Select Committee on Delegated Powers and Regulatory Reform Eighteenth Report


Annex 2

RAILWAYS AND TRANSPORT SAFETY BILL

Memorandum by the Department for Transport

47.  This Memorandum is concerned with the Railways and Transport Safety Bill. It

identifies provisions of the Bill which confer powers for delegated legislation,

describes their purpose,

explains in each case the reason why the matter has been left to delegated legislation, and

explains the degree of Parliamentary control provided for the exercise of the powers and why it is thought appropriate.

For completeness, it also mentions important powers such as powers to make directions which are not exercisable by statutory instrument. At the end of the Memorandum, for the Committee's reference, is a table listing each of the powers contained in the Bill, the nature of the power and the manner of Parliamentary control.

PART 1 - INVESTIGATION OF RAILWAY ACCIDENTS

48.  The Rail Accident Investigation Branch ("RAIB") is being established to investigate the causes of railway accidents and incidents with a view to learning lessons and fostering a safer railway. The Bill sets out the framework for the RAIB but the Department considers it appropriate that the detail should be provided for in regulations, to ensure that there is sufficient flexibility to adapt to changing circumstances and to avoid unnecessary detail clouding the framework which is properly set out in primary legislation. The Air and Marine Accident Investigation Branches are already governed by regulations for the same reasons.

Clause 1 - Meaning of "railway" and "railway property"

49.  Clause 1(2) provides the Secretary of State with a power to amend clause 1 by regulations. This power is to allow the Secretary of State to amend the definition of "railway" and "railway property" - which phrases are used in Part 1 of the Bill. This power is to ensure that the remit of the RAIB can be extended to cover future rail transport innovations.

50.  Where a new form of rail-based transport is in future developed, it might not otherwise be a railway or tramway for the purposes of section 67 of the Transport and Works Act 1992. With the development of new rail innovations, such as Cardiff's proposed "ULTRA" rail based transportation system, it may be appropriate to widen the meaning of "railway" to include such modes within the investigative remit of RAIB, if such systems were not otherwise caught. Clause 1(2) would allow regulations to be made to include new rail-based transport modes within the meaning of "railway" in clause 1(1), ensuring that the RAIB's remit extended to that new mode.

51.  Being able to amend the definition of railway property would allow new types of property connected with the railways to be included within the definition of "railway property", if this was considered appropriate. Such an addition would ensure, once the property in question was deemed a constituent of "railway property", that an RAIB inspector has, for example, a power to enter that property under clause 7(1)(a) for the purposes of conducting an investigation in to a railway accident.

52.  Anything which would not naturally lend itself to being described as railway property or a railway would not be included at a later date. If the Secretary of State exercises the power to make regulations under clause 1(2), clause 12(2) requires that they be made by statutory instrument and clause 13(3) requires that they be made by affirmative resolution procedure. This is appropriate as the regulations would be amending a definition in primary legislation.

53.  The effect of clause 1(3) with clause 14(2) is that the RAIB's remit cannot be extended by means of the power in clause 1(2) to include tramways in Scotland. Such matters would ordinarily be for the Scottish Parliament to legislate on.

Clause 2 - Meaning of "railway accident" and "railway incident"

54.  Part 1 of the Bill makes provision in respect of "railway accidents" and "railway incidents" on railway property so far as it is or may be relevant to the operation of the railway. It is therefore important that it is clear what is meant by the use of these phrases. The Secretary of State is able, under clause 2(2), to make regulations to provide for what is and is not a railway accident or incident, the circumstances when an accident or incident is or is not relevant to the railways and what types of accident are to be treated as "serious". This is important because clause 7(1) makes provision on the face of the Bill that RAIB must investigate serious accidents, and that it can choose or be required by regulations to investigate non-serious accidents and incidents.

55.  This is to be dealt with by regulations so as to avoid unnecessary detail on the face of the Bill about circumstances which are and are not to be treated as accidents and incidents. The air and marine accident investigation regimes also define accidents and incidents in secondary legislation. For example, it is expected that any kind of train impact or crash in which a person dies would be defined as a serious accident with the consequence that RAIB would have to investigate it. Conversely, it is expected that the regulations would be framed so as exclude from RAIB's remit an accident at a train station where a person dies, but that person's death was caused by them falling down an escalator. As the person's death in the latter instance would not actually be relevant to the operation of the railway as a whole, it would not be appropriate for RAIB to investigate that death. The Health and Safety Executive would remain responsible for investigating these types of accidents.

56.  Clause 2(3) would allow the Secretary of State to make provision in regulations for the Chief Inspector of Rail Accidents to be given a discretion, for example as to whether he should investigate less serious rail accidents and incidents, or whether to agree to provide assistance to other bodies, as permitted under clause 5.

57.  Clause 2(4) particularises that where regulations are made under clause 2(2), they may make provision that a railway incident may also be defined so as to include matters which do not in themselves lead to an damage or loss, but which could have done so - e.g. near-misses or precursors to accidents and incidents. The intention is that the RAIB should not only investigate after an accident or incident has resulted in damage or loss. It may be appropriate for RAIB to investigate occurrences that did not result in damage or loss, but which could have done so if the circumstances had been slightly different and the facts suggest that important safety lessons may be learnt.

58.  Clause 13(2) provides that the regulations made under clause 2 will be made by statutory instrument and clause 13(4) provides that they are subject to the negative resolution procedure, which is appropriate given the level of detail that may be required in the regulations and that the framework of the RAIB has already been established by primary legislation.

Clause 6 - Annual Report

59.  Clause 6 allows the Secretary of State to make regulations requiring an annual report for the RAIB. The regulations will in particular make provision about when the report should be published, its content (and it is intended that it should include details of safety recommendations made in that year) and the way in which the reports should be published. Under clause 13(2) the regulations will be made by statutory instrument and under clause 13(4) they will be subject to the negative resolution procedure, as is appropriate for procedural provisions of this kind.

Clause 9 - Regulations

60.  Clause 9 allows the Secretary of State to make regulations about the way in which the RAIB conducts its investigations, reports its findings, and deals with information that it acquires during its investigations. Regulations made under this clause will be concerned with the detail of the day-to-day role of the RAIB, and the practicalities it has to deal with. Changes may need to be made reasonably regularly to adapt to changing circumstances and it is therefore appropriate that the detailed provision is in secondary legislation. Under clause 13(2) the regulations will be made by statutory instrument and under clause 13(4) they will be subject to the negative resolution procedure. This is consistent with similar regulations made for the air and marine accident regimes.

61.  Clause 9(1) allows the Secretary of State to make regulations on the way in which the RAIB is to conduct its investigations. This could include providing that a particular function in respect of investigations, such as a decision making function, is conferred upon the Chief Inspector. As an accident inspector may not have the necessary expertise to deal with a particular aspect of an accident or incident, it would allow the appropriate expert to join the RAIB investigating team. For example, a train crash might occur under a railway bridge, and even have been caused in part by the presence of that bridge. In such cases it could be appropriate for a structural engineer to assist in the investigation, so that an assessment as to how best to proceed with the investigation in safety or an assessment made as to how the bridge's design may have exacerbated the effect of the accident. The words "in particular" are included in clause 9(1) to allow the regulations to make provision in addition to that contained in sub-section (1)(a)-(f).

62.  Clause 9(2) would allow the regulations to make detailed provision on what is required of RAIB reports on accidents and incidents. The purpose behind establishing the RAIB is for safety lessons to be learnt quickly, so the production of its report will be a key function of the RAIB. With this in mind, it is important that there are clear parameters set for such reports. To avoid the need for detailed provision on the face of the Bill, regulations made under clause 9(2) would contain those parameters.

63.  It is intended that a report will always have to address the cause of an accident, and clause 9(2)(a) makes express provision for this. Other provisions of clause 9(2) are to enable the Secretary of State to make provision which is, where appropriate, consistent with that already made in respect of reports of the Air Accidents Investigation Branch ("AAIB") under the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI 1996/2567) ("the Air Regulations"), and the Marine Accident Investigation Branch ("MAIB") under the Merchant Shipping (Accident Reporting and Investigation) Regulations 1999 (SI 1999/2798) ("the Marine Regulations"). The Committee is therefore referred to these regulations for the type of provision the Department broadly intends the power will be used to make. The following table details certain provisions of the Air and Marine Regulations; clause 9(2) will allow similar provision to be made in respect of the RAIB reports.

Clause in Bill
SummaryCorresponding regulation in:

Air Regulations Marine Regulations
9(2)(a)
Report to address cause of accident/incident - -
9(2)(b)
Report to make/not make safety recommendations 11(3)8(5) & 11
9(2)(c)
Interim Reports - -
9(2)(d)
Giving affected persons opportunity to comment 1210(2)-(6)
9(2)(e)
Giving affected persons notice before report publication 1210(2)-(6)
9(2)(f)
Giving a copy of report 11(6) & 12(4)10(8)
9(2)(g)
Timing of publication of report 1310(1)

64.  Much of the information obtained by the RAIB will be highly sensitive and may be sought by third parties such as prosecutors or the media. It is important therefore to ensure that all persons are clear about the way in which that information may and may not be used and disclosed. Clause 9(4) will allow the Secretary of State to make regulations which make detailed provision for this.

65.  So that people feel that they can talk freely to an RAIB inspector, without fear that what they say might be used in another context, the Department intends that no statement given to an RAIB inspector will be allowed to be disclosed to any third person unless:

the person who gave the statement decides themselves that it can be disclosed; or

the court orders it to be disclosed.

66.  It is intended that regulations made under clause 9(4) will establish the framework for this, including provision which will allow a party to seek an order from the court for disclosure. Clause 9(5)(c) makes further provision for this. As part of that disclosure framework, it is intended that a public interest test will be built in - that is, the court should only order the disclosure of the information if, having heard the competing interests of the parties, it considers that it is in the public interest to order disclosure.

67.  There may be occasions when the Chief Inspector considers that information that the RAIB has acquired has been given to it in order to frustrate the RAIB in its tasks. For example, a person might have given information which is clearly misleading. That person might be committing an offence under clause 8(3), and so in such circumstances the RAIB would need to be able to disclose that information to an appropriate investigator for the purpose of investigating a clause 8(3) offence. Regulations made under clause 9(4) would therefore make provision for the disclosure of that information in such circumstances.

68.  The power in clause 9(5)(a) to create offences, punishable by fines only, would allow, for example, penalties to be created for the unauthorised disclosure of draft RAIB reports sent to persons in accordance with provision made under clause 9(2)(d).

Clause 10 - Requirement to investigate

69.  Clause 10 does not confer a power to make secondary legislation by statutory instrument, but it does permit the Chief Inspector of Rail Accidents to make directions that accidents and incidents are to be investigated by those persons who manage or control, or participate in the management or control of railway property. Such a direction will be used to ensure that undertakings in the rail industry investigate accidents and incidents themselves. Industry investigations already occur at present. This will also be particularly important in respect of the more minor incidents, or precursors to incidents, where the RAIB may not actually investigate itself (although the RAIB will wish to know about such incidents).

70.  Clause 10(7) is phrased so as to permit the direction to make provision which applies differently depending on the circumstances. This would allow the Chief Inspector to make provision, for example, that train operating companies must investigate in a different way to network operators.

Clause 11 - Accident Regulations

71.  Clause 11 is to allow the Secretary of State to make provision so that RAIB can find out about accidents in the first place. RAIB will not be able to undertake its investigation function if it does not know that an accident or incident has occurred. This clause will therefore allow regulations to be made which require people to inform RAIB of such occurrences within a given time. Similar provision is contained in regulation 5 of the Marine Regulations and regulation 5 of the Air Regulations.

72.  To ensure that the scene of an accident or incident is preserved, and evidence left unharmed, clause 11(3) will allow the regulations to make provision that the scene of the accident or incident must be left untouched by any person unless RAIB (or such other person as the regulations specify) says otherwise. This requirements will be backed up in regulations by means of the creation of an offence as provided for in clause 11(4).

73.  Again, changes may need to be made reasonably regularly to adapt to changing circumstances and it is therefore appropriate that the detailed provision is in secondary legislation. Under clause 13(2) the regulations will be made by statutory instrument and under clause 13(4) they will be subject to the negative resolution procedure. This is consistent with the Marine and Air Regulations.

PART 2 - OFFICE OF RAIL REGULATION

74.  There are no delegated powers in this Part of the Bill.

PART 3 - BRITISH TRANSPORT POLICE

75.  The new arrangements for the organisation of the British Transport Police ("BTP") are designed to make, so far as possible, similar provision to that made for Home Department Police Forces under the Police Act 1996.

76.  Clauses 35-39 of the Bill provide for regulations to be made by the new British Transport Police Authority ("the Authority"), with a duty that they should as far as possible make similar provision to regulations made by or under the Police Act 1996 in respect of Home Department police forces. Regulations made by the Authority will not be statutory instruments and will not be subject to Parliamentary control, as they concern matters such as governance, administration, and terms and conditions of employment which are essentially internal matters.

77.  Part 3 also enables the Secretary of State to make regulations by statutory instrument. In most cases those powers also carry a duty to make similar provision to regulations made in respect of Home Department police forces by or under the Police Act 1996. It is considered appropriate to use delegated powers to avoid unnecessary replication in primary legislation of matters already addressed in Home Department police primary legislation.

78.  Regulations made by the Authority or the Secretary of State will not be able to make the same provision as that made by or under the Police Act 1996 in every instance. As a national, as opposed to a regional police force, it is not appropriate that the new BTP arrangements mirror the Home Department police forces and their corresponding police authority in every regard. Another reason why the arrangements cannot be exactly the same is because the BTP is funded from the private sector rather than the public purse.

Clause 21 - Chief Constable

79.  The Chief Constable is to be appointed by the Authority under clause 21(1). The appointment must be approved by the Secretary of State and be made in accordance with any non-statutory regulations made by the Authority under clause 35, and any statutory regulations made by the Secretary of State under clause 41. As the Authority (rather than the Secretary of State), appoints the Chief Constable it is important that the Authority does not also set the rules on the Chief Constable's suspension and removal from office. Clause 21(4) therefore allows the Secretary of State to make regulations about the suspension and removal of the Chief Constable. Clause 21(5) sets the parameters as to what may be included in such regulations. So for example, clause 21(5)(a) would allow the regulations to apply provisions of the Police Act 1996 (modified where necessary to suit the needs of the BTP) or make similar provision to the Police Act 1996 (or provision made under that Act). The Department intends that the Secretary of State's regulations would, for example, make similar provision (with modifications if necessary) to the "removal" elements of section 11 Police Act 1996. Clause 21(6) requires the Secretary of State to ensure that his regulations differ from the provisions of the Police Act 1996 only so far as is necessary to reflect the structure and circumstances of the BTP.

80.  Clause 21(7) sets out who the Secretary of State is to consult before he makes such regulations. It requires that the Authority and Chief Constable must be consulted, but would also allow the Secretary of State to consult other interested parties.

Clauses 22 (Deputy Chief Constable) & 23 (Assistant Chief Constables)

81.  The Authority is to appoint a Deputy Chief Constable and Assistant Chief Constables. By clauses 22(1) and 23(1) their respective appointments are to be subject to the Secretary of State's approval and in accordance with any non-statutory regulations made by the Authority under clause 35. As for the Chief Constable, the Secretary of State is given the power in clauses 22(5) and 23(5) to make regulations about the suspension and removal of the Deputy and Assistant Chief Constables. The power is equivalent to that in respect of the Chief Constable described above.

Clause 28 - Terms of Employment

82.  Clause 28(1) enables the Secretary of State to issue a document to the Authority setting out rules and principles concerning the terms and conditions of employment of the constables and civilian staff employed by the Authority. The Authority is required to comply with the rules and principles set out in that document. This is primarily to ensure that the pay and conditions of the Authority's employees remain consistent with Home Office police force equivalents. Clause 28(2) gives particular examples of matters on which the Secretary of State may issue rules and principles. It would allow, for example, the Secretary of State to set rules and principles on pay scales for constables, so that the Authority's pay scales for constables remain consistent with those for Home Office constables. The document is not a statutory instrument nor subject to any Parliamentary control.

Clause 33 - Compulsory Police Services Agreement

83.  The Authority is to be funded by means of police services agreements (clause 32). This is much the same system as currently exists for Strategic Rail Authority's ("SRA") funding of the BTP. At present, most train companies are required, as a condition of their licence granted under provisions of the Railways Act 1993, to enter in to such an agreement with the SRA. That agreement forms the basis by which the BTP is funded by the railways industry.

84.  For the future, clause 33(1) makes provision for compulsory funding, by enabling the Secretary of State to require by order individuals and classes of individuals who provide railways services to enter in to police services agreements with the Authority. Before making such an order, the Secretary of State is required under clause 33(5) to consult such persons individually first. This would give such persons the opportunity to explain why they considered that they should not be required to enter in to such an agreement. Each order will be made by statutory instrument and will be subject to the negative resolution procedure (clause 73(2) and (5)), as is appropriate for an order specific to an individual company.

Clause 35 - Police Regulations: General

85.  This clause allows the Authority to make non-statutory regulations about the government, administration and conditions of service of constables and other persons employed by the Authority. Such regulations must be approved by the Secretary of State and others under clause 39. In accordance with the Bill's intention of replicating the Police Act 1996 where appropriate, clause 35(1) provides that such regulations may with or without modifications, apply regulations made under section 50 of the Police Act 1996. Alternatively, where there is no provision to apply or modify yet, the regulations can make provision which deals with matters which could be dealt with by regulations made under 50 of the Police Act 1996. Where regulations have already been made under section 50 Police Act 1996, clause 35(3) requires the Authority to ensure that its non-statutory regulations make the same provision, differing only where necessary to meet the specific needs of the BTP. Where regulations have not been made on a specific topic under section 50, but which could be made, the Authority is not required to mirror anything. The clause 35(3) duty will apply to the Authority's regulations as and when statutory regulations are made on that topic under section 50, at which point the Authority will have to consider whether it must amend its non-statutory regulations.

86.  Examples of regulations which have already been made under section 50 include:

  • Police (Conduct) (Senior Officers) Regulations 1999, SI 1999/731
  • Police (Efficiency) Regulations 1999, SI 1999/732
  • Police (Amendment) Regulations 2001, SI 2001/3293
  • Police (Promotion)(Amendment) Regulations 2002, SI 2002/767.

87.  The Police Regulations 1995, SI 1995/215, although originally made under the Police Act 1964, are now deemed to have been made under section 50 Police Act 1996.

88.  The regulations mentioned in the previous two paragraphs are examples of regulations which the Authority would have to seek to replicate in its own regulations.

89.  Where the Authority makes regulations under clause 35(1), it is required by clause 35(2) to ensure that it also makes similar provision to that made by or under sections 84 and 85 Police Act 1996. Those sections and the regulations made under them make provision on the representation of constables at disciplinary hearings, for appeals against their dismissal, a requirement for them to resign or their demotion.

90.  Examples of regulations which have already been made under sections 84 and 85 include:

  • Police (Conduct) Regulations 1999, SI 1999/730
  • Police Appeals Tribunals Rules 1999, SI 1999/818.

Clause 36 - Police Regulations: special constables

91.  Clause 36(1) permits the Authority to make non-statutory regulations about the government, administration and conditions of service of special constables appointed by the Authority. Its scope and operation is similar to that of clause 35, save that clause 36 binds the Authority to section 51 Police Act 1996. It can only make different provision if necessary to suit the needs of the BTP.

92.  The Special Constables Regulations 1965, SI 1965/536, although originally made under the Police Act 1964, are now deemed to have been made under section 51 Police Act 1996.

Clause 37 - Police regulations: cadets

93.  Clause 37 operates in exactly the same way as clause 36, albeit in respect of cadets. The corresponding provision of the Police Act 1996 is section 52.

Clause 38 - British Transport Police Federation

94.  This clause allows the Authority to make non-statutory regulations about the BTP Federation which represents constables on matters affecting their welfare and efficiency. Such regulations must be approved under clause 39. The BTP Federation is already in existence, so this clause makes provision for its statutory recognition. Clause 38(2) binds the Authority to section 60 Police Act 1996. Under section 60 the Secretary of State may, amongst other things, make regulations prescribing the constitution and proceedings of Police Federations, their membership and how they may raise funds. To the extent that section 60 regulations have not yet been made, the Authority is free to make its own. If and when section 60 regulations are made however the Authority will have to ensure that its regulations under clause 38 are compatible with them.

95.  Clause 38(3) provides that where regulations are made by the Authority under Part 3 (under clause 35(2) for example), that they make also provision for a BTP Federation member to represent a constable. An example might be where a BTP constable attends a disciplinary hearing, where by virtue of clause 29, he could not generally be represented by a trade union, but could be represented by the BTP Federation.

96.  As discussed above, regulations made under clauses 35-38 are not statutory instruments and are not appropriate for Parliamentary control because of their nature as private employment-type matters.

Clause 39 - Regulations: approval in draft

97.  Before the Authority makes regulations under clause 35-38, this clause requires that they must be approved by the BTP Chief Constable, the "staff associations" and the Secretary of State. The Secretary of State may prescribe by order made under clause 39(5) who the staff associations are to be. It is likely to be the BTP Federation and the BTP's Superintendents' Association. The Secretary of State is able, under clause 39(3), to dispense with the need to obtain the Chief Constable's and staff associations' consent provided he consults them first (clause 39(4)).

Clause 41 - Police Regulations by Secretary of State

98.  Although the Authority has power to make the non-statutory regulations under clauses 35-38, the Secretary of State is also given the power to make statutory regulations for the BTP under clause 41 (in addition to a power to direct the Authority that regulations be made under clause 40). This is to act as a fail safe to ensure that regulations are made for the force if the Authority is unable or unwilling to make regulations itself. Where the Secretary of State makes such regulations, clause 41(2) makes clear that they will take precedence over any conflicting elements of non-statutory regulations made by the Authority. Like the Authority, the Secretary of State may only make regulations on matters which regulations may be made under sections 50-52 and 60 Police Act 1996. This is to ensure parity in the way Home Office constables and BTP constables are treated.

99.  Where the Secretary of State's regulations make provision on a matter detailed in section 50(3) Police Act 1996 (i.e. on disciplinary proceedings), clause 41(3) requires that they must also make provision for representation at disciplinary hearing and appeals, similar to that contained in sections 84 and 85 Police Act 1996.

100.  The Secretary of State's power to make regulations is exercisable by statutory instrument subject to the negative resolution procedure (clause 73(2) and (5)) which is appropriate given that the some of subject matter has already been the subject of Parliamentary scrutiny in the Police Act 1996, and that the equivalent regulation-making power for the Home Department forces in that Act is exercisable by negative resolution statutory instrument.

Clause 42 - Regulations: further appeal

101.  Where the Authority has made regulations concerning disciplinary proceedings and appeals under clauses 35 or 36, the Secretary of State may make statutory regulations under clause 42 which provide a further means of appeal for the constables, which may be to a court or tribunal as described in the regulations. The Secretary of State's power to make regulations is exercisable by statutory instrument subject to the negative resolution procedure (clause 73(2) and (5)). This is appropriate as the regulations will simply be procedural.

Clause 43 - Equipment Regulations

102.  This clause extends the power in section 53 Police Act 1996 to allow the Secretary of State, when he makes regulations under that section, to include provision on standards of equipment used by the BTP. Section 53 of the Police Act 1996 only extends to England & Wales, so this clause enables regulations made by the Secretary of State to have effect in relation to the BTP throughout Great Britain. The Secretary of State's power under section 53 to make regulations is exercisable by statutory instrument (section 102 of the Police Act 1996) but the Police Act does not provide for the regulations to be subject to Parliamentary control.

Clause 44 - Regulation of Procedure and Practice

103.  This clause extends the power in section 53A Police Act 1996 to allow the Secretary of State, when he makes regulations under that section on the regulation of practice and procedure for facilitating inter-force co-operation, to include provision on BTP co-operation with other police forces. Section 53A of the Police Act 1996 only extends to England & Wales, and so this clause enables regulations made by the Secretary of State to have effect in relation to the BTP throughout Great Britain. The Secretary of State's power under section 53A to make regulations is exercisable by statutory instrument (section 102 of the Police Act 1996). The power under section 53A has not yet been exercised and subsections (9) and (10) provide for the first set of regulations under the power to be subject to the affirmative resolution procedure and for subsequent regulations to be subject to the negative resolution procedure.

Clauses 46 and 47 - Codes of Practice

104.  Clause 46 enables the Secretary of State to issue a code of practice to the Authority on the way it is to carry out its functions. Clause 47 allows the Secretary of State to issue a code of practice relating to the Chief Constable on the performance of any of his functions. Subsection (4) of both clauses requires the Secretary of State to lay before Parliament any code or revision to the code which he issues, save that clause 47(5) does not oblige the Secretary of State to lay the code before Parliament in specified circumstances, for example where he thinks that its publication would be against the interests of national security.

Clause 48 - Service outside the Police Force

105.  Clause 48 allows the Secretary of State to make regulations making similar provision to that made by section 97 Police Act 1997, for the BTP. Section 97 makes certain employment-related assumptions where a constable is engaged in one of a number of types of "relevant service". For example, where a constable of a given rank is seconded to another police force, section 97(3) ensures that he can return to his home force to at least the same rank he enjoyed before he started his secondment. The Secretary of State's power to make regulations is exercisable by statutory instrument subject to the negative resolution procedure (clause 73(2) and (5)). This is appropriate as the regulations will be replicating for the BTP matters which have already been subject to Parliamentary scrutiny through consideration of the Police Act.

Clause 50 - Policing Objectives: Secretary of State

106.  Although under clause 49 the Authority will be required, within defined parameters, to set its own objectives, clause 50 enables the Secretary of State by direction to the Authority to set objectives for the policing of the railways for a financial year. Before issuing a direction, the Secretary of State must consult the Authority and the Chief Constable and consider representations made by Scottish Ministers. Clause 50(2) requires that the direction must be published, but it is not subject to Parliamentary control. The Department expects that the power of the Secretary of State to make such directions will be used sparingly, as most objectives will be set by the Authority under clause 49.

Clause 52 - Performance Targets

107.  Where the Secretary of State has set an objective for the Authority on the policing of the railways under clause 50, clause 52 enables him also to require the Authority, by direction, to set a target for the achievement of that objective. Before doing so, the Secretary of State must consider any representations from Scottish Ministers. The direction must be published but is not subject to Parliamentary control.

Clause 53 - Performance Directions

108.  This clause allows the Secretary of State to give a direction to the Authority making provision of a similar kind to that which the Secretary of State could also make in respect of a Best Value Authority. The Authority is not to be a best value authority within the meaning of section 1 of the Local Government Act 1999 Act, but a direction under this clause is designed to ensure that in practice the Authority and the BTP adopt many of the same procedures and practices as Home Department police authorities and forces. Before a making a direction the Secretary of State must have consulted the Authority and such other persons he thinks appropriate, and his final direction must be published. The direction is not subject to Parliamentary control.

Clause 55 - Reports by the Chief Constable

109.  Clause 55(5)(b) enables to Secretary of State to direct that a report by the Chief Constable (or relevant part) be published where the Chief Constable is of the view that the report (or any part of it) he is required to publish under this clause contains information which it is unnecessary or not in the public interest to publish. The direction is not subject to Parliamentary control.

Clause 57 - Other Reports to the Secretary of State

110.  Clause 57(1) allows the Secretary of State to direct the Authority to submit a report to him on specified matters connected with the performance of its functions as a police authority. The direction can make provision on what matters the report should cover. An identical power of direction is available in respect of the Chief Constable's functions in clause 57(2). The direction is not subject to Parliamentary control.

Clause 60 - Inquiry Supplemental

111.  Clause 60(6) enables the Secretary of State to direct the Authority that it must pay the costs incurred by a person who has been appointed to inquire in to a matter connected with the BTP force under clause 59. The direction is not subject to Parliamentary control.


 
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