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The Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019

Draft. This instrument was laid in draft and may differ from the one made. Look for the made version under its title.

Draft 2019, ISBN 9780111182048

Original text. legislation.gov.uk does not revise statutory instruments, so later amendments are not shown here. Changes made to it are listed under each provision when known.

This draft Statutory Instrument supersedes the draft of the same title which was laid before Parliament on 28th January 2019 and published on 28th January 2019 (ISBN 978-0-11-117929-1). It is being issued free of charge to all known recipients of that draft Statutory Instrument.

Draft Regulations laid before Parliament under paragraphs 1(1), 12(1) and 15(1) of Schedule 7 to the European Union (Withdrawal) Act 2018, for approval by resolution of each House of Parliament.

Exiting The European Union

Transport

Made 2019

Coming into force in accordance with regulation 1(2)

The Secretary of State, in exercise of the powers conferred by sections 8(1) and 23(1) of, and paragraph 1 of Schedule 4 and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018f1 and with the consent of the Treasury, makes these Regulations.

In accordance with paragraphs 1(1), 12(1) and 15(1) of Schedule 7 to the European Union (Withdrawal) Act 2018, a draft of these Regulations has been laid before Parliament and approved by resolution of each House of Parliament.

Annotations to the whole text

Footnotes

f1

2018 c. 16. The Secretary of State is an “appropriate authority” for the purposes of paragraph 1 of Schedule 4 to the 2018 Act (see paragraph 2(1)).

Contents

  1. Part 1: Introductory
  2. 1Citation, commencement and extent
  3. 2Interpretation
  4. Part 2: Amendments to the Railway (Licensing of Railway Undertakings) Regulations 2005
  5. 3Amendments
  6. 4Regulation 2 (interpretation)
  7. 5Regulation 4 (scope)
  8. 6Part 2 (European licences)
  9. 7Regulation 5 (prohibition of unlicensed provision of services)
  10. 8Regulation 6 (appointment of licensing authority and grant of European licences)
  11. 9Regulation 7 (validity of European licences)
  12. 10Regulation 8 (monitoring, suspension and revocation of European licences)
  13. 11Regulation 9 (prohibition on operating trains without a statement of national regulatory provisions)
  14. 12Regulation 10 (statements of national regulatory provisions)
  15. 13Regulation 11 (conditions of statements of national regulatory provisions)
  16. 14Regulation 12 (referral for Commission’s opinion)
  17. 15Regulation 17 (general duties of the Rail Passengers’ Council)
  18. 16Regulation 19 (duties of the London Transport Users’ Committee)
  19. 17Regulation 21 (review)
  20. 18Schedule 2 (qualifications for European licence)
  21. 19Schedule 4 (transitional provisions relating to existing licences and licence exemptions)
  22. Part 3: Consequential amendments to primary legislation
  23. 20The Railway Fires Act 1905
  24. 21The Insolvency Act 1986
  25. 22The Railways Act 1993
  26. 23The Greater London Authority Act 1999
  27. 24The Civil Contingencies Act 2004
  28. 25The Railways Act 2005
  29. Part 4: Amendments etc. to other legislation
  30. 26The London Underground (East London Line Extension) (No. 2) Order 2001
  31. 27The Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002
  32. 28The Docklands Light Railway (Woolwich Arsenal Extension) Order 2004
  33. 29The British Transport Police (Police Services Agreement) Order 2004
  34. 30Central Rating List (England) Regulations 2005
  35. 31Commission Implementing Regulation (EU) 2015/171
  36. Part 5: Transitional provisions relating to existing licences and applications
  37. 32Existing European licences
  38. 33Applications for European licences made before exit day
  39. Part 6: Transitory provisions recognising licences granted by authorities in the EEA
  40. 34Modifications to the 2005 Regulations
  41. 35Modifications to the 2005 Regulations
  42. 36Modifications to the 2005 Regulations
  43. 37Modifications to the 2005 Regulations
  44. 38Modifications to the 2005 Regulations
  45. 39Modifications to the 2005 Regulations
  46. 40Modifications to the 2005 Regulations
  47. 41Modifications to other legislation
  48. Signature
  49. Explanatory note

1Citation, commencement and extent

(1)

These Regulations may be cited as the Railway (Licensing of Railway Undertakings) (Amendment etc.) (EU Exit) Regulations 2019.

(2)

These Regulations come into force on exit day.

(3)

These Regulations do not extend to Northern Ireland, subject to paragraph (4).

(4)

Regulation 31 extends to England and Wales, Scotland and Northern Ireland.

(5)

Subject to paragraphs (3) and (4), an amendment, repeal or revocation made by these Regulations has the same extent as the provision amended, repealed or revoked.

2Interpretation

In these Regulations—

  • “the 2005 Regulations” means the Railway (Licensing of Railway Undertakings) Regulations 2005f1;

  • “ORR” means the Office of Rail and Road, established under section 15 of the Railways and Transport Safety Act 2003f2.

3Amendments

The 2005 Regulations are amended in accordance with this Part.

4Regulation 2 (interpretation)

In regulation 2(1) (interpretation)—

(a)

omit the definitions of “the 1995 Directive”, “the 2012 Directive”, “EEA State” and “European licence”;

(b)

at the appropriate place, insert–

  • ““railway undertaking licence” means a licence, granted by the ORR to a railway undertaking pursuant to these Regulations, which authorises the undertaking to provide such train services as may be specified in the licence;”.

5Regulation 4 (scope)

(1)

Regulation 4 (scope) is amended as follows.

(2)

In paragraph (1)—

(a)

after “train services” insert “in Great Britain”;

(b)

omit “and are established or to be established in an EEA State”.

(3)

In paragraph (3)—

(a)

in sub-paragraph (a), omit “including a cross-border conurbation,”;

(b)

in sub-paragraph (b), omit “, including a cross-border region”.

6Part 2 (European licences)

In the heading of Part 2 (European licences), for “European” substitute “Railway Undertaking”.

7Regulation 5 (prohibition of unlicensed provision of services)

In regulation 5 (prohibition of unlicensed provision of services)—

(a)

in paragraph (1), for “European” substitute “railway undertaking”;

(b)

omit paragraph (4).

8Regulation 6 (appointment of licensing authority and grant of European licences)

(1)

Regulation 6 (appointment of licensing authority and grant of European licences) is amended as follows.

(2)

In the heading, for “European” substitute “railway undertaking”.

(3)

In paragraph (1)—

(a)

omit “designated as”;

(b)

for “European” substitute “railway undertaking”.

(4)

In paragraph (2)—

(a)

for “European” substitute “railway undertaking”;

(b)

omit “and inform the Commission of those procedures”.

(5)

In paragraph (3)—

(a)

in the words before sub-paragraph (a), for “European” substitute “railway undertaking”;

(b)

omit sub-paragraph (a) (including the “and” at the end of that sub-paragraph).

(6)

In paragraph (4), for “European” substitute “railway undertaking”.

(7)

Omit paragraph (4A).

(8)

In paragraphs (7) to (11), for “European”, in each place it occurs, substitute “railway undertaking”.

(9)

In paragraph (12)—

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

for “European Commission” substitute “Secretary of State”.

(10)

In paragraph (14), for “European” substitute “railway undertaking”.

9Regulation 7 (validity of European licences)

In regulation 7 (validity of European licences)—

(a)

in the heading, for “European” substitute “railway undertaking”;

(b)

in paragraphs (1) and (2), for “European”, in both places it occurs, substitute “railway undertaking”.

10Regulation 8 (monitoring, suspension and revocation of European licences)

(1)

Regulation 8 (monitoring, suspension and revocation of European licences) is amended as follows.

(2)

In the heading, for “European” substitute “railway undertaking”.

(3)

In paragraph (1)—

(a)

omit “Subject to paragraph (5),”;

(b)

for “European” substitute “railway undertaking”.

(4)

In paragraphs (3) and (4), for “European”, in both places it occurs, substitute “railway undertaking”.

(5)

Omit paragraph (5).

(6)

In paragraphs (6) to (11) and (13), for “European”, in each place it occurs, substitute “railway undertaking”.

(7)

In paragraph (14)—

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

for “European Railway Agency” substitute “Secretary of State”.

11Regulation 9 (prohibition on operating trains without a statement of national regulatory provisions)

In regulation 9 (prohibition on operating trains without a statement of national regulatory provisions)—

(a)

in paragraph (1), for “European” substitute “railway undertaking”;

(b)

omit paragraph (5).

12Regulation 10 (statements of national regulatory provisions)

In regulation 10 (statements of national regulatory provisions), in paragraphs (1) and (2)(b), for “European”, in both places it occurs, substitute “railway undertaking”.

13Regulation 11 (conditions of statements of national regulatory provisions)

In regulation 11 (conditions of statements of national regulatory provisions)—

(a)

in paragraph (1), for “European” substitute “railway undertaking”;

(b)

in paragraph (4) omit sub-paragraph (a) (including the “or” at the end of that sub-paragraph).

14Regulation 12 (referral for Commission’s opinion)

Omit regulation 12 (referral for Commission’s opinion).

15Regulation 17 (general duties of the Rail Passengers’ Council)

In regulation 17 (general duties of the Rail Passengers’ Council)—

(a)

in paragraph (1), for “European”, in each place it occurs, substitute “railway undertaking”;

(b)

omit paragraph (2).

16Regulation 19 (duties of the London Transport Users’ Committee)

In regulation 19 (duties of the London Transport Users’ Committee)—

(a)

in paragraph (1), for “European”, in both places it occurs, substitute “railway undertaking”;

(b)

omit paragraph (2).

17Regulation 21 (review)

In regulation 21 (review) omit paragraph (2).

18Schedule 2 (qualifications for European licence)

In Schedule 2 (qualifications for European licence)—

(a)

in the heading of the Schedule, for “European” substitute “railway undertaking”;

(b)

in paragraphs 1, 6 and 11(1), for “European”, in each place it occurs, substitute “railway undertaking”.

19Schedule 4 (transitional provisions relating to existing licences and licence exemptions)

(1)

Schedule 4 (transitional provisions relating to existing licences and licence exemptions) is amended as follows.

(2)

In paragraph 2, for “Paragraphs 3 and 4 apply” substitute “Paragraph 4 applies”.

(3)

Omit paragraph 3.

(4)

In paragraph 5, for “Paragraphs 6 and 7 apply” substitute “Paragraph 7 applies”.

(5)

Omit paragraphs 6 and 8.

20The Railway Fires Act 1905

In section 4 of the Railway Fires Act 1905f1 (definitions and application)—

(a)

omit the definition of “EEA State”;

(b)

in the definition of “railway company”, for paragraph (c) substitute—

“(c)

who holds a railway undertaking licence granted pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005;”.

21The Insolvency Act 1986

In paragraph 10 of Schedule 2A to the Insolvency Act 1986f1 (exceptions to the prohibition on appointment of administrative receiver: supplementary provisions)—

(a)

for sub-paragraph (1)(n) substitute—

“(n)

in reliance on a railway undertaking licence granted pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005.”;

(b)

omit sub-paragraph (2B).

22The Railways Act 1993

(1)

The Railways Act 1993f1 is amended as follows.

(2)

In section 6 (prohibition on unauthorised operators of railway assets)—

(a)

in subsection (1A), for “European” substitute “railway undertaking”;

(b)

in subsection (2)—

(i)

omit the definition of “European licence”;

(ii)

at the appropriate place insert—

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

(c)

omit subsection (2A).

(3)

In section 59(6)(a)(i) (meaning and effect of railway administration order), for “European” substitute “railway undertaking”.

(4)

In section 72(2)(a) (keeping of register by the Office of Rail and Road), for “European”, in each place it occurs, substitute “railway undertaking”.

(5)

In section 80(1A) (duty to furnish information on request)—

(a)

for “European licences” substitute “railway undertaking licences”;

(b)

for the words from “any instrument made” to the end of paragraph (b) substitute “the Railway (Licensing of Railway Undertakings) Regulations 2005”.

(6)

In section 83(1) (interpretation)—

(a)

omit the definition of “European licence”;

(b)

at the appropriate place, insert–

  • ““railway undertaking licence” has the meaning given by section 6(2);”.

(7)

In section 145(2) (general restrictions on the disclosure of information), for paragraph (ga) substitute—

“(ga)

for the purpose of facilitating the carrying out by the Office of Rail and Road of any of its functions under—

(i)

the Railway (Licensing of Railway Undertakings) Regulations 2005, or

(ii)

the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016f2;”.

(8)

In Schedule 7 (transfer of relevant activities in connection with railway administration orders)—

(a)

in paragraph 1(2), in the definition of “other appointee”, for “European” substitute “railway undertaking”;

(b)

in paragraph 4(3), for “European” substitute “railway undertaking”.

23The Greater London Authority Act 1999

In section 235(2)(b) of the Greater London Authority Act 1999f1 (restrictions on the disclosure of information), for the words from “or any subordinate legislation” to the end, substitute “, the Railway (Licensing of Railway Undertakings) Regulations 2005 or the Railways (Access, Management and Licensing of Railway Undertakings) Regulations 2016;”.

24The Civil Contingencies Act 2004

In Schedule 1 to the Civil Contingencies Act 2004f1 (category 1 and 2 responders)—

(a)

for paragraph 24, substitute—

“24.

A person who provides services in connection with railways in Great Britain and who holds a railway undertaking licence granted pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005.”;

(b)

for paragraph 35, substitute—

“35.

A person who provides services in connection with railways, in so far as such services are provided in Scotland, and who holds a railway undertaking licence granted pursuant to the Railway (Licensing of Railway Undertakings) Regulations 2005.”.

25The Railways Act 2005

(1)

The Railways Act 2005f1 is amended as follows.

(2)

In section 46(7)(c) (bye-laws), for “European” substitute “railway undertaking”.

(3)

In section 59(5A) (consequential amendments, transitional provisions and repeals), for “European”, in both places it occurs, substitute “railway undertaking”.

26The London Underground (East London Line Extension) (No. 2) Order 2001

(1)

Paragraph 1(2) of Schedule 11 to the London Underground (East London Line Extension) (No. 2) Order 2001f1 (protection for Railtrack) is amended as follows.

(2)

Omit the definition of “EEA State”.

(3)

In the definition of “train operator”–

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

omit from “or pursuant” to “a single European railway area (recast)”.

27The Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002

(1)

Paragraph 13(6) of Schedule 11 to the Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002f1 (protection of railway undertakers) is amended as follows.

(2)

Omit the definition of “EEA State”.

(3)

In the definition of “train operator”–

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

omit from “or pursuant” to “a single European railway area (recast)”.

28The Docklands Light Railway (Woolwich Arsenal Extension) Order 2004

(1)

Paragraph 15(6) of Schedule 13 to the Docklands Light Railway (Woolwich Arsenal Extension) Order 2004f1 (protection of railway interests) is amended as follows.

(2)

Omit the definition of “EEA State”.

(3)

In the definition of “train operator”–

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

omit from “or pursuant” to “ a single European railway area (recast)”.

29The British Transport Police (Police Services Agreement) Order 2004

(1)

Article 2 of the British Transport Police (Police Services Agreement) Order 2004f1 (requirement to enter into a police services agreement) is amended as follows.

(2)

In paragraph (1)(b)—

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

omit from “or pursuant” to “a single European railway area (recast)”.

(3)

In paragraph (3), omit from “; and “EEA State”” to the end.

30Central Rating List (England) Regulations 2005

(1)

Regulation 6(4) of the Central Rating List (England) Regulations 2005f1 (railway hereditaments) is amended as follows.

(2)

Omit the definition of “EEA State”.

(3)

In the definition of “licence exempt operator” and “licence holder”—

(a)

for “European licence” substitute “railway undertaking licence”;

(b)

omit from “or pursuant” to the end.

31Commission Implementing Regulation (EU) 2015/171

Commission Implementing Regulation (EU) 2015/171 of 4th February 2015 on certain aspects of the procedure of licensing railway undertakings is revoked.

32Existing European licences

(1)

Paragraphs (2) and (3) apply in relation to—

(a)

any European licence granted by the ORR under the 2005 Regulations which has effect immediately before exit day, or

(b)

any other licence so far as, immediately before exit day, it has effect as if it were a European licence as a result of Schedule 4 to the 2005 Regulations (transitional provisions relating to existing licences and licence exemptions).

(2)

The licence continues to have effect on and after exit day as if it were a railway undertaking licence under the 2005 Regulations as amended by these Regulations (and the licence is to be read with such modifications as are necessary for it to do so).

(3)

Any act or omission in relation to, or in reliance on, the licence that has effect immediately before exit day continues to have effect in relation to the licence on and after exit day.

33Applications for European licences made before exit day

(1)

Paragraphs (2) and (3) apply in relation to any application made to the ORR before exit day for a European licence under the 2005 Regulations but not determined before exit day.

(2)

Subject to paragraph (3), on and after exit day the application is to be treated as an application for a railway undertaking licence and the 2005 Regulations (as amended by these Regulations) apply accordingly.

(3)

Any act in relation to the application that has effect immediately before exit day continues to have effect in relation to the application on and after exit day.

34Modifications to the 2005 Regulations

For the period of 2 years beginning with exit day, the 2005 Regulations (as amended by these Regulations) have effect with the modifications in regulations 35 to 39.

35Modifications to the 2005 Regulations

Regulation 2(1) (interpretation) has effect as if the following definitions were inserted at the appropriate places—

  • ““the 2012 Directive” means Directive 2012/34/EU of the European Parliament and of the Council of 21st November 2012 establishing a single European railway area (recast);”;

  • ““European licence” means a licence that is—

    1. (a)

      valid throughout the territory of any EEA state,

    2. (b)

      granted to a railway undertaking by which the capacity of the railway undertaking as such is recognised and which authorises the undertaking to provide in and between EEA states such train services as may be specified in the licence, and

    3. (c)

      granted pursuant to any action taken by an EEA state for the purpose of implementing the 1995 Directive or the 2012 Directive;”.

36Modifications to the 2005 Regulations

Regulation 5 (prohibition of unlicensed provision of services) has effect as if for paragraph (1) there were substituted—

“(1)

Where a person is a railway undertaking to which these Regulations apply, that person may not provide a train service in Great Britain unless the person is authorised to do so—

(a)

by a railway undertaking licence which is appropriate for that train service, or

(b)

by a European licence which would be appropriate for that train service if the United Kingdom were an EEA state,

and any person who provides such a service without such a licence is guilty of an offence.”.

37Modifications to the 2005 Regulations

Regulation 9(1) (prohibition on operating trains without a statement of national regulatory provisions) has effect as if after “railway undertaking licence” there were inserted “or a European licence (see regulation 5)”.

38Modifications to the 2005 Regulations

(1)

Regulation 10 (statements of national regulatory provisions) has effect with the modifications in paragraphs (2) and (3).

(2)

Paragraph (1) has effect as if after “railway undertaking licence” there were inserted “or European licence”.

(3)

Paragraph (2)(b) has effect as if after “the railway undertaking licence” there were inserted “or the European licence”.

39Modifications to the 2005 Regulations

Regulation 11(1) (conditions of SNRPs) has effect as if after “railway undertaking licence” there were inserted “or a European licence (see regulation 5)”.

40Modifications to the 2005 Regulations

The 2005 Regulations have effect as if the following regulation were inserted after regulation 14—

“Monitoring, suspension and revocation of SNRPs issued to holders of European licences

14A.
(1)

This regulation applies where the ORR has issued an SNRP to a holder of a European licence under regulation 10.

(2)

The ORR must take such steps as are necessary to enable it to determine whether or not the licence holder complies with the requirements referred to in Schedule 2 as to good repute, financial fitness, professional competence and insurance cover for civil liabilities at any time the ORR considers that there is serious doubt whether the licence holder complies with any of those requirements, and in doing so, the ORR must treat Schedule 2 as if it applies in relation to holders of European licences.

(3)

If, having taken the steps referred to in paragraph (2), the ORR is satisfied that the licence holder does not comply with any such requirement, the ORR must revoke or suspend the SNRP issued to the licence holder.”.

41Modifications to other legislation

(1)

For the period of 2 years beginning with exit day, any reference in, or application of, the provisions listed in paragraph (2) to a railway undertaking licence granted pursuant to the 2005 Regulations includes a reference to, or applies to, a relevant European licence, as the case may be.

(2)

The provisions are—

(a)

section 4 of the Railway Fires Act 1905;

(b)

Schedule 2A to the Insolvency Act 1986;

(c)

sections 6(1A), 72 and 80 of the Railways Act 1993;

(d)

section 235(2) of the Greater London Authority Act 1999;

(e)

Schedule 1 to the Civil Contingencies Act 2004;

(f)

section 46 of the Railways Act 2005;

(g)

Schedule 11 to the London Underground (East London Line Extension) (No. 2) Order 2001;

(h)

Schedule 11 to the Docklands Light Railway (Silvertown and London City Airport Extension) Order 2002;

(i)

Schedule 13 to the Docklands Light Railway (Woolwich Arsenal Extension) Order 2004;

(j)

article 2 of the British Transport Police (Police Services Agreement) Order 2004;

(k)

regulation 6 of the Central Rating List (England) Regulations 2005.

(3)

Any act or omission—

(a)

in relation to, or in reliance on, a relevant European licence, and

(b)

that, for the purposes of the provisions listed in paragraph (2), has effect immediately before exit day,

continues to have effect on and after exit day.

(4)

For the purposes of this regulation—

  • “European licence” has the same meaning as in regulation 2(1) of the 2005 Regulations (as modified by regulation 35 of these Regulations);

  • “relevant European licence” means a European licence, the holder of which has a valid SNRP that has not been suspended or revoked;

  • “SNRP” has the same meaning as in the 2005 Regulations.

Signature

Signed by authority of the Secretary of State for Transport

Name

Parliamentary Under Secretary of State

Department for Transport

Date

We consent to the making of these Regulations

Name

Name

Two of the Lords Commissioners of Her Majesty’s Treasury

Date

Explanatory note

(This note is not part of the Regulations)

These Regulations are made in exercise of the powers conferred by section 8(1) and 23 of, and paragraph 1 of Schedule 4 and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 (c. 16) in order to address failures of retained EU law to operate effectively and other deficiencies (in particular under section 8(2)(a), (b), (c), (d) and (g)) arising from the withdrawal of the UK from the European Union.

These Regulations make amendments to legislation relating to the licensing of railway undertakings in Great Britain. Part 2 amends the existing licensing legislation.

Parts 3 and 4 make consequential amendments to primary and secondary legislation. Part 4 (regulation 31) also revokes Regulation (EU) 2015/171 in Great Britain and Northern Ireland.

Part 5 makes transitional provision in respect of existing European licences granted by the Office of Rail and Road (established under section 15 of the Railways and Transport Safety Act 2003 (c. 20); section 15 was amended by the Office of Rail Regulation (Change of Name) Regulations (S.I. 2015/1682)) and pending applications for a licence so that they are treated as licences issued under the 2005 Regulations as amended by these Regulations.

Part 6 makes transitory provision so that European licences issued by an EEA Member State continue to be recognised in Great Britain for two years from exit day. The effect is that in respect of all existing legislation as it applies to these licences there is no change for two years.

An impact assessment has not been produced for this instrument as no, or no significant, impact on the private or voluntary sector is foreseen.