Part IU.K. The Provision of Railway Services

IntroductoryE+W+S

1 The Rail Regulator. . ..E+W+S

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2[F2Passengers’ Committees].E+W+S

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

F4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4 General duties of the Secretary of State and [F5the Office of Rail and Road]E+W+S

(1)[F5The Office of Rail and Road] [F6shall] have a duty to exercise the functions assigned or transferred to [F7it] under or by virtue of this Part [F8or the Railways Act 2005 that are not safety functions] in the manner which [F7it] considers best calculated—

[F9(zb)to promote improvements in railway service performance;

(a)otherwise to protect the interests of users of railway services;]

(b)to promote the use of the railway network in Great Britain for the carriage of passengers and goods, and the development of that railway network, to the greatest extent that [F7 it] considers economically practicable;

[F10(ba)to contribute to the development of an integrated system of transport of passengers and goods;

(bb)to contribute to the achievement of sustainable development;]

(c)to promote efficiency and economy on the part of persons providing railway services;

(d)to promote competition in the provision of railway services [F11for the benefit of users of railway services];

(e)to promote measures designed to facilitate the making by passengers of journeys which involve use of the services of more than one passenger service operator;

(f)to impose on the operators of railway services the minimum restrictions which are consistent with the performance of [F12its] functions under this Part [F13or the Railways Act 2005 that are not safety functions];

(g)to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance.

(2)Without prejudice to the generality of subsection (1)(a) above, [F5the Office of Rail and Road] [F14shall] have a duty, in particular, to exercise the functions assigned or transferred to [F7it] under or by virtue of this Part [F8or the Railways Act 2005 that are not safety functions] in the manner which [F7it] considers is best calculated to protect—

(a)the interests of users and potential users of services for the carriage of passengers by railway provided by a private sector operator otherwise than under a franchise agreement, in respect of—

(i)the prices charged for travel by means of those services, and

(ii)the quality of the service provided,

F15. . . ; and

(b)the interests of persons providing services for the carriage of passengers or goods by railway in their use of any railway facilities which are for the time being vested in a private sector operator, in respect of—

(i)the prices charged for such use; and

(ii)the quality of the service provided.

(3)[F5The Office of Rail and Road] [F16 shall] be under a duty in exercising the functions assigned or transferred to [F7it] under or by virtue of this Part [F8 or the Railways Act 2005 that are not safety functions]—

(a)to take into account the need to protect all persons from dangers arising from the operation of railways, F17. . . ; and

(b)to have regard to the effect on the environment of activities connected with the provision of railway services.

[F18(3A)Subsections (1) to (3) above shall have effect in relation to the Secretary of State as in relation to [F5the Office of Rail and Road] except that in their application to the Secretary of State—

(a)F19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the references in each of the subsections to the functions transferred or assigned to the Secretary of State under or by virtue of this Part include only the functions transferred or assigned to him under or by virtue of sections 6 to 22 F20. . . below [F21and

(c)the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to the Secretary of State under or by virtue of the provisions of Part 4 of that Act other than section 39.]]

[F22(3B)Subsections (1) to (3) above shall have effect in relation to the Scottish Ministers as in relation to [F5the Office of Rail and Road] except that, in relation to those Ministers—

(a)the references in each of the subsections to functions transferred or assigned to those Ministers under or by virtue of Part 1 of this Act include only the functions transferred or assigned under or by virtue of sections 16A to 16G of this Act; and

(b)the references in each of the subsections to the functions transferred or assigned under or by virtue of the Railways Act 2005 include only the functions transferred or assigned to those Ministers under or by virtue of Part 4 of that Act.

(3C)Subsections (1) to (3) above shall have effect in relation to [F23the Welsh Ministers] as in relation to [F5the Office of Rail and Road] except that, in relation to [F24the Welsh Ministers], the references in each of the subsections to functions transferred or assigned under or by virtue of Part 1 of this Act or the Railways Act 2005 include only the functions transferred or assigned to [F25the Welsh Ministers] under or by virtue of the provisions of Part 4 of that Act of 2005 other than section 39.]

[F26(3D)The reference in subsection (3C) to functions transferred to the Welsh Ministers under or by virtue of Part 4 of the Railways Act 2005 includes a reference to functions which were transferred to the National Assembly for Wales under or by virtue of that Part and which became functions of the Welsh Ministers by virtue of paragraph 30 of Schedule 11 to the Government of Wales Act 2006.]

(4)The Secretary of State shall also be under a duty, in exercising the functions assigned or transferred to him under or by virtue of this Part [F27or the Railways Act 2005], to promote the award of franchise agreements to companies in which qualifying railway employees have a substantial interest, “qualifying railway employees” meaning for this purpose persons who are or have been employed in an undertaking which provides or provided the services to which the franchise agreement in question relates at a time before those services begin to be provided under that franchise agreement.

(5)[F5The Office of Rail and Road] shall also be under a duty in exercising the functions assigned or transferred to [F7it] under this Part [F28or the Railways Act 2005 that are not safety functions]—

[F29(a)to have regard to any general guidance given to [F7it] by the Secretary of State about railway services or other matters relating to railways;

[F30(aa)to have regard to any general guidance given to it by the Scottish Ministers about railway services wholly or partly in Scotland or about other matters in or as regards Scotland that relate to railways;

(ab)in having regard to any guidance falling within paragraph (aa), to give what appears to it to be appropriate weight to the extent (if any) to which the guidance relates to matters in respect of which expenditure is to be or has been incurred by the Scottish Ministers;]]

(b)to act in a manner which [F7it] considers will not render it unduly difficult for persons who are holders of network licences to finance any activities or proposed activities of theirs in relation to which [F5the Office of Rail and Road] has functions under or by virtue of this Part [F31or that Act] (whether or not the activities in question are, or are to be, carried on by those persons in their capacity as holders of such licences); F32. . .

[F33(c)to have regard to the funds available to the Secretary of State for the purposes of his functions in relation to railways and railway services;

(ca)to have regard to any notified strategies and policies of [F34the Welsh Ministers], so far as they relate to Welsh services or to any other matter in or as regards Wales that concerns railways or railway services;

(cb)to have regard to the ability of [F35the Welsh Ministers] to carry out the functions conferred or imposed on [F36them] by or under any enactment;]

[F37(d)to have regard to the ability of the Mayor of London, F38. . . and Transport for London to carry out the functions conferred or imposed on them by or under any enactment]

[F39(5A)Before giving any guidance for the purposes of subsection (5)(a) above the Secretary of State must consult [F40the Welsh Ministers].

(5B)In exercising its safety functions, other than its functions as an enforcing authority for the purposes of the Health and Safety at Work etc. Act 1974, [F5the Office of Rail and Road] shall be under a duty to have regard to any general guidance given to it by the Secretary of State.

(5C)In performing its duties under subsections (1) to (5A) above in relation to—

(a)any matter affecting the interests of users or potential users of railway services,

(b)any matter affecting the interests of persons providing railway services, or

(c)any matter not falling within paragraph (a) or (b) but falling within subsection (5D),

[F5the Office of Rail and Road] must have regard, in particular, to the interests, in securing value for money, of the persons mentioned in paragraphs (a) and (b) above, of the persons who make available the resources and other funds mentioned in that subsection and of the general public.

(5D)A matter falls within this subsection if [F5the Office of Rail and Road] has been informed that—

(a)public financial resources (within the meaning of paragraph 1D of Schedule 4A to this Act), or

(b)funds that do not comprise such resources but are provided in whole or in part by Transport for London, [F41the Welsh Ministers], a Passenger Transport Executive or any other body in receipt of such resources,

are or are likely to become available to be applied for purposes connected with that matter.]

(6)In performing [F12its] duty under subsection (1)(a) above so far as relating to services for the carriage of passengers by railway or to station services, [F5the Office of Rail and Road] shall have regard, in particular, to the interests of persons who are disabled.

(7)Without prejudice to the generality of paragraph (e) of subsection (1) above, any arrangements for the issue and use of through tickets shall be regarded as a measure falling within that paragraph.

[F42(7ZA)Where any general guidance is given to [F5the Office of Rail and Road] for the purposes of subsection (5)(a) or (aa) or (5B)—

(a)it may be varied or revoked by the person giving it at any time; and

(b)the guidance, and any variation or revocation of the guidance, must be published by that person in such manner as he considers appropriate.]

[F43(7A)Subsections (1) to (6) above do not apply in relation to anything done by [F5the Office of Rail and Road] in the exercise of functions assigned to [F7it] by section 67(3) below (“Competition Act functions”).

(7B)[F5The Office of Rail and Road] may nevertheless, when exercising any Competition Act function, have regard to any matter in respect of which a duty is imposed by any of subsections (1) to (6) above, if it is a matter to which [F44the CMA] could have regard when exercising that function.]

(8)F45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)In this section—

• [F46“the environment” means all , or any, of the following media, namely , the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground);]

• [F47“notified strategies and policies”, in relation to [F48the Welsh Ministers], means the strategies and policies of [F49the Welsh Ministers] that have been notified by [F50them] for the purposes of this section to [F5the Office of Rail and Road];]

• “the passenger transport market” means the market for the supply of services for the carriage of passengers, whether by railway or any other means of transport;

• [F51“railway service performance” includes, in particular, performance in securing each of the following in relation to railway services—

  (a)

  reliability (including punctuality);

  (b)

  the avoidance or mitigation of passenger overcrowding; and

  (c)

  that journey times are as short as possible;

• “safety functions” means functions assigned or transferred to [F5the Office of Rail and Road]—

  (a)

  under this Part,

  (b)

  under or by virtue of the Railways Act 2005, or

  (c)

  under or by virtue of the Health and Safety at Work etc. Act 1974,

  so far as they are being exercised for the railway safety purposes (within the meaning of Schedule 3 to the Railways Act 2005) or for purposes connected with those purposes.]

• F52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F535. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S

Licensing of operators of railway assetsE+W+S

6 Prohibition on unauthorised operators of railway assets.E+W+S

(1)Any person who acts as the operator of a railway asset is guilty of an offence unless—

(a)he is authorised to be the operator of that railway asset by a licence; or

(b)he is exempt, by virtue of section 7 below, from the requirement to be so authorised.

[F54(1A)This section does not apply to a person who acts as the operator of a railway asset to the extent that the asset is operated for the purpose of providing—

(a)a service for which a railway undertaking licence is required; or

(b)a Channel Tunnel service for which a railway undertaking licence or a European licence is required.]

[F55(1B)In this section—

• “Channel Tunnel service” means—

  (a)

  a railway passenger service between Calais-Fréthun station in France and Ashford International station in the United Kingdom;

  (b)

  a service for the carriage of goods by railway between Fréthun freight yard in France and Dollands Moor freight yard in the United Kingdom; or

  (c)

  a railway passenger service or service for the carriage of goods by railway which originates or terminates somewhere other than one of those stations or freight yards, but only while it passes between them;

• “European licence” means a licence granted pursuant to any action taken by an EEA state for the purpose of implementing—

  (a)

  Council Directive 95/18/EC of 19 June 1995 on the licensing of railway undertakings, as amended by Directive 2001/13/EC of 26February 2001 and Directive 2004/49/EC of 29 April 2004, both of the European Parliament and of the Council; or

  (b)

  Chapter III of Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (recast).]

(2)In this Part—

• F56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “operator”, in relation to any railway asset, means the person having the management of that railway asset for the time being;

• “railway asset” means—

  (a)

  any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;

  (b)

  any network;

  (c)

  any station; or

  (d)

  any light maintenance depot.

• [F58“railway undertaking licence” means a licence granted pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005;]

• [F59“relevant European licence” means a European licence which an operator relies on to provide a Channel Tunnel service.]

F60(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Any person who is guilty of an offence under this section shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to a fine.

(4)No proceedings shall be instituted in England and Wales in respect of an offence under this section except by or on behalf of the Secretary of State or [F61the Office of Rail and Road].

7 Exemptions from section 6.E+W+S

(1)The Secretary of State may, after consultation with [F62the Office of Rail and Road] F63... , by order grant exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)A licence exemption under subsection (1) above may be granted either—

(a)to persons of a particular class or description; or

(b)to a particular person;

and a licence exemption granted to persons of a particular class or description shall be published in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons of that class or description.

(3)If any person makes an application under this subsection to [F62the Office of Rail and Road] for the grant of an exemption from the requirement to be authorised by licence to be the operator of such railway assets, or of railway assets of such a class or description, as he may specify in the application, [F62the Office of Rail and Road], after consultation with the Secretary of State F63... —

(a)may either grant or refuse the exemption, whether wholly or to such extent as [F64it] may specify in the exemption; and

(b)if and to the extent that [F64it] grants [F65the exemption] , may do so subject to compliance with such conditions (if any) as [F64it] may so specify.

(4)Before granting a licence exemption under subsection (3) above, [F62the Office of Rail and Road] shall give notice—

(a)stating that [F64it] proposes to grant the licence exemption,

(b)stating the reasons why [F64it] proposes to grant the licence exemption; and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence exemption may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as [F62the Office of Rail and Road] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence exemption.

F66(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)If any condition (the “broken condition") of a licence exemption is not complied with—

(a)the Secretary of State, in the case of a licence exemption under subsection (1) above, or

(b)[F62the Office of Rail and Road], in the case of a licence exemption under subsection (3) above,

may give to any relevant person a direction declaring that the licence exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

F66(6A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)For the purposes of [F67this section]—

• “condition”, in relation to a licence exemption, means any condition subject to compliance with which the licence exemption was granted;

• “relevant person”, in the case of any licence exemption, means a person who has the benefit of the licence exemption and who—

  (a)

  is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; or

  (b)

  is the operator of any of the railway assets in relation to which the broken condition is not complied with.

(8)Where the Secretary of State or [F62the Office of Rail and Road] gives a direction under subsection (6) above to any person, he [F68or it] may also direct that person to refrain from being the operator of any railway assets or of such railway assets, or railway assets of such a class or description, as may be specified in the direction by virtue of this subsection.

F66(8A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)Subject to [F69subsection (6)] above, a licence exemption, unless previously revoked in accordance with any term contained in the licence exemption, shall continue in force for such period as may be specified in, or determined by or under, the licence exemption.

F70(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Any application for a licence exemption under subsection (3) above must be made in writing; and where any such application is made, [F62the Office of Rail and Road] may require the applicant to furnish him with such information as [F62the Office of Rail and Road] may consider necessary to enable [F64it] to decide whether to grant or refuse the licence exemption.

(12)Licence exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

(13)In this Part “licence exemption” means an exemption, granted under any provision of this section in respect of a railway asset or in respect of railway assets of any class or description, from the requirement to be authorised by licence to be the operator of that railway asset or, as the case may be, railway assets of that class or description.

7A Consumer protection conditions.E+W+S

F71. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8 Licences.E+W+S

(1)Subject to the following provisions of this section—

(a)the Secretary of State after consultation with [F72the Office of Rail and Road] F73. . . , or

(b)[F72the Office of Rail and Road] with the consent[F74, or in accordance with a general authority, of the Secretary of State F73. . . ,]

may grant to any person a licence authorising the person to be the operator of such railway assets, or of railway assets of such a class or description, as may be specified in the licence.

(2)Any general authority given to [F72the Office of Rail and Road] under subsection (1)(b) above

[F75(a)F76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)may include a requirement for [F72the Office of Rail and Road] either to consult the Secretary of State, or a requirement to obtain his approval before granting a licence;

but a failure to comply with such a requirement shall not affect the validity of the licence.]

(3)Any application for a licence—

(a)shall be made in the prescribed manner;

(b)shall be accompanied by such fee (if any) as may be prescribed in the case of a licence of the description in question; and

(c)shall, if the Secretary of State so requires, be published by the applicant in the prescribed manner and within such period as may be notified to the applicant by the Secretary of State;

and, on any such application, the Secretary of State or, as the case may be, [F72the Office of Rail and Road] may either grant or refuse the licence.

(4)Before granting a licence, the Secretary of State or [F72the Office of Rail and Road] shall give notice—

(a)stating that he [F77or it] proposes to grant the licence,

(b)stating the reasons why he [F77or it] proposes to grant the licence, and

(c)specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed licence may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(5)A notice under subsection (4) above shall be given by publishing the notice in such manner as the Secretary of State or [F72the Office of Rail and Road] considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.

(6)A licence shall be in writing and, unless previously revoked or surrendered in accordance with any terms contained in the licence, shall continue in force for such period as may be specified in or determined by or under the licence; and a licence shall not be capable of being surrendered [F78unless [F72the Office of Rail and Road] [F79consents] to the surrender] if it is—

(a)a passenger licence;

(b)a network licence;

(c)a station licence; or

(d)a light maintenance depot licence.

(7)As soon as practicable after the granting of a licence, the grantor shall send a copy—

(a)in the case of a licence granted by the Secretary of State, to [F72the Office of Rail and Road] F80. . . ; or

(b)in the case of a licence granted by the [F72the Office of Rail and Road], [F81to the [F82Secretary of State]] F80. . . .

(8)Any power to make regulations by virtue of subsection (3) above shall only be exercisable by the Secretary of State after consultation with [F72the Office of Rail and Road] F83. . .

(9)Different fees may be prescribed under subsection (3) above in respect of licences authorising a person to be the operator of railway assets of different classes or descriptions.

F84(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11)Any sums received by the Secretary of State or [F72the Office of Rail and Road] under this section shall be paid into the Consolidated Fund.

9Conditions of licences: general.E+W+S

(1)A licence may include—

(a)such conditions (whether or not relating to the licence holder’s being the operator of railway assets under the authorisation of the licence) as appear to the grantor to be requisite or expedient having regard to the duties imposed by section 4 above; and

(b)conditions requiring the rendering to—

(i)the Secretary of State,

(ii)[F85the Office of Rail and Road], or

(iii)any other person, or any other person of a class or description, specified in the licence, except a Minister of the Crown or Government department,

of a payment on the grant of the licence, or payments during the currency of the licence, or both, of such amount or amounts as may be determined by or under the licence.

(2)Conditions included in a licence by virtue of subsection (1)(a) above—

(a)may require the licence holder to enter into any agreement with any person for such purposes as may be specified in the conditions; and

(b)may include provision for determining the terms on which such agreements are to be entered into.

(3)Conditions included in a licence by virtue of subsection (1)(a) above may require the licence holder—

(a)to comply with any requirements from time to time imposed by a qualified person with respect to such matters as are specified in the licence or are of a description so specified;

(b)except in so far as a qualified person consents to his doing or not doing them, not to do or to do such things as are specified in the licence or are of a description so specified;

(c)to refer for determination by a qualified person such questions arising under the licence as are specified in the licence or are of a description so specified;

(d)to refer for approval by a qualified person such things falling to be done under the licence as are specified in the licence or are of a description so specified;

(e)to furnish to a qualified person such documents or other information as he may require for the purpose of exercising any functions conferred or imposed on him under or by virtue of the licence;

(f)to furnish to the Secretary of State or [F85the Office of Rail and Road] such documents or other information as he [F86or it] may require for the purpose of exercising the functions assigned or transferred to him [F86or it] under or by virtue of this Part [F87or Part 4 of the Railways Act 2005].

[F88(3A)Conditions included in a licence by virtue of subsection (1)(a) above may include provision about any matter which is dealt with (whether in the same or a different manner) by an access agreement.]

(4)Conditions included in a licence may contain provision for the conditions to cease to have effect or be modified at such times, in such manner and in such circumstances as may be specified in or determined by or under the conditions; and any provision included by virtue of this subsection in a licence shall have effect in addition to the provision made by this Part with respect to the modification of the conditions of a licence.

(5)Subsections (2) to (4) above are without prejudice to the generality of subsection (1)(a) above.

(6)Any reference in subsection (3) above to a “qualified person” is a reference to—

(a)a person specified in the licence in question for the purpose in question, or

(b)a person of a description so specified,

and includes a reference to a person nominated for that purpose by such a person pursuant to the licence.

(7)Any sums received by the Secretary of State or [F85the Office of Rail and Road] in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

10 Conditions of licences: activities carried on by virtue of a licence exemption.E+W+S

(1)If and so long as a person is a licence exempt operator—

(a)there shall not be included in any licence granted to him any condition which relates to his licence exempt activities, except to the extent permitted by virtue of subsection (2) below; and

(b)any such condition which is included in a licence which has been granted to him shall, except to that extent, be of no effect so far as so relating.

(2)A condition which relates to both—

(a)a licensed activity carried on by a person (“the licensee"), and

(b)a licence exempt activity carried on by him,

may be included in a licence, but only if and to the extent that, in the opinion of the person granting the licence, the condition must, in consequence of the licensee’s carrying on of a mixed activity, necessarily have effect in relation to the whole, or some part, of so much of the mixed activity as consists of the licence exempt activity if the condition is to have full effect in relation to so much of the mixed activity as consists of the licensed activity.

(3)There shall not be included in a licence any condition relating to the fares that may be charged in respect of train journeys involving licence exempt travel, other than train journeys which also involve—

(a)licensed travel; and

(b)at least two consecutive scheduled calls at stations during any one continuous spell of licensed operation.

(4)For the purposes of subsection (3) above and this subsection—

• F89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “licence exempt travel” means travel by means of a train whose operator is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of that train for the whole, or for some part, of the train journey in question;

• “licensed travel” means travel by means of a train whose operator is authorised by licence to be the operator of that train for some part of the train journey in question;

• “spell of licensed operation”, in the case of any train journey, means any part of the journey throughout which the operator of the train in question lawfully acts as such by virtue only of holding one or more licences;

• “train journey” means a journey between any two stations which is scheduled to be made by means of one train (irrespective of where the train in question begins or ends its journey).

(5)Subsection (3) above has effect notwithstanding anything in subsection (1) or (2) above; and section 9 above is subject to the provisions of this section.

(6)In this section—

• “licence exempt activity” means any activity which a person carries on in his capacity as a licence exempt operator;

• “licence exempt operator” means an operator of railway assets, or railway assets of a class or description, who is, by virtue of a licence exemption, exempt from the requirement to be authorised by licence to be the operator of those railway assets or of railway assets of that class or description;

• “licensed activity” means any activity which a person carries on in his capacity as a licence holder;

• “mixed activity” means any activity which is carried on by a person who is both a licence holder and a licence exempt operator and which is carried on by him in part as a licensed activity and in part as a licence exempt activity.

11 Assignment of licences.E+W+S

(1)A licence shall be capable of being assigned, but only if it includes a condition authorising assignment.

(2)A licence shall not be capable of being assigned except with the consent of—

[F90(a)the Secretary of State, if he is specified for the purpose in the licence; or

(b)[F91the Office of Rail and Road] F92. . . , in any other case.]

F93(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Any consent under subsection (2) above may be given subject to compliance with such conditions as [F94are imposed by the person F95. . . giving the consent], which may include conditions modifying, or requiring or otherwise providing for the making of modifications to, the conditions of the licence.

(5)A licence may include conditions which must be complied with before the licence can be assigned.

(6)An assignment, or purported assignment, of a licence shall be void—

(a)if the licence is not capable of assignment;

(b)if the assignment, or purported assignment, is in breach of a condition of the licence; or

(c)if there has, before the assignment or purported assignment, been a contravention of a condition subject to compliance with which the consent required by subsection (2) above is given.

(7)A licence shall not be capable of being assigned under or by virtue of any other provision of this Act, other than paragraph 4 of Schedule 7 to this Act.

(8)In this section “assignment” includes any form of transfer and cognate expressions shall be construed accordingly.

(9)Any reference in this section to “assignment” shall be construed in Scotland as a reference to assignation.

Modification of licencesE+W+S

12 Modification by agreement.E+W+S

(1)Subject to the following provisions of this section, [F96the Office of Rail and Road] may modify the conditions of a licence if the holder of the licence consents to the modifications.

F97(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F97(1C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Before making modifications [F98under this section], [F96the Office of Rail and Road] shall give notice—

(a)stating that [F99it] proposes to make the modifications and setting out their effect,

(b)stating the reasons why [F99it] proposes to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall[F100, before making the modifications,] consider any representations or objections which are duly made and not withdrawn.

(3)A notice under subsection F101. . . (2) above shall be given—

(a)by publishing the notice in such manner as F102. . . [F96the Office of Rail and Road] considers appropriate for the purpose of bringing the notice to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

(4)F103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13 Modification references to the [F104CMA]E+W+S

(1)[F105The Office of Rail and Road] may make to the Monopolies and Mergers Commission (in this Act referred to as the [F106CMA]) a reference which is so framed as to require [F107the CMA] to investigate and report on the questions—

(a)whether any matters which—

(i)relate to the provision of any railway services by means of a railway asset, or railway assets of a class or description, whose operator acts as such by virtue of a licence, and

(ii)are specified in the reference,

operate, or may be expected to operate, against the public interest; and

(b)if so, whether the effects adverse to the public interest which those matters have or may be expected to have could be remedied or prevented by modifications of the conditions of the licence.

F108(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F108(1B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F108(1C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)[F105The Office of Rail and Road] may, at any time, by notice given to the [F109CMA] vary a reference under this section by adding to the matters specified in the reference or by excluding from the reference some or all of the matters so specified; and on receipt of any such notice [F110the CMA] shall give effect to the variation.

(3)[F105The Office of Rail and Road] may specify in a reference under this section, or a variation of such a reference, for the purpose of assisting the [F111CMA] in carrying out the investigation on the reference—

(a)any effects adverse to the public interest which, in [F112its] opinion, the matters specified in the reference or variation have or may be expected to have; and

(b)any modifications of the conditions of the licence by which, in [F112its] opinion, those effects could be remedied or prevented.

(4)As soon as practicable after making a reference under this section or a variation of such a reference, [F105the Office of Rail and Road]—

(a)shall serve a copy of the reference or variation on the holder of the licence; and

(b)shall publish particulars of the reference or variation in such manner as [F113it] considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

(5)[F105The Office of Rail and Road] shall also send a copy of a reference under this section, or a variation of such a reference, to the Secretary of State; and if, before the end of the period of 28 days beginning with the day on which the Secretary of State receives the copy of the reference or variation, the Secretary of State directs the [F114CMA] not to proceed with the reference or, as the case may require, not to give effect to the variation, [F115the CMA] shall comply with the direction.

(6)It shall be the duty of [F105the Office of Rail and Road], for the purpose of assisting the [F116CMA] in carrying out an investigation on a reference under this section, to give to [F117the CMA] —

(a)any information in [F118the possession of [F105the Office of Rail and Road]] which relates to matters falling within the scope of the investigation and—

(i)is requested by [F117the CMA] for that purpose; or

(ii)is information which, in [F118the opinion of [F105the Office of Rail and Road]], it would be appropriate for that purpose to give to [F117the CMA] without any such request; and

(b)any other assistance which [F117the CMA] may require, and which it is within [F118the power of [F105the Office of Rail and Road]] to give, in relation to any such matters;

and [F117the CMA], for the purpose of carrying out any such investigation, shall take account of any information given to them for that purpose under this subsection.

(7)In determining for the purposes of this section whether any particular matter operates, or may be expected to operate, against the public interest, the [F119CMA] shall have regard to the matters as respects which duties are imposed on F120. . . [F105the Office of Rail and Road] by section 4 above.

F121(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F121(8A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

[F122(10)The functions of the CMA with respect to a reference under this section are to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 (including functions relating to the making of modifications following a report on a reference, and functions under sections 109 to 115 of the Enterprise Act 2002, as applied by sections 13B and 15C).]

[F12313A References under section 13: time limitsE+W+S

(1)Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

(2)A report of the [F124CMA] on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by [F125the Office of Rail and Road] under subsection (3) below.

(3)[F125The Office of Rail and Road] may, if it has received representations on the subject from the [F124CMA] and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

(4)No more than one extension is possible under subsection (3) above in relation to the same reference.

(5)[F125The Office of Rail and Road] shall, in the case of an extension made by it under subsection (3) above—

(a)publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and

(b)send a copy of what has been published by it under paragraph (a) above to the holder of the licence.]

F12613B References under section 13: application of Enterprise Act 2002E+W+S

(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections [F127(1A),] (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

[F128(1A)Section 109 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)for subsection (A1), there were substituted—

“(A1)For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with a reference under section 13 of the Railways Act 1993.”, and

(b)subsection (8A) were omitted.]

(2)Section 110 shall, in its application by virtue of subsection (1) above, have effect as if—

(a)subsection (2) were omitted; F129...

[F130(aa)after subsection (3), there were inserted—

“(3A)No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the publication of the report of the CMA on the reference concerned; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”; and]

(b)in subsection (9) the words from “or section" to “section 65(3))" were omitted.

[F131(3)Section 111(5)(b) shall, in its application by virtue of subsection (1) above, have effect as if for sub-paragraph (ii) there were substituted—

“(ii)if earlier, the day on which the report of the CMA on the reference concerned is made or, if no such report is made within the period permitted for that purpose, the latest day on which the report may be made within the permitted period.”.]

(4)Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the [F132CMA] in connection with references under section 13 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), [F133—

(a)the words “, OFCOM or the Secretary of State” were omitted; and

(b)for the words “their functions” there were substituted “ its functions ”.]

(5)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders), shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by those subsections.

(6)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.

14 Reports on modification references.E+W+S

(1)In making a report on a reference under section 13 above, the [F134CMA]—

(a)shall include in the report definite conclusions on the questions comprised in the reference together with such an account of their reasons for those conclusions as in their opinion is expedient for facilitating a proper understanding of those questions and of their conclusions;

(b)where they conclude that any of the matters specified in the reference operate, or may be expected to operate, against the public interest, shall specify in the report the effects adverse to the public interest which those matters have or may be expected to have; and

(c)where they conclude that any adverse effects so specified could be remedied or prevented by modifications of the conditions of the licence, shall specify in the report modifications by which those effects could be remedied or prevented.

[F135(1A)For the purposes of sections 15 to 15B below, a conclusion contained in a report of the [F136CMA] is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted [F137by the chair of the CMA for the purpose of carrying out the functions of the CMA with respect to the reference].

(1B)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 13 above as the conclusions of the [F138CMA], the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.]

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F139(3)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the [F140CMA] on a reference under section 13 above.

(3A)In making any report on a reference under section 13 above the [F140CMA] must have regard to the following considerations before disclosing any information.

(3B)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the [F140CMA] thinks is contrary to the public interest.

(3C)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the [F140CMA] thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the [F140CMA] thinks might significantly harm the individual’s interests.

(3D)The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report.]

(4)A report of [F141 the [F142CMA]] on a reference under section 13 above shall be made to [F143the Office of Rail and Road].

(5)Subject to subsection (6) below, [F143the Office of Rail and Road]—

(a)shall, on receiving such a report, send a copy of it to the holder of the licence to which the report relates and to the Secretary of State; and

(b)shall, not less than 14 days after that copy is received by the Secretary of State, publish the report in such manner as [F144it] considers appropriate for bringing the report to the attention of persons likely to be affected by it.

F145(5A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)If it appears to the Secretary of State that the publication of any matter in such a report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in paragraph (b) of subsection (5) above, direct [F143the Office of Rail and Road] to exclude that matter from every copy of the report to be published by virtue of that paragraph.

(7)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

15 Modification following report.E+W+S

(1)[F146This section applies where] a report of the [F147CMA] on a reference under section 13 above—

(a)includes conclusions to the effect that any of the matters specified in the reference operate, or may be expected to operate, against the public interest,

(b)specifies effects adverse to the public interest which those matters have or may be expected to have,

(c)includes conclusions to the effect that those effects could be remedied or prevented by modifications of the conditions of the licence, and

(d)specifies modifications by which those effects could be remedied or prevented,

F148. . .

[F149(1A)Where the report is made to [F150the Office of Rail and Road] [F151it] shall, subject to the following provisions of this section and to section 15A below, make such modifications of the conditions of the licence as appear to [F151it] requisite for the purpose of remedying or preventing the adverse effects specified in the report.

(1B)F152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(2)Before making [F153, or requiring the making of,] modifications under this section, [F150the Office of Rail and Road], F154. . . , shall have regard to the modifications specified in the report.

(3)Before making modifications under [F155subsection (1A) above], [F150the Office of Rail and Road] shall give notice—

(a)stating that [F151it] proposes to make the modifications and setting out their effect,

(b)stating the reasons why [F151it] proposes to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(3A)F156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)A notice under subsection (3) F157. . . above shall be given—

(a)by publishing the notice in such manner as [F150the Office of Rail and Road] , F157. . . considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

[F158(4A)Where (after considering any representations or objections which are duly made and not withdrawn) [F150the Office of Rail and Road] F154. . . proposes to make or require the making of modifications under this section, F159. . . it shall give notice to the [F160CMA] —

(a)setting out the modifications [F151it] proposes to make or F161. . . require to be made; and

(b)stating the reasons why [F151it] proposes to make the modifications or F161. . . require the making of them.

(4B)[F150The Office of Rail and Road] F154. . . shall include with the notice under subsection (4A) above a copy of any representations and objections which have been considered.

(4C)If the period within which a direction may be given by the [F162CMA] under section 15A below expires without such a direction being given, [F150the Office of Rail and Road] F154. . . shall make, or require the making of, the modifications set out in the notice given under subsection (4A) above.

(4D)If a direction is given by the [F162CMA] under section 15A(1)(b) below, [F150the Office of Rail and Road] F154. . . shall make, or require the making of, such of those modifications as are not specified in the direction.]

(5)F163. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

[F16415A [F165CMA's] power to veto modifications following report.E+W+S

(1)The [F166CMA] may, within the period of four weeks beginning with the day on which they are given notice under section 15(4A) above, give a direction to [F167the Office of Rail and Road] F168. . . —

(a)not to make, or require the making of, the modifications set out in the notice; or

(b)not to make such of those modifications as are specified in the direction.

(2)The Secretary of State may, if an application is made to him by the [F166CMA] within that period of four weeks, extend the period within which a direction may be given under this section to one of six weeks beginning with the day on which the [F166CMA] are given notice under section 15(4A) above.

(3)The [F166CMA] may give a direction under this section only if the modifications to which it relates do not appear to them requisite for the purpose of remedying or preventing the adverse effects specified in their report on the reference under section 13 above.

(4)If the [F166CMA] give a direction under this section, they shall give notice—

(a)setting out the modifications contained in the notice given under section 15(4A) above;

(b)setting out the direction; and

(c)stating the reasons why they are giving the direction.

(5)A notice under subsection (4) above shall be given—

(a)by publishing the notice in such manner as the [F166CMA] consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the direction; and

(b)by serving a copy of the notice on the holder of the licence.]

F17015B Making of modifications by [F169CMA] .E+W+S

(1)If the [F171CMA ] give a direction under section 15A above, they shall themselves make such modifications of the conditions of the licence as appear to them requisite for the purpose of remedying or preventing—

(a)the adverse effects specified in their report on the reference under section 13 above; or

(b)such of those adverse effects as would not be remedied or prevented by the modifications made by [F172the Office of Rail Regulation], F173. . . , under section 15(4D) above.

(2)In exercising the function conferred by subsection (1) above, the [F171CMA] shall have regard to the matters as respects which duties are imposed on [F174the Office of Rail and Road] by section 4 above.

(3)Before making modifications under this section, the [F171CMA] shall give notice—

(a)stating that they propose to make the modifications and setting out their effect,

(b)stating the reasons why they propose to make the modifications, and

(c)specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made,

and shall consider any representations or objections which are duly made and not withdrawn.

(4)A notice under subsection (3) above shall be given—

(a)by publishing the notice in such manner as the [F171CMA] consider appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by the making of the modifications; and

(b)by serving a copy of the notice on the holder of the licence.

(5)As soon as practicable after making any modifications under this section, the [F171CMA] shall send a copy of those modifications to [F174the Office of Rail and Road], [F175the Authority and the Health and Safety Executive].

F17615C Sections 15A and 15B: supplementary.E+W+S

[F177(1)For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15A(4) or 15B(3) above.

(2)In giving any notice under section 15A(4) or 15B(3) above, the [F178CMA] must have regard to the following considerations before disclosing any information.

(2A)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the [F178 CMA] thinks is contrary to the public interest.

(2B)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the [F178CMA] thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the [F178CMA] thinks might significantly harm the individual’s interests.

(2C)The third consideration is the extent to which the disclosure of the information mentioned in subsection (2B)(a) or (b) above is necessary for the purposes of the notice.

(2D)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections [F179(2DA),] (2E) and (2F) below, for the purposes of any investigation by the [F180CMA] for the purposes of the exercise of its functions under section 15A or 15B above, as they apply for the purposes of any investigation on references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

[F181(2DA)Section 109 shall, in its application by virtue of subsection (2D) above, have effect as if—

(a)for subsection (A1), there were substituted—

“(A1)For the purposes of this section, a permitted purpose is assisting the CMA in carrying out any functions exercisable by it in connection with an investigation for the purposes of the exercise of its functions under section 15A or 15B of the Railways Act 1993.”, and

(b)subsection (8A) were omitted.]

(2E)Section 110 shall, in its application by virtue of subsection (2D) above, have effect as if—

(a)subsection (2) were omitted;

[F182(b)after subsection (3), there were inserted—

“(3A)No penalty shall be imposed by virtue of subsection (1) or (3) if more than 4 weeks have passed since the sending of a copy to [F183the Office of Rail and Road] under section 15B(5) of the Railways Act 1993 of the modifications made by the CMA in connection with the reference concerned or, if no direction has been given by the CMA under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period; but this subsection shall not apply in relation to any variation or substitution of the penalty which is permitted by virtue of this Part.”; and]

(c)in subsection (9) the words from “or section" to “section 65(3))" were omitted.

(2F)Section 111(5)(b) shall, in its application by virtue of subsection (2D) above, have effect as if for sub-paragraph (ii) there were substituted—

“(ii)if earlier, the day on which a copy of the modifications made by the [F184CMA] in connection with the reference concerned is sent to [F185the Office of Rail and Road] under section 15B(5) of the Railways Act 1993 or, if no direction is given by the [F184CMA] under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period. ".

(2G)Section 117 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the [F186CMA] in connection with the exercise of its functions under section 15A and 15B above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), [F187—

(a)the words “, OFCOM or the Secretary of State” were omitted; and

(b)or the words “their functions” there were substituted “ its functions ”.]

(2H)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 117 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those subsections.

(2I)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections.]

(2)The provisions are—

(a)sections 82(1) and (2) (general provisions as to reports), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the 1973 Act;

(b)Part II of Schedule 7 to the M1Competition Act 1998 (performance of the Competition Commission’s general functions); and

(c)section 24 of the 1980 Act (modification of provisions about performance of such functions).

(3)For the purpose of assisting the [F188CMA] in exercising their functions under sections 15A and 15B above, [F189the Office of Rail and Road] F190. . . shall F190. . . give to the [F188CMA] any information in F191. . . its possession which relates to matters relevant to the exercise of those functions and—

(a)is requested by the [F188CMA] for that purpose; or

(b)is information which, in F191. . . its opinion, it would be appropriate for that purpose to give to the [F188CMA] without any such request;

and any other assistance which the [F188CMA] may require, and which it is within F191. . . its power to give, in relation to any such matters.

(4)For the purpose of exercising those functions, the [F188CMA] shall take account of any information given to them for that purpose under subsection (3) above.

16 Modification by order under other enactments.E+W+S

[F192(1)Where the [F193CMA] or (as the case may be) the Secretary of State (in this section “the relevant authority”) makes a relevant order, the order may also provide for the modification of the conditions of a licence to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order.

(2)In subsection (1) above “relevant order” means—

(a)an order under section 75, 83 or 84 of, or paragraph 5, 10 or 11 of Schedule 7 to, the Enterprise Act 2002 where—

(i)one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the supply of services relating to railways; or

(ii)one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the supply of services relating to railways; or

(b)an order under section 160 or 161 of that Act where the feature, or combination of features, of the market [F194or markets] in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the supply of services relating to railways.]

(3)As soon as practicable after making any modifications under this section, the [F195relevant authority] shall send a copy of those modifications to [F196the Office of Rail and Road], [F197the Authority and to the Health and Safety Executive].

(4)Nothing in this section applies in relation to any term of a licence to the extent that it makes provision for the revocation or surrender of the licence.

[F198(5)Expressions used in subsection (2) above and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part; and in subsection (2) above “services relating to railways” has the same meaning as in section 67(2A) of this Act.]

F199 Directions to provide, improve or develop railway facilitiesE+W+S

F20016A Provision, improvement and development of railway facilities.E+W+S

(1)[F201The Office of Rail and Road] may, on an application—

(a)made by the [F202appropriate facilities authority], or

(b)made by any other person with the consent of the [F202appropriate facilities authority],

give to the operator of a network, station or light maintenance depot a direction to provide a new railway facility if [F201the Office of Rail and Road] considers him to be an appropriate person to provide the new railway facility.

(2)[F201The Office of Rail and Road] may, on an application—

(a)made by the [F202appropriate facilities authority], or

(b)made by any other person with the consent of the [F202appropriate facilities authority],

give to a person who has an estate or interest in, or right over, an existing railway facility a direction to improve or develop the railway facility if [F201the Office of Rail and Road] considers him to be an appropriate person to improve or develop the railway facility.

(3)The [F203consent of the appropriate facilities authority] to the making by any other person of an application under subsection (1) or (2) above may be given subject to compliance with conditions (and may be withdrawn if any condition is not complied with before [F201the Office of Rail and Road] decides whether to give the direction).

[F204(3A)In this section and sections 16B to 16G below “the appropriate facilities authority”—

(a)in relation to facilities in Scotland, means the Scottish Ministers; and

(b)in relation to any other facilities, means the Secretary of State.]

F20516B Exemption of railway facilities from section 16A.E+W+S

(1)The [F206appropriate facilities authority] may, after consultation with [F207the Office of Rail and Road], by order grant exemption from subsection (1) or (2) of section 16A above (or from both of those subsections) in respect of such railway facilities as may be specified in the order, but subject to compliance with such conditions (if any) as may be so specified.

(2)An exemption under subsection (1) above may be granted in respect of—

(a)railway facilities of a particular class or description, or

(b)a particular railway facility,

or in respect of part only of railway facilities of a particular class or description or a particular railway facility.

(3)An exemption under subsection (1) above may be granted generally, to persons of a particular class or description or to a particular person.

(4)If a person fails to comply with any condition subject to compliance with which an exemption was granted, the [F208appropriate facilities authority] may give a direction declaring that the exemption is revoked, so far as relating to that person, to such extent and as from such date as may be specified in the direction.

(5)Subject to subsection (4) above, an exemption, unless previously revoked in accordance with any term contained in the exemption, shall continue in force for such period as may be specified in, or determined by or under, the exemption.

(6)Exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

[F209(7)A statutory instrument containing an order made under this section by the Scottish Ministers shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.]

F21016C Making of applications for directions.E+W+S

(1)An application for a direction under section 16A above must be made to [F211the Office of Rail and Road] in writing.

(2)The application must—

(a)specify the person to whom the direction would be given;

(b)state what it would require him to do; and

(c)give the applicant’s reasons for considering that person to be an appropriate person to do what the direction would require him to do.

(3)The applicant may at any time vary what the direction would require that person to do by giving to [F211the Office of Rail and Road] notice in writing of the variation; but if the applicant is a person other than the [F212appropriate facilities authority] such a notice may only be given with the consent of the Authority.

(4)The application or notice of a variation may be accompanied by any written representations which the applicant wishes to make in relation to the direction.

F21316D Procedure for considering applications.E+W+S

(1)When [F214the Office of Rail and Road] has received the application or notice of a variation, [F215it]

(a)send a copy to the person specified in the application, the [F216appropriate facilities authority] (if it is not the applicant) and any other persons who [F214the Office of Rail and Road] considers ought to be sent one; and

(b)invite them to make written representations within a period specified in the invitation.

(2)If the person specified in the application makes representations that he is not an appropriate person to do what the direction would require him to do, [F214the Office of Rail and Road] must decide that issue in advance of considering any other matters which may be relevant in deciding whether to give the direction.

(3)If that person makes such representations but [F214the Office of Rail and Road] decides that he is an appropriate person to do what the direction would require him to do, [F214the Office of Rail and Road] must—

(a)notify him of that decision; and

(b)invite him to make written representations within a period specified in the invitation about any other matters which may be relevant in deciding whether to give the direction.

(4)[F214The Office of Rail and Road] must—

(a)send the applicant a copy of any representations received by [F215it] in response to any invitation under subsection (1) or (3) above; and

(b)invite him to make further written representations within a period specified in the invitation.

(5)Subject to subsection (6) below, [F214the Office of Rail and Road] may substitute as the applicant any other person if—

(a)the applicant,

(b)the other person, and

(c)the [F216appropriate facilities authority] (if it is neither the applicant nor the other person),

consent to the substitution.

(6)The applicant may, by giving notice in writing to [F214the Office of Rail and Road], withdraw or suspend the application at any time before [F214the Office of Rail and Road] decides whether to give the direction.

(7)[F214The Office of Rail and Road] may direct—

(a)the person specified in the application,

(b)the applicant, or

(c)any other person (apart from the [F216appropriate facilities authority]),

to provide him with any information required by him in order to decide whether to give the direction.

(8)If a person fails to comply with a direction under subsection (7) above, the High Court or the Court of Session may, on the application of [F214the Office of Rail and Road] make such order as it thinks fit for requiring the failure to be made good.

(9)Such an order may provide that all the costs or expenses of and incidental to the application shall be borne by—

(a)the person who failed to comply; or

(b)in the case of a company or other association, any officers who are responsible for the failure to comply.

F21716E Decisions on applications: adequate reward.E+W+S

(1)[F218The Office of Rail and Road] may only give a direction to a person under section 16A above to provide, improve or develop a railway facility if he is satisfied that the person will be adequately rewarded for providing, improving or developing the railway facility in accordance with the direction.

(2)In considering whether he is so satisfied [F218the Office of Rail and Road] shall take into account (in particular)—

(a)any receipts obtained or likely to be obtained by the person (from the [F219appropriate facilities authority], passengers, operators of railway services or any other persons) in connection with, or as a result of, the provision, improvement or development of the railway facility; and

(b)any other benefit obtained or likely to be obtained by him in consequence of its provision, improvement or development.

(3)Representations made by the applicant for a direction—

(a)under section 16C(4) above, or

(b)in response to an invitation under section 16D(4) above,

may, in particular, include representations as to matters which he considers [F218the Office of Rail and Road] should take into account in deciding whether the person to whom the direction would be given would be adequately rewarded for doing what it would require him to do.

F22016F Other provisions about decisions.E+W+S

(1)If [F221the Office of Rail and Road] does not consider it right to give a direction under section 16A above in the terms applied for (or to reject the application), [F222it] may give a direction under that section in modified terms.

(2)[F221The Office of Rail and Road] may include supplementary provisions in any direction under section 16A above, including (in particular)—

(a)provision adding detail (for instance, as to the time by which, or standard to which, the person to whom it is given is to do anything which it requires him to do); and

(b)provision imposing requirements on the applicant (for instance, to make arrangements for rewarding the person to whom the direction is given or to make payments to him).

(3)Before giving a direction under section 16A above which is in modified terms or includes supplementary provisions, [F221the Office of Rail and Road] shall—

(a)notify [F223its] intention to give a direction to the applicant, the [F224appropriate facilities authority] (if it is not the applicant) and any other persons who the Regulator considers ought to be notified; and

(b)invite them to make written representations within a period specified in the invitation;

and if the applicant makes representations that the direction should not be given, [F221the Office of Rail and Road] shall not give it.

(4)Whatever [F221the Office of Rail and Road]’s decision on an application [F222it] shall notify the decision to—

(a)the person specified in the application;

(b)the applicant; and

(c)any other persons who [F222it] considers ought to be notified.

(5)[F221the Office of Rail and Road] may direct the person specified in the application or the applicant to pay to—

(a)the other of those persons, or

(b)any other person directed to provide information under section 16D(7) above,

any such amount as [F222it] considers appropriate in respect of costs incurred in connection with the application.

F22516G Directions: compliance, variation and revocation.E+W+S

(1)A person shall not be regarded as failing to comply with a direction under section 16A above if he has done everything which it is reasonably practicable to do in order to comply with the direction.

(2)If a person is unable to comply with such a direction because he does not have the necessary powers or rights (including rights over land), he shall not be taken to have done everything which it is reasonably practicable to do in order to comply with the direction unless he has done everything which it is reasonably practicable to do in order to obtain those powers or rights.

(3)A direction under section 16A above may only be revoked or varied by [F226the Office of Rail and Road] —

(a)on the application of the person to whom the direction was given, the applicant for the direction or the Authority (if it was not the applicant); and

(b)after consultation with the other persons with power to apply for a revocation or variation.

(4)Such a direction may only be varied on an application by the applicant for the direction or the [F227appropriate facilities authority] if [F226the Office of Rail and Road] is satisfied that the person to whom the direction was given will be adequately rewarded for providing, improving or developing the railway facility in accordance with the varied direction, taking into account (in particular) the matters specified in section 16E(2) above.

(5)[F226The Office of Rail and Road] may grant an application for the variation or revocation of a direction under section 16A above by the applicant for the direction or the [F227appropriate facilities authority] on condition that he or it secures that any such compensation as [F226the Office of Rail and Road] may specify is paid to the person to whom the direction was given in respect of any liabilities incurred, or other things done, by him in complying with the direction.

F22816H Code of practice.E+W+S

(1)[F229The Office of Rail and Road] shall prepare, and from time to time revise, a code of practice supplementing sections 16A to 16G above and shall publish it in such manner as [F230it] considers appropriate.

(2)[F229The Office of Rail and Road] shall have regard to the code of practice in the exercise of [F231its] functions under those sections.

(3)The code of practice may (in particular)—

(a)set out minimum periods to be specified in invitations to make representations;

(b)include provision about requesting the provision of information prior to giving a direction under section 16D(7) above;

(c)specify principles according to which directions to pay costs are to be given under section 16F(5) above; and

(d)make provision about the consultation required by section 16G(3)(b) above.

F23216I Supplementary.E+W+S

(1)References in sections 16A to 16H above and this section to a railway facility include part of a railway facility.

(2)Nothing in any of those sections or a direction under section 16A above—

(a)limits any power of [F233the Office of Rail and Road] under any other provision of this Act; or

(b)affects any obligation to provide a new railway facility, or to improve or develop an existing railway facility, arising otherwise than from such a direction.

Access agreementsE+W+S

17 Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities.E+W+S

(1)[F234The Office of Rail and Road] may, on the application of any person, give directions to a facility owner requiring him to enter into an access contract with the applicant for the purpose specified in subsection (2) below; but no such directions shall be given if and to the extent that—

(a)the facility owner’s railway facility is, by virtue of section 20 below, an exempt facility;

(b)performance of the access contract, if entered into, would necessarily involve the facility owner in being in breach of an access agreement F235. . . ; F236. . . [F237or]

(c)as a result of an obligation or duty owed by the facility owner which arose before the coming into force of this section, the consent of some other person is required by the facility owner before he may enter into the access contract; F238. . .

(d)F238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The purpose for which directions may be given is that of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his)—

(a)from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;

(b)from a facility owner whose railway facility is a station, permission to use that station for or in connection with the operation of trains by the beneficiary;

(c)from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;

(d)from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or

(e)from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;

but this subsection is subject to the limitations imposed by subsection (3) below.

(3)In subsection (2) above—

(a)paragraph (a) does not extend to obtaining permission to use track for the purpose of providing network services on that track;

(b)paragraph (b) does not extend to obtaining permission to use a station for the purpose of operating that station;

(c)paragraph (c) does not extend to obtaining permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;

(d)if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—

(i)of providing network services on that track, or

(ii)of operating any network in which that track is comprised,

except where the purpose for which directions are sought is to enable the beneficiary to operate on behalf of [F239the Secretary of State] a network in which the track in question is comprised;

(e)if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—

(i)of providing station services at that station, or

(ii)of operating that station,

except where the purpose for which directions are sought is to enable the beneficiary to operate the station on behalf of [F239the Secretary of State];

(f)if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—

(i)of carrying out light maintenance at that light maintenance depot, or

(ii)of operating that light maintenance depot,

except where the purpose for which directions are sought is to enable the beneficiary to operate the light maintenance depot on behalf of the [F240Authority].

(4)Any reference in this section to a person operating a network, station or light maintenance depot "on behalf of the [F241Secretary of State][F242, the Welsh Ministers] is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the [F243Secretary of State or the Scottish Ministers] for the purpose of performing a duty imposed upon [F244him or them], or exercising a power conferred upon [F244him or them], under or by virtue of this Part [F245or Part 4 of the Railways Act 2005 (network modifications etc.)] to secure the operation of that network, station or light maintenance depot.

(5)Nothing in this section authorises [F234the Office of Rail and Road] to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility.

(6)In this Part—

• “access contract” means—

  (a)

  a contract under which—

  (i)

  a person (whether or not the applicant), and

  (ii)

  so far as may be appropriate, any associate of that person,

obtains permission from a facility owner to use the facility owner’s railway facility; or

(b)a contract conferring an option, whether exercisable by the applicant or some other person, to require a facility owner to secure that—

(i)a person (whether or not the applicant or that other), and

(ii)so far as may be appropriate, any associate of that person,

obtains permission from the facility owner to use his railway facility;

• and any reference to an “access option” is a reference to an option falling within paragraph (b) above;

• “facility owner” means any person—

  (a)

  who has an estate or interest in, or right over, a railway facility; and

  (b)

  whose permission to use that railway facility is needed by another before that other may use it;

• [F246but also includes a person before he becomes a facility owner;]

• and any reference to a facility owner’s railway facility is a reference to the railway facility by reference to which he is a facility owner.

(7)In this section—

• “the applicant” means the person making the application for directions;

• “associate”, in relation to any person, includes—

  (a)

  any servant, agent or independent contractor of his;

  (b)

  any passenger of his;

  (c)

  any person engaged in the provision of goods or services to or for him; and

  (d)

  any other person who deals or has business with him;

• “the beneficiary” means the person mentioned in paragraph (a)(i) or, as the case may be, paragraph (b)(i) of the definition of “access contract” in subsection (6) above, according to the description of access contract in question;

• “directions” means directions under this section;

• F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• F247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “lease” includes an underlease or sublease and an agreement for a lease, underlease or sublease.

[F248(7A)Any reference in this section to obtaining permission to use a railway facility includes, where the facility is track, permission to connect other track to it.]

(8)Any reference in this section to obtaining permission to use a railway facility includes—

(a)a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that railway facility, whether the facility owner in question is to provide those services himself or to secure their provision by another; and

(b)a reference to obtaining permission—

(i)to enter upon the facility land, with or without vehicles,

(ii)to bring things on to that land and keep them there,

(iii)to carry out works on that land, and

(iv)to use and maintain any things kept, or buildings or other works constructed, on that land (whether by the beneficiary or another) or any amenities situated on that land,

• “facility land” meaning in this paragraph the land which constitutes the railway facility in question;

and, in subsection (2)(c) above, the reference to obtaining permission to use a light maintenance depot includes a reference to obtaining power to obtain light maintenance services at that light maintenance depot, whether the facility owner is to provide those services himself or to secure their provision by another.

(9)Any reference in this section to a railway facility includes a reference to a part of a railway facility.

(10)Schedule 4 to this Act shall have effect with respect to applications for directions.

F249(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

18 Access agreements: contracts requiring the approval of [F250the Office of Rail and Road].E+W+S

(1)A facility owner shall not enter into an access contract to which this section applies unless—

(a)he does so pursuant to directions under section 17 above; F251. . .

(b)[F250the Office of Rail and Road] has approved the terms of the access contract and the facility owner enters into the contract pursuant to directions under this section; [F252or

(c)the access contract is of a class or description specified in a general approval given by [F250the Office of Rail and Road];]

and any access contract to which this section applies [F253shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.]

(2)The access contracts to which this section applies are those under which the beneficiary obtains, or, in the case of an access contract conferring an access option, may obtain, (whether for himself alone or for himself and associates of his)—

(a)from a facility owner whose railway facility is track, permission to use that track for the purpose of the operation of trains on that track by the beneficiary;

(b)from a facility owner whose railway facility is a station, permission to use that station, for or in connection with the operation of trains by the beneficiary;

(c)from a facility owner whose railway facility is a light maintenance depot, permission to use that light maintenance depot for the purpose of obtaining light maintenance services for or in connection with the operation of trains by the beneficiary, whether the facility owner is to provide those services himself or to secure their provision by another;

(d)from any facility owner, permission to use the facility owner’s railway facility for the purpose of stabling, or otherwise temporarily holding, rolling stock in connection with the operation of trains on any track by the beneficiary; or

(e)from any facility owner, permission to use the facility owner’s railway facility for or in connection with the operation of a network, station or light maintenance depot by the beneficiary;

but this subsection is subject to subsections (3) and (4) below.

(3)This section does not apply to an access contract—

(a)if and to the extent that the railway facility to which the access contract relates is, by virtue of section 20 below, an exempt facility; F254. . .

(b)F254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)In subsection (2) above—

(a)paragraph (a) does not extend to permission to use track for the purpose of providing network services on that track;

(b)paragraph (b) does not extend to permission to use a station for the purpose of operating that station;

(c)paragraph (c) does not extend to permission to use a light maintenance depot for the purpose of enabling the beneficiary to carry out light maintenance;

(d)if and to the extent that the railway facility mentioned in paragraph (e) is track, that paragraph does not extend to obtaining permission to use that track for the purpose—

(i)of providing network services on that track, or

(ii)of operating any network in which that track is comprised,

unless the purpose of entering into the access contract is to enable the beneficiary to operate on behalf of [F255the Secretary of State] a network in which the track in question is comprised;

(e)if and to the extent that the railway facility mentioned in that paragraph is a station, that paragraph does not extend to obtaining permission to use that station for the purpose—

(i)of providing station services at that station, or

(ii)of operating that station,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the station on behalf of [F255the Secretary of State];

(f)if and to the extent that the railway facility mentioned in that paragraph is a light maintenance depot, that paragraph does not extend to obtaining permission to use that light maintenance depot for the purpose—

(i)of carrying out light maintenance at that light maintenance depot, or

(ii)of operating that light maintenance depot,

unless the purpose of entering into the access contract is to enable the beneficiary to operate the light maintenance depot on behalf of [F255the Secretary of State].

(5)In any case where—

(a)a facility owner and another person (the “other party") have agreed the terms on which they propose to enter into an access contract to which this section applies, but

(b)the circumstances are such that, by virtue of subsection (1)(b) above, those terms must be approved, and directions must be given, by the Regulator before the facility owner may enter into the proposed access contract,

it shall be for the facility owner to submit the proposed access contract to [F250the Office of Rail and Road] for approval of its terms.

(6)If, on the submission of a proposed access contract pursuant to subsection (5) above, [F250the Office of Rail and Road] approves its terms, [F256it] shall issue directions to the facility owner—

(a)requiring him to enter into the proposed access contract within such period as may be specified for the purpose in the directions; but

(b)releasing him from his duty to do so if the other party fails to enter into the proposed access contract within such period as may be specified for the purpose in the directions;

and [F250the Office of Rail and Road] shall send a copy of the directions to the other party.

[F257(6A)The grounds on which [F250the Office of Rail and Road] may reject, or approve subject to modifications, a proposed access contract submitted to [F256it] pursuant to subsection (5) above include that [F256it] considers that the use of the facility for which it provides might impede the provision of services—

(a)under a franchise agreement; or

(b)under an agreement entered into by [F255the Secretary of State] pursuant to [F258his] duty under section 30 below.]

(7)If, on the submission of a proposed access contract pursuant to subsection (5) above, [F250the Office of Rail and Road] does not consider it appropriate to approve its terms without modification (or to reject it), [F256it] may, after consultation with the facility owner and the other party, issue directions to the facility owner—

(a)approving the terms of the proposed access contract, but subject to such modifications as may be specified in the directions; and

(b)requiring the facility owner to enter into the proposed access contract on those terms, as so modified; but

(c)releasing him from his duty to do so if either—

(i)the facility owner gives [F250the Office of Rail and Road] notice of objection before the expiration of the period of fourteen days beginning with the day after that on which the directions are issued; or

(ii)the other party fails to enter into the proposed access contract, on the terms as modified under this subsection, before the date specified for the purpose in the directions;

and [F250the Office of Rail and Road] shall send a copy of the directions to the other party.

[F259(7A)Where [F250the Office of Rail and Road] gives or revokes a general approval under subsection (1)(c) above, [F256it] shall publish the approval or revocation in such manner as he considers appropriate.

(7B)The revocation of a general approval given under subsection (1)(c) above shall not affect the continuing validity of any access contract to which it applied.]

(8)In this section, “associate”, “the beneficiary”,F260. . . and “lease” have the same meaning as they have in section 17 above.

(9)The following provisions of section 17 above, that is to say—

(a)subsection (4),

[F261(aa)subsection (7A),]

(b)subsection (8)(a) and (b), and

(c)subsection (9),

apply for the purposes of this section as they apply for the purposes of that section; and the words following paragraph (b) of subsection (8) of that section apply in relation to subsection (2)(c) of this section as they apply in relation to subsection (2)(c) of that section.

(10)This section shall not prevent a facility owner from granting a lease of any land which consists of or includes the whole or any part of his railway facility.

F262(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .