Annex 2: Memorandum of Understanding

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Memorandum of Understanding between the Department for Transport (DfT) and the Office of Rail Regulation (ORR) concerning the appointment of members nominated by the ORR to the UK delegation to the Intergovernmental Commission (IGC) and other related matters

The DfT and the ORR have agreed the following:

1. Appointment of the ORR members to the UK delegation to the IGC

1.1 Having consulted the ORR and taken into account its recommendation, the Secretary of State for Transport ("SoS") will appoint two members of the IGC (the "ORR members") to carry out on behalf of the UK delegation to the IGC (the "UK delegation")  the functions of the IGC under Directive 2001/14 and SI 2005/3207 (the "regulatory functions").  One of the ORR members shall be the Head of the UK delegation ("HoD").

2. Functions of the ORR members

2.1 The ORR members shall carry out the regulatory functions on behalf of the UK delegation.

2.2 Unless the ORR members consider it necessary or expedient for the performance of the regulatory functions, they shall not directly or indirectly consult with the SoS, other members of Her Majesty's Government or the Policy members (as defined in paragraph 4.1 below). The provisions of Article 10(1) of the Treaty of Canterbury do not provide grounds for such consultation by the ORR members.  Neither the SoS, other members of Her Majesty’s Government nor the Policy members shall seek to direct any decision of the ORR members connected with the performance of the regulatory functions, nor any advice they may be asked to give in connection with a consultation procedure under Article 18 of the Treaty in relation to such decisions.

2.3 The ORR members shall seek advice and assistance from the ORR in order to facilitate the performance of the regulatory functions and[, subject to the amendment of SI 2005/3207 to appoint the ORR to advise and assist the IGC,] the ORR shall provide such advice and assistance as the ORR members may require [in accordance with that amendment].

3. Appointment of the CTSA Member

3.1 Having consulted the ORR and taken into account its recommendation, the SoS shall appoint to the UK delegation a member of the Channel Tunnel Safety Authority (the "CTSA Member").

4. Appointment of the Policy members to the UK delegation

4.1 The appointment of the remaining members of the UK delegation ("Policy members") shall be a matter for Her Majesty's Government and shall be made without consulting the ORR.

5. Functions of the Policy members

5.1 Policy members shall only be concerned with the performance of the functions of the IGC under the Treaty of Canterbury where they are carried out independently of the regulatory functions. Each Policy member shall provide information or advice to the HoD in relation to matters before the IGC falling within his/her expertise. 

6. Additional functions of the HoD

6.1 All decisions of the IGC shall be taken by agreement between the Heads of the UK and French delegations in accordance with Article 10(5) of the Treaty of Canterbury.

6.2 The HoD shall take decisions required in performance of the regulatory functions on behalf of the UK delegation without seeking the approval directly or indirectly of the SoS or other members of Her Majesty's Government.

6.3 The HoD shall refer all other matters and decisions (the “non-regulatory decisions”) to be taken by the IGC to the CTSA Member or the relevant Policy member(s) for consideration and advice.

6.4 S/he shall take into account the advice from the CTSA Member or the relevant Policy member(s) of the UK delegation and, if s/he proposes to take a non-regulatory decision which is contrary to this advice, s/he shall consult further with the CTSA Member or the relevant Policy Member(s) and take into account any additional views such Member(s) may express before taking the non-regulatory decision in question.

6.5 Where there is disagreement between the Heads of the UK and French delegations, the procedure for consultation between the Governments provided for in Article 18 of the Treaty of Canterbury shall apply.

7. Terms of appointment of the ORR members

7.1 It is agreed that different terms of appointment may be required where an ORR member is not an employee or member of ORR. The ORR members:

  • A) shall be appointed for a fixed term of no more than 5 years (but may be reappointed);
  • B) may resign by notice to the Secretary of State; and
  • C) shall hold and vacate office in accordance with the terms of their appointment.

7.2 The Secretary of State may, having consulted the ORR, terminate the appointment of an ORR member by notice in writing on the grounds that the ORR member -

  • A) has been absent from meetings of the IGC or the UK delegation without good cause during a period of more than six months, or in the case of the HoD has been absent from two consecutive meetings without good cause;
  • B) has a financial or other personal interest which is likely to influence the performance of his/her functions as an ORR member;
  • C) is the subject of a bankruptcy restrictions order (or interim order);
  • D) has had his/her estate sequestrated in Scotland or, under Scots law, has made a composition or arrangement with, or granted a trust deed for, his/her creditors,
  • E) has misbehaved;
  • F) is unable, unfit or unwilling to perform his/her functions as a member; or
  • G) in the case of an ORR member that is an employee or member of ORR, upon that person ceasing to undertake work as an employee or member of ORR.

7.3 The ORR shall with the approval of the Secretary of State make payments to the ORR members by way of:

  • A) remuneration in the case of ORR members that are not employees of ORR;
  • B) allowances;
  • C) expenses.

7.4 Such sums shall be met out of the payments made by the Concessionaires under clause 27.8 of the Concession Agreement of 14 March 1986, as amended ("the Concession Agreement").  In the event that the Concessionaires fail to meet their obligations under this provision, the SoS shall indemnify the ORR in respect of payments due to the ORR members under paragraph 7.3 above.

8. Secretariat to the UK delegation

8.1 The ORR shall provide a Secretary and a secretariat to the UK delegation, staffed by employees of or secondees to the ORR.

8.2 The secretariat shall provide general administrative and technical support to the UK delegation, including and in co-operation with the secretariat to the French delegation where appropriate:

  • A) managing the funding of the UK delegation's activities, as provided in paragraphs 10.1-10.3 below;
  • B) preparing agendas, documentation and papers for meetings of the IGC;
  • C) recording the proceedings of the IGC;
  • D) notifying decisions of the IGC;
  • E) receiving and dealing with correspondence addressed to the IGC; and
  • F) arranging expert assistance and consultancy support.

9. Organisational liability issues

9.1 Where liability attaches to the IGC or the ORR as a result of the performance of the regulatory functions or non-regulatory functions under the Treaty of Canterbury, responsibility for ensuring payment of any compensation due from Her Majesty's Government shall fall, in the first instance, to the DfT.

10. Funding

10.1 The secretariat will be responsible for managing the funding of the UK delegation's activities. Any balance remaining once the costs of the UK delegation have been deducted from the payments it has received, shall be payable to the Consolidated Fund; for these purposes, the 'costs of the UK delegation' can be taken to include, inter alia, the costs of the ORR (incurred in connection with its obligations under the Memorandum) and the costs of the CTSA and the Kent Fire & Rescue Service (incurred in connection with their Channel Tunnel activities).

10.2 In the event that the Concessionaires do not make payment(s) in full as they fall due, the ORR will inform DfT and - acting in the best financial interests of the IGC - make all reasonable endeavours to obtain payment from the Concessionaires without further delay.  In the event that any debt is outstanding for more than 3 months, the ORR shall refer the matter to the SoS for further action.

10.3 If for any reason the Concessionaires do not pay any amount payable by them under clause 27.8 of the Concession Agreement within 3 months of the date on which that sum was due, the SoS shall pay promptly (and in any event within 28 days) to the ORR any moneys owing to it as a result in respect of the costs incurred in performance of its functions and obligations under this Memorandum.  Any such sum paid by the SoS to the ORR pursuant to this obligation shall be recouped from moneys recovered from the Concessionaires following enforcement of their obligations under clause 27.8 of the Concession.

10.4 The SoS shall indemnify the ORR for any expenses incurred in connection with the regulatory functions and the other functions of the IGC (including payments to the ORR members under paragraph 7.3 above), where such expenses are not recoverable by the SoS from the Concessionaires under clause 27.8 of the Concession Agreement.

11. Revisions to the Memorandum

11.1 The provisions of this memorandum shall be reviewed in the event of a change of circumstances or at such other time as the parties consider appropriate and if, as result of the review, any of the provisions are no longer considered appropriate, they may be varied, superseded or revoked by agreement between the parties.

August 2007

Consultations