Railways Act 1993

Part I — The Provision of Railway Services

Introductory

Interpretation of Part II.

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Rail users' consultative committees

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The Central Rail Users' Consultative Committee

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General duties of the Secretary of State and the Regulator

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• (1) The Office of Rail and Road shall have a duty to exercise the functions assigned or transferred to it under or by virtue of this Part or the Railways Act 2005 that are not safety functions in the manner which it considers best calculated—

• (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 it considers economically practicable;

• (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 for 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 its functions under this Part or 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, the Office of Rail and Road shall have a duty, in particular, to exercise the functions assigned or transferred to it under or by virtue of this Part or the Railways Act 2005 that are not safety functions in the manner which it 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,

. . . ; 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) The Office of Rail and Road shall be under a duty in exercising the functions assigned or transferred to it under or by virtue of this Part 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, . . . ; and

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

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

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 . . . below and

• (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.

• (3B) Subsections (1) to (3) above shall have effect in relation to the Scottish Ministers as in relation to the 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 the Welsh Ministers as in relation to the Office of Rail and Road except that, in relation to the 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 the Welsh Ministers under or by virtue of the provisions of Part 4 of that Act of 2005 other than section 39.

• (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 or 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) The Office of Rail and Road shall also be under a duty in exercising the functions assigned or transferred to it under this Part or the Railways Act 2005 that are not safety functions—

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

• (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 it 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 the Office of Rail and Road has functions under or by virtue of this Part or 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); . . .

• (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 the 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 the Welsh Ministers to carry out the functions conferred or imposed on them by or under any enactment;

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

• (5A) Before giving any guidance for the purposes of subsection (5)(a) above the Secretary of State must consult the 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, the 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),

the 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 the 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, the 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 its duty under subsection (1)(a) above so far as relating to services for the carriage of passengers by railway or to station services, the 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.

• (7ZA) Where any general guidance is given to the 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.

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

• (7B) The 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 the CMA could have regard when exercising that function.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) In this section—

• “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);

• “notified strategies and policies”, in relation to the Welsh Ministers, means the strategies and policies of the Welsh Ministers that have been notified by them for the purposes of this section to the 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;

• “railway service performance” includes, in particular, performance in securing each of the following in relation to railway services—reliability (including punctuality);the avoidance or mitigation of passenger overcrowding; andthat journey times are as short as possible;

• “safety functions” means functions assigned or transferred to the Office of Rail and Road— under this Part,under or by virtue of the Railways Act 2005, orunder 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.

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General duties of the Franchising Director

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Licensing of operators of railway assets

Prohibition on unauthorised operators of railway assets

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• (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.

• (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.

• (1B) In this section—

• “Channel Tunnel service” means—a railway passenger service between Calais-Fréthun station in France and Ashford International station in the United Kingdom;a service for the carriage of goods by railway between Fréthun freight yard in France and Dollands Moor freight yard in the United Kingdom; ora 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—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; orChapter 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—

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

• “railway asset” means—any train being used on a network, whether for the purpose of carrying passengers or goods by railway or for any other purpose whatsoever;any network;any station; orany light maintenance depot.

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

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

• (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 the Office of Rail and Road.

Exemptions from section 6

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• (1) The Secretary of State may, after consultation with the Office of Rail and Road ... , 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 the 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, the Office of Rail and Road, after consultation with the Secretary of State ... —

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

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

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

• (a) stating that it proposes to grant the licence exemption,

• (b) stating the reasons why it 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 the 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.

• (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) the 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.

• (6A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) For the purposes of this 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—is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; oris 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 the Office of Rail and Road gives a direction under subsection (6) above to any person, he or 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.

• (8A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) Subject to subsection (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.

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (11) Any application for a licence exemption under subsection (3) above must be made in writing; and where any such application is made, the Office of Rail and Road may require the applicant to furnish him with such information as the Office of Rail and Road may consider necessary to enable it 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.

Licences

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

• (a) the Secretary of State after consultation with the Office of Rail and Road . . . , or

• (b) the Office of Rail and Road with the consent, or in accordance with a general authority, of the Secretary of State . . . ,

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 the Office of Rail and Road under subsection (1)(b) above

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) may include a requirement for the 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, the Office of Rail and Road may either grant or refuse the licence.

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

• (a) stating that he or it proposes to grant the licence,

• (b) stating the reasons why he or 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 the 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 unless the Office of Rail and Road consents 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 the Office of Rail and Road . . . ; or

• (b) in the case of a licence granted by the the Office of Rail and Road, to the Secretary of State . . . .

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

• (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.

• (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

Conditions of licences: general

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• (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) the 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 the Office of Rail and Road such documents or other information as he or it may require for the purpose of exercising the functions assigned or transferred to him or it under or by virtue of this Part or Part 4 of the Railways Act 2005.

• (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 the Office of Rail and Road in consequence of the provisions of any condition of a licence shall be paid into the Consolidated Fund.

Conditions of licences: activities carried on by virtue of a licence exemption

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• (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—

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• “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.

Assignment of licences

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• (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—

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

• (b) the Office of Rail and Road . . . , in any other case.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) Any consent under subsection (2) above may be given subject to compliance with such conditions as are imposed by the person . . . 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 licences

Modification by agreement

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

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Before making modifications under this section, the Office of Rail and Road shall give notice—

• (a) stating that it proposes to make the modifications and setting out their effect,

• (b) stating the reasons why it 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, before making the modifications, consider any representations or objections which are duly made and not withdrawn.

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

• (a) by publishing the notice in such manner as . . . the 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Modification references to the Monopolies Commission

13

• (1) The Office of Rail and Road may make to the Monopolies and Mergers Commission (in this Act referred to as the CMA) a reference which is so framed as to require the 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.

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) The Office of Rail and Road may, at any time, by notice given to the CMA 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 the CMA shall give effect to the variation.

• (3) The 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 CMA in carrying out the investigation on the reference—

• (a) any effects adverse to the public interest which, in its 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 its 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, the 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 it considers appropriate for the purpose of bringing the reference or variation to the attention of persons likely to be affected by it.

• (5) The 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 CMA not to proceed with the reference or, as the case may require, not to give effect to the variation, the CMA shall comply with the direction.

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

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

• (i) is requested by the CMA for that purpose; or

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

• (b) any other assistance which the CMA may require, and which it is within the power of the Office of Rail and Road to give, in relation to any such matters;

and the 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 CMA shall have regard to the matters as respects which duties are imposed on . . . the Office of Rail and Road by section 4 above.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

• (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).

Reports on modification references

14

• (1) In making a report on a reference under section 13 above, the CMA—

• (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.

• (1A) For the purposes of sections 15 to 15B below, a conclusion contained in a report of the CMA is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted by 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 CMA, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

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

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

• (3A) In making any report on a reference under section 13 above the CMA 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 CMA 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 CMA 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 CMA 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 the CMA on a reference under section 13 above shall be made to the Office of Rail and Road.

• (5) Subject to subsection (6) below, the 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 it considers appropriate for bringing the report to the attention of persons likely to be affected by it.

• (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 the 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.

Modification following report

15

• (1) This section applies where a report of the CMA 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,

. . .

• (1A) Where the report is made to the Office of Rail and Road it 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 it requisite for the purpose of remedying or preventing the adverse effects specified in the report.

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (3) Before making modifications under subsection (1A) above, the Office of Rail and Road shall give notice—

• (a) stating that it proposes to make the modifications and setting out their effect,

• (b) stating the reasons why it 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (a) by publishing the notice in such manner as the Office of Rail and Road , . . . 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.

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

• (a) setting out the modifications it proposes to make or . . . require to be made; and

• (b) stating the reasons why it proposes to make the modifications or . . . require the making of them.

• (4B) The Office of Rail and Road . . . 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 CMA under section 15A below expires without such a direction being given, the Office of Rail and Road . . . 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 CMA under section 15A(1)(b) below, the Office of Rail and Road . . . shall make, or require the making of, such of those modifications as are not specified in the direction.

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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.

Modification by order under other enactments

16

• (1) Where the CMA 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 or 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 relevant authority shall send a copy of those modifications to the Office of Rail and Road, the 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.

• (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.

Access agreements

Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities

17

• (1) The 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 . . . ; . . . or

• (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; . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 the 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 the 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 Authority.

• (4) Any reference in this section to a person operating a network, station or light maintenance depot "on behalf of the Secretary of State, 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 Secretary of State or the Scottish Ministers for the purpose of performing a duty imposed upon him or them, or exercising a power conferred upon him or them, under or by virtue of this Part or 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 the 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 contract under which—a person (whether or not the applicant), andso 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—who has an estate or interest in, or right over, a railway facility; andwhose permission to use that railway facility is needed by another before that other may use it;

• but 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—any servant, agent or independent contractor of his;any passenger of his;any person engaged in the provision of goods or services to or for him; andany 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;

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (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.

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Access agreements: contracts requiring the approval of the Regulator

18

• (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; . . .

• (b) the 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; or

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

and any access contract to which this section applies shall 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; . . .

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (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 the 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 the 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 the 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 the 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, the Office of Rail and Road approves its terms, it 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 the Office of Rail and Road shall send a copy of the directions to the other party.

• (6A) The grounds on which the Office of Rail and Road may reject, or approve subject to modifications, a proposed access contract submitted to it pursuant to subsection (5) above include that it 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 the Secretary of State pursuant to his duty under section 30 below.

• (7) If, on the submission of a proposed access contract pursuant to subsection (5) above, the Office of Rail and Road does not consider it appropriate to approve its terms without modification (or to reject it), it 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 the 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 the Office of Rail and Road shall send a copy of the directions to the other party.

• (7A) Where the Office of Rail and Road gives or revokes a general approval under subsection (1)(c) above, it 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”,. . . 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),

• (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.

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Access agreements: contracts for the use, on behalf of the Franchising Director, of installations comprised in a network

19

• (1) The Office of Rail and Road may, on the application of any person, give directions to an installation owner requiring him to enter into an installation access contract with the applicant for the purpose of enabling the beneficiary to obtain (whether for himself alone or for himself and, so far as may be applicable, associates of his) permission to use the installation owner’s network installation for the purpose of operating, on behalf of the Secretary of State, the network in which the network installation is comprised.

• (2) Directions shall not be given under subsection (1) above in the case of any network installation if and to the extent that, as a result of an obligation or duty owed by the installation owner which arose before the coming into force of this section, the consent of some other person is required by the installation owner before he may enter into the installation access contract.

• (3) An installation owner shall not enter into an installation access contract to which this subsection applies unless—

• (a) he does so pursuant to directions under subsection (1) above; . . .

• (b) the Office of Rail and Road has approved the terms of the installation access contract and the installation owner enters into the contract pursuant to directions given by virtue of subsection (5) below; or

• (c) the installation access contract is of a class or description specified in a general approval given by the Regulator;

and any installation access contract to which this subsection applies shall be void unless one of the conditions in paragraphs (a) to (c) above is satisfied.

• (4) The installation access contracts to which subsection (3) above applies are those under which the beneficiary obtains (whether for himself alone or for himself and associates of his) from an installation owner permission to use the installation owner’s network installation for the purpose of operating, on behalf of the Secretary of State , the network in which the network installation is comprised.

• (5) Subsections (5) to (7) of section 18 above shall apply in relation to installation access contracts to which subsection (3) of this section applies as they apply in relation to access contracts to which that section applies, but with the following modifications, that is to say—

• (a) for any reference to a facility owner there shall be substituted a reference to an installation owner;

• (b) for any reference to an access contract to which that section applies there shall be substituted a reference to an installation access contract to which subsection (3) above applies;

• (c) for the reference to subsection (1)(b) of that section there shall be substituted a reference to subsection (3)(b) of this section.

• (5A) Where the Office of Rail and Road gives or revokes a general approval under subsection (3)(c) above, it shall publish the approval or revocation in such manner as it considers appropriate.

• (5B) The revocation of a general approval given under subsection (3)(c) above shall not affect the continuing validity of any installation access contract to which it applied.

• (6) Nothing in this section—

• (a) authorises the Office of Rail and Road to give directions to an installation owner requiring him to grant a lease of the whole or any part of his network installation; or

• (b) prevents an installation owner from granting a lease of any land which consists of or includes the whole or any part of his network installation.

• (7) Any reference in this section to a person operating a network “on behalf of the Secretary of State” is a reference to his operating the network in pursuance of any agreement or other arrangements made by the Secretary of State, the Welsh Ministers for the purpose of performing a duty imposed upon him, or exercising a power conferred upon him, under or by virtue of this Part or Part 4 of the Railways Act 2005 (network modifications etc.) to secure the operation of that network.

• (8) Any reference in this section to obtaining permission to use a network installation includes—

• (a) a reference to obtaining, in connection with any such permission, power to obtain the provision of ancillary services relating to that network installation, whether the installation 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 installation 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;

and in paragraph (b) above “installation land” means the land which constitutes the network installation in question.

• (9) In this Part—

• “installation access contract” means a contract under which—a person (whether or not the applicant), andso far as may be appropriate, any associate of that person,obtains permission from an installation owner to use the installation owner’s network installation;

• “installation owner” means any person—who has an estate or interest in, or right over, a network installation; andwhose permission to use that network installation is needed by another before that other may use it;

• but also includes a person before he becomes an installation owner;

• and any reference to an installation owner’s network installation is a reference to the network installation by reference to which he is an installation owner.

• (10) In this section—

• “ancillary service” means any service which is necessary or expedient for giving full effect to any permission or right which a person may have to use a network installation;

• “the applicant” means the person making the application for directions under subsection (1) above;

• “associate” has the meaning given by section 17(7) above;

• “the beneficiary” means the person mentioned in paragraph (a) of the definition of “installation access contract” in subsection (9) above;

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

• “network installation” means any installation (other than track) which is comprised in a network.

• (11) Any reference in this section to a network installation includes a reference to a part of a network installation and to one which is proposed to be constructed or is in the course of construction..

• (12) Schedule 4 to this Act shall have effect with respect to applications for directions under subsection (1) above as it has effect with respect to applications for directions under section 17 above, but with the following modifications, that is to say—

• (a) for any reference to an access contract, there shall be substituted a reference to an installation access contract;

• (b) any reference to an application for directions under section 17 above shall be taken as a reference to an application for directions under subsection (1) above;

• (c) for any reference to the facility owner, there shall be substituted a reference to the installation owner mentioned in subsection (1) above;

• (d) for any reference to section 17 above (but not to any specific provision of that section) there shall be substituted a reference to this section.

• (13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Exemption of railway facilities from sections 17 and 18

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• (1) The Secretary of State may, after consultation with the Office of Rail and Road, by order grant exemption from sections 17 and 18 above and section 22A below 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) A facility exemption under subsection (1) above may be granted—

• (a) to persons of a particular class or description or to a particular person; and

• (b) in respect of railway facilities of a particular class or description or a particular railway facility, or in respect of part only of any such railway facilities or facility;

. . .

• (3) If a facility owner makes an application under this subsection to the Office of Rail and Road for the grant of an exemption from sections 17 and 18 above and section 22A below in respect of the whole or any part of his railway facility, the Office of Rail and Road, after consultation with the Secretary of State—

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

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

• (4) Before granting a facility exemption under subsection (3) above, the Office of Rail and Road shall give notice—

• (a) stating that it proposes to grant the facility exemption,

• (b) stating the reasons why it proposes to grant the facility 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 facility 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 the Office of Rail and Road considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the facility exemption.

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

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

• (b) the Office of Rail and Road, in the case of a facility exemption under subsection (3) above,

may give to any relevant person a direction declaring that the facility 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.

• (7) For the purposes of subsection (6) above—

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

• “relevant person”, in the case of any facility exemption, means a person who has the benefit of the facility exemption and who—is a person who failed to comply with the broken condition or with respect to whom the broken condition is not complied with; oris the facility owner in the case of the railway facility in relation to which the broken condition is not complied with.

• (8) Subject to subsection (6) above, a facility exemption, unless previously revoked in accordance with any term contained in the facility exemption, shall continue in force for such period as may be specified in, or determined by or under, the facility exemption.

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

• (11) Facility exemptions may make different provision, or be granted subject to compliance with different conditions, for different cases.

• (12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (13) In this Part “facility exemption” means an exemption from sections 17 and 18 above and section 22A below granted under any provision of this section in respect of the whole or any part of a railway facility; and a railway facility is an “exempt facility” if and to the extent that it is the subject of such an exemption.

Model clauses for access contracts

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• (1) The Office of Rail and Road may prepare and publish model clauses for inclusion in access contracts.

• (2) Different model clauses may be prepared and published in relation to different classes or descriptions of railway facility.

• (3) The Office of Rail and Road may from time to time revise any model clauses published under this section and may publish those clauses as so revised.

• (4) In preparing or revising any model clauses under this section, the Office of Rail and Road may consult such persons as it thinks fit.

• (5) The Office of Rail and Road shall encourage, and may require, the use of any of its model clauses . . . in access contracts wherever it considers it appropriate.

Amendment of access agreements

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• (1) Any amendment, or purported amendment, of an access agreement shall be void unless the amendment has been approved by the Office of Rail and Road or is made pursuant to directions under section 22A or 22C below or Schedule 4A to this Act.

• (2) The Office of Rail and Road may, for the purposes of subsection (1) above, give the parties to any particular access agreement its general approval to the making to that access agreement of amendments of a description specified in the approval; and any approval so given shall not be revoked.

• (3) The Office of Rail and Road may, for the purposes of subsection (1) above, give its general approval to the making to access agreements, or to access agreements of a particular class or description, of amendments of a description specified in the approval.

• (4) Where the Office of Rail and Road gives or revokes a general approval under subsection (3) above, it shall publish the approval or revocation (as the case may be) in such manner as it considers appropriate.

• (5) The revocation of a general approval given under subsection (3) above shall not affect the continuing validity of any amendment made in accordance with, and before the revocation of, that approval.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6A) Neither the CMA nor the Office of Rail and Road may exercise, in respect of an access agreement, the powers given by section 32 (enforcement directions) or section 35(2) (interim directions) of the Competition Act 1998.

• (6B) Subsection (6A) does not apply to the exercise of the powers given by section 35(2) in respect of conduct—

• (a) which is connected with an access agreement; and

• (b) in respect of which section 35(1)(b) of that Act applies.

Provision of passenger services

Passenger services to be subject to franchise agreements

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• (1) It shall be the duty of the appropriate designating authority from time to time to designate such services for the carriage of passengers by railway (other than services which are, by virtue of section 24 below, exempt from designation under this subsection) as it considers ought to be provided under sections 30 to 30C .

• (2) The appropriate designating authority may perform its duty under subsection (1) above by designating particular services or services of a class or description.

• (2ZA) Where the Scottish Ministers designate Scotland-only services, they may also designate cross-border services which—

• (a) they consider should be provided together with particular Scotland-only services or a particular class of them; and

• (b) are not exempt from designation under subsection (1) by virtue of section 24.

• (2ZB) Nothing in this section requires the Secretary of State to designate a cross-border service already designated by the Scottish Ministers.

• (2ZC) Before the Secretary of State or the Scottish Ministers designate a cross-border service he or they must consult the other.

• (2ZD) Where the Welsh Ministers designate Wales-only services, they may also designate Welsh components of Welsh services which—

• (a) they consider should be provided together with particular Wales-only services or a particular class of Wales-only services; and

• (b) are not exempt from designation under subsection (1) by virtue of section 24.

• (2ZE) Nothing in this section requires the Secretary of State to designate a Welsh service so far as already designated by the Welsh Ministers.

• (2A) A designation may be varied or revoked; but a variation or revocation of the designation of particular services, or services of a class or description, shall not affect any franchise agreement previously entered into with respect to those services or services of that class or description.

• (2B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) In this Part—

• “the appropriate designating authority”—in relation to Scotland-only services, means the Scottish Ministers; ... in relation to Wales-only services, means the Welsh Ministers; and in relation to all other services, means the Secretary of State;

• “the appropriate franchising authority”—in relation to a Scottish franchise agreement, means the Scottish Ministers; ...in relation to a Welsh franchise agreement to the extent that the franchised services under it are Wales-only services or Welsh components of Welsh services, means the Welsh Ministers; in relation to a Welsh franchise agreement to the extent that the franchised services under it are services other than Wales-only services or Welsh components of Welsh services, means the Secretary of State;in relation to any other franchise agreement, means the Secretary of State;

• “franchise agreement” means an agreement to which the Secretary of State, the Scottish Ministers or the Welsh Ministers is or are party, under which another party which is not a public sector company (as defined in section 30C) undertakes either—to provide, orto secure that a wholly owned subsidiary of his provides,throughout the franchise term those services for the carriage of passengers by railway to which the agreement relates;

• “franchise operator”, in relation to any franchise agreement, means the person (whether the franchisee or, as the case may be, the wholly owned subsidiary of the franchisee) who is to provide the franchised services;

• “franchise period”, in relation to any franchise agreement, means the franchise term, except where the franchise agreement is terminated before the end of that term, in which case it means so much of that term as ends with that termination;

• “franchise term”, in relation to any franchise agreement, means the period specified in the franchise agreement as the period throughout which the franchisee is to provide, or secure that a wholly owned subsidiary of his provides, the franchised services, and includes any such extension of that period as is mentioned in section 29(3) or 30A(2)(b) below;

• “franchised services”, in relation to any franchise agreement, means the services for the carriage of passengers by railway which are to be provided under that franchise agreement;

• “franchisee” means—in relation to a franchise agreement under which a party undertakes to secure that a wholly owned subsidiary of his provides the franchised services, the party so undertaking; orin relation to any other franchise agreement, the person who is to provide the franchised services.

• (4) Any reference in this Part to the provision of services under a franchise agreement is a reference to the provision of those services by the franchise operator; and where the franchise operator is, or is to be, a wholly owned subsidiary of the franchisee, any reference to the provision of services by the franchisee under a franchise agreement shall accordingly be construed as a reference to his securing their provision by the franchise operator.

Exemption of passenger services from section 23(1)

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• (1) The appropriate designating authority may by order grant exemption from designation under section 23(1) above in respect of such services for the carriage of passengers by railway 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—

• (a) to persons of a particular class or description or to a particular person; and

• (b) in respect of services generally, services of a particular class or description or a particular service, or in respect of part only of any such services or service;

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

• (3) If a person who provides, or who proposes to introduce, services for the carriage of passengers by railway makes an application to the appropriate designating authority under this subsection for the grant of an exemption from designation under section 23(1) above in respect of any such service which he provides or proposes to introduce, the appropriate designating authority , after consultation with the Office of Rail and Road . . . —

• (a) may either grant or refuse the exemption, whether wholly or to such extent as the appropriate designating authority may specify in the exemption; and

• (b) if and to the extent that the appropriate designating authority grants it, may do so subject to compliance with such conditions (if any) as the appropriate designating authority may so specify.

• (3A) Before granting an exemption in respect of a cross-border service, the Secretary of State must consult the Scottish Ministers.

• (3B) Before granting an exemption in respect of a Welsh service, the Secretary of State must consult the Welsh Ministers.

• (4) Before granting an exemption under subsection (3) above, the appropriate designating authority shall give notice—

• (a) stating that it proposes to grant the ... exemption,

• (b) stating the reasons why it proposes to grant the ... 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 ... exemption may be made,

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