Railways Bill — Human Rights Memorandum

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THE RAILWAYS BILL
EUROPEAN CONVENTION OF HUMAN RIGHTS MEMORANDUM

Summary
1. This memorandum addresses issues arising under the European Convention
on Human Rights (“ECHR” or “the Convention”) in relation to the Railways Bill.
It has been prepared by the Department for Transport . On introduction of the
Railways Bill in the House of Commons, the Secretary of State for Transport,
the Rt Hon Heidi Alexander MP, made a statement under section 19(1)(a) of the
Human Rights Act 1998 that, in her view, the provisions of the Bill are
compatible with the Convention rights.
Contents of the Bill
2. The Railways Bill delivers on the government’s manifesto commitment to
establish Great British Railways. It consists of the following measures.
3. Great British Railways (“GBR”). Part 1, Chapter 1 of t he Bill (Great British
Railways) empowers the Secretary of State to designate a body corporate as
GBR. GBR will be a public body, and it will operate most of the railway network
in Great Britain as well as most mainline passenger services. The Secretary of
State will issue GBR with a single licence to operate the network, passenger
trains, stations and depot s, which the O ffice of R ail and R oad (“ORR”) will
enforce. The Secretary of State and Scottish Ministers can also give directions
and guidance to GBR.
4. Funding GBR. The Bill maintains the certainty of a five-year funding settlement
for infrastructure activities that the current periodic review mandates. The new
funding period review requires the Secretary of State and Scottish Ministers to
makes statements of objectives for the railway and about the level of funds that
will be available for the funding period. GBR will prepare a business plan which
sets out the activities it will deliver during the five- year funding period. The

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Secretary of State and Scottish Ministers will give final approval to GBR’s
business plan after considering advice from the ORR.
5. General Duties. Part 1, Chapter 2 of the Bill (exercise of railway functions)
replaces section 4 of the Railways Act 1993 by establishing a new set of general
duties that the Secretary of State, Scottish Ministers, Welsh Ministers and the
ORR must apply when exercising functions relating to railways and railway
services. GBR must apply these general duties when exercising its statutory
functions.
6. Memoranda of Understanding and strategies. The Bill places an obligation
on the Secretary of State and Scottish Ministers, and the Secretary of State and
Welsh Ministers , to prepare and publish a memorandum of understanding
setting out how they will work together when exercising their respective
functions. The Secretary of State must also publish a long-term rail strategy and
a rail freight growth target.
7. Designation of Services. Part 2, Chapter 1 of the Bill (passenger services)
places a duty on the Secretary of State to designate the railway passenger
services which she can secure to be provided through a public service contract
with GBR in accordance with the P ublic Service Obligations in Transport
Regulations 2023 (“PSOTRs”). The Bill also:
a) Places duties on Scottish Ministers and Welsh Ministers to designate the
railway passenger services which they can provide themselves or
through an arrangement under clause 4, or they can secure the services
through a public service contract with a public sector company (including
GBR) in accordance with the PSOTRs.
b) Gives the Secretary of State, Scottish Ministers and Welsh Ministers the
power to exempt services from designation through regulations. This is
how railway passenger services are devolved to local bodies such as
Transport for London.

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8. Fares. The Bill contains provisions relating to fares and discount fare schemes,
ensuring the continuity of discount fare schemes for young, elderly or disabled
persons.
9. Passenger Watchdog. Part 2, Chapter 2 of the Bill (the Passengers’ Council)
enables the creation of a strengthened passenger watchdog that will be built
out of Transport Focus. They key functions of the passenger watchdog include:
a) Providing advice to GBR, the Secretary of State and other bodies in the
industry;
b) Securing independent alternative dispute resolution services for
unresolved passenger complaints;
c) Conducting investigations, undertaking research and publishing
information to encourage improvements from operators; and
d) Setting standards that are currently part of the “passenger experience”
licence conditions , monitoring compliance with these standards and
requesting improvement plans from operators if appropriate.
10. Part 2, Chapter 3 of the Bill (the London Transport Users’ Committee) will
amend the Greater London Authority Act 1999 so that the London Transport
Users’ Committee’s investigation, information collection and publication powers
are aligned with the Passengers’ Council.
11. Access Framework. Part 3, Chapter 1 (access to infrastructure and services)
establishes a new access framework for GBR’s network. The ORR will no
longer take decisions on access nor set the standard clauses in access
agreements in relation to GBR’s railway network, stations or depots. Instead,
GBR, as directing mind of the railway, will be making the access decisions on
its network. Therefore, the Bill:
a) Requires GBR to set out the processes, polices and criteria on how to
access its infrastructure , which GBR must consult on. This document
must be consistent with legislative requirements, and reflect any
strategies, directions and guidance.

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b) Requires GBR to issue an infrastructure capacity plan, a charging
scheme, a performance scheme and a working timetable for its network.
c) Places a duty on GBR to ensure that it retains sufficient capacity over its
infrastructure for particular passenger services that it is required to
provide, as well as any maintenance or improvement work.
d) Creates an appeals role for the ORR so that third parties can apply for
remedies when GBR makes access decisions that do not align with its
policies or duties. The ORR will apply the principles which would be
applied by the High Court on an application for judicial review, or by the
Court of Session (for Scotland).
e) Gives the Secretary of State powers to make regulations to:
i. make provision about processes and procedures for appeals to
ORR, including the setting of fees and time limits for appeals ,
subject to a duty to consult the ORR ; subject to any such
regulations, the ORR will be empowered to determine its own
practice and procedure on appeals.
ii. make provision, within 15 years from Royal Assent, about the
operation of existing contracts giving access to GBR’s network
iii. restate or replace with alternative provision, the Railways
(Access, Management and Licensing of Railway Undertakings)
Regulations 2016, making various provision including as to the
management and operation of non-GBR infrastructure
iv. amend the definition of “GBR infrastructure” in the Bill, e.g.: to
include future technological advances, or to add further specificity
to this definition in the context of the use of the power to restate
or replace the (Access, Management and Licensing of Railway
Undertakings) Regulations 2016.
f) Disapplies most of the Railways (Access, Management and Licensing of
Railway Undertakings) Regulations 2016 and sections 17- 22C of the

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Railways Act 1993 for GBR’s network, but those provisions will be
retained for other infrastructure managers.
12. Further Functions & Duties. Part 3, Chapter 2 of the Bill (other provisions)
sets out further functions and duties of the ORR , GBR, Secretary of State,
Scottish Ministers , Welsh Ministers and local government bodies . These
include functions and duties relating to monitoring GBR, publication of
information, co-operation and providing advice.
13. Train Driver Licensing & Luxembourg Protocol . The Bill also gives the
Secretary of State powers to make regulations to:
a) Amend, update or revoke the Train Driving Licences and Certificates
Regulations 2010 and related assimilated law, and to delegate to another
person or body to issue notices setting technical standards in relation to
train drivers and the licences and certificates they are required to hold.
b) Amend primary or secondary legislation to implement the Cape Town
Convention and the Luxembourg Protocol, which relate to rolling stock.
14. Consequential Provisions. Part 4 of the Bill ( general) gives the Secretary of
State the power to make consequential provision as well as making the
necessary legal provision for regulations under the Bill , interpretation, extent,
commencement and the short title of the Bill . Schedule 3 of the Bill contains
minor and consequential amendments to other pieces of legislation.

Convention Article Analysis
Summary
15. The Bill engages, or might be considered to engage, t hree Convention rights:
the right to liberty and security (Article 5), the right to a fair trial (Article 6) and
the right to the peaceful enjoyment of possessions (Article 1 of the First
Protocol), as follows:

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A. Clauses 59-68 in Part 3, Chapter 1 - Appeals to the ORR: Article 6(1)
ECHR
B. Clause 71 in Part 3, Chapter 1 - Power to amend access
agreements: Article 1, Protocol 1 ECHR, with retrospective effect
C. Clause 72 in Part 3, Chapter 1 - Regulations about non- GBR
infrastructure, facilities and services: Article 6(1) ECHR & Article 1,
Protocol 1 ECHR
D. Clause 85 in Part 3, Chapter 2 - Regulations about licensing of train
drivers: Article 5 and Article 6 ECHR
16. The government has considered the Convention Articles and the rights which
they provide against each substantive measure in the Bill and has highlighted
below those measures which we regard as being of significant interest. Other
measures may raise minor ECHR issues but are not thought significant enough
for the purposes of this memorandum.
17. Having considered these points, the government regards the measures in the
Bill as being compatible with Convention Rights.

A. Clauses 59-68 in Part 3, Chapter 1 - Appeals to the ORR: Article 6(1) ECHR
18. The Department considers that the new access arrangements made under Part
3, Chapter 1 of the Bill engage Article 6. In relation to the railways, “access”
refers to the question of who has the right to run trains on the track (literally,
who has “access” to the track). Under clause 67 of the Bill, the ORR will be the
appeals body for GBR’s decisions on access matters. The ORR will also be a
statutory consultee on GBR’s ‘Access and Use Policy’ ( containing the key
documents setting out its processes relating to access decisions).

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Background: the access regime
19. GBR will manage its railway network, take decisions on which services can use
it where and when, and run passenger services on the GBR and others’
networks.
20. GBR will take decisions on use of GBR’s infrastructure. These decisions include
creating plans for the usage of the infrastructure, deciding the train movements
on the infrastructure, allocating access to the GBR network by third parties,
deciding the timetable for the GBR network setting out planned train
movements, and entering into contractual agreements setting out operators’
rights to use the infrastructure. GBR will decide the terms and conditions for the
use of the GBR infrastructure. The Bill will r equire GBR to publish documents
setting out how GBR will make decisions on train path allocation, and
timetabling.
21. Unlike the present arrangement, the ORR will no longer have a right to approve
or direct GBR into access agreements, nor will the ORR set the standard terms
and conditions for this use. The ORR will be the appellate body able to hear
appeals in relation to the documents that GBR publishes for access decisions,
and for individual access decisions that GBR makes under the Access to
Infrastructure and Services Chapter of the Bill. GBR must abide by the ORR’s
appeal decisions.
22. GBR will determine the charging scheme for the GBR infrastructure. The Bill
will set out rules relating to these charges. The ORR will be the appeals body
for GBR’s charging scheme.
23. GBR’s service facilities such as depots and storage sidings will be subject to
the same rules on access and charging as today under the Railways (Access,
Management and Licensing of Railway Undertakings) Regulations 2016. The
ORR will also retain its role in approving and directing access for non-GBR
stations and light maintenance depots.
24. GBR will also determine the performance scheme for users on the GBR
infrastructure to require the users to take appropriate steps to minimise

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disruption to rail services within the GBR infrastructure. The scheme may
include penalties, compensation, or bonuses to be paid to or by service
providers on the GBR network. The ORR will be the appeals body for GBR’s
performance scheme and individual dec isions that GBR makes under the
performance scheme. If a third- party operator does not agree to share the
information required by GBR to receive payments under the performance
schemes, GBR will not be obliged to make these payments.
Provision about appeals
25. The ORR will be the appellate body where an aggrieved person with sufficient
standing (such as an open access passenger train operator) wants to challenge
the documents that GBR produces in relation to access arrangements or an
access-related decisions.
26. For decisions relating to the timetable, only persons who have applied for
inclusion on the timetable may appeal a decision.
27. The ORR’s possible responses to an appeal against a decision made under
these documents by GBR, are to: (a) dismiss it, (b) quash the appealed decision
and remit it back to GBR to be re- taken, with or without directions, or (c) to
substitute its own decision for GBR’s, where an error of law has been made and
only one other decision is possible (this follows the remedy available in the High
Court under s.31(5), (5A) and (5B) of the Senior Courts Act 1981).
28. The ORR will be permitted to publish its own processes and procedures for
appeals, which could include the timeframes for any appeals. While it will not
be required by legislation to publish their appeal decisions, it is open to them to
do so. These ORR processes and procedures will be subject to the power of
the Secretary of State to make regulations , if that power is exercised by the
Secretary of State.
29. The Secretary of State will have power to make regulations in respect of
appeals to the ORR, e.g.: to set fees, if in due course this is considered
proportionate. This provision is subject to consultation with the ORR and
Scottish and Welsh Ministers.

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30. The ORR will also retain its powers to hear appeals relating to service facilities
under regulation 32(2)(g) of the Railways (Access, Management and Licensing
of Railway Undertakings) Regulations 2016.
Assessment
31. The new access arrangements made under this Bill engage Article 6(1) of the
ECHR, as the ORR’s dual statutory roles (as appeals body and consultee)
could undermine the ORR’s ability to determine civil rights under the new
access regime in an impartial and independent manner.
32. The Department considers that the essential requirements of Article 6(1) are
met in that:
a. The ORR is a public body subject to the Human Rights Act 1998 . Its
processes and procedures to be published will therefore be compliant
with the ECHR.
b. The ORR is required to set out its processes in publicly available
documents. While it is not specifically required in legislation to publish
the outcomes of its appeal decisions, the ORR will be required in
Chapter 2 of Part 3 to publish documents and information relating to
access agreements and contracts, as ORR considers appropriate. This
may include information about the outcomes of appeals. ORR’s appeal
decisions may also be disclosable under the principles of the Freedom
of Information Act 2000. The arrangements for publishing decisions
could be set out in the ORR’s published procedures and processes for
appeals under this Chapter, or in any regulations made by the Secretary
of State under clause 68. In addition, the ORR is obliged to apply the
principles of judicial review that would be applied by the High Court, and
in Scotland by the Court of Session (clause 68(1)).
c. The timeframes for appeal will be in accordance with the principles of
judicial review in the High Court or otherwise set out in the ORR’s
published procedures and processes for appeals under this Chapter, or
else in any regulations made by the Secretary of State.

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d. Any such regulations would require the Secretary of State to publish an
analysis of compatibility with the ECHR, which will enable parliament to
scrutinise any potential interference at that time, and section 3 of the
Human Rights Act 1998 would require the regulations to be read and
given effect in a way which is compatible with the Convention rights.
e. To the extent that the ORR’s dual statutory roles impact on its
independence, we consider that this is justified and proportionate for the
reasons set out below.
33. The Department notes there are several good reasons for the ORR’s dual
statutory roles, which do not impede its independence in its appellate function.
Firstly, the ORR’s role as a statutory consultee means the ORR may have
influence or input into the content of GBR access regime documents, but the
ultimate decision of their content will remain the responsibility of GBR. This
ensures that control of the access regime documents remains with GBR.
34. Secondly, the ORR’s role in hearing appeals against GBR documents and
decisions will provide it with a valuable perspective of the impact of GBR’s
documents and decisions. The ORR’s role in synthesising this into consultation
comments will provide GBR with valuable insights and ultimately improve the
documents.
35. Thirdly, the ORR exercises its statutory functions independently from GBR and
the Secretary of State and is the sector regulator for rail. The ORR is funded by
industry rather than government to exercise its railway functions, and the Bill
retains this funding independence, by giving the ORR the power to levy GBR .
The ORR is subject to various general duties which require it to ensure fairness,
balance competing interests in the exercise of its functions, promote
improvements in railway service performance, take into account the effect on
public funds, and protect all persons from dangers arising from the operation of
the railways (clauses 18-19 of the Bill). Specifically for the access appeals role,
the Bill will require the ORR to apply judicial review principles of the High Court
or Court of Session principles (as relevant for the jurisdiction) when determining

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appeals. These facts combine to ensure the ORR will be an effective appeals
body operating within the rule of law.
36. Fourthly, it is important that the ORR is a statutory consultee for GBR’s access
documents, as the ORR’s oversight and input into GBR’s new access functions
is essential to support GBR’s assumption of these functions , given they were
previously the responsibility of the ORR (and the ORR will retain its current role
as sector regulator as well as its role under existing legislation).
37. Finally, the ORR already performs an appellate role under regulation 32 of the
2016 Regulations. It has expertise in this area and will continue to perform this
role in relation to other (i.e. non- GBR) infrastructure managers (unless
legislative exclusion applies), and for all (including GBR) in relation to service
facilities.
38. It is therefore the Department’s view that the ORR will retain sufficient
independence in relation to its appellate function to satisfy Article 6(1) of the
ECHR. In addition, its dual obligations pur sue a legitimate aim (that is , to
conduct multiple independent functions in respect of the railways).
39. The Department also notes that the outcome of an appeal to the ORR is subject
to judicial review by the High Court on application. This confirms that a party to
an access appeal will have sufficient recourse to independent judicial
consideration to satisfy the requirements of the Article 6(1).

B. Clause 71 in Part 3, Chapter 1 - Power to amend access agreements:
Article 1, Protocol 1 ECHR
40. The Department considers that A1P1 will be engaged by clause 71 as it
provides a power for the Secretary of State by regulations to make provision
about the operation of existing access agreements and the rights within them.

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Background - existing agreements and rights
41. The regime that governs access to GBR’s infrastructure will be different from
the current regime that governs access to Network Rail’s infrastructure. The Bill
contains provisions that give the Secretary of State the power to amend existing
access agreements already entered into between Network Rail and railway
undertakings, as far as the agreements or rights have effect in relation to GBR
infrastructure.
42. Track access contracts impacted by this change contain the contractual rights
to acquire certain capacity on the Network Rail network if applied for in the
timetable. The track access contracts also contain the terms and conditions for
this process and the use of capacity. GBR will inherit track access contracts
that currently exist between Network Rail Infrastructure Limited and railway
undertakings.
43. Track access contracts with train operating companies that are owned by the
Secretary of State, or that are currently operating under a franchise agreement
with the S ecretary of State will be easily dealt with , since once GBR is
established, GBR will either own that company, or its property, rights and
liabilities will be transferred into GBR.
44. Track access contracts with non -GBR operators will remain in place. These
include open access passenger train operators (that are not publicly owned and
operate without a franchise contract with the Secretary of State), passenger
train operators that are owned by, or operating under a contract with devolved
authorities, and freight operators.
45. GBR could negotiate changes to the access contracts although this could be a
lengthy and complex process: even one or two operators refusing to negotiate
new terms could prevent GBR from moving to the new access regime as
planned and implementing a system that works fairly for all rail users. There are
three parts of the existing contractual framework in particular that will need to
be amended to reflect the new access regime:

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a. Charging: the current access contracts refer to charges set by the ORR
in the periodic review process which is being replaced by the Railways
Bill. Therefore, these references will no longer work at the end of the
current control period, so an alternative method of stating what the
charges are will need to be found by referring directly to the new
statutory charging framework set by GBR.
b. Performance schemes: the performance scheme applying to operators
is set out in the access contract. The performance scheme requires
reform but leaving the access contracts unamended could lead to GBR
having to run two performance schemes in parallel unless the existing
contractual scheme can be aligned with the new scheme.
c. The Network Code: this code, which forms part of the contract, cannot
be changed without the agreement of all, or nearly all, operators.
Reforming the Network Code in a way that is consistent with GBR’s
functions will be key to delivering the aim of GBR being a directing mind
for the railways.
Assessment
46. The Department considers that changes to the access regime, in so far as they
affect the terms and conditions for the use of capacity, engage rights protected
by A1P1 of the ECHR. The Bill will give the Secretary of State the power to
amend the track acces s contracts with non- GBR operators on GBR’s
infrastructure, which would constitute an interference with the non- GBR
operators’ rights under these contracts.
47. The intention is that the Secretary of State would use this power only if GBR’s
efforts at negotiation fail and would be used in a way that honoured the
commitment to retain each contract holder ’s rights under Schedule 5 to the
standardised Network Rail passenger services track access contracts , until
their contract expired. These Schedule 5 rights include rights to certain amounts
of train services at certain times.

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Retrospective effect
48. This provision will have retrospective effect because, while the amendments
to the contracts would only be forward-looking, we expect the power to allow
the regulations to make changes that were not expected by operators when
they entered into these contracts, in some cases some years ago, and so they
may have taken different action if they knew about these changes at the time
(e.g.: perhaps rescinded their rights earlier and avoided incurring long term
rolling stock liabilities).
49. Although the Bill will provide for amendments to be made to existing contracts,
the intention is that the power will be used to preserve the core rights in these
contracts as much as possible. Additionally, the power provides for the payment
of compensation. Accordingly, the Department considers that the core
commercial value of the access contracts – enabling the contract holder to run
trains on GBR’s network and realise a commercial profit – should not be unduly
affected.
50. Existing access contracts, many of which will last several years after the
creation of GBR, will be inconsistent with the access regime established by the
Bill or the agreements will become ambiguous as it will be unclear how out of
date statutory references in the existing contracts should be interpreted . This
may lead to costly inefficiencies, for example, because legacy systems and
procedures need to run in parallel with new ones. It may also give private sector
operators disproportionate commercial bargaining power because they would
be able to hold up necessary system wide change, in the hope that they will
receive assurances about future rights, secure changes to the new system, or
receive compensation that is disproportionate to the contractual rights that they
were being asked to forego.
51. This already happens to some extent under the existing rules because the
Network Code, which forms part of the contract, requires near unanimity before
any changes to the code can be agreed. Under the existing franchising system,
this system was a sensible way of sharing power between multiple private
sector train operators of broadly similar commercial interests and bargaining

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power. However, when most of the passenger trains are run by GBR , the
existing system would give significant (near veto) power to open access
passenger operators and freight operators, who will represent a minority of the
overall need for capacity on the network.
52. For these reasons the Department considers that any interference with existing
contractual rights will be achieved by means reasonably proportionate against
the aim sought to be realised (see paragraph 120 of Lithgow and Others v. the
United Kingdom (1986) 2/1984/74/112-118), since existing rights will be
preserved where they are consistent with the regime established by the Bill .
Additionally, the interference will be necessary and in the pursuit of a legitimate
aim: to implement the government’s vision for a largely publicly owned railway
that operates in the public interest and promotes the economic well-being of the
country. The Department therefore considers that there is a fair balance
between the rights of the individual and the general interest.
53. There is also precedent for the intended approach in the Transport and Works
Act 1992. In particular, t he Secretary of State’s power will be modelled on
section 1 and paragraph 5 of Schedule 1 of the Transport and Works Act 1992,
but it will be restricted to access contracts. An express reference to the payment
of compensation also demonstrates compliance with A1P1, as appears in
paragraph 11 of Schedule 1 of the Transport and Works Act 1992.
54. Accordingly, the Department takes the view that A1P1 is engaged by the new
regime for access to GBR’s infrastructure, but that any interference with A1P1
is justified as necessary and proportionate in the public interest, since:
a. The power is time limited and will cease to be available to be used to
make new regulations from 15 years after the date of Royal Assent.
b. It is intended that GBR will be established out of Network Rail
Infrastructure Limited, so the counterparty will remain the same entity
throughout and thus existing contractual rights of its counterparties will
continue, although its statutory functions and duties will significantly
change at that point.

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c. Any exercise of the power must be made by statutory instrument and
any use of the power will be subject to consultation. This means that any
exercise of the power will be subject to public and parliamentary scrutiny.
d. The statutory instrument process requires the Secretary of State to
publish an analysis of compatibility with the ECHR, which will enable
parliament to scrutinise any potential interference at that time.
e. The Department notes sections 3 of the Human Rights Act 1998 will
apply to any exercise of this power, so that regulations made under it will
fall to be read and given effect in a way which is compatible with the
Convention rights.

C. Clause 72 in Part 3, Chapter 1 - Regulations about non-GBR
infrastructure, facilities and services: Article 6(1) & Article 1, Protocol 1
ECHR
Background
55. The Railways (Access, Management and Licensing of Railway Undertakings)
Regulations 2016 (“the 2016 Regulations ”) set out the existing regulatory
regime which will continue to apply to the railway in Great Britain except where
the new regime in the Bill applies. GBR’s commercial “service facilities” will
continue to be regulated under the 2016 Regulations.
56. The 2016 Regulations were made under s.2(2) of the European Communities
Act 1972. With the repeal of that Act, the Secretary of State no longer has the
power to update the 2016 Regulations , so the regime for the rail industry
beyond GBR would without this power remain unreformed indefinitely.
57. Clause 72 allows the Secretary of State to make regulations to make provision
concerning the subject matter of the 2016 Regulations . The subject matter of
the 2016 Regulations includes appeal rights, remedies including fines, and the
regulation of charges; taken together its effect is to control the use of various
contractual and other rights in relation to operation of and on the railway.

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58. The intention is that this power will be exercised if, following the changes made
by this Bill, it is considered that other bodies still covered by the 2016
Regulations could benefit from similar flexibilities that are being provided to
GBR. The power would then allow the 2016 Regulations to be brought into line
with the regime created in the Bill, for example to align flexibility on timetable
change dates.
Assessment
59. We note this power here given the possibility that clause 72 could engage either
or both Article 6(1) (right to a fair trial) or A1P1 (right to peaceful enjoyment of
possessions) by empowering the Secretary of State to make regulations that
engage those rights.
60. The Department considers that this provision may engage Article 6(1) and/or
A1P1, but any interference will be proportionate to the aims of affording the
benefits of rail reform to the industry beyond GBR, since:
a. any exercise of the power must be made by statutory instrument under
the affirmative procedure and any use of the power will be subject to
consultation. This means that any exercise of the power will be subject
to public and parliamentary scrutiny.
b. The statutory instrument process requires the Secretary of State to
publish an analysis of compatibility with the ECHR, which will enable
Parliament to scrutinise any potential interference at that time.
c. The Department notes sections 3 and 4 of the Human Rights Act 1998
will apply to any exercise of this power, so that regulations made under
it will fall to be read and given effect in a way which is compatible with
the Convention rights, or else (to the extent the regulations amend
primary legislation) declared incompatible.

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D. Clause 85 in Part 3, Chapter 2 - Regulations about licensing of train
drivers: Article 5 and Article 6 ECHR
Background
61. Train drivers are required to hold a valid train driver licence and certificate.
Requirements about how to obtain and hold these licences and certificates are
set out in the Train Driving Licences and Certificates Regulations 2010 (“the
2010 Regulations”). The 2010 Regulations were made under s.2(2) of the
European Communities Act 1972. With the repeal of that Act, the Secretary of
State no longer has the power to update the 2010 Regulations. The Regulations
set out requirements that ensure train drivers are competent, medically and
psychologically fit, trained on the infrastructure, rolling stock and routes they
are to be deployed on, and generally able to drive trains safely. It is therefore
important for rail safety that the Secretary of State can keep the 2010
Regulations up to date.
Assessment
62. Clause 85 could engage Articles 5 (right to liberty and security) and 6 (right to
a fair trial) because it empowers the Secretary of State to make provision for
enforcement of a right or duty in the regulations , including by creating criminal
offences (subsection (5)). The measure is limited to providing for punishment
(on conviction on indictment) by imprisonment for a period not exceeding two
years.
63. The Department considers that while Article 5 may be engaged, the power will
be compatible with Article 5 because t he power provides for any criminal law
penalties to be imposed following fair hearing at court . This continues the
approach to ECHR compliance under the 2010 Regulations, which provide for
enforcement via the Health and Safety at Work etc. Act 1974.
64. The Department considers that while this provision may engage Article 6, it will
be compatible with Article 6 because:

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OFFICIAL-SENSITIVE
a. Given the critical role of drivers in the safe operation of the railways, it is
necessary and proportionate for licensing and certification to be
enforced by criminal sanction.
b. The maximum sanction provided reflects the existing sanction in
regulation 38 of the 2010 Regulations.
c. Any exercise of the power must be made by statutory instrument under
the affirmative procedure and any use of the power will be subject to
consultation. This means that any exercise of the power will be subject
to public and parliamentary scrutiny.
d. The statutory instrument process requires the Secretary of State to
publish an analysis of compatibility with the ECHR, which will enable
Parliament to scrutinise any potential interference at that time.
65. The Department also notes that section 3 of the Human Rights Act 1998 will
apply to any exercise of this power, so that regulations made under it will fall to
be read and given effect in a way which is compatible with the Convention
rights.
Conclusion on the compatibility of the Bill with the Convention Rights
66. The Government is therefore content that the Bill is compatible with the
Convention rights and the powers in the Bill are capable of being exercised in
a way that is compatible with Convention rights. We have also considered
arguments about the cumulative effect of these proposals against the backdrop
of existing legislation and we are satisfied that potential effects are
proportionate given the wider public interest benefit of reforming the railway
system in Great Britain. As such the Government is of the view that, considering
this Bill either on its own or the cumulative effect of this Bill along with existing
legislation, this Bill represents a proportionate response and is compatible with
Convention rights.
Department for Transport