Office of Public Sector Information
PART IV continued CHAPTER VII continued
(1) A PPP agreement may provide for matters of any description specified in the agreement to be referred to the PPP arbiter.
(2) A party to a PPP agreement may refer to the PPP arbiter for direction any matter of a description specified in a provision of that agreement by virtue of subsection (1) above.
(3) Where a matter is referred under this section to the PPP arbiter for direction he—
(a) shall give a direction in relation to that matter; and
(b) may give a direction in relation to any other matter which is ancillary or incidental to the matter referred.
(4) The directions that may be given under subsection (3) above include directions relating to the inclusion of new terms in, or the variation of existing terms of, the PPP agreement in question.
(5) The PPP arbiter shall give notice of any direction under subsection (3) above to the parties to the PPP agreement in question.
(6) A direction under subsection (3) above shall be final and binding—
(a) on the parties to the PPP agreement in question, and
(b) on any persons claiming through or under those parties,
and shall, if and to the extent that the notice given under subsection (5) above so provides, take effect as a term of the PPP agreement.
(7) Where a direction has been given under subsection (3) above, the parties to the PPP agreement in question may jointly agree that subsection (6) above is not to have effect in relation to that direction.
(1) Any matter relating to a PPP agreement may be referred to the PPP arbiter for consideration by him—
(a) by all the parties to the PPP agreement acting jointly, if they so agree; or
(b) by any party to the PPP agreement.
(2) Where a matter is referred by virtue of subsection (1) above to the PPP arbiter for consideration he shall consider the matter and—
(a) if the matter was referred under paragraph (a) of that subsection, shall give to the parties who referred the matter such guidance as he considers appropriate; or
(b) if the matter was referred under paragraph (b) of that subsection, may give to the parties to the PPP agreement such guidance as he considers appropriate.
(3) The guidance which may be given by the PPP arbiter by virtue of subsection (2) above includes guidance about any matter which he considers relevant to the PPP agreement in question.
(4) Where the PPP arbiter has given any guidance under this section in relation to a matter which is subsequently referred to him for direction under subsection (3) of section 229 above, the direction which may be given by the PPP arbiter under that subsection is not restricted by that guidance.
(1) In giving in relation to a PPP agreement—
(a) any direction under section 229(3) above, or
(b) any guidance under section 230(2) above,
the PPP arbiter shall act in the way he considers best calculated to achieve the objectives specified in subsections (2) to (5) below.
(2) The objective specified in this subsection is to ensure that an opportunity to review and amend the requirements imposed, or proposed to be imposed, on a PPP company by or under the PPP agreement in question is afforded to the appropriate relevant body if, in the opinion of the PPP arbiter, the proper price for the performance of those requirements exceeds the resources which that relevant body has notified to the PPP arbiter that it has, or expects to have, available for the purpose.
In this subsection “appropriate relevant body” means a relevant body which is a party to the PPP agreement and is to pay the price under the agreement.
(3) The objective specified in this subsection is to promote efficiency and economy—
(a) in the provision, construction, renewal, or improvement, as the case may be, and
(b) in the maintenance,
of the railway infrastructure to which the PPP agreement in question relates.
(4) The objective specified in this subsection is to ensure that any rate of return incorporated in the PPP agreement in question would, in the opinion of the PPP arbiter,—
(a) taking into account such matters as may be specified in the PPP agreement, and
(b) leaving out of account such other matters as may be so specified,
be earned by a company which is efficient and economic in its performance of the requirements imposed on the PPP company by or under the PPP agreement.
(5) The objective specified in this subsection is to enable any PPP company which is a party to the PPP agreement in question to plan the future performance of the agreement with reasonable certainty.
(6) In giving any such direction or guidance as is mentioned in subsection (1) above the PPP arbiter is to take account of any factors which—
(a) are notified to him by the parties to the PPP agreement in question, acting jointly, as factors to which he must have regard when giving the direction or guidance in question, or
(b) are factors specified or described in the PPP agreement in question as factors to which the PPP arbiter must have regard in giving any direction under section 229(3) above or any guidance under section 230(2) above.
(7) For the purposes of subsection (4) above, a rate of return is “incorporated in a PPP agreement” if, and only if, the PPP agreement—
(a) contains provision specifying, or for determining, the rate of return which the PPP company in question might reasonably expect to earn; and
(b) states that subsection (4) above is to have effect in relation to that provision.
(8) In this section “railway infrastructure” means the railway or proposed railway in question and includes a reference to any stations, rolling stock or depots used or to be used in connection with that railway.
(1) For the purposes of the proper discharge of the functions conferred or imposed on him by or under this Act, the PPP arbiter may—
(a) carry out inspections of such of the railway infrastructure or equipment belonging to, or under the control of, any party to a PPP agreement as he considers appropriate;
(b) consult such bodies or persons as he considers appropriate in relation to any direction or guidance given or proposed to be given by him;
(c) do all such things as he considers appropriate for or in connection with the giving of a direction under section 229(3) above or guidance under section 230(2) above; and
(d) do such other things as he considers necessary or expedient.
(2) The powers conferred on the PPP arbiter by this section and section 233 below are exercisable for purposes preparatory or ancillary to the giving of directions or guidance under this Chapter generally and notwithstanding that there is no matter in relation to which a direction under section 229(3) above, or guidance under section 230(2) above, is required.
(3) In this section “railway infrastructure” has the same meaning as in section 231 above.
(1) Any person falling within subsection (2) below shall, at the request of the PPP arbiter, provide him with such information as the PPP arbiter considers relevant to the proper discharge of the functions conferred or imposed on him by or under this Act and as may be specified or described in the request.
(2) The persons who fall within this subsection are—
(a) any party to a PPP agreement;
(b) any associate of a party to a PPP agreement; and
(c) any PPP related third party.
(3) The information shall be provided in such form and manner, and within such time, as may be specified in the request.
(4) A person is not obliged by virtue of this section to answer any question or produce any document which he would be entitled to refuse to answer or produce in or for the purposes of proceedings in a court in England and Wales.
(5) For the purposes of subsection (2)(b) above, “associate”, in relation to a party to a PPP agreement, means—
(a) a parent undertaking of that party;
(b) a subsidiary undertaking of any parent undertaking of that party;
(c) a subsidiary undertaking of that party; or
(d) an undertaking in which that party, or any undertaking falling within paragraphs (a) to (c) above, has a participating interest.
(6) For the purposes of subsection (5) above—
“parent undertaking” and “subsidiary undertaking” shall be construed in accordance with section 258 of the [1985 c. 6.] Companies Act 1985;
“undertaking” has the meaning given by section 259 of that Act; and
“participating interest” has the meaning given by section 260 of that Act.
(1) If a person fails to comply with a request under section 233(1) above, the PPP arbiter may serve a notice on that person requiring him—
(a) to produce to the PPP arbiter, at a time and place specified in the notice, any documents which are specified or described in the notice and are in his custody or under his control; or
(b) to provide to the PPP arbiter, at a time and place and in the form and manner specified in the notice, such information as may be specified or described in the notice.
(2) No person shall be required under this section—
(a) to produce any documents which he could not be compelled to produce in civil proceedings in the court; or
(b) in complying with any requirement for the provision of information, to provide any information which he could not be compelled to give in evidence in any such proceedings.
(3) A person who intentionally alters, suppresses or destroys any document which he has been required to produce by a notice under subsection (1) above is guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum; or
(b) on conviction on indictment, to a fine.
(4) If a person makes default in complying with a notice under subsection (1) above, the court may, on the application of the PPP arbiter, make such order as the court thinks fit for requiring the default to be made good.
(5) Any such order may provide that all the costs or expenses of and incidental to the application shall be borne by the person in default or by any officers of a company or other association who are responsible for its default.
(6) In this section—
(a) any reference to the production of a document includes a reference to the production of a legible and intelligible copy of information recorded otherwise than in legible form; and
(b) the reference to suppressing a document includes a reference to destroying the means of reproducing information recorded otherwise than in legible form.
(7) In this section “the court” means the High Court.
(1) Subject to the following provisions of this section, no information with respect to any particular business which—
(a) has been obtained by the PPP arbiter under or by virtue of any of the provisions of this Chapter, and
(b) relates to the affairs of any individual or to any particular business,
shall, during the lifetime of that individual or so long as that business continues to be carried on, be disclosed without the consent of that individual or the person for the time being carrying on that business.
(2) Subsection (1) above does not apply to any disclosure of information which is made—
(a) for the purpose of facilitating the carrying out by the Secretary of State, the Mayor of London, Transport for London or the PPP arbiter of any of his or, as the case may be, its functions under this Act;
(b) for the purpose of facilitating the carrying out by the Secretary of State, the Rail Regulator, the Franchising Director, the Competition Commission or the Mayor of any of his or, as the case may be, its functions under the [1993 c. 43.] Railways Act 1993;
(c) for the purpose of facilitating the carrying out by—
(i) any Minister of the Crown,
(ii) the Director General of Fair Trading,
(iii) the Competition Commission,
(iv) the Director General of Telecommunications,
(v) the Director General of Gas Supply,
(vi) the Director General of Water Supply,
(vii) the Director General of Electricity Supply,
(viii) the Civil Aviation Authority,
(ix) the Insolvency Practitioners Tribunal, or
(x) a local weights and measures authority in Great Britain,
of any of his or, as the case may be, its functions under any of the enactments or instruments specified in subsection (3) below;
(d) for the purpose of enabling or assisting the Secretary of State or the Treasury to exercise any powers conferred by the [1986 c. 60.] Financial Services Act 1986 or by the enactments relating to companies, insurance companies or insolvency or for the purpose of enabling or assisting any inspector appointed under the enactments relating to companies to carry out his functions;
(e) for the purpose of enabling or assisting an official receiver to carry out his functions under the enactments relating to insolvency or for the purpose of enabling or assisting a recognised professional body for the purposes of section 391 of the [1986 c. 45.] Insolvency Act 1986 to carry out its functions as such;
(f) for the purpose of facilitating the carrying out by the Health and Safety Commission or the Health and Safety Executive of any of its functions under any enactment or of facilitating the carrying out by any enforcing authority, within the meaning of Part I of the [1974 c. 37.] Health and Safety at Work etc. Act 1974, of any functions under a relevant statutory provision, within the meaning of that Act;
(g) for the purpose of facilitating the carrying out by the Comptroller and Auditor General of any of his functions under any enactment;
(h) for the purpose of facilitating the carrying out by the International Rail Regulator of any of his functions under any subordinate legislation made for the purpose of implementing—
(i) the Directive of the Council of the European Communities dated 29th July 1991 on the development of the Community’s railways; or
(ii) Council Directive 95/19/EC on the allocation of railway infrastructure capacity and the charging of infrastructure fees;
(j) in connection with the investigation of any criminal offence or for the purposes of any criminal proceedings;
(k) for the purposes of any civil proceedings brought under or by virtue of this Act or any of the enactments or instruments specified in subsection (3) below; or
(l) in pursuance of a Community obligation.
(3) The enactments and instruments referred to in subsection (2) above are—
(a) the [1968 c. 29.] Trade Descriptions Act 1968;
(b) the [1973 c. 41.] Fair Trading Act 1973;
(c) the [1974 c. 39.] Consumer Credit Act 1974;
(d) the [1976 c. 34.] Restrictive Trade Practices Act 1976;
(e) the [1976 c. 53.] Resale Prices Act 1976;
(f) the [1979 c. 38.] Estate Agents Act 1979;
(g) the [1980 c. 21.] Competition Act 1980;
(h) the [1984 c. 12.] Telecommunications Act 1984;
(j) the [1986 c. 31.] Airports Act 1986;
(k) the [1986 c. 44.] Gas Act 1986;
(l) the [1986 c. 45.] Insolvency Act 1986;
(m) the [1987 c. 43.] Consumer Protection Act 1987;
(n) the [1989 c. 29.] Electricity Act 1989;
(o) the [1991 c. 29.] Property Misdescriptions Act 1991;
(p) the [1991 c. 56.] Water Industry Act 1991;
(q) the [1991 c. 57.] Water Resources Act 1991;
(r) the [1993 c. 43.] Railways Act 1993;
(s) any subordinate legislation made for the purpose of securing compliance with the Directive of the Council of the European Communities dated 10th September 1984 on the approximation of the laws, regulations and administrative provisions of the member States concerning misleading advertising.
(4) The Secretary of State may by order provide that subsections (2) and (3) above shall have effect subject to such modifications as are specified in the order.
(5) The prohibition imposed by subsection (1) above shall be enforceable by civil proceedings—
(a) by the individual mentioned in that subsection, or
(b) by the person for the time being carrying on the business there mentioned,
for an injunction or for any other appropriate relief or remedy.
(6) In this section “the Franchising Director” means the Director General of Passenger Rail Franchising.
(1) The PPP arbiter is not liable for anything done or omitted in the discharge or purported discharge of his functions as the PPP arbiter unless the act or omission is shown to have been in bad faith.
(2) Subsection (1) above applies to a member of the staff of, or an agent of, the PPP arbiter as it applies to the PPP arbiter.
(1) The following expenses, namely—
(a) any sums payable by virtue of section 226(2) or (3) above, and
(b) any expenses duly incurred by the PPP arbiter or by any staff of the PPP arbiter,
shall be defrayed by the Secretary of State.
(2) A relevant body which is a party to a PPP agreement shall pay to the Secretary of State, at such times as he may direct, such sums as the Secretary of State may determine in respect of expenses defrayed by the Secretary of State under subsection (1) above.
(3) A PPP agreement may provide that sums paid by a relevant body by virtue of subsection (2) above, or any portion of such sums as may be specified or described in the PPP agreement, may be recovered by the relevant body from a PPP company which is a party to the PPP agreement.
(4) Where a PPP agreement includes provision by virtue of subsection (3) above making any sum recoverable by a relevant body, the directions which may be given under section 229(3) above include directions varying the amount so recoverable.
(5) Sums received by the Secretary of State by virtue of this section shall be paid into the Consolidated Fund.
Where, by virtue of a PPP agreement, statutory functions relating to a railway are exercisable by a PPP company, the PPP company shall, as respects any matter arising from the carrying out of the subject-matter of the PPP agreement, be taken to be authorised by an enactment to carry on a railway undertaking.
(1) In this Chapter, unless the context otherwise requires—
“key system assets” has the meaning given by section 213(1) above;
“locomotive” means any railway vehicle which has the capacity for self-propulsion (whether or not the power by which it operates is derived from a source external to the vehicle);
“PPP agreement” has the meaning given by section 210 above;
“PPP arbiter” shall be construed in accordance with section 225(1) above;
“PPP company” shall be construed in accordance with section 210(5) above;
“PPP designation” shall be construed in accordance with section 212(1) above;
“PPP lease” has the meaning given by section 218 above;
“PPP related third party” shall be construed in accordance with section 215(2)(b) above;
“PPP related third party agreement” means any arrangements falling within section 215(2)(b) above;
“premises” includes any land, building or structure;
“public sector operator” has the meaning given by section 211 above;
“railway” has the meaning given in section 67(1) of the [1992 c. 42.] Transport and Works Act 1992;
“railway vehicle” includes anything which, whether or not it is constructed or adapted to carry any person or load, is constructed or adapted to run on flanged wheels over or along a railway;
“the relevant authority” means—
as respects any time before the transfer date, London Regional Transport; and
as respects any time on or after that date, Transport for London;
“relevant body” has the meaning given by section 210(2) above (that is to say, London Regional Transport, Transport for London or a subsidiary of London Regional Transport or Transport for London);
“rolling stock” means any carriage, wagon or other vehicle used on a railway and includes a locomotive;
“station” means any land or other property which consists of premises used as, or for the purposes of, or otherwise in connection with, a railway passenger station or railway passenger terminal (including any approaches, forecourt, cycle store or car park), whether or not the land or other property is, or the premises are, also used for other purposes;
“the transfer date” means the date on which London Underground Limited becomes a subsidiary of Transport for London;
“vehicle” includes a railway vehicle.
(2) Any reference in this Chapter to a railway includes a reference to any stretch of track comprised in a railway.
(1) Subject to subsection (3) below, any local authority, or any two or more local authorities acting jointly, may enter into arrangements with Transport for London under which—
(a) Transport for London grants, or arranges with some other person for that other person to grant, such travel concessions as may be provided for by the arrangements to any persons eligible to receive them in accordance with subsection (5) below; and
(b) that local authority reimburses (or, as the case may be, those local authorities in such proportions respectively as they may agree amongst themselves reimburse) the cost incurred in granting those concessions.
(2) Subject to subsection (3) below, any London authority, or any two or more London authorities acting jointly, may enter into, with any independent transport service operator or with the Franchising Director, arrangements under which—
(a) that operator or (as the case may be) the Franchising Director grants such travel concessions as may be provided for by the arrangements to any persons eligible to receive them in accordance with subsection (5) below; and
(b) that authority reimburses (or, as the case may be, those authorities in such proportions respectively as they may agree among themselves reimburse) the cost incurred in granting those concessions.
(3) The concessions that may be provided for by any arrangements under subsection (1) or (2) above are concessions on journeys—
(a) between places in Greater London;
(b) between such places and places outside but in the vicinity of Greater London; or
(c) between places outside but in the vicinity of Greater London.
(4) Any arrangements entered into by a local authority under subsection (1) or (2) above may include provision for the performance of functions in connection with the travel concessions in question by the local authority or local authorities concerned.
(5) The persons eligible to receive travel concessions under arrangements made under subsection (1) or (2) above are persons, or any description of persons,—
(a) who have attained pensionable age (within the meaning given by the rules in paragraph 1 of Schedule 4 to the [1995 c. 26.] Pensions Act 1995);
(b) who are so blind as to be unable to perform any work for which sight is essential; or
(c) who suffer from a disability or injury which, in the opinion of the local authority or any of the local authorities by whom the cost incurred in granting the concessions falls to be reimbursed, seriously impairs their ability to walk.
(6) In subsection (2) above “independent transport service operator” means any person, other than a person to whom subsection (7) below applies, operating—
(a) a public service vehicle undertaking (“public service vehicle” for this purpose having the meaning given by section 1 of the [1981 c. 14.] Public Passenger Vehicles Act 1981);
(b) a system using guided transport within the meaning of subsection (1) of section 67 of the [1992 c. 42.] Transport and Works Act 1992;
(c) a railway within the meaning of that subsection;
(d) a tramway within the meaning of that subsection;
(e) a trolley vehicle system within the meaning of that subsection; or
(f) an undertaking providing public passenger transport services on the river Thames or a tributary of the river Thames between places in Greater London or between places in Greater London and places outside Greater London.
(7) This subsection applies to—
(a) Transport for London or any of its subsidiaries;
(b) the Franchising Director; and
(c) any person providing public passenger transport services in pursuance of an agreement entered into by Transport for London by virtue of section 156(2) or (3)(a) above or in pursuance of a transport subsidiary’s agreement.
(8) In this Chapter—
“the Franchising Director” means the Director of Passenger Rail Franchising;
“local authority” means the council of a county or district and any London authority;
“London authority” means any London borough council and the Common Council; and
“travel concession” means the reduction or waiver of a fare or charge either absolutely or subject to terms, limitations or conditions.
(9) For the purposes of this Chapter a reference to an agreement entered into by Transport for London under section 156(2) or (3) above includes a reference to an agreement—
(a) which was entered into by London Regional Transport under section 3(2) or (2A) of the [1984 c. 32.] London Regional Transport Act 1984, and
(b) which by virtue of section 300 or 415 below has effect as if made by Transport for London.
(1) If immediately before 1st January in any financial year it appears to Transport for London that there are not for the time being in force arrangements under section 240(1) above for travel concessions for London residents which—
(a) meet the requirements of section 242 below as to scope,
(b) meet the requirements of section 243 below as to uniformity, and
(c) will apply throughout the next following financial year,
there shall have effect during that next following financial year a scheme (the “free travel scheme”) for the purpose of ensuring that travel concessions are provided for eligible London residents.
(2) Where individual arrangements under section 240(1) above made between a particular local authority or local authorities and Transport for London apply to certain eligible London residents only, all arrangements so made shall be considered together for the purpose of determining whether the requirements of sections 242 and 243 below are satisfied.
(3) In any financial year during which the free travel scheme has effect it shall be the duty of Transport for London to provide or secure the provision of the travel concessions for eligible London residents required by the free travel scheme.
(4) In this Chapter “eligible London residents” means persons resident in Greater London who are eligible in accordance with section 240(5) above to receive travel concessions under arrangements under subsection (1) of that section.
(5) Schedule 16 to this Act (which makes further provision relating to the free travel scheme) shall have effect.
Greater London Authority Act 1999