UK Offence Report

The Channel Tunnel (International Arrangements) (Amendment) Order 2009

UK Statutory Instrument 2009 No. 2081 — creates 2 criminal offences.

2offences created
0recorded in force
0revoked
Made
25 July 2009
In force from
Not determined
Extent
Not stated
Subject
Transport: maritime, aviation, rail and harbours
Made under
Channel Tunnel Act 1987

Explanatory note

(This note is not part of the Order) — published with the instrument by the department that made it. © Crown copyright, reused under the Open Government Licence v3.0.

This Order amends the Channel Tunnel (International Arrangements) Order 2005 (“the principal Order”) in three ways. Firstly, it amends the principal Order to give effect to a new bi-national regulation (“the new bi-national regulation”) made by the Intergovernmental Commission (IGC) established by Article 10 of the Treaty of Canterbury (see full citation and reference in article 1(2)(a) and footnote (c) to that provision) to supervise the operation of the Channel Tunnel Fixed link. The new bi-national regulation, made on 23rd July 2009, concerns the conditions of access to the Channel Tunnel. It implements the amendments made by Directive 2007/58/EC to Council Directive 91/440/EEC on the development of the Community’s railways (OJ No. L 237, 24.8.1991, p. 25), and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification, of the European Parliament and of the Council (OJ No. L 75, 15.3.2001, p. 29), and makes further provisions. The new bi-national regulation shall repeal and replace an earlier regulation made by the IGC on 25th October 2005. More specifically, compared with the former bi-national regulation, the new bi-national regulation: extends, from 1st January 2010, the right of access to the Channel Tunnel for international passenger services from international groupings to all railway undertakings (article 3.1 of the new bi-national regulation, implementing articles 1(2), (3), (5), (6), (7) and (8) of Directive 2007/58/EC); includes new provisions on the duration of Framework Agreements between railway undertakings and infrastructure managers (article 8 of the new bi-national regulation, implementing article 2(4) of Directive 2007/58/EC); includes special provisions on framework agreements, applying when infrastructure has been designated as a “specialised infrastructure” under Article 24 of Directive 2001/14/EC (article 8 of the new bi-national regulation, also implementing article 2(4) of the Directive 2007/58/EC); provides for the Concessionaires of the Tunnel to allow a reasonable consultation period on their Network Statement (article 5.3 of the new bi-national regulation, changing the implementation of article 3 of Directive 2001/14/EC); changes the wording on judicial review for IGC decisions under the bi-national regulation (article 12.5 of the new bi-national regulation, changing the implementation of article 30(6) of Directive 2001/14/EC); requires negotiations between the Concessionaires of the Tunnel and a capacity requestor, concerning the level of charges, to be supervised by the IGC (article 11.4 of the new bi-national regulation, implementing article 30(3) of Directive 2001/14/EC). Accordingly, article 2(7) and the Schedule substitute a new Schedule of “international articles” to the principal Order. That Schedule contains the text of the new bi-national regulation. Its content will have the force of law by virtue of this and by virtue of article 3 of the principal Order, as amended by article 2(4) of this Order. Under article 1(2)(a) of this Order, the substitution and amendment will take place from the date when both governments have completed the domestic processes necessary to give the new bi-national regulation the force of law in their respective legal systems, and notified each other that they have done so. This means that the content of the Schedule will come into force and be given the force of law pursuant to the process required by Article 13.2 of the new bi-national regulation. Under article 1(3) of this Order, the Secretary of State must give notice, in the Gazettes, of the date when the Schedule enters into force. Article 3 implements the transitional arrangements under article 13.1 of the bi-national regulation, whereby Article 3 of the former bi-national regulation remains in force until 31st December 2009. As a result, between the date on which this Order comes into force and the opening of international services to all railway undertakings on 1 January 2010, Article 3 of the new bi-national regulation will not have effect, while the unamended Article 3 of the Schedule to the principal Order will continue to have effect. This means that international groupings will not lose their rights of access on the coming into force of the bi-national regulation. Secondly, articles 2(2) and 2(3) of this Order update the references to Directives 91/440/EEC and 2001/14/EC in the principal Order, so that they are read as amended by Directive 2007/58/EC. Again, these articles come into force only at the same time as the new bi-national regulation. Thirdly, this Order amends the principal Order to make changes to the enforcement regime under the principal Order. Article 2(5) provides that the IGC has the power to bring civil enforcement proceedings in respect of the breach of certain obligations, including by seeking an injunction or, in Scotland, an interdict. These obligations are: article 4(3) of the principal Order, which creates an obligation to comply with certain directions given by the IGC in the context of an appeal made to it, in its capacity as the regulatory body (see article 4 of the principal Order, Article 12 of the Schedule to the principal Order and Article 12 of the new bi-national regulation); and the provisions of the bi-national regulations imposing certain obligations (especially in relation to finance) on the Channel Tunnel Concessionaires as infrastructure managers (see Article 4 of the Schedule to the principal Order and Article 4 of the new bi-national regulation). Under article 2(6), making false statements for the purposes of the principal Order (including the Schedule) will be an offence, as it is already in the domestic context of the Railway Infrastructure (Access and Management) Regulations 2005 (S.I. 2005/3049). Article 2(6) also makes provision regarding the criminal liability of the officers and members of bodies corporate and the partners of Scottish partnerships. An impact assessment of the effect that this instrument will have on the costs of business and the voluntary sectors has been produced and is available from the Rail Network Strategy Division, Department for Transport, Great Minster House, 76 Marsham Street, London SW1P 4DR, and is annexed to the Explanatory Memorandum which is available alongside the instrument on the OPSI website (www.opsi.org.uk). A transposition note is also available from the same sources.

Offences created by this instrument

What Parliament said about it

Hansard was searched for this instrument by name and returned nothing. That is the ordinary outcome: an instrument laid under the negative procedure is usually never debated, and becomes law without a word said about it in either House.

How Parliament handled it

Parliament's Statutory Instruments service records procedure from May 2017 onwards, and this instrument predates it. That is a limit of the source, not a statement that nothing happened.

Check the source