HC Deb 01 November 1993 vol 231 cc115-9

Lords amendment: No. 19, to leave out clause 15 and insert the following new clause—Access agreements: directions requiring facility owners to enter into contracts for the use of their railway facilities—

  1. (" .—(1)The Regulator 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—
    1. (a) the facility owner's railway facility is, by virtue of section 16 below, an exempt facility;
    2. (b) performance of the access contract, if entered into, would necessarily involve the facility owner in being in breach of an access agreement or an international railway access contract; or
    3. (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.
  2. (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)—
    1. (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;
    2. (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;
    3. (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;
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    4. (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
    5. (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. (3) In subsection (2) above—
    1. (a) paragraph (a) does not extend to obtaining permission to use track for the purpose of providing network services on that track;
    2. (b) paragraph (b) does not extend to obtaining permission to use a station for the purpose of operating that station;
    3. (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;
    4. (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—
      1. (i) of providing network services on that track, or
      2. (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 Franchising Director a network in which the track in question is comprised;
    5. (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—
      1. (i) of providing station services at that station, or
      2. (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 Franchising Director;
    6. (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—
      1. (i) of carrying out light maintenance at that light maintenance depot, or
      2. (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 Franchising Director.
  4. (4) Any reference in this section to a person operating a network, station or light maintenance depot "on behalf of the Franchising Director" is a reference to his operating the network, station or light maintenance depot in pursuance of any agreement or other arrangements made by the Franchising Director for the purpose of performing a duty imposed upon him, or exercising a power conferred upon him, under or by virtue of this Part to secure the operation of that network, station or light maintenance depot.
  5. (5) Nothing in this section authorises the Regulator to give directions to any person requiring him to grant a lease of the whole or any part of a railway facility.
  6. (6) In this Part—
access contract" means—
  1. (a) a contract under which—
    1. (i) a person (whether or not the applicant), and
    2. (ii) so far as may be appropriate, any associate of that person,
    obtains permission from a facility owner to use the facility owner's railway facility; or
  2. (b) a contract conferring an option, whether exercisable by the applicant or some other person, to require a facility owner to secure that—
    1. (i) a person (whether or not the applicant or that other), and
    2. (ii) so far as may be appropriate, any associate of that person, 117 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—
  1. (a) who has an estate or interest in, or right over, a railway facility; and
  2. (b) whose permission to use that railway facility is needed by another before that other may use it; 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—
  1. (a) any servant, agent or independent contractor of his;
  2. (b) any passenger of his;
  3. (c) any person engaged in the provision of goods or services to or for him; and
  4. (d) any other person who deals or has business with him;
 the beneficiary" means the person mentioned in paragraph (a)(i) or, as the case may be, paragraph (b)(i) of the definition of "access contract" in subsection (6) above, according to the description of access contract in question; directions" means directions under this section; the Directive" means the Directive of the Council of the European Communities dated 29th July 1991 on the development of the Community's railways; implementing regulation" means a provision contained in subordinate legislation made for the purpose of implementing the Directive; international railway access contract" means an access contract entered into as a result of—
  1. (a) an application made under an implementing regulation by an international grouping to an infrastructure manager for access and transit rights, or for transit rights, for the provision of international services between the member States where the undertakings constituting the international grouping are established; or
  2. (b) an application made under an implementing regulation by a railway undertaking established, or to be established, in a member State other than the United Kingdom to an infrastructure manager for the grant of access for the purpose of the operation of international combined transport goods services;
and expressions used in paragraph (a) or (b) above and in the Directive have the same meaning in that paragraph as they have in the Directive; lease" includes an underlease or sublease and an agreement for a lease, underlease or sublease.
  1. (8) Any reference in this section to obtaining permission to use a railway facility includes—
    1. (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
    2. (b) a reference to obtaining permission—
      1. (i) to enter upon the facility land, with or without vehicles,
      2. (ii) to bring things on to that land and keep them there,
      3. (iii) to carry out works on that land, and
      4. (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.
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  2. (9) Any reference in this section to a railway facility includes a reference to a part of a railway facility.
  3. (10) Schedule (Access agreements: applications for access contracts) to this Act shall have effect with respect to applications for directions.
  4. (11) Any sums required for the making by the Franchising Director of payments in respect of an access contract entered into pursuant to directions under this section shall, if the access contract is one—
    1. (a) in relation to which the Franchising Director is the person who made the application under this section, or
    2. (b) under which an access option is exercisable by the Franchising Director,
    be paid by the Secretary of State out of money provided by Parliament.")

Mr. Norris

Moved formally.

Mr. Freeman

My hon. Friend seeks to relegate me, Madam Speaker.

I beg to move, That this House doth agree with the Lords in the said amendment.

Madam Speaker

With this we may take Lords amendments Nos. 20 to 23, 25 to 30, 132, 182 to 186, 301 and 324.

Mr. Freeman

The amendments concern access and they are extensive. They deal with three particular issues which I am glad to explain to the House. Access and access agreements are vital to the efficient running of the privatised railway. You will be aware, Madam Speaker, that an access agreement has to be entered into by a railway operating company with Railtrack, which has the duty to ensure that it does not discriminate between train operating companies. The regulator has the power of regulations and under the Bill, he has the duty to ensure fair competition.

We envisage that the access agreement that will be entered into by the train operating companies—the passenger train companies, the franchisees—and Railtrack will run coterminously with the franchise agreement which governs the degrees of subsidy that the franchising director will pay to the train operating company. The two agreements run back to back. It is most important, under our provisions for open access to the railway, that, when it is appropriate, the Secretary of State, who has powers to give directions and guidance, can ensure that, in his dealings with the regulator, the regulator is left in no doubt about the need to moderate competition for the letting of the first franchises.

The amendments, which are largely technical, do three things. First, they make it clear that rights of access do not extend to the actual operation of the track or the stations. That is reserved, obviously, to Railtrack as the freeholder and to station lessees as those responsible for the management and operation of individual stations.

Secondly, the amendments deal with the right of access granted by the regulator generally and they ensure that rights of access do not override other rights in certain cases. Rights may already exist, for example, to run railway trains or freight trains. The regulator cannot arbitrarily grant access to new operators, because that would conflict with existing contracts and agreements. Under the provisions for granting access internationally to railway trains, especially passenger services, those agreements will be made formally under the provisions that apply to international access under the EC directive.

It is envisaged that my right hon. Friend the Secretary of State will appoint the regulator responsible for regulating the domestic traffic as the international regulator. I think that that is his present intention. That is my right hon. Friend's function at the moment.

The amendments deal with access to railway facilities. The access provisions of the Bill as it left the Commons were deficient in a number of detailed but important respects. First, access rights were not sufficiently closely defined. It is important, therefore, to pin down exactly the rights that applicants should have and the types of contract that need to be regulated. For example, it is not our intention that management contracts relating to the operation of a station, or a lease of a light maintenance depot, should count as an access contract.

Secondly, the effect of the grant of access rights on obligations, which facility owners may owe to others, was not entirely clear. Finally, the procedures governing applications were, on reflection, too cumbersome. To ensure—

Debate adjourned.—[Mr. Andrew Mitchell.]

Debate to be resumed tomorrow.