scheme. Any amendments, on which there would be prior consultation with the scheme trustees, would be consistent with the members' historic protected rights under Schedule 11 to the Railways Act 1993.

213.     Paragraph 25 enables the Authority, with the Secretary of State's consent, to set up new arrangements to provide for retirement benefits for staff.

Schedule 6 - Convention on International Carriage by Rail

214.     Paragraph 1 makes clear that regulations under Schedule 6 may be made under both powers in the Bill or of the European Communities Act 1972.

215.     Paragraphs 2, 3, 4, and 5 list the provisions which may be included in regulations made under clause 102. The powers may only be exercised for the purposes of giving effect to the new COTIF. They include, but are not limited to, the power to:

  • give effect to the new COTIF in UK law,

  • change UK law for the purposes of giving effect to the new COTIF,

  • make provision for certain future changes to the new COTIF automatically to form part of UK law; and

  • impose conditions before any person may exercise a right or do something to which the Convention applies.

216.     In particular paragraph 3 will enable regulations to provide that most changes to the new COTIF which take place in future will flow through directly into UK law. This is intended to cater for the provisions in the new COTIF which allow certain technical changes to the terms of the Convention to be made by a Committee process and automatically to come into effect: an example might be the adoption of a new uniform technical prescription under the APTU appendix to the new Convention. Although the Government proposes that most modifications to the new COTIF and its appendices will flow through in to UK law, the Government's intention is that modifications made by the General Assembly (which is composed of the new COTIF's signatory states) should require specific approval by Parliament. This is because such modifications could potentially be of greater impact in the UK.

217.     Other provision which may be contained in regulations made under clause 102 are as follows:

218.     Paragraph 6 enables the creation, in the regulations made under clause 102, of sanctions (including criminal sanctions) for the purposes of ensuring that a duty under the new COTIF may be enforced. The effect of paragraph 6(3) is to allow regulations made under 100 to provide for greater sanctions than permitted in paragraph 6(2), but only in respect of the enforcement in the UK of parts of the new COTIF for which the EC is responsible. Such sanctions would also however be limited by the provisions of Schedule 2(1)(d) to the European Communities Act 1972.

219.     Since the new COTIF covers the international carriage of passengers and freight, paragraph 7 would allow regulations to make provision to ensure that a person does not recover damages in more than one country. That is, prevent double recovery. Provision could also be made to allow a UK court to take account of actual or potential legal proceedings outside the UK, when taking decisions during UK proceedings.

220.     Paragraph 8 enables regulations to be made which deal with the enforcement of judgements, which may in particular deal with the enforcement of foreign judgements.

221.     Paragraph 9 provides that the regulations made under clause 102 may make provision for the "Special Drawing Right" (the new COTIF's international currency unit) to be converted into sterling.

 
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Prepared: 2 April 2003