Exemption from requirement for licence when acting as "operator of last resort"

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Directions and Guidance

to the Strategic Rail Authority relating to the provision by the Authority of services for the carriage of passengers or goods by railway under section 30 of the Railways Act 1993 and section 213 of the Transport Act 2000

Statutory background to directions and guidance

Section 207(5) of the Transport Act 2000 ("the Act") enables the Secretary of State to give to the Strategic Rail Authority ("the Authority") directions and guidance in relation to the manner in which it is to exercise its functions in order to comply with section 207(1) to (3) of the Act. He may also give the Authority directions not to exercise any of its functions in a particular manner (or not to do so without consulting or obtaining his consent).

This document sets out the Secretary of State's directions and guidance relating to the provision by the Authority of services for the carriage of passengers or goods by railway under section 30 of the Railways Act 1993 ("the Railways Act") and section 213 of the Act.

Section 209 of the Act requires the Secretary of State to publish these directions and this guidance in such manner as he considers appropriate and he will make this document publicly available on DETR's corporate web site.

Application

Section 30 of the Railways Act places a duty on the Authority to provide, or secure the provision of, services for the carriage of passengers by rail where:

(a) a direction not to seek to secure the provision of the services under a franchise agreement has been given to the Authority; or

(b) a franchise agreement in respect of the services is terminated or otherwise comes to an end but no further franchise agreement has been entered into in respect of the services.

Section 213(1) of the Act gives the Authority limited additional powers to provide services for the carriage of passengers or goods by railway if the Secretary if State consents to the provision of the services by the Authority and either:

(a) the services are the same as, or broadly correspond to, services which were provided by a person other than the Authority before the Authority begins to provide them, or

(b) a scheme under Schedule 19 to the Act provides for the transfer to the Authority of a liability to provide them.

Section 213(2) of the Act also provides that the Authority may provide or operate network services, station services or light maintenance services for the purposes of or in connection with any passenger or goods services which it provides.

The Authority must comply with the directions and have regard to any guidance in this document should it provide services for the carriage of passengers or goods by railway either directly or through any of its wholly owned subsidiaries.

By the Strategic Rail Authority (Licence Exemption) Order 2001, the Secretary of State granted the Authority and any of its wholly owned subsidiaries an exemption from the requirement in section 6 of the Railways Act to be authorised by licence to be the operator of any railway asset. These directions and this guidance seek to replicate, as far as is possible and appropriate, the requirements, duties and obligations placed upon operators granted a licence. These directions and this guidance will normally be revised in the light of relevant changes to such requirements, duties or obligations.

Directions and guidance

In the following paragraphs -

  • directions to the Authority are in normal typeface and guidance to the Authority is in italics,
  • references to "the preceding operator" are to the person who provided the relevant services immediately before they began to be provided by the Authority or a wholly owned subsidiary of the Authority. References to the preceding operator's requirement, arrangements, procedures and policies are to any requirements, arrangements, procedures and policies made in pursuance of a condition of the preceding operator's licence,
  • references to licences are to licences granted under section 8 of the Railways Act.

Contingency planning

The Authority must maintain a contingency plan for the exercise of its functions under section 30 of the Railways Act and section 213 of the Act. In doing so, the Authority must seek the advice of the Health and Safety Executive and the Office of the Rail Regulator. The Authority must also ensure that the staff responsible for the exercise of these duties have appropriate operational experience. The Authority should normally exercise these functions through its wholly owned subsidiaries, and its contingency plan should reflect this.

Safety case

The Railway Safety Case Regulations 2000 apply to the exercise of the Authority's duties under section 30 of the Railways Act and section 213 of the Act.

The Authority must ensure that it has the necessary operational management competence to fulfil the requirements of the safety case, and must not operate services unless, or until, it has done so. The Authority will normally operate the safety case of the preceding operator.

In accordance with The Railway Safety Case Regulations 2000, any material revision of the Authority's safety case must be formally accepted by the Health and Safety Executive (HSE) before it is implemented. Such a material revision may be required if at the time the Authority assumes duties under section 30 of the Railways Act and/or section 213 of the Act, the preceding operator's safety case is out of date. Even where no material changes are contemplated to the existing organisational and other arrangements described in the safety case, an amendment to the safety case will be needed to reflect the change of operator, and this must be cleared with HSE in advance.

Railway group standards

The Authority must ensure that it has the necessary operational management competence to enable it to comply with all Railway Group Standards applicable to the services that it is providing and must not operate services until, or unless, it has done so.

"Railway Group Standards" means:

(a)technical standards with which railway assets or equipment used on or as part of railway assets must conform; and

(b)operating procedures with which the operators of railway assets must comply,

in each case authorised pursuant to the Railway Group Standards Code prepared pursuant to the network licence held by Railtrack PLC.

Insurance

The Authority must maintain the appropriate insurance, including self-insurance, against third party liabilities to a level and on terms broadly consistent with those agreed by the Authority in respect of licensed railway operators; taking into account all the circumstances, including the nature and scale of the service being provided.

Claims allocation and handling

The Authority must seek to become a party to standard industry agreements and arrangements relating to the allocation of third party liabilities among operators, the handling of claims and inter-operator liabilities that are relevant to the services it provides.

British Transport Police

The Authority must use the British Transport Police (BTP) for the services defined as core police services in the Police Services Agreement between the BTP and the preceding operator. In doing so it must seek, as far as is possible, to abide by the terms of that Agreement. In particular, the Authority must make payment of, or account for payment of, sums equivalent to the police charges payable under that Agreement.

Environmental matters

The Authority must adopt and maintain the preceding operator's policies for protecting the environment from the effects of the relevant services ("the Environmental Policy"), The Authority must act with regard to the Environmental Policy and use its reasonable endeavours to operate the arrangements described in that policy effectively.

Through tickets and network benefits

The Authority must seek to be a party to and comply with standard railway industry arrangements relating to:

(a)stations at which, and the journeys in respect of which, through tickets, and tickets from any stations specified in or under such arrangement to any other such station, shall be sold and honoured;

(b)the operation of a telephone enquiry bureau relating to railway passenger services;

(c)the settlement of amounts due to or from the Authority in respect of tickets; and

(d)conditions of carriage in respect of through tickets.

Inspecting Officers

The Authority must allow HM Inspecting Officers of Railways, while exercising their powers under the Health and Safety at Work etc. Act 1974 and on production of a valid warrant, to travel without charge on any train which it operates.

Timetabling

The Authority must provide details of all planned timetable changes and alterations, under the terms of the Track Access Agreement to Railtrack, to enable it to produce a national timetable. It must also provide timetable information providers on request with appropriate information to enable passengers and prospective passengers to plan their journey including, so far as reasonably practicable, the fare or fares and any restrictions applicable to each service affected.

Provision of services for people with disabilities

The Authority must adopt and maintain the preceding operator's policies for protecting the interests of people who are disabled in their use of trains operated by the Authority ("the Disabled People's Protection Policy"). But the Authority need not undertake any action that entails excessive cost, taking into account all the circumstances, including the nature and scale of the services provided.

In making any alteration to this policy the Authority must have regard to the code of practice which it has published pursuant to section 70 or section 71B of the Railways Act, and it must not make any material alteration to the Disabled People's Protection Policy until the Rail Passengers' Council has been consulted.

The Authority must -

(a)send a copy of its Disabled People's Protection Policy and of any alteration to it to the Rail Passengers' Council;

(b)in a place of reasonable prominence at each station at which trains operated by the Authority are scheduled to call, display or procure the display of a notice giving the address from which a copy of the statement referred to in paragraph (a) above may be obtained; and

(c)give or send free of charge a copy of the statement referred to in paragraph (a) above to anyone who requests it.

Complaints handling procedure

The Authority must adopt and maintain the preceding operator's procedures for handling complaints relating to the services which it provides from its customers and potential customers (" the Customer Complaint Handling Procedure"). It must not make any material alteration to the Customer Complaint Handling Procedure without consulting the Rail Passengers' Council.

Rail passenger Committees

The Authority must:

(a)comply with the requirements that applied to the preceding operator for meeting the appropriate Regional Passenger Committee(s) including those requirements relating to the seniority of staff attending such meetings;

(b) respond to any reasonable requests for information from the appropriate Regional Passenger Committee(s) and agree the content and format of information to be provided on a regular basis; and

(c)consult with the appropriate Regional Passenger Committee(s) on major policy issues that may have an impact on its works and responsibilities.

Emergency access

The Authority must grant to any other operator of railway assets any reasonable use of stations and depots under its control where this is necessary to alleviate the effects of an emergency situation.

London Regional Transport/Transport for London

The Authority must co-operate with London Regional Transport (LRT) and/or Transport for London (TfL) to ensure the efficient operation of railway services, provision of railway facilities and co-ordination of anticipated investment projects, to the extent that these affect the provision of railway services by the Authority, LRT and/or TfL.

Information to the rail regulator

The Authority must provide a list of stations of which it is the operator to the Rail Regulator. It must also provide a revised list each year and notify the Rail Regulator within one month of any change to the status of any station which it operates or is to begin operating.

The Authority must provide a list of depots of which it is the operator to the Rail Regulator, provide a revised list each year and notify the Rail Regulator within one month of any change to the status of any depot which it operates or is to begin operating.

The Authority must provide such other information, in relation to the provision by the Authority of services under section 30 of the Railways Act and section 213 of the Transport Act, as the Rail Regulator reasonably requires.

Control of subsidiaries

Where a service is provided by a wholly owned subsidiary of the Authority, the Authority must exercise its control over the subsidiary so as to ensure that it complies with these directions and has regard to this guidance, as if the services were being provided by the Authority directly.

Signed by authority of the Secretary of State for the Environment, Transport and the Regions

The Rt Hon the Lord Macdonald of Tradeston CBE
Minister for Transport
Department of the Environment, Transport and the Regions
26 February 2001