The Channel Tunnel (Safety) Order 2007

Citation, commencement and extent

1.—(1) This Order may be cited as the Channel Tunnel (Safety) Order 2007 and comes into force on the date on which the Regulation comes into force in accordance with article 77 of the Regulation. That date will be notified in the London, Edinburgh and Belfast Gazettes.

(2) Subject to paragraph (3), this Order does not extend to Northern Ireland.

(3) The following articles of this Order extend to Northern Ireland—

(a)article 3 in so far as it relates to article 75 of the Regulation; and

(b)article 9.

Interpretation

2.  In this Order—

“the 1974 Act” means the Health and Safety at Work etc. Act 1974(1);

“the Fixed Link” means the Channel fixed link as defined in Article 1(2) of the Treaty;

“the Intergovernmental Commission” means the Commission established under Article 10 of the Treaty to supervise, in the name and on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic, all matters concerning the construction and operation of the Fixed Link;

“railway undertaking” has the same meaning as in article 1xx of the Regulation;

“Regulation” means the provisions set out in the Schedule (being a regulation drawn up by the Intergovernmental Commission, under Article 10(3) (e) of the Treaty, on the safety of the Fixed Link); and

“the Treaty” means the Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the construction and operation by private concessionaires of the Fixed Link signed at Canterbury on 12th February 1986(2).

Regulation has the force of law

3.  The Regulation has the force of law.

Enforcement of the Regulation

4.—(1) Subject to paragraphs (5) and (6), it is the duty of the Office of Rail Regulation to make adequate arrangements for the enforcement of the Regulation.

(2) Subject to paragraphs (4) to (6), the provisions of the 1974 Act specified in paragraph (3) (the “specified provisions”) apply for the purposes of the enforcement of the Regulation as if in the specified provisions—

(a)a reference to the “enforcing authority” was a reference to the Office of Rail Regulation;

(b)a reference to the “relevant statutory provisions” was a reference to the Regulation and to the specified provisions; and

(c)a reference to “health and safety regulations” was a reference to the Regulation.

(3) The provisions of the 1974 Act referred to in paragraph (2) are—

(a)sections 19 and 20 (appointment and powers of inspectors)(3), excluding section 20 (3);

(b)sections 21 and 22 (improvement and prohibition notices)(4);

(c)section 23 (provisions supplementary to sections 21 and 22)(5), excluding section 23(6);

(d)section 24 (appeal against improvement or prohibition notice)(6);

(e)section 25 (power to deal with cause of imminent danger);

(f)section 26 (power to indemnify inspectors);

(g)section 28 (restrictions on disclosure of information)(7);

(h)sections 33 (1) (c), (e) to (h), (k) to (o), (2), (2A) and (3), 34 (1) (c) and (d) and (2) to (5), 35, 36 (1) and (2), 37 to 41 and 42 (1) to (3) (provisions as to offences)(8); and

(i)section 46 (service of notices).

(4) For the purposes of the enforcement of the Regulation section 33(1)(c) of the 1974 Act (offences) only applies to contraventions of—

(a)articles 13 iv, 15 iv, 16, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) and 61 of the Regulation; and

(b)any requirement or prohibition to which a person is subject by virtue of the terms of or any condition or restriction attached to any—

(i)authorisation of rolling stock;

(ii)safety authorisation; or

(iii)Part B certificate;

given under the Regulation, including any deemed authorisation or Part B certificate referred to in articles 66, 73 or 74 of the Regulation.

(5) Paragraphs (1) and (2) do not apply in respect of the following articles of the Regulation—

(a)articles 6 and 7 (safety authority);

(b)articles 56 to 60 (access to training facilities); and

(c)articles 67 to 72 (investigations into accidents and incidents).

(6) Paragraphs (1) and (2) do not apply for the purpose of enforcing the obligations of the Intergovernmental Commission under the Regulation.

Access to training facilities

5.—(1) Any railway undertaking whose train drivers or staff performing vital safety tasks are denied the entitlements conferred by articles 56, 57(a) and 58 of the Regulation has a right of appeal to the Office of Rail Regulation.

(2) In relation to training services to which article 59 of the Regulation applies, a railway undertaking which considers that the price charged for access to those services is unreasonable or discriminatory has a right of appeal to the Office of Rail Regulation.

(3) A person who is denied any entitlement conferred on him by article 60 of the Regulation has a right of appeal to the Office of Rail Regulation.

(4) The provisions of regulation 5(3) to (5) of the Railways (Access to Training Services) Regulations 2006(9) (appeal to the regulatory body) apply to any appeal made under this article as if reference to an appeal in those provisions included reference to an appeal under this article.

Civil liability

6.—(1) Breach of a duty requirement or prohibition imposed by articles 13 iv, 15 iv, 22 to 25, 27, 34 (a) and (b), 39, 51, 52 (a) and (b) and 61 of the Regulation is, so far as it causes damage, actionable.

(2) Subject to paragraphs (1) and (3) and to article 5 of this Order, nothing in this Order is to be construed as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty requirement or prohibition imposed by the Regulation.

(3) Paragraph (2) is without prejudice to any right to apply for judicial review which an aggrieved person may have under article 76 of the Regulation.

(4) Paragraphs (1) and (2) are without prejudice to any right of action which exists apart from the provisions of this Order.

(5) Any term of an agreement which purports to exclude or restrict the operation of paragraph (1), or any liability arising by virtue of that paragraph, is void.

(6) In this article “damage” includes the death of, or injury to, any person (including any disease and any impairment of a person’s physical or mental condition).

Investigations into accidents and incidents

7.  Nothing in this Order or the Regulation prejudices or affects the provisions of Part 1 of the Railways and Transport Safety Act 2003(10) or the Railways (Accident Investigation and Reporting) Regulations 2005(11).

Power to impose charges

8.  The Intergovernmental Commission may impose charges reflecting their administrative costs of processing applications for the following—

(a)Part B certificates as required by article 39(ii) of the Regulation, including their renewal under article 50 or modification under article 52 of the Regulation, and

(b)authorisation under article 61 of the Regulation for operating rolling stock on the Fixed Link.

Amendments to the Channel Tunnel (International Arrangements) Order 2005

9.—(1) The Channel Tunnel (International Arrangements) Order 2005(12) is amended as follows.

(2) In the Schedule (International Articles)—

(a)in Article 6 (exercise of access or transit rights) for paragraph (c) substitute—

“(c)has received and continues to hold a safety certificate as required by article 39 of the Regulation of the Intergovernmental Commission transposing Directive 2004/49/EC of the European Parliament and of the Council (the Railway Safety Directive) signed on 24th January 2007;”; and

(b)in Article 12 (regulatory body) for sub-paragraph (1) (f) substitute—

“(f)arrangements for access to the network.”.

Amendment to the Railways and Other Guided Transport Systems (Safety) Regulations 2006

10.  For paragraph 1 (b) (i) of Schedule 2 to the Railways and Other Guided Transport Systems (Safety) Regulations 2006(13) (application for a safety certificate) substitute—

“(i)a copy of a current certificate issued to the applicant by—

(aa)the Office of Rail Regulation, other than a deemed safety certificate;

(bb)a safety authority in another member State;

(cc)a safety authority in Northern Ireland; or

(dd)the safety authority for the tunnel system within the meaning of section 1(7) of the Channel Tunnel Act 1987(14),

under provisions giving effect to article 10(2)(a) of the Directive which relates to an equivalent railway operation; or”.