Select Committee on Delegated Powers and Regulatory Reform Eighteenth Report


Clause 61 - Public Consultation

112.  Clause 61(4) allows the Secretary of State to issue guidance as to how the public consultation arrangements under clause 61 are to operate. The guidance is not subject to Parliamentary control.

Clause 62 - Inspection

113.  Clause 62(4) enables the Secretary of State to direct the form of report which HM Inspectorate of Constabulary ("HMIC") are required to submit in respect of the BTP. The direction is not subject to Parliamentary control.

Clause 64 - Remedial Direction

114.  Clause 64 allows the Secretary of State to issue a remedial direction to the Authority after an adverse HMIC report under clause 62. Such a direction, requiring the Authority to remedy a deficiency is clearly a serious matter, and so the Secretary of State is required to notify the Authority and the Chief Constable in advance and allow them to make representations. The Authority is also entitled to propose measures that would seek to avoid the need for remedial direction. Any direction which is made must be laid before Parliament accompanied by a report on it.

Clause 65 - Action Plan

115.  If an HMIC report under clause 62 identifies that the force is inefficient or ineffective is some way, clause 65(1) enables the Secretary of State to issue a direction to the Authority that it must submit a plan of action to him on how it proposes to remedy the deficiency that has been identified. That direction may make specific requirements of the action plan, such as details of a timetable and it must detail the means by which the aim to be achieved is to be assessed. Where the Secretary of State issues such a direction it must be laid before Parliament accompanied by a report on it.

Clause 72 - Consequential, transitional and incidental provision

116.  Clause 72(2) gives the Secretary of State a power, exercisable by order, to make consequential transitional and incidental provision and savings as regards the new BTP provisions in this Bill. To the extent therefore that there is legislation (both primary and secondary), which is not compatible with the new arrangements for the BTP and the new Authority, the Secretary of State may deal with such matters by means of such an order. An example of where such an order will be used is to deal with section 23(7A)(d) Police Act 1996, which refers to the role of the Strategic Rail Authority ("SRA") in the context of financial arrangements for collaboration agreements with other police forces. The SRA currently employs BTP constables and funds the BTP, but these roles will become those of the Authority. The power in clause 72(2) will therefore allow the Secretary of State to make the necessary changes to section 23(7A)(d) Police Act 1996, which are required as a consequence of the provisions in this Bill.

117.  Clause 72(3) details matters on which the Secretary of State may make transitional provision to deal with the change of BTP regime. For example, there are numerous assets such as BTP cars that are currently the property of the SRA which will need to be transferred to the Authority, along with BTP constables and civilian staff too. Where staff transfer in this way, their employment status and benefits can be protected in accordance with the powers in clause 72(3)(d) and (h). All rights and liabilities of the SRA connected with the BTP may also be transferred by order to the new Authority, under clause 72(3)(c).

118.  Clause 72(3)(e) enables the Secretary of State to make provisions which will ensure that the relevant pension schemes continue given the changes brought about by the Bill. Clause 72(3)(f) enables any provision made under paragraph (c) or (e) to be treated as having a specified effect for the purposes of an enactment. For example, this could include an order which would have the effect of applying the provisions of the Pensions Act 1995 relating to members' right to elect trustees.

119.  Clause 72(3)(g) enables provision to be made to enhance or ensure consistency between employees of the Authority, or between the pension schemes to which employees belong. For example, this would enable structural modifications to be made to the pension schemes.

120.  Clause 70(3)(i) allows the Secretary of State's transitional order to make provision dealing with the change from the existing police services agreements ("PSAs") between the SRA and various train companies, to the new agreements made under clause 32. So that the new agreements may be entered in to, it is intended that existing PSAs, which make provision for both funding of the BTP and are also integral to the BTP constable's jurisdiction on the railways, will be terminated by order. That order will also make provision on how rights and liabilities under those agreements are to be treated.

121.  To the extent that there are any legal disputes in progress in connection with the BTP (between the SRA and train companies for example), the order may make provision for the role of the SRA to be replaced by the new Authority, under clause 72(2)(k).

122.  Clause 72(3)(l) allows the Secretary of State's transitional order to make provision preventing bankrupt persons from being members of the Authority. Provision will be along the lines of that already contained in paragraph 11 of Schedule 2 to the Police Act 1996. The intention is that in due course, provision made by order under clause 72(2)(l) will be superseded by the new provisions for bankruptcy restrictions orders under the Enterprise Act 2002, once the relevant provisions of that Act are in force.

123.  By virtue of paragraph 32 of Schedule 5, the Authority's financial years will end on 31st March. Clause 72(3)(m) will allow the transitional order to make provision dealing with matters related to the Authority's finances, where the Authority comes in to being before the 1st April in any year.

124.  An order under clause 72 shall be made by statutory instrument (clause 73(2)) and if it amends an enactment or instrument, or if it contains the transitional provisions envisaged by clause 72(3), it will be subject to the affirmative resolution procedure. Otherwise an order may be made under the negative resolution procedure.

Clause 73 - Regulations and Orders

125.  Clause 73 sets out the procedures for regulations and orders made under Part 3. Its effect has been addressed in relation to each clause discussed in the Memorandum.

Schedule 4 - British Transport Police Authority

126.  Clause 18(2) gives effect to Schedule 4.

127.  Paragraph 1(2) of Schedule 4 enables the Secretary of State to vary the minimum and maximum numbers of members of the Authority. Before he makes such an order, paragraph 1(3) requires him to consult the Authority. This is to make similar provision to that contained in section 4 Police Act 1996 in respect of Home Department police authorities. The power to make such an order is exercisable by statutory instrument (clause 73(2)) which under clause 73(4) must be laid before Parliament.

128.  Paragraph 24 of Schedule 4 applies to any pension scheme for the benefit of BTP constables which had effect before the coming into force of the Schedule and which continues to have effect after the coming into force of the Schedule.

129.  Paragraph 24(2) enables the provisions of the scheme and the arrangements relating to the operation of the scheme to be amended by order. Such provisions are intended to amend the pension scheme trust documentation to take account of the changed principal employer under the scheme and the establishment of the new Authority.

130.  Paragraph 24(3) illustrates how the power may be exercised. For example, an order may make provision about how the scheme can be amended or may confer a function, which may be discretionary, on the Secretary of State. Such a function conferred on the Secretary of State would be intended, for example, to ensure that changes to the scheme rules would require the Secretary of State's approval as well as the consent of the new Authority.

131.  Paragraph 24(4) restricts the scope of any order. For example, the order could not make provision about member contribution rates, employer contribution rates or the scheme's investments.

132.  Paragraph 24(7) requires the Secretary of State to consult the Trustees of the scheme before making an order. The power to make an order is exercisable by statutory instrument (clause 73(2)) which under clause 73(3)(c) will be subject to the affirmative resolution procedure. This is appropriate because of the important nature of public service pension schemes.

PART 4 - SHIPPING: ALCOHOL AND DRUGS

133.  None of the four delegated powers provided for in this Part of the Bill has to be exercised to bring the Part into force. They are powers to change particular aspects of the legislation if there is a change in policy or a need to react to developments or new circumstances and to retain flexibility. All orders and regulations under this Part are to be made by statutory instrument (clause 87(3)). Insofar as three of the powers relate directly to criminal offences, they are to be subject to the affirmative resolution procedure (clause 87(4)).

Clause 79 - Non-professionals

134.  Clause 79 applies the alcohol and drugs provisions of this Part to non-professionals (recreational mariners). Clause 79(4) provides the Secretary of State with a power to make regulations excepting non-professionals from the prescribed alcohol limit in certain specified circumstances. The purpose of the power enabling the Secretary to create such exceptions is to provide for a flexible and proportionate approach to recreational mariners in recognition of the fact that many aspects of recreational activities on the water do not pose a significant danger.

135.  Clause 79(5) provides that any regulations made under clause 79(4) may make provision by reference, in particular, to (a) the power of a motor; (b) the size of a ship (i.e. vessel); or (c) location. Any regulations made under clause 79(4) would have the effect of modifying the criminal offence set out in clause 79(3). For this reason, they are subject to the affirmative resolution procedure, as provided by clause 87(4).

Clause 80 - Prescribed limit

136.  Clause 80(2) provides the Secretary of State with a power to amend clause 80(1). That clause sets the prescribed limit of alcohol in a person's body for the purposes of an offence whereby a person who is either professional staff on duty (clause 77); or professional staff off duty in the circumstances set out in clause 78; or a non-professional (clause 79), exceeds the prescribed limit in respect of the proportion of alcohol in his breath, blood or urine.

137.  The power would allow Secretary of State to change the limit to react to scientific developments, or to make the limit more or less strict if that is felt for some reason to be more appropriate. It is anticipated that any change to the limit currently prescribed in clause 80(1) would be by way of reaction to any corresponding change with regard to road traffic legislation.

138.  Any regulations made under clause 80(2) would be subject to the affirmative resolution procedure and would require prior consultation by the Secretary of State with such organisations as he sees fit.

Clause 82 - Specimens, &c

139.  Under clause 82(2) the Secretary of State may make regulations to amend the table in clause 82(1). Clause 82(1) provides that the provisions of road traffic legislation set out in that clause have effect subject to the modifications set out. Those modifications apply the provisions to the context of shipping and modify them in certain other ways to adapt them to the shipping or marine context.

140.  Road traffic legislation on alcohol and drugs may itself change in the future. This power allows regulations to be made so that any such changes can be reflected in shipping law with any appropriate modifications. It also allows existing modifications to be added, amended or removed whether or not in connection with an amendment of a provision in the table. Any regulations made under clause 82(2) would be subject to an affirmative resolution.

Clause 83 - Detention pending arrival of police

141.  Clause 83 deals with the detention of ships by a marine official pending the arrival of the police if such an official suspects that an offence is being, or has been committed on board. Clause 83(3) provides a definition of the term "marine official" for this purpose. Under clause 83(3)(c) this is includes "a person falling within a class designated by order of the Secretary of State".

142.  Under clause 87(2), the Secretary of State's power to designate a class of person as a marine official pursuant to section 83(3)(c) expressly includes a power to designate either himself or one or more persons employed in the Department for Transport. This would include, for example, personnel from the Maritime and Coastguard Agency (MCA), an Executive Agency of the Department.

143.  An order made under section 83(3)(c) is subject to the negative resolution procedure. The negative resolution procedure is appropriate in this instance because the function of the marine official in this context is an administrative one. No criminal sanctions are involved.

PART 5 - AVIATION: ALCOHOL AND DRUGS

144.  None of the three delegated powers provided for in this Part of the Bill has to be exercised to bring the Part into force. They are powers to change particular provisions of the legislation if there is a change in policy or a need to react to developments or new circumstances. The regulations concerned are to be made by statutory instrument (clause 98(2)(a)) and under the affirmative procedure (clause 98(2)(b)).

Clause 92 - Prescribed limit

145.  Clause 92(4) provides the Secretary of State with a power to amend clause 92(2) or 92(3). Those clauses set the prescribed limit of alcohol in a person's body for the purposes of the offences of performing certain aviation functions or carrying out an activity ancillary to an aviation function while the proportion of alcohol in the person's breath, blood or urine exceeds the prescribed limit.

146.  The power to make regulations would enable the prescribed limit to be changed to react to scientific developments or to make the limits more or less strict if that is felt for some reason to be fairer.

Clause 93 - Aviation functions

147.  Clause 93(8) gives the Secretary of State the power to make regulations amending clause 93. Clause 93 sets out the activities (aviation functions and activities ancillary to aviation functions) concerned in the offences of being unfit or over the prescribed limit. This regulation-making power will allow, for example, other occupations to be added to the list of aviation functions in a fast developing industry. For instance, the House of Commons Committee discussed sky marshals in this context.

Clause 95 - Specimens &c

148.  Under clause 95(2) the Secretary of State may make regulations to amend the table in clause 95(1). Clause 95(1) provides that the provisions of road traffic legislation set out in that clause have effect subject to the modifications there. Those modifications apply the provisions to the context of aviation and modify them in certain other ways to adapt them to the aviation context. Road traffic legislation on alcohol and drugs may itself change in the future. This regulation-making power allows those changes to be reflected in aviation law with any appropriate modifications. It also allows existing modifications to be added, amended or removed whether or not in connection with an amendment of a provision in the table. Thus the affirmative resolution regulations can be used to "fine tune" the extent to which these provisions mirror those in road traffic.

PART 6 - MISCELLANEOUS

Clause 102 - Convention on International Carriage by Rail

149.  Clause 102 is designed to allow the UK to give effect to the modifications to the Convention concerning International Carriage by Rail ("COTIF") made by the Protocol of Vilnius 1999. The new Convention text agreed at Vilnius in 1999 is quite different to the previous text, not least because the new text ("COTIF 1999") makes provision on areas not covered by the previous text. Of particular note are new appendices, which will provide detailed technical prescriptions and technical specifications for railway vehicles and material. The Department expects there to be a steady and regular number of modifications to the new text, so the powers in the Bill are designed to provide a flexible mechanism to give effect to the new text and future modifications.

150.  The previous text was implemented in the UK by means of the International Transport Conventions Act 1983. Clause 102(1) allows the Secretary of State to make regulations to give effect to the new text of COTIF 1999. The regulations will be made by statutory instrument (clause 102(4)), and in view of future potential modifications the regulations are subject to the affirmative resolution procedure (clause 102(5)). The affirmative resolution procedure is also appropriate because the regulations will need to repeal provisions of the 1983 Act.

151.  Clause 102(2) gives effect to Schedule 6 which sets out what provision may be made by regulations under clause 102(1) and also extends the power (for this purpose) in section 2 European Communities Act 1972. This is to reflect the fact that elements of COTIF 1999 are in the UK's sphere of external competence on railways matters (i.e. the UK's area of responsibility as regards international relations on railways) and other elements fall in the EC's sphere of external competence on railways matters. Over time, as the EC makes more railways legislation itself, it is likely that the EC's competence in matters covered by the COTIF Convention will grow. Where the elements of the COTIF Convention fall within the EC's sphere of external competence, the Secretary of State's regulations will be made under section 2 European Communities Act 1972.

152.  The new Convention text establishes:

  • rules that will apply to contracts for international carriage of passengers and goods (the "CIV" & "CIM" rules),
  • regulations on the international carriage of dangerous goods (the "RID" regulation),
  • rules for contracts of use of vehicles in international rail traffic (the "CUV" rules),
  • rules for contracts of use of infrastructure in international rail traffic (the "CUI" rules),
  • rules on the validation of technical standards and prescriptions applicable to railway material intended to be used in international traffic (the "APTU" rules), and
  • rules on the technical admission of railway material used in international traffic (the "ATMF" rules).

Schedule 6, paragraph 2 - General

153.  The powers in paragraph 2 of Schedule 6 will allow regulations to be made so that the UK law gives effect to the new Convention. Examples of how those powers will be used include:

  • giving effect to the CIV and CIM appendices without the need for further detail on the face of the legislation. This will ensure that the CIM and CIV rules apply to contracts for international rail carriage entered in to under UK law. Article 7 of the uniform rules for contracts of international carriage of passengers by rail (the "CIV" rules) for example, requires that the certain information, such as the name of the carrier must appear on a passenger's international train ticket. The power in paragraph 2(b) would allow the regulations to ensure that such provision is required by UK law.
  • Paragraph 2(d) would allow the regulations to amend any enactment which is incompatible with the UK's obligations under the Convention.
  • Article 18 of the ATMF rules on the admission of railway material in to international traffic requires the UK to make provision for the legal consequences for failing to comply with the APTU and ATMF uniform rules. The power in paragraph 2(f) would allow the regulations to make such provision.
  • Paragraph 2(g) permits the regulations to confer a function (which may include a discretionary function) on the Secretary of State or a person appointed in accordance with the regulations. This power is intended, in particular, to deal with three matters.

(i)  It will enable the regulations to specify the authority competent to grant technical admission to rolling stock in the UK as required by Article 5 of Appendix G to the new Convention (Uniform Rules concerning the Technical Admission of Railway Material). This is likely to be the Health and Safety Executive in Great Britain.

(ii)  It will enable the Health and Safety Executive to be designated, if appropriate, as the enforcement authority for certain aspects of the new Convention - in particular for its provisions relating to technical standards and technical acceptance for rolling stock and infrastructure. The Health and Safety Executive already carries out a number of similar enforcement functions in the rail sector.

(iii)  It will enable the regulations to continue the current policy, in the UK implementation of the 1980 Convention, that examination of luggage, vehicles etc, where there is good reason to suspect that the conditions of carriage have not been observed, can only take place in the presence of a constable.

  • The ATMF rules (articles 3-6) require provision to be made on the technical admission of railway vehicles and other railway material in each contracting state and the mutual recognition of admission granted in other contracting states. Paragraph 2(l) would allow the regulation to make such provision. Paragraph 2(i) and (j) would allow regulations to address the fee and information requirement necessary to support an application for technical admission in the UK.
  • Paragraph 2(o) permits the regulations to include consequential provision repealing an enactment. It is anticipated that this power will be used to repeal the provisions of the International Transport Conventions Act 1983 which will become redundant on the making of the new regulations.

Schedule 6, paragraphs 3 and 4 - Changes to the Convention

154.  The COTIF 1999, including its various appendices, can be modified by committees established under the Convention (for minor technical modifications) or by the General Assembly (for more major modifications). For example, the Committee of Technical Experts (established under Article 13(1)(f) of the Convention) is able under article 20 of the Convention to take decisions on the adoption and modification of uniform technical prescriptions as set out in the annexes to APTU. It would for example take a decision about whether each new European Community technical specifications for interoperability (TSI) - of which a large number are under development, should be adopted to form part of the APTU annexes. By taking decisions such as this, or indeed a Committee of the Convention taking any decision within it powers as provided for by the Convention, the Convention text itself is modified. The powers in paragraph 3 of Schedule 6 enable the Secretary of State's regulations to ensure that where such changes are made to the Convention, that the Convention as modified has the force of law in the UK. This will avoid the need to amend the UK implementing regulations when such minor modifications are made.

155.  Most of the changes to the Convention will be minor technical changes. The General Assembly could however make more wide reaching changes to the Convention, and so paragraph 3(b) allows the Secretary of State to make provision so that such changes (unless such changes were also of a minor technical nature) should not automatically flow through in to UK law, but require some further step, such as the making of amending regulations. Such regulations will still however be subject to the affirmative resolution procedure.

156.  Paragraph 3(2)(c) would allow the regulations to make provision so that where an appendix to the Convention is suspended under Article 35(4), that the suspension shall have effect in the UK.

157.  Paragraph 4 of Schedule 6 is to allow the regulations made by the Secretary of State to make provision on information. It will allow for example up to date lists of the parties to the Convention and the technical standards and prescriptions in force to be published. This will assist persons and companies who are considering an international journey, but wish to know whether they will get the benefit of the Convention for that journey.

Schedule 6, paragraph 5 - Imposition of Conditions

158.  The Convention makes various requirements which will apply to persons who take part in international traffic. For example a railway undertaking in the future may wish to use a new type of wagon in international traffic. The provision in paragraph 5 of Schedule 6 will allow the regulations made by the Secretary of State to set preconditions for technical admission of that vehicle. This may include the need for an application for technical admission to the competent authority in a specified format and might include provision for the charging of a fee in connection with such assessments. Paragraph 5(2)(f) is to allow similar provision to be made to that currently contained in section 7 of the International Transport Conventions Act 1983.

Schedule 6, paragraph 6 - Sanctions

159.  Paragraph 6 allows the regulations made by the Secretary of State to make provision for sanctions for failing to comply with the Convention. Sanctions may be either criminal or civil. Article 18(1) of the ATMF Appendix requires the UK to make provision for the "juridical consequences from failure to comply [with ATMF]". Article 18(2) ATMF provides that the "consequences in civil and penal law, resulting from failure to comply [with the APTU Annexes and the ATMF] shall be regulated by the Contracting State…]". Paragraph 6 will therefore allow the UK to make such provision in regulations.

160.  Paragraph 6 anticipates 3 different types of provision in respect of criminal sanctions that may be created. Paragraph 6(2) restricts the sanction which would generally apply in respect of offences committed for not complying with the Convention or regulations giving effect to the Convention. In effect this only permits creation of an offence punishable by a fine of up to £5000 in the Magistrate's Court.

161.  Where a provision of the Convention falls within the EC's sphere of external competence however (such as APTU), it is appropriate that sanctions in line with that which could be created under the European Communities Act 1972 could be created. The effect of paragraph 6(3) therefore is that where an offence is created which is effectively made on the basis of section 2(2) of the European Communities Act 1972, the sanction that is created is limited by paragraph 2(1)(d) of Schedule 2 to the 1972 Act. That is, a sentence of either up to two years imprisonment for Crown Court cases or three months imprisonment for Magistrates' Court cases. Fines could also be provided for in this context, albeit subject to a maximum £5000, or up to a £100 per day fine (for continuing breaches for example).

162.  Paragraph 6(4) is designed to allow sanctions for certain offences which might be created in the regulations to match sanctions in the Health and Safety at Work Act 1974. This is because it is likely to be necessary to align penalties for non-compliance with the technical standards and prescriptions set out in the APTU appendix with those applicable for non-compliance with Technical Specifications for Interoperability under EC rail interoperability regime, and which has been implemented in the UK by the Railways (Interoperability) (High-Speed) Regulations 2002 (SI 2002/1166). Regulation 31 of the 2002 Regulations provides that certain provisions of the Health and Safety at Work Act etc. 1974 will apply to the enforcement of the 2002 Regulations. Because the standards under COTIF and under the EC interoperability regime are likely to be of identical, it is appropriate that the criminal sanctions for the enforcement of similar matters can be the same.

Schedule 6, paragraph 7 - Related Legal Proceedings

163.  Paragraph 7 will allow the regulations made by the Secretary of State to make provision so that where certain persons are able to bring a claim for damages for another person's death under COTIF 1999, they may not bring an action under the Fatal Accidents Act 1976. Similar provision currently exists in the 1983 Act.

Schedule 6, paragraph 8 - Enforcement of Judgments

164.  Paragraph 8 enables the regulations made by the Secretary of State to make provision to allow the provisions of the Foreign Judgements (Reciprocal Enforcement) Act 1933 to apply, so that judgements made under COTIF in a non-UK court could be registered in the UK and enforced through the UK courts.

Schedule 6, paragraph 9 - Special Drawing Rights

165.  Paragraph 9 will allow the regulations to make provision for the currency unit used in connection with the Convention, "the Special Drawing Right", to be converted in to sterling. It is likely that provision similar to that presently contained in section 5 of 1983 Act would be made.

Schedule 6, paragraph 10 - Saving

166.  Although Schedule 6 scopes the power of the Secretary of State to make regulations giving effect to COTIF 1999, it does not limit the generality of the power in clause 102(1), ie that the "Secretary of State may make regulations for the purpose of giving effect to the Convention". To the extent therefore that a particular power does not appear in clause Schedule 6, paragraph 10(a) enables regulations to be made under clause 102(1) to give effect to the Convention. Where part of the Convention falls within the EC's sphere of external competence, paragraph 10(b) operates so that even though a power or provision does not appear in Schedule 6, the Convention may still be given effect to as necessary under the extended power in section 2 European Communities Act 1972 (through section 102(2)).

Clause 104 - Railways safety levy

167.  Clause 104 inserts a new section 43A into the Health and Safety at Work Act (HSWA) 1974 enabling the Secretary of State to make Regulations requiring the payment of a railway safety levy to meet the expenses incurred by the Health and Safety Executive (HSE) in undertaking its railway regulatory activities. The Secretary of State would make such Regulations after receiving proposals from the Health and Safety Commission (HSC).

168.  The powers contained in new section 43A are required because levies cannot be imposed under regulations made under section 43(2) of the HSWA. Regulations made under section 43(2) already enable fees, including fees based on an hourly charging regime, to be charged for some of HSE's railway regulatory activities.

169.  Since October 1999 HSE has charged on an hourly basis for a range of regulatory work, including inspection activities, relating to the railway industry. Ministers agreed that the impact of charging would be reviewed after two years. That review (informed by a report from Deloitte & Touche) revealed that:

  • the existing charging regime was seen as bureaucratic both for stakeholders and HSE; and
  • stakeholders could not easily budget for charges.

Replacement of the existing charging regime by a levy would:

  • reduce bureaucracy; and
  • provide a greater certainty in financial planning for industry stakeholders.

170.  Under section 11(2)(d) of HSWA, HSC will be able to propose to the Secretary of State regulations which provide for the amount of the levy to be imposed and determine who will pay the levy. Regulations may also contain provisions about the supply of information to enable the matters referred to in new section 43A(5) to be determined. Such regulations will be proposed after full public consultation (as required under section 50(3) of HSWA) on proposals developed by HSE and accepted by HSC.

171.  Regulations will be made by negative resolution procedure pursuant to section 82(3)(b) of HSWA. Fee regulations made under section 43(2) are already made pursuant to section 82(3)(b) of HSWA, hence it is thought appropriate that the levy regulations, requiring as they will a considerable amount of practical detail, should be the subject of delegated powers too.

172.  HSC/E is currently developing policy options to form the basis of the proposals it will put to the Secretary of State for regulations to introduce the levy. Current policy intentions for the main provisions are summarised below. However, consultation on the detail of the Regulations will not take place before the Bill receives Royal Assent. HSC/E intends to engage in discussions with industry stakeholders, and to have a full public consultation exercise before any regulations are introduced. The policy proposals outlined in this Memorandum are purely for the purpose of showing how the enabling powers in clause 102 might be used and do not commit the HSC or Ministers to the detail of any of these particular proposals, which may be subject to change in the light of consultation.

173.  HSC/E's current policy intention is to seek to recover the same proportion of money through a levy as it does from the existing charging regime (currently about 55% of the costs of HSE's HM Railway Inspectorate's regulatory activities). The income from charging for 2001/02 was £5.25 million. This approach would mean that HSE's railway safety activity would continue to be funded via a combination of grant-in-aid provision from the Government and a charge on the industry. The mechanism of raising money from the industry would change from an hourly charging regime to a levy system.

174.  At present HSC/E is minded to propose that payment of the bulk of the levy will fall on those who hold a safety case which has been accepted by HSE. The precise mechanism of collection remains under consideration and will form part of the consultation process. All sectors of the industry who presently hold a railway safety case are subject to the current charging regime. The current charging arrangements exclude low speed systems, including heritage railways and tramways, and it is anticipated that an exclusion for these systems will continue to apply in relation to the levy. Consultation, before proposals are finalised, will cover the possibility of extending the scope of exemptions.

175.  HSC/E currently believes that rail related turnover in the previous financial year would provide the best proxy for determining the proportion of the levy to be paid by each organisation affected, but again this will be subject to consultation.

176.  It is anticipated that recovery of any debts associated with the levy will be by means of civil proceedings. The same restrictions will be placed on the disclosure of information collected by HSE in the course of calculating and raising the levy as on other information gathered by HSE in the course of its enforcement activities. Information, including commercially sensitive information such as unaudited accounts, VAT returns etc., obtained by HSE in this way can only be disclosed with the consent of the person who supplied it.

177.  HSC/E intends to establish a consultative forum of industry stakeholders, along the lines of the existing consultative forum for charging, to provide views on the operation of the levy.

Clause 105 - Railway security services

178.  Cause 105 will amend the Railways Act 1993, by inserting a new section 121A. Section 121A will empower the Secretary of State to make regulations about the listing of people who are approved by him for the provision of a particular railway security service.

179.  The clause follows a similar regulation making power in section 20A of the Aviation Security Act 1982 for the listing of aviation security service providers. Thus Parliament has already considered it acceptable for the matter to be the subject of delegated powers.

180.  Section 121A(1) will define what is meant by "railway security service", and section 121A(2) states that regulations may provide for the maintenance of a list. Under subsection (3), the regulations may prohibit the use of a person to provide a service if the person is not approved, and may create criminal offences. Amongst other matters, the regulations may also provide for removal from the list and appeals.

181.  Subsection (4) sets limits on the penalties which may be imposed. Subsection (5) provides for an instruction under section 119 Railways Act 1993 to be able to include a requirement about using a listed person, or to provide for the instruction to apply with modified effect where a listed person provides a service.

182.  Subsection (6) makes supplementary provision about regulations, including for the Secretary of State to have to consult organisations appearing to him to represent persons affected by the regulations. The proposed section 121A(6)(e) will require that regulations to be subject to the negative resolution procedure. This is consistent with section 20A of the Aviation Security Act (inserted by the Anti-Terrorism, Crime and Security Act 2001) on which the clause is modelled.

Clause 107 - Seat belts: delivery drivers

183.  Clause 107 amends section 14 of the Road Traffic Act 1988 by substituting a new subsection (2)(b)(i). Section 14 is an enabling power under which the Secretary of State may already make regulations requiring persons to wear seat belts when driving or riding in motor vehicles. Subsection (2)(b) already provides that any regulations made under the power imposing such requirements must include specified exceptions.

184.  Subsection (2)(b)(i) as currently enacted is not well understood in practice, and the purpose of the amendment is to make its application clearer. As amended it will provide that regulations must exempt the driver or passenger of a goods vehicle undertaking deliveries or collections from the obligation to wear a seat belt while on a journey shorter than the prescribed distance. Regulations will not be made prescribing a distance until after interested parties have been consulted about what is appropriate.

185.  The new regulations under section 14 will be made under the affirmative resolution procedure by virtue of section 195(4) Road Traffic Act 1988.

Clause 109 - Shipping legislation: application to structures, craft etc

186.  Clause 109 will enable the Secretary of State to make an order which is subject to negative resolution procedure, to provide for a shipping provision to apply or not apply to specified things which are used, navigated or situated wholly or partly in or on water. The order may also modify a shipping provision in its application to specified things. Its purpose is to provide flexibility in the application of existing primary legislation to meet changing circumstances.

187.  This power replaces the existing power in section 311 of the Merchant Shipping Act 1995, which gave similar but more restricted powers to the Secretary of State. That section enabled the Secretary of State to make an order providing for things designed or adapted for use at sea to be treated as a ship for the purposes of any specified provision of that Act or an instrument made under it. The new power in clause 109 is not restricted to things used at sea, and can relate to any Act (not just the Railways and Transport Safety Bill) which applies to ships, vessels or boats.

188.  In the context of the Railways and Transport Safety Bill, an order may be made to provide for clause 79 (non-professionals on board ships under way) to apply in relation to personal watercraft, which may not fall within the definition of "ship" in clause 88. In the case of a professional instructor operating a personal watercraft, an order may be made to provide for clause 77 to apply.

189.  An order may also be made to provide for regulations, which are made under the Merchant Shipping Act 1995 and relate to the prevention of collisions, to apply in relation to personal watercraft. Another possibility is that an order will be made to provide for regulations which are made under the Merchant Shipping Act 1995 and relate to the survey and certification of ships to apply in relation to chain ferries.

190.  It may also be necessary to make an order to provide for the knock-on effects on other legislation, such as section 76 of the Public Health Act 1961 and section 231 of the Public Health Act 1936, which contain references to pleasure boats and vessels used for pleasure purposes. This is because it might be inferred that as it has been considered necessary to use the power to treat personal watercraft as ships for the purposes of the Merchant Shipping Act 1995, doubt is then cast on whether "pleasure boat" or "vessel used for pleasure purposes" could cover personal watercraft.

191.  Clause 109(3) is necessary because of the potential need to use the order in the context of a regulation making power in the Merchant Shipping Act 1995, and because the regulations made may need to provide for the creation of offences.

192.  Clause 109(4) is necessary to ensure that any order made will override any definition or limitation of the scope of legislation specified in the order. It will be noted that clause 109(4) includes provision for amendment of legislation. This is a very restricted power - it is just dealing with technical inconsistencies where the order expands or contracts the class to which shipping provisions can apply. For example, if an Act were to provide that a particular provision did not apply to chain ferries, and the Secretary of State provided by order under clause 106 that the provision is to apply to chain ferries, it would not be very helpful to the reader to leave the provision in the Act totally unchanged.

193.  It may be argued that in view of this provision for amendment of legislation, any order made should be subject to affirmative resolution procedure. However, being able to amend textually as in clause 109(4) is no more powerful, so far as the world generally is concerned, than being able to provide for a shipping provision not to apply or to apply as in clause 109(1).

194.  Therefore, if negative resolution procedure is thought acceptable for clause 109(1), the Department considers it would not be logical to require affirmative resolution just because of the words in parentheses in clause 109(4). It may also be noted that section 311 of the Merchant Shipping Act 1995 provided only for negative resolution procedure for orders made under that section.

195.  Clause 109(5) sets out the types of provision which may be included in the order, and this is based on the existing powers in section 311(2)(a) of the Merchant Shipping Act 1995.

196.  The purpose of clause 109(6) is to enable provision to be made for other legislation to take precedence. This would be relevant where regional or local legislation exists for the thing specified in the order. For example, in Scotland the local authorities have powers under section 121 of the Civic Government (Scotland) Act 1972 to regulate traffic on inland waters in Scotland, and it may be appropriate for their legislation to take precedence. In the UK generally, and in relation to the prevention of collisions, it may be appropriate for local rules relating to harbours and rivers to take precedence.

197.  Under clause 109(7), an order will be subject to the negative resolution procedure. However, the Secretary of State will have to consult organisations in the UK which appear to him to be representative of persons who will be affected by the order. This is the same consultation procedure as is required for the making of safety regulations under the Merchant Shipping Act 1995.

Clause 110 - Maritime security services

198.  Clause 110 inserts a new section 36A in to the Aviation and Maritime Security Act 1990. Section 36A will empower the Secretary of State to make regulations about the listing of people who are approved by him for the provision of a particular maritime security service. It is identical in form and rationale to the new section introduced by clause 105 (discussed above).

PART 7 - GENERAL

Clause 117 - Commencement

199.  Clause 117(1) - (4) makes provision for commencement orders which, in line with normal practice, are not subject to Parliamentary scrutiny. A commencement order made under this provision may make transitional, consequential or incidental provision. In particular, under clause 113(3) transitional provisions may be made in place of paragraph 2(c) of Schedule 1 (dismissal of a member of the Office of Rail Regulation who is the subject of a bankruptcy restrictions order), until the provisions of the Enterprise Act 2002 relating to bankruptcy restrictions orders come into force.


 
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